It is accepted at all hands that a rigid application of the doctrine of non-delegability of powers or separation of powers is neither desirable nor feasible in view of the new demand on the executive. The new role of the welfare state can be fulfilled only through the use of greater power in the hands of the government, which is most suited to carry out the social and economic tasks. The task of enhancing the power of the government to enable it to deal with the problems of social and economic reconstruction can be effectively and efficiently accomplished through the technique of delegation of legislative power to it. Thus it can be clearly observed that pragmatic considerations have prevailed over theoretical objections.
Therefore, the position has been shifted from one of total objection to the issue of the permissible limits of valid delegation. Legislative delegation raises the issue of delegable and non-delegable legislative powers. There is no agreed formula with reference to which one can decide the permissible limits of delegation. However, as a rule, it can be said that the legislature cannot delegate its general legislative power and matters dealing with policy.
The legislature after formulating the fundamental laws, can delegate to administrative agencies the authority to fill in gaps which is an authority necessary to carry out their purposes. The matters which are appropriate for delegation are such matters as procedures for the implementation of the substantive provisions contained in the principal legislation. This indicates that only the subsidiary part of the legislation could be delegated to administrative agencies so as to enable them fill any available gaps;i.e. the legislative body ought to state an intelligible principle and that the executive branch would merely fill in the details. Subordinate legislation can cover only subject matters delegated expressly in the principal legislation.
As a summary, the following points may be noted.
- Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation.
- Essential legislative functions cannot be delegated by the legislature.
- After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however, numerous and significant they may be.
- The delegated legislation must be consistent with the parent act and must not violate legislative policy and guidelines. Delegatee cannot have more legislative powers than that of the delegator.
In Australia, the following matters could not be delegated.
A. Appropriations of money;
B. Significant questions of policy including significant new policy or fundamental changes to existing policy;
C. Rules which have a significant impact on individual rights and liberties;
D. Provisions imposing obligations on citizens or organizations to undertake certain activities (for example, to provide information or submit documentation, noting that the detail of the information or documents required should be included in subordinate legislation) or desist from activities (for example, to prohibit an activity and impose penalties or sanctions for engaging in an activity);
E. Provisions conferring enforceable rights on citizens or organizations;
F. Provisions creating offences which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations);
G. Provisions imposing administrative penalties for regulatory offences (administrative penalties enable the executive to receive payment of a monetary sum without determination of the issues by a court);
H. Provisions imposing taxes or levies;
I. Provisions imposing significant fees and charges (equal to more than 50 penalty units consistent with (f) above);
J. Provisions authorizing the borrowing of funds;
K. Procedural matters that go to the essence of the legislative scheme;
L provisions creating statutory authorities (noting that some details of the operations of a statutory authority would be appropriately dealt with in subordinate legislation); and
M. Amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act should be examined against these criteria when an amendment is made.)
Which of the following do you think are essential legislative functions which could not be delegated?
a) Power to levy tax
b) Power to exempt any item from tax
c) Power to repeal or amend a proclamation
d) Power to extend the applicability of a proclamation to other sectors
e) Power to exempt certain sectors not to be covered by the proclamation
f) Power to determine the standard rate of interest for borrowings and saving
4.5 Form and Classification of Administrative Rule Making
A close scrutiny of delegated legislations reveals that they usually contain enacting clauses and that they are also detailed legislations. Enacting clause is a provision in a legislation that indicates how and from where the authority of legislating the law was derived. It is found in the preamble part of the legislation. Delegated legislation is considered as legislated by the legislature in so far as they are enacted following the proper procedure. They are also considered as part and parcel of the main legislation under which they are issued. These legislations are detailed because they are issued to implement other superior legislations that are drafted in broader terms.
Thus, delegated legislation may assume different forms. In our country there are mainly two types of delegated legislations regulation and directive.
Pursuant to Art 771(13) of the F.D.R.E. constitution, the council of ministers has the power of issuing regulations in accordance with a power vested to it by the house of people’s representatives. The power to issue regulations is found in the specific legislation.
These types of delegated legislations are issued by each administrative agency. Agencies issue these subordinate legislations to implement regulations and other primary legislations.
Pursuant to Art. 93 of the F.D.R.E. constitution, the council of ministers has the power to declare emergency, which is subject to approval by the House of Representatives. Can we say that this decree by the Council of Ministers is a delegated legislation?
Administrative rule-making may also be classified based on the different purposes, that it is made to serve.
A-Enabling act- Such acts contain an “appointed date” clause under which the power is delegated to the executive to appoint a date for the act to come into operation. In this category, the legislature prescribes the gun and the target and leaves it to the executive to press the trigger. It is aimed at easing the executive the time to equip itself for the administration of the law. In this class of legislation, rule making exercise is valid only to the extent it is preparatory to the act coming in to force.
B-Extension and application act- The technique of administrative rule-making may sometimes be used for the extension and application of an act in respect of a territory, or a given for duration of time, or for any other such objects. Power may be delegated to extend the operation of the act to other territories.
