Simply put, delegated legislation mean, laws made by bodies other than parliament such as government departments, local authorities professional bodies and the corporations. As legislation has remained the responsibility of the legislature so many people had wondered and criticized the existence of the practice of delegation.
As observed by an erudite scholar in his book,2 The power to legislate, the power to formulate policy” and cloth such policy with legality rests with the legislature”. In a democratic setting, such authority is reposed on the elected representatives of the people. This essay seeks to briefly survey the occurrence or circumstances and the attack to which delegated delegation has been subjected to in Nigeria, with a view to showing that despite the perception in some quarters that delegation is unnecessary or wrong, it’s existence serves useful purposes and has continued to do so in a democratic Nigeria. It therefore canvasses the view that delegated legislation may not always be evil as some may think. It is my opinion that delegated legislation where they exist ought to be examined each on its merit before the description of “evil” is ascribed.
The article first examines the preliminary matters relevant to the discussion ie, the legislature and it powers over delegated legislation and proceed to examine the different kinds of legislation and their sources and relevance as a matter of necessity. It shows that as much as some of the delegated legislation may well look unconstitutional they are extremely necessary in our shores and points out the dilemma which law and policy makers will face without delegated legislation”.
The legislature is the organ of government that is responsible for the peace, order and good governance of the Federation through its making of laws. The executive arm is charged with the implementation of the laws, while the judiciary possesses the power of adjudication of disputes by interpreting the laws. The legislature in any system of Government derives its legitimacy and authority from the constitution of the country. The constitution has been defined by, E.C.S wade and Godfrey Phillip3, as,”.
A document having special sanctity which sets out the frame work and the government function of the organs of government within the state and declares the principles by which those organs must operate.”
Form the foregoing definition, it is the constitution that gives delegation its legitimacy. The function of law making as performed by the legislature in Nigeria is contained in chapter 1, part, 1 section (4) of the 1999 constitution of Nigeria. The legislature is one of the fundamental concepts which give rise to the success of any civilian administration. The National Assembly has two distinct divisions namely, the senate and the House of Representative. This bicameral legislature is maintained, so as to ensure representation based on the division of states into senatorial districts and constituencies, and check on each other which prevents the passage of ill- considered legislation.
It has been postulated by Aristotle that man is a political animal. This postulation seems to be quite correct in the light of the observation of the school of thought stated below:
“Political institutions are the work of men. They owe their origin and their whole existence to human will. Men did not wake on a summer morning and find them spring up, neither do they resemble trees which once planted are growing. While men are sleeping on every stage of their existence, they are made what they are by voluntary human agency4”
Thus, what can be deduced from the above view of the school of thought by John Stuart Mill, is that any political institution like the legislature is a product of political struggle which has led to political and constitutional advancement.
The Black’s law dictionary defines the legislature as, “the department, assembly or body of persons that makes statutory laws for a state or nation”. The power vested in the legislature has been upheld in, Archbishop Olubunmi Okojie V. The Attorney General of Lagos State5. Where it was held that when interpreting the constitution the court must bear in mind that it is dealing with an instrument which controls and regulates the power and functions of government, controls the rights and obligations of the citizens and controls the peace and order of the society upon which the institution is supposed to operate”. The legislature therefore, can be seen as a bedrock of any system of government without which there will be abuse of powers within the organs of government. The role of the legislature which sets guidelines for the organs of government cannot therefore be over emphasized. Nigerian courts as in the case mentioned above recognize that the legislature (National Assembly) at the center and the state assemblies in the states has the right to legislate on every topic in the executive legislative list that no other body may legislate except, with the authority or delegation by the legislature.
It is therefore, the aim of this work to highlight the need for the law to amplify the necessity whereby many corporations carry out public functions within the limit of powers delegated to them. “Power to appoint and terminate appointments such powers need to be encouraged. It has thrived well in Nigeria in the past. It only needed to be garbed with legality.
Historical Development of the Practice of Delegated Legislation
The transferring of legislative power to other bodies by means of delegated legislation dates back to the sixteenth century in the case of the British parliament. In 1531, the statute of servers delegated to the commissioners of sewers, powers enabling them to plan drainage schemes and levy rates on landowners. Also, in 1539, parliament entrusted Henry (VIII) with wide powers to legislate by proclamations.
The modern type of delegated legislation started in 1834. The poor law amendment of that year authorized and required the poor law commissioners to make and issue from time to time as they should see the occasion.
