Control of Discretion: Delegation, Fettering, Improper Purposes &

Relevancy

Discretion exists where there is power to make choices between courses of action or where,
even though the end is specified, a choice exists as to how that end should be reached.
Three principle ways in which discretion can be controlled:
1. Courts can impose controls on the way in which the discretion has been exercised,
with the objective of ensuring that there has been no failure to exercise the
discretion.
- Limitations on delegation, and on the extent to which an authority can
proceed through policies or rules, are the two principal controls of this type
2. Constraints can be placed in order to ensure that there’s been no misuse of power
- The judiciary can impose substantive limits on the power of an
administrative body on the ground that it is thereby ensuring that the body
doesn’t act illegally, outside the remit of its power
3. The courts can develop principles to ensure that the administrative authority doesn’t
misuse its power by acting irrationally, thereby placing substantive limits on the
power of that authority
Traditional theory posited the link with sovereignty and the ultra vires doctrine as: Parliament
only intended that such discretion should be exercised on relevant and not irrelevant
considerations, or to achieve proper and not improper purposes. Any exercise of discretion
which contravened these limits was ultra vires. The ease with which the judicial approach can
be reconciled with sovereignty demonstrates the limits of the ultra vires concept as an
organising principle for administrative law.
The modern conceptual rationale bases judicial intervention on rather different grounds – the
judicial controls are seen as being as much concerned with supplementing legislative intent as
with implementing it. On this view, the judicial role is to fashion and enforce principles of fair
administration.

Delegation
Unlawful delegation is a way in which a public body may be held to have failed to exercise its
discretion.
 The general principle is that if discretion is vested in X, it must be exercised by X
 This is a principle not a rule; whether a person other than that named in the empowering
statute is allowed to act will depend on the entire statutory context. Things that will be
taken into account:
o The nature of the subject-matter
o The degree of control retained by the person delegating
o The type of person or body to whom the power is delegated

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  The type of power that’s delegated is important, not conclusive: the courts are reluctant
to sanction the delegation of judicial power
Barnard: the National Dock Labour Board had lawfully delegated powers, inc.
those over discipline, to the local Boards. The latter purported to delegate these
to the port manager, who suspended the claimant from work.
This was held to be unlawful, the court stressing that a judicial function could
rarely be delegated.
It was argued that the unlawful delegation to the port manager could be cured
by ratification of the Labour Board. Denning rejected this, stating that the effect
of ratification was to make the action equal to a prior command, and since a
prior command in the form of delegation would have been unlawful, so too
would ratification.
It is accepted that where powers are granted to a minister, they can be exercised by the
department – this is the Carltona principle.
Civil servants are servants of the Crown, not of the ministers who are
answerable to Parliament for the departments in which they serve.
Where a power or function is conferred on a Minister, in circumstances where,
given administrative necessity, Parliament cannot have intended the Minister to
exercise the power or function personally, an implied power of delegation (or
agency) may be inferred.
Lord Greene MR: “In the administration of government in this country the
functions which are given to ministers (and constitutionally properly given to
ministers because they are constitutionally responsible) are functions so
multifarious that no minister could ever personally attend to them... The duties
imposed upon ministers and the powers given to ministers are normally
exercised under the authority of ministers by responsible officials of the
department. Public business could not be carried on if that were not the case.
Constitutionally, the decision of such an official is, of course, the decision of the
minister.”
Expresses the idea that, in United Kingdom law, the acts of government
departmental officials are synonymous with the actions of the minister in charge
of that department.
Recognises the civil servant as the representative of the Minister in the very
strongest sense - as the alter ego whose hand happens to wield the pen with
which the Minister is regarded as having written.
 Sensible, since it would be impossible for the minister personally to give consideration
to each case
 The minister need not personally confer the authority for the official to act; it may be
granted in accordance with departmental practice
 It’s unclear whether it’s necessary for the officer to act explicitly on behalf of the
minister
 There was an important qualification to Carltona in the Health Stores case:

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 It was held that Carltona only established that the act of a duly authorised civil
servant was in law the act of the minster. It did not decide that what the civil
servant knew was in law the minister’s knowledge, regardless of whether the
cs actually knew it.
It followed that a minister who reserved a decision to himself, and a civil
servant who was authorised by a minister to take a decision, must know or be
told enough to ensure that nothing that it was legally relevant for him to know
was left out of account.
Put simply, the minister or civil servant must know enough to enable him to
make an informed judgement.

It has also been held that Carltona isn’t limited to govt departments - Birmingham Justices:
the principle could also allow a Chief Constable to discharge functions through
an officer for whom he was answerable, provided that the function could,
consistently with the statute, be delegated, and a suitable person be entrusted
with the task.

Castle v CPS [2013]: The realities of departmental government and the

principle of delegated power recognized in Carltona in 1943 were even more
apposite in modern times. The principle applied where decisions were taken by
civil servants of suitable seniority and for whom the secretary of state took
responsibility. Secretaries of state were entitled to devolve rather than delegate
their power to officials acting as their alter egos.
“Does the fact that the Highways Agency will determine whether a speed limit
should apply and if so whether that limit is 50 or 60 mph render the order ultra
vires by purporting to delegate a power that cannot be delegated? I would
answer that question no, adding, however, that I consider that question does not
accurately pose the question. This is a case of the Secretary of State acting
through his authorised servants and agents by means of a devolvement, not by
the delegation of a power to a named individual.”

