DELEGATED LEGISLATION

 CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• History of Delegated Legislation
• Delegation of Power

`           3.3 Definition of Delegated Legislation

3.4 Classification of Delegated Legislation

3.4 Delegated Legislation under the CFRN 1999

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

INTRODUCTION

You will recall that our discussion in Module 2 shows that faithful commitment to the doctrine  of rule of law espoused by A.V. Dicey negates the existence of administrative law – the law governing administrative agents. He had postulated that  it  would  be contrary to  the  rule of law for administrative agencies to participate in administration. The implication of this is that there would be no administrative agents let alone any discussion regarding the delegation of power to them.

One of the most significant developments of the present century is the growth in the legislative powers of the executives. The development of the legislative powers of the administrative authorities in the form of the delegated legislation occupies very important place in the study of the administrative law. We know that there is no such general power granted to the executive to make law it only supplements the law under the authority of legislature. This type of activity namely, the power to supplement legislation been described as delegated legislation or subordinate legislation

Similarly, under the doctrine of separation of powers, which allocates distinct roles to the three arms  of  government  –  legislature,  executive  and  judiciary  –  there   is ordinarily no place for any other (fourth) arm of government. But administrative agencies have assumed the status of the veritable fourth arm of government. And one of the manifestations  of  this  development is the existence of delegated legislation.

Details are provided below.

OBJECTIVES

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

• The donors and the donees of delegated power
• The history of delegated legislation

MAIN CONTENT

History of Delegated Legislation

The formal process by which a Bill become an Act has never been the sole method of legislation. In the earliest years of Parliament, it was difficult to distinguish between enactment by the King in Parliament and legislation by the King in Council. Even when legislation by Parliament and legislation had become a distinct process, broad power to legislate by proclamation remained with the Crown. In 1539, by Henry VIII’s Statute of Proclamations, royal power to issue proclamation ‘for the good order and governance of the country was recognized to exist and such proclamations were to be enforced as if made by Act of Parliament. One reason given for the Act was that sudden occasions might arise when speedy remedies were needed which could not wait for the meeting of Parliament; the Act contained saving words to protect the common law, life and property.

The late 19^th century saw a great increase in the delegation of legislative power to government departments and other bodies, granted piecemeal as need arose. After 1918, some lawyers and politicians became concerned at the wide legislative power of government departments.

A.V. Dicey’s proposition on the rule of law did not  reckon with delegated legislation. In fact,  he declared delegated legislation unconstitutional or unlawful. However, delegated legislation exists just to assert the contrary, that is, that  delegated legislation is a  practice recognized by law. Since the 16th century in the UK, there have been Acts of Parliament which had delegated power to the executive. For instance, the Poor Law Amendment Act 1834 marked a new chapter in the vesting of delegated powers in the executive. The Act gave to the Poor Law Commissioners, who had no responsibility to the Parliament (such responsibility was later established in 1847) powers to make rules and orders for the ‘management of the poor.’ Notice that the Act entrusted to the Commissioners not only the responsibility of spelling out details of the execution of the Act; it also placed policy formulation at their disposal. Delegated legislation is a feature of modern governments  principally  because  of  government’s  act i v e intervention in socio-economic, ed u cat i o n al , p o litic a l a n d welfarist needs of citizens. Delegation of legislative authority by the Parliament to the executive branch increased astronomically in the 19th century with the ending of the period of laissez-faire and the coming of ‘collectivism.’ Because it realized its inability to cope with the  newly  created  responsibilities, Parliament had to surrender power to make detailed legislative rules to administrative agencies.

With the post-1945 emergence of the Welfarist State, delegated legislation was at its height.

In contemporary times, the need for governments to meet the needs  of  the  electorate  or  citizens has led to an upsurge in the creation or proliferation of administrative agencies. Consequently, rules and regulations promulgated by administrative agencies are far more in number than laws enacted by the legislature. This is another way of saying  that  donees  of power even do more than donors do in fact.

Delegated legislation in Nigeria

Law making in Nigeria is constitutionally the function of the legislature, and the law-making powers of the legislature derives from the Constitution as a grant of authority direct from the people by whom the constitution is framed. Section 4 of the 1979 and 1999 Constitutions vests the legislative powers of the Federal Republic of Nigeria in the National Assembly, and the legislative powers of each state in the House of Assembly of that state. Apart from these constitutionally established legislative bodies, no other person or body can validly make or unmake any law in the country.

Law making involves the determination and declaration of policies in the form of legislative enactments, whereas executive functions call for the application or implementation of the policies contained in the laws made by the legislature.

Definitions

It is very difficult to give any precise definition of the expression ‘delegated legislation.’ It is equally difficult to state with certainty the scope of such delegated legislation. Mukherjea, J. rightly says: ‘Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists…’

According to Salmond, legislation is either supreme or subordinate. Whereas the former  proceeds from sovereign or supreme power, the latter flow from any authority other than the sovereign power, and is, therefore, dependent for its existence and continuance on superior or supreme authority.

