TYPES OF RULE MAKING PROCEDURES

CONTENTS

1.0 Introduction

2.0 Objectives

• Main Content
• Rule Making Procedures
• Investigational
• Consultative
• Auditive
• Adversary
• Exercise of Discretion in Decision and Rule Making

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

 INTRODUCTION

In administration, matters of procedures are as much important as substantive issues. This is because the procedure adopted could be very determinative of the worth of the substantive rules you get at the end of the day. For example, the procedure adopted by a criminal court could either make or mar the evidence of the defence.

In the process of rule making, administrative agencies adopt one form of procedure or another depending on the occasion. It could be investigational, consultative, auditive or adversary. But you should note that the approach taken is usually a function of the environment. Despite the utility of consultation, however, Nigeria lacks an established record of consulting interested persons, perhaps, because enabling Acts do not require it.

Finally, the role of discretion in administration should not be overlooked especially because administrative agencies cannot succeed without one form of discretion or another.

 OBJECTIVES

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

• Appraise the various rule making procedures of administrative agencies

MAIN CONTENT

Rule Making Procedures

The interface amongst the  factors  that  influence  administrators  in  their  decision making  has produced many types of administrative rule making procedures. For the purpose of our convenience, we will categorize them into four groups as follows:

• Investigational Procedure;
• Consultative Procedure
• Auditive Procedure
• Adversary Procedure

We shall consider them serially.

Investigational Procedure

As the name implies, this procedure is investigational. In other words, this is the stage where  the administrative agency arms itself with the required information in  order to come  up  with an informed decision and sound rule or regulation. There are several ways in which it could carry out its investigations. It may set up a committee, a panel, a commission or a team to investigate the issues involved  in  a  particular  matter.  In  order  to  discharge  its responsibility, such body would seek facts and  information, make  inquiries, hold  hearings, and examine memoranda or reports. For example, following its acknowledgement of the fact that the 2007 Presidential Elections that  brought  his  government  to  power  was fundamentally flawed, late President Yaradua established the Uwais Panel to, inter alia, examine the problems associated with the conduct of elections and to recommend measures for conducting free and fair election in the country.

Upon the conclusion of its assignment, the panel would usually submit its report of its findings (including its recommendations) to its creator,  that  is,  the  body  that constituted  it. Thereafter, such creator will decide on what to  do  with  the  report.  It  may  fully, substantially, partially accept the  recommendations contained  therein.  In the  worst of  cases, it may reject the recommendations. It is quite usual for  the  government  to  issue  a  white paper on the submitted report wherein it will make its views known as to the acceptance or rejection of the recommendations.

A classical example of this procedure is the parliamentary  or  legislative  hearing.  For example, in the course of its proceedings whether or not relating to the passage of a bill, President of the Senate or the Speaker of the House of Representatives invites the Senators or Representatives affected by a particular problem or issue (e.g. flooding, erosion, or pollution, etc.) to address the parliament on the facts, the circumstances of the people, and on possible remedial or ameliorative measures. Those invited to address the parliament obtain their information from their constituencies, print and electronic media, internet,  etc.  In  certain cases, the representatives of the people or of human rights or environmental rights bodies may be permitted to directly address the parliament or to submit memoranda, reports and recommendations.

What the parliament – the donor of power – can do in terms of investigations, administrative agencies – the donees of power – can equally do.

In the final analysis, it is at the discretion of the body to which a report is submitted to decide the weight it attaches to the recommendations in its making decisions,  rules,  regulations, policy statements and, most important, in the action it takes.

Consultative Procedure

To ‘consult’ means to obtain information, advice or opinion of a person or body. This consultative  procedure  is  the  process  by   which   an   administrative   agency   gets interested persons or those to be affected by its decisions involved in the arrangements leading to the coming into effect of its rules, regulations and policies. It is a participatory procedure in the sense that it is an avenue for stakeholders to take part in the way and manner decisions or actions affecting them are taken. Persons that are usually consulted are stakeholders  with special knowledge on the issues in question. In such consultation, the administrative agency obtains information or facts it does not already have or information or facts  that  supplement the one it already have. In the process, it may obtain expert knowledge or advice either from individuals, or groups.

In order to elicit informed response from  the  stakeholders, it  may send  the  proposed rules and regulations or policies or proposed line of action to the stakeholders for comments, observations, objections or suggestions. With a view to ironing out or resolving identified differences, it may also enter into discussions, correspondences, or negotiations with the interested persons.

