UNIVERSITY OF UNIVERSITY

SCHOOL OF LAW
UNIT 6: DELEGATED LEGISLATION
By
Chitengi Sipho Justine
PhD Candidate; LLM; LLB; BSc; PG Cert; CPD; PG Cert; AHCZ
And
George Mpundu Kanja
LLM; LLB; PG Dip; AHCZ
 STRUCTURE OF PRESENTATION
• 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
 Introduction
• 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.
 Introduction
• 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.
 Introduction
• 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.
 Introduction
• The exercise of ministerial power is subject to
a number of control namely:
• (i) Parliamentary Scrutiny /Control
• (ii) Courts’ Scrutiny / Judicial Control
• (iii) Collective and Ministerial Responsibility
• (iv) Parent Act or Enabling Act
Definition of Delegated Legislation
• The constitutional principle of parliamentary
sovereignty or supremacy means that
Parliament can enact or repeal legislation or law
as it sees fit (clarify).
• 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.
Picking [1974] AC 765
Definition of Delegated Legislation
• 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.
Definition of Delegated Legislation
 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.
Definition of Delegated Legislation
• 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.
Definition of Delegated Legislation
• 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.
Definition of Delegated Legislation
• 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.
Definition of Delegated Legislation
• 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.
Definition of 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.
 Justification for Use 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.
 Justification for Use of Delegated
Legislation
• (ii) There is need to harm 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.
 Justification for Use of Delegated
Legislation
• (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 scrutinised by
Parliament.
 Justification for Use of Delegated
Legislation
• 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.
 Justification for Use of Delegated
Legislation
• 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.
 Justification for Use of Delegated
Legislation
• 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.
 Justification for Use of Delegated
Legislation
• 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.
 Arguments Against Delegated
Legislation
• 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.
 Arguments Against Delegated
Legislation
• (iii) A vast amount of law is created,
statutory instruments out-numbering by far
the amount of Acts passed by Parliament
each year.
 Types of Delegated Legislation
• Delegated legislation consists of the following:
• (1) Statutory Instruments
• (2) By-Laws
• (3) Rules and Regulations
• (4) Circulars
 (1) Statutory Instruments
• 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.
 (1) 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.
 (1) Statutory Instruments
• 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.
 (1) Statutory Instruments
• Members of Parliament, not less than 30 I
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.
• 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.
 (1) Statutory Instruments
• 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.
 (2) By-Laws
• Other than Sis, 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, ect, 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.
 (2) 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;
 (2) By-Laws
• (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.
 (3) Rules and Regulations
• 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.
 (4) Circulars
• 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.
 (4) Circulars
• 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.
 (4) Circulars
• 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.
 Restrictions on Delegation
• 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.
 Restrictions on Delegation

• 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.
 Control of Delegated Legislation
(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
 Control of Delegated Legislation
(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.
 Control of Delegated Legislation
• (ii) Sessional Committee of Parliament
scrutinises the Sis.
THANK YOU