The Deregulation and Contracting Out Act 1994 makes provision for the contracting out of
certain functions by government to bodies that will normally be private. The statute was passed
to allow the body to which the power has been contracted-out to operate in the name of the
minister, by analogy with Carltona.
- S69 enables functions which, by virtue of any enactment or rule of law, can
be performed by an officer or minister, to be contracted-out to an authorised
party
o S69(5)(c) makes it clear that the minister may still exercise the
function to which the authorisation relates

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 - S71(1) imposes limits on the functions which can be contracted out. A
function is excluded from ss.69 and 71 where:
o Its exercise would constitute the exercise of jurisdiction of any court
or of any tribunal which exercises the judicial power of the state;
o Its exercise or failure to exercise it would necessarily interfere with
or otherwise affect the liberty of any individual;
o It is a power or right of entry, search or seizure into any property;
o It is a power or duty to make subordinated legislation
- S72(2) is designed to render the minister ultimately responsible for action
taken by the body, although its meaning isn’t free from doubt (and doesn’t
apply re criminal proceedings against the body)
While it was clear from discussion of the legislation in the Commons that the govt regarded
these sections as technical amendments involving no issue as principle, it’s hard to regard the
changes ‘with such equanimity’. S69 is so framed as to empower an outside body to exercise
the functions of the minister – the donee of power is not simply the alter ego of the minister bu
the actual repository of the statutory power.
The idea that one can transfer the Carltona principle to private bodied is contentious.

Freedland ‘Deregulation and Contracting Out Act 1994’:

“One cannot read the unanimous judgment of the Court of Appeal in the
Carltona case without concluding that it would have been unthinkable to that
court that their doctrine could be extended so that the functions of a Minister
could be exercised by a private sector employee linked to the Minister only by
a chain of contracts and not by any public service relationship. They would have
been amazed that the Minister could be expected on the one hand to seek and
maintain a commercial relationship with an outside contractor, while on the
other hand treating that contractor as the very embodiment of himself. It
requires some ingenuity thus to treat somebody as standing in one's own shoes,
yet at the same time to keep that person at arm's length.”
Part I of the Deregulation and Contracting Out Act 1994 conferred upon Ministers a
power to suspend any provision of an Act of Parliament if they were of the opinion that
the effect of the provision in question was to impose a burden affecting any person in
the carrying on of any trade. Part II of the Act provided for the transfer of statutory
functions from the Ministers to which they were entrusted to private sector contractors
at the discretion of the Minister in question.
It’s like someone’s written a very hypothetical exam question – thinks it’s ridiculous
that this actually happened, undermined our constitutional principles.
There has not been a true golden age for Parliamentary Sovereignty in recent times, nor
a strong sense that the Rule of Law was absolutely maintained, even before the current
wave of assaults upon our constitution began. It is, however, impossible to read the Act
and the debates about it in Parliament without a mounting sense of alarm that an

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unusually deep challenge to our traditional constitutional values has been mounted and
successfully maintained.
The challenge to our traditional constitutional values by the de-regulatory order-making
clauses conferred by Part 1 has been appreciated – they’ve been condemned as ‘Henry
VIII clauses’, at least in the course of parliamentary debate.
He's worried about the contracting out provisions in Part II of the act; and their
implications for parliamentary democracy. There’s been less alertness to the dangers of
these provisions.
President of the Board of Trade, Mr Michael Heseltine, in the second reading debate
introduced the provisions of Part II simply as ones which would “subject to essential
safeguards, provide us with the means to sweep away unnecessarily restrictive
distinctions between what can be done by contractors and what must be done by civil
servants. It will thus widen the range of activities which can be tested in the market-
place’.
It is indeed the case that in one sense this Part of the Act is no more than the taking of
existing policies to their logical conclusion. Successive administrations after 1979 had
indeed developed a grand strategy of fostering public service provision by agency or
by contract.
- They had first encouraged the contracting-out of ancillary services by
government departments, by the NHS and by local authorities
- They had introduced the compulsory competitive tendering system for local
authority services in 1988. Under the Next Steps programme, the service
provision functions of government had been assigned to agencies within
government
- The Government Trading Act 1990 had made it possible for those agencies to
trade as separate bodies. Under the Citizens' Charter initiative, there was a
programme of market testing for the functions particularly of Next Steps
agencies
- The Criminal Justice Act 1991 had provided a statutory regime for the
contracting-out of prison and prisoner escort services, indubitably core rather
than ancillary functions of government, and ones involving custodial
responsibilities at that
- The Civil Service (Management Functions) Act 1992 had enabled management
functions of government departments to be transferred to non-departmental civil
servants such as the chief executives of Next Steps agencies
Part II of the 1994 Act could well be presented as but a short further step along the road
to government by contract. But in substance, it’s actually quite a bit more than this.
The extension of the contracting-out facility to all manner of government functions,
both core and peripheral, marks a major affirmation, both in theory and practice, of the
ubiquitousness of the commercial ethos and its predominance over the public service
ethos so far as government policy is concerned--with all the potential for corruption
which the ruthless pursuit of private profit has already demonstrably produced in
relation to public service provision.

