Constitutional and Admin. Law lecture 06.02.19
Failing to Exercise Discretion: (lect. 10)
Have they exercised choice? -if Parl. gives choice to a public body, THEY MUST exercise that
choice
Problems:
Delegation (pass it down)
Dictation
Fettering by rules of policy
Weighting of factors within choice; at one point can courts say balance is off to determine
that it is unlawful?
Rule against delegation:
Ellis v Dubowski=local authority (London) which films can you show/approve of?
British Board of Film Classifications (BBFC) classified which films were suitable for
public and local authority said if they don’t approve, they wouldn’t show it. cinemas
disputed this.
Mills v LCC (London County Council)-which films will they allow to be showed?
Council said this time no showing of films without BBFC approval OR express consent
of LCC; challenged as being against rule against delegation and LCC was successful;
didn’t pass a decision across, kept a decision within itself.
The Carltona Principle-delegation within central government department is fine; civil service
does most of the deciding here. Starts with a central gov. dpt., but idea develops beyond
this:
Oladehinde- deportation decisions delegated to officers in Home Office; although
statute says has to be done by Home Secretary, done by senior home officers. Courts
response was this is fine and sticks within Carltona Principle (within Home Office)
Bourgass-prisoner placed in solitary confinement. Within prison can place prisoners
in solitary confinement for up to 72 hrs, if you want to extend this time, it’s a
decision for Secretary of State; policy document allowing extension of solitary
confinement by operational manager; argued Carltona not relevant here-significant
decision
General rule against delegation:
Allowed if statute=explicit
Implicitly allowed (Carltona)
Advice and recommendations allowed
Dictation-authorities acting in behest as someone else:
Lavender v Minister of Housing and Local Gov.-planning permission to use quarry for
gravel; Minister of Agriculture opposed, up to Minister of Housing and Local Gov to
decide; won’t allow if Minister of Agriculture opposed (decision based on Minister of
Agriculture)
Ealing v Audit Commission-AC rated Ealing’s performance as ‘weak’; got to this
decision as a result of judgment by Commission on Social Care which fed into AC’s
rules; Ealing argued they were acting under dictation; argued it’s not dictation since
AC have just adopted a series of weights which feed into the formula (made up their
own mind on how they’re going to use it)
Laker Airways v Department of Trade-needs to obtain licence from CAA; CAA’s
position in statute is statutory duties and directions from Secretary of State in
certain circumstances, and guidance from Secretary of State. Change in position by
Secretary of State-new guidance which required the removal of a licence, and
Failing to Exercise Discretion: (lect. 10)
Have they exercised choice? -if Parl. gives choice to a public body, THEY MUST exercise that
choice
Problems:
Delegation (pass it down)
Dictation
Fettering by rules of policy
Weighting of factors within choice; at one point can courts say balance is off to determine
that it is unlawful?
Rule against delegation:
Ellis v Dubowski=local authority (London) which films can you show/approve of?
British Board of Film Classifications (BBFC) classified which films were suitable for
public and local authority said if they don’t approve, they wouldn’t show it. cinemas
disputed this.
Mills v LCC (London County Council)-which films will they allow to be showed?
Council said this time no showing of films without BBFC approval OR express consent
of LCC; challenged as being against rule against delegation and LCC was successful;
didn’t pass a decision across, kept a decision within itself.
The Carltona Principle-delegation within central government department is fine; civil service
does most of the deciding here. Starts with a central gov. dpt., but idea develops beyond
this:
Oladehinde- deportation decisions delegated to officers in Home Office; although
statute says has to be done by Home Secretary, done by senior home officers. Courts
response was this is fine and sticks within Carltona Principle (within Home Office)
Bourgass-prisoner placed in solitary confinement. Within prison can place prisoners
in solitary confinement for up to 72 hrs, if you want to extend this time, it’s a
decision for Secretary of State; policy document allowing extension of solitary
confinement by operational manager; argued Carltona not relevant here-significant
decision
General rule against delegation:
Allowed if statute=explicit
Implicitly allowed (Carltona)
Advice and recommendations allowed
Dictation-authorities acting in behest as someone else:
Lavender v Minister of Housing and Local Gov.-planning permission to use quarry for
gravel; Minister of Agriculture opposed, up to Minister of Housing and Local Gov to
decide; won’t allow if Minister of Agriculture opposed (decision based on Minister of
Agriculture)
Ealing v Audit Commission-AC rated Ealing’s performance as ‘weak’; got to this
decision as a result of judgment by Commission on Social Care which fed into AC’s
rules; Ealing argued they were acting under dictation; argued it’s not dictation since
AC have just adopted a series of weights which feed into the formula (made up their
own mind on how they’re going to use it)
Laker Airways v Department of Trade-needs to obtain licence from CAA; CAA’s
position in statute is statutory duties and directions from Secretary of State in
certain circumstances, and guidance from Secretary of State. Change in position by
Secretary of State-new guidance which required the removal of a licence, and
