Delegated Legislation

Delegated legislation is a variant of rule making, and it has been the practice of Law making bodies to delegate law making duties to legislative organs. The law emanating from such delegation of powers is called delegated legislation. Delegated legislation can be defined as the legislation by some persons or body of persons under statutory authority given to that person or body of persons by statute. The empowering or enabling law has the same force as delegated or subsidiary legislation.

For Delegated Legislation to be valid, the power must be delegable. Some duties are not delegable, e.g. Judicial functions, duties requiring personal performance, etc. The power to make law must also be properly delegated. It must also be exercised by appropriate officers. For instance, in the case of AG of Kaduna State v Hassan, the Nolle Prosequi entered by the Plaintiff was held to be a nullity because the Attorney General did not delegate the duty to him.

Types of Delegated Legislation

1. Regulations: Administrative agencies and executive bodies often have the powers to make legislation on matters of wide general importance. Regulations are made for smooth running of the organization. Sometimes, the powers to make laws are delegated by the Constitution. See section 148(1), section 193(1), etc.
2. Rules: The power to make rules may be delegated to executive organs as subsidiary legislation under the primary act for prescription of procedure. For instance, see section 46(3), which gives the Chief Justice of Nigeria the power to make rules in respect of Justice administration and pursuant to that, he has made rules of court and also, we have the Fundamental Human rights enforcement rules under which we have rules relating to the enforcement of Human Rights.
3. Order: This is usually employed to bring into effect some specific or general intendment of the law. A good example is the power conferred on the appropriate authority to, by order, make such modifications in the wordings of any existing law as he or she considers expedient to bring that law into conformity with the provisions of the constitution.
4. Statutory instruments: This is used to generally denote exercise of rule making power derived from an enabling statute. For example, such may be published as S. I No 1 of 2011
5. Administrative Circular, directives and guidelines: They are usually employed by the administration in order to ensure that discretionary powers vested in public authorities may be exercised by officials in reasonably uniform and standardized manner.
6. Bye-Laws: This has been defined as an ordinance affecting the public or some portion of the Public. Most of the laws made by Local governments are bye-laws.

Methods of Delegation

There is no general pattern of statutory procedure laid down to be followed by the Legislature in the delegation of rule making power or any power by the enabling statute. There are many different methods the legislature can choose to delegate its law making powers identified by Iluyomade and Eka as follows:

1. Simple delegation of power
2. Enumeration of subject matter for the exercise of delegated legislation
3. Delegation conditioned on Publication
4. Delegation subject to laying before the legislature
5. Delegation subject to confirmation or approval by or consultation with the executive or other authority
6. Delegation coupled with power to sub-delegate

Validity of Delegated Legislation

(Delegatus Non Potest Delegaree)

The above latin maxim basically means there is no further delegation of powers allowed except with the authority of the delegator of that power in the first place as was stated in the case of Garba v FCSC (1988). For Delegated Legislation to be valid, it must be delegable. Furthermore, it must have been granted by the initial delegator, as stated in the case of AG Kaduna v Hassan stated above. Also, there must be an effective communication of delegation as was put in the case of Unipetrol v Edo State Board of Internal Revenue. Next is Consultation, whereby the person who has the power delegated to him may be required to consult with certain bodies either named or generally, before exercising the power to legislate.

Control of Delegated Legislation

1. Legislative control: It may take either of the following forms i.e. there may be special requirements in the primary legislation stipulating:
   • That any delegated legislation made by an administrative agency must be laid before the parliament before it can be valid
   • Laying until the National Assembly declares the legislation valid
   • Laying subject to affirmative resolution by the National Assembly
   • That the National Assembly can repeal the legislation.

Generally, two broad methods of legislative control are well known. The Control through the Enabling Act and Control through the various legislative committees.

2. Executive control: In order to avoid the danger of unlawful exercise of the power of delegated legislation, the Executive itself directs and supervised its law making powers. The Federal Executive Council meets periodically where they perform oversight functions on executive agencies and evaluate policies of executive agencies. The actions and laws of these agencies are subject to supervision also by their respective ministries. Indeed, the foremost method of controlling delegated legislation by the Executive is its ability to appoint and remove the members of the statutory bodies and corporations.
3. Judicial control: This is the most common type of control, particularly when occasioned by private citizens. What this means is that whenever an administrative body makes a rule, the people can ask the courts to review it. See section 6 of the 1999 constitution. An aggrieved individual is empowered to check delegated legislation through the Judiciary.

Criticisms of Delegated Legislation

1. Delegated legislation is not often published.
2. Delegated legislation is not often expressed in precise language of the law.
3. It contradicts the doctrines of Rule of Law and Separation of Powers.
4. Administrative powers are too extensive.
5. Administrative agencies possess too much discretion.
6. Emergency regulations often violate Human Rights.