Delegated legislation (administrative law)

The phrase delegated legislation is not a term of art, it is not a technical term, has no statutory definition. The most important circumstance leading to the issue of delegated legislation is the changing character of the state. Actually delegated legislation is the law making power of the Executive that is delegated to it by the legislature. Delegation of administrative power has become necessary in the interest of efficient administration of the state. Delegation if it is in full it has to be stated, a person cannot act as he/she wishes because it will be ultra vires the principle powers.

Delegated legislation is the general term which includes legislation by authorities other than the legislature, for instance the bylaws that are normally passed by the municipality are an instance of such legislation. As a matter of fact the laws made by the parliament can only deal with certain fundamental or basic principles of legislation the details have to be left to some other authority, enabling it to frame its rules. Such administration authority will frame the rules and provide for these details. The process of enabling an authority other than the legislature to make rules is known as delegation and the rules made in pursuance of such authority are known as delegated legislation.

NB 

Delegated legislation is different from the law making function of the Executive,(known as Executive legislation/orders- which can exist for a certain period of time).

RATIONALE FOR SUBSIDIARY LEGISLATION:

One of the common grounds advancing for resort to subsidiary legislation is that of shortage of parliamentary times. The parliament does not have much time to deal only with matters of legislation. In Tanzania the parliament only meet for time in a year with its longest session, the budget session lasting no more than 10 weeks. Overall the parliament meets a total of about 18 weeks in a year.

Furthermore modern legislatures do not have time to provide for details, therefore delegated legislation frees the legislature from concern with details, and thus enables it to concentrate its attention upon the enactment of the fundamental of a policy.

Technical matters: 

modern legislation often deals with the matter of highly technical nature. The members of the legislature may not have the expert knowledge i.e. necessary for providing the technical details. Thus delegated legislation can provide such expert knowledge as is necessary.

Need for flexibility:

Since rules are more easily amended than statutes it becomes easier to correct mistakes and to meet changing conditions, if the difficulty condensesthe details, rather than the basic policy. Thus delegated legislation brings flexibility to legislation.

Emergency:

In case of emergencies like economics crises, flood, strikes, war etc, there is always a need for quick action. Actually there may be no time to pass an act even if the legislature is in session. Quite often such a legislature may not be in session. In such circumstances, the rule making power under an act laying down broad policies may be very useful. For instance in Tanzania, we have “the Emergency Powers Act” as revised in 2002.

DISADVANTAGES OF SUBSIDIARY LEGISLATION:

The concept of delegated legislation is also having certain disadvantages. The development of delegated legislation helps in development of “absolute despotism”. 

The first disadvantage is: delegated legislation said to be against the doctrine of rule of law and separation of power. It may result in concentration of power in the hands of one individual or organ of the government. And thus can result in an arbitrary action and this in end reduced the liberty of an individual.

Secondly: impossibility of knowledge of rules: ignorance of law is no excuse, is the main principle of modern system of administration of justice. Thus everyone is presumed to know the law because the law is certain and is in a form which can be easily known. However in a case of delegated legislation… it is not always possible (lack of certainty). Further the vast bulk of rules framed under various statutory enactments make it almost impossible for an ordinary citizen to know the rules.

Inadequate publicity:

Publicity is an important control on delegated legislation. As far as modern legislature procedure is concerned, the draft of a bill is published and is open for public examination and criticism. By this parliament can get benefit from public criticism and thus can have a look on the loopholes and lacuna in the bill. However in delegated legislation such prior publicity may not always be possible. And therefore the process cannot be benefited by public criticism,

Misuse of power by the Executive:

Actually the laws are made by the legislature in democracy. It is the deliberation in parliament and the consequent action and reaction of opinions that makes law more acceptable to a community but in the case of delegated legislation is that it is bureaucratic legislation not passed by the elected representatives. Such power when entrusted to the executive may have serious consequences on the rights and the liberties of the citizens. It has to be noted that legislature has no other option but to delegate power to the Executive. Even sometimes delegation is very wide and the legislature is unable to keep a check on the powers delegated.

JUDICIAL CONTROL OF SUBSIDIARY LEGISLATION:

Judicial control is the most important control on delegated legislation. Delegated legislation can be challenged in a court of law on the following grounds:

EXCESSIVE DELEGATION:

Whenever the legislature delegates some excessive powers to the Executive authority the scenario is known as excessive delegation. This kind of delegation that is excessive will never be permitted and it has always been stricken down by the Judiciary. Not every power can be delegated.

SUBSTANTIVE ULTRA VIRES:

The plea of substantive ultra vires may be taken up into two ways

1. The statute delegated the legislature power may be attacked on the ground that it is unconstitutional and that it is beyond the legislature competence of the legislature enacting it as it infringes fundamental rights..On the other hand substantive ultra vires may occur where the subsidiary legislation makes a provision which is not authorized to make by an act of parliament (principle legislation). The parliament delegate wholly to another body to make laws: This is not allowed by the laws of the land, hence null and void.