“All such rules, orders and regulations for the management of the poor or the Government of workhouses and the education of the children therein, and for carrying this Act into execution in all other respects as they think proper”6
It is therefore very clear and understandable, that even in Britain that the tremendous growth of delegated legislation prior to the nineteenth and twentieth centuries was a sequel to the increase of the function of central and local governments.
Indeed, due to increased complexity of modern government and the tendency of the state to interfere more and more in the economic and social life of the community, the volume of delegated legislation has increased tremendously since world war 11. Similarly, just as the government had increased its volume of work to cover all spheres of life, parliament, has consequently not been able to cope with the volume of work. And so, a phenomenon had developed whereby most Acts of parliament, nowadays, consist of statements of general intention confirming upon the appropriate ministers, commissioners, or administrative bodies, the necessary powers to make laws on behalf of the parliament or National Assembly. It then mean, that the law making powers of the legislature have become delegable to subordinate law making bodies, which in their capacities as delegates of constitutional law making bodies make laws for various purposes as directed by the legislature. In some situations, the delegates of such power sub-delegate them to yet subordinate bodies, which also make binding enactments for purpose directed by the donor. From early times as I said earlier, there were instance of parliament granting the task of legislating in specialized fields to subordinate authorities.
For example in England, king James I made full use of this power with the result that in 1611, Sir Edward Coke was consulted by the kings council along with three brother Judges for an opinion on the legality of proclamations. And the determination has been regarded as the end of proclamations. It was held among other things that:7
1. The king by his proclamations cannot create any offence, which was not one before, for then he might alter the law of the land; in a high point for if he may create an offence where none is, upon that ensues fine and imprisonment.
2. That the king had no prerogative but what law of the land allows him.
3. That the king for the prevention of offences may by proclamation admonish his subjects that they keep the laws and not offend them upon punishment to be inflicted by law, the neglect of such proclamation aggravates the offence.
4. That if an offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it so.
The summary of the case of proclamation is that the king is the executive, and his business, the enforcement of existing laws (made by parliament) his prerogative is under the law and that parliament alone can alter the law, which the king is to administer. Also, after 1689, the Mutiny Acts in England delegated power to the crown to make legislation for the better government of officers and soldiers but in general, it was not until the period of social reforms in the nineteenth century that delegation of wide legislative power to government departments and other subordinate bodies granted peace meal as the need arose. Again, during the First World War, the defence of the Realm Acts granted power in very wide terms to government to make regulations for the conduct of the war. In the same period between the First and Second World War, lawyers became conscious of the wide legislative powers of the government departments. Then the committee on Ministers powers (1932) concluded that unless parliament was willing to delegate powers of law making, it would be unable to pass the kind or quality of legislation which modern pubic opinion required. The committee also drew attention to probable dangers of delegation and suggested the introduction of greater safeguards against abuse.
It is based on these that a standard argument for the phenomenon of delegated legislation has it that it is necessary for cases where the legislature cannot attend to matters in detail. Other groups and commentators on the issue agree that in emergency, the legislature should delegate legislative powers sufficiently to enable the executive deal with all issues of that moment.
A view was also held by an observer about the findings of the Committee on Minister’s powers (1932) as follows:
“I feel that in the conditions of the modern state which not only has to undertake immense new services but which before long may be responsible for the parliament delegating legislation and the power to make regulation instead of being grudgingly conceded ought to be widely extended and, new ways devised to facilitate the process.”
The forgoing summarizes the view widely held today all over the democratic nations that delegated legislation is desirable and also, inevitable.
