Authors: Campbell Duncan
Abstract: This article considers whether there is a coherent theoretical or functional explanation for the division of content between primary and secondary legislation within a given legislative scheme. It is suggested that the allocation of provisions is largely driven by cost-benefit considerations, including financial cost, delay, risk and political reward. Some considerations tend to pull legislative provisions towards a location, either upwards to primary legislation or downwards to secondary legislation. Other considerations operate to push provisions upwards or downwards, by making one location or other less attractive. Accordingly, the placement of legislative material in primary or secondary legislation is more pragmatic and less principled or systematic than is commonly assumed.
Keywords: legislation, primary legislation, secondary legislation, process legislation, sectoral legislation, interpretation legislation, legislative cluster, regulatory impact analysis, division of powers.