UNIT 6: DELEGATED LEGISLATION

Kasumpa M Kabalata
 Introduction
 Definition of Delegated Legislation
 Justification for Use of Delegated Legislation
 Types of Delegated Legislation
 Limitations or control of Delegated Legislation
 Admin. Agencies and Delegated Legislation
 Executive power can be exercised by a
number of agencies, such as local authorities,
tribunals, commissions, public bodies, or non-
statutory agencies.
 In constitutional terms, however, the most
important executive powers and duties will
be those exercised and discharged by
ministers.
 As will be seen most of the powers exercised
by ministers are those delegated to them by
Parliament in statutes, and as such ministers
are subject to the ultra vires doctrine in the
exercise of those powers.
 This means that a minister must not exceed
the scope of the power, or exercise it in a
manner that is unfair or irrational.
 Some of these powers are ‘legislative’ in
nature, in the sense that they provide a
minister with the discretion to enact
delegated legislation if necessary.
 Some powers are not based on statute at all,
notably prerogative powers, dealing with
matters such as conduct of foreign affairs and
defence.
 The exercise of ministerial power is subject
to a number of control namely:
 (i) Parliamentary Scrutiny /Control
 (ii) Courts’ Scrutiny / Judicial Control
 (iii) Collective & Ministerial Responsibility
 (iv) Parent Act or Enabling Act
• These are laws passed by ministers.
• The constitutional principle of parliamentary
sovereignty or supremacy means that
Parliament can enact or repeal legislation or
law as it sees fit.
• A consequence of this is that the courts cannot
question the validity of primary legislation,
either on its merits, or on the grounds of
procedural impropriety – even when the
allegation is fraud. See British Railway Board v.
Pickin [1974] AC 765
• Despite the ever increasing volume of the primary
legislation (sometimes referred to as the ‘Parent
Act’ or the ‘Enabling Act’), the complexities of
governing a sophisticated society necessitate
the delegation of legislative functions to
inferior bodies, such as ministers and local
authorities.
• In Zambia the Parliament which consists of the
President and the National Assembly is
mandated by the constitution to enact laws.
 Legislative power of Parliament
• Article 62: The legislative power of the Republic
of Zambia shall vest in Parliament which shall
consist of the President and the National
Assembly.
 Exercise of legislative power of Parliament
• Article 78(1): Subject to the provisions of this
Constitution, the legislative power of
Parliament shall be exercised by Bills passed
by the National Assembly and assented to by
the President.
• The legislative power enjoyed by Parliament not only
allows the Parliament to enact legislation, or Acts of
Parliament but also to alter the Constitution of the
Republic of Zambia except Part III of the
Constitution which consists of the Bill of Rights.
• Article 79(1) (2)(b): Subject to the provisions of this
Article, Parliament may alter this Constitution or the
Constitution of Zambia Act, if on the second and
third readings by the votes of not less than two
thirds of all members of the Assembly.
• Parliament in the exercise of its legislative powers
may confer, through Acts of Parliament, on
ministers or other executive bodies the power
to make rules with the force of law.
• Parliament is said to delegate to such bodies the
power to legislate.
• Article 80(1): Nothing in Article 62 shall
prevent Parliament from conferring on any
person or authority power to make statutory
instruments.
 The phrase “delegated legislation” covers
every exercise of power to legislate
conferred by an Act of Parliament.
 In determining whether or not the exercise of
legislative power results in “delegated
legislation” we have to ask whether it is a
delegated power that is being exercised and
whether its exercise is legislative.
 It follows therefore that Acts of Parliament
make up primary legislation.
 However, when a minister or other authority is
given power by an Act of Parliament to
make rules, regulations, orders etc, the
power has been delegated to him, and
insofar as the rules are legislative, they
comprise delegated legislation.
• In short delegated legislation comes into being
when Parliament confers on persons or
bodies, particularly Ministers in charge of
government ministries, power to make
regulations for specified purpose.
• Such regulations have the same force of legal
force as the Act under which they are made.
• If the contents of the document made under a
delegated powers are not legislative the
documents will obviously not be a piece of
delegated legislation.
• (i) It is often argued that, it is enough that for
parliament to concern itself with the principles
underlining Acts of Parliament. Their application in
detail through regulations can safely and properly
be left to administration.
• For example, many regulations deal with technical
matters such as the safety of consumer goods, safety at
work place. These regulations are often extensive and
detailed.
• For these reasons, it is viewed as unwise for too much
detail to be put in the Acts.
• (ii) There is need to arm the state with power
to deal with emergencies.
• It is not possible for the legislature to foresee
the consequences or effect of the law they
enact, it is therefore necessary to confer in
some people the power to act promptly as
dictated by the needs of the time.
• Parliament is not always in session and as such
may fail to deal with an emergency.
• (iii) It may be necessary to leave matters to be
dealt with in regulations because at the time
when the bill is presented before the National
Assembly, government does not know exactly
how to deal with the problem it has set out to
address.
• (iv) Parliament does not have time nor
reasons to enact every single piece of
legislation that is needed in the form of
primary legislation which can be fully debated
and scrutinized by Parliament.
• As a result various administrative agencies are
empowered to enact delegated legislation, under the
auspices of the parent Act, that has the force of law.
• (v) The demands placed upon a modern
government are such that parliamentary time is at a
premium, and consequently a better use of can be
achieved by drafting primary legislation in general
terms, providing the relevant minister with wide
powers to introduce such measures as he considers
necessary in order to implement the policy goals of
the enabling or Parent Act.
• This has a further advantages in that it allows
flexibility, measures can be introduced quickly
where this is seen as desirable, and the minister
concerned can introduce new measures to deal with
unforeseen situations or emergencies.
• Clearly this is more efficient than having to
introduce a new piece of legislation to deal with