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The safeguards placed on the contracting-out facility are flimsily constructed:
- The only person who has to be consulted before an order is made is a (non-
ministerial) office holder whose function it is wished to contract out (s69(3))
o The CEO of an agency which has lost out to private competition in a
market-testing exercise is obvs likely to have rude things to say when
consulted about proposals for a contracting-out order, but it’s not
obvious that he will represent a wide range of public interests
- The list of functions excluded from the contracting out facility by 71 marks the
narrowest of notions of a non-delegable exec role and is itself shot through by
significant exceptions, i.e. bringing local authority powers of enforcement of
rates and taxes back into the area of the contracting-out facility
- The so-called ‘restrictions on the disclosure of information’ in s75 and sch15 in
fact include a major facility for the disclosure of info by the public authority to
the contractor and on down to the employees of the contractor if the disclosure
is ‘necessary or expedient in, or in connection with, or for the purpose of
facilitating the exercise of the relevant function or a related function, or the
performance of ancillary services’ (Sc.15 para.2) – hardly a tough set of criteria
to meet
And the provisions are fundamentally innovatory: the order-making power, though
described in terms of the contracting out of functions, is not actually expressed in terms
of contracting out. Rather, it is expressed as a power to provide that a function “may be
exercised by (or by employees of) such person as may be authorised in that behalf by
the Minister or office holder whose function it is” (section 69(2), and likewise for local
authorities by section 70(2)). So orders made under these sections will do more than
authorise the making of contracts in relation to functions; they will actually authorise
the exercise of the function by a private person (whether human or legal) or the
employees of that person. This seems to me to involve that the authorised person or the
employees of the authorised person will in a direct sense exercise the powers and
perform the duties which make up the statutory function in question. This view is borne
out by the Explanatory Guide issued with the Bill, which stated that:
It is a well-established principle that functions conferred on a Minister by
statute can generally be exercised by civil servants on the Minister's behalf (the
“Carltona Principle”). The effect of orders made under the proposed power
would be to extend this principle so that private sector contractors could also
carry out such functions on behalf of Ministers, office holders and local
authorities.
All this means that we are talking about something much more than what occurs when
I contract with you to write a research report for you, or to provide computing services
for your accounts department.
Ministers now expected on the one hand to seek and maintain a commercial relationship
with an outside contractor, while on the other hand treating that contractor as the very
embodiment of himself. It requires some ingenuity thus to treat somebody as standing
in one's own shoes, yet at the same time to keep that person at arm's length.

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 Not altogether surprising that this is a difficult and obscure area, for there is an
underlying tension between the administrative relationship and its analysis in public
law, and the contractual relationship and its analysis in private law, and that tension is
increased as the legislators become more and more ambitious in their project of re-
conceptualising the public sphere in the model of the private one. What is more
surprising is the extent to which these measures can be passed off as unremarkable,
uncontroversial, and lying within the bounds of constitutional orthodoxy.
Real sense of uncertainty as to how public law and private law will inter-relate as they
bear on this new form of statutory contracting out – he’s apprehensive that the effect of
providing that public duties may be entrusted on a day-to-day basis to private
contractors can’t fail to be the erosion of the responsibilities of the state to its citizens
at quite a fundamental level.
The state comes to look more and more like the sleeping trustee and less like the active
trustee for the public good.

Fettering
A public body may be held to have failed to exercise its discretion if it adopts a policy which
precludes it from considering the merits of a particular case. Involves two related issues:
1. Assuming that the public body does have a policy or rule, it’s important to discern the
test applied by the courts to determine whether it should be allowed to stand
2. Whether the court should encourage public bodies to make rules if they don’t currently
exist
It’s rare for an administrator to have unguided discretion – the complete freedom to make a
decision according to whim. Decision-makers follow policies: non-legal rules, which help to
ensure that the officials exercise their discretion in a manner that is consistent with the priorities
of the administration.
Most discretionary power is accorded by statute. A public body endowed with statutory
discretionary powers isn’t entitled to adopt a policy or rule which allows it to dispose of a case
without any consideration of the merits of the individual applicant. The position in relation to
common law discretionary power is less clear. In Elias
the claimant who had been interned by the Japanese was denied access to the UK
government’s ex gratia compensation scheme because only civilian internees born in
the UK, or with parents/grandparents born in the UK were eligible to receive payment.
She argued, by way of analogy with the case law on statutory discretion, that the SS
had unlawfully fettered his common law power by refusing to consider whether to make
an exception.
CofA rejected the analogy – lawful to formulate a policy for the exercise of the statutory
discretionary power, but the person who fell within the statute couldn’t be completely
debarred and continued to have a statutory right to be considered by the persons
entrusted with the discretion.

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 These considerations didn’t apply in the case of an ordinary common law power, since
it was within the power of the decision-maker to decide on the extent to which the
power was to be exercised when setting up a scheme.

