CONTENT

CONTROL OF DELEGATED LEGISLATION

1.0.      INTRODUCTION

2.0       OBJECTIVES

• MAIN CONTENT
• Legislative control
• Executive Control
• Consultation
• Consultation and Good Governance

4.0       CONCLUSION

5.0       SUMMARY

6.0       TUTOR MARKED ASSIGNMENT

7.0       REFERENCES/FURTHER READING

INTRODUCTION

Whatever prejudices might have existed against delegated legislation in the past, today it has come to stay. At present, in almost all countries, the technique of delegated legislation is resorted to and some legislative powers are delegated by the legislature to the executive. It must be conceded that in the present day legislative powers can validly be delegated to the executive within permissible limits. At the same time, there is inherent danger of abuse of the said power by executive authorities. The basic problem, therefore, is that of controlling the delegate in exercising his legislative powers.

 OBJECTIVES

At the end of this Unit, you will be able to assess the:

• Intricacies of legislative control of agencies
• Utility of consultation against the background of good governance

MAIN CONTENT

LEGISLATIVE CONTROL

Indeed, it is incumbent on the legislature, as the donor of legislative power to the executive, to exercise control over the power so donated otherwise the donation may turn into abdication. Generally, two methods of legislative control of delegated legislation are well known - the control through the enabling Act and through various legislative committees. On the former method of the control is the insertion of some condition precedent or subsequent or both for the enactment of the law in the enabling Act. This can be instanced with the Foreign Judicature Act 1890. According to the Act, every Order-in-Council made pursuance of the Act shall be laid before the House of Parliament forthwith after it is made, if the Parliament be then in session and if not, forthwith after the commencement of the next session of the Parliament. Obviously, the requirement here is simply mere laying without further condition

(a) Laying before the Legislature

Laying instruments before the legislature comes in various forms as follows:

• Cases where the Statute merely requires administrative rule or regulation to be laid before the Parliament prior to its coming into operation. The mandate here is for the administrative agency to notify the legislature of its proposed rules and regulations or decisions. Neither the agency nor the legislature is obliged to do anything more. For example, this is the approach adopted in relation to the citizenship provisions of the CFRN 1999. S. 32(1) empowers the President of the country to make regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the provisions on citizenship. Pursuant to Section 32(2), the President can make rules and regulations with regards to citizenship. However, such delegated legislation must be  laid before the National Assembly
• Cases where the rule or regulation is required to be laid subject to the negative resolution’ period. The implication of this requirement is that such administrative legislation remains valid unless and until the legislature takes the positive step of invalidating or annulling it. In most cases, except there are real irresistible reasons to intervene, the legislature will not pass any negative resolution on the rule or regulation because, in any case, it may not actually have the  time  to  do  so.  Therefore,  this  clause is most common in enabling statutes.
• Cases where the instrument is laid subject to ‘affirmative resolution.’ The meaning of this is that the regulation cannot come into effect unless an affirmative legislative resolution is passed. In other words, the agency decision cannot be enforced or implemented unless it receives the blessings of the legislature

You should note that this measure is ideally most effective since it largely settles or takes  care of the allegation that  delegated  legislation  is  a  pretext  under  which  the  legislature abandons or surrenders its constitutional role of legislation  to  administrative agencies.  The idea is that if the implementation of a rule or regulation is made subject to the affirmative resolution of the legislature, chances are that the latter will ultimately have the opportunity of performing oversight functions over the administrative agency and its subordinate legislation. However, because the legislature really lacks the time to devote to  such  details covered by rules and regulations, there are very few statutes that would postpone the  effectiveness of  a rule or regulation until the legislature approves.

• Cases where the Statute requires a draft of the delegated legislation to be laid before the Parliament. Here, we are dealing with  situations  similar  to  the  ‘affirmative resolution’ scenario. Under this head, however, we are concerned with a draft of  the  rule or regulation. There may be nothing more needed on the part of either of  the  parties once the draft is laid. The draft may just be for the information or notification of the legislature. But, whatever be the case, the legislature will not have the time to painstakingly peruse the draft

SELF ASSESSMENT EXERCISE 1

Enumerate and discuss the various ways in which the National Assembly may control an administrative agency.