each emergent problem in a given area.
• For example, an enabling Act may give a minister
general powers to prohibit or ban the export of scrap
metals or movement of livestock.
• Similarly, an enabling Act may provide a
minister with the powers necessary for
providing a public service, such as the
running of the university, prison service, police
service.
• Under the parent Act the minister can be
empowered to make rules for the conduct
of the university or service, as may be
necessary from time to time.
• In summary, delegated legislation performs the following
functions:
• (i) It saves the time of Parliament to concentrate on
discussing matters of general policy.
• (ii) It can be brought into existence swiftly, enabling
ministers to deal with urgent situations, such as a strike
in an essential industry or outbreak of an epidemic
• (iii) It enables experts to deal with local or technical
matters.
• (iv) It provides flexibility, in that regulations can be
added to or modified from time to time without the
necessity for a new Act of Parliament.
• The following arguments are often advanced
against delegated legislation:
• (i) Law making is taken out of the direct
control of elected representatives and is
placed in the hands of employees of
government ministries, departments, or
statutory bodies or agencies. This is in theory
less democratic .
• (ii) Parliament does not have enough time to
effectively supervise delegated legislation or
discuss the merits of the rules being created.
 (iii) A vast amount of law is created,
statutory instruments out-numbering by
far the amount of Acts passed by
Parliament each year.
 Delegated legislation consists of the following:
 (1) Statutory Instruments
 (2) By-Laws
 (3) Rules and Regulations
 (4) Circulars
• The most popular form of delegated legislation in
Zambia is statutory instruments.
• Article 62 of the Constitution confers the
legislative powers of the Republic of Zambia in
Parliament, which is made up of the President and
the National Assembly.
• Notwithstanding Article 62, Article 80(1)
provides that Parliament can confer on any
person or authority power to make statutory
instruments.
• The Interpretation and General Provisions Act,
Cap 2 defines “statutory instrument” as any
proclamation, regulation, order, rule, notice or
other instrument (not being an Act of
Parliament) of a legislative, as distinct from an
executive character;
• Section 18 of Interpretation and General
Provisions Act provides that every statutory
instrument shall be published in the Gazette
and shall be judicially noticed.
• Every statutory instrument must be published
in the Gazette not later than 28 days after it is
made.
• However, in the case of instruments which will
not have the force of law until approved by
some body or authority, such instrument must
be published not later than 28 days from date
of its approval. (Article 81(2) )
• Article 27 of the Constitution provides some
mechanism for ensuring that the provisions of the
SI remain intra vires the Constitution.
• Members of Parliament, not less than 30 In number,
may request a report on a SI from the authority who
originated it within 14 days from the date of
publication.
• The Chief Justice can appoint a tribunal to investigate
the constitutionality of the statutory instrument. If
not happy with statute put it in writing.
• The tribunal is under obligation to submit a report on
the matter to the President stating, in its opinion
the provisions of the SI, which are inconsistent with
the Constitution.
 Where the report of the tribunal is that the SI
is in conflict with the Constitution the tribunal
will state the grounds of the belief.
 Once the tribunal has reported that the SI is in
conflict with the provisions of the
Constitution the President may annul such
instrument.
• Other than Statutory instruments, there are other
instruments, which have the force of law such as by-laws.
• By-Laws have been defined as rules made by some
authority subordinate to the legislature for the
regulation, administration or management of a certain
district, property, undertaking etc, and binding on all
persons who come within their scope.
• In case of the local authorities by-laws are rules made by
the local authorities, and their operation are restricted
to the locality to which they apply.
• Section 76 of the Local Government Act confers powers on
the Councils to make by-laws.
• 76. (1) Subject to the provisions of this Act, a council
may make by-laws for the good rule and
government of its area and, more particularly-
• (a) for controlling any of the things which, and any
of the persons whom, it is empowered by or under
this Act to control;
• (b) for prohibiting any of the things which it is
empowered by or under this Act to prohibit;
• (c) for requiring or compelling the doing of any of
the things which it is empowered by or under this
Act to require or compel;
• (d) for providing for the issue or supply of licences
permits, certificates and other instruments and
documents.
• (2) A by-law made by a council under this Act may make
different provisions with respect to different parts of
the area of the council, different classes of persons,
different classes of things and different circumstances.
• No by-law can, however, have the force of law until it has
been confirmed by the Minister.
• The argument in support of for by-laws is that authorities
need to make laws suited to their particular
circumstances.
 A statute may authorise a minister or a
government minister to make a wide variety of
rules and regulations.
 These rules, and orders in Council, are
collectively known as statutory instruments.
• Government departments frequently issue
circulars to other authorities.
• By a circular, we mean no more than a
communication of which copies are sent to
several persons.
• A circular may do no more than contain
information, for example, drawing the authorities
attention to a recently published report, or
explaining a new legislation or a new government
policy, which the authorities are being called upon
to observe.
• A circular may contain advice as to the exercise by
the recipient of some powers.
• A circular may go further than this and confer
powers or impose duties.
• Depending upon the language and effect, a
circular may assume the force of law.
• For instance, the guidelines of the sale of govt.
houses to sitting civil servants are contained
in a circular issued by Cabinet. This provides
the legal framework and the authority to
dispose of Govt. houses.
 In the event of dispute between parties as to
the legality or propriety of action or
decision taken in relation to the disposal of
the houses, the decision may be founded on
the interpretation of the content of the
circular.
• The Statutory Functions Act, Cap 4 restricts the delegation of statutory
functions.

