Delegated Legislation is as a result of legislatures not being able to handle all aspects of lawmaking.
Lawmaking is one of the primary responsibilities of the government. In most democratic societies, the legislature (such as the National Assembly in Nigeria) is the body responsible for making laws. However, due to the complexities of modern governance, legislatures cannot directly handle all aspects of lawmaking. As a result, they delegate some of their powers to other bodies, leading to the concept of delegated legislation.
Delegated legislation refers to laws, rules, and regulations made by persons or bodies other than the legislature, but with the legislature’s authority. This delegation of power ensures that governance is more efficient, flexible, and adaptable to urgent or technical matters. However, it also raises concerns about democratic accountability, the abuse of power, and the violation of constitutional principles.
This lesson explores the meaning, types, control, advantages, disadvantages, and real-world applications of delegated legislation, including examples from Nigeria.
Table of Contents
Definition/Meaning of Delegated Legislation
Delegated legislation refers to laws, rules, or regulations made by an individual or body other than the primary legislature, but with legal authority granted by the legislature itself.
The primary legislature (such as Nigeria’s National Assembly) provides the framework for governance and grants certain bodies the power to make specific regulations within that framework.
Key Features of Delegated Legislation:
- Authority Derived from the Legislature: It is legally backed by an Act of Parliament or Constitution.
- Made by Authorised Bodies: It is formulated by ministers, government agencies, local authorities, or statutory bodies.
- Covers Specific Areas: It deals with specialised, technical, or administrative matters that the legislature may not have time to address in detail.
- Subject to Control: The judiciary, legislature, and public opinion serve as checks to prevent misuse of delegated power.
- Aims at Efficiency: It allows the government to quickly respond to emergencies or changing circumstances without waiting for lengthy legislative processes.
In Nigeria, the National Agency for Food and Drug Administration and Control (NAFDAC) is empowered by the legislature to make regulations concerning food safety and drug approval.
The Federal Road Safety Corps (FRSC) issues road safety regulations under powers delegated by the legislature.
Local government councils enact bylaws to regulate markets, sanitation, and transport within their jurisdictions.
Historical Background of Delegated Legislation
Delegated legislation has a long history dating back to ancient governance systems, where rulers and monarchs assigned legal and administrative responsibilities to local authorities or officials. However, its modern application evolved significantly with the expansion of democratic governance, particularly in the 19th and 20th centuries.
Origins of Delegated Legislation
The concept of delegated legislation can be traced back to the British parliamentary system, where the king or queen ruled with the advice of the Privy Council. Over time, as parliamentary democracy expanded, the British Parliament increasingly delegated legislative powers to government ministers, local authorities, and other statutory bodies to manage complex governance issues efficiently.
Delegated Legislation in Colonial Nigeria
During British colonial rule, Nigeria operated under Orders in Council, which were legislative instruments issued by the British Crown to govern the colony. These orders formed the legal framework for administration and governance. For example:
- The 1946 Richards Constitution – This was enacted through an Order in Council and delegated certain legislative powers to regional councils.
- The 1954 Lyttleton Constitution – Also passed via an Order in Council, this law established federalism in Nigeria, delegating legislative powers to regional governments.
- The Colonial Police Act – Enacted through an Order in Council, it set up Nigeria’s early policing system under British control.
Post-Independence Development
After gaining independence in 1960, Nigeria retained delegated legislation as a key governance tool. Successive Nigerian governments—both civilian and military—continued using delegated powers to issue regulations, executive orders, and statutory instruments for governance. Examples include;
- Decrees by Military Governments (1966–1999) – During military rule, decrees functioned as delegated laws with immediate effect, bypassing legislative processes.
- Executive Orders by Civilian Presidents – Since Nigeria’s return to democracy in 1999, presidents have used executive orders to regulate various sectors without requiring new parliamentary laws.
Forms of Delegated Legislation
Delegated legislation takes various forms depending on the authority making the laws and the purpose of the regulations. The major forms include:
Orders in Council
Orders in Council are legal instruments issued by the President (in Nigeria) or the Monarch (in the UK) on the advice of the government. These orders have the same force as parliamentary laws and are often used in matters of national emergency, security, or administrative restructuring. E.g.,
- Emergency Powers (General) Order, 1967 – This order was issued during the Nigerian Civil War, giving the government extraordinary powers to maintain law and order.
- Transition to Civil Rule Order, 1979 – This order provided the legal framework for the transition from military to civilian rule.
