Primary and Secondary Legislation

Question 1

What is legislation?

Answer 1

Legislation s the second major source of law in England and Wales. It is law made with the approval of Parliament.

There are two categories of legislation: primary, and secondary.

Question 2

What is Primary legislation?

Answer 2

‘Acts of Parliament’, which are put before Parliament as Bills (draft legislation), debated, and passed (almost always) by both Houses of Parliament.

Acts of Parliament receive ‘royal assent’ (formal approval by the Monarch) before becoming law.

Question 3

What is Secondary legislation?

Answer 3

Also known as ‘subordinate’ legislation. Secondary legislation is law created by ministers (or other bodies) under powers given to them by a ‘parent’ Act of Parliament.

It is used to fill in the details of primary legislation. These details provide practical measures that enable the law to be enforced and operate in daily life.

Question 4

What are the Acts of Parliament?

Answer 4

Acts of Parliament can be divided into Private Acts and Public Acts.

• Public (or general) Acts: Acts which relate to matters of general public concern. They are debated in both Houses of Parliament, and any outside body wishing its views to be considered can only do so by persuading an MP or peer to put forward such views in debate. This practice is known as lobbying. Public Acts make up by far the largest part of Parliamentary legislative output.

A Private (or personal) Act of Parliament is one which relates to particular places or to particular people. These Acts usually stem from a proposal by a large organisation such as a local authority or a large private company which wishes to acquire certain powers. For example, a local authority might be seeking a power to build a bridge. The promoter of a private Act is responsible for convincing Parliament of the desirability of the proposal.

Question 5

What is Lobbying?

Answer 5

When any outside body wishing its views to be considered persuades an MP or peer to put forward such views in debate.

Question 6

Primary legislation starts life as a…

Answer 6

…‘Bill’, which is draft piece of legislation.

Question 7

Public Bills, intended to become Public Acts, can further be divided into…

Answer 7

Government Bills and Private Members’ Bills.

Question 8

A Government Bill represents…

Answer 8

…the policy of the government of the day

Question 9

A Government Bill is drafted by the official parliamentary draftsman, based on…

Answer 9

…what the government department promoting the Bill wants to bring into law. It will be based on ministerial proposals issued in the form of a Green Paper (for discussion) and White Paper (official government policy).

Question 10

What is a Private Members’ Bill?

Answer 10

A bill promoted by a particular Member of Parliament, normally through the Ballot system. These Bills do not start life as official government policy but can sometimes be supported by the government. They are given far less parliamentary time and so are often not successfully passed.

Question 11

Where do Bills start?

Answer 11

In either the Commons or the Lords (apart from Bills dealing with public finances, which must start in the Commons and cannot be defeated in the Lords).

Question 12

What is the primary legislative process in each House?

Answer 12

• First Reading
• Second Reading
• Committee stage
• Report Stage
• Third Reading
• Royal Assent and commencement

Question 13

What are the steps in the Primary Legislative Process?

Answer 13

• ‘First reading’ - a formality; the Bill’s title is read out, and a date set for a second reading.
• ‘Second reading’ - the main principles of the Bill are debated by MPs.
• ‘Committee stage’ - the detail of the Bill is scrutinised by a legislative committee. It may be amended.
• ‘Report stage’ - proposed amendments are debated, and there is a vote on the committee’s report.
• Third reading - final debate and vote on the Bill. If passed, it goes on to the other House.

Question 14

What is Royal Assent and commencement?

Answer 14

The final stage in a Bill becoming an Act is the Royal Assent. There is no legal rule requiring the monarch to assent to any Act passed by Parliament. There is, however, a convention to that effect. (Conventions will be explored later in topic 3.)

In reality, the grant of Royal Assent is a formality. This is highlighted by the Royal Assent Act 1967, which provides for how the assent can be signified.

An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a contrary provision in the statute.

Legislation does not always come into force on the same day it was enacted. It is actually more usual for an Act to include a commencement section detailing when the Act is to come into force.

Typically, the power is delegated to the Secretary of State with responsibility for the area with which the statute is concerned to issue a statutory instrument bringing the Act into force.

Question 15

How are Acts of Parliament structure?

Answer 15

All Acts of Parliament begin with the short title, date and long title of the Act (the preamble’). For example:

Short title = Highways Act 1980

Long title = An Act to consolidate the Highways Acts…

Date enacted = 13 November 1980

Question 16

What are ‘Parts’?

Answer 16

Single Acts of Parliament often deal with quite varied subject matter. This subject matter is grouped into ‘Parts’, containing a number of different ‘sections’.

For ease of navigation, sections are grouped together under titles. Sections are further broken down into sub-sections.

Question 17

What is Secondary legislation?

Answer 17

Secondary (sometimes referred to as ‘delegated’ or ‘subordinate’) legislation is law made by some person or body other than Parliament – usually a government department.

Importantly, however, it is made under powers granted to it by Parliament in primary legislation (known as the ‘parent’ Act).

It includes regulations made by statutory instruments, Orders in Council, and by-laws.

A piece of delegated legislation made within the powers granted by Parliament in the parent Act has equal statutory force to that of the primary legislation.

However, while the courts have no power to invalidate an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is not.

The amount of secondary legislation in the UK is very significant. The number of laws enacted through delegated legislation greatly exceeds the number of primary Acts of Parliament.

Question 18

How does Scrutiny of secondary legislation work?

Answer 18

Secondary legislation is not subject to parliamentary scrutiny in the same way as primary legislation.

Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.

Parliament’s role in considering an SI varies depending on what is stated in its parent Act. The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act.

Further details of the extent of scrutiny and the differences between the negative and affirmative procedures will be provided in topic 5 on the Institution of Parliament.

Question 19

Primary legislation is passed by..

Answer 19

…Parliament

Question 20

Secondary legislation is made under powers granted by…

Answer 20

…primary legislation – it may be put before Parliament depending on the requirements of the primary legislation.

Question 21

Public bills are draft legislation proposed by the government. whereas Private bills…

Answer 21

…can be proposed by Members of Parliament.

Question 22

Once passed through both Houses, a bill…

Answer 22

must acquire ‘royal assent’ to become law.

Question 23

econdary legislation is not scrutinised…

Answer 23

to the same degree as primary legislation.