Parliamentary Control of Delegated Legislations

CTL CLASS – 27^TH APRIL 2011)

 

© JABA SHADRACK, Department of Public Law, School of Law (Formerly, Faculty of law) at the University of Dar es Salaam, Tanzania

  Lecture II

  A Recap of/to Lecture I

1. Disadvantages of Delegated Legislation (Critique)
   
2. Control of powers to make Delegated Legislations
   
   1. Parliamentary Oversight
      
   2. Judicial Oversight
      
   A: Parliamentary Oversight
   

  A Recap of/to Lecture I

• Define what is meant by delegated legislation and how delegated powers are granted.
  
• Describe the main forms of delegated legislation.
  
• Identify the main reasons for delegated legislation.
  
• Differentiate between Enabling Act, and Enabling Provision.
  
• Show the basis of Ministers and local authorities to make delegated legislations?
  
• Who exercises power to make delegated legislation?
  

  Disadvantages of Delegated Legislation (an appraisal/critique) 

1. It is subject to less parliamentary scrutiny than principal legislation. This may lead to inconsistencies between Principal and Delegated legislations. Thus, unless such inconsistent law (Delegated legislation) is challenged and declared a nullity in the Court of law, it continues to curtail people's rights and freedom.
   
2. It violates the principle of Separation of Power (Article 4 of the Tanzania Constitution, 1977).
   
3. Creates a loophole for the government (the executive, especially Ministers) to use delegated legislation to abrogate or circumvent Principal legislation or to push their hidden agenda/scheme/project/reform through delegated legislations. In England such kind of powers are known as 'Henry VIII Powers'.
   
4. Many laws are made through the use of delegated powers. It is estimated that more than 250 delegated legislations are made every year in Tanzania. This makes the law unstable and thus uncertain.
   
5. Increasing use of delegated legislation lead to subordination of the Parliament.
   
   
   
   
   Lord Hewart of Bury (the then Lord Chief Justice of England) call this the 'new despotism' which aims at, 
   
   
   
     "…to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme".
   
    
6. Lack of democracy: Delegated legislations are made by unelected people or bodies (i.e. civil servants such as Directors, Commissions, government departments, Boards, regulatory agencies, the Chief Justice and etc).
   
7. Lack of publicity: The public is often unaware of new law which is introduced by statutory instruments. Besides, people are less involved in making delegated legislations, thus the society has limited knowledge about provisions of such laws.
   
8. 
   

   The law confers enormous powers to the Minister over by-laws made by local authorities to the extent of undercutting the essence of decentralisation of powers. On this point, the Legal Aid Committee (the UDSM - Faculty of Law)

   says,
   
   
   
   
    
   
   
   "A by-law made by local authorities does not become law until it has been approved by the Regional Commissioner and consented to by the Minister. Thus at the level of legislation we see a lot of relationship between the local authorities and the central government represented by the Regional Commissioner and the Minister. The central government also seems to have overriding powers over local authorities. If the aim was decentralization and democracy, this position needs to be reappraised".
   

NB: Refer, Section 90(3)(4) of The
Local Government (Urban Authorities) Act [Cap. 288, RE: 2002], and Sections 152-180 of The
Local Government (District Authorities) Act [Cap. 287, RE: 2002).

Control of the Power to make Delegated Legislations

1. A: Parliamentary Oversight
   

In Tanzania, the National Assembly controls Delegated Legislation by stipulating parameters or the ambit in the Principal legislation within which the enactment (Delegated Legislation) should confine itself. There are two ways of which a Parliament exercises power over Delegated Legislations, i.e. direct and indirect control.

(a) Direct Control

Laying regulations or by-laws before the National Assembly.

