#16119 - Discretion Fettering - Administrative Law

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 44 14

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

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

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.

   1. Takes into account:

      1. Nature of subject matter

      2. Degree of control retained by delegator

      3. Type of person to whom the power is delegated

      4. Type of power delegated

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

            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. 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

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

   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.

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

      1. Executing a right/power/duty imposed on principal personally

      2. Exercising something that requires discretion or skill

      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

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

      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.

      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.

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

   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.

      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.

      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.

   1. Criteria

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

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

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

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

      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.

         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.

   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. 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.

   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....