This chapter examines principles of administrative law which seek to prevent abuse of discretion. It first considers the notion that there is no such thing as an unfettered discretion before discussing two key principles that encourage a mode of administration which is faithful to the legislative scheme set out by Parliament: those which require decision-makers to act only on the basis of factors which are legally relevant, and those which dictate that statutory powers may be used only for the purposes for which they were created. It also explores the propriety of purpose doctrine and the relevancy doctrine, citing a number of relevant cases such as Padfield v. Minister of Agrictulture, Fisheries and Food [1968] AC 997.
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7. Abuse of Discretion I
Mark Elliott and Jason Varuhas
Chapter
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, House of Lords
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, House of Lords. This case is concerned with the scope and limits of ministerial discretion, and how, in the case of statutory powers, the courts determine this with reference to the intentions of Parliament and the objectives of the Act in question. The document also includes supporting commentary and questions from author Thomas Webb.
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5. Retention of Discretion
Mark Elliott and Jason Varuhas
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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7. Discretion and deference
This chapter discusses how judges can defer in appropriate ways to administrative authorities on some issues, while still opposing abuses of power. The chapter explains why the courts defer massively to administrative authorities on some issues involving foreign affairs and national security, public expenditure, planning, and legal and political processes. The mere fact that the law has allocated the power to an administrative body gives rise to a presumption that a court should not interfere unless there is a ground for review other than that the court would have reached a decision. The extent to which a court ought to defer is determined by the three reasons for allocating power to an administrative body: the body’s expertise, its political responsibility, and/or its decision-making processes.
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23. Statutory Tribunals
Sir William Wade, Christopher Forsyth, and Julian Ghosh
Tribunals have attracted the attention of the legislature on several occasions, most recently with the Tribunals, Courts and Enforcement Act 2007, which implements far reaching and fundamental reforms seeking to impose system and order on the maze of specialised tribunals. This chapter discusses the 2007 reforms, the procedure of tribunals and appeals on questions of law and discretion.
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16. Illegality
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines ‘illegality’ as a ground for judicial review. Central to judicial review is the idea of ultra vires, which is the principle that public authorities have to act within their legal powers and that if they act or fail to act consistently with their legal powers, they will be acting unlawfully. Case law on the exercise of discretionary powers by public authorities is discussed in depth. In addition, the public-sector equality duty in section 149 of the Equality Act 2010 is explained. The concept of jurisdiction and the distinction between error of law and error of fact are also included under this ground of review.
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12. Judicial review: illegality
This chapter considers ‘illegality’ as a ground of judicial review. Illegality is one of the three main grounds of judicial review as outlined by Lord Diplock in Council of Civil Service Unions & Others v Minister for the Civil Service. Broadly, the aim of this ground of judicial review is to ensure that public authorities act within the scope of their powers. This means that illegality is a wide ground of judicial review and is best considered as an umbrella term for a range of different ways in which a decision by a public authority can be challenged. A decision can be challenged under this ground of judicial review on the basis that the public authority lacks the power to make the decision in the first place, or if it does have the power, then the power has been exercised incorrectly.
Book
Mark Elliott and Jason N. E. Varuhas
Administrative Law Text and Materials combines carefully selected extracts from key cases, articles, and other sources with detailed commentary. This book provides comprehensive coverage of the subject and brings together in one volume the best features of a textbook and a casebook. Rather than simply presenting administrative law as a straightforward body of legal rules, the text considers the subject as an expression of underlying constitutional and other policy concerns, which fundamentally shape the relationship between the citizen and the state. Topics covered include: jurisdiction, the status of unlawful administrative action, public law principles, abuses of discretion, fairness, remedies, and the liability of public authorities.
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8. Substantive unlawfulness
This chapter shows that judges must substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality. When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made. Each of these interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review.
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14. The grounds for judicial review
This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.