The Nature of Delegated Legislation in Nigeria
Nigeria, has achieved considerable growth in democracy, economic output and sociological advancement. Since 1960, democratic development essentially implies the creation of a social order, which guarantees to every one maximum opportunity, productivity, self-fulfillment capacity, social justice and security. Social justice entails social development, that is, the social objective whose essence is the social democratization of the development process. At independence in 1960, Nigeria comprised of only three regions. After the attainment of republican status in 1963, it added a fourth region (Mid West Region.) the same Nigeria is now made up of thirty-six states and the Federal capital territory, Abuja. In accordance with the 1999 constitution, there are now seven hundred and sixty-eight local government councils and six area councils in Nigeria. These councils as well as the states are centers of development. They all have a share of the Federal revenue. These developments need organization and development of personnel apart from the legislature to meet expected intention of government. Again, this growth has given rise to a number of requirements to keep pace with the growth. Using the economic terminology, increase in the demand for the basic necessities of life in Nigeria for example, implies a commensurate increase in personnel and other basic requirements to keep the institutions of government through which those basic requirement of life get to the citizenry functioning. These are some of the chips, which make delegated legislation a sine qua non for good governance. The urgent need therefore, for an effective and successful governance of our country in this current dispensation has called for an increasing use and wider application of delegated legislation to assist our law makers for legislation to get to the wider spectrum of our larger society, and timely too. Government today is concerned with the guidance, protection and control of society and control is achieved in many nations by the formulation and determination of policies having legal consequences on members of the society. These policy decisions are expressed in legislative form and communicated to the society, as, legislation8
To buttress this point a look has to be made on the case of, Williams V. Majekodunmi9. In this case, the plaintiff’s freedom of movement was restricted under an emergency powers Act.10
On 29th May 1962 parliament of the Federation met in both Houses and resolved:
“That in pursuance of section sixty-five of the constitution of the federation, it is declared that a state of public emergency exists, and this resolution shall remain in force until the end of the month of December nineteen hundred and sixty two.”
There was later another resolution approving under section 5 of the emergency powers Act 1961, thirteen sets of Regulations including the Emergency Powers (Restricting orders) Regulations 1962 under which the defendant as the Administrator appointed for the emergency restricted the plaintiff’s movements to a distance of three miles from a certain address at Abeo Kuta.
The plaintiff claims inter alia that:
(a) The emergency powers Act 1961, or alternatively section 3 (1) thereof is ultra views; unconstitutional and void. It is clear according to the plaintiff that power to make emergency laws was conferred on parliament by S. 65 of the constitution of the federation which provides as follows:
(1) Parliament may at any time make such laws for Nigeria or any part thereof with respect to matters not included in the legislative list as may appear to parliament to be necessary or expedient for the purpose of maintaining or securing peace, order and good government during any period of emergency.
(2) Any provision of law enacted in pursuance of this section shall have effect only during an emergency. One reason why the plaintiff wished to have it declared unconstitutional was the provision of S. 65 (2) of the constitution of the federation, 1962, and which appeared on paragraph 11 of his statement of claim, that the Act was passed at a time when there was no emergency in existence; but that was a clear over sight on the part of the plaintiff and in law, ignorance of the law will not amount to an excuse for disobeying the law.
The other reason advanced by the plaintiff as given in (a) of that paragraph is that:
(a) The emergency powers Act 1961 under which the regulations were made is ultra vires the parliament, because it purports to delegate or abdicate the legislative powers of parliament to the Governor General in council and the said Act also purports to authorize the Governor–General in Council to delegate or abdicate those powers to the Administrator”.
This is delegated legislation at work. The court held that there is of course no abdication, for the legislature still has control under section 5 of the emergency powers Act11 to subsidiary legislation per se, there can be no objection. The decision of the court is so apt in the circumstances. It went further to say;
“If parliament chooses to go a step further and authorizes the subordinate legislator in his turn to authorise another person to do one thing or another again there can be no objection to that taken by itself. Suppose for example that the emergency is that the federation is at war, it would be desirable to conserve petrol for military operations and undesirable to expend it on frequent meetings of parliament-which would make it wise to have regulations made by the Governor General in Council and as action should be swift, it would be desirable to enable say, the Administrator of some remote parts of Nigeria to do what may be necessary in his area forthwith. There is nothing in section 6512 to differentiate between war and the other two “periods of emergency” and what can be done to meet the emergency of war can be done to meet any other emergency in so far as may be necessary or expedient”.
This is the nature of delegated legislation in this country and a perusal look at the volumes of our laws shows that our laws begin with the primary laws passed by the legislature itself and then go on to give the subsidiary legislation made by a person or body authorized by the legislature to supplement its enactments 13
This 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. There is a general understanding 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 that there was no intention to require that every bit of legislation made after independence had to be made by the legislature itself, whether Federal or Regional.
There are among others again, the case of Shannon and others. V Lower Mainland Diary products Board, Attorney General for British Columbia (Intervening)14 where the objection that it is not within the powers of the provincial legislature to delegate so called legislative powers to the lieutenant- Governor in Council or to give him powers of further delegation. This was set aside. This objection appears to their Lordship subversive of the rights which the provincial legislature enjoys while dealing with matters falling within the class of subjects in relation to which the constitution has granted legislative powers. The court went further to state that within its appointed sphere, the provincial legislature is as supreme as any other parliament, and that it is unnecessary to enumerate the innumerable occasions on which legislatures, provincial, Dominion and imperial, have entrusted various persons and bodies with similar powers to those contained in this Act15.
