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Discretion Fettering Notes

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ADMINISTRATIVE LAW : JUDICIAL REVIEW OF DISCRETION - PART 1

TABLE OF CONTENTS
Text....................................................................................................................................3
Craig, chs. 18 and 19 and ch. 21 and 22..................................................................................3
Chapter 18 - failure to exercise discretion............................................................................... 3
Chapter 19: Abuse of Discretion............................................................................................... 6
Walker, 'Review of the prerogative: the remaining issues' [1995] Public Law 556 (comment on
CCSU v Minister for the Civil Service)........................................................................................ 7
Failure to exercise discretion............................................................................................8
*R. (Corner House Research) v Director of Serious Fraud Office [2008] UKHL 60....................8
Delegation: Who must exercise the discretion?................................................................9
Barnard v. National Dock Labour Board [1953] 2 QB 18............................................................9
*Carltona v. Commrs of Works [1943] 2 All ER 560....................................................................9
Castle v Crown Prosecution Service [2014] EWHC 587.............................................................9
*Deregulation and Contracting Out Act 1994; Freedland, Privatising Carltona: Part II of the
Deregulation and Contracting Out Act 1994 [1995] PL 21.........................................................9
Fettering of discretion - (cross-reference: legitimate expectations):............................10
Galligan [1976] Public Law 332 (NOFL)................................................................................... 10
**British Oxygen Co. v Board of Trade [1971] AC 610..............................................................10
*R. v. Environment Secretary, ex parte Brent LBC [1982] QB 593 (Divisional Court).............11
*R v Secretary of State for the Home Department, ex p. Venables [1997] 3 All ER 97, HL (read for illegality too: NOFL)............................................................................................................ 11
R (Elias) v SS for Defence [2006] 1 WLR 3213.........................................................................13
R (Purdy) v DPP [2010] 1 AC 345.............................................................................................. 14
*R. (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 4414
Illegality: Irrelevant Considerations...............................................................................15
*Bromley LBC v GLC [1983] 1 AC 768...................................................................................... 15
R. v. London Transport Executive ex parte GLC [1983] QB 484 (DC)......................................17
*Secretary of State for Education v. Tameside MBC [1977] AC 1014......................................17
R v East Sussex County Council, ex p. Tandy [1998] 2 All ER 769, HL....................................17
Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 W.L.R. 759...................18
R. (Abbasi) v. Foreign Secretary and Home Secretary [2002] EWCA Civ 1598........................18
*H. Wilberg, "Deference on Relevance or Purpose? Wrestling with the Law/Discretion Divide",
in H. Wilberg and M. Elliott (eds.), The Scope and Intensity of Substantive Review, Traversing
Taggart's Rainbow (Oxford: Hart Publishing, 2015), Ch. 11.....................................................18
Illegality: Improper Purposes..........................................................................................19
R v Sec of State for the Environment, ex p Hammersmith LBC [1991] 1 AC 521 at *597........19
R v Secretary of State for the Home Dept, ex p. Fire Brigade Union [1995] 2 All ER 244.......19
*Padfield v. Minister of Agriculture [1968] AC 997 (Lords Pearce and Reid)...........................20
*Wheeler. v. Leicester CC [1985] AC 1054 (HL plus Browne-Wilkinson LJ in the CA).............20
*R. v. Lewisham LBC ex parte Shell [1988] 1 All ER 938..........................................................20
R. v. SS Foreign and Commonwealth Affairs ex parte World Development Movement [1995] 1
WLR 386, [1995] 1 All ER 611 (QBD)........................................................................................ 21
ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

Page 1 R (Bancoult) v SS for Home and Foreign Affairs [2013] EWHC 1502 (QBD)............................21
Irrationality......................................................................................................................21
R v Environment Secretary, Ex p. Nottinghamshire CC [1986] AC 240 (esp. Scarman)..........21
*Lonrho v Secretary of State for Trade and Industry [1989] 2 All ER 609, at 620f-g...............22
Daly, "Wednesbury's Reason and Structure" in [2011] Public Law 238...................................22

ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

Page 2 TEXT
CRAIG, CHS. 18 AND 19 AND CH. 21 AND 22

CHAPTER 18 - FAILURE TO EXERCISE DISCRETION
INTRODUCTION
Three methods of review:Failure to exercise discretion (limits on delegation, extent to which authority can proceed through policies)
Illegality
Irrationality

Traditional judicial review was founded on legislative intent (legislature only intended that power it grants be exercised with relevant considerations and for proper purposes; everything else is ultra vires) but now it has shifted to supplementing legislative intent rather than just implementing it.
DELEGATION

1. Starting point: if discretion is vested in a certain person it must be exercised by that person (delegatus non potest delegare).

