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Lecture notes Constitutional and Administrative Law (LW1120)

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lecture notes on failing to exercise discretion

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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

Connected book
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Hilaire Barnett, Hilaire Barnett Constitutional and Administrative Law
Publisher: Unknown ISBN: 9781000392166 Edition: 14

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