Under this method, the National Assembly scrutinises directly Delegated Legislations made by delegated individuals or bodies by requiring laws made to be laid before it for approval or rejection (disallowance). Here the parliament can do the following (depending on the conditions set by the enabling Act):-

•  Negative resolution procedure 

This is a common form of control which may or may not involve a motion of annulment. A Delegated Legislation become law with acquiescence (agreeing by silence) i.e. without a debate or a vote (but may be opposed by a Member of the National Assembly). Usually, the Delegated Legislation is laid before the National Assembly in draft for a certain period, and on the expiration of such time without being disapproved by the same becomes a law. Or it may be laid before the National Assembly after it is made (before it comes into force), but will be revoked if the same passes a resolution annulling it within a certain period of time. Therefore, if there is no motion of annulment in the National Assembly within the statute-specified time the Delegated Legislation becomes a law.

NB: Section 38(1)(2) of Cap. 1 provides that,

"(1) All regulations shall be laid before the National Assembly within 6 sitting days of the National Assembly next following publication of the regulations in the Gazette.

(2) Notwithstanding any provision in any Act to the contrary, if the National Assembly passes a resolution disallowing any regulations of which resolution notice has been given within 14 sitting days of the National Assembly after such regulations have been laid before it or if any regulations are not laid before the National Assembly in accordance with subsection (1), such regulations shall cease to have effect, but without affecting the validity or curing the invalidity of anything done or of the omission of anything in the meantime."

• Affirmative resolution procedure

There are Delegated legislations which require a positive approval of the National Assembly to become law. These kinds of Delegated Legislations are less common in law making process. The affirmative resolution is used where the delegated legislation may be more controversial especially one which relates to financial matters. These procedure is carried before a Delegated Legislation is made (i.e. in draft form) or after it is made but before coming into force or
after it is made and has come into force but it cannot remain in force for longer than a specified period. The National assembly must expressly approve them to become law. The National Assembly has to vote for the Delegated Legislation to become law.

NB: The National Assembly does not amend statutory instruments laid before it, but merely scrutinize them prior to their enactment/promulgation or after enactment to allow drafting errors to be corrected. 

• Supervision by Parliamentary Committees

This is done by a special select Committee charged with the function to oversee delegated legislation. Such Committees are formed when the envisaged Delegated Legislation relate to issues of public policy or interest.

•  Government Ministers are accountable and can be questioned by the National Assembly. 

NB: Refer the principle of "Ministerial Responsibility" (Individual and Collective Responsibility).

 (b)  Indirect control 

• (i.e. Substantive and Procedural Matters in the Enabling Act)

The National Assembly or House of Representatives, usually sets pre-conditions (either substantive or procedural) upon individuals or bodies making Delegated legislation must adhere to.

1. Publication (antecedent and subsequent publicity)
   

Here the enabling Act may require either publicity of the proposed Delegated Legislation (in draft) or publicity of the same after it comes into force (or both).

NB: Section 37(1)(a)(b) of Cap. 1 provides that,

Examples:

• Subsequent publicity
  

**Section 37(1)(a) of Cap. 1

"(1) Where a written law confers power to make subsidiary legislation, all subsidiary legislation made under that power shall, unless the contrary intention appears–

• Be published in the Gazette;

** Section 19(2) of The Armaments Control Act (Cap. 246, RE: 2002),

**Section 33(2) of The Arms and Ammunition Act (Cap. 223, RE: 2002)

**Sections 90(5) of Cap. 288 [The Local Government (Urban Authorities) Act]

• Statutory Consultation

Here the enabling Act requires an individual or body enacting Delegated Legislation to seek/have audience with people (area) or organisations which is likely to be affected by a Delegated Legislation.

Examples:

**Section 62 of The Universities Act (Act No. 5 of 2005) obligates the Minister to consult the Tanzania Commission for Universities before making regulations.

**Section 78(1) of The Education Act (Cap. 353, RE: 2002) requires the Minister to make regulation after consultation with the Educational Advisory Council.

