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Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad outlines and principles, but delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation (often by order-in-council in parliamentary systems, or by regulatory agencies in
presidential systems A presidential system, or single executive system, is a form of government in which a head of government, typically with the title of president, leads an executive branch that is separate from the legislative branch in systems that use separation ...
), creating legally enforceable regulations and the procedures for implementing them.


Australia

In
Australian law The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are sub ...
, primary legislation includes acts of the Commonwealth Parliament and state or territory parliaments. Secondary legislation, formally called legislative instruments, are regulations made according to law by the executive or judiciary or other specified bodies which have the effect of law. Secondary legislation amounts to about half of Commonwealth law by volume. Although it is made by the executive, secondary legislation is still scrutinised by parliament and can be disallowed by a resolution of either house of parliament.


Canada

In
Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous la ...
, primary legislation (also called statute law) consists of acts of the Parliament of Canada and the legislatures of the provinces, and of
Orders in Council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
made under the Royal Prerogative. Secondary legislation (also called regulation) includes laws made by federal or provincial Order in Council by virtue of an empowering statute previously made by the parliament or legislature.


Civil law jurisdictions

In civil law systems, a parliament issues primary legislation, with lesser bodies granted powers to issue delegated legislation. Action for judicial review of the validity of secondary legislation may be brought before a court e.g. the
constitutional court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
. For example in Finland, the practice is to delegate the making of secondary legislation (“decree”, ) mainly to the
Finnish Government sv, Finlands statsråd , border = , image = File:Finnish Government logo.png , image_size = 250 , caption = , date = , state = Republic of Finland , polity = , cou ...
(the cabinet) as a whole, to individual ministries (made by the minister; e.g. where the change of legal position of persons is limited and technical), or to the President of the Republic (e.g. where implementing international treaty obligations do not require legislation). Delegation to
government agencies A government or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an administratio ...
is exceptional (e.g. when the need for regulation is technical and may change rapidly) and done with extra caution.


European Union

Each member state of the
European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...
(EU) has its own laws, but
EU law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its value ...
takes
primacy Primacy may refer to: * an office of the Primate (bishop) * the supremacy of one bishop or archbishop over others, most notably: ** Primacy of Peter, ecclesiological doctrine on the primacy of Peter the Apostle ** Primacy of the Roman Pontiff ...
in certain circumstances. The
EU Treaties The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedure ...
are the EU’s primary legislation. These include the founding treaty, the 1957
Treaty of Rome The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was sign ...
, and all subsequent treaties, such as the
Maastricht Treaty The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the p ...
,
Nice Treaty The Treaty of Nice was signed by European leaders on 26 February 2001 and came into force on 1 February 2003. It amended the Maastricht Treaty (or the Treaty on European Union) and the Treaty of Rome (or the Treaty establishing the European Co ...
, and
Lisbon Treaty The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member st ...
. Secondary legislation is enacted under the Treaties, taking various forms and can be either legislative or non-legislative. The forms include binding regulations, directives, decisions, and non-binding
recommendations A recommender system, or a recommendation system (sometimes replacing 'system' with a synonym such as platform or engine), is a subclass of information filtering system that provide suggestions for items that are most pertinent to a particular u ...
and opinions: * A
regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology Biology is the scientific study of life. It is a natural science with a ...
is a law which is binding in its entirety and directly applicable in all Member States without needing national implementation. EU citizens may have
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
to pursue breaches of regulations and treaties, as in '' Van Gend en Loos v Nederlandse Administratie der Belastingen''. * A directive is addressed to the Member States as a framework for their legislation. It is "binding as to the result to be achieved", but Member States can choose their own form of implementation. EU citizens may have standing to challenge failures to implement, as in '' Francovich v Italy''. * A
decision Decision may refer to: Law and politics * Judgment (law), as the outcome of a legal case *Landmark decision, the outcome of a case that sets a legal precedent * ''Per curiam'' decision, by a court with multiple judges Books * ''Decision'' (nove ...
is a law that addresses a specific issue. Addressees may challenge a decision via
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incom ...
. Legislative acts are enacted via the legislative procedure, initiated by the Commission, and ultimately adopted by the
Council A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/shire level, but most legislative bodies at the state/provincial or nati ...
and
European Parliament The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adop ...
acting in concert, which may also involve consultation with the
European Economic and Social Committee The European Economic and Social Committee (EESC) is a consultative body of the European Union (EU) established in 1958. It is an advisory assembly composed of "social partners", namely: employers ( employers' organisations), employees ( trade ...
and the
European Committee of the Regions The European Committee of the Regions (CoR) is the European Union's (EU) assembly of local and regional representatives that provides sub-national authorities (i.e. regions, counties, provinces, municipalities and cities) with a direct voice w ...
. Non-legislative acts include implementing and delegated acts, such as those adopted by the Commission in pursuance of policy, which may involve so-called comitology committees. The Commission may act quasi-judicially in matters of EU competition law, a power defined in
Article 101 Article often refers to: * Article (grammar), a grammatical element used to indicate definiteness or indefiniteness * Article (publishing), a piece of nonfictional prose that is an independent part of a publication Article may also refer to: G ...
and Article 102 of the Treaty on the Functioning of the European Union. Privileged parties, such as Member States, EU institutions, and those with specific standing, may initiate litigation to challenge the validity of secondary legislation under the Treaties.


