Primary and secondary legislation

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When William III invaded and successfully overthrew King James II during the Glorious Revolution 1688, then Parliament amended number of constitutional reforms. During this period the notion of being Parliament the supreme was introduced through Bill of Rights 1689, which required the parliamentary approval for issues which previously was controlled by a monarch.

In the parliamentary systems of government, primary legislation and secondary legislation are two major sources of law. Primary legislation consists of Acts of Parliament or statute.[1] Secondary legislation (also called delegated legislation) is the granting of additional law-making powers to another branch of government by an Act or statute.[2] In the European Union, primary and secondary legislation are two of the three processes of law. The third is supplementary law which includes international law and covers any gaps between primary and secondary legislation.[3]

UK being a common law jurisdiction where judges are technically allowed to make new offences which means they can create laws on the whim (though seldomly seen now, a lot of offences even existing today were created by judges). Judiciary now tends to leave parliament to make laws and advises its judges to limit themselves from being too adventurous.

Primary legislation[change | change source]

English parliamentary systems consists of three branches of government—executive, legislative and judicial—the legislative branch being the most powerful.[4] Theoretically a democratic government having three branches of government are equal in power, which avoids tyranny when power is too saturated on one part of government. Having the majority forming an executive and the same party member dictating the legislative process, the separation of power does seem to be murky. But the "belief of doing right" and "fear of election", forces politician to not roam afar from their constituents.

The process from Bill to becoming an Act

When a parliament makes a law, called an act, it is binding on the other two branches of government. Acts are made by a majority vote of the legislature.[4] The exact process differs in different parliamentary systems. In a bicameral (two-chamber) system there is usually a lower house (such as the House of Commons in the UK) and an upper house (such as the House of Lords).[4] A new law starts out as a bill, usually in the lower house. It must pass both houses before it can become an act. Other systems use a unicameral or one-chamber legislation.[4] In either system, an act becomes the law. Judges and the courts have almost no authority to challenge the validity of a law.[5]The only exception being the case when limitation are self-imposed by the parliament itself for e.g. The Human Rights Act 1998 allows courts to declare laws being incompatible with EU Laws and can ask parliament to amend it.

In the United States, primary legislation is, at the federal level, an Act of Congress. A statute that delegates authority or responsibility to an agency is called an authorizing statute.[6] A law created by the executive branch of the United States Government or that of a state government as the result of primary legislation is called a regulatory law.[7]

Secondary legislation[change | change source]

Secondary (also called subordinate) legislation is all other forms of legislation that are not Acts of Parliament.[8] It is very similar to administrative law in the United States.[8] The legislative branch of governments often delegates power to allow ministers to make secondary legislation.[9] Secondary legislation also includes directives, regulations and decisions by commissions or councils.[9] Most Acts of Parliament in the UK contain provisions to allow secondary legislation.[9]

The two types of secondary legislation are delegated legislation and prerogative legislation.

  • Delegated legislation allows other branches of a government to make changes to a law as they become necessary.[10] There is no need to start a new bill in a parliament.[10]
  • Prerogative legislation are those powers given to certain officials to create laws, rules or regulations.[11]

References[change | change source]

  1. "Legislation". Faculty of Law & Bodleian Law Library. Retrieved 17 November 2015.
  2. "Primary And Secondary Legislation". LawTeacher. Retrieved 17 November 2015.
  3. "Sources of European Union law". EUR-Lex. Retrieved 17 November 2015.
  4. 4.0 4.1 4.2 4.3 "Parliamentary System". Annenberg Classroom. Retrieved 17 November 2015.
  5. "Legal Research Guide: United Kingdom". Library of Congress. Retrieved 17 November 2015.
  6. Diane Murley (11 November 2006). "Glossary of Legal Research Terms". Southern Illinois University School of Law Library. Retrieved 17 November 2015.
  7. "Administrative/Regulatory Law Definition". U.S. News & World Report LP. Retrieved 17 November 2015.
  8. 8.0 8.1 "Secondary Legislation". Tarlton Law Library. Retrieved 17 November 2015.
  9. 9.0 9.1 9.2 "Delegated legislation - introduction". Sixth Form Law. Retrieved 17 November 2015.
  10. 10.0 10.1 "Delegated legislation". Parliament UK. Retrieved 17 November 2015.
  11. "Prerogative". The Free Dictionary/Farlex. Retrieved 17 November 2015.