2. The rule of regulation which is made under the statute but travelling beyond the purview of the parent statute will be procedural ultra vires occurs where an Act of the Parliament provides for certain procedure to be followed in making subsidiary legislation. The prescribed procedure must be followed otherwise the said subsidiary delegation will be invalid for failure to comply with the said procedure. The courts however often drawn a distinction between mandatory procedures i.e. where failure to comply results in invalidity of the exercise of power and directory procedures where invalidity does not follow as a necessary consequence as failure to comply.

In the case of, R vs. Wakiso Estate (1955), ULR 137. The accused was charged with six counts for violating certain provision of Uganda Employment Rules. The said rules were made under Uganda Employment ordinance Cap 83. A proviso of s.80 of the said ordinance: “ provided that rules made under paragraph 1,2,3 and 15 shall be laid before the legislative council and shall not come into operation until they have been approved either with or without  modification by the resolution passed by the legislative council”.

The instrument creating the said rules read: “ made at Entebbe This 21 May 1946 and approved  by a resolution  passed by the legislative council on 30th April 1946”. J.Herton Hall, The Governor.  

The court held that the rules were ultra vires the Parent Act of the Parliament.

Thus apart from therefore mentioned to rules the court has devised other various rules to control sub legislations in order to ensure that they are kept within bounds and whenever a sub delegation does not comply with  such rules it will be declared invalid and of no effect.

THE RULE OF UNREASONABLENESS:-

Judicial review/control of the reasonableness of delegated legislation confers upon the court a much wider discretion and power of scrutiny than review limited to the question of vires. In interpreting statutes, the court may invalidate a piece of legislation on the ground that the parliament could not have intended powers of sub legislation on the ground that the parliament could not have intended powers of sub legislation to be exercised unreasonably. 

In the case of Alridge vs. Inslighton Cooperation (1909) 2 KB pg. 127. In this case by law imposed duty on every land lord to cause the premises to be cleansed and imposed a penalty for breach of the duty, was held invalid on the ground of its being unreasonable because such a bylaw imposed an absolute duty without considering the fact that the land lord may be quiet unable to carry out the work without breaking the contract  committing trespass.

In another case of NanalalDamodar Kanji vs. Tanga Township Council 1940 TLR pg. 239.

The accused owned a house which was situated at the corner of Akida Street in the Township of Tanga .on the 12th of June 1939 some old papers were found in the street outside his house. He pleaded not guilty to the charge under Rule number 25 of the Township rules which stated: “no person shall throw or deposit in or upon any street dust, refuse or noxious matter, any such accumulation being immediately in front of any house shall be prima facie evidence,that the same has been thrown there or deposited by the occupier of such house”. The question which the court was to determine what was the legal effect of the rule no 25. The said rule was made under section 3 of the Township Ordinance which provided as follows: “The Governor may make rules to be published in the gazette for health, order and good governance of Townships and may apply all or any such rules to any township or make special rules in regard to Particular Township”. The court held that: “Rules and by laws made under statutory enforceable by penalties are construed like any other provisions encroaching the ordinary rights of persons, they must on the face of it not be unreasonable or in excess of statutory power authorizing them, nor repugnant to that statute or the general principle of law”. A principle of law which Rule no 25 offended against is that an accused is presumed guilty until he/she proves his/ her innocence. (This is unreasonable).

THE RULE AGAINST SUB DELEGATION:-

The competence of a maker of sub delegation is a very fundamental one, where an administrative body is by delegation vested by power to make subsidiary legislation, delegated or approach to delegate this power to some other persons or body this further delegation is known as sub delegation and it is unlawful.

Sub delegation is based on the principle that “Delegatus non potest delegare”.it means “ Delegate cannot further delegate”. Basically it means when a statute confers legislative powers on administrative authority and that authority further delegates those powers to another subordinates authorities/agency that further delegation is incompetent to perform the such powers “delegates non potestdelegare” conferred to him/her by the delegation. Generally speaking the parties of sub delegation might vest the power of making rules in the lower ranks of the Executive. Further preliminary control may becometoo remote to have a proper control on the delegation.

In the case of RemtulaGulamali  vs. R [1936] TLR 203. The governor was given power to make bylaws under rule number 11of the cotton rules of 1931 for the destruction of the cotton plants harboring pests and diseases of cotton. This power of exercised by the director of agriculture and gazetted on 11th October 1935 as general notice number 993. The accused subsequently contravened it and was fined shilling 3 hundred cash. He appealed against the conviction.It was held that; “the terms of part II of s.3 of the ordinance do not extend to confer such powers upon the director of agriculture but upon the governor and the governor alone. Who is precluded from transferring this power by the principle of law expressed in the maxim “delegates non potestdelegare” the director of Agriculture is the one who make orders/rules and the governor had such powers alone.

