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Retention of Discretion

This chapter is concerned with various principles of administrative law which require decision makers to retain the discretion which they are granted. In general terms the law in the area aims to ensure that the decision making occurs in accordance with the scheme envisaged by the parliament, rather than in a manner which is distorted by limitations and practices imposed upon the discretionary power by its holder.

More specifically the rules of administrative law which have been developed in the context serve two distinct objectives. First, they require that decision making carried out by the specific agency to which the discretion was, in the first place, confided the transfer or delegation of power to other agencies is therefore, in general, prohibited. Secondly the law seeks to ensure the agency has its disposal the full discretion which was granted to it, and therefore precludes behaviour such as adoption of rigid policies or entry into contractual agreements which has the effect of narrowing the discretion.

In Alienable Discretionary Power
An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorized by the authority endowed with the power.

one aspect of this principle is the rule that the participation of non-members in the deliberations or decisions of a collective body may invalidate its acts. The decision of a disciplinary committee, for example, is likely to be invalid if any non-member of the committee has taken part in the proceedings. [i] It is not clear that the mere presence of a non-member will be fatal, [ii] although in one case Lord Wright said: It would be most improper on general principles of law that extraneous persons, who may or may not have independent interest of their own, should be present at the formulation of the judicial decision. [iii] A recognized exception is the right of magistrates to have the assistance of the clerk on question of law. [iv]

The maxim delegatus non potest delegareis sometimes invoked as if it embodied some general principles that made it legally impossible for statutory authority to be delegated. In reality there is no such principle; and the maxim plays no real part in the decision of cases, though it is sometimes used as a convenient label. Its proper home is in the law of agency, where it expresses the point that a principle who must accept liability for the acts of his agent need not accept it for the act of his agent’s agent; but even here there are wide expectations. In the case of statutory powers the important question is whether, on a true construction of Act, it is intended that a power conferred upon A may be exercised on A’s authority by B. The maxim merely indicates that this is normally not allowable. [v] For this purpose no distinction need be drawn between delegation and agency. Whichever term is employed, the question of the true intent of the Act remains. It is true that the court will more readily approve the employment of another person to act as a mere agent than a wholesale delegation of the power itself. But this is not due to any technical difference between agency and delegation but to different degrees of devolution which either term can cover.

Examples of Delegation
The following characteristics cases where action was held ultra vires because the effective decision was taken by a person or body to whom the power did not properly belong.

(a) Under wartime legislation local committees were empowered to direct farmers to grow specified crops on specified fields. A committee decided to order eight acres of sugar beet to be grown by a farmer, but left it to the executive officer to decide on which field it should be grown. The farmer, prosecuted for disobedience, successfully pleaded that the direction was void, since the executive officer did not have the power to decide as to which field. [vi] The right procedure would have been for the committee to have obtained the officer’s recommendation and to have decided the whole matter itself.

(b) Registered dock workers were suspended from their employment after a strike. The power to suspend the docks under the statutory dock labour scheme was vested in the local dock Labour board. The suspensions were made by the port manager, to whom the board had purported to delegate its disciplinary powers. The dockers obtained declarations that their suspensions was invalid since the board had no power to delegate its functions and should have made the delegation itself. [vii]

(c) In a similar case where a registered dock worker was dismissed the house of lords granted a declaration that the dismissal was invalid because the board, instead of deciding itself, had entrusted the whole matter to a disciplinary committee. [viii]

(d) A local board had power to give permission for the laying of drains. They empowered their surveyor to approve direct applications, merely reporting the number of such cases to the board. It was held that the board itself must be decide each application, and that delegation to the surveyor was unlawful. [ix] The result was the same where a local education committee left it to its chairman to fix the date of a closure of the school [x] and where the monopolies commission allowed its chairman to decide the company’s takeover proposal had been abandoned. [xi]

(e) A local authority having a statutory duty to provide housing for homeless people, set up a company which purchased houses, financed by a loan from a bank which the council guaranteed. This was held to be impermissible delegation since it transferred the council’s functions to the company, over which the council had only limited control. [xii]

