Delegation - Principles and Best Practices

In this article, our Public, Regulatory & Investigations team discusses the principles and best practices that public bodies should be aware of when delegating statutory functions and powers. For the avoidance of doubt, this summary does not deal with the delegation of ministerial powers to civil servants.

A public body may only act or exercise its functions and powers through natural persons or a group of people within the public body. In many cases the legislation establishing the body clearly confers this power on, for example, the members of the board or specific individuals such as the CEO of the public body. However, the exercise of the relevant functions and powers often need to be delegated to other persons in the public body. This is because it is not practical or possible for members of the board or the CEO to exercise all the functions or powers, either personally or as a collective, all of the time. The benefit is that delegation ensures that functions and powers are exercised efficiently, and by persons with the necessary level of expertise and knowledge.

Administrative law principles require that a function or power must be exercised by the person to whom it was given. There is a general legal presumption that statutory functions or powers cannot be delegated. However, legislation can limit how this principle is applied. If someone other than the person originally given the function or power tries to use it, there is a risk that the courts may find their actions to be ultra vires, or beyond their legal authority. To avoid this, two conditions must be met:

• The legislation must allow for delegation, and
• The delegation must be carried out properly and correctly

We set out the key considerations for public bodies when considering the delegation of functions and powers:

Does the legislation permit delegation?

The first question to ask is whether the legislation permits delegation. The legislation which establishes a public body will often include a clear provision allowing for delegation of the public body’s functions and powers. In many cases the legislation will state that the public body may carry out its functions by or through its members of staff, or words to a similar effect.

Occasionally, legislation will expressly state that the delegation of a function or power is not permitted.

If the legislation does not include an express power of delegation, a public body must be cautious when delegating and consider what might be permitted based on a full reading of the legislation.

What is delegation?

A person within the public body to whom a function or power has been delegated will exercise a certain level of discretion in performing that function or power on behalf of the public body. In general, a delegate will be exercising a decision-making power on behalf of the public body. Delegation does not tend to arise where an individual is performing routine administrative or clerical tasks in the course of their employment with a public body.

Making the decision to delegate

The legislation might include specific requirements to be followed when delegating a function or power. These might include, for example, requiring the public body to authorise the delegation, make an order regarding the delegation or otherwise deem it proper.

In any event, a delegation of a statutory power or function is a decision which should be taken in accordance with any decision-making provisions and processes that apply to the body in question. Any decision taken in that regard should be properly recorded.

Restrictions on delegation

A general ability to delegate will not necessarily extend to every function or power of a public body. For example, it is unlikely to extend to the exercise of quasi-judicial or disciplinary functions. The courts can construe a general power to delegate restrictively, based on the nature of the decision and the rights and/or interests of the parties involved.

Requirement of reasonableness

An act of delegation is subject to administrative law principles, including reasonableness. This means that an act of delegation must be reasonable in the circumstances. For example, delegating a function or power with the aim of excluding certain decision-makers from partaking in the exercise of that function or power could be considered unreasonable.

Clearly set out the delegation

It is important that the scope of the delegation is clearly defined. It should be limited to the specific functions and/or powers that the public body is permitted to delegate. Those exercising statutory powers as delegates must be able to demonstrate that they have the authority to do so. Generally speaking, a delegation should be to a designated person or office holder with effect from a particular date, setting out any limitations on the circumstances and the manner in which the relevant function should be exercised. It should also include an express power of revocation.

Sub-delegation

In general, a delegate cannot further delegate a function or power to another individual. To do so would breach the relevant administrative law principle. However, the legislation may expressly provide that a delegate can further sub-delegate their functions or powers. For example, legislation may permit the board of a public body to delegate certain of its statutory functions and powers to a CEO, who can in turn sub-delegate those functions and powers.

Accountability is crucial

It is important to remember that a public body remains responsible for the exercise of any functions or powers by a delegate. Therefore, it is important that a delegate remains within the bounds of the power or function which has actually been delegated. They must also be accountable to the public body for the performance of the delegated functions and powers.

Comment

In summary, therefore, prior to delegating a function or power, a public body must satisfy itself that it has a legislative basis to do so, and that any act of delegation is made in a manner consistent with the principles of administrative law and good governance.

For more information and expert advice, please contact a member of the Public, Regulatory & Investigations team.

This article was originally published by Public Affairs Ireland in the May 2025 edition of the PAI Review.

The content of this article is provided for information purposes only and does not constitute legal or other advice.