Primary and Secondary Legislation

Primary legislation is also known as enabling legislation. You may also hear such legislation being referred to as ‘parent’ Acts or ‘parent’ legislation. This is not a complex idea. It really means that Parliament has created an Act of Parliament that devolves (pass on or delegate to another) some power to a subordinate person or body, who is allowed, usually in limited circumstances, to make rules or subsidiary law (delegated or secondary legislation). The important point to note is that the delegated or secondary legislation is given powers only by the parent legislation. If the delegated or secondary legislation is within the scope of the parent or enabling Act, it are said to be intra vires (a Latin term meaning ‘within the powers’). If the delegated or secondary legislation lie outside the scope of the parent or enabling Act, it is said to be ultra vires (or ‘outside the powers’). The process of investigating whether the delegated or secondary legislation lies within or outside the scope of the primary legislation is known as judicial review.

There are two types of secondary legislation (some universities may mention 3).  Dr Stephanie Pywell, writing in the New Law Journal (2013, p. 231) explains why there are 2 and not 3 types of secondary legislation:

The nature and classification of delegated legislation features in most introductory level law courses. For many years, most students have been taught that they are three types of delegated legislation: statutory instruments (SI), byelaws and Orders in Council. Research using Parliamentary papers indicates, however, that this method of classification is misleading, and that it is appropriate to identify two distinct types of delegated legislation: statutory instruments, of which there can be considered to be five forms, and byelaws.

Forms of statutory instrument:

SIs were created by the Statutory Instruments Act 1946. Section 1(1) is entitled "Definition of' Statutory Instrument'" and provides that there are two ways in which delegated legislation ("orders, rules, regulations or other subordinate legislation") may be made. If the law-making power is conferred on the Crown it is exercisable by Order in Council; if it is conferred on a minister, it is exercisable by SI. In either case, the resulting document "shall be known as a 'statutory instrument'". By definition therefore, Orders in Council are a form of SI, rather than a separate type of delegated legislation.

Additionally, the standard reference document used in the drafting of SI's (Statutory Instrument Practice: a manual for those concerned with the preparation of statutory instruments and the Parliamentary procedures relating to them [Fourth edition]) identifies at paragraph 1.5.3 another UK-wide SI called Order of Council.

So what are these 5 types of Statutory Instruments (SIs)? They are Orders in Council, Orders of Council, orders, rules, and regulations. I’ll discuss each below:

Orders in Council:

Orders in Council require the personal consent of the Queen but are issued by and with the advice of the Queen’s Privy Council. They are used when ordinary ministerial transfer of powers would not suffice. For example, an Order in Council was made to appoint Theresa May as the First Lord of the Treasury when she became Prime Minister on 19th May 2016.

Orders of Council:

Orders of Council are made by the Privy Council and have the force of law, but do not require the personal consent of the Queen. “Again these can be statutory or Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made. Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. Examples of prerogative Orders of Council include approval of amendments to the By-laws of Chartered bodies.”

Orders:

"Orders are usually made by government ministers, and serve a specific, closely defined purpose. They should be used for executive powers and judicial and quasi-judicial decisions. Four specific types of order – Commencement Orders, Legislative Reform Orders, Remedial Orders and Public Body Orders – are worthy of particular mention because of the important purposes that they serve." [Pywell, 2013]

Commencement Orders

Commencement Orders (COs) bring into effect one or more sections of an Act of Parliament. They are widely used because it is often the case that not all of an Act comes into force on the date on which it receives the Royal Assent. It is common for an Act to include wording such as: "The provisions of this Act come into force on such day as the Secretary of State may by order appoint". [Pywell, 2013]

Legislative Reform Orders

Legislative Reform Orders are made under the Legislative and Regulatory Reform Act 2006 (LRRA 2006) and enable ministers to effect changes to primary legislation. You may recall that these are known as “Henry VIII clauses” and are often controversial. "A minister proposing an LRO must demonstrate that the proposed legislation is needed, is proportionate, represents a fair balance of interests, does not remove any necessary protection, does not unreasonably interfere with rights and freedoms, and has no constitutional significance." [Pywell, 2013]

Remedial Orders

Remedial Orders are used to correct shortcomings in existing legislation such as when a court declares legislative provisions to be incompatible with the European Convention on Human Rights, or when the European Court of Human Rights has determined that an individual's Convention rights have been infringed. Remedial Orders can have retrospective effect and must normally be laid before Parliament before they become law. An example of a Remedial Order is the Terrorism Act 2000 (Remedial) Order 2011, which repealed the extensive stop and search powers and replace them with powers that could be only exercised in much more limited circumstances. [Pywell, 2013]

Public Bodies Orders

The Public Bodies Act 2011 permits ministers to abolish, merge or modify the constitutional and funding arrangements of public bodies.

Rules:

Rules set out procedural laws, that is, they set out how things should be done rather than what should be done. The best-known example of rules are probably the Civil Procedure Rules 1998 (SI 1998/3132) which govern the running of the civil court system.

Regulations:

"Regulations are used to make substantive law – often amendments to existing primary or secondary legislation – and are frequently technical in nature. Regulations enable the law to be maintained and kept up-to-date and students should think of them when they learn that the advantages of delegated legislation include the use of expert advice to create detailed provisions and the result in saving of Parliamentary time. " Think of building regulations. [Pywell, 2013]

All of the above are forms of statutory instruments. The other remaining type of secondary legislation is byelaws.

Byelaws

Byelaws are made under the limited law-making powers conferred on local authorities and statutory bodies. They must be authorised by a Secretary of State (byelaws can create criminal offences and therefore must be duly authorised) and can deal only with matters within the jurisdiction of the maker. They usually reflect concerns within a local area.