Primary versus Secondary Legislation

 A recent assignment I had to mark invited students to discuss the advantages and disadvantages of Primary versus Delegated legislation.

Primary Legislation in the UK means 'Acts of Parliament' - they can also be called 'statutes' the terms are completely interchangeable. A proposed statute is known as a "Bill". For a bill to become law it has to complete all the stages of the parliamentary legislative process. There is an excellent interactive guide to this at http://www.parliament.uk/about/how/laws/passage-bill/.

If you visit an established English Law Library, you'll see that the earlier volumes of statutes contain many years worth of statutes - but in recent decades three or four fat volumes are needed for a single year's Acts of Parliament. With the development of complex government - there are more and more laws passed.

Parliament can delegate it's law making power - and does so often in primary legislation. The power to make legally enforceable rules is delegated to a Minister; or to local authorities - or to whoever Parliament decides. The 'law' that is produced by the person or body delegated to is known either as 'secondary legislation' or 'delegated legislation'.

One issue which writers of assignment titles and exams like to see discussed is the question of the adequacy of scrutiny of legislation. Are MPs and Peers able to thoroughly consider and amend bills?  This raises questions about the resources available to legislators - including specialist advice and time. 

Is there sufficient scrutiny of primary legislation? Just because it can take a long time doesn’t mean that effective scrutiny is going on.

Some people assume that, without the various stages that primary legislation has to go through, Secondary legislation lacks proper scrutiny. It's worth thinking that through. What scrutiny is required - and how does the present system work? There's another excellent resource available at

http://www.parliament.uk/about/how/laws/delegated/.

The issue is whether the scrutiny for either is appropriate. It can be argued that actually the scrutiny system for delegated legislation (where a committee sifts through the SIs – highlight points of possible concern) is actually better than the time-limited; ‘theatre’ that Public Bill Committees and the Chamber go through.

So what do you think? Observations and comments are always welcome at comments@washminster.com