2. Whether someone other than the named person in the empowering statute can act depends on the statutory context.

2.1.Takes into account:

2.1.1. Nature of subject matter

2.1.2. Degree of control retained by delegator

2.1.3. Type of person to whom the power is delegated

2.1.4. Type of power delegated

2.1.4.1. Reluctant to allow delegation of delegated legislative power and delegation of judicial power

2.1.4.1.1.
Allingham: held that it was unlawful for a wartime agricultural committee with powers delegated by the Minister of Agriculture to delegate to an executive officer.

2.1.4.1.2.
Barnard: National Dock Labour Board had lawfully delegated powers over discipline (eg. suspension from work) which they delegated to others -
held to be unlawful as judicial functions can rarely be delegated

2.1.4.1.3.
Vine: Same conclusion, but emphasized that there is no general rule against the delegation of judicial/quasi-judicial functions.

2.2.Ellis: licensing committee said that it wouldn't allow films to be shown unless certified by
Board of Film Censors - held to be invalid for unlawful delegation of power.

3. Relationship between agency and delegation is complex - the types of things that can be delegated as well as capacity of an agent are limited.

3.1.Agent can do anything that the principal can execute, except:

3.1.1. Executing a right/power/duty imposed on principal personally
ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

Page 3 3.1.2. Exercising something that requires discretion or skill

3.1.3. Where principle is required by statute to do the act personally

4. Public body: (rebuttable) presumption that it was supposed to be exercised personally; private parties: can appoint an agent subject to above limits

4.1.Misunderstanding the presumption has led the court into erroneously holding that principle of agency could cure an unlawful delegation

4.1.1. Lever Finance: Planning officer represented to developer that minor changes in a building plan were not material; developer built and residents complained, so developer applied for planning permission to modify - application rejected by the same planning body who employed the officer. Denning held that the planning officer had acted within the scope of his authority, though Craig thinks that it is clear that the delegation to the officer was unlawful and couldn't be cured by saying that he was an agent.

4.1.2. Barnard: Denning stated the correct position - unlawful delegation could not be cured by ratification of the Labour Board because the effect of ratification was to make the action equal to a prior command, and in this case the prior command would have been an unlawful delegation.

5. Unclear whether the delegator retains power concurrently with delegate.

5.1.Huth v Clark, Gordon Dodds v Morris at 621 support this view.

5.2.Locker: Scott LJ said no - Minister of Health delegated power to corporation to requisition property subject to certain conditions; they didn't comply with conditions and held that since the Minister had sub-delegated legislative power he didn't retain any concurrent power unless expressly reserved for himself, so that any subsequent attempt to requisition the property himself was void.

5.2.1. Criticized and doubted in the courts: Roberts - Denning said that the town clerk
(like corporation) was an agent of the Ministry, that delegation wasn't a legislative act and as such didn't divest the government of its powers. Locker distinguished on the ground that in that case the decision turned on the inability of Minister to ratify the acts of an agent who had exceeded the assigned authority.

5.2.2. Robertson: Burton LJ reverted back to the Locker position and held that delegation, whether administrative or legislative in nature, divested the delegator of concurrent power subject to express retention because otherwise would lead to uncertainty.

6. Where powers are granted to minister they can be exercised by the department:
Carltona principle. The principle applies equally outside of government departments but can be applied to exercise of prerogative powers etc.

6.1.Criteria

6.1.1. Minister need not personally confer the authority for the official to act.

6.1.2. Unclear whether officer must act explicitly on behalf of minister

6.1.3. Judicial indications that seniority of official exercising power should be of appropriate level with regard nature and power in question

6.1.4. Ability may be limited by express provisions in empowering statute

6.1.5. Uncertain whether there is a class of case that minister must personally deal with:
caselaw suggests that this would be impossible to apply but there are indications that personal liberty (eg. deportation) cases may be more open.

