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Administrative law Control of discretion (delegation, fettering,
relevant considerations)
Administrative Law (University of Oxford)
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Tutorial 3: Control of discretion 1 – delegation, fettering, purposes, relevance, common law principles
Contents
General Reading....................................................................................................................................1
Delegation.............................................................................................................................................4
Fettering of discretion: rules, policies and discretion..........................................................................11
Relevant/irrelevant considerations.....................................................................................................29
Common law constitutional rights and principles...............................................................................38
General Reading
Craig, ch 18
CHAPTER 18 – FAILURE TO EXERCISE DISCRETION
Central issues
[All grants of power to public bodies could be broken into two parts: if X exists, you may or shall do
Y]
- This chapter concerned with judicial restraint on Y
- Discretion may also exist on X, in the conditions which determine the scope of the tribunal’s
jurisdiction
There are three ways discretion (power to make choices between courses of action, or a choice exists
as to how an end should be reached) can be controlled:
1. Courts can control the WAY IN WHICH the discretion is exercised, with objective of
ensuring there is no failure to exercise the discretion. Two main controls of this type or limits
on delegation, and on the extent to which an authority can proceed through policies or rules
2. Constraints can be placed to ensure there has been no MISUSE OF POWER. Judiciary can
impose substantive limits on power of body on the ground that it ensures the body does not
act ilegally (outside remit of its power)
3. Courts can develop principles to ensure the body does not misuse its power by acting
IRRATIONALLY. Places substantive limits on the power.
Traditional rationale for judicial intervention
- By controlling X factors, the court purports to fulfil the legislative will, giving boundaries of
an institution’s power
- Rational for Y factors is more indirect: the authority is within its assigned area. Traditional
theory posited the link with sovereignty and the ultra vires doctrine: Parl only intended that
such discretions should be exercised on relevant and not irrelevant CONSIDERATIONS, or
to achieve proper purposes. Any exercise of discretion which contravened thesel imits was
ultra vires.
- Almost any such controls can be squared with leg intent
- Modern conceptual rationale takes a different approach: leg intent still relevant, but judicial
controls are seen as being concerned with supplementing legislative intent as well as
implementing it. Judical role is to make and enforce principles of fair administration
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DELEGATION
General principles
- If discretion is vested in a certain person, it must be exercised by that person. Expression for
this is the maxim DELEGATUS NON POTEST DELEGARE
- This is a principle, not a rigid rule
Alligham
- Court held it was unlawful for a wartime agriculture committee, to which powers concerning
the cultivation of land had been delegated by the Minister of Agriculture, to delegate to an
executive officer the choice of which fields should be subject to a certain type of cultivation
Ellis
- Condition imposed by licencing committee of county council that would not allow films to
show unless certified for public exhibition by the Board of Film Censors was held invalid as
involving a transfer of power to the latter
COURTS ARE RELUCTANT TO ALLOW FURTHER DELEGATION OF DELEGATED LEGISLATIVE POWER
- Also reluctant to sanction delegation of judicial power
- Vine – same conclusion as in Barnard, but emphasised that there was no ABSOLUTE rule
against judicial or quasi-judicial functions being delegated
GOLDEN RULE = to consider statutory context
AGENCY AND DELEGATION
Relationship between the two is difficult
First principles – 1) the creation of agency and delegation
- Both involve authorisation that X can act on behalf of Y
- There are limits on the capacity of an agent
- Agent may perform on behalf of P, except those imposed on P personally or requiring special
skill
DIFFERENCE AS TO PRESUMPTION:
- where public bodies have powers, the presumption is that the power should be exercised by
the person named in the statute (rebuttable)
- Where private parties are concerned, the norm is that P should be able to appoint an agent,
subject to limits
Failure to comperehend this distinction in presumption has led courts into error
- Error is the belief that the principles of agency can ‘cure’ an unlawful delegation
- Lever Finance – planning officer represented to a developer that minor changes in a building
plan were immaterial. Developr built the houses, residents complained, developer applied
for permission of modifications and his applicationw as rejected by the committee, the body
authorised to make the decision. Denning MR held the body was estopped from contesting
the rep made by its planning officer who had acted in the scope of his authority. Clear from
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