The consultative system has over the years been institutionalized as manifest in the establishment or creation of statutory or governing boards, councils, or committee for administrative agencies. The remit of these statutory or governing bodies is to make policy decisions and formulate general rules or regulations for running such agencies. Before doing this, they consult amongst themselves and advise on important proposed decisions, rules or regulations or actions before they are adopted, published or implemented. It is noteworthy that members of these statutory or governing bodies are drawn from different backgrounds, professions, etc. The effect of this is that members bring their  wealth of  diverse knowledge  and experience to bear on any proposed decision or action. Ultimately, the rules, regulations, policies or actions that are implemented would be fairly acceptable to all or, at least, to the majority and, most important, they would be less contentious or controversial.

Again, it is significant to remember that, in addition to their statutory duties, the members perform the following functions:

• Furnishing the administrative agency with information and suggestions;
• Presenting views and information they  received  from  stakeholders  to  the agency; and
• Rolling back  the  stakeholders’  frontiers  of  ignorance,   misinformation   or prejudices by educating the stakeholders on the duties, decisions, rules, regulations and proposed actions of the administrative agency

The utility of such in-house consultative body cannot be over-emphasized in view of the intricacies and the technicalities of the issues involved and the large  number of persons that time may not permit the administrative agency to consult. Where an enabling act requires the administrative agency to consult stakeholders, such consultation must be carried out. However, where the law is silent on consultation, the agency is not bound to hold one. But, it is not improper  for  the  agency  to  discretionarily  hold  one.  In   this   regard,   recall   the comments of Sir William Graham-Harrison in his evidence before the British Committee on Ministers’ Powers:

“No minister in his senses … would ever think of making regulations without, where applicable, giving the persons who will be affected thereby or their representatives an opportunity of saying what they think about the proposal.”

In Nigeria, only a few statutory enactments stipulate consultation. See, for example, Section 2 of the Legal Practitioners Act No. 33 of 1962. There is no established practice  of  consultation. Arguments often preferred against it is that it is expensive and that the public often have nothing to offer. Whilst this may be so, it should be noted that consultation is, undoubtedly, important because it enables objectionable proposals  to be  properly evaluated by administrative agencies before they take any action. Such consultation would drastically reduce discontent amongst those to be affected by the rule or regulation. There may be no formal procedure for doing this. But where a  formal  procedure  is  expressly  required,  failure to comply may render the act void on  procedural ground. See the case of: Bates v.  Lord Hailsham [1972] I.W.L.R. 1373.

Regarding those enactments that are silent on the issue of consultation, the agency simply follows the law by not conducting any consultation especially when such steps are geared towards implementing unpopular policies or self-enhancing programmes. However, a worthy administrative agency should be guided by the above comments of Sir William Graham- Harrison.

SELF ASSESSMENT EXERCISE 1

1. Explain investigational procedure
2. Discuss the nature of consultation

Effects of Non-Consultation

 

Where the enabling Statute imposed a duty to consult and the agency failed to observe such in duty, anything decision, rule, regulation or action that comes out therefrom is liable to nullification on the ground of procedural ultra vires. See the case of Agricultural, Horticultural and F o re st ry Industry Training Board v . Aylesbury Mushroom Ltd

See also the case of Popoola v. Adeyemo(1972) dispute where Olatawura, JSC said that:

2 ECLR 48 a case involving chieftaincy

“Once it is established that those entitled  to  be  consulted  or  those  who  ought  to  know,  such as members of the ruling houses were shut out or  excluded from the exercise leading to the registration of a Chieftaincy Declaration, it will be unjust to rely on such a declaration. It will amount to a violation of the right of those entitled to be consulted”.

Contrast the above case with Bates v. Lord Hailsham of St. Marylebone & Ors (1971) 1

W.L.R 1373 where the Court of Chancery held,  inter  alia,  that  the  function  in  contention was legislative and not administrative, executive or quasi-judicial as a result of which the administrative agency was not bound by the rules of natural justice or by the general duties of fairness to consult all bodies that would be affected by its order.

