01 February 2012 Written by  Aberham Yohannes and Desta G/michael

The Nature and Definition of Delegated Legislation

The term legislation refers to the process of making or enacting and repealing a positive law in written form by a branch of government constituted to perform this process, which is the legislature. The legislative organ of every country has the power to make laws on every matter concerning the lives of its citizens and the government subject to the limitations imposed by the constitution. In England, where the doctrine of parliamentary sovereignty is propounded, parliament as a matter of principle can enact or repeal legislation as it sees fit. Whether there is a clear limitation or not, the legislature is in charge of making laws in the form of primary legislation. Any other legislation that is subordinate or auxiliary to primary legislation is known as delegated (or sometimes ancillary) legislation.

In short, delegated legislation means the exercise of legislative power by an agency that is subordinate to the legislature. This subordinate body acquires the power from the act of the legislature. Power is transferred from the principal lawmaker to the lower body, which may be the executive, cabinet, council of minister, or a specific administrative agency, by the mechanism of delegation. Generally, delegation refers to the act of entrusting another authority or empowering another to act as an agent or representative. By the same token, delegation of legislative powers means the transfer of law-making authority by the legislature to the executive, or to an administrative agency. In line with the power granted to them by the legislature administrative, agencies can issue rules, regulations and directives, which have a legally binding effect.

The study of rule-making (delegated legislation) by the executive branch of government occupies a significant place in the administrative law due to its increasing growth, complexity and the dangers it poses to individual liberty and freedom. Scholars regard delegated legislation as a typical characteristic of administrative activity in public administration.

One of the most significant developments of the present century is the growth in the legislative powers of the executive. Measured by volume, more legislation is produced by the executive government than by the legislature. The increase in quantity and quality of delegated legislation, if not supplanted by clear procedures and effective controlling mechanisms, may ultimately result in arbitrariness and abuse of power, which in turn leads to injustice and violation of liberty. That is why it is regarded by many as a “necessary evil.” It was considered a danger to the liberties of the people and a devise to place despotic powers in few hands. It was said that delegated legislation preserved the outward show of representative institutions while placing arbitrary and irresponsible power in new hands.

However, in reality, the intricacies and complexities of modern government have proved beyond doubt that the delegation of legislative powers to administrative agencies is a compulsive necessity. In no democratic society committed to the establishment of a welfare state, the legislature monopolizes the legislative power. It will be futile for the legislature to solve the ever increasing social and economic problems, unless it shares some of its powers with the executive and other administrative organs of the state. A statute may be inexact, incomplete, and unintelligible, and may even be misleading unless it is read with specific rules and regulations made there under. Delegated legislation also serves a technique to relieve pressure or legislature’s time so that it can concentrate on principles and formulation of polices.  After this, it has to leave technical and detailed matters which are necessary to fill the gaps in the primary legislation.  Nowadays, administrative rule-making has become a typical characteristic of the administrative law and administrative activity. The 20th century has been termed as the age of regulation due to the increasing number of instruments issued by the executive branch of government. Most of the legislations that govern the conduct of the individual come from administrative agencies, not from the legislature.

How do you distinguish administrative actions from quasi-legislative actions?

There is only a hazy borderline between legislation and administration, and it is difficult to show there exists a fundamental difference between the two. One common point of difference is that the legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them in some particular situation. It is also a common principle of legislation that legislative acts should be public.

One test of distinction may be that where the former is a process of performing particular acts or of making decisions involving the application of general rules to particular cases, the latter is the process of formulating a general rule of conduct without reference to particular cases and usually for future operation.

Rule - making action of the administration partakes with some exceptions, all the characteristics of a normal legislative action process. These may be generality, non-retroactivity and a behavior which bases action on policy consideration and gives a right or a disability. In some cases, however, administrative rule making action may be particularized, retroactive and based on evidence. On the other hand, a quasi-judicial action is particularly based on the facts of the case and declares a pre-existing right.

4.2 The Need for Delegated Legislation

Despite the ever-increasing volume of primary legislation, the complexities of governing a sophisticated society (and even a developing society) demands the delegation of some legislative functions to inferior bodies such as ministers and administrative agencies. Clearly parliament does not have time or resources to enact every single piece of legislation that is needed in the form of primary legislation, which can be fully debated and scrutinized in accordance with legislative procedures. The result is delegated legislation- legislation produced by an  ‘inferior body’ which nevertheless has the force of law.

Tackling the complexities of modern administration in an efficient and efficient manner demands an atmosphere of complexity. Parliament has to follow strict legislative procedures to make a single law. Hence, it will be far from being flexible without delegating some of its powers to the executive.

Can you try to identify impacts of retaining all legislative power by the lawmaker ( parliament)?

The complexities of modern administration are so baffling and intricate and bristle with details, urgencies and difficulties. Therefore, to tackle these problems, an atmosphere of flexibility is needed. A parliament which sits for a limited period of time and which is required to observe strict legislative procedures will be far from being flexible without delegating some of its powers to the executive.

Taking into account the above general justification, the following factors may be mentioned as reasons for the   need for delegated legislation.