EXECUTIVE CONTROL

As the name implies, executive control over  a  donee  of  power  is  exercised  by  the  executive branch of government. The control is exercisable in many ways including:

• Power to Hire and Fire

We have noted that when the legislature statutorily establishes an agency, it is the executive branch that is charged with  the  duty of  implementation  that  actually appoints  and inaugurates the natural persons who would pilot the affairs or see to  the day-to-day running of the activities of the agency. Therefore, where any appointee of the agency misconducts himself or conducts himself in a manner that the appointor finds unacceptable, the latter  may  not hesitate to wield the big stick by firing  him. However, there  are  instances  where  the  so- called appointor cannot single-handedly remove the erring appointee without  recourse  to another body. This often happens where the Constitution or an Act of the National Assembly denies legal force to any purported appointment or removal of  an  appointee  from  office without the approval or confirmation of the Senate. See, for example, S. 2(3) of the EFCC Act 2004 which makes the  President’s  appointment  of  members  of  the  Commission subject to  the ratification of the Senate.

• Submission of proposed rules, regulations, policy decision, etc, to the supervisory Because of the uproar that unscrutined administrative legislation may attract from the members of the public to the embarrassment  of  the  supervisory authority, the latter usually requests the agency to submit its programme of action  including  rules, regulations, etc for its perusal or input. The ultimate purpose is to ensure that administrative legislation does not become unpopular amongst the persons or groups that would be affected by it. Also, it would be in the self-interest of the supervisory authority not to allow its subordinates to make a rule or regulation that would be unacceptable to its appointors. For example, any regulation that any of the hospitals owned by the Federal Government wants to implement must be tabled before the Ministry of Health for perusal or vetting.

CONSULTATION

Here, the enabling statute mandates the subordinate legislator to ‘consult’ with certain bodies either named specifically or generally before exercising the power to legislate. There are some ancillary issues that may arise when consultation is required. We will briefly consider them below:

(i). What is Consultation?

Consultation defies precise meaning. The case of Rollo v. Minister of Town &  Country Planning 1948] 1 All ER 13 CA. gave some insight as to the meaning of the term. Under S.1

(1) of the English New Towns Act 1965, the minister was under an obligation to consult with  ‘any local authorities which appear to him to be concerned’ before  making  an  order designating an area as the site of a new town. Bucknill, LJ, said:

“On the one side the minister must supply sufficient information to the local  authority to enable them to tender advice, and on the other hand, a sufficient opportunity must be given to the local authority to tender that advice.”

What the above quote demonstrates is that it  takes  two  to  tango  –  consultation  succeeds only when the minister or the head of the agency  on  the  one  hand  and  the  persons  or  groups to be consulted efficiently perform the roles expected of  them.  Therefore,  as  the  above quote demonstrates, the minister or the head of the administrative agency must supply sufficient information to the persons or groups to be consulted in order to enable them give informed critique, suggestion or advice. Put differently, the  minister  must  not  give information that is misleading or withhold certain information that may influence the decision of the consultees.

We may add that – in view of the peculiarity of our country which is still low in education – such sufficient information must necessarily include facts (and implication of the proposed decision). We may recall the Toxic Waste Dump incident in  1987.  Therein,  toxic  consignments imported from Italy were dumped in Nana’s property in Koko village,  Delta State, with the consent of  Nana  who apparently was ignorant of the deadly nature or contents of the packages.

(ii) Who must be consulted or who may be consultees?

Persons or groups to be consulted are usually specified in the enabling Act. They are usually persons or bodies that may be interested in or affected by the rule or regulation.  Let  us  assume that there is an existing Act of the National Assembly known as the Freedom of Information Act (FIA) 2009 which, inter alia, empowers the Minister of Information  to  make rules that would regulate how Nigerians would access publicly  held  information.  Before such minister embarks on such administrative legislation, he might be required to consult the print and electronic media, lawyers, human rights activists, etc. because persons who would be most aggrieved by the effectuation of the subordinate delegation would belong to any or all of these groups. Even where the enabling Statute does not or is silent on the requirement of consultation, it would not be inappropriate for the minister to discretionarily consult such critical groups. You should note that any such discretion must be exercised reasonably otherwise there will be judicial review.

