Primary and secondary legislation
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Administrative law |
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General principles |
Grounds for judicial review |
Administrative law in common law jurisdictions |
Administrative law in civil law jurisdictions |
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Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation
Australia
In
Canada
In
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]
For example in Finland,[5] the practice is to delegate the making of secondary legislation ("decree", Finnish: asetus) mainly to the Finnish Government (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 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
The forms include binding regulations, directives, decisions, and non-binding recommendations and opinions:
- A regulation[8] 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 to pursue breaches of regulations and treaties, as in Van Gend en Loos v Nederlandse Administratie der Belastingen.
- A directive[8] 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[8] is a law that addresses a specific issue. Addressees may challenge a decision via judicial review.
Legislative acts are enacted via the legislative procedure, initiated by the Commission, and ultimately adopted by the Council and European Parliament acting in concert, which may also involve consultation with the European Economic and Social Committee and the European Committee of the Regions.
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 and Article 102 of the Treaty on the Functioning of the European Union.
Privileged parties, such as Member States,
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, primary legislation can take a number of different forms:[9]
- An Act of Parliament.
- An Act of the Northern Ireland Assembly
- An Royal Prerogative
- 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.[10]
Forms of secondary legislation in the United Kingdom include only:
- Statutory instruments – made in a variety of forms, most commonly Orders in Council, regulations, rules and orders. The form to be adopted is usually set out in the enabling Act.
EU tertiary legislation
The
- (a) any provision made under—
by virtue of Article 290 or 291(2) of the Treaty on the Functioning of the European Union or former Article 202 of the Treaty establishing the European Community, or
- (i) an EU regulation,
- (ii) a decision within the meaning of Article 288 of the Treaty on the Functioning of the European Union, or
- (iii) an EU directive,
- (b) any measure adopted in accordance with former Article 34(2)(c) of the Treaty on European Union to implement decisions under former Article 34(2)(c),
but does not include any such provision or measure which is an EU directive[.]
According to the explanatory notes accompanying the Act, this is meant to cover delegated and implementing acts[13] that were not enacted via the European Union legislative procedure.
United States
The
[Legislative power] is vested exclusively in Congress [and judicial power] in the "one supreme Court" and "such inferior Courts as the Congress may from time to time ordain and establish" ... Agencies make rules ... and conduct adjudications ... and have done so since the beginning of the Republic. These activities take "legislative" and "judicial" forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the "executive Power".
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 "
See also
- Executive order (United States)– Federal administrative instruction issued by the president of the United States
- Rulemaking – Process by which executive branch agencies create regulations
- Evidence-based legislation – Legislative approach utilizing empirical evidence to draft laws
Notes
- ^ In 2015, Italy's Constitutional Court for the first time involved itself in the core of parliamentary procedure, issuing a judgment (n. 32/2014) protecting the balance of power from the combined effects of maxi-amendments and confidence being asked of it by the government.[clarification needed][4]
References
- ^ "What is subordinate legislation?". Queensland Government. Retrieved 2017-01-24.
- ^ "What is secondary legislation?".
- ^ a b c Australian Senate. "15. Delegated legislation, scrutiny and disallowance". Odger's Australian Senate Practice.
- ^ Buonomo, Giampiero (2015). "Negoziazione politica e Parlamento... Non solo risate". Avanti Online (in Italian). Archived from the original on 2012-08-01. Retrieved 2016-04-13.
- ISSN 1456-842X.
- Europa (Web portal). 28 August 2010.
- ^ "Types of EU law". European Commission - European Commission.
- ^ a b c European Union (26 October 2012). "Consolidated version of the Treaty on the Functioning of the European Union, PART SIX - INSTITUTIONAL AND FINANCIAL PROVISIONS, TITLE I - INSTITUTIONAL PROVISIONS, Chapter 2 - Legal acts of the Union, adoption procedures and other provisions, Section 1 - The legal acts of the Union, Article 288". EUR-Lex. Retrieved 9 February 2016.
- ^ "Understanding legislation". Government of the United Kingdom. Retrieved 2024-04-02.
- ^ "Delegated Legislation". Law Teacher. Archived from the original on Nov 24, 2012. Retrieved 18 September 2012.
- ^ Goldsmith, Paul (2017-11-12). "Why You Should Care How Tertiary Legislation Is Hidden Within The EU Withdrawal Bill". HuffPost UK. Retrieved 2022-07-15.
- ^ "European Union (Withdrawal) Act 2018, General and final provision, Section 20". Legislation.gov.uk. Archived from the original on Oct 27, 2022.
- ^ "European Union (Withdrawal) Act 2018, Explanatory Notes, EU laws and legislation". legislation.gov.uk. Archived from the original on Jul 30, 2023.
- ^ City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013) (emphasis in original).
This article incorporates text published under the British Open Government Licence: Parliament of the United Kingdom. "Secondary Legislation". Retrieved 31 October 2015.