stat context that delegation to the planning officer would have been ultra vires. This could
not be remedied by calling the officer and agent. If the initial delegation would have been
unlawful that is the end of the matter
Barnard
- Denning LJ stated the correct position
- Argument that unlawful delegation to port manager could be cured by ratification of the
Labour Board = Denning rejected this and said the effect of ratification was to make the
action equal to a prior command. Since a prior command in the form of delegation would
have been unlawful, so would ratification
Cases concerning local authorities
- Some have raised prob of a delegate who takes action without prior approval
- The authority whose approval is required then purports to ratify the action
- One issue – whether ratification could occur at this stage, another is hwether the officer was
capable of doing the action and so whether it could have been properly delegated
First principles – 2) delegation and retention of authority by the delegator
Uncertainty as to whether person delegating retains power concurrently with the delegate, in the
way a P retains power with an A
- There is authority supporting this
- However, Scott LJ in Locker (FN19) – found that Minister of Health had sub-delegated
legislative power and that divested him of any concurrent power unless he had expressly
reserved it
- This has been criticised – doubted in Roberts (FN22), where Denning LJ on similar facts
stated the clerk was an agent, that the delegation was not a legislative act and it did not
divest the gov of its powers
- Locker case was said to turn on the inability of the minister to ratify the acts of A who had
exceeded their authority
- Relevant authorities recently reviewed in Robertson (FN23). Burton J held he was bound by
Locker, and preferred the position that the ordinary consequence of delegation was
divestment of the delegator of their powers unless there was express or implied retention.
This was so whether the power was admin or legis in nature
- Main rationale for Burton J was that the possession of concurrent authority by delegator and
delegate could lead to uncertainty and it would not normally be appropriate for the
delegator to do for himself what had just been delegated
GOVERNMENT DEPARTMENTS
General principles
- Carltona principle
- Power may be granted in accordance with departmental practice, but unclear whether it is
necessary that the officer act EXPLICITLY on behalf of the minister
- Some judicial indications that delegation of power should be subject to a requirement that
the seniority of the official exercising the power should be of an appropraute level, having
regard to the nature of the power in question (FN27)
Downloaded by olinder seth ()
Administrative law Control of discretion (delegation, fettering,
relevant considerations)
Administrative Law (University of Oxford)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Tutorial 3: Control of discretion 1 – delegation, fettering, purposes, relevance, common law principles
Contents
General Reading....................................................................................................................................1
Delegation.............................................................................................................................................4
Fettering of discretion: rules, policies and discretion..........................................................................11
Relevant/irrelevant considerations.....................................................................................................29
Common law constitutional rights and principles...............................................................................38
General Reading
Craig, ch 18
CHAPTER 18 – FAILURE TO EXERCISE DISCRETION
Central issues
[All grants of power to public bodies could be broken into two parts: if X exists, you may or shall do
Y]
- This chapter concerned with judicial restraint on Y
- Discretion may also exist on X, in the conditions which determine the scope of the tribunal’s
jurisdiction
There are three ways discretion (power to make choices between courses of action, or a choice exists
as to how an end should be reached) can be controlled:
1. Courts can control the WAY IN WHICH the discretion is exercised, with objective of
ensuring there is no failure to exercise the discretion. Two main controls of this type or limits
on delegation, and on the extent to which an authority can proceed through policies or rules
2. Constraints can be placed to ensure there has been no MISUSE OF POWER. Judiciary can
impose substantive limits on power of body on the ground that it ensures the body does not
act ilegally (outside remit of its power)
3. Courts can develop principles to ensure the body does not misuse its power by acting
IRRATIONALLY. Places substantive limits on the power.
Traditional rationale for judicial intervention
- By controlling X factors, the court purports to fulfil the legislative will, giving boundaries of
an institution’s power
- Rational for Y factors is more indirect: the authority is within its assigned area. Traditional
theory posited the link with sovereignty and the ultra vires doctrine: Parl only intended that
such discretions should be exercised on relevant and not irrelevant CONSIDERATIONS, or
to achieve proper purposes. Any exercise of discretion which contravened thesel imits was
ultra vires.
