DECISION AND RULE MAKING PROCEDURES

CONTENTS

1.0 Introduction

2.0 Objectives

• Main Content
• Meaning and Scope
• Considerations in Rule Making Procedures

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

INTRODUCTION

We have seen that the Constitution or the legislature can delegate power to an administrative agency. In exercising such power, the agency enacts delegated legislation by making rules, regulations, etc. But, for the agency to do this, there are processes or procedures it  must follow. That is the crux of decision and rule making.

OBJECTIVES

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

• Differentiate between the types of rule-making

MAIN CONTENT

Meaning and Scope

Ese defines administrative decision or rule in an inclusive and enumerative manner. To him, it means or includes:

• Administrative laws, rules and regulations;
• Administrative decision, policy, determinations, or directives to act one way or another; and
• The choice of a course of action from among alternatives to deal  with  a  public problem

However, the definition offered by Iluyomade & Eka appears  to  be  narrower in  the sense that they define rule-making as  the  issuance  of  regulations  or  the  making  of determinations which are addressed to indicated but unnamed and unspecified persons or situations.

But there they are actually talking of the same thing because, shorn of all embellishments, decision or rule making is no more than delegated legislation. The donee of administrative power has the capacity to enact such delegated legislation. This legislation can also  be  referred to as subsidiary legislation, administrative legislation, administrative law making, administrative rule making, or administrative decision making. Since we have already considered the constitutional and the legislative mode of donating power to administrative agencies, our concern here is to closely look at the law making procedures of these agencies. One thing that we must remember  is  that  decision   or   rule-making   may   equally   come  in the form of supplement to, amendment or  repeal  of,  existing  rules,  regulations  or policies. In the next sub-head we shall look into the factors that administrators consider in making rules, regulations, decisions and policies.

SELF ASSESSMENT EXERCISE 1

Describe administrative decision or rule

CONSIDERATIONS IN RULE MAKING PROCEDURES

There are various procedural problems  which  accompany delegated  legislation.  And there are various factors which may affect the type of procedure to be adopted by a particular agency or person. For example, whilst antecedent consultation may be employed in  relation  to a regulation affecting Spare Parts Traders Association, it may be unreasonable with regard to a regulation affecting all Nigerian students. Also, the  procedure  to  be  adopted  by  a single official could be different  from  that  of  a  high powered technical committee. There  are five main factors which affect these considerations. They are enumerated and discussed below:

The Characteristics of Parties Affected

These may vary widely. For instance, whether or not  antecedent consultation or  prior notice  is workable in terms of their number, whether or not they can  easily  be identified and  whether or not the persons affected are organized. Where applicable,  it  is  necessary  to always consult with stakeholders, and harmonize or balance the competing or conflicting interests of all stakeholders.

Nature of the Problem to be dealt with

When the problem is a mere routine of the public service or government, for example, the period within which a particular form must be returned or the time to see a particular officer, prior notice is usually unnecessary. Also, sometimes the matter to be dealt with may be  of such urgent or technical nature as to reduce  the  need  for  such procedure. The  procedure may, however, become of utmost importance where, for instance, the regulation will affect fundamental rights or economic and financial interests of some people. In such cases, procedural formalities may be accorded before certain rules or regulations are made. In the absence of any express provision for such, the administrator is at liberty to proceed more freely.

Characteristic of Administrative Determination

More often than not, most active rule making involve the exercise, to some extent, of some discretion involving either the aims to be served or the means of  attaining such aims. In such  a case, it may not be practicable to consult affected interests. For example, if the minister of Health is to make regulations for stopping the spread of an epidemic  what  is  involved  may be of such a technical nature that affected interests may not be consulted.  This  is  for  practical reasons because even if persons to be affected are educated in  the  conventional sense, such education is inadequate to enable them appreciate the decisions of the administrator.

Types of Administrative Agencies

Whether or not the procedure would be required could be a function of whether the administrative agency is manned by one person or by a group of persons.  In  certain  instances, two or more administrative agencies may be competent to  make  decisions regarding the same matter. In that case, what one agency does would be  influenced by what  its sister agency has already done. For example, the Police, the ICPC and the EFCC are all empowered by the Statutes establishing them to, inter alia, combat corruption. So, if  the  EFCC has investigated a particular corruption case, the ICPC does  not  need  to  duplicate such investigation. If the matter is to be properly handled by the ICPC, all  that  would be  done is for the EFCC to hand over the matter to the ICPC together with the result of its investigation and exhibits and evidence. Then, the ICPC will proceed from there.

Nature of Enforcement

If it is subject to challenge in all its facets after promulgation, this may dispense with  formality in its making. If it binds the affected parties only by requiring them to fulfil some procedural requirements, advance hearings may be unnecessary. But if  the  regulation  requires the persons affected to disobey the regulations on the pain  of  loss  to  liberty or estate, then there is the need to allow for an antecedent opportunity for the prospective targets or victims of the enforcement to  influence the  decision. In  other words, if  the  regulation is to be self-enforcing with grave consequences on people’s  rights,  antecedent  regulations would be necessary.

SELF ASSESSMENT EXERCISE 2

What do administrative agencies consider in rule making procedures?

CONCLUSION
Administrative rules and regulations, policies, directives, etc, all come under  the  general name of delegated legislation. Whatever the nomenclature adopted, they are the  means through which administrative agencies carry out their responsibilities. But much more important, however, are the factors that predominate in the minds of  these agencies before they finally decide on a course of conduct or action.

SUMMARY

In this Unit, we considered the administrative rules and regulations and the factors administrative agencies consider in deciding one way or another.

TUTOR-MARKED ASSIGNMENT

In determining administrative policies and decisions, administrative agencies act purely in accordance with their personal sentiments. Do you agree?

REFERENCES/FURTHER READINGS

Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008).