Discuss, giving examples where necessary, the difference between primary and secondary law.
The United Kingdom’s principal law-making body is the British Parliament whose main constitutional function is the maintenance of one of the most significant features of the British democratic society. This involves the introduction of legislation and the protection of the rule of law. Admittedly, not all legislative measures undergo the same Parliamentary scrutiny. In particular, there are four types of these measures: primary legislation, secondary legislation, tertiary legislation and ‘quasi legislation’, or, as it is otherwise called, ‘soft law’. The purpose of this essay is to critically examine the main features of primary and secondary legislation, outlining their main differences.
Understanding primary and secondary legislation
Primary Legislation
Primary legislation or Acts of Parliament comprises the main statutory measure in the UK. Some examples include: the Police and Criminal Evidence Act 1984, the Human Rights Act 1998, the Criminal Justice Act 2003, the Civil Partnership Act 2004, the Youth Justice and Criminal Evidence Act 1999, the Crime and Disorder Act 1998, Education Act 1996 and the War Crimes Act 1991. Acts of Parliament demand a detailed and thorough Parliamentary scrutiny before they are fully implemented. In particular, before any primary legislation becomes an Act, it has to be introduced as a Bill. There are four distinct types of Bills: (1) Political Bills which usually result of the political programme of the party in government (2) Law Reform Bills which most often arise as the result of recommendation made by law reform agencies such as the Law Commission (3) Consolidation Bills which bring together into a single place a wide range of legislative provisions appearing through various other Acts of Parliament and thus difficult to trace and finally and (4) Private Member’s Bills which are special type of Bills introduced by backbench Members of Parliament (MPs).
However, before even getting to Parliament, many Bills have to go through a number of preparatory stages such as being part of the political manifesto of the given political party which is in government. This procedure usually follows an open consultation and a White Paper is announced once this process is finalised.
The formal procedure of actually passing an Act in Parliament starts with the presentation of the Bill. This is usually done in the House of Commons by the responsible Minister. The Parliamentary process starts with a first reading which is a formal stage when the Parliament orders the Bill to be printed. Subsequently, with the second reading, the Bill is introduced for debate. The Bill then moves to the committee stage where a detailed scrutiny of its text is carried out by a small group of MPs. Then, in the report stage, the responsible committee reports to the main House the principal changes that have happened to the Bill. This takes the Bill to its final stage, the third reading, which is a formal stage where it is introduced without the possibility of further amendments. Once all these stages are completed, the Bill then goes to the House of Lords where it undergoes more or less the same procedure all over again.
In general terms, there are two types of Acts of Parliament. Most of them are known as Public General Acts and they are applicable throughout the UK. Local and Personal Acts is the second type and are of limited scope as they apply only to a local area or to a specific institution.
Secondary Legislation
Secondary legislation is composed of regulations and orders and their main purpose is to supplement and support Acts of Parliament. Examples include the Allocation of Housing (England) Regulations 2000, the Gaming Contracts Order, the Financial Promotion Amendment Order, the Disclosure of Confidential Information Regulations and the Rights of Action Regulations. Secondary legislation is made under the authority of primary legislation and it is generally known as statutory instruments. Regulations and orders are not subject to detailed Parliamentary scrutiny although this depends on their sensitivity.
Regulations are subject to formal screening by the Statutory Instruments Committee of the House of Commons. Both regulations and orders may receive some Parliamentary input although this is not always the case. Regulations are subject either to a negative resolution procedure or to a positive resolution procedure. The former is the most common procedure, and means that once laid before Parliament, secondary legislation will become effective on the date stated unless Parliament passes a resolution stating that it should be annulled. The positive resolution procedure means that a regulation laid before Parliament cannot become effective unless Parliament adopts a resolution which states positively that the regulation should become effective.
A critical approach of the main features of primary and secondary legislation
There can be no doubt that the detailed scrutiny that primary legislation has to undergo is very time-consuming and can delay action significantly particularly if this is urgently needed for emergency reasons. Moreover, the lengthy process of scrutinising primary legislation is repeated in both Houses and this duplication delays the outcome even further. The introduction of new legislation demands a considerable amount of resources and can sometimes be very costly especially when a Bill fails to be passed and the elected government brings it back for voting until it gets a winning majority.
However, the most serious critique of the current parliamentary system of reviewing and introducing new primary legislation concerns the voting procedures, as this can usually undermine the very essence of the existing democratic system which is based on the notion of representation. This critique revolves around a number of features. First, given the majority that each elected government has in Parliament, it is sometimes questionable whether such lengthy scrutiny procedures are even worthwhile. In addition, the domination of the Parliamentary annual timetable by the given government sometimes raises the issue of whether there is any point in spending time and resources debating proposals in relation to which the outcome is largely predictable.
Partington attributes this drawback of the legislative process to its obsolete nature, as it was developed in an age where the party machine and the discipline over the Parliamentary party provided by the Whips was not as it is today.
Having said that, despite the control that elected governments have, Bills usually emerge from the overall process significantly changed from their original form, while sometimes they might not pass at all. This usually means that the political party which is in power will keep bringing it back to Parliament until it gets a majority vote. However, the detailed scrutiny that almost all Bills have to go through usually means that they will be reviewed until each responsible Parliamentary Committee is satisfied and thinks it can proceed to report stage.
On the other hand, the vast majority of secondary legislation may reach the statute book with no consideration by MPs at all.
This may even involve regulations and orders detailing sensitive Acts such as those which have to do with public order and safety.
It has to be acknowledged, however, that since the introduction of the Human Rights Act 1998 and the setting up of the Parliamentary Joint Committee of Human Rights, all Acts of Parliament are scrutinised in terms of their compatibility with the human rights principles underlying the Human Rights Act. This new procedure means that despite the given government’s majority, important issues such as human rights and liberties cannot be ignored or compromised. To some extent, this also applies to secondary legislation. Overall, the system may need reforming so that a less time consuming and more worthwhile and democratic/ representative scrutiny procedures are introduced for primary legislation and a more careful review is planned for statutory instruments.
Bibliography
Cosgrove, R (1980) The Rule of Law. Albert Venn Dicey, Victorian Jurist, Chapel Hill, NC: University of North Caroline Press
Gritfith, J (1974) Parliamentary Scrutiny of Government Bills, London: Allen and Unwin
Partington Martin (2003) Introduction to the English Legal System, Oxford: Oxford University Press
Zadner N (1999) The Law Making Process, 5th edition, London: Butterworths
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