(f) A chief constable was entitled to delegate to the assistant chief constable his power to extend a police probationer’s probation period, but not, it seems, his power to dismiss a probation. [xiii]

Unauthorized Discretion Or Consent
Sometimes the judicial aversion to delegation is carried to length which make administration difficult, a tendency which is particularly marked in the Canadian cases. In one of these the Governor was empowered to make regulations for the control of immigration with reference to specified criteria such as the immigrant’s unsuitability. The court condemned a regulation which denied administration to persons who were unsuitable in the special inquiry officer [xiv] though it is hard to see how the criterion could have been applied without such delegation. A clearer case where an immigration adjudicator, hearing an appeal, found facts which gave a discretion to the secretary of state but wrongly exercises himself. [xv] In case from Ceylon the governor general had power to appoint a commission of inquiry into any matter in which in his opinion would be the interest of the public safety or welfare. He appointed a commissioner to inquire into all such government contracts as the commissioner in his absolute discretion might think of sufficient importance to the public welfare to warrant inquiry. The privy council held this to be unlawful delegation, since the subject of inquiry should have been chosen according to the Governor general’s opinion, not the commissioner’s. [xvi] But the house of lords upheld notices issued by a rating authority’s subordinate officer where the Act said: ‘Where the rating authority are of opinion and the only opinion formed was that of a subordinate. [xvii]

Agency And Administration
Unlawful delegation must be distinguished from lawful agency. A public authority is naturally at liberty to employ agents in the execution of its powers, as for examples by employing solicitors in litigation, surveyors in land transactions, and contractors in road building. The essential thing is that it should take its decisions of policy itself, and observe any statutory requirements scrupulously. [xviii] Occasionally the court may even invoke the rules of agency to justify a questionable delegation. This happened where the Westminster city council’s public health committee and authorized their chairman to deal with urgent matters in the vacation, and the chairman instituted proceedings for nuisance which the committee ratified at their next meeting.[xix]This was an indulgent decision and it was unanimous. Normally a stricter rule prevails, so that where the Act allows proceedings to be instituted by an officer authorized by resolution, a later resolution cannot validly ratify action already taken.[xx] It must be emphasized that all these cases turn on the implications of various statutory provisions: there is no rigid rule. But in general the is likely to be more strict where the issue is one of the substance as opposed to formality. The court of appeal summarily dismissed the National dock labour board’s claim to have ratified the suspension of dock workers who had been invalidly suspended by the port manager, since this was a serious disciplinary action which only the board itself was competent to take.[xxi]It dismissed no less firmly a minister’s claim to have ratified the irregular requisitioning of a house by local authority under powers validly delegated by the minister. [xxii]

In one doubtful decision it was held in effect that the delegation of its powers by a local planning authority was justified by a general practice, though the practice had no legal basis.[xxiii]In another case Denning LJ said while an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it its enables to do so expressly or by necessary implications. [xxiv]

Statutory Power To Delegate
Since in practice government demands a great deal of delegation, this has to be authorized by the statute, either expressly or impliedly. The whole of the committee system, as operated by the local authorities, is dependent upon the power of delegation conferred by the statute, currently by the local government Act 1972.

Powers to delegate will be construed in the same way as other powers, and will not therefore extend to sub-delegation in the absence of some express or implied provision to that effect. The delegate must also keep within the powers of the delegation , which may be narrower than the possessed by the delegation authority; it will no defense that authority could, had it wished, have delegated wider power. [xxv]

A statutory power to delegate functions, even if expressed in wide general terms, will not necessarily extend to everything. Thus it has been held that the general medical council itself must exercise its disciplinary powers over dentists and cannot delegate them to its executive committee, even though it has express statutory powers to act through such a committee for the purpose of its functions under the dentist Act. [xxvi] In case of important judicial and disciplinary functions the court may be disposed to construe general powers to delegation restrictively.

