Forms Primary Legislation Take- Bodies That Have Power To Make Subsidiary Legislation
The power to make primary legislation is exercised by making legislative instruments in accordance with required procedures – a process which can be referred to as “enactment”. That term may also be used to refer to the instrument itself, or even to a legal proposition contained in a single sentence in the instrument. Those instruments may be referred to collectively as “statutes”, as well as “primary legislation”.
The Constitution typically prescribes the basic features of the enactment process, referring to an individual instrument before enactment as a “Bill”, and after it as an “Act”.
In federal systems, a different term may be used to refer to State instruments after enactment, to distinguish them from federal enactments (e.g. “Law”).
In dependent territories, a different term may be used to refer to local instruments after enactment, to distinguish them from metropolitan enactments (e.g. “Ordinance”).
In military regimes, a different term may be used to refer to instruments made by the Military Council after enactment (e.g. “Decree” or “Edict”).
Bodies That Have Power To Make Subsidiary Legislation
The legislatures typically have full powers to make laws on all matters, subject to the limitations stated in the Constitution (e.g. in federal jurisdictions, where certain exclusive powers may be reserved to the federal or state legislatures). See Section 4(2) of the 1999 Constitution of Nigeria. This is generally expressed as:the power to make laws for the peace, order and good government of Nigeria.
This power permits the delegation of a limited legislative competence to other bodies, even when, as is usually the case, the Constitution is silent on the matter. Those bodies may exercise that power, within the limits permitted, by issuing their own legislative instruments, commonly referred to as “subsidiary legislation” or “secondary legislation”. A term often used to describe an individual piece is “instrument”. Other terms describing this form of legislation in general use include:
- “delegated legislation”;
- “legislative instruments”;
- “subordinate legislation”;
- “statutory instruments”;
- “subsidiary instruments”.
In this Course, these are referred to collectively as “subsidiary legislation” and individually as “legislative instrument”.
Delegation of the legislative power is typically to a wide range of bodies, e.g. the President, Ministers of the Government, statutory authorities, local government councils. In the usual case, the delegation
is to enable subsidiary legislation to be made to supplement a body of rules on a specific matter that are already set out in primary legislation. But more general powers may be granted to bodies performing a governmental role over a limited area or activity (e.g. local government councils). But in both instances, the delegation and the limits upon it are found in primary legislation, which takes precedence.