This powerful judgement disposed off the plaintiff’s contention that it is unconstitutional for parliament in the emergency powers Act 1961 to grant authority to the Governo-General in Council to make regulations and therein to empower another person to make rules and orders, provided of course that the matter is within parliament’s legislative power and its own law has effect in that matter. However, administrative legislation appears to be an inevitable trend particularly as modern government committed to some social and economic policies becomes more complex.
Delegates of Powers
1. Governors /Governors of states
2. Ministers, Commissioners and Heads of Departments
3. Local Government Authorities, Local Government Chairmen supervisors of works etc.
4. Statutory public corporations eg. Nigerian Electric power Authority (NEPA) Nigerian ports Authority (NPA) etc; etc.
5. Special Boards and Commissions.
6. Industrial and Professional bodies eg. Trade Unions, the Nigerian Bar Association. (NBA) The Nigerian medical Association (NMA)
7. Regulatory Agencies eg. The Public Service Commission ete
Examples or/ Methods of Delegation to make Subordinate or Delegated Legislation
1. Section 21, Banking Act. Cap 19 laws of the Federation and Lagos 1958 (now replaced by the Banking Decree N0. 3 of 1966) provides inter alia, that the minister may make such regulations as may be required from time to time for carrying into effect the provisions of this Act. In S. 2. of the Act, “Minister” is defined as the Minister charged with responsibility for matters relating to Banking in the Federation, or a person acting under his direction or on his behalf as was held in, Merchant Bank Ltd v. Federal Minister of Finance16.
2. Section 1, explosives Act 1964–provides that the Minister responsible for explosives may by regulations make such provisions with respect to explosives as he considers expedient for the purpose of maintaining and securing public safety.
3. Section. 7 (1) the Nigerian Research Institute Act 1964 empowers the council (set up under the Act) to make regulations inter alia, for the general purpose of the Act and the discipline of staff.
4. Section 23 (1) Nigerian council for scientific and industrial Research Decree N0.83 1966, S. 3 (1) Emergency powers Act. 1961.
5. Section 122. Labour Code Act cap 90 LFN and Lagos 1958
The Practice of Delegated Legislation in Nigeria
The 1999 constitution provides that a House of Assembly may appoint a committee of its members for any special or general purpose as in its opinion would be better regulated by means of such a committee, and may by resolution, regulation or,-otherwise as it thinks fit delegate any function exercisable by it to any such committee.17
A house may on its own appoint either a standing committee or adhoc committee or both. Despite the appointment of committees to assist her, the legislature may go out of her way to appoint administrative bodies to assist her in the making of laws. When democracy and delegation are properly allowed, the functions of the National Assembly are given the fullest focus and support in order to nurture and develop democratic values and ethics as a way of life in a society.
In Nigeria, the issue is not whether delegated legislation is on a sound- foot, but whether its sprang up from an enabling statute. The committee of Ministers powers 1932, expressed a principle basically similar to the standard requirement. According to the committee18
“The precise limits of a law making power which parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it.”
The enabling legislation must therefore contain a framework within which the administrative action must operate, otherwise, the legislature is in effect abdicating its function as primary legislator to the administrator,19
When electing members of the legislature, the common man often feels that he is electing a body that would make laws to regulate his conduct. He never anticipates that such laws will thereafter be made by the executive.
It is therefore most disappointing to him to observe subsequently that laws under which he live are made and executed by the same body. He sees such a development either as an abdication of authority or powers by the legislature or a usurpation of legislative powers y the executive. This is not so. The executive in Nigeria has continued to emphasise that it has acted not as a law maker but as an agent of the law maker, and that it never makes laws, unless it is expressly and constituently empowered to do so. According to the executive, whenever it makes laws, its enactments known as rules regulations orders, direction etc, generally take effect subject to the provision of any law made by the legislature. The Federal Supreme Court in 1962 was very apt to put the situation in Nigeria straight and clear to all and sundry in the case of Williams V. Majekodunmi20
Also, another look at the Nigeria statute books and gazettes has revealed that subordinate or administrative legislation are increasing at a tremendous rate. For example, volume 10 of the laws of the Federation of Nigeria and Lagos, (1958 Ed) as amended contain about 35 subsidiary legislations. If by 1958 these are the number so far gazetted then from 1958 to date, one would imagine the number of many rules or regulations and orders issued by various government department and Ministers in the name of circulars, directives, memoranda, and so forth. However, administrative legislation has been an inevitable trend in Nigeria, particularly as modern government’s commitment to social and economic policies are becoming more complex.
