Substantive Review Notes

Types of Constraints on Discretion

Constraint I: Prevent Failure to Exercise Discretion

• Impose controls on its exercise limit delegation + extent to which PBs can proceed through policy and rules

• Corner House Research v Director of SFO [2008] – British company concluded highly lucrative contracts with Saudi to sell fighter jets, SFO sought to investigate for corruption, Saudi Arabia threatened to cease sharing info on terrorism, Director of SFO stopped investigating. Concerned groups sought Judicial Review, allowed by Divisional Court but HoL held Director lawfully exercised discretion & court couldn’t intervene.

Constraint II: Prevent Unlawful Delegation

• Presumption against delegation of discretionary power from body to which Parl. dedicated it

• In interpreting statutes, courts presume this and consider if anything rebuts it + even where legislation permits it, such clauses are narrowly construed, depending on nature of subject matter, degree of control retained, type of power delegated

• Barnard v National Dock Labour Board – Board lawfully delegated power, including discipline, to local Boards, one of which then delegated to port manager who suspended claimant. Held: unlawful because judicial power can’t be delegated, unless expressly/impliedly permitted by statute.

• NB: no absolute rule against delegation – statutory context is key

• Parl. intent is crucial – it chose the agency because of institutional capability, accountability purposes

• Arguments against presumption

1. Overly rigid app may compromise efficient govt. conduct

2. Certain practices, e.g. consulting outside agencies, are OK – by manipulating the concept, courts can remove legitimate models of decision maker from reach of the presumption

• Carltona Principle–where powers are granted to Ministers, they are exercised by his department = devolution, not delegation lawful

• Carltona – Commissioners had power to requisition property, done by department and order signed by assistant secretary. Lord Greene MR: doesn’t mean that in each case Minister should direct his own mind to the matter. Duties imposed/powers given to Ministers are normally exercised by responsible officials in their depatment under their authority. If Ministers don’t see that important duties are dedicated to resp. officials, Parliament is where complaints should be made.

• Carltona isn’t limited to government department – could allow Chief Constable discharge duty through officers answerable to him + applicable to exercise of prerogative powers not conferred by statute (where conferred by it, applies unless excluded)

1. Relationship with non delegation principle – since this is devolution, delegation principle isn’t engaged & legal fiction that Minister and official are one and the same applies (Brightman J)

• Legal fiction isn’t satisfactory – better use Diplock discretion is conferred upon Minister as holder of office in which he has available to him collective knowledge & expertise of those in department of which he’s the political head

2. Justification – pragmatic certainty

• Freedland: Part II Deregulation and Contracting Out Act 1994 includes contracting out clauses which proponents of the bill regarded as uncontroversial and completing existing policies. In reality, there’s a number of reasons to think this apparently small step is in fact v. large. Extension of contracting out facility to all manner of government functions makes a major affirmation of existence of commercial ethos & their predominance over public service ones with all potential for corruption with ruthless pursuit of private profits. Safeguards are flimsy, yet effect of Carltona is to extend performance of Minister’s functions to public service contractors. State may become more of a sleeping trustee than an active trustee for public good.

Constraint III: adoption of policy precluding PB’s consideration of merits

• PB with statutory discretionary powers can’t adopt a policy/rule allowing him to dispose of case without consideration of merits (Position is less clear where common law discretionary power is involved but it seems it doesn’t apply)

• R(Elias) v SS for Defence [2006] – C interned by Japanese, denied access to government ex gratia non statutory compensation scheme because only available to internees born in UK or with one grandparent born in UK. Argued by analogy to statutory discretion that Sec of State unlawfully fettered common law power by refusing to make exception. Held: considerations applicable to statutory powers don’t apply to common law because decision maker decides on extent of their exercise.

• Policy flexible enough to take into accountindividual circumstances won’t be illegal where tribunal didn’t refuse to hear C

• Beatson – analysis too simplistic – court determines if policy sufficiently flexible to be legitimate

• PBs can apply policy as long as C can contest its application to his case

• British Oxygen – Board of Trade exercised discretionary powers by choosing not to give grants for expenditure below 25. BO spent large amount on gas cylinders but each cost 20. Argued practice to be unlawful, rejected because while anyone with discretion couldn’t shut their ears to application & may have to listen to arguments that it should be changed, it was entitled to have a policy, and only had to listen to someone with somethin new to say.

• Widely applied – ascribes generous role to policy, allowing it to become the norm, provided decision maker is willing to consider exceptional cases. Court is concerned with substance, not form – might even ask for evidence of consideration

• Alternative: policy is just one factor to consider & can’t become the norm

• Environmental Sec v Brent LBC[1982] – Sec of State had duty, in deciding to launch new policy of reducing LA grants, not to fetter discretion & ascertain if someone had new arguments to make before refusing to hear them. Sec of State was entitled to have policy in mind and, to...

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