Control of delegated legislation: Delegation legislation is a facts and a necessity of morden governance and life. Delegation of powers or functions take place in the public sector, commercial sector and even in social settings. This was actually the reason why I wrote a comprehensive article, explaining the rationale for delegated legislation and why many legal scholars actually support it.
In Nigeria for instance, the president has ministers in different sectors of the country to support his administration. According, a Governor at the state level, has commissioners who assist him to carry out his executive duties. Delegation of functions or duties obtain in many areas of life. It reduces the workload of the person who has the authority or primary responsibility. This way, duties are not neglected and things get done.
In many countries of the world, the law actually provides for delegation of any function. However, the function or duty must be delegated appropriately and supervisory measures must also be put in place to avoid abuse of the powers.
In my last article on delegated legislation, i mentioned some of the problems of delegated legislation and I pointed out that despite those problems, delegated legislation is very necessary.
As a way of solving the problem and disadvantages of delegated legislation, many solutions and methods of controlling delegated legislation have be put in place to avoid abuse of delegated powers and to ensure the continuance of delegated legislation.
Today, we will be looking at the various ways to controlling delegated legislation to avoid abuse of powers and infringement on the rights to citizens. I enjoin you to read painstakingly as I tide you over!
Types of control over delegated legislation
Below are the modes of controlling delegated legislation:
- Legislative control:
- Executive control:
- Judicial control:
It is pertinent to note that when a particular power is delegated to an administrative agency, the legislature can revoke back that power at any time. In Anekwenze v. Aneke (1985) 1 NWLR Pt. 4 p. 771, one of the issues was whether the donor of power divest himself on the power when he donates the power to a delegate to act for himself.
The Supreme Court held that the rule is that an authority which delegates its power does not divest itself of the power delegated and therefore it has the power to revoke and resume his power and therefore should undertake the responsibility to supervise the delegates in its use for the general good of the society.
Therefore a donor of power as a general rule has the power to control the donee of the power or delegate in the use of the power. In this case, the Supreme Court cited with approval, the words of Lord COLERIDGE in Huth v Clarke 25 QBD 391:
“But delegation do not imply a denudation of power and authority. The word delegation implies that powers are committed to another person or body which are as rule, always subject to resumption by the power delegating it and many examples of this might be given. Unless therefore, it is controlled by statute, the delegating power can at any time resume its authority”
Now I will explain how the legislature can control delegated legislation. I enjoin you to read painstakingly so that will be able to understand the crux of this work.
Legislative control of delegated legislation:
Legislative control is exercised by the legislature or parliament. This is usually exercised by requirement of law that the proposed delegated legislation be laid before the parliament which may debate it, and nod its approval, reject amend, limit, expand, suspend its approval, or otherwise control or review the delegated power or delegated legislation.
Where the donee of the power is a sole administrator, the legislature may enlarge it by setting up a council or board to exercise the power to make rules or to consider and take action.
Delegated legislation may also be limited by Parliament prescribing rule making standards for the delegate of powers or by imposing Procedural standards on the administrative process, which a delegate of power or authority is obliged to observe. An instance is the Administrative Procedure Act 1946 of the United States of America which prescribes administrative authorities in rule making and in the exercise of delegated powers.
Executive control of delegated legislation:
Executive control over a delegate of power or the administrative law maker and his delegated legislation is usually by the executive arm of government or a higher administrative authority. It may be exercised in a number of ways including:
1. Exercise by the appoint or donor of the power to appoint or to fire the administrative law maker; done or appointee. This is the power to hire and to fire an unbecoming appointee. An appointor may remove the personnel or done of power and other appointees as the need arises. This is the power to hire and fire personnel.
2. Submission of the proposed rules or planned line of action to the relevant supervisory body or authority for his slighting, perusal, Consideration, approval, modification, suspension or outright rejection of same. Local government councils, for instance submit Bye-Laws to the Ministry of Local Government or the Governor as the case may be for approval before they take effect as laws.
