LL.B Notes

JUSTIFICATION OF DELEGATED LEGISLATION

CONTENTS

1.0 Introduction

2.0 Objectives

  • Main Content
  • Justification of Delegated Legislation
  • Criticism of Delegated Legislation

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

INTRODUCTION

We looked at the concept of delegated legislation in the immediately preceding Unit. Measured merely by volume, more legislation is produced by the executive government than by the legislature. All the orders, rules and regulations made by ministers, departments and other bodies owe their legal force to Acts. Parliament is obliged to delegate very extensive lawmaking power over matters of details, and to content itself with providing a framework of more or less permanent statutes.

Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. Justification for such delegated  legislation is to be found in the inability of the three traditional arms  of  government  –  the  legislature,  the executive and the  judiciary to effectively cover the  field of  governance or administration. In other words, such justification rests on the inevitability of  administrative  agencies  in  making rules and regulation for the smooth running of the modern day State. Thus, delegated legislation is, in the words of Wade, traditionally considered as  a  necessary  evil,  an unfortunate but inevitable infringement on the separation of powers.

Be that as it may, you should note that  delegated legislation is  not  the  darling of everyone. This is because there are lots of criticisms directed against the concept. The central argument is that despite its inevitability, delegated legislation vests wide power in the hands of those lacking in direct citizens’ mandate – administrative agencies.

 OBJECTIVES

At the end of this Unit, you would be able to explain:

  • The factors contributing to the utility of delegated legislation
  • The criticisms trailing the concept of delegated legislation

MAIN CONTENT

Justification of Delegated Legislation

Lots of factors have been identified as constituting the justification for or founding the basis of or the inevitability of delegated legislation. We shall examine some of them below.

Reduction of Parliamentary Workload

Casting  our  mind  back  to  classical  rule  of  law  and   separation   of   powers,   the legislature should be directly responsible for all legislation. However, because  there are  so many activities requiring legislative attention or action, the legislature cannot be expected to legislate alone. If only the legislature were to legislate for these activities, it would be unduly weighed down for lack of the personnel, facilities, and the time to do so.

Consequently, the legislature would be unable to efficiently and promptly deliver goods and services or, in democratic parlance, the dividends of democracy, to the electorate or citizens. This may be politically costly to the legislature as it may have to contend with mass protests, demonstrations, and even a vote-of-no-confidence.

Thus, there is the need to give authority to administrative  agencies  to  embark  on administrative legislation. In other words, delegated legislation releases the pressure upon the legislature and enables it to concentrate on principles and not details.

Enabling Experts to Legislate on Technical Matters

Another justification for resorting to administrative legislation lies in the technicality of the subject matter over which the legislature may have to legislate. In  no  genuine democracy is  any legislator required to possess a degree  in  a  particular  field  to  be  eligible for  election into office. In other words, the legislator does not necessarily have to be an expert in any field the most important thing being his acceptance or choice by the electorate.

Under this arrangement, the legislative body is a mixed grill of persons. Even where there are in-house experts versed in a particular area in  relation  to  which  a  bill  has been presented, they may still not be satisfactorily knowledgeable to such an extent as to be able to take their non-expert members along through to the passage of the bill. The above scenario is worse in a country like Nigeria where the literacy rate is still low.

Under the Constitution of the Federal Republic of Nigeria 1999,  eligibility  for  election  into the National Assembly does  not include possession of  professional academic training. In  fact, a member of the Senate or House of Representatives need not have a university degree. The implication of this is that they will be unable to fully appreciate the nature and  character of draft bills particularly technical ones – for example bills relating to science and technology, computer science, biotechnology, genetics, etc – forwarded to  them  simply because they are not learned in the areas covered by the bills. It is, therefore, pragmatic to cede regulation of these areas to experts in the ministries or parastatals from which the bills emanate. Apart from encouraging professionalism, this approach promotes efficiency  and  enhances  effective service delivery. Thus, The British Committee on Ministers’ Powers in  1932 said, amongst other things, that:

“The truth is that if Parliament were not willing to delegate law-making power, parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.”

Provision against unforeseen circumstances

Legislation may require some measure of flexibility so as to take care  of  future contingency and unforeseen circumstances in the execution of government policies. In this connection, delegated legislation enables the legislature to provide ready-made or customized and prompt response to future emergencies or contingencies such as natural disasters, drought, strikes, religious strife, socio-economic and political crises, etc. At the time of the happening of any of these events – a period that calls for prompt and effective reaction – the National Assembly may not be in a position – for instance, it may be on recess – to do anything the occasion demands because its tedious procedures will not let it. In times of emergency, measures cannot await the usual proceedings and it may thus be necessary and desirable to confer wide discretionary powers on the delegate of power,  e.g.  the  president.  This  is  so  where  summary  or temporary action must be taken, e.g. declaring an area as danger zone. See William v. Majekodunmi [1962] 1 All N.L.R 412

Therefore, delegating powers to an administrative agency or executive is designed to overcome the bureaucracy that could undermine the capacity of the country or  any part thereof to promptly respond to any eventuality. For example, under Section 305 of the CFRN 1999, the president has power to declare a state of emergency in any State of the Federation and, more important, is vested with the power to make rules and regulations for the administration of the State affected. Notice that the regime of President Olusegun Obasanjo invoked emergency provisions against Plateau State.

