Keith Mack
The terms 'primary law' and 'secondary law' refer to two broad categories of sources used for legal research. In the context of legislation, primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules. These are created by the legislative branch of governments in representative democracies. In contrast, secondary legislation, also known as delegated or subordinate legislation, is created by the executive branch within the boundaries laid down by the primary legislation. Secondary legislation often takes the form of legally enforceable regulations and procedures for implementing the primary law. While primary law consists of sources that state the actual law, such as constitutions, court cases, statutes, and administrative rules, secondary law includes sources that explain, critique, discuss, or help locate primary law, such as legal dictionaries, encyclopaedias, law reviews, and legal treatises.
Differences between Primary and Secondary Law:
| Characteristics | Values |
|---|---|
| Definition | Primary law is the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations. |
| Other Names | Primary law is also called statute law, primary legislation, or statute. |
| Examples | Examples of primary law include the US Constitution, federal or state constitutions, statutes or laws enacted by legislatures, and municipal codes enacted by local councils. |
| Creation | Primary law is created by the legislative branch of governments in representative democracies. |
| Content | Primary law consists of broad principles and rules. |
| Characteristics | Secondary Law |
| --- | --- |
| Definition | Secondary law explains, discusses, or critiques primary law and helps locate primary sources of law. |
| Other Names | Secondary law is also called delegated legislation, subordinate legislation, or legislative instruments. |
| Examples | Examples of secondary law include legal dictionaries, legal encyclopedias, law reviews and journals, and manuals and guides on how to practice law. |
| Creation | Secondary law is created by the executive branch of governments in representative democracies. |
| Content | Secondary law consists of specific laws made under the aegis of the principal act in primary law. |
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What You'll Learn
Primary sources of law
In the United Kingdom, primary legislation can take various forms, including Acts of Parliament, Acts of the Scottish Parliament, Measures of the National Assembly, and Orders in Council made under the Royal Prerogative. Similarly, in Canada, primary legislation consists of acts of the Parliament of Canada and the legislatures of the provinces, known as statute law.
Case law, or judicial precedent, is another primary source of law. This involves the application of law by courts, where decisions made by higher courts are binding on lower courts. For instance, landmark cases such as Brown v. Board of Education, in which the U.S. Supreme Court ruled against racial segregation in public schools, constitute primary law.
Primary legislation generally consists of statutes or acts that establish broad principles and rules. These acts may also delegate authority to the executive branch to create more specific laws, known as secondary legislation or subordinate legislation.
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Secondary sources of law
Secondary sources can also include legislative and non-legislative acts. Non-legislative acts are decisions that are not adopted by the ordinary or special legislative procedure but by specific rules. For a non-legislative act to be adopted, a legislative act must first grant the power to do so.
In the context of legislation, secondary legislation (also called delegated or subordinate legislation) is made by the executive branch within the boundaries laid down by the legislature. It creates legally enforceable regulations and the procedures for implementing them. Secondary legislation can be scrutinised by parliament and can be disallowed by a resolution of either house of parliament. In Canadian law, 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. In Spain, secondary legislation is called a legislative decree (Decreto legislativo); it can only delegate on the government for a given topic, within a time limit and only once.
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Primary legislation in the UK
In the UK, primary legislation and secondary legislation are two forms of law created by the legislative and executive branches of the government, respectively. Primary legislation consists of statutes, also known as 'acts', that set out broad principles and rules. It may also delegate authority to the executive branch to formulate more specific laws.
Acts of Parliament, or primary legislation, are the supreme law in the United Kingdom. Most Acts of Parliament fall into one of two categories: Public General Acts, which are universally applicable, and Private Acts, which apply only to specified localities, entities, or individuals. There is also a third category of Hybrid Acts, which combines elements of both public and private acts. The UK Parliament, the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly all enact primary legislation within their respective jurisdictions.
- An Act of Parliament
- An Act of the Scottish Parliament, Measure, or Act of the Senedd, or an Act of the Northern Ireland Assembly
- An Order in Council made under the Royal Prerogative
- Church of England Measures, which facilitate changes to legislation concerning the Church's administration and organisation
In the UK, secondary legislation, also known as delegated or subordinate legislation, is formulated by an executive authority under powers delegated by an enactment of primary legislation. It grants the executive agency the authority to implement and administer the requirements of the primary legislation. Examples of secondary legislation in the UK include statutory instruments, statutory rules and orders, and church instruments.
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Secondary legislation in the UK
In the United Kingdom, primary legislation can take several different forms, including an Act of Parliament, an Act of the Scottish Parliament, a Measure or Act of the Senedd, or an Act of the Northern Ireland Assembly.
Secondary legislation, on the other hand, is law created by ministers or other bodies under powers delegated to them by an Act of Parliament. It is used to fill in the details of Acts (primary legislation) and provide practical measures for their enforcement and implementation in daily life. In the UK, secondary legislation is known as Statutory Instruments, Statutory Rules and Orders, and Church Instruments.
Statutory Instruments (SIs) are the most frequently used type of secondary legislation in the UK, with approximately 3,500 made each year. SIs can be used to set the date for when provisions of an Act will come into force or to amend existing laws. For example, the government may use an SI to ban new substances by adding them to a list under the Misuse of Drugs Act 1971.
While secondary legislation is created by the executive branch, it is still scrutinized by Parliament and can be disallowed by a resolution of either house of Parliament. Specialist committees, such as the Joint Committee on Statutory Instruments (JCSI), assist Parliament in checking secondary legislation. The JCSI publishes recommendations on SIs, and Parliament must approve draft affirmative SIs before they can become law.
In addition to SIs, other types of secondary legislation in the UK include 'Orders', 'Regulations', 'Rules', 'Schemes', 'Directions', and 'Declarations'. Church Instruments, made by the Archbishops of Canterbury and York, are used to bring Church Measures into force.
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Primary and secondary legislation in the EU
In the European Union (EU), each member state has its own laws, but EU law takes precedence in certain circumstances. The EU's primary legislation is composed of its treaties, including the founding Treaty of Rome, and all subsequent treaties, such as the Maastricht Treaty, Nice Treaty, and Lisbon Treaty. These treaties are negotiated and agreed upon by all the EU member states and ratified by their parliaments, sometimes following a referendum.
The body of law that arises from the principles and objectives of the treaties is known as secondary legislation. This includes legislative and non-legislative acts. Legislative acts are decisions adopted following one of the legislative procedures set out in the EU treaties, such as regulations, directives, and decisions. Directives, for example, set binding objectives for member states but allow them to choose how to achieve these objectives. Directives must be transposed into national law within a given deadline, generally within two years. Non-legislative acts are decisions that are not adopted by the ordinary or special legislative procedure but by specific rules.
Secondary legislation can also be enacted under the treaties and can be either legislative or non-legislative. Binding regulations, directives, and decisions are examples of legislative acts, while non-binding recommendations and opinions are non-legislative acts.
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.
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Frequently asked questions
Primary law is the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations.
Secondary law consists of sources that explain, criticize, discuss, or help locate primary law.
Examples of primary law include the United States Constitution, federal and state constitutions, statutes (laws enacted by legislatures), and municipal codes (enacted by local councils).
Examples of secondary law include legal dictionaries, legal encyclopedias, law reviews and journals, legal treatises, and manuals and guides on how to practice law.