E.g. Reduction or Extension of Time
“ Notwithstanding any provision of these regulations which may specify a period of time within which an act is to be performed, the licensing authority may for good cause provide for a shorter or longer period, provided that such reduction or extension shall not jeopardize the rights of a licensee or engender his ability to perform the duties and obligations under the license or under the proclamation.”
(Art 42 of Mining Operations Regulation No 182/94)
C-Dispending and suspending act- Sometimes the power may be delegated to the administrative authority to make exemptions from all, or any provision of the act in a particular case or class of cases. These exemption clauses are meant to enable the administrative authority to relieve hardship, which may be occasioned as a result of uniform enforcement of the law.
See for instance the following provision:
“Not withstanding the provisions of rule - articles (1) of this article, the council of ministers may be regulations determine the inapplicability of this proclamation on employment relations established by religious or charitable organizations.”
(Art 3(b) of Labour Proclamation No 377/96)
D- Classifying and sanctioning acts- Under this type of delegation, power is given to the administrative authority to fix standard of purity, quality or fitness for human consumption. See, for instance, Classification of Hotels, Pensions and Restaurants Regulations No 209/1995.
E- Penalty for violation acts - Sometimes power may be delegated to an administrative agency to prescribe punishment for the violation of rules. Usually, making an act penal is a parliamentary function and cannot be delegated to the administrative agency.
4.6. Rule Making Procedure
In order to ensure power delegated by the legislature is exercised fairly and lawfully, the administrative agency is expected to follow some minimum rule making procedures. Such procedure is usually provided in a comprehensive manner applicable to every agency at all time (e.g. the American Procedure Act.) In other cases, it may provide on specific legislations i.e. on the enabling act. The rule making procedure under the U.S. Federal Administrative Act (hereinafter referred to as APA) is a detailed one that provides different types of rule-making procedures ensuring flexibility in the administrative process. Before discussing the specific requirements applicable for each type of rule- making procedures under APA, let’s have a brief look at the rule-making procedure in England.
Rule Making Procedure in England
A- Prior Consultation
Under English administrative law, the rules of natural justice do not apply to delegated legislation, and failure to consult parties does not entail invalidity of the rules by court. As has been noted by one judge:
“Many of those affected by delegated legislation and affected very substantially, are never consulted in the process of enacting that legislation and yet they have no remedy.”
Even though prior consultation with concerned parties is not a mandatory requirement, in practice, many agencies informally comply with this requirement upon their own initiative. The informal consultation of representative bodies by the legislative administrative body is very common. Few statutes may also specifically provide a general process of considering objection, or prior consultation and publishing draft delegated legislation. Where consultation with certain parties is required by the enabling act, the courts are likely to interpret this as being a mandatory requirement; failure to comply could invalidate any resulting order.
In England, most rules and regulations issued through power of delegation will not have a binding force unless they comply with review mechanism by parliament. Such parliamentary review mechanism commonly known as laying procedure affords an opportunity for the legislature to control the exercise of the power of delegation by subordinate bodies. In effect, it is an effective mechanism to ensure legality and fairness in delegated legislation. If the enabling act subjects the agency to comply with laying procedure, non-observance results in the nullity of the rule or regulation. Laying procedure may assume different forms some of which are indicated below.
Bare Laying Procedure
No further procedure is necessary for the provision to be effective. The statutory instrument is drawn to the attention of members and can come into operation once laid.
Negative Resolution Procedure
The legislative instrument once it is laid before parliament may be annulled if there is a request (prayer) to this effect. However, the annulment of the instrument does not invalidate retrospectively action taken by the minister.
Positive Laying Procedure
The enabling act requires the instrument to be laid before parliament; it can only become law if it receives the affirmative approval of the parliament.
Laying of a Draft Statutory Instrument
A draft instrument is laid before parliament, and the instrument itself cannot be made until 40 days have passed from the date of laying of the draft instrument. During this period, the draft instrument may be subject to a negative resolution procedure.
Under English administrative law, there is difficulty and argument as to when a statutory instrument is “made”. One view is that the statutory instrument is made as soon as it is signed by the appropriate minister, and it becomes effective from that time onwards notwithstanding that any publication or laying requirements have not been complied with. According to the second view, the statutory instrument is made when it is signed, but only comes into effect on a certain date, on the order itself. Third it is said that it becomes after it is signed and is due to become into effect on some specified date in the future, after one of the various laying procedures has been complied with.
As can be seen from the above different arguments, it is clear that there is no uniform procedural requirement of publication. However, the enabling act may specifically provide for the publication requirement that is mandatory, resulting in invalidation for non-compliance.
Rule Making Procedure in U.S.
The Administrative Procedure Act (APA) enacted in 1946 and recodified in 1966, is the procedural roadmap for the federal executive branch. The federal government passed the act in 1946, in response to the increasing resentment of the agencies' latitude in matters affecting the rights of individuals. Following the federal lead, most of the states also passed similar statutes during the late 1940s and early 1950s. Unless another statute provides otherwise, every executive branch department and agency must follow the APA's minimum procedures for adjudication and rule making. It also establishes general ground rules for the judicial review of agency actions. Although it has been supplemented by several other laws discussed in this volume (e.g., the Freedom of Information Act, Regulatory Flexibility Act, and Administrative Dispute Resolution Act), it has been amended remarkably little since 1946, and its provisions have served as models for many other administrative procedure laws in the fifty states and other countries around the world.