Hong Kong

Subsidiary legislation in Hong Kong is made with powers delegated by a law enacted by the Legislative Council of Hong Kong.


United Kingdom


Primary legislation

In the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
, primary legislation can take a number of different forms: * An
Act of Parliament Acts of Parliament, sometimes referred to as primary legislation Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislat ...
. * An
Act of the Scottish Parliament An Act of the Scottish Parliament ( gd, Achd Pàrlamaid na h-Alba) is primary legislation made by the Scottish Parliament. The power to create Acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the succes ...
, Measure or
Act of the Senedd An Act of Senedd Cymru ( cy, Deddf gan Senedd Cymru), or informally an Act of the Senedd, is primary legislation that can be made by the Senedd (Welsh Parliament; ) under part 4 of the Government of Wales Act 2006 (as amended by the Wales Act ...
or Act of the Northern Ireland Assembly * An
Order in Council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (''Ki ...
made under the
Royal Prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the ...
* Church of England Measures – the instruments by which changes are made to legislation relating to the administration and organisation of the Church.


Secondary legislation

In the United Kingdom, secondary legislation (also referred to as delegated legislation or subordinate legislation) is law made by an executive authority under powers delegated by an enactment of primary legislation, which grants the executive agency power to implement and administer the requirements of that primary legislation. Forms of secondary legislation in the United Kingdom include only: *
Statutory instruments In many countries, a statutory instrument is a form of delegated legislation. United Kingdom Statutory instruments are the principal form of delegated or secondary legislation in the United Kingdom. National government Statutory instrument ...
– made in a variety of forms, most commonly
Orders in Council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
, regulations, rules and orders. The form to be adopted is usually set out in the enabling Act.


EU tertiary legislation

The
European Union (Withdrawal) Act 2018 The European Union (Withdrawal) Act 2018 (also known as the Great Repeal Act) is an Act of the Parliament of the United Kingdom that provides both for repeal of the European Communities Act 1972, and for parliamentary approval to be require ...
defines “EU tertiary legislation” in
retained EU law The European Union (Withdrawal) Act 2018 (also known as the Great Repeal Act) is an Act of the Parliament of the United Kingdom that provides both for repeal of the European Communities Act 1972, and for parliamentary approval to be require ...
after
Brexit Brexit (; a portmanteau of "British exit") was the withdrawal of the United Kingdom (UK) from the European Union (EU) at 23:00 GMT on 31 January 2020 (00:00 1 February 2020 CET).The UK also left the European Atomic Energy Community (EAE ...
to mean: According to the explanatory notes accompanying the Act, this is meant to cover delegated and implementing acts that were not enacted via the
European Union legislative procedure The European Union adopts legislation through a variety of legislative procedures. The procedure used for a given legislative proposal depends on the policy area in question. Most legislation needs to be proposed by the European Commission and ...
.


United States

The
British English British English (BrE, en-GB, or BE) is, according to Lexico, Oxford Dictionaries, "English language, English as used in Great Britain, as distinct from that used elsewhere". More narrowly, it can refer specifically to the English language in ...
distinction between primary and secondary legislation is not used in
American English American English, sometimes called United States English or U.S. English, is the set of varieties of the English language native to the United States. English is the most widely spoken language in the United States and in most circumstances ...
, due to the American abhorrence of the British constitutional concept of the
fusion of powers Fusion of powers is a feature of some parliamentary forms of government where different branches of government are intermingled, typically the executive and legislative branches. It is contrasted with the separation of powers found in president ...
as inherently incompatible with
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pe ...
and the rule of law (one of the great divergences between American and British political philosophy which led to the
American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revolu ...
). In contrast, the United States Constitution imposes a strict separation of powers. Therefore, the word ''legislation'' is used to refer only to acts of the legislative branch, and never the executive or the judicial branches. In a 2013 majority opinion of the
US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
, Associate Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
explained:''City of Arlington v. FCC''
569 U.S. 290, 305 n.4
(2013) (emphasis in original).


Act of Congress

In the United States, the equivalent at the federal level to the British concept of primary legislation is an Act of Congress. A statute that delegates authority to promulgate regulations to an agency is called an ''authorizing statute'' or ''delegation of rulemaking authority''.


Regulations "with the force of law"

In the United States, a law promulgated by an executive branch agency of the US federal government pursuant to authority delegated by an Act of Congress is called a ''regulation'' or a ''rule'' — often with the qualifier that it is a rule given "the force of law" by the authorizing statute. The body of law that governs agencies' exercise of rulemaking powers is called "
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as " regulations"), ...
", which derives primarily from the
Administrative Procedure Act The Administrative Procedure Act (APA), , is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations, and it grants U.S. federa ...
(APA) and decisions interpreting it. In addition to controlling "quasi-legislative" agency action, the APA also controls "quasi-judicial" actions in which an agency acts analogously to a
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
, rather than a legislature.


See also

* * *


Notes


References


External links


Public general Acts of the Parliament of the United KingdomSecondary legislation
at the
Parliament of the United Kingdom The Parliament of the United Kingdom is the Parliamentary sovereignty in the United Kingdom, supreme Legislature, legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of We ...
{{Authority control Law by type