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Administrative LawText and Materials

Administrative Law: Text and Materials (5th edn)

Mark Elliott and Jason N. E. Varuhas
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date: 01 October 2023

p. 1605. Retention of Discretionlocked

p. 1605. Retention of Discretionlocked

  • Mark ElliottMark ElliottProfessor of Public Law, University of Cambridge
  •  and Jason VaruhasJason VaruhasAssociate Professor, University of Melbourne


This chapter discusses the principles of administrative law which require decision-makers to retain the discretion which they are granted. It first considers the question of delegation of discretionary powers as well as the non-delegation principle before explaining the nature of delegation. It then examines the courts' approach with respect to departmental decision-making in central government and how far the discretionary freedom of the decision-maker designated by statute may be constrained by delegation and the adoption of policies. It also shows why it is often desirable or even necessary for decision-makers to exercise their discretion in line with a policy or a set of criteria. Finally, it looks at judicial moves towards ensuring that exercise of discretion is structured and legally constrained by publicly available policy. A number of relevant cases are cited throughout the chapter, including Barnard v. National Dock Labour Board [1953] 2 QB 18.

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