The Administrative Procedure Act sets up the procedures to be followed for administrative rule making. Before adopting a rule, an agency generally must publish advance notice in the Federal Register, the government's daily publication for federal agencies. This practice gives those who have an interest in, or are affected by the proposed rule an opportunity to participate in the decision making by submitting written data or by offering views or arguments orally or in writing. Before a rule is adopted in its final form, and 30 days before its effective date, the agency must publish it in the Federal Register. Formally adopted rules are published in the Code of Federal Regulations; a set of paperback books that the government publishes each year so that rules are readily available to the public.
Administrative agencies promulgate three types of rules: procedural, interpretative, and legislative. Procedural rules identify the agency's organization and methods of operation. Interpretative rules are issued to show how the agency intends to apply the law. They range from informal policy statements announced in a press release to authoritative rules that bind the agency in the future, and are issued only after the agency has given the public an opportunity to be heard on the subject. Legislative rules are statutes enacted by a legislature. Agencies can promulgate legislative rules only if the legislature has given them this authority.
Types of Rule-Making Procedure
The APA subdivides the categories of rule-making into formal and informal proceedings. A rule-making procedure is considered formal when the proceeding is required by another statute to be "on the record after opportunity for an agency hearing." The APA prescribes complex procedures for hearings in formal rule-making procedure. It requires relatively minimal procedures for informal rule-making. Each agency which will be affected by section 4 should publish under section 3 (a) (2) the procedures, formal and informal, pursuant to which the public may participate in the formulation of its rules. The statement of informal rule making procedures may be couched in either specific or general terms, depending on whether the agency has adopted a fixed procedure for all its rule making or varies it according to the type of rule to be promulgated. In the latter instance, it would be sufficient to state that the proposed substantive rules will be adopted after allowing the public to participate in the rule-making process either through submission of written data, oral testimony, etc. The method of participation in each case to be specified in the published notice in the Federal Register.
A- Informal Rule Making
In every case of the proposed informal rule-making according to the requirements of section 4 (a), section 4 (b) provides that "the agency shall afford interested persons an opportunity to participate in the rule-making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner." The quoted language confers discretion upon the agency, except where statutes require "formal" rule-making subject to sections 7 and 8, to designate in each case the procedure for public participation in rule-making. Such informal rule making procedure may take a variety of forms: informal hearings (with or without a stenographic transcript), conferences, and consultation with industry committees, submission of written views, or any combination of these. These informal procedures have already been extensively employed by federal agencies. In each case, the selection of the procedure to be followed will depend largely upon the nature of the rules involved. The objective should be to assure informed administrative action and adequate protection to private interests.
Each agency is affirmatively required to consider "all relevant matter presented" in the proceeding; it is recommended that all rules issued after such informal proceedings should be accompanied by an express recital that such material has been considered. It is entirely clear, however, that section 4 (b) does not require the formulation of rules upon the exclusive basis of any "record" made in informal rule-making proceedings. Accordingly, except in formal rule-making governed by sections 7 and 8, an agency is free to formulate rules upon the basis of materials in its files and the knowledge and experience of the agency, in addition to the materials adduced in public rule making proceedings.
Section 4 (b) provides the completion of public rule-making proceedings "after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose". The required statement will be important in that the courts and the public may be expected to use such statements in the interpretation of the agency's rules. The statement is to be "concise" and "general". Except as required by, statutes providing for "formal" rule-making procedure, findings of fact and conclusions of law are not necessary. Nor is there required an elaborate analysis of the rules or of the considerations upon which the rules were issued. Rather, the statement is intended to advise the public of the general basis and purpose of the rules.
B-Formal Rule Making
Section 4 (b) provides that "Where rules are required by statute to be made on the record after opportunity for an agency hearing, the requirements of sections 7 and 8 shall apply in place of the provisions of this subsection." Thus, where a rule is required by some other statute to be issued on the basis of a record after opportunity for an agency hearing, the public rule-making proceedings must consist of hearing and decision in accordance with sections 7 and 8. The provisions of section 5 are in no way applicable to rule-making. It should be noted that sections 7 and 8 did not become effective until December 11, 1946, and, pursuant to section 12, did not apply to any public rule making proceedings initiated prior to that date.
Statutes authorizing agencies to prescribe future rates (i.e., rules of either general or particular applicability) for public utilities and common carriers typically require that such rates be established only after all opportunity for a hearing before the agency. Such statutes rarely specify in terms that the agency action must be taken on the basis of the "record" developed in the hearing. However, where rates or prices are established by an agency after a hearing required by statute, the agencies themselves and the courts have long assumed that the agency's action must be based upon the evidence adduced at the hearing. Sometimes, the requirement of decision on the record is readily inferred from other statutory provisions defining judicial review.