The general rule is that a delegate cannot sub delegate but there are some exception were delegates can sub delegate. However on account of legislative supremacy of the parliament, an Act of Parliament may expressly authorize sub delegation. In such a case sub delegation may be done and it will be lawful.

On the other hand the parliament has sometimes reinforced this principle by expressly prohibiting sub delegation of legislative powers. Thus for instance s 117 (1) of the Act no 7 of 1982 and s.77(1) of Act no 8 of 1982 expressly prohibit of Minister for local Government from delegating his powers  to make rules and regulations. 

Therefore the general principle is that delegation is always lawful unless expressly prohibited, but sub delegation is always unlawful unless expressly permitted by the parliament.

THE RULE AGAINST INCONSISTENCY.

Subsidiary legislation has also to pass the threshold (yardstick) of consistency and were it is inconsistency with any statute the court will declare it invalid on such a ground. Section 25(b) of the interpretation and General clauses Act provides that: “No order or rule shall be inconsistent with the provision of any Act”. Under s.2 of this legislation, a subsidiary legislation is defined as; “any orders of the president , proclamation, rules of the court, regulation, order,  notice, bylaw or other instrument made under any act or other lawful authority and having legislative effect”.

The principle of inconsistency does not mean that, Delegated legislation cannot deal with the same subject matter as a statute, rather the principle applies where a subsidiary legislation makes lawful that which a statuette makes unlawful or the vice versa

Principle Legislation is available to regulate certain matter.

Subsidiary Legislation is also available to prohibit certain matter.

In the case of KoinangeMbiu vs. R (1951) 2 KLR pg 130. The accused (an African) was accused of growing coffee in an unauthorized area. S.4 of the Crop Production and Livestock Ordinance of Kenya allowed the Governor to fix by name an area or areas in the colony to the rules for controlling production might apply. Rule 3 Sub rule 1 of the African Growing Coffee Rules  made under the said ordinance, provided that: “No coffee shall be grown by an African except on a plantation approved by the Director and situated in one of the areas set out in schedule A to these rules”. The main issue for determination was whether this rule was a valid exercise of the power conferred under s.4 of the Principle Legislation. The Court held that: Rule 3 was invalid because in the first it was in conflict with another statute namely the Coffee Industry Ordinance. Under this Act any person including an Africa could plant coffee once he/she obtained a license and he/she could plant coffee  anywhere in Kenya except in native lands area. Rule 3 Sub rule 1 was therefore in conflict with this statute because it limited the area. In which an African could grow coffee to the plantations in the schedule A areas only.2ndly S.4 of Crop Production and Livestock Ordinance allowed the Governor to regulate areas, where as Rule 3 went beyond this by regulating the areas, where as Rule 3 went beyond this by regulating the area of the whole colony not just one area and further by regulating a particular class of persons namely the Africans rather than an area.

THE RULE AGAINST UNCERTAINTY:

The rule against uncertainty is to the effect that where the language of Subsidiary Legislation is apparently unclear or ambiguous, the court may declare it invalid.

In R vs. Louis Hermitte (1938) 18 KLR pg 55. Explain the situation. In this case the appellant was convicted and fined under a bylaw made under S.69 of the Local Government (Municipalities Ordinance of 1928 of Kenya) which read; “no person shall create any disturbance so as to be an annoyance to any residence or passengers”. It is significant to note that this bylaw did not specify in what circumstances, place whether a public or private residence a disturbance could fall within the meaning of the bylaw. On appeal it was contended that, the bylaw was ultra vires inter alia because it was uncertain and thus the court held that: the bylaw in question was uncertain, unreasonable and ultra vires, the powers conferred on the Municipalities and hence null and void.

Must Read- R vs. Mabula [1984] TLR 89.

PUBLICITY AND PUBLICATION:-

All forms of subsidiary legislation have to be published in the Government Gazette. Publication is intended to facilitate easy access, actual or presumed to the Subsidiary Legislation  by the public in general. Bearing in mind that “ignorance of law is no defense to a charge violating that law.

The requirement of publication being mandatory must be complied with. However some acts of parliament expressly provide that it will not be necessary to publish in the gazette the Subsidiary Legislation made under those Act, for such Subsidiary Legislation publication may be dispensed with. A part from easy access to subsidiary legislation the other use of publishing in the gazette is with regard to the effective date of subsidiary legislation. After piece of subsidiary legislation  comes into force on the date when it says itself, it shall come into force, but there are many Subsidiary Legislation  which do not say when they should come into force, for these date, the date which they came into force is the date they are published in the gazette. In that case failure to publish in the gazette will keep Subsidiary Legislation in abeyance and not bringing it into force as long as it remains not published in the gazette.

In the case of Mwangi vs. Republic (1950) 241 KLR pg 72.