A) Limitation on Parliamentary Time

Art 58(2) of the F.D.R.E. constitution reads:

“The annual session of the house shall begin on Monday of the final week of the Ethiopian month of Meskerem and end on the 30th day of the Ethiopian month of sene. The House may adjourn for one month of recess during its annual session”

As stated in Art. 58(2) of the constitution, assuming that there is one month recess, for how many maximum days will the House of representatives sit in parliament? Then subtract 39-week days and multiply it by 8 working hours. Taking into consideration the average time necessary to make law, do you think the house of people’s representatives has sufficient time to provide all the laws in quantity and quality?

It is said that even if today parliament sits all the 365 days in a year and all the 24 hours, it may not give the quantity and quality of law, that which is required for the proper functioning of a modern government. Therefore, it is clear and self-evident that the main reason for delegation of legislative power is to relieve the pressure on parliamentary time.

B) Technicality Subject of Matter

Read carefully the following provisions:

I.)  “For the purpose of fostering monetary stability and credit and exchange conditions conducive to the balanced growth of the economy of Ethiopia, the Bank may issue directives governing its own credit transactions with banks and other financial institutions, and credit transactions of banks, and other financial institutions.”(Art 28(1) of Monetary and Banking Proclamation No.83/1994)

II) “The council of ministers may by regulations exempt any income recognized as such by this proclamation for economic, administrative or social reasons”

(Art 13(e) of Income Tax Proclamation No.286/2002)

III)  “1. Regulations and directives may be issued for the complementary of this   proclamation.

2. The regulations shall, in particular, provide for the payment of fees in connection with applications for the grant of patents and utility model certificates and for the registration of industrial designs and matters related there to.”

(Art 53 sub 1 and 2 of Inventions and Industrial Designs Proclamation No 123/1995)

Which of the above provisions do you think are technical matters which do not involve policy issue and need some expertise knowledge?

Legislation has become highly technical because of the complexities of a modern government. Members of the parliament are not experts, and so they cannot comprehend the technicality of the subject matter of some economic and social issues. Technical matters, as distinct from policy issues, are not susceptible to discussion in parliament and therefore cannot be readily be included in legislation. Therefore, technicality of the subject matter stands as another justification for delegation.  It is convenient for the legislature to confine itself to policy matters only and leave the technical law making sequence to the administrative agencies.

C) Flexibility

Ordinarily legislative process suffers from lack of viability and experimentation. A law passed by parliament has to be in force till the next session of parliament when it can be replaced Therefore, in situations which require adjustments frequently and experimentation, administrative rule making is the only answer.

The need for frequent adjustment or flexibility can be observed from the following provision.

“The Bank may, from time to time, prescribe by regulations the terms and conditions upon which persons departing from Ethiopia may carry with them foreign exchange or make remittance for services.” (Art 55 of Monetary and Banking Proclamation No.83/1994)

In the above provision, the terms and conditions for carrying foreign exchange by persons departing from Ethiopia could be changed from time to time. Hence this flexibility could be attained through delegation of power to make these rules.

D) Emergency

During emergency, it may not be possible for the parliament to pass necessary legislation to cope up with the situations. Under such conditions, speedy and appropriate action is required to be taken. The parliament cannot act quickly because of the time that requires passing an act. Moreover, immediate knowledge and experience is only available with the administration. For this reason, wide legislative power must be conferred up on the executive to enable the government to take actions quickly.

The above grounds clearly justify the need for administrative rule making. On the other hand, this rule-making may have some negative effects. Can you give one undesirable impact of the administrative rule making?

4.3. Theoretical Objections against Delegated Legislation

The fact that delegation is indispensable and inevitable due to practically convincing needs, it has not been a bar to theoretical challenges and criticisms against it. The main constitutional objection raised against delegation of rule making power to administrative agencies has been the doctrine of non delegability of power, which holds that power delegated to one branch may not be redelegated to another. People elect their representatives based on their fitness, knowledge and ability to represent their interest. Hence, it is a generally accepted rule that this mandate bestowed by the people cannot be delegated to another individual or organ, which does not stand in a direct relation to the people. It is a cardinal principle of representative government that the legislature cannot delegate the power to make laws to any other body or authority.

One of the most commonly cited sources of the rule of non delegation is the common law maxim delegates potestas non potest delegari which means that a delegate can not further delegates his power. Simply, the maxim indicates that power that has been delegated originally may not be redelegated.

The maxim was originally invoked in the context of delegation of judicial power and implies that in the entire process of adjudication, a judge must act personally except in so far as he is expressly absolved from his duty by a statue. Therefore the basic principle underlying the maximum is that discretion conferred by the statute on an authority must be exercised by that authority alone, unless a contrary intention appears from the language, scope or object of the statute. Generally, it implies that, since the people delegated legislative power to the lawmaker, executive power to the prime minister and cabinet and judicial power to the courts, none of the institutions may redelegate its power to any other authority.

Another objection to delegation of power is based on the doctrine of separation of powers. In America, the doctrine of separation of powers has been raised to a constitutional status. The U.S. Supreme Court has observed that the doctrine of separation of power has been considered to be an essential principle underlying the constitution and that the powers entrusted to one department should be exercised exclusively by that department without encroaching up on the power of another.

Last modified on Wednesday, 02 May 2012 13:05