Delegated legislation, thus, is a legislation made by a body or person other than the Sovereign in Parliament by virtue of powers conferred by such sovereign under the statute.

A simple meaning of the expression ‘delegated legislation’ may be given as: ‘When the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is called delegated legislation.’

Legislation itself has been defined as:

“A law passed by Parliament or other law maker such as decree or edict or a military government.”

“legislation is the process of passing a law. Many laws made by parliament may contain a provision, empowering the authority that will administer the law to make further laws or regulations to enable it carry out its functions. The laws made by parliament is known as the primary or parent law, while the rules and regulations made by the administrative authority under the power to make law delegated by parliament is known as subsidiary legislation or delegated legislation”

It has also been defined as:

“The rules and regulations made by any person or body authorized to do so by an Act of the legislature.”

All acts of delegated legislation are made under the authority and with reference to the conditions laid down in the parent Act. The court emphasized this point in the case of Williams

1. Dr. M.A. Majekodunmi (1962) W.R.N.L.R 174 at p. 178 when it held that:

“the fact is that the laws of Nigeria begin with the primary laws passed by the legislature itself, and then go to give the subsidiary legislation made by persons or bodies authorized by the legislature to supplement its enactment”

Delegated legislation is law made by an administrative agency. Such subsidiary legislation comes in the form of rules, regulations, byelaws, policy decisions, directives, etc. It is  important to note that the concept of ‘subordinate legislation’ implies the existence of the beneficiary and  the benefactor of the power or authority to make subordinate legislation. This  is another way of saying that the beneficiary of the power to make delegated legislation occupies a position lower than that of the benefactor. Thus, the benefactor is the repository or embodiment of power, part of which power he donates or cedes to the beneficiary.

Delegation of Power

Delegated legislation is a consequence of the delegation of powers. Put differently, the authority of an administrative agency to make or enact delegated legislation emanates from the power delegated to it by the Constitution or an enabling statute. According to Black’s Law Dictionary, delegation of power is “a transfer of authority by one branch of  government  to  another  branch or to an administrative agency.” In other words, delegation of power is the vesting of the authority of law making in a governmental agency. The power is delegated by someone who or an institution which ordinarily could exercise it himself or itself but, because of some contingencies, decides to grant that power to a subordinate. The question may then be asked: who is the donor of the power that is exercised by administrative agencies?

Generally, donation of power is used in two senses: constitutional sense and administrative sense. Constitutionally, the donor is the people of a country because it is in the people that sovereign power resides. Thus, S. 14(2)(a) of the CFRN 1999 declares that “sovereignty  belongs to the people of Nigeria from whom government through the Constitution derives all powers and authority.” The people exercise this sovereignty through their elected or appointed representatives. And what is the relationship between the people and the Constitution? The Preamble to the Constitution emphatically explains the relationship when it declares that “WE THE PEOPLE … make, enact and give to ourselves this Constitution.” Although the Constitution may not pass  the autochthony test,  the  presumption remains that  the people are the authors of the Constitution, and the donors of power. You should note that the people confer delegated power either through the constitution or through statutes.

Administratively, the legislature is the donor of power. In other words, it is the National Assembly of the Federation or the House of Assembly of a State that vests power in administrative agencies. It is in this latter (administrative) sense that we are mainly concerned.

But  before we proceed, it must be stated – at least for conceptual clarity – that the legislature    is the direct donor and the citizens the indirect donors of power exercised by administrative agencies.

Nature and Scope of delegated legislation

Delegated legislation means legislation by authorities other than the Legislature, the former acting on express delegated authority and power from the later. Delegation is considered to be a sound basis for administrative efficiency and it does not by itself amount to abdication of power if restored to within proper limits. The delegation should not, in any case, be unguided and uncontrolled. Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects which is to be exercised by them. It is only a nonessential legislative function that can be delegated and the moot point always lies in the line of demarcation between the essential and nonessential legislative functions. The essential legislative functions consist in making a law. It is to the legislature to formulate the legislative policy and delegate the formulation of details in implementing that policy. Discretion as to the formulation of the legislative policy is prerogative and the function of the legislature and it cannot be delegated to the executive. Discretion to make notifications and alterations in an Act while extending it and  to effect amendments or repeals in the existing laws is subject to the condition precedent that essential legislative functions cannot be delegated authority cannot be precisely defined and each case has to be considered in its setting. In order to avoid the dangers, the scope of delegation is strictly circumscribed by the Legislature by providing for adequate safeguards, controls and appeals against the executive orders and decisions. The power delegated to the Executive to modify any provisions of an Act by an order must be within the framework of the Act giving such power. The power to make such a modification no doubt, implies certain amount of discretion but it is a power to be exercised in aid of the legislative policy of the Act and cannot :

1. travel beyond it, or
2. run counter to it, or

• certainly change the essential features, the identity, structure or the policy of the Act

Under the constitution of India, articles 245 and 246 provide that the legislative powers shall be discharged by the Parliament and State legislature. The delegation of legislative power was conceived to be inevitable and therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of constitution of India lays down that law includes any ordinances, order bylaw, rule regulation, notification, etc. which if found in violation of fundamental rights would be void. Besides, there are number of judicial pronouncements by the courts where they have justified delegated legislation. For e.g. In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhaiv.