- Almost any such controls can be squared with leg intent
- Modern conceptual rationale takes a different approach: leg intent still relevant, but judicial
controls are seen as being concerned with supplementing legislative intent as well as
implementing it. Judical role is to make and enforce principles of fair administration
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
DELEGATION
General principles
- If discretion is vested in a certain person, it must be exercised by that person. Expression for
this is the maxim DELEGATUS NON POTEST DELEGARE
- This is a principle, not a rigid rule
Alligham
- Court held it was unlawful for a wartime agriculture committee, to which powers concerning
the cultivation of land had been delegated by the Minister of Agriculture, to delegate to an
executive officer the choice of which fields should be subject to a certain type of cultivation
Ellis
- Condition imposed by licencing committee of county council that would not allow films to
show unless certified for public exhibition by the Board of Film Censors was held invalid as
involving a transfer of power to the latter
COURTS ARE RELUCTANT TO ALLOW FURTHER DELEGATION OF DELEGATED LEGISLATIVE POWER
- Also reluctant to sanction delegation of judicial power
- Vine – same conclusion as in Barnard, but emphasised that there was no ABSOLUTE rule
against judicial or quasi-judicial functions being delegated
GOLDEN RULE = to consider statutory context
AGENCY AND DELEGATION
Relationship between the two is difficult
First principles – 1) the creation of agency and delegation
- Both involve authorisation that X can act on behalf of Y
- There are limits on the capacity of an agent
- Agent may perform on behalf of P, except those imposed on P personally or requiring special
skill
DIFFERENCE AS TO PRESUMPTION:
- where public bodies have powers, the presumption is that the power should be exercised by
the person named in the statute (rebuttable)
- Where private parties are concerned, the norm is that P should be able to appoint an agent,
subject to limits
Failure to comperehend this distinction in presumption has led courts into error
- Error is the belief that the principles of agency can ‘cure’ an unlawful delegation
- Lever Finance – planning officer represented to a developer that minor changes in a building
plan were immaterial. Developr built the houses, residents complained, developer applied
for permission of modifications and his applicationw as rejected by the committee, the body
authorised to make the decision. Denning MR held the body was estopped from contesting
the rep made by its planning officer who had acted in the scope of his authority. Clear from
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
stat context that delegation to the planning officer would have been ultra vires. This could
not be remedied by calling the officer and agent. If the initial delegation would have been
unlawful that is the end of the matter
Barnard
- Denning LJ stated the correct position
- Argument that unlawful delegation to port manager could be cured by ratification of the
Labour Board = Denning rejected this and said the effect of ratification was to make the
action equal to a prior command. Since a prior command in the form of delegation would
have been unlawful, so would ratification
Cases concerning local authorities
- Some have raised prob of a delegate who takes action without prior approval
- The authority whose approval is required then purports to ratify the action
- One issue – whether ratification could occur at this stage, another is hwether the officer was
capable of doing the action and so whether it could have been properly delegated
First principles – 2) delegation and retention of authority by the delegator
Uncertainty as to whether person delegating retains power concurrently with the delegate, in the
way a P retains power with an A
- There is authority supporting this
- However, Scott LJ in Locker (FN19) – found that Minister of Health had sub-delegated
legislative power and that divested him of any concurrent power unless he had expressly
reserved it
- This has been criticised – doubted in Roberts (FN22), where Denning LJ on similar facts
stated the clerk was an agent, that the delegation was not a legislative act and it did not
divest the gov of its powers
- Locker case was said to turn on the inability of the minister to ratify the acts of A who had
exceeded their authority
- Relevant authorities recently reviewed in Robertson (FN23). Burton J held he was bound by
Locker, and preferred the position that the ordinary consequence of delegation was
divestment of the delegator of their powers unless there was express or implied retention.
This was so whether the power was admin or legis in nature
- Main rationale for Burton J was that the possession of concurrent authority by delegator and
delegate could lead to uncertainty and it would not normally be appropriate for the
delegator to do for himself what had just been delegated
GOVERNMENT DEPARTMENTS
General principles
- Carltona principle
- Power may be granted in accordance with departmental practice, but unclear whether it is
necessary that the officer act EXPLICITLY on behalf of the minister
- Some judicial indications that delegation of power should be subject to a requirement that
the seniority of the official exercising the power should be of an appropraute level, having
regard to the nature of the power in question (FN27)
Downloaded by olinder seth ()
