The starting point to any consideration of whether a decision-making power can be delegated is the wording and purpose of relevant legislation. It may be evident from the wording or purpose that the legislature’s intention was that a particular power conferred on a public authority may be delegated to another. An example from a local authority context is section 101 of the Local Government Act 1972, which provides that generally, and subject to any provision to the contrary in the 1972 Act or any later Act, a local authority may arrange for its functions to be undertaken by a committee, sub-committee or officer of the authority.
In considering the purpose of the legislation, the Court will give particular attention to the nature of the power conferred on the decision-maker:
Judicial powers – Where the power is a judicial-type power, which involves the decision-maker determining a person’s rights (e.g. to suspend a person from a particular profession), in the absence of express wording to the contrary, it is unlikely that the Court will consider the power to be delegable.
Legislative powers – There is a strong presumption that a power conferred on a person to make legislation (e.g. byelaws, regulations) cannot be delegated.
Administrative powers – It is more likely that the Court will consider an administrative power to be delegable than a judicial or legislative power, but the Court’s view will depend on factors such as whether the delegating public authority has retained overall or supervisory control over the decision, the degree of any such control, and the importance of the decision for the individual concerned.
The Court will also consider the width and breadth of the powers that have been purportedly delegated. Generally, the broader the powers that the public authority is seeking to delegate the less likely that the delegation will be held to be valid. If, on the other hand, the delegation involves a relatively narrow and self-contained power, it is more likely to be held to be a valid one.