Delegated Legislation as a medium of bringing an Act into effect

There are times when, though an Act has  been enacted the  legislature, the  provisions of  the Act cannot come into operations because of the paucity  of  funds,  inadequate personnel, or other logistics problems. This is a convenient place where the legislature has to delegate the relevant governmental agency to effectuate the Act or a part thereof as and when the identified inadequacies are addressed. The operation of the Act may be postponed or  its  operationalization entrusted to the agency because  persons  and groups that would be affected by the Act have not yet been sensitized or educated as to the provisions of the Act. In this case, the legislature will simply authorize the agency to bring the provisions of the Act into effect when it is satisfied that those persons and groups have been sufficiently sensitized or mobilized for the law.

SELF ASSESSMENT EXERCISE 1

  • Discuss the merits of delegated legislation in Nigeria.

Criticism of Delegated Legislation

There are criticisms of the constitutional or statutory delegation of legislative power to administrative agencies. Incidentally, such criticisms are rife amongst adherents of strict application of the doctrines of rule of law and separation of powers. Streatfield J. in Patchet v. Leathem appears to have summarized the gravamen of the aversion for delegated legislation as follows:

Whereas ordinary legislation, by passing through both Houses, is thus twice blessed, this type  of so-called legislation is at least four times cursed. First, it has seen neither House of Parliament; secondly, it is unpublished and is inaccessible even to those whose valuable rights of property may be affected; thirdly, it is a jungle of  provisions,  legislative, administrative or directive in character and sometimes difficult to disentangle one from the other; and fourthly, it is expressed not in the precise language of an Act of Parliament or an Order in Council but in the more colloquial language of correspondence, which is not always susceptible of the ordinary canons of construction. In no particular order, we shall consider some of the criticisms below:

Contravention of the Doctrines of Rule of Law & Separation of Powers

The doctrine of rule of law posits, inter alia, that legislation should adhere to the usual  procedures stipulated for law-making. Such  procedures  are  expressly  enumerated  in  the CFRN 1999. In considering bills before it, the National  Assembly  follows  or  is guided  by these procedures  so  much  so  that  the  end  product  –  Acts  of  National Assembly  –  can truly be said to emanate from the national  Assembly.  However,  in  delegation  legislative  power to administrative agencies, the legislatures, non - legislature, and most important, mere government appointees, the leeway to enact rules and regulations that would affect the rights, liberties and properties of citizens. Again, the doctrine of  separation  of  powers  insists  that  each of the three arms of government should faithfully stick  to  assigned  duties  and  refrain from interfering in the affairs of another. In the scheme of the CFRN, this means that the legislature, which is the law-making arm of government, should, to the exclusion of any other arm or governmental agency, make laws. Implied in this is the prohibition of any other arm or administrative agency from interfering in the law-making powers of the legislature. Unfortunately, this is exactly what delegation of power by the legislature to the administrative agency causes the latter to do.

Administrative Powers are too Expensive

Allied to the above is we have stated that while the legislature makes laws to cover general policy only, an administrative agency legislates in particular details. In other words, Administrative legislation fleshens the skeleton of a Statute or an Act of the  National  Assembly. But it so happens that those details the drawing up of which is vested in the agency are the most important and most impactful on the man in the street. In other words, matters often left to the agency to fill in  the  details are those affecting  the  people  most  and   it  is  undesirable  that  this  is  not  left  to  elected representatives. It is usual for an average voter to expect his representative at  the legislative house to defend his interest by participating in the discussion of those details before they have the force of law. Those details  that  are worked out by the administrative agencies and dressed up as rules and regulations come into existence without any direct input from the legislators. To that extent the rules and regulations are, in the words of Streatfield J., miss out in National Assembly double blessings.

Administrative Agencies Possess too much Discretion

Another ground for castigating power delegation to an administrative agency is  that  the enabling provisions usually contain wide,  subjective  phrases  such  as  ‘if  he  is satisfied,’ ‘as he deems fit,’ ‘in his opinion,’ ‘if the minister is of the opinion,’ etc. For example, S. I14 of the Federal Road Safety Commission Act 2004 Cap F19 Laws of the Federation 2004 empowers the Director of the  Commission  to  make  such  other  regulations  as,  in  his opinion, are necessary and expedient for the purposes of reducing the rate of road accidents and are in conformity with the public safety on the highways. Similarly, Section 51 of the Immigration Act 2004 Cap 11 authorizes the minister in charge of  immigration to  make all such regulations as, in his opinion, are necessary or expedient for giving full effect to the provisions of the Act and for the due administration thereof. The argument goes that these legislative strategies entrust enormous powers to mere appointees rather than elected representatives of the people.

