I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

Box I.4. Steps in making law

Initiation. Legal instruments concerning the annual budget are usually initiated by the executive. The formulation of draft budget laws – either those governing generic budget processes or annual budget laws – is an important task of the executive in all countries. Executives, on the basis of law, are also empowered to issue regulations, often on their own authority. The powers and processes relating to the initiation of law and regulations are generally spelled out in constitutions and/or other laws.

Resolution. This is the phase of formally agreeing on the contents of the proposed law or regulation. For primary law, in countries with two chambers in the legislature, constitutions (or other law) specify the approval processes in each chamber and, in the cases of non-agreement between the two chambers, procedures for reconciling differences. For secondary law, the resolution phase is usually decided by the cabinet of ministers or an equivalent high-level body or juridical person (e.g. the president in presidential systems).

Concluding activities. Before a law or regulation can be formally adopted, additional steps are required. These include quality control, signatures (e.g. the head of State and/or ministers for primary law), promulgation and publication in the official gazette (which is usually obligatory in civil law countries). In particular, in some countries, laws may be reviewed by a constitutional court and regulations may be reviewed by a high-level administrative court – e.g. the Council of State (Conseil d’État) in France.

Source: Pizzorusso (1988), pp. 44-45.

In Denmark, where budget procedures are governed by regulation, not formal law, not all of the above steps are completed. Although the “initiation” phase is completed by the Ministry of Finance, the “resolution” phase by Parliament is absent. Some “concluding activities” – including review by a constitutional court (which does not exist in Denmark) and the signature of the monarch – are also absent.

4.5. Greater use is made of secondary law in some countries

The main distinction between “primary” and “secondary” law is that primary law is adopted by the legislature whereas secondary law is adopted by the executive. Differences across countries exist in each of the three steps shown in Box I.4 – both for primary and secondary law.

Secondary law can be categorised in two broad ways. First, there are regulations, issued by the executive that are explicitly drawn up to elaborate on a primary law. Second, there are executive orders or regulations that have

I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

been drawn up when primary law is silent on a given issue. This may lead to an independent source of administrative law.

As with primary law, there is considerable country variation in both the role and categories of “secondary” law, also known as “delegated legislation” (Caretti and Cheli, 1988). The differences are largely a function of institutional arrangements associated with the separation of powers between the executive and legislation, as illustrated in Table I.1.

Table I.1. Delegated legislation and separation of powers

*See House of Commons Factsheet L7 Legislative Series “Statutory Instruments” (2002, revised July 2003).

Table I.1 demonstrates that secondary law in the United Kingdom is weakly controlled by Parliament, even though secondary law has the same force as primary law. Parliamentary debates on the role of statutory instruments are usually on technical issues, not on the substance of the secondary law. The executive drafts budget-related laws that lay out general principles and ensures that such laws delegate the formulation of details to itself, via the regulatory authority of Statutory Instruments. These practices provide a strong source of legal authority for the executive.