To buttress this fact, the learned Supreme Court judge in the case of A.G Lagos state V. Eko Hotels Ltd had this to say…
“The dichotomy between administrative and judicial or quasi judicial tribunal of inquiry has long been consigned to the rubbish heap of legal history, and that the new trend is that such administrative bodies however described must obey the rules of natural justice in the performance of their duties. They have the duty to act fairly”.
This is delegation at work. Again, in the case of A.G Abia. V. A.G Federation21,
“On the interpretation of S. 162 of the 1999 constitution, the functions and responsibility of the state government to maintain a special account in the name and style of state joint local government account, justice Niki Tobi stated that a state can decide to do so by the establishment of a committee or by any other means” I see that some states have established committees for the purpose of maintainance of the special account. That is in order.”
This is delegation at work. In another land mark decision in the case of, Burma and HAWA v. Sarki,22 the plaintiffs claim against the defendant in his capacity as the Federal Minister of internal Affairs, a declaration that the order published as LN 20 of 1961 ordering them to leave and remain outside Nigeria was invalid, illegal and unconstitutional, and an injunction restraining the defendant, his servants and or agents from interfering with their right to return to and remain in Nigeria, Justice Udo Udoma contended that among the issues, the main question was whether the Minister had the power to make orders on deportation. It was held that;.
“The Governor General in the exercise of his constitutional powers in line with the Nigeria (constitution) order in council, 1960, having assigned the responsibility for aliens and citizenship to the Minister of Internal Affairs, it seems to me that it was competent and not unconstitutional for the Minister of Internal Affairs to have exercised the powers for the deportation of aliens. I am of the opinion that once power is prescribed to be exercisable by a minister without any reference to any particular Minister, and the Governor General assigns such powers to a particular Minister, such an assignment operations ipso facto to confer upon the Minister to whom the power has been assigned not only the right but the duty of exercising such powers..”.
Again, D C M Yardley in his book23 said that;
“Where an act of parliament provided that a government department, local authority, the crown, or any individual or body shall have the force of law, that statute is regarded as laying down a method of making delegated legislation.”
According to the words of Prof. Nwabueze,24 delegated power implies that the delegation may be revoked at any time by the donor, and that while it lasts, the exercise of the power must be strictly within the terms of the delegation”. For example, the Anambra State Government recently adopted a more dynamic approach to the exercise of delegated legislation as contained in the laws of Anambra State25 just=like=the
Lagos State Government which has codified its laws 26
The Anambra State Administrative law provided for delegation of legislative powers which as has been mentioned were vested in the state legislature by the constitution27. Therefore every delegation of such power shall clearly define the agency that is, the donor, the form or the procedure to be adopted and the circumstance in which the power shall be exercised. That means in practical terms that the fulfillment of all procedural requirement in the making and practice of delegated power shall be as prescribed by law or the, relevant enabling statute shall be a condition precedent to the making thereof. Any delegation carried out without the fulfillment of such conditions shall not take effect until there is compliance28
Finally, delegated legislation is now a well recognized method of legislation in common law countries and basically those countries under democratic government. Nigeria as one of them inherited this trend from her erst–while colonial administrators though the concept has its origin from common law. It is now based entirely on statutes. Though, it is applied in civil and military administration, it tends to blossom under civilian regime or administration.
Notwithstanding, delegated legislation is now popularly practiced in many system of government. Its exercise calls for extreme caution in view of the dangers inherent in its abuse. Many modern enabling statutes recognize these dangers and abuses and make provisions for safeguards.29
From this arrangement therefore, the constitution seems to have recognized without actually stating it, the doctrine of separation of powers as enunciated by Montesquieu, and which had a great deal of influence on the framers of the American constitution from whom Nigeria borrowed a leaf. The justification of the doctrine is that it acts as a bulwark against tyranny. However, it is not a well established principle of law; but also one of the pillars upon which the above doctrine is built30,An agent or delegate cannot validly sub-delegate its powers. This is usually expressed by the Latin maxim –Delegatus non-potest delegare, i.e., an authority given to one cannot be delegated without the authority of the principal. In other words power given to an agent cannot be delegated to another-delegate-potestas non potest delegare. This principle was emphasized in the Philadelphian case of, Lock’s Appeal where the court declared:
“That a power conferred upon an agent because of his fitness and the confidence reposed in him cannot be delegated by him to another is a general and admitted rule.”