• 5. (1) No person may delegate a statutory function with which he is

vested unless he is expressly so authorised by the Act by or under
which such function was conferred or imposed:
• Provided that the President, the Vice-President, a Minister, the
Secretary to the Cabinet, the Attorney-General or a Deputy Minister
may, subject only to section six, by writing under his hand, delegate to
any other person any statutory function with which he is vested.
• (2) Any delegation of a statutory function may be made subject to
such conditions, qualifications or exceptions as may be prescribed
therein.
• (3) Any person who has delegated a statutory function may,
notwithstanding such delegation, discharge, such function himself.
• 6. (1) The President shall not transfer any statutory function-
Restrictions on transfer and delegation
• (a) conferred on any person by the Constitution; or
• (b) conferred on a Judge of the High Court or the Supreme
Court; or
• (c) which he is expressly prohibited from transferring by any
Act.
• (2) No person shall delegate any statutory function-
• (a) which he is expressly prohibited from delegating by any Act;
or
• (b) unless a contrary intention is expressed-
• (i) which is conferred on him by the Constitution; or
• (ii) to make statutory instruments or to hear appeals.
(1) Judicial Control

• If a minister, government ministries,

department, or statutory agency or local
authority exceeds its delegated powers its
action would be held by the court to be
ultra vires (beyond the powers of) and
therefore void
(2) Parliamentary Control
• There are several methods of Parliamentary control.
• (i) Some SIs must be laid before Parliament
• Section 22 (1) of Cap 2 states: All rules, regulations and by-
laws shall be laid before the National Assembly as soon as
may be after they are made, and, if a resolution is passed
within the next subsequent twenty-one days on which the
National Assembly has sat after any such rule, regulation or
by-law is laid before it that the rule, regulation or by-law be
annulled, it shall thence-forth be void but without prejudice
to the validity of anything previously done thereunder, or to
the making of any new rule, regulation or by-law.
 (ii) Sessional Committee of Parliament
scrutinises the Sis.
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