- Boko Haram Proscription Order, 2013 – Issued under the Terrorism (Prevention) Act, this order designated Boko Haram as a terrorist organization, enabling stricter enforcement actions.
Bye-Laws
Bye-laws are laws made by local government councils, public corporations, and other statutory bodies to regulate specific areas under their jurisdiction. They help in maintaining order at the community level. Examples include:
- Environmental Sanitation Bye-Laws – Many Nigerian states have sanitation regulations mandating regular environmental clean-ups.
- Traffic Regulations – Lagos State’s Traffic Bye-Laws impose fines for reckless driving and unauthorized parking.
- Market Regulations – Local government councils regulate markets, ensuring hygiene and price control.
Provisional Orders
Provisional orders are temporary regulations made by government agencies or ministers, pending final approval by the legislature. They are often used for administrative convenience before a full law is enacted. For examples;
- The Naira Redesign Order, 2022 – Issued by the Central Bank of Nigeria (CBN) under the CBN Act, this order temporarily set withdrawal limits and currency exchange rules.
- The Power Sector Reform Order, 2013 – Issued to restructure the electricity sector before the enactment of the Electric Power Sector Reform Act.
Ministerial Orders and Regulations
These are laws, rules, and regulations made by government ministers under their delegated powers. Ministers can issue directives that have the force of law, provided they align with enabling acts passed by the legislature. Examples are;
- The Nigerian Communications (Quality of Service) Regulations, 2013 – Issued by the Minister of Communication to regulate telecom service standards.
- The Immigration Regulations, 2017 – Issued by the Minister of Interior to control visa issuance and residency permits.
Special Procedure Orders
These are regulations granting specific powers to local authorities or government bodies to handle unique situations. They require special parliamentary approval. Examples include;
- The State of Emergency Order, 2013 – This granted the President special powers over Adamawa, Borno, and Yobe States due to insurgency.
- The Police Special Operations Order, 2021 – Issued to guide police actions in crisis zones.
Warrants
A warrant is a legal document issued by a judicial or executive authority, granting permission to carry out specific actions such as arrests, searches, or financial seizures. Examples of warrants in Nigeria include:
- Search Warrants Issued Under the EFCC Act – Used by the Economic and Financial Crimes Commission (EFCC) to investigate financial crimes.
- Arrest Warrants for High-Profile Cases – Courts issue warrants to detain individuals under investigation.
Control of Delegated Legislation
Since delegated legislation grants law-making power to non-legislative bodies, there must be checks to prevent abuse, misuse, or excessive discretionary power. Various control mechanisms ensure that delegated laws remain accountable, lawful, and within the scope of the original legislative intent. These controls can be categorized into parliamentary control, judicial control, ministerial control, financial control, and public scrutiny.
Parliamentary Control
Parliamentary control is essential because delegated legislation derives its authority from the legislature. The National Assembly in Nigeria exercises oversight to ensure that executive bodies do not exceed their powers.
Methods of Parliamentary Control:
- Affirmative Resolution Procedure: Certain regulations require explicit parliamentary approval before they take effect.
- Negative Resolution Procedure: Some regulations automatically become law unless parliament objects within a specified period.
- Scrutiny Committees: Parliamentary committees such as the Committee on Delegated Legislation review statutory instruments to ensure compliance.
- Revocation Power: The legislature has the authority to repeal or amend delegated legislation that exceeds its intent or contradicts public interest.
In 2019, the National Assembly annulled a Federal Inland Revenue Service (FIRS) directive imposing new tax regulations that lacked parliamentary approval.
Judicial Control (Legal Oversight)
The judiciary ensures that delegated legislation adheres to the Constitution and principles of natural justice. Courts can declare regulations ultra vires (beyond legal power) if they exceed the enabling law.
Types of Judicial Control:
- Procedural Ultra Vires: If the correct procedure for making the law was not followed, the court can nullify it.
- Substantive Ultra Vires: If a regulation goes beyond the powers granted by the legislature, it can be invalidated.
- Unreasonableness: Courts can strike down regulations that are irrational or oppressive.
The Supreme Court of Nigeria nullified a police regulation in 2014 that imposed arbitrary levies on motorists, ruling it was beyond police authority.
1. Ministerial Control
Ministers oversee the regulatory bodies under their departments to ensure consistency, accountability, and lawful execution of delegated legislation.
Methods of Ministerial Control:
- Review and Amendments: Ministers can modify or repeal regulations within their jurisdiction.
- Guidelines and Directives: Ministers issue administrative instructions to agencies to guide implementation.
- Periodic Reports: Government agencies submit reports on their delegated functions for ministerial oversight.
In 2020, the Minister of Aviation overruled a Nigerian Civil Aviation Authority (NCAA) regulation that imposed excessive fines on airlines, citing it as an unreasonable burden.
2. Financial Control
Since many delegated bodies rely on government funding, financial oversight ensures accountability and prudent resource management.
Methods of Financial Control:
- Budget Approvals: The National Assembly must approve financial allocations to regulatory agencies.
- Audit Reports: Agencies submit financial statements to the Auditor-General and the Public Accounts Committee.
- Public Procurement Laws: Regulatory bodies must follow government procurement guidelines.
In 2021, the National Assembly investigated the Nigerian Ports Authority (NPA) over financial irregularities in its regulatory activities.
3. Press Criticism and Public Scrutiny
The media, civil society organisations, and the general public play a vital role in exposing excesses, abuses, or inefficiencies in the delegated legislation.
Methods of Public Scrutiny:
- Investigative Journalism: The media can report on unlawful regulations and publicize their effects.
- Public Petitions: Citizens can challenge regulations through petitions and public advocacy.
- Protests and Demonstrations: Civil society groups can mobilize against oppressive regulations.
In 2018, public outcry forced the Nigerian Communications Commission (NCC) to withdraw a regulation that imposed excessive data tariffs on mobile users.
Reasons for Delegated Legislation
Delegated legislation is necessary due to the increasing complexity of governance. The following are key reasons why legislative powers are delegated:
1. To Reduce the Workload of Parliament
The National Assembly cannot handle every aspect of lawmaking due to time constraints. Delegating some functions ensures a faster legislative process and prevents delays in governance. E.g., The Central Bank of Nigeria (CBN) Act allows the CBN to issue monetary regulations without waiting for full legislative approval.
2. To Facilitate the Law-Making Process
Some laws require frequent updates due to technological, economic, or social changes. Delegated legislation allows for quick adjustments without the need for lengthy parliamentary debates. For example, the Federal Road Safety Commission (FRSC) frequently updates traffic regulations to match modern road conditions.
3. Due to the Technical Nature of Some Legislation
Certain laws require technical expertise that lawmakers may lack. Delegating authority to professionals and regulatory agencies ensures that specialized knowledge is applied. For example, the Nigerian Electricity Regulatory Commission (NERC) makes complex decisions on electricity tariffs that require an expert understanding of energy pricing models.
4. To Avoid Rigidity in Governance
Delegated legislation allows flexibility in governance, enabling quick responses to emerging situations without waiting for lengthy legislative procedures. For example, during the COVID-19 pandemic, the Nigerian government issued emergency health regulations through executive orders instead of waiting for full legislative approval.
5. To Address Emergency Situations
In times of war, natural disasters, health crises, or national security threats, the government must act swiftly. Delegated legislation allows the executive branch to issue urgent regulations. For example, the State of Emergency Regulations (2013) empowered security agencies to combat Boko Haram insurgents in the North-East without delays.
6. To Address Local Needs
Local governments have unique challenges that require localised solutions. Delegated legislation empowers local authorities to make decisions suited to their communities. For example, various states have enacted Open Grazing Prohibition Laws to address farmer-herder conflicts.
Advantages and Disadvantages of Delegated Legislation
Delegated legislation provides efficiency, flexibility, and expertise in governance, but it also raises concerns about accountability, overreach, and democratic principles. Below is a detailed analysis of its merits and demerits.
Advantages
1. Saves Time for the Legislature
The National Assembly has limited time to debate every detail of legislation. Delegating some responsibilities allows it to focus on broader national issues. E g., The CBN Act empowers the Central Bank of Nigeria to regulate monetary policies, reducing legislative workload.
2. Ensures Speed and Efficiency
Since delegated legislation does not require full parliamentary debates, rules and regulations can be made quickly to respond to changing circumstances. E.g., During the COVID-19 pandemic, emergency health regulations were issued rapidly to prevent the spread of the virus.
3. Allows for Flexibility
Laws can be amended or updated quickly to suit emerging trends, rather than waiting for lengthy legislative reviews. E g., The Telecommunication Regulations (2003) allowed the NCC to adjust rules governing Internet services as technology evolved.
4. Encourages Expertise in Law-Making
Parliament consists of politicians, not necessarily experts in specialised fields like finance, health, or engineering. Delegated legislation allows professionals to apply technical knowledge in law-making. E.g., The Nigerian Electricity Regulatory Commission (NERC) ensures that electricity tariffs are determined by energy experts, not politicians.
5. Adapts to Local Needs
Different states or local governments have unique needs. Delegated legislation allows regional bodies to create rules that suit their local conditions. E.g., The Lagos State Traffic Law (2012) imposed restrictions on commercial motorcycles to address traffic congestion, a unique problem in Lagos.
6. Suitable for Emergency Situations
In cases of war, economic crises, health pandemics, or national disasters, laws need to be made swiftly. Delegated legislation ensures a quick response. For Example, The 2013 State of Emergency Regulations in Borno, Yobe, and Adamawa enabled security forces to act swiftly against insurgency.
7. Encourages Public Participation
Some delegated bodies conduct public consultations before making regulations, allowing citizens to contribute to policy-making. E.g., The Nigerian Communications Commission (NCC) organises stakeholder meetings before implementing new telecom regulations.
Disadvantages
1. Reduces Parliamentary Supremacy
Parliament is the primary law-making body, but delegated legislation shifts some of this power to unelected officials, reducing legislative authority. E.g., Executive Order No. 10 (2020) gave state governors broad financial autonomy without full legislative approval.
2. Prone to Abuse of Power
Some government agencies misuse their regulatory powers to implement policies that serve their interests rather than the public good. E.g., In 2021, the CBN banned cryptocurrency transactions without prior public debate, raising concerns about overreach.
3. Contradicts the Principle of Separation of Powers
In a democracy, law-making, execution, and enforcement should be separate. Delegated legislation allows the executive arm to make laws, violating this principle. For Example, the 2017 Presidential Executive Order on asset seizure granted excessive powers to law enforcement agencies without judicial oversight.
4. Makes Judicial Review Difficult
Courts have the power to declare laws ultra vires (beyond legal authority), but the sheer volume of delegated legislation makes it difficult to challenge every unlawful regulation. For example, many local government by-laws go unchecked due to limited judicial oversight.
5. Encourages Dictatorship and Authoritarianism
Unelected officials may use their law-making powers to enforce oppressive or controversial regulations. E.g., In 2019, the Hate Speech Bill proposed excessive fines for online speech, raising fears of censorship.
6. Lack of Transparency
Many regulations are made without public awareness, leading to secrecy and poor communication with citizens. For example, the 2020 Import Duty Adjustment Policy was enforced before businesses were formally notified, causing confusion.
7. Violates the Rule of Law
Some agencies implement laws without consulting parliament or the judiciary, undermining constitutional governance. E.g., In 2015, the Department of State Services (DSS) detained journalists under an obscure regulation that lacked legislative backing.
8. Can Violate Fundamental Human Rights
Certain regulations may infringe on human rights, such as freedom of speech, assembly, or privacy. E.g., The Social Media Bill (2019) proposed severe penalties for online posts, which critics saw as a violation of free speech.
Nigeria’s Orders in The Council
Orders in Council refer to regulations issued by the executive (often the President or Governor) with legal authority, particularly during emergencies or administrative matters. In Nigeria, these orders have been used in several instances:
State of Emergency Declaration (2013)
President Goodluck Jonathan issued an Order in Council declaring a state of emergency in Borno, Yobe, and Adamawa due to Boko Haram insurgency. This order granted the military extraordinary powers to restore peace.
COVID-19 Lockdown Order (2020)
President Muhammadu Buhari issued an executive order restricting movement in Lagos, Ogun, and the Federal Capital Territory. This regulation was legally backed by the Quarantine Act, making it enforceable nationwide.
Executive Order on Financial Autonomy (2020)
Executive Order No. 10 was issued to grant financial independence to state legislatures and judiciaries, bypassing lengthy parliamentary debates.
Petroleum Price Regulation Order (2021)
The NNPC issued an order regulating petrol prices, which was later criticised due to a lack of consultation with the legislature.
Police Reforms Executive Order (2020)
After the #EndSARS protests, an Order in Council directed immediate reforms in the Nigerian Police Force, including disbanding the SARS unit.
Final Thoughts
Delegated legislation remains an essential tool for governance, allowing governments to make quick, specialised, and localised decisions. However, without proper oversight, it can lead to abuse, secrecy, and democratic concerns. The Nigerian experience shows both successes and failures in delegated law-making. Effective parliamentary, judicial, ministerial, and public controls are necessary to balance efficiency with accountability.
