Drafting Regulations and Subsidiary Legislation
So far, we have focused on primary legislation—the bills that become Acts of Parliament. But a vast majority of the rules that govern modern society are found in subsidiary legislation (also known as delegated or secondary legislation). This chapter will explain the difference between the two and why a policy professional must understand how to draft and use regulations effectively.
Primary vs. Subsidiary Legislation
Think of a primary law, or an Act, as the skeleton of the policy. It establishes the broad principles, the legal framework, and the overarching goals. For example, a primary Act might set a national target for reducing carbon emissions.
Subsidiary legislation is the flesh, muscle, and nerves that make that skeleton work. It consists of the detailed rules, procedures, and technical specifications that are necessary to put the primary law into practice. For our environmental example, the Act would grant a government minister the power to create regulations that specify the maximum emissions allowed for a specific industry.
The Rationale for Delegating Power
Why don’t parliaments just pass one massive, detailed law? There are several key reasons:
Flexibility: Regulations can be changed much more quickly than a primary law. This is crucial for responding to fast-moving issues like technological change or new scientific findings.
Technical Detail: It allows the details of a policy to be crafted by technical experts in a government department, rather than being debated by politicians in a parliament.
Speed and Efficiency: It frees up a legislature to focus on major policy issues, leaving the administrative details to the appropriate government bodies.
Local Adaptation: In some cases, it allows a central government to create a framework that can then be adapted to local conditions through different sets of regulations.
Drafting Regulations: The Process
The process for drafting regulations is different from drafting a bill, though the principles of clarity and precision remain the same.
Authorization: The most critical principle is ultra vires (“beyond the powers”). A regulation is only legally valid if the primary Act explicitly gives the minister or body the power to create it. Your policy must ensure the primary legislation contains this authority.
Consultation: Even though regulations don’t go through a full parliamentary debate, they are often subject to a public consultation period. This allows affected industries, interest groups, and the public to provide feedback on the draft rules.
Scrutiny: Regulations are typically subject to some form of parliamentary oversight, often through a committee that can review them. However, they are generally accepted or rejected as a whole, rather than debated clause by clause like a bill.
An Illustrative Example
Consider a hypothetical “Clean Air Act.”
1. Primary Law (The Act):
A very broad law passed by parliament that states a national goal of “reducing industrial air pollution.” It includes a section that explicitly grants the Minister for the Environment the power to “make regulations prescribing standards for emissions from industrial facilities.”
2. Subsidiary Legislation (The Regulations):
A separate legal document created by the minister’s department. This document might detail:
a) The specific maximum permissible level of sulfur dioxide for a factory per hour.
b) The type of technology factories must use to monitor emissions.
c) The penalties for non-compliance.
As you can see, the Act provides the legal authority and general direction, while the regulations provide the technical teeth that make the policy work in practice.