Legislatures stand in this relation to the people whom they represent. Hence, it is a cardinal principle of representative government that the legislature cannot delegate the power to make laws to any other body or authority. However, the legislature can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own actions depend.
To deny this would be to stop the wheel of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law making power and must, therefore be a subject of enquiry and determination out side the house of legislature”.
The maxim, delegatus non-potest delegare, originally, a principle of private law of agency, has come to play an important part in public law theory. In Britain, however the maxim against delegation can be applicable only to the question of sub-delegation within the administration and not to that of delegation by the legislature –itself. For it is basic in British constitutional theory that parliament is the source of legislative power and not a mere delegate with regard to such power. No authority in England is capable of challenging the United Kingdom parliament on any law. Therefore if parliament vests law making in any body or authority, it cannot be questioned in any court of law. In the American as well as the Nigerian systems, on the other hand, the basis of government authority is delegation from some ultimate source of power.
“We the people of the United States, declares, the preamble to the Federal constitution, 1787, do ordain and establish this constitution”. In the same way the preamble to the 1979 constitution of Nigeria states “We, the people of the Federal Republic of Nigeria, do hereby make, enact and give to ourselves the following constitution”.
The legislative, executive and judicial branches in both the United States and Nigeria possess power only because it has been delegated to them by the people. It follows from the maxim against delegation that they must be the sole repositories of such power. If we apply this theory more specifically to legislative power, we see that under it, the National Assembly in Nigeria itself is only a delegate, it’s possession of legislative power stems form the delegation to it of such power in the constitution.
And as a delegate, the National Assembly cannot delegate any of its legislative authority to anyone else.
In its essentials, this approach is derived from John Lock who more perhaps than any other political philosopher influenced the framers of the American constitution and a fortiori, the Nigerian constitution. According to LOCKE31 In a passage often cited by American Jurists “the legislature cannot transfer the power of making laws to any other hands for it being but a delegated power from the people, they who have it cannot pass it over to another”
However, in the famous phrase of Cardozo J. in Panama Refining Co. V. Ryan. “If the doctrine of separation of powers were a doctrinaire concept to be made use of with pedantic rigor,” the rise of modern administrative agency would have been impossible in the American system. Sir, Carleton Allen has also asserted that if the separation of power doctrine had been applied in the United States in all its rigidity, the constitution would have proved unworkable. In his book,32 Allen said:
“Only a series of timely adaptations by the Supreme Court have prevented a principal sound in essence from becoming a kind of chronic lockjaw.
The Supreme Court’s view in this respect was well put in the panama case, (supra) thus:-
“Undoubtedly, legislation must often be adapted to complex conditions involving a host of details with which the National legislature cannot deal directly. The constitution has never been regarded as denying to the congress the necessary resources of flexibility and practicability, which will enable it to perform its function in laying down policies and practicability, and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply without capacity to give authorization of that, sort we should have the anomaly of a legislative power which in many circumstance calling for its exertion would be but, a futility”.
Under this sort of approach, the American Supreme Court has clearly adopted the view, that powers of delegated legislation can be vested in an administrative agency. When power is delegated it is not necessarily a law making power but power to fill the gaps and place the dots where necessary”. Where the legislature has mapped out clearly the goal of its enactment, it is left to the executive to fill the gap-where intelligible principles has been fixed and laid down by the legislature to guide the executive in the exercise of the powers delegated to it.
Limitations on Delegation
However, if the primary position of the congress or National Assembly is to be maintained, there must be limitations upon delegations of power. Chief justice Hughes in the Panama case supra aptly stated:-
“The constant recognition of the necessity and validity of such provisions and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained”.
Therefore in order to preserve the position of the congress or National Assembly as the primary legislator, delegation of power by it could not be inordinate. This means that the precise limits of the law making power which the congress or the National Assembly intends to confer upon an administrative agency must be defined in clear language by the statute which conferred it. In other words, the delegated power must be limited by standards. The discretion must not be so wide that it is impossible to discern its limits. There must instead be an ascertainable legislative intent to which the exercise of the delegated power must conform. If there is no precise standard in the enabling statute to limit delegations of power, the administrative agency, is in actuality being given a blank cheque to make law in the delegated area of authority.