British Oxygen Co v Minister of Technology

In providing grants to businesses, the Technology Minister had made it his clear policy
not to grant for items costing less than £25/unit. British Oxygen’s application for
£4million at £20/unit was rejected. There is no obligation on the Minister to make a
grant in respect of each eligible product. He may approve a grant in respect of capital
expenditure referable to an eligible purpose, in the case of dual purpose plant.
Clear authority that the policy must be one which is legitimate given the statutory
framework within which the discretion is exercised: “If the authority makes a fixed rule
it is not exercising a discretion. It cannot abdicate its discretion and the appellants have
a fundamental right to have their case considered. The respondent could not, for
example, say that grants will only be made to companies making losses and not to those
making profits. He cannot build into the Act exclusions which are not there.”
“The department has a discretion but is under the duty and obligation to
perform its functions under the Act… There is a discretion as to the type of
manufacturing process which it is desired to encourage. To that discretion there
are no limits save frustrating the purposes of the Act”.
Lord Reid: the Minister has a discretion and is not bound to pay a grant to every person
who is eligible to receive one. He may formulate a policy or make a limiting rule as to
the future exercise of his discretion, if he thinks that good administration requires it,
provided that he listens to any applicant who has something new to say.
“When a discretion is vested by a statute in an authority, the authority is not entitled to
make a rule that in a particular class of case it will not exercise the discretion in favour
of the applicant. Such a rule is equivalent to declining to consider an application in
that class of case and is therefore an abrogation and not an exercise of the discretion.
The authority is, however, entitled to adopt a general policy (assuming it to be
reasonable) not to exercise its discretion in favour of the applicant in a particular class
of case and to consider an application on its merits in the light of that general policy.”
“The general rule is that anyone who has to exercise a statutory discretion must not
'shut his ears to an application”.

The existence of a rule or policy which is upheld by the courts raises issues re process rights.
no general right to participate in policy-making. If an individual wants to argue that the policy
shouldn’t be applied to a particular case, they may be able to raise the matter before the
authority itself (Lord Reid in British Oxygen thought there were instances where this was
possible). An individual can seek to j.r. the application of the policy and the substance of the
policy.

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Other case law on fettering:

R v Brent [1982]
The Secretary of State, in applying his declared policy on which he intended to exercise
his discretion, continued to be under a duty not to fetter his discretion and to act fairly
towards those authorities likely to be affected by a reduction in their rate support grant.
In refusing to entertain a delegation of representatives of affected authorities without
ascertaining whether they had any new representations to make, he had shown that he
had fettered his discretion and, in those circumstances, his decision was invalid and
would be quashed.

Sandiford [2014] SC
The Government's blanket policy of refusing to provide funding for legal representation
for British nationals facing criminal proceedings abroad was lawful. However, the
Secretary of State for Foreign and Commonwealth Affairs should undertake an urgent
review of the policy as it applied to the appellant, who was facing the death penalty in
Indonesia, in the light of new information about the course of further proceedings which
were due to take place in Indonesia.
“The basis of the rule against the fettering of discretions is that a discretion conferred
on a decision-maker is to be exercised.”

Purdy v DPP [2009] HoL

Euthanasia prosecutions guidelines case. The applicant was terminally ill, planned to
go abroad for assisted suicide. Wanted to know whether her husband would be
prosecuted for helping her to do so. House of Lords held that since the right to die was
part of Article 8, and any infringement of Article 8 had to be prescribed by law
(including accessibility and foreseeability), the DPP had to publish his policy on when
people would be prosecuted for assisting suicide. DPP has to publish a policy on when
people will be prosecuted for assisting suicide, to make the infringement of Article 8
clear and predictable enough to be prescribed by law.
“The requirement of foreseeability will be satisfied where the person concerned is able
to foresee, if need be with appropriate legal advice, the consequences which a given
action may entail. A law which confers a discretion is not in itself inconsistent with this
requirement, provided the scope of the discretion and the manner of its exercise are
indicated with sufficient clarity to give the individual protection against interference
which is arbitrary”.

Failure to Exercise Discretion

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 R (Corner House Research) v Director of Serious Fraud Office [2008] HoL
The director of the SFO reluctantly discontinued an investigation into bribery
allegations against BAE after Saudi Arabia threatened to stop co-operating with the UK
on counter-terrorism operations, which it was considered would put British lives at risk.
Claimants sought j.r. of the decision; argued that it had been unlawful for him to permit
a threat to influence it.
Divisional Court quashed the decision; decided that in yielding to the threat the director
had failed to exercise his powers independently and without surrendering them to a
third party.
HoL reversed the decision. The director had legal authority in the narrow sense to make
the decision as to whether prosecution would continue, since this was demanded of him
by the empowering legislation. It was how he exercised this discretionary power that
was at issue. Was it legitimate for the SFO to take account of the threat at all, and did
they give undue weight to the threat and thereby abdicate responsibility? There was
nothing in the empowering statute or in normative principle to say that the SFO
shouldn’t take account of such threats. So the issue was the weight to be accorded to
the threat in light of the other values to be served by prosecution of fraud cases.
HoL held that it was legitimate to take the threat into account; SFO was in a good
position to assess its weight; they didn’t abdicate its discretionary power (so it’s not
really a failure to exercise discretion case).
Decision has been criticised for undervaluing the rule of law. But why should the view of the
reviewing court on the issue of weight and relevance and balancing be substituted for that of
the SFO?
The case shows that statutory interpretation to identify relevant considerations, and the weight
to be accorded to them, isn’t a self-executing exercise.

