Illegality
- Illegality includes a no. of different grounds
o An authority mustn’t exceed its jurisdiction by purporting to exercise powers
that it doesn’t possess
o An authority to which the exercise of discretion has been entrusted can’t
delegate the exercise of its discretion to another unless clearly authorised to
do so
o An authority mustn’t fetter its discretion
o An authority mustn’t use its power for an improper purpose
o An authority must take into account all relevant considerations & disregard
all irrelevant considerations
Failure to exercise discretion
- Can occur in 4 ways
o The public body in which the discretion is vested may act under dictation or
have unlawfully delegated the decision-making power to another
o The body may have bound itself by a pre-determined policy that the courts
consider has precluded that body from exercising its discretion in a particular
case
o The body may be bound by contract which prevents it from exercising its
discretion in a particular case
o The public body itself or 1 of its officials may have made a representation as
to how its discretion would be exercised & the representee seeks to keep the
authority to its representation through estoppel
Unlawful delegation
- The presumption is rebutted where the statute empowering the public body
expressly authorises delegation or allows it by necessary implication
- Steps that have to be taken to assess whether an unlawful delegation has taken
place
o Has there been unlawful delegation?
If there hasn’t then that the end of the matter
If there has, step 2 needs to be considered
o Does the relevant statute allow delegation expressly or by necessary
implication?
If not there has been unlawful delegation
- Delegation can occur in a no. of ways
o The transfer of a power from one body to another
o Where one body is dictated to by another
- The rule as applied to ministers requires special consideration
o Although empirically it may appear as though a delegation has occurred in
law it’s not considered to have occurred
- The carltona principle doesn’t extend to ministers on fact devolving their powers to
other ministries
Fettering discretion by a self-imposed rule
- The degree of rigidity is a defining factor
- ‘The general rule is that anyone who has to exercise a statutory discretion mustn’t
shut his ears to an application’
- Illegality includes a no. of different grounds
o An authority mustn’t exceed its jurisdiction by purporting to exercise powers
that it doesn’t possess
o An authority to which the exercise of discretion has been entrusted can’t
delegate the exercise of its discretion to another unless clearly authorised to
do so
o An authority mustn’t fetter its discretion
o An authority mustn’t use its power for an improper purpose
o An authority must take into account all relevant considerations & disregard
all irrelevant considerations
Failure to exercise discretion
- Can occur in 4 ways
o The public body in which the discretion is vested may act under dictation or
have unlawfully delegated the decision-making power to another
o The body may have bound itself by a pre-determined policy that the courts
consider has precluded that body from exercising its discretion in a particular
case
o The body may be bound by contract which prevents it from exercising its
discretion in a particular case
o The public body itself or 1 of its officials may have made a representation as
to how its discretion would be exercised & the representee seeks to keep the
authority to its representation through estoppel
Unlawful delegation
- The presumption is rebutted where the statute empowering the public body
expressly authorises delegation or allows it by necessary implication
- Steps that have to be taken to assess whether an unlawful delegation has taken
place
o Has there been unlawful delegation?
If there hasn’t then that the end of the matter
If there has, step 2 needs to be considered
o Does the relevant statute allow delegation expressly or by necessary
implication?
If not there has been unlawful delegation
- Delegation can occur in a no. of ways
o The transfer of a power from one body to another
o Where one body is dictated to by another
- The rule as applied to ministers requires special consideration
o Although empirically it may appear as though a delegation has occurred in
law it’s not considered to have occurred
- The carltona principle doesn’t extend to ministers on fact devolving their powers to
other ministries
Fettering discretion by a self-imposed rule
- The degree of rigidity is a defining factor
- ‘The general rule is that anyone who has to exercise a statutory discretion mustn’t
shut his ears to an application’