A statutory power to delegate will normally include a power to revoke a delegation when desired. [xxvii] While the delegation subsists it may be arguable whether the delegating authority is denuded of its power or is able to exercise it concurrently with the delegate. This question arose where under statutory authority the executive committee of a county council delegated to a sub-committee had done anything the executive committee, without revoking the delegation, itself issued regulation for the muzzling of the dogs. These regulation were upheld, but on inconsistent grounds, one judge holding that the executive committee had resumed its power and the other that it did not part with them that the word delegate means more than that of the agent. [xxviii]

Power In The Wrong Hands
Closely akin to delegation, and scarcely distinguishable from in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or submitting to their wishes or instructions. The effect then is that the discretion conferred by the parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principles that they condemn some administrative arrangements which must seem quite natural and popular to those who make them.

Clear cut cases of unlawful dictation have occurred in other jurisdictions where ministers have attempted to interfere for political reasons. In one, the prime ministers of Quebec gave instruction for cancellation of liquor licence where the licensee was supporting an unpopular section of the community. [xxix]

Estoppel-Misleading Advice
The doctrine of estoppel be prevented from not only enlarging the power of the public authorities illegitimately, as already explained.[xxx] It must also be prevented from cramping the proper exercise to their discretion. The principle here is same as in the case of contracts, already discussed, and it is equally capable of causing hardship. [xxxi]

Nevertheless the court of appeal has held a local planning authority bound by wrong statements made by its own officers, in apparent defiance of the rules against both delegation and estoppel. After planning permission has been given to a number of houses in London, the builder submitted a revised plan and asked for the approval of the variations. The planning officer had lost the file with the original plan and, thinking that the variations were not material, told the builder that no further permissions would be needed. In fact the variations brought the house much closer to existing houses, and when one of them was already nearly finished the planning authority refused permission and threatened enforcement. The court of appeal granted that there was already a valid planning permission for the house of altered site. [xxxii]

Conclusion
We have seen in this chapter how administrative law gives effect to the important policy that decision-makers upon whom discretionary powers conferred should retain and exercise those powers. Therefore, that administrative law recognizes the value of discretion, the rules which have evolved in this area acknowledge that the value must be set against a wide range of competing interests.

End-Notes
[i] Lane v. Norman (1891) 66 LT 83
[ii] Leary’s case
[iii] Middle sex county valuation committee v. west Middle sex assessment area committee(1937)
[iv] Wards’ case
[v] Re S.(A Barrister)[1970]1 QB 160;(1943)
[vi] Allingham v. Minister of Agriculture and fisheries[1948] 1 All ER 780.
[vii] Barnard v. National Dock Labour Board[1953] 2QB 18
[viii] Vine v. National Dock Labour Board[1957]
[ix] High v. Billings(1903) 89 LT 550.
[x] R. V. Secretary of the state of education and science(1984)
[xi] R. v. Monopolies and Mergers commission [1986]
[xii] Credit Suisse v. Waltham forest ;LBC [1997] QB 362
[xiii] R. v. Chief Constable of great Manchester[1999]
[xiv] A.G of Canada v. Brent[1956]SCR318
[xv] R. v. Home secretary [1981]
[xvi] Ratnagopal v. A. G
[xvii] Provident mutual life insurance association v. Derby[1981]
[xviii] Bob Keats ltd v. Farrant[1951]
[xix] R. v. Chapman[1918]
[xx] Bowyer Philpott Payne ltd v. Mather[1919]
[xxi] Barnard v. National dock labour board [1953]
[xxii] A. G Co-operative retail services Ltd v. Taff-ely BC[1979]
[xxiii] Legal finance Ltd v. Westminster London borough Council[1971]
[xxiv] Barnard’s case
[xxv] Cook v. Ward
[xxvi] General medical council v. UK Dental board[1936]
[xxvii] Battelley v. Finsburg borough council[1958]
[xxviii] Manton v. Brighton
[xxix] Roncorelli v.duplessis[1959]
[xxx] M.C.Elliot case[2003]
[xxxi] Laker airways case
[xxxii] Lever finance Ltd v. Westminster London borough council[1971]

References
1.Cases, Materials and Commentary on Administrative Law-By S. H. Bailey
2.Administrative Law: Text and Materials-Mark Elliott, Jason Varuhas
3.Administrative Law:Cases and Materials-J. Beatson

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