Abuse of Discretion (improper purposes; relevant / irrelevant considerations)

The courts have, since the origins of judicial review exercised control to prevent abuse of
discretionary. Two differing levels at which the judicial controls can operate:
a. Courts can intervene because the tribunal has used its discretionary power for a purpose
not allowed by the legislation at all
b. They can also intervene because the tribunal, while able in principle to use its power to
reach a certain end, has done so in a manner felt to be unreasonable, irrational, or
disproportionate
Lord Diplock’s distinction between review for irrationality and illegality in GCHQ captures
this idea (this week of notes deals with illegality; next week’s with irrationality).
It’s not always easy to distinguish irrationality and illegality – courts and commentators may
differ as to which category a case should be placed in, because statutes conferring broad

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discretionary powers don’t have neat corners, and the process of statutory construction isn’t
self-executing. The determination of legitimate purpose and relevant considerations may
therefore entail judicial value judgement and use of substantive principles, not simply
discernment of something that’s evident from the very face of the enabling legislation.

Types of power that can be controlled

 Courts have held it as not within their power to invalidate primary legislation, as this
would be inconsistent with parliamentary sovereignty
o It will be interpreted in the manner that best fits with the precepts of judicial
review
o Primary statutes can be challenged for compatibility with EU law
o Courts have also heard a claim in Jackson that primary legislation wasn’t
properly made in accordance with the Parliament Acts and that the Parliament
Act 1949 was invalid
 Delegated or secondary legislation is subject to j.r
 So too is discretionary power exercised pursuant to a statute (this is the majority of
cases)
 Prerogative powers are subject to j.r. It was emphasised in GCHQ that the reviewability
of discretionary power should be dependent on the subject matter, not on whether tits
source was statute or prerogative.
NB: judicial review can vary in intensity. Increasingly common for courts to adopt a variable
standard of review, the intensity depending on the subject-matter of the action. Terms such as
irrationality or proportionality can be applied with differing degrees of rigour or intensity.

Improper purposes
Loads of cases where the court have struck down discretionary decisions where the discretion
has been used for an improper purpose. The courts determine the purpose of a particular statute
as a matter of construction. While they maintain that they are only keeping the authority within
the boundaries of its power and not substituting their view, the dividing line can be a fine one.
The determination of a purpose as proper or improper raises issues of political and social
choice, which do not cease to be so by being expressed in the language of vires.
The decision in Bromley provides a further example of the difficulties entailed in determining
the purposes for which statutory power can be used:
The Transport (London) Act 1969 s1 imposed on the GLC a duty to develop policies
that promoted the provision of integrated, efficient and economic transport facilities for
Greater London. The London Transport Executive (LTE) was to implement these
policies and was required, so far as was practicable, to make up any deficit incurred in
one accounting period within the next. The legislation empowered the GLC to take any
such action as was necessary and appropriate in order to enable the LTE to comply with
this obligation; and gave the GLC the power to make grants to the LTE for any purpose.

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 The GLC decided to implement a resolution to reduce fairs by 25%. To this end, they
issued a supplementary precept for rates to all London boroughs. The money would be
paid by the GLC to the LTE as a grant, and enable LTE to balance its accounts. An
indirect result of the fare reduction was that the GLC would lose approximately
£50million of the rate support grant. Bromley LBC sought to quash the supplementary
rate, arguing that it was either beyond the powers of the GLC under the 69 act, or that
it was an invalid exercise of discretion under that legislation.
HoL upheld the claim; Lords recognised that the power to make grants conferred a wide
discretion and that such grants could be made to supplement the revenue received by
the LTE from fares. This discretion was limited though. The LTE’s basic obligation
was to run its operations on ordinary business principles, which the fare reduction
contravened. The GLC couldn’t use its grant-making powers to achieve a social policy
that was inconsistent with these obligations. Reduction of the fares was also invalid
because it involved a breach of fiduciary duty owed by the GLC to the ratepayers. The
effect of the 25% reduction would be to place an inordinate burden on the ratepayers
since it would lead to a loss of the rate support grant. Nor could the GLC defend the
policy on the basis that it possessed a mandate to lower fares. Those who were elected
were representatives and not delegates – they couldn’t regard themselves as irrevocably
bound by their manifesto.
Lord Brandon: “It is, of course, entirely appropriate for a council, the majority of
whose members have been elected after setting out a particular policy in their election
manifesto, to take into account, and give considerable weight to, that circumstance
when exercising their discretion in relation to that policy after they have been elected
and come to power. It is, however, entirely wrong for such a majority to regard
themselves as bound to exercise their discretion in relation to that the policy in
accordance with their election promises, whatever the cost and other countervailing
considerations may turn out to be.”
Interesting case. The statutory language was, as Diplock admitted, sometimes opaque and
elliptical, as reflected in the fact that although the Lords reached a unanimous conclusion, they
differed in their interpretation of the legislation. They adopted a purposive approach to
construction.
The HoL’s argument based on the election manifesto is in many ways ‘incontrovertible’. A
person who’s elected isn’t a delegate of those who voted, but a representative who must act in
the best interests of all constituents. The representative can’t be irrevocably bound to fulfil
election promises. This is unexceptional, but doesn’t sit well with the decision in Tameside:
Lords placed much emphasis on fact that the local authority had a virtual mandate to
retain certain grammar schools in the area. It was a significant factor to be taken into
account when assessing the reasonableness of the local authority’s conduct in
attempting to allocate children to the correct school.
An authority investigating an application for registration of rights of common over land
has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant
information.’ A mere factual mistake has become a ground of judicial review, being
described as ‘misunderstanding or ignorance of an established and relevant fact’.