(iii). Consequences of failure to consult

Let us distinguish between failure to consult (at all or properly) and failure to heed advice proffered during proper consultation. In the former case, the  courts  are likely to  hold that there was a breach of a mandatory procedural requirement of the enabling Act rendering the subordinate legislation null and void. See, Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd [1972] 1 All ER 280; [1972] 1WLR 190.

In the latter case, the courts will decline intervention. This is because the minister or  the  head of the agency has done all that is legally required of him to do. If he  has  consulted  the category of persons or groups he was required to consult by inviting them or by  being  receptive to their comments, observations and suggestions, he is not bound to implement a particular suggestion or to implement it in a particular way. In other words, the consultees are entitled to their say in the same way that the minister is entitled to his ways or decisions. There is no obligation to be dictated to by those consulted.

SELF ASSESSMENT EXERCISE 2

1. Explain the types and character of consultation.

CONSULTATION AND GOOD GOVERNANCE

Against the background of much maladministration in several facets of our national life, the importance of consultation cannot be overemphasized. Basically, consultation  is  an  avenue for persons interested in a  particular  governmental  policy  to  make  observations, suggestions or input for good or better governance. In other words, consultation assists in promoting ‘good governance’ or in avoiding governmental failure.

Good governance is a  term  of  statecraft  that  is  generally  perceived  as  a  normative principle of administrative law which obliges the State to perform its  functions in  a manner that promotes the values of efficiency, non-corruptibility, and responsiveness to civil society. According to the United Nations High Commissioner for Human Rights (OHCHR), the good governance possesses five cardinal attributes of transparency, responsibility, accountability, participation and responsiveness. In other words, good governance is all about prudent management of resources for optimal efficiency.

The principle of good governance was first used by the World Bank in 1989 as an anti- corruption  tool  with  the   inherent   capacity   to   promote   socio-economic  rights   in  States p l a g u e d w i t h corruption. Incidentally, c o r r u pt i on is endemic in many developing countries including Nigeria. Its existence either reflects bad governance or represents governmental failure. In fact, it is antithetical to good governance.

Against the foregoing  background,  therefore,  consultation  may  be  one  way  of checking  the excesses of many agencies which apply agency budgets or,  more  aptly,  tax  payer’s money, in a way or manner that offends the principle of utility, that is, by failing to satisfy the greatest happiness of the greatest number. You would recall that there  are  many pot-holed roads around you which the agencies and local government authorities  have  failed  or  neglected to fix. It may interest you to know  that  in  the  offices  of  these  agencies  it  has been documented that many of these roads have been done for so much amount of money. Notice that, quite frequently, there is deliberate mis-prioritization of  projects or  programmes for selfish interests. There are instances where a local government chairman would use government resources to tar the close leading to his house while abandoning the access road that the people use frequently.

Where consultation – a veritable tool for compelling administrative agents to refrain from conducting themselves corruptly or from wasteful expenditure  –  is institutionalized, chances are that the people would be able to decide or determine the scope of decision taken by administrative authorities.

 CONCLUSION

The saying that power corrupts and absolute power corrupts absolutely is, indeed, true of delegated legislation. It is subject to abuse and it has, in fact, been so subject. This background justifies the intervention of control whether at the level of the legislature, the executive or the people.

We have seen that there are many ways in which the legislature may control administrative agencies but, to the extent that such control appears not to be real, we could suspect that those donees of power may actually be their own masters. However, because executive control is more direct and personal, it appears to be more efficient than legislative control.

Consultation is a  medium  for  the  people  to  participate  in  the  governance  of  their affairs. It is ideally a  guarantee  against  maladministration or  abuse  of  power  or  of office. The tool is the more important when we realize  that  Nigeria  is  a  country that has been crippled and still being crippled by endemic corruption. It is expected that an efficient consultation system would recruit the people  into  the  battle  against  corruption for  the  ultimate end  of enthroning good governance in our land.

 SUMMARY

In this Unit, we dealt with legislative and  executive  controls,  consultation,  and  the connection between consultation and good governance.

TUTOR-MARKED ASSIGNMENT

1. Consider the existing loopholes in efforts to control administrative agencies and suggest remedial measures.

7.0 REFERENCES/ FURTHER READINGS

Ndiva Kofele-Kale, “Good Governance as Political Conditionality” (Democracy and Good Governance, ICASSRT, 1999)