Inadequate  Control

It is alleged that the legislative body lacks  the  time  to  actually  watch  over  the  administrative agency because of its tight schedule in law-making so that administrative misconduct may be committed without the donor of power being able to  do  anything to  halt the practice the only exception being S. 88 of the CFRN 1999 [which empowers the National Assembly to conduct investigations on the activities of the executive]. This gives room for judicial intervention through the declaration of an act as ultra vires. However, the opportunity for this declaration may not arise or arise late where aggrieved persons decide to let  sleeping dog lie either because they are pacific or because they lack the time and money to expend in litigation. So, access to justice would depend on the chance litigation of a victim of governmental act. Even where the judiciary finally acts, it  does  so  only  when  the  damage has already been done.

No Publication or  Publicity

It is usual for bills submitted to the National Assembly to be public knowledge. At the time  such bills finally become law, many people would have been aware of their intents and  purpose. Conversely, this is not the case  with  administrative  legislation.  Rules  and regulations and even bye-laws are not, in most cases, published. One gets to know of the administrative prohibition of a conduct at  the  level  of  enforcement. Unfortunately,  there  is no general mandatory provision requiring the administrative agency to adopt antecedent or subsequent publicity of delegated legislation so as to make  many people aware of  the  rules and regulations. This is a serious oversight on the part of the legislature particularly when we know that our legal system is founded on the belief that ignorance of the law is no excuse. See section 22 of the Criminal Code. So, what would be the fairness in requiring the individual responsibility of persons who innocently or ignorantly violated the provisions of rules and regulations which were never publicized or published?

Less Satisfactory Drafting of Administrative Legislation

Law-making procedures of the legislature is so stringent, scrupulous and rigorous that at the reading and debating stages, any procedural or substantive error  in  drafting  could  be corrected. In other words, it is the exchange of  ideas  amongst  legislative members over the pros and cons of the draft bill that makes the bill, and the law, better. On the other hand, administrative legislation does not observe these procedures. So, the rules and regulations issuing out from these agencies are more  often  than  not  fraught  with  clerical  and  substantive errors and bad drafting which ultimately affect the clarity and certainty of the rules and regulations.

Emergency Regulations often Violate Human Rights

One of the reasons we advanced to support the justification for delegated legislation was that where the legislature grants power to an administrative agency to make rules and  regulations,  it enables the donee to respond to emergencies or contingencies at a time the legislature would not have been able to do so. As good as the ceding of power is to the agency, we must  admit that regulations rolled out in emergency situations are often privative and violative of basic human rights of citizens.

Under the common law, as applicable in the statutory laws of many countries, such agency, sensing a ‘clear and present danger’ to national security and welfare restrict the civil rights of individuals. Under this rule – the doctrine of necessity – the interest of the State is promoted  over and above that of the individual. It reflects the utilitarian principle of the maximum happiness of the greatest number, leaving minorities to their own fate. A case  that  supported this doctrine is Liversidge v. Anderson(1942) A.C. 206  HLBut  the  dissenting opinion  of Lord Atkin – upon the basis of which IRC v. Rossminster Ltd (1980) A.C. 952 HL overruled Liversidge v. Anderson – is worth quoting in some details:

In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between  the  subject  and  any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

CONCLUSION

There  is  no  doubt  that  there  is  legitimate  apprehension  over  the   delegation   of   legislative power to a body that should ordinarily be far removed from the precincts of legislation. However, it is worth noting that in the beginning, the criticism against delegated legislation was absolute in the  sense  that  no  form  of  delegated legislation was to  be tolerated. But in realization of the utility of delegated legislation, there appears to be a  general consensus on the inevitability of delegated legislation. In  contemporary  times, emphasis is on concerns about ways and means of curtailing abuse of delegated power.

SELF ASSESSMENT EXERCISE 2

  1. Critically examine the criticisms of delegated legislation.

SUMMARY

In this Unit, we basically considered the concept of delegated legislation, its justifications and criticisms. Regarding the former, we considered the definition of delegated delegation, delegation of power and the donors and donees of power. Thereafter, we looked at the justification of delegated legislation and rounded off with the criticisms.

TUTOR-MARKED ASSIGNMENT

  1. The criticism of delegated legislation is unnecessary because administrative legislation is indispensable to the success of modern governments. Do you agree?

REFERENCES/ FURTHER READINGS

T.F. Yerima & B. Abegunde (Ed.), Essays on Administrative Law in Nigeria (Ado Ekiti: Petoa Educational Publishers, 2006).

 

 

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