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 Lords asked what it was for the Secretary of State to be ‘satisfied’ as to a state of affairs:
“This form of section is quite well known, and at first sight might seem to exclude
judicial review. Sections in this form may, no doubt, exclude judicial review on what is
or has become a matter of pure judgment. But I do not think that they go further than
that. If a judgment requires, before it can be made, the existence of some facts, then,
although the evaluation of those facts is for the Secretary of State alone, the court must
inquire whether those facts exist, and have been taken into account, whether the
judgment has been made upon a proper self-direction as to those facts, whether the
judgment has not been made upon other facts which ought not to have been taken into
account.”
The difficulties re interpretation of the scope of a power and the divide between proper and
improper purposes aren’t confined to cases where the power is derived from statute, but equally
apparent in cases where it is founded on the prerogative, as in Bancoult:
Concerned the legality of Orders in Council made pursuant to the prerogative that
removed any right of abode and disentitled Chagos islanders from entry or presence on
the islanders without UK permission. Cs challenged the legality and rationality of the
Orders.
Majority held (in essence) that the orders in council should be regarded as lawful, in
the sense that they could exclude the islanders from returning to their island. The right
of abode was regarded as a ‘creature of the law’, which the law could give and take
away.
Minority (Bingham and Mance) held that the Order was invalid because there was no
warrant saying that it could be used to exclude and indigenous people from their
homeland. No historical authority for such power, and it was contrary to principle.
Similar differences of view in relation to irrationality: for the majority, the exercise of
power was consonant with the ordinary principles of j.r. shouldn’t be struck down
because it wasn’t unreasonable to refuse settlement, more especially because of the
security considerations relating to a US military base. For the minority; the Order
forbidding resettlement was irrational because there was no good reason for making it,
and because it involved a fundamental right (of abode) and hence called for heightened
security.
In a simpler world, authorities would act for one purpose only… complex problems arise where
one of the purposes is lawful and one unlawful. Courts have devised various tests to counter
this problem:
1. Tests considers the true purpose for which the power was exercised: provided that the
legitimate statutory purpose was achieved it is irrelevant that a subsidiary object was
also attained
2. Analyses the dominant purpose for which the power was exercised
3. Considers whether any of the purposes were authorised, although this test has less
support in the case law than 1 and 2
4. Whether any of the purposes was unauthorised and had an effect on the decision

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Other case law on improper purposes…

Padfield [1968]
The Minister had power to direct an investigation in respect of any complaint as to the
operation of any marketing scheme for agricultural produce. Milk producers
complained about the price paid by the milk marketing board for their milk when
compared with prices paid to producers in other regions. The Minister refused to
appoint a committee.
Held: The Minister had a discretion so that the real question was how far it was subject
to judicial control.
“Does the Act read as a whole indicate any policy which the Board is to follow or even
give any guidance to the Board? If it does then the Board must exercise its discretion
in accordance with such policy or guidance.”
Lord Pearce cites from an earlier case:
"The words 'it shall be lawful' are distinctly words of permission only - they
are enabling and empowering words. They confer a legislative right and
power on the individual named to do a particular thing, and the true question
is not whether they mean something different, but whether, regard being had
to the person so enabled - to the subject-matter, to the general objects of the
statute, and to the person or class of persons for whose benefit the power may
be intended to have been conferred - they do, or do not, create a duty in the
person on whom it is conferred, to exercise it."
"The question whether a judge, or a public officer, to whom a power is given by
such words, is bound to use it upon any particular occasion, or in any particular
manner, must be solved aliunde, and, in general, it is to be solved from the
context, from the particular provisions, or from the general scope and objects,
of the enactment conferring the power."
“It is quite clear from the Act in question that the Minister is intended to have some
duty in the matter. It is conceded that he must properly consider the complaint. He
cannot throw it unread into the waste paper basket. He cannot simply say (albeit
honestly) "I think that in general the investigation of complaints has a disruptive effect
on the scheme and leads to more trouble than (on balance) it is worth; I shall therefore
never refer anything to the committee of investigation." To allow him to do so would be
to give him power to set aside for his period as Minister the obvious intention of
Parliament, namely, that an independent committee set up for the purpose should
investigate grievances and that their report should be available to Parliament. This
was clearly never intended by the Act. Nor was it intended that he could silently thwart
its intention by failing to carry out its purposes. I do not regard a Minister's failure or
refusal to give any reasons as a sufficient exclusion of the court's surveillance. If all the
prima facie reasons seem to point in favour of his taking a certain course to carry out
the intentions of Parliament in respect of a power which it has given him in that regard,
and he gives no reason whatever for taking a contrary course, the court may infer that

