Primary and Secondary legislation

Question 1

What is legislation? What are the two categories of legislation?

Answer 1

law made with the approval of Parliament

- primary and secondary

Question 2

What is primary legislation? What needs to happen to these primary legislation before it becomes law.

Answer 2

‘Acts of Parliament’put before Parliament as Bills (draft legislation), debated and passed usually 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 an Act of Parliament.
- It is used to fill in the details of Acts (primary legislation). These details provide practical measures that enable the law to be enforced and operate in daily life.

Question 4

What is the difference between a Public act and Private act of parliament?

Answer 4

• Public (or general) Acts, are 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 utility and desirability of the proposal.

Question 5

What is a Bill?

Answer 5

Primary legislation starts life as a ‘Bill’, which is draft piece of legislation.

Question 6

What is a government bill?

Answer 6

A Government Bill represents Government policy and is drafted by the official parliamentary draftsman, based on 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 7

What is a private members bill?

Answer 7

A Private Members’ Bill is a bill promoted by a particular Member of Parliament, often after lobbying by members of the public. It does not start life as official government policy.

Question 8

What happens at each reading/ stage of a Bill in parliament?

Answer 8

1. ‘First reading’
   A formality; the Bill’s title is read out, and a date set for a second reading.
   2.’Second reading’
   The Bills is debated by MPs and may be amended.
2. ‘Committee stage’
   The detail of the Bill is scrutinised by a legislative committee. It may be amended.
3. ‘Report stage’
   The House will debate proposed amendments, and vote on the committee’s report.
   5.Third reading
   Final debate and vote on the Bill. If passed, it goes on to the other House.

Question 9

What is the royal assent?

Answer 9

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 - the grant of Royal Assent is a formality

Question 10

When does an act of parliament take effect?

Answer 10

• 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 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 in the area with which the statute is concerned to issue a statutory instrument bringing the Act into force.

Question 11

How can you find the commencement date of an act you are looking at?

Answer 11

You can check the commencement date by looking at the notes underneath the particular section you are considering. Different sections might have come into force on different dates.

Question 12

What is the ‘extent’ of legislation? And where would you find it on an Act?

Answer 12

• The ‘extent’ of legislation means the geographical area to which it applies.
• You will usually find this in the explanatory notes underneath the text of the legislation.

Question 13

Who makes secondary legislation?

Answer 13

It is made by some person or body other than Parliament – usually a government department –but under powers granted to it by Parliament in primary legislation (known as the ‘parent act’).

Question 14

What does secondary legislation include?

Answer 14

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

Question 15

Are the powers of a secondary legislation the same as primary?

Answer 15

No - eventhough A piece of delegated legislation made within with powers granted by the originating Parliament has equal statutory force to that of the primary legislation, the courts have no power to overrule an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the Act and ‘quash’ it if it is not.

Question 16

Is delegated legislation subject to parliamentary scrutiny in the same was as primary legislation?

Answer 16

No- 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.

Question 17

What does the Joint Committee on Statutory Instruments do? What happens when they identify an issue?

Answer 17

They check SI’s to make sure the law they contain is clear and follows the powers given by the parent Act.
- If the Committee identifies an issue, they publish recommendations on the SI. In the House of Lords, affirmative SIs cannot be debated before the JCSI make their recommendations.

Question 18

If an SI deals with financial matters, which committee considers this?

Answer 18

it is only considered by the members of the committee from the Commons (Select Committee on Statutory Instruments).

Question 19

How does parliament consider SIs?

Answer 19

It depends on whether they follow the negative or affirmative procedure, which is outlined in the parent Act.

Question 20

What is the negative procedure?

Answer 20

• Most SI’s laid under negative procedure
• Negative SIs do not need active approval by Parliament. Usually negative SIs are made (signed by the minister) before being laid in Parliament.
• They will automatically come into effect as law unless either House stops (annuls) them within a fixed period after they have been laid - usually 40 days, excluding days when both Houses are in recess or adjourned for more than four days.
• It is more likely for negative SIs to be debated in the House of Lords. Though, they can be debated in the House of Commons if there is significant opposition to them.

Question 21

What is the affirmative procedure?

Answer 21

• Draft affirmative SIs laid in Parliament need to be approved by Parliament before they can be made and brought into effect as law.
• Most SIs subject to this procedure must be debated and approved by both Houses. Some SIs dealing with tax or financial matters only need approval from the House of Commons.
• Draft affirmative SIs can be stopped if either House votes against or rejects the Government’s motion calling for the SI to be approved.
• Certain Acts of Parliament allow the government to use an affirmative procedure which brings an SI into effect immediately and gives Parliament a set time to approve it (normally 28 or 40 days). The SI stops being law if Parliament does not approve it within that time. This emergency procedure is only allowed by a few Acts when there is a public crisis, such as a pandemic or serious terrorist threat.