3. Revocation of the delegated power. In the case of Ondo state university v Falayan, the issue of delegation of powers was examined at length, and the Supreme Court held that power to delegate functions also includes a power to revoke such delegation. Also Megaw LJ said in Western Fish Products v Penwith District Council, that a statutory power to delegate will normally include a power to revoke the delegation when desired.
Judicial control control of delegated legislation:
Delegated legislation is subject to the scrutiny of court in the exercise of the power of judicial review. This is in order to see whether or not a particular exercise of delegated power or delegated legislation is ultra vires, inordinate or otherwise. However, a court usually exercise its power of judicial review realistically and not unduly narrowly. Judicial control is usually exercised by the court at the suit or application of an aggrieved party. A court may grant relief subject to the following prerequisite:
- The Rule first having recourse to administrative remedies where available;
- The doctrine of ripeness;
- Doctrine of ultra-vires;
- Locus standi
- Right of action or
- Right to appeal
- Possession of jurisdiction; and so forth
- Judicial review is also commonly granted by court, where delegation of power or delegated legislation is challenged on ground of breach of the rules of natural justice, lack of fair hearing or other failure to observe the due process of law, such as lack of substantial evidence for the action that was taken, administrative determination that was made or inaction.
A court may hear an application for judicial review of a delegated legislation or other act or omission of an administrator and exercise it’s judicial power to review the law or action in question by granting such legal remedies as are appropriate, which remedies includes:
- Declaration of rights;
- Order of mandamus;
- Order of prohibition;
- Order of prohibition;
- Order of certiorari
- Writ of habeas corpus;
- Award of damages;
- Offer of apology
- Otherwise set aside, reduce or suspend such sanction, penalty or interdiction that was imposed on the aggrieved party, as the case may be.
A court may grant any of the above mentioned order or review, annul or set aside a delegated legislation or act. On the other hand, the court may unhold the action of the delegated and consequences not granted any relief not make any order in favour of the applicant.
In DSSS v Agbakoba’s (1999) 3 NWLR Pt. 595, p. 134 SC, the Supreme Court affirming the judgement of the court of Appeal made an order for the defendants respondents State Security Service Operatives to release the applicant’s passport to him as they had no power to impound it in the circumstances. The act was beyond the powers delegated to them in the enabling statute which established the State Security Service.
Accordingly, in Labiyi v Anretiola (1992) 8 NWLR Pt 258 p. 139 SC, the Supreme Court held that the constitution (Suspension and Modification) Decree No. 1, 1984 enacted by the Federal Military Government was the organic law, Supreme Law or Groundnorm of Nigeria. That subject to the limitations placed by the Decree itself, it gave unlimited legislative powers to the Military Governor of the State to make laws within his area of authority and competence.
However, the Governor in making the Edict in the instant case acted ultra vires his legislative powers. This is because, a Military Governor of a State is precluded from making laws with respect to any matter in the Concurrent Legislative List which affects Federal Legislative Powers without the prior consent of the Federal Military Government.
A declarator may ratify the act of the delegate
In certain circumstances, it is legally possible for a superior or donor of power to ratify, confirm or approve the acts of his subordinate, or donee. However, this is not often possible in a constitutional democracy as it may not be legally possible to pass a law to retroactively legitimise and ratify wrongful acts which were previously done before the ratifying law was enacted.
A delegator may therefore ratify the actions of his delegate, in instances where it is legally possible to do so.
It is my contention, based on what we have discussed so far that delegated legislation should continue in every political system. It is apparent that the control of delegated legislation contained in this article are tentative and cogent ways of stopping the abuse of powers in delegated legislation. There is absolutely no sense to argue that delegated legislation can not controlled.
Hope this article was helpful? Well, if you still have any question or contribution to the control of delegated legislation, please send them using the comment section. I would love to hear from you now!
Edeh Samuel Chukwuemeka ChMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.