6.1.5.1. However Oladehinde held that power to deport can be delegated to inspectors of a suitable grade and experience, as long as it doesn't conflict with minister's own statutory duty.
ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

Page 4 6.2.Qualification: Health Stores: Caltona principle establishes that the act of a duly authorized civil servant was in law the act of the minister, and not that what the civil servant knew was in law the minister's knowledge. As such, the civil servant must know enough to make an informed decision.

7. Powers to delegate are often conferred by statute, for example the Local
Governments Act.
FETTERING OF DISCRETION: RULES, POLICIES AND DISCRETION

1. Failure to exercise discretion can be 1) unlawful delegation or 2) adopting a policy that precludes the body from considering the merits of a particular case.

1.1.Corrie: held that a bylaw that nothing was to be sold in parks was unlawful as each application must be heard on its merits and there couldn't' be a rule prohibiting everything. There can be rules, as long as they allow each case to be heard on its merits.

2. Most discretionary power is accorded by statute - common law discretionary power is unclear.

2.1.Elias: C interned by Japanese and denied access to UK government's compensation scheme because only civilian internees born in the UK were eligible - argued that by analogy with statutory discretion, secretary of state had unlawfully fettered his common law power by refusing to consider whether to make an exception to criteria for compensation. Rejected by CoA because holder of common law powers were entitled to decide on the extent to which to exercise the power when setting up a scheme.

3. Unclear on the weight that the public body is to be allowed to accord to its policy/rule.

3.1.Dominant line of authority suggests that a body can apply its rule provided that an individual is granted the opportunity to contest its application to the particular case.

3.1.1. Kynoch: Bankes LJ said that it was lawful for authority to adopt a policy and to tell individuals that it would apply the policy after a hearing, but unlawful to make a determination not to hear any application of a particular character.

3.1.2. British Oxygen: similar decision - Board of Trade exercised discretion not to give grants of less than PS25; C spent large sum on gas cylinders though individual cost was only PS20. Sought declaration that the practice was unlawful - Lord Reid rejected this and said that authorities were allowed to have a policy, even though it should listen to arguments that its rules should be changed, provided that the authorities were willing to listen to anyone who had something to say.

3.2.Alternate line of cases allow a more minor role - the policy can only be one relevant factor used by public body when arriving at its determination. Court prefers less restrictive approach.

4. Policy must be legitimate given the statutory framework within which the discretion is exercised, based on relevant considerations, not pursue improper purposes.

4.1.Venables: governing statute required Home Secretary to have regard to interests of a child offender when sentencing; it was unlawful to adopt a policy that doesn't take this into account.

5. Individuals may have the right to argue that a policy should be applied in the particular case if the body wishes to change/depart from the policy.

5.1.If body made a representation that the policy was to change, individuals are entitled to comment before the change occurs.

5.2.If individual was entitled to some benefit and had a legitimate expectation that it would continue, he can comment before change.
ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

Page 5 5.3.Principle of consistency creates presumption that a public body will follow its policy;
good reasons for departure must be given.

6. Some writers (Davis, Jowell) argue that there shouldn't be too much discretionary power because the Rule of Law requires governments to function based on established rules.

6.1.Multiple ways to ensure this:

6.1.1. Eliminate unnecessary discretionary power/confine it within necessary bounds

6.1.1.1. Encourage administrators to make standards/rules to clarify vague legislative criteria

6.1.1.2. Rule-making was preferable to adjudication because it allowed for more participation by interested parties

6.1.2. Ensure that discretion is 'structured' (control how discretionary power is exercised within boudns)

6.1.2.1. Open plans, open policy statements and rules, open findings, reasons,
precedents etc.

6.1.3. Discretion should be checked (supervision by superiors, administrative appeals,
judicial review)

6.2.Reservations:

6.2.1. Rules are inappropriate where issue is inherently subjective (eg. 'need' within social welfare)

6.2.2. Polycentric issues are not amenable to rules because changing one aspect affects all others

6.2.3. Agencies shouldn't make rules where issues are highly complex/controversial

7. Theories emerged regarding the most efficient method of performing an assigned task and the type of command structure most likely to achieve purpose of organization.

