Introduction
This essay aims to delineate the differences between primary and subsidiary legislation within the context of legal frameworks, with a particular focus on the reasons why legislatures often delegate their law-making powers to other bodies. Primary legislation refers to laws enacted directly by the sovereign legislative body, such as Parliament, while subsidiary legislation comprises rules and regulations created under the authority of primary legislation by designated bodies or officials. The delegation of legislative powers is a common practice globally, including in jurisdictions like Nigeria, where case law provides insight into the complexities and justifications for such delegation. This essay will explore the conceptual distinctions between these forms of legislation, evaluate the rationale behind delegation, and analyse relevant Nigerian case law—albeit with a caveat that specific details of cases like *Enemchukwu v Okoye (2025) NWLA 330* are fictional for illustrative purposes as they cannot be verified due to the lack of accessible records in this context. Instead, general principles and alternative Nigerian legal examples will be discussed. Through this analysis, the essay seeks to demonstrate a broad understanding of the topic while maintaining a critical perspective on the implications of legislative delegation.
Defining Primary and Subsidiary Legislation
Primary legislation constitutes the fundamental laws enacted by the highest legislative authority in a state, such as Acts of Parliament in the UK or the National Assembly in Nigeria. These laws are typically comprehensive, addressing broad policy issues, and require extensive debate and scrutiny before enactment. For instance, in the UK, the Human Rights Act 1998 represents primary legislation that incorporates the European Convention on Human Rights into domestic law (Griffith, 2010). The process of creating primary legislation is often time-consuming due to the need for detailed parliamentary procedures, including multiple readings and amendments.
In contrast, subsidiary legislation, also known as delegated or secondary legislation, consists of detailed rules and regulations formulated by bodies or individuals authorised by primary legislation. These can include statutory instruments, by-laws, and orders-in-council. In Nigeria, for example, subsidiary legislation may be issued by ministers or government agencies under powers conferred by statutes such as the Nigerian Constitution or specific Acts. This type of legislation allows for flexibility and specificity in addressing technical or administrative matters that primary legislation cannot feasibly cover in depth. However, it is subject to the overarching framework of primary legislation and can be challenged if it exceeds the delegated authority (Wade & Forsyth, 2014).
Rationale for Delegation of Legislative Powers
The delegation of legislative powers from primary bodies to subsidiary entities is driven by several practical and theoretical considerations. Firstly, it addresses the issue of parliamentary time constraints. Legislatures, such as the UK Parliament or the Nigerian National Assembly, often lack the time to scrutinise every minute detail of complex legislation. Delegation allows for the creation of detailed regulations by experts or specialised bodies who can respond swiftly to emerging needs. For example, during public health crises, delegated legislation enables rapid updates to health regulations without the delays of full parliamentary processes (Barber, 2011).
Secondly, delegation facilitates technical expertise. Many modern laws require specialised knowledge that may not reside within the legislature. By delegating powers to bodies like government ministries or regulatory agencies, legislation can benefit from informed input. In Nigeria, this is evident in areas such as environmental regulation, where agencies like the National Environmental Standards and Regulations Enforcement Agency (NESREA) issue detailed guidelines under primary environmental laws (Okonkwo, 2017).
Furthermore, delegation allows for flexibility and adaptability. Primary legislation often sets broad principles, while subsidiary legislation can be adjusted to address changing circumstances or local needs. This is particularly relevant in federal systems like Nigeria, where regional variations necessitate tailored regulations. However, critics argue that excessive delegation may undermine democratic accountability, as unelected bodies wield significant law-making power, potentially leading to a lack of transparency (Wade & Forsyth, 2014).
Case Law and Delegation in Nigeria
In examining the practical implications of delegation, Nigerian case law provides valuable insights, though I must note that the specific case mentioned in the essay title, *Enemchukwu v Okoye (2025) NWLA 330*, cannot be verified as it appears to be a hypothetical or future case not accessible in current legal databases. For illustrative purposes, let us assume a scenario where the plaintiff argued that a piece of subsidiary legislation exceeded the powers granted by the enabling Act, while the defendant, representing a government agency, contended that the regulation was within the scope of delegated authority. If the court held that the subsidiary legislation was ultra vires, it would underscore the judiciary’s role in maintaining the balance of power between primary and delegated authority.
Instead of relying on unverified cases, I will refer to established Nigerian legal principles and precedents related to legislative delegation. A notable example is Attorney-General of Bendel State v Attorney-General of the Federation (1982), which addressed the scope of delegated powers under the Nigerian Constitution. The court emphasised that delegated legislation must conform to the parent statute and cannot contravene constitutional principles. This case illustrates the judiciary’s oversight role in ensuring that delegation does not result in abuse of power (Elias, 1983).
Additionally, in Lakanmi v Attorney-General (Western State) (1971), the Nigerian Supreme Court examined the validity of decrees and subsidiary legislation during military rule, highlighting the tension between delegation and democratic accountability. Although this case predates the current democratic framework, it remains relevant in understanding the historical context of delegated powers in Nigeria. These cases collectively demonstrate the judiciary’s critical role in safeguarding the integrity of legislative delegation while ensuring that subsidiary legislation aligns with primary legislative intent (Okonkwo, 2017).
Critical Perspectives on Delegation
While delegation offers practical benefits, it raises significant concerns about democratic legitimacy. Critics argue that it may lead to a ‘democratic deficit’, as unelected officials or bodies wield substantial influence over law-making without direct accountability to the electorate (Griffith, 2010). In the UK, for instance, the use of statutory instruments during the Brexit process sparked debate over the extent of ministerial powers and the limited parliamentary scrutiny of such measures. Similarly, in Nigeria, the proliferation of subsidiary legislation by federal agencies has prompted calls for clearer guidelines on delegation to prevent overreach.
Moreover, the complexity of delegated legislation can obscure transparency, making it difficult for citizens to understand or challenge regulations. This is particularly problematic in developing legal systems where public awareness of legal processes may be limited. Nevertheless, supporters of delegation contend that it is an essential mechanism for efficient governance, particularly in addressing urgent or specialised issues that require rapid response (Barber, 2011). Balancing these competing perspectives requires robust mechanisms for oversight, such as judicial review and parliamentary scrutiny, to ensure that delegated powers are exercised within legal and democratic bounds.
Conclusion
In conclusion, primary and subsidiary legislation serve distinct but complementary roles within legal systems. Primary legislation establishes foundational laws through direct legislative action, while subsidiary legislation provides the necessary detail and flexibility to implement these laws effectively. The delegation of law-making powers to other bodies is justified by practical necessities such as time constraints, the need for expertise, and adaptability to changing circumstances. However, as demonstrated by Nigerian case law and broader legal discourse, delegation must be carefully managed to avoid undermining democratic principles and accountability. The judiciary plays a crucial role in this regard, ensuring that subsidiary legislation remains within the scope of primary authority. Moving forward, the challenge lies in striking a balance between efficiency and transparency, ensuring that delegation enhances governance without compromising the democratic process. This analysis underscores the importance of ongoing scrutiny and reform to address the limitations of delegated legislation in both Nigerian and global contexts.
References
- Barber, N.W. (2011) The Constitutional State. Oxford University Press.
- Elias, T.O. (1983) Nigerian Legal System. Routledge & Kegan Paul.
- Griffith, J.A.G. (2010) The Politics of the Judiciary. Fontana Press.
- Okonkwo, C.O. (2017) Introduction to Nigerian Law. Sweet & Maxwell.
- Wade, W. and Forsyth, C. (2014) Administrative Law. Oxford University Press.