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he has no good reason and that he is not using the power given by Parliament to carry
out its intentions. In the present case, however, the Minister has given reasons which
show that he was not exercising his discretion in accordance with the intentions of the
Act.
In the present case it is clear that Parliament attached considerable importance to the
independent committee of investigation as a means to ensure that injustices were not
caused by the operation of a compulsory scheme. It provided no other means by which
an injustice could be ventilated. It was not content to leave the matter wholly in the
power of a majority of the board. Nor was it content that the removal of injustice should
be left to the power of the Minister. It wished to have the published views of an
independent committee of investigation (with wide power to explore the matter fully).
It also wished that committee to consider and weigh the public interest - a fact that
makes it clear that the question of public interest was not at that stage being left to the
Minister. When the report is published then the Minister may and must make up his own
mind on the subject. He has power to do what he thinks best and decide whether or not
to implement the report. He is then answerable only to Parliament, which will have the
advantage of being able to understand the pros and cons of the matter from the
published report of an independent committee. Until that is published nobody can
effectively criticise his action, since nobody will have a balanced view of the strength
of the grievance and its impact on the public interest.
It is clear, however, as a matter of common sense, that Parliament did not intend that
frivolous or repetitive or insubstantial complaints or those which were more apt for
arbitration should be examined by the committee of investigation. And, no doubt, the
Minister was intended to use his discretion not to direct the committee to investigate
those. It is argued that, if he has a discretion to that extent, he must also have an
unfettered discretion to suppress a complaint of substance involving the public interest
which has no other outlet. I cannot see why this should be so. Parliament intended that
certain substantial complaints (involving the public interest) under the compulsory
scheme should be considered by the investigation committee. It was for the Minister to
use his discretion to promote Parliament's intention. If the court had doubt as to
whether the appellants' complaint was frivolous or repetitive, or not genuine, or not
substantial, or unsuitable for investigation or more apt for arbitration, it would not
interfere. But nothing which has been said in this case leads one to doubt that it is a
complaint of some substance which should properly be investigated by the independent
committee with a view to pronouncing on the weight of the complaint and the public
interest involved.
The Minister was mistaken in thinking that "normal democratic machinery of the Milk
Marketing Scheme" was a ground for refusal to have the complaint investigated. It is
alleged that the normal democratic machinery of the board is acting contrary to the
public interest. The investigation under section 19 and the Minister's powers under
section 20 were intended to correct, where necessary, the normal democratic
machinery of the scheme. Parliament had put into the hands of the Minister and those
of the committee of investigation the power and duty where necessary to intervene. A
general abdication of that power and duty would not be in accord with Parliament's
intentions.”

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 Lord Reid: “It is implicit in the argument for the Minister that there are only two
possible interpretations of this provision either he must refer every complaint or he has
an unfettered discretion to refuse to refer in any case. I do not think that is right.
Parliament must have conferred the discretion with the intention that it should be used
to promote the policy and objects of the Act, the policy and objects of the Act must be
determined by construing the Act as a whole and construction is always a matter of law
for the court. In a matter of this kind it is not possible to draw a hard and fast line, but
if the Minister, by reason of his having misconstrued the Act or for any other reason,
so uses his discretion as to thwart or run counter to the policy and objects of the Act,
then our law would be very defective if persons aggrieved were not entitled to the
protection of the court. So it is necessary first to construe the Act.”

Wheeler v Leicester [1985] HoL

Lord Roskill went back to ‘unreasonable in the Wednesbury sense’.
W was a member of Leicester Rugby Football Club which was allowed by the council
to use a recreation ground for matches and training. W was selected by the English
Rugby Football Union to take part in a tour to South Africa. The council asked the club
certain questions about its views on the tour which was answered but no effort was
made by the club to prevent W from going on the tour. After the tour the council passed
a resolution banning the club from using the ground for one year. Six members of the
club sought judicial review. The judge and the Court of Appeal refused the application.
Held, allowing the appeal, that the council had power under the Race Relations Act
1976 s.17 to consider the best interests of race relations when exercising its statutory
discretion in the management of the recreation ground but that since the club was not
guilty of any infringement of the law or improper conduct, the resolution penalising it
for failing to support the council's policy by publicly condemning the tour, was
unreasonable and in breach of the council's duty to act fairly; the council's conduct
amounted to a procedure impropriety and a misuse of its statutory power which entitled
the court to quash the ban.
“General powers such as those conferred by the Open Spaces Act 1906 and the Public
Health Acts cannot in general be lawfully exercised by discriminating against those
who hold particular lawful views or refuse to express certain views. Such general
powers are conferred by Parliament for the purpose of administering public property
for the benefit of the public at large, irrespective of their views or beliefs. If it were
permissible in exercising such powers to take into account the views expressed or held
by individuals, Parliament must be taken to have impliedly authorised the doing of an
act by the local authority inconsistent with the fundamental freedoms of speech and
conscience.”

World Development Movement v Secretary of State for Foreign Affairs [1995] Divisional
Court