7.1.Weber's theory:

7.1.1. Duties distributed in a fixed way

7.1.2. Officers hierarchically ordered, responsible to those above and below

7.1.3. Institution applies abstract rules to particular cases

7.1.4. Official operates neutrally applying the given rules

7.1.5. Advancements/dismissals objectively assessed

7.2.Drawbacks in Weber's theory include sacrificing esprit de corps and engendering rigidity/inhibiting rational exercise of judgment.

7.3.Modern theories emphasize role of complex motivational considerations

8. Since making one area more rule based will lead to another becoming more discretionary (eg. sentencing rule based ? pre-trial discretion increased), the optimum balance between rules and discretion will vary from area to area and courts aren't the best place to force/persuade agencies to develop rules or assess whether complex arguments for/against rules should lead to more/less rules.
FETTERING OF DISCRETION: CONTRACTS AND THE EXERCISE OF DISCRETION

1. Problem: clash between discretionary power and contractual obligation that public body has undertaken: led to incompatibility test (if statute and contract were incompatible, then contract was void; otherwise it could stand).

1.1.Leake: Parke J developed the incompatibility test - if objects prescribed by the statute were incompatible with the contract, then the contract was void; otherwise, it was

ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

Page 6 allowed to stand. This was said to balance the needs of public bodies to contract,
fairness to contractor, and that this fairness doesn't stifle other statutory powers.

1.2.Cases after Leake divided into two groups:

1.2.1. Those that may be correct on the facts but suggestive of a stricter test, where whenever a statutory power and contract touched on same subject matter, the latter would inevitably be void.

1.2.1.1. Ayr Harbour: where legislature had conferred powers to take land compulsorily, contracts purporting to bind them not to use these powers were void. HL didn't speak in terms of incompatibility (though this may well be the case on the facts) but cases referred used a stricter test. Case used as authority for proposition that public bodies were to be freed from private law obligations.

1.2.2. Those that reaffirmed the incompatibility test and applied it less strictly: public body could grant easements, take restrictive covenants etc. privided that they weren't incompatible with statutory powers.

1.2.2.1. Birkdale District Electricity Supply: HL said that contract by Birkdale to not raise price for electricity higher than that charged by another company was not ultra vires or incompatible with statutory power to charge what it wished subject to a statutory maximum.

1.2.2.2. British Transport Commission: endorsed Birkdale and held that a bridge could be dedicated to the public even though the railway authorities had the power to discontinue it.

1.3.Compatibility test is based on reasonable foresight of conflict between contract and statute.

1.4.There is a distinction between property rights (Birkdale - Lord Summer said that only where contract created something akin to property rights would it be deemed incompatible with statutory power) and pure contractual obligations.

2. Problem: whether a contractor should be entitled to compensation if contract is found to be incompatible with a statutory power or duty.

2.1.Flawed conceptualizations:

2.1.1. Can be argued that the incompatibility test simply tells us that a contract shouldn't be specifically enforced, not that contractor shouldn't get damages for breach - this is flawed because it's difficult to identify a breach as the loss is caused by the public body exercising other powers/duties.

2.1.2. Also possible to argue frustration to grant compensation, but 1) unclear that contract would be frustrated, 2) misconceived to deem this kind of case self-induced frustration, 3) frustration is predicated on the idea that the contract should be at an end in that neither party has an interest in its continuity.

2.2.Specialized remedy taking into account the public and private role of public body is to be preferred - France has something like this, predicated on the predominance of the public interest and recognizing administrative contracts as a separate entity:

2.2.1. Imprevision: similar to frustration but based on continuity of relationship and not termination; doesn't require the contract to be legally/physically incapable of performance - applies when circumstnaces upset the economic substance of contract and make it more difficult than contemplated.

2.2.2. Fait du prince: unforeseeable loss shared between two parties, applied where public body does something in its public role that makes the bargain less profitable.

2.2.3. Supervision: administration can modify contractual terms in the public interest and pay indemnity to the other party if on the facts it is the fair balance.
ADMINISTRATIVE LAW: CONTROL OF DISCRETION (I)

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