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Control Of Discretion Notes

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4.

Control of discretion

Failure to exercise discretion Craig, Administrative Law (5th ed., 2003) Ch. 16 (NB Only bits not fully covered in notes on Beatson, Matthews and Elliots):
= Rationales for Intervention:
- Traditional: link with sovereignty & the ultra vires doctrine: P only intended that such discretion should be exercised on relevant & not irrelevant considerations, or to achieve proper & not improper purposes. Any exercise of discretion which contravened the limits was UV. Ease with which the judicial approach can be reconciled with sovereignty demonstrates the limits of the UV doctrine as an organising principle for admin law ? almost any such control can be formally squared with legislative intent.
- Modern Conceptual Approach: Legislative intent & P will still relevant, but judicial control far more concerned with supplementing legislative intent as with implementing it ? judicial role is to fashion & enforce principles of fair administration.

= Government Departments & Contracting Out:
- Application of Carltona principle to situations where power has been contracted out to a private undertaking = legally clearer & more alarming as a result of Deregulation & Contracting Out Act 1994.
- Part II makes provision for the contracting out of certain functions by government to bodies which will normally be private. Should be made clear that government departments have frequently contracted-out functions independent of this Act. The statute was passed to enable the body to which the power has been contracted out to operate in the name of the minister, by analogy with the Carltona principle.
- Sec. 69: enables functions, which by virtue of any enactment or rule of law, can be performed by an officer of a minister, to be contracted out to an authorised party. Sec. 65(5)(c) makes it clear that the minister may still exercise the function to which the authorisation relates.
- Sec 71(1) imposes limits: where its exercise would constitute the exercise of jurisdiction of any court or tribunal which exercises the judicial power of the State, would interfere with the liberty of any individual, or is a power or right of entry, search or seizure to any property, or a power or duty to make subordinate legislation.
- Sec 72(1) renders the minister ultimately responsible for action taken by the body to whom the power has been contracted-out.
- Clear that the government regarded these sections as simple technical amendments: depicted as minor changes designed to facilitate contracting-out &
sweeping away restrictive distinctions. But hard to be as happy because....
- 1.) Although part II is called 'Contracting-Out' s.69 is framed so as to empower an outside body to exercise the functions of a minister. Donee of the power isn't the alter ego, but the actual repository of statutory power.

- Objectionable that one can transfer the Carltona principle & apply it to private bodies to which power has been contracted-out, although obviously P is sovereign. Nevertheless, Freedland states: 'one cannot believe the unanimous judgment of CA in Carltona without concluding that it would have been unthinkable to that court that their doctrine could be extended so that the functions of a Minister could be exercised by a private sector employee linked to the minister only by a chain of contracts & not by any public service relationship. They would have been amazed that the Minister could be expected on the one hand to seek and maintain an commercial relationship with an outside contractor, while on the other hand treating that contractor as the very embodiment of himself. It requires some ingenuity thus to treat someone as standing in one's shoes, yet at the same time to keep that person at arm's length.' Two senses in which Lord Greene MR in Wednesbury dfined "unreasonable:

1.) 'umbrella sense' ? unreasonable used as a synonym for a host of more specific grounds of attack, such as taking account of irrelevant considerations, acting for improper purposes & acting mala fide. Greene: these tend to run into each other.

2.) 'substantive sense' ? decision may be attacked if it is so unreasonable that no reasonable public body could have made it. Something quite extreme would be needed, e.g. being dismissed because of red hair.

= Future of the Wednesbury Test:
- Malleability has allowed it to survive up until this point. Whether it will continue to do so depends on 3 factors:
- 1.) empirical issue as to how many cases which have previously been passed pursuant to this test, will be recast as rights-based claims under HRA 1998. Important because the test for review under HRA is different & more demanding than the W test was conceived.
- 2.) More normative ? the standard of review under EU & HRA. Clear that Community law uses proportionality as a criterion for review & that proportionality is the test applied under HRA (considered below.) May be that W will continue to survive & be used where there is no link with EU law & that when there is no claim under HRA. Could be that some courts would feel that precisely because there is no connection with EU law & HRA, the traditional W test remains the most appropriate standard for review.
- OR it might cease to operate in its own right ? caught in the 'pincers' of the tests used in EU law & HRA, partly because a proportionality test can be applied with varying degrees of intensity. Constitutional concerns about the limits of the judicial role under W could [?] be perfectly well accommodated under a proportionality inquiry.
- 3.) Precise meaning given to W: if the courts adopt the modified version suggested by Lord Cooke it raises the issue of how different this is from the proportionality test ? considered with proportionality.
= Direct or indirect recognition of Proportionality in Domestic Law:

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