In this blog post, we will be considering secondary legislation in the UK – what it is and how it is made. We will then look at some of the advantages and disadvantages of secondary legislation in a later blog post. If you would like to know more about how legislation is made in the UK, you can read my two posts about that here and here.
Secondary legislation is sometimes also referred to as delegated or subordinate legislation, so be on the lookout for references to either of these in your research as well. Primary legislation is the type that is described in my previous two posts above and is made by Parliament after a Bill is introduced and there have been multiple readings in both Houses.
What is Secondary Legislation?
Secondary legislation is law created by ministers or other bodies, using powers that have been delegated to them by Parliament. There are a few different types, but the most common one is statutory instruments. These are exactly what they sound like – they are instruments to assist laws or statutes. The other types are bylaws and Orders in Council. Bylaws are at a local level and are made by county councils, for example, whereas Orders in Council are made by the Privy Council.
Secondary legislation is used to fill in details that are not included in Acts, enabling the law to be enforced in a practical and consistent way. Parliament doesn’t realistically have the time to draft all of these details, so it makes sense to delegate these duties to a few ministers who can give it their full attention. This is also cheaper than Parliament having to draft everything, as well as giving it more time to consider broader issues, with secondary legislation mainly being more specific or detailed.
The task of drafting will be given to ministers who have experience in the area of law concerned, so they can use their expertise to ensure the legislation is clear, comprehensive and accurate. Parliament itself simply doesn’t have the technical knowledge to be able to draft law in all areas, whereas ministers can each have their own speciality.
How is Secondary Legislation Created?
For secondary legislation to be created, Parliament will first identify an area that is suitable to be delegated. This may be an area that needs more detail than Parliament is able to devote time to, so it makes sense for it to be delegated. Alternatively, it may be that particular expertise is required, so delegating it to ministers or another body means that they can provide this knowledge. We will consider the advantages of using secondary legislation in more detail in my next law blog post.
Parent Act
Once Parliament has decided to use secondary legislation, it will need to create an Act stating this. This Act is often called the parent or enabling Act, as it is this that grants power to the ministers or body assigned to draft the secondary legislation. The parent Act will set out what the aim of the secondary legislation is, what it should cover and what limits there are on the powers delegated to the drafters.
The parent Act also sets out the process for review and approval. Before being made law, Statutory Instruments (SIs) will be reviewed by the Joint Committee on Statutory Instruments (JCSI). The JCSI will examine the SI to ensure that its content is clear and does not go beyond the powers delegated by the parent Act. If they believe that any part of the SI is not satisfactory, they can draw Parliament’s attention to it.
Affirmative Procedure
After this, there are two main procedures the secondary legislation can go through – affirmative and negative. If the piece of secondary legislation is subject to the affirmative procedure, it will need to be laid before Parliament as a draft and approved before it can become law. This requires both Houses to approve the draft, with the exception of some SIs that deal with tax or other financial matters, which only need approval from the House of Commons.
In the event of either House not approving the secondary legislation, the draft will be stopped and not become law. The House of Lords can propose an amendment to the Government’s motion calling for the secondary legislation to become law, stating that they do not approve.
Negative Procedure
The negative procedure means that a piece of secondary legislation does not need active approval. It is laid before the Houses for a certain period of time (usually 40 days), during which time either House has the power to stop them. If they do not, it comes into force at the end of this period.
Emergency Procedure
If a new law is needed swiftly, for example, to deal with a terrorist threat, secondary legislation may be subject to a made affirmative procedure. Here, it comes into force immediately, but Parliament has a set period of time (usually 28 or 40 days) to stop it.
Wrapping Up
I hope that this helps you to understand what secondary legislation is and how it is created. In my next blog post, we will be looking at what some of the advantages of secondary legislation are, so come back in two weeks for that!
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