Meaning, Types, Merits and Demerits of Delegated Legislation for SS 1

Delegated legislation

Performance Objectives

By the end of the lesson, students should be able to:

1. explain the meaning of delegated legislation;
2. discuss the forms of delegated legislation;
3. examine the control of delegated legislation;
4. analyse the merits and demerits of delegated legislation.

Meaning of Delegated Legislation

Delegated legislation is the law, rule, or regulation made by executive authorities, administrative bodies, local governments, or public corporations under the power granted to them by an Act of Parliament.

The legislature is the primary organ of government constitutionally empowered to make laws for the state. However, due to the increasing complexity of modern governance, the legislature cannot draft every single detail of every law. Consequently, parliament passes a broad law known as an “enabling Act” or “parent Act.” This Act outlines the general principles of the law and delegates the authority to fill in the specific details and administrative procedures to other bodies, such as ministers, government departments, and local authorities.

Laws made through this process are subordinate to the parent Act. If any delegated legislation conflicts with the enabling Act or the constitution of the country, it can be declared invalid by a court of law.

Forms of Delegated Legislation

Delegated legislation takes different forms depending on the authority making the law and the purpose for which the law is made.

The main forms of delegated legislation are:

1. Statutory Instruments (Orders, Rules, and Regulations): These are laws made by ministers, commissioners, or government departments to implement the provisions of an Act of Parliament. For example, the Minister of Health can issue regulations concerning public safety during a health crisis, or agencies like the National Agency for Food and Drug Administration and Control (NAFDAC) can issue specific guidelines for food packaging.
2. Bye-laws: These are laws made by local government councils or public corporations to regulate affairs within their specific areas of authority. For instance, a local government council in Nigeria can make bye-laws regarding market stalls, sanitation, or parking fees. Similarly, public corporations like the Nigerian Railway Corporation can make bye-laws to govern the conduct of passengers on trains.
3. Orders-in-Council: These are laws made by the head of state or the president in council (the cabinet) under special powers granted by parliament. They are often used to give effect to international treaties, regulate government departments, or handle matters of national security.
4. Rules of Court: These are regulations made by the judiciary, specifically by heads of courts such as the Chief Justice of Nigeria or the Chief Judge of a State. These rules govern the procedures, fees, and operations within the court system to ensure the smooth administration of justice.
5. Proclamations: These are official public announcements made by the President or a State Governor under statutory powers. Proclamations are used to declare a state of emergency, announce public holidays, or summon and dissolve the legislature.

Control of Delegated Legislation

Because delegated legislation is made by unelected civil servants and administrative bodies rather than elected representatives, there is a risk that these powers could be abused. To prevent tyranny and protect the rights of citizens, various mechanisms are used to control and monitor delegated legislation.

The primary methods of controlling delegated legislation are:

1. Legislative Control: The legislature retains ultimate authority over the powers it delegates. It can control delegated legislation by amending or repealing the enabling Act. Parliament can also require that any regulation made by a minister must be laid before the house for approval through either an “affirmative resolution” (where the regulation must be voted on to become law) or a “negative resolution” (where the regulation becomes law unless parliament votes to reject it within a specified period). Special legislative committees are also set up to scrutinise subordinate laws.
2. Judicial Control: The courts play a vital role in checking the abuse of delegated power. If an administrative body makes a law that goes beyond the powers granted to it by the enabling Act, the court can declare the law null, void, and of no effect. This legal principle is known as the doctrine of ultra vires (beyond powers). The courts can also invalidate delegated legislation if the procedure used to make it violated the rules of natural justice.
3. Executive or Administrative Control: The executive branch, through the president, governors, or cabinet, exercises internal control over administrative agencies. The president can supervise, modify, or withdraw the law-making powers delegated to ministers and heads of government departments.
4. Public Opinion and the Press: Public criticism, media reports, and pressure from interest groups can force the government to withdraw or amend unpopular regulations. If a minister proposes a regulation that faces strong public resistance, the executive may choose to modify it to maintain public support.
5. Prior Consultation: Many enabling Acts require administrative bodies to consult with relevant professional associations, trade unions, or interest groups before drafting and implementing regulations. This ensures that the views of those who will be affected by the law are considered.

Merits of Delegated Legislation

Delegated legislation is an essential tool in modern governance, offering several advantages to the state and the legal system.

The main merits of delegated legislation include:

1. Saving Parliamentary Time: The legislature has a heavy workload and limited time. By delegating the task of drafting detailed rules and regulations to administrative bodies, parliament can focus its attention on debating and passing major national policies and primary laws.
2. Handling Technical Matters: Modern laws often deal with highly technical subjects such as aviation, nuclear energy, environmental protection, and medicine. Members of parliament are generally politicians who may not possess specialised knowledge in these fields. Delegated legislation allows experts and civil servants in government agencies to draft precise rules for these technical areas.
3. Flexibility: Unlike Acts of Parliament, which require a long and rigid legislative process to amend, delegated legislation can be easily updated, modified, or repealed to meet changing economic, social, or technological circumstances.
4. Emergency Situations: During crises such as wars, natural disasters, or pandemics, the government must act quickly. Delegated legislation allows the executive to issue immediate orders and regulations to handle emergencies without waiting for the legislature to convene and debate a bill.
5. Addressing Local Needs: Local government councils understand the unique problems of their communities better than the national legislature. Bye-laws allow local authorities to make rules that directly address local issues, such as waste disposal and market regulation.

Demerits of Delegated Legislation

Despite its advantages, delegated legislation has several drawbacks that can affect democratic governance and individual liberties.

The main demerits of delegated legislation include:

1. Violation of the Separation of Powers: The principle of separation of powers states that the legislature should make laws, the executive should enforce them, and the judiciary should interpret them. Delegated legislation allows the executive branch to perform law-making functions, which concentrates too much power in one branch of government.
2. Lack of Democratic Control: Laws should ideally be made by elected representatives who are accountable to the citizens. Delegated legislation is often drafted by unelected civil servants and administrators who do not face elections and may not be responsive to public desires.
3. Inadequate Publicity: Acts of Parliament go through public debates, readings, and media coverage before they are passed. In contrast, delegated legislation is often passed quietly within government offices, meaning that citizens may be unaware of new laws until they are penalised for violating them.
4. Risk of Tyranny and Abuse: Because administrative bodies are given wide powers to make rules, there is a risk that officials may draft oppressive regulations that infringe on the fundamental human rights and civil liberties of citizens.
5. Complexity and Confusion: The sheer volume of rules, regulations, orders, and bye-laws produced by various government departments and agencies makes the legal system complex. It is often difficult for ordinary citizens and even legal practitioners to keep track of all active delegated laws.

Summary of Merits and Demerits

The table below provides a direct comparison of the advantages and disadvantages of delegated legislation: