The Nature and Definition of

Delegated Legislation
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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.