In such a case, it is the agency, rather than the congress or National Assembly that is really the primary legislator.
The committee on Ministers powers, 1932 (supra) expressed a principle basically similar to the standard requirement. According to the committee,33
“The precise limits of a law making power which parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it. When discretion is conferred, its limits should be defined with equal clearness”.
The enabling legislation must therefore contain a framework within which the administrative action must operate, otherwise, the legislature is, in effect abdicating its function as primary legislator to the administrator34. It was precisely such an abdication of the legislative functions that the American Supreme Court held to be involved in the National Industrial Recovery Act 1933.
Above all, it is necessary to highlight in conclusion the prerequisites, which are the primary factors that hitherto gave credence to the practice. They are, pressure on parliamentary time, the technical nature of the subject matters to be discussed. Flexibility which is lacking in parliament is not good for elaborate and cumbersome matters which need flexible and prolonged house procedures. This is contrary to ministerial order or rules and regulations which are flexibly and speedily made.
There are also, unforeseen contingencies which made delegation inevitable since foot dragging on the floor of the house does not augur well for war time emergencies. In Nigeria, the Emergency powers Act 1961 was invoked in 1962 during the political crises in the Western state to solve the problem generated by the crises. This is delegation and such could not be realized on the floor of the house. Finally, there is the extensive executive discretion which is required because there is need to deal with issues as they arise. For instance, many modern commercial corporations and social welfare establishments demand extensive executive powers to attend to matters on their merit.
It is therefore in this respect that delegated legislation has evolved to ensure that such powers are available to the executive. It is also, very clear that in this regard delegated legislation does not run counter to the modern tenets of the rule of law, and the doctrine of separation of powers.
As a matter of fact, delegation of powers to administrative authorities is inevitable if the machinery of effective government is not to come to a standstill.
1 A.K. MGBOLU LL.B (Hons) LL.M (UNIZIK) B.L. (Lagos) Lecturer: Faculty of law. Ebonyi State University: Abakaliki.
2. Egwummuo: J,N Modern Trends in Administrative LAW. (2001) Rojoint commercial services ltd 1st ed. P. 134.
3 Wade and Godfrey Phillips, Constitutional Administrative Law. 2000 Oxford University Press. London 9th Edition.
4 John Stuart Mill: Representative Government: Macmillan London (1861) .P4
5.(1981) NCLR. Vol 2. p. 337
6 S. 15 Poor law amendment, Act, Britain, 1834.
7 (1611) 12 Co. Rep. 74.
8 S. (4) (b) 1999 Constitution of the Federal Republic of Nigeria.
9.1962. 1 ALL NLR 413.
10Act of 1965.
11 Act of 1961.
12Section 65. (Supra)
13Ewelukwa: D.O “Declaratory Judgements in Nigerian Public law. 8, Nigerian law Journal. 1974 P. 42
14 1938: AC 708 Page722 per Lord Atkin.
15See: Emergency powers Act. 1961.
17 Section 103 (1) 1999 constitution of the FRN.
18 See, Report 65
19 Dicey, A. V Introduction to the study if the law of the constitution, Macmillan London, 10th Edition, 1959
20 1962, I All. NLR. 413. FSC.
21 (2006) 27 NSCQR. 27
222006 28 NSCQR 161.
23 (1961) 2 All NLR 62
24Nwabueze, B. O, Military Rule and Constitutionalism: Spectrum Law Publishing Co. Ibadan, 1992.
25See University of Zambia Handbook 1971. p.1.
26 Cap 5. Revised Laws of Anambra State, 1991. vol. 1
27 Law of England (Application) Law. Cap 60. laws of Lagos state.
28 SS. 4 (6) Constitution of the Federation of Nigeria 1999.
29 S. 62. Constitution of the Federation of Nigeria 1999., also see AG. Bendel State V. AG. of Federation 22 ors. (191) All NLR pt. 11, 1
30 Report 65, Committee on Ministers powers (1932)
31 Garnar J.F Administrative Law Bulterworts, London 5th Edition 1979
32 293 US, 440. (1935).
33 Carletton Allen: Law and Orders: Stevens & Sons London 2nd Edition 1984
34 See, Report 65.