Justification for Consultative Procedure

Why should an agency consult stakeholders  before  it  takes  any  decision  or  action? There are certain factors justifying such approach including:

• It allows for the cross-ventilation of ideas to the end that objectionable laws, rules, regulations, order, decisions, policies, or proposed action are reviewed or abandoned. Ultimately, the administration process is the better for  it  because  whatever  the  agency comes up with at the end of the day would be quite harmonious  with the wishes  and  aspiration of the In order words, unnecessary rancour and bitterness are avoided and frivolous litigation prevented.
• The process enables administrative agency to acquire useful information and knowledge from the stakeholders. This pool of knowledge and information can be a useful database for the present and for future proposals

Conversely, arguments against consultation include the following:

(i) It may be time wasting and expensive; and

(ii)      The idea of consultation assumes that the stakeholders have something to offer on the basis of their training, academic  background and  consciousness. But, more often than not, especially in this part of the world, stakeholders lack the basic knowledge, technical orientation and consciousness to meaningfully contribute to the consultation process.

Auditive Procedure

This is the hearing procedure akin to the judicial process whereby the judge listens to both  sides to the dispute before making his  decision. Here,  stakeholders present their views  orally or by submitting memoranda or other documents. The notice as to the convening of such hearing is usually published in electronic or print media in order to enable interested parties to attend. No formal rules are required save those necessary for orderly conduct or behaviour of the stakeholders. The advantage of this procedure is that interested parties are given  prior  notice in order to enable them participate in the process.

Adversary Procedure

This is the trial law making procedure. Interested parties are formally heard the way they  would be heard in a court proceeding before the  agency makes  its  decision. An example of this process is where a tribunal, a  commission, a panel or committee is set up  to  investigate  the  cause  of  a  problem  and  to  hear   the   representations   and  submissions  of stakeholders. Note that the parties could present their case in person or through their legal representatives. Though its workings are similar to  that  of  the courts,  it  should  be  noted  that rules adopted by the tribunal or panel are less formal than those utilized by the conventional courts.

You should note that the main remit of this body is fact-finding. At  the  end  of  its  proceedings, it compiles and submits the report of its findings together with its  recommendation to the appointing authority. Note that the report  usually  comprises  the  formal record of all the evidence presented by the parties at the hearing, their findings, and recommendations. Upon its  receipt  of  the  report,  the  appointing authority studies it and bases its proposed decision, rule or regulation thereon.

Exercise of Discretion in Decision and Rule Making

You will note that an agency is usually empowered to exercise discretionary power in arriving at a particular decision, rule, regulation, or  policy.  Generally, in  exercising such  discretion, the agency is not amenable to  interrogation.  However,  there  are  instances where even  though the agency has discretion, the court requires it to exercise it fairly, reasonably and lawfully. A case that demonstrates this  point  is  Padfield  v.  Minister of Agriculture(1968) 1 All E.R 694 HL. See also: Fawehinmi v. Akilu(1987) 1 NWLR (Pt 67) 797 S.C, and Stitch v. A.G. Federation(1986) 5 NWLR (Pt. 46)1007 SC.

In Padfield’s case, the minister had discretion to order an investigation into complaints regarding the administration of the Milk Marketing Scheme. However, the minister refused to refer Padfield’s complaint to a committee of inquiry. For this, Padfield sued the minister. The House of Lords held on appeal that the minister’s failure to order an inquiry was prejudicial to the aims and objects of the parent Statute, the Agricultural Marketing Act 1958.

SELF ASSESSMENT EXERCISE 2

1. Evaluate the effects of non-consultation.
2. Explain the scope of the auditive and the adversary procedures

 CONCLUSION

There are procedures peculiar to certain organizations. Administrative agencies are no exceptions. As a result of the fact that they constitute the fourth organ of government and because they are close to the grassroots, the procedures they adopt in the making of rules and regulations are unique.

The issue of consultation deserves some attention especially because it  encourages participatory government and responsive and responsible governance. In other words, it makes the people to see the government as their own which they will strive to assist to succeed in the delivery of goods and services as efficiently as possible.

Also  deserving  of  mention  is  the  issue  of   discretion   usually   exercised   by administrative agencies. We all know that discretion is second nature to administrative agencies but what we are much more concerned about is the way and manner such discretion is exercised.

SUMMARY

In this Unit, we looked at the various procedures for making rules and regulations, the incidents attendant to the failure to consult, and the nature of discretion exercised by administrative agencies.

TUTOR-MARKED ASSIGNMENT

1. Critically examine the procedures involved in rule making
2. What role does discretion play in rule making?

REFERENCES/ FURTHER READINGS

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