State of Bombay, air 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR 1977 J&K 4.

While commenting on indispensability of delegated legislation Justice Krishna Iyer has rightly observed in the case of Arvinder Singh v. State of Punjab, AIR A1979 SC 321, that the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislature may not get off to a start if they must directly and comprehensively handle legislative business in their plentitude, proliferation and particularization Delegation of some part of legislative power becomes a compulsive necessity for viability.

A provision in a statute which gives an express power to the Executive to amend or repeal any existing law is described in England as Henry viii Clause because the King came to exercise power to repeal Parliamentary laws. The said clause has fallen into disuse in England, but in India some traces of it are found here and there, for example, Article 372 of the Constitution authorizes the president of India to adopt pro Constitutional laws, and if necessary, to make such adaptations and modifications, (whether by way of repeal or amendment) so as to bring them in accord with the provisions of the Constitution. The State Reorganization Act, 1956 and some other Acts similar thereto also contain such a provision. So long as the modification of a provision of statute by the Executive is innocuous and immaterial and does not effect any essential change in the matter matter

Classification of Delegated Legislation

Delegated legislation – which is synonymous with subordinate legislation or administrative legislation may be classified in either of two ways: classification according to nomenclature  and classification by procedure.

Classification by Nomenclature

Apart from being referred to by such appellations as rules or regulations, delegated legislation may be called by other names such as order-in-council, byelaw, direction, directive, order, etc. Generally, the existence of such wide vocabulary enables us to enjoy the benefit of variety.

But, because all these words do not mean one and the same thing, there is the need to separate the wheat from the chaff, at least, in order to achieve some consistency. Nigeria has not made any attempt to specifically define the terms. The Donoughmore Committee in the UK recommended that:

The expression ‘regulation,’ ‘rule’ and ‘order’ should not be used indiscriminately in statutes to describe the instruments by which the law-making power conferred on ministers by parliament is exercised. The expression ‘regulation’ should be used to describe the instrument  by which  the power to make substantive law is exercised, and the expression ‘rule’ to describe the instrument by which the power to make law about procedure is exercised. The  expression ‘order’ should be used to describe the instrument of the  exercise of  (a)  executive power, (b)  the power to take judicial and quasi-judicial decisions.⁶³

However, it should be noted that, in the great majority of cases,  Nigerian  statutes  make do with ‘rules’ or ‘regulations.’ Therefore, apart from academic reasons, the UK recommendation may not be of practical relevance in delegated legislating in Nigeria.

Classification according to Procedure

The CFRN 1990 or an Act of the National Assembly usually confers power on the administrative agency or the head thereof to make order,  regulations,  directions,  rules,  etc. See, for instance, SS. 170 and 206 CFRN 1999 which respectively delegate power to  the Federal Civil Service Commission and State Civil Service Commission; and S. 305 which empowers the President in the event of a state of emergency. You may also need to see SS. 236, 248, and 254 of the CFRN 1999 which respectively authorize  the  Chief  Justice  of  Nigeria (CJN), the President of the Court of Appeal and the Chief Judge of the Federal High Court to make rules for regulating the practice  and  procedure of their various  courts.  Note  that S. 42(3) of the CFRN 1979 (which is in pari materia with S. 46(3) of the CFRN 1999, gives power to the CJN to make rules with respect to the practice and procedure of the High Court. By virtue o the provision, the CJN made the Fundamental Rights (Enforcement Procedure) Rules 1979.

SELF ASSESSMENT EXERCISE 1

1. Examine the history of delegated legislation
2. Legislation or delegated legislation has the same status.

Delegated Legislation under the CFRN 1999

The powers of the three arms of government – the legislature, the executive and the judiciary

– are enumerated in SS. 4-6 of the CFRN 1999. Of these, the only arm  that is competent to  make law for the Federation or any part  thereof is  the Federal  Legislature,  otherwise known  as the National Assembly – which comprises the Senate and the House of Representatives – and States Legislatures, otherwise known as Houses of Assemblies. Each of the 36 States has a House of Assembly. Thus, S. 4 of the CFRN 1999 provides, inter alia, as follows:

1. (1) The legislative powers of the Federal Republic of Nigeria shall be vested  in  the  National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution…

• The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State
• The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters….

