#3505 - Substantive Review - Administrative Law

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 that extent, open mind doesn’t mean an empty one, but it must be kept ajar.

• Audit Commission v Ealing LBC [2005] – under statutory power to rate performance, it rated C local authority as weak, C sought JR arguing adoption of a rule of automatically downgrading LA because of rating given by another body was unlawful and Commission failed to apply its own mind as to reasons why. Refused because Comm. knew of reasons & was content to adopt them in making decisions.

Constraint IV: Discretionary Power & Contractual Arrangements

• Achievement of some PB’s objectives may only be possible through contracting out & courts must strike a balance between preservation of discretion & freedom of authorities to contract for the sake of effective governance & function

• Incompatibility test – contract can stand unless incompatible with statutory power or duty question of fact

Abuse of Discretion

• NB: Diplock (GCHQ) distinguished between review based on illegality (irrelevant considerations, improper purposes) & on irrationality (Wednesbury) – may not always be possible to distinguish b/c reasons for statute’s conferral of broad discretionary powers don’t have neat corners nor is the process of statutory construction self executing.

1. Improper Purposes

• Courts determine purpose of the statute as a matter of construction.

• Denomination of purpose as proper/improper may involve issues of social & political choice

• PBs doesn’t always use one purpose – multiplicity can be problematic

• Padfield v Minister of Agriculture – Minister’s refusal to exercise statutory discretion to appoint committee pursuant to complaint by milk producers re price because of fear of negative publicity for himself was done for improper purposes, frustrating the purpose of the Act.

• Wheeler v Leicester CC[1985] – pursuant to rugby club’s failure to condemn players for playing in SA during apartheid, CC suspended it for 12 months. CA held CC entitled to do this, Browne Wilkinson disagreed – only express words will sanction interfere w/freedom of speech so, if in exercising discretion which doesn’t give DM power to contravene fundamental rights, he takes into acc person’s willingness to use their speech in a certain way, decision is unlawful b/c took into acc irrelevant factor + misused statutory powers.

• R v Lewisham LBC, ex p Shell[1988] –pursuant to statutory duty to promote good race relations, LA used discretion to boycott companies trading in SA. Held: not Wedn unreasonable but b/c purpose was to exert pressure on companies to severe links w/SA, not in themselves unlawful, LA misused its powers. Neill LJ: though scope of Race Relations Act 1976 is wide, can’t use statutory power to punish persons who didn’t do anything contrary to English law.

• World Development Movement–Foreign Sec & FSO had remit to promote UK exports to developing world, used money to fund hydroelectric dam in Malaysia, and Mal. then bought 1bln worth of arms from UK. Suggested links b/w arms & aid subject to govt. inquiry. WDM brought JR; held decision was unlawful & contrary to purpose of statutory scheme since wasn’t in economic/humanitarian benefit of Malaysian people.

2. Irrelevant Considerations

• 2 types of cases

  1. LA took into accsmth as relevant which couldn’t be taken into acc in deciding to exercise its power

  2. LA didn’t take into accsmthit ought to have taken into acc/which ought to have been known to it

• Aim of doctrine: uphold quality of admin decisions by regulating evidence upon which they are based – difficulty lies in determining relevance

• Generally,...