**Section 92(2) of Cap 288

"Where the Minister proposes to invoke the power conferred by section 91 to make uniform by-laws in respect of all or a category of urban authorities, he shall, at least two months before making the by-laws by notice published in the Gazette and in any national newspaper or, as the case may be, any newspaper circulating in the area of the urban authorities or category of urban authorities proposed to be made, give notice of his intention, indicating the precise purport of the intended by-laws, and shall call upon all interested authorities affected, and persons within the area of jurisdiction of those urban authorities, to lodge any objections in writing with him in a manner and within such time as may be prescribed; and an urban authority may request that it be permitted to appear and be heard by the Minister".

• Statutory subject matter and content

The enabling Act may also list matters which the Minister or body making Regulations or by-laws may enact upon.

E.g. Section 19(1)(a)-(h) of The Armaments Control Act (Cap. 246, RE: 2002), Section 33(1)(a)-(j) of The Arms and Ammunition Act (Cap. 223, RE: 2002).

• National Assembly's sanction over Administrative Orders.

For instance, the President's proclamation of the state of emergency under Article 32(1)-(3) of the Constitution must be supported by a resolution (votes) of not less than two thirds of all members of the National Assembly.

MISCELLANEOUS

  Rationale of Parliamentary oversight

To monitor powers which it has delegated.

Status of the Delegated Legislation after the enabling/empowering Act is repealed.

• Repeal of an enabling Act does not nullify instruments made therein; save where the repealing Act expressly (or by reasonable implication) nullifies the same or such instruments are inconsistent/irreconcilable with the repealing Act.
  
  
  **Section 33 of Cap. 1
  
  (1) Where an Act–
  
      (a)    repeals an Act and substitutes other provisions; or
  
      (b)    repeals and re-enacts an Act, with or without modification, any subsidiary legislation made under the repealed Act and in operation immediately before the commencement of the repealing Act shall, so far as it is consistent with the repealing Act, continue in operation and have effect for all purposes as if made under the repealing Act.
  
  (2) Subsidiary legislation which continues in operation under subsection (1), may be amended or repealed as if it has been made under the repealing Act.
  
  
    Case
  Diamond Motel Ltd. v. Jasper School Board
  (1977) 2 A.R. 586 (T.D.)
  held that regulations or orders, made under a repealed statute, remain in force where other provisions are substituted by way of amendment, revision or consolidation.
  
  Normally, 'the saving/transition provision' in the repealing Act will provide the status of instruments made under the repealed Act.
  
  
  For example, The Law of the Child Act (Act No. 21 of 2009) under section 160(1)(a)-(e) inter alia, repeals the Affiliation Act; the Adoption Act; the Day Care Centres Act; the Children and Young Persons Act; and the Children Home (Regulation) Act. However, Sub-sections 2(c)(d) of section 160 retains Delegated Legislation made under repealed laws by providing that; 
  
  
  "(c) All rules made under the provisions of the repealed laws shall be deemed to have been made under this Act and shall remain in force and have effect until replaced in accordance with the provisions of this
  
  Act; and
  
  (d) All orders, notices, by-laws, directives given or anything given or made by a person authorized as such by an officer so authorized to give or make orders, notices, by-laws, directives given under the repealed Acts shall he deemed to have been made under this Act and shall remain in force and have effect until amended or withdrawn under this Act".
  
  
  
  Quiz for the Recap (Prelude to Lecture III):
  
  • Show the cons and pros of Delegated Legislation in the law making process.
    
  • With vivid examples, critically examines the role of the National Assembly in controlling legislative powers delegated to Ministers and Local Authorities in Tanzania.
  
  References:
  
  
  The Legal Aid Committee of the UDSM - Faculty of Law (1985) Essays on Law and Society. Sapoba Bookshop Press, Uganda
  
  Lord Hewart (1929) The New Despotism. London: Ernest Benn Limited
  
  The Statutory Instruments House of Commons Information Office Factsheet L7 (RE: 2008)