Primary and Secondary Legislation: A Functional Difference, or Just the Outcome of Process?

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.