Noteworthy is the fact that, apart from express delegation of power contained in the body of the CFRN, it is in this law-making arm that the competence to delegate legislative power to administrative agencies resides. Deriving its power from the CFRN, the Federal or State legislature enacts Acts or Laws, as the case may be, and,  depending  on  the  occasion, empowers or authorizes the head of the relevant agency to make rules or regulations  for efficient operations of the enabling Act or Law as he may deem fit. Some of the donees of  power could be the President, Ministers, Governors, Ministers, Commissioners, Heads of Departments, Local Government Councils, Statutory or Public Corporations, Special Boards, Professional Bodies, etc.

Though formally a capitalist State, Nigeria’s economy is still centrally organized, that is, it is government-controlled. The direct effect of this is that the government involves itself in so  many activities – such as education, agriculture, science and technology, arts  and  culture, sports, etc – touching on the lives of the people. In so doing, the legislature has to enact laws which, amongst other things, establish agencies. Such agencies are invested with the:

• Power to effect the objects of the enabling Statute;
• Rule-making powers to make delegated legislation; and
• Quasi-judicial powers, for example, powers to consider the application or representation of interested parties in the issuance of permits or licences.

In invoking any or all of the powers given them, administrative agencies make rules and regulations binding on persons, and the liberties and estates of persons coming within their spheres of influence. There is no gainsaying that the powers available to these agencies are enormous. But  can’t we do without delegated  legislation?  With the doctrines of rule of law  and separation of powers, can a responsible government not deliver the goods and services to the people?

Because of the invaluable roles that administrative agencies perform, criticism of their existence has been replaced with the argument for the limitation of their powers in order to check abuses. Thus, the 1932 UK Report of the Committee on Ministers’ Powers presented to the Parliament regarding delegated legislation stated, inter alia:

We do not agree with those critics who think the practice of delegated legislation is wholly bad. We see in it definite advantage, provided that statutory powers are exercised and the statutory functions performed in the right way. But  risks  of  abuse are incidental  to it, and we believe that safeguards are required, if the country is to continue to enjoy the advantages of the practice without suffering from its inherent dangers. But in truth whether  good  or  bad  the  development of the practice is inevitable.

The inevitability of administrative legislation certainly resonated in the Nigerian case of

Williams v. Majekodunmi (supra) where, amongst other things, Bairamian, F.J. said that:

“The volumes of our laws begin with the primary laws passed by the legislature itself, and go onto give the subsidiary legislation made by a person or body authorized by the legislature to supplement its enactments. The convenient method of legislation has been in use over the years, and there are specific provisions in the Interpretation Act, which regulate the making and effect of subsidiary legislation. It is a fair inference that everyone who assisted in the framing of the constitution, and in particular the legal advisers who attended the conference, were all aware of this method of legislation, and there was no  intention  to  require  that  every bit of legislation made after independence had to be made by the legislature itself, whether Federal, Regional or else it would be of no effect…”

SELF ASSESSMENT EXERCISE 2

1. Evaluate the scheme of delegated legislation under the CFRN 1999

 CONCLUSION

Before the doctrines of rule of law and separation of power,  the  edifice  of  delegated  legislation cannot stand. But because of the utility of the participation of  administrative  agencies in legislation process, delegated legislation has become an inevitable concept in governance. The reality of delegated legislation is manifest in the saying that it takes two to tango, the two here being the donors of power and the donees of power. The donors are ultimately the people who donate such power to administrative agencies –  the  donees  of  power – through the media of the Constitution and the people. You should note that the relationship between donors and donees is that of the superior and the inferior, the master and the servant. Thus, the donee accepts to  exercise the power so  given subject to the conditions    of grant stipulated by the donor.

Against the backdrop of the history of delegated legislation, which we have traced beyond the shores of this country, delegated legislation has been well captured under the Nigerian legal system through constitutional provisions and statutory enactments. While the former derives directly from the CFRN 1999, the latter emanates from the  legislative  activities  of  the National Assembly at the Federal level and States Houses of Assembly at the state levels.

 SUMMARY

In this Unit, we considered delegation of power upon the basis of which we examined delegated legislation. We equally looked at the historical antecedents before we dwelt on  its manifestations in the Nigerian legal system.

 TUTOR-MARKED ASSIGNMENT

1. Assess the merits or demerits of delegation of powers through the Constitution and Statute.

REFERENCES/ FURTHER READINGS

1. F. Garner & B.L. Jones, Garner’s Administrative Law (London: Butterworths, 6th Ed., 1985).
2. F. Yerima & B. Abegunde (Ed.), Essays on Administrative Law in Nigeria (Ado Ekiti: Petoa Educational Publishers, 2006).
3. William Wade & Christopher Forsyth, Administrative Law (Oxford, UK: Clarendon Press, 1994).