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 The question of legal standing is not to be treated as a preliminary issue but is to be
taken in the context of the whole case. Once the court has determined that that particular
conduct is within the statutory purpose, the weight to be given to competing factors is
a matter for the Secretary of State. A British consortium sought aid and trade provision
for a project to construct a hydro-electric power station on the Pergau river. Despite
advice from the Overseas Development Administration that the project was an abuse of
the overseas aid programme in that it was uneconomic and was not a sound
development project, the Secretary of State decided to approve support for the project
and the UK and Malaysian Governments signed a financial agreement. The applicants,
a non-partisan pressure group, sought an assurance from the Secretary of State that no
further funds for the project would be furnished, but he refused to give such an
assurance. The applicants sought judicial review of the Secretary of State's decision to
grant funding and to refuse to withhold outstanding payments.
Held, granting the application:
1. that since standing went to jurisdiction it was not to be treated as a preliminary issue
but was to be taken in the legal and factual context of the whole case;
2. the merits of the challenge were an important factor when considering standing and
significant factors in support of the conclusion that the applicants had sufficient
interest for the purposes of the application were the importance of vindicating the
rule of law, the importance of the issue raised, the likely absence of any other
responsible challenger, the nature of the breach of duty against which relief was
sought and the prominent role of the applicants in giving advice, guidance and
assistance regarding aid
3. it was for the court to determine on the evidence whether particular conduct was
within the purpose of the Overseas Development and Co-operation Act 1980 but,
once it was so determined, the weight to be given to competing factors was a matter
for the Secretary of State;
4. the power under the Act to furnish assistance related to economically sound
development and, although the Secretary of State was entitled when making
decisions whether to grant assistance under the Act to take into account political
and economic considerations, on the evidence, no developmental promotion
purpose within s.1 existed at the time the financial agreement was signed and the
Secretary of State's decision was therefore unlawful.
“Whatever the Secretary of State's intention or purpose may have been, it is, as it seems
to me, a matter for the courts and not for the Secretary of State to determine whether,
on the evidence before the court, the particular conduct was, or was not, within the
statutory purpose.”

R v Lewisham LLBC ex parte Shell [1988] High Court

A local authority's policy of boycotting a company with trading links with South Africa
was not unreasonable but was tainted with an improper purpose. S Co. was part of a
multinational group which had subsidiaries in South Africa. Eighteen per cent of the
population of the borough was black, and the council decided to boycott S Co.'s

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 products, and to seek to persuade other councils to follow suit. S Co. sought a
declaration that the decision and the campaign was unlawful and ultra vires, and also
unreasonable.
Held, that in the light of the duty to promote good race relations imposed by the Race
Relations Act 1976 s.71, the decision had been influenced by an extraneous and
improper purpose, namely to oblige S Co. to sever links with South Africa when those
links were not contrary to English law.
The key issues were summarised as:
(1) What was the purpose or what were the purposes which the Council sought to
achieve by adopting and confirming the resolution of the Policy and Resources
Committee of 6 March?
(2) If one of the purposes of the Council's decision was to induce the Shell Group to
sever its trading links with South Africa, (a) was that a dominant or substantial influence
on the decision, and (b) if so, did that purpose render the decision ultra vires?
(3) If the sole purpose of the Council's decision was to fulfil the duty imposed on the
Council by s71 of the Race Relations Act 1976 , was the decision nevertheless ultra
vires on the basis that it was unreasonable in a Wednesbury sense?
(4) Is the Council acting ultra vires in taking part in a campaign to persuade other local
authorities effectively to boycott trade with Shell UK and its associated companies?
Neill LJ: “But where the two reasons or purposes cannot be disentangled and one of
them is bad, or where, even though the reasons or purposes can be disentangled the
bad reason or purpose demonstrably exerted a substantial influence on the relevant
decision the court can interfere to quash the decision. This proposition is recognised in
the authorities referred by May LJ in the Broadcasting Complaints case and by that
decision itself.”

Relevancy
Second principal method controlling the exercise of discretion: a decision will be ultra vires if:
a. it’s based on irrelevant considerations; or
b. relevant considerations haven’t been taken into account
Relevancy overlaps with control maintained through improper purposes (some cases could be
classified under one section or the other).
In exercising control based upon relevancy, the courts have defined the types of considerations
to be taken into account in various areas.
The stringency which the courts have applied the criterion of relevancy has varied in different
areas and there has been unwillingness to declare invalid administrative decisions simply
because the applicant could point to one ‘relevant’ factor which the authority didn’t take into
account (Re Fletcher’s Application). This is particularly so where it’s felt that the

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consideration didn’t have a causal effect on the authority’s determination and where the
decision being impugned was not determinative of rights.
Tesco Stores v Secretary of State for the Environment: while the courts will intervene
if a relevant consideration has not been taken into account, they’ll not generally have
regard to the weight it has been accorded, this being seen as the function of the primary
decision-maker.
If a planning obligation has some connection with a proposed development it is a
"material consideration" when considering whether planning permission should be
granted and regard must be had to it. The weight that the material consideration should
be given is a question of planning judgement within the exclusive providence of the
local planning authority or Secretary of State.
Two developers, T and P, applied for planning permission to build superstores outside
the town centre. P's application was not determined within the statutory period. On P's
appeal to the Secretary of State for the Environment, T's application was called in also.
The inspector had recommended that the council should negotiate the funding of a link
road with T and P. T later offered to fund the link road fully and entered into an
agreement with the council to do so under the Town and Country Planning Act 1990
s.106. The inspector recommended that T's application be granted and P's be dismissed.
The Secretary of State issued a decision letter dismissing the inspector's
recommendations and T's application and allowed P's appeal. T applied to the High
Court where the deputy judge quashed the Secretary of State's letter, saying that the
Secretary of State had not treated T's planning obligation to fund the road as a material
consideration. The Court of Appeal allowed P's appeal.
Held, dismissing T's appeal, that a planning obligation under s.106 was a "material
consideration" within the meaning of s.70(2). Here, although the link between the road
and the development was slight, it was relevant.
However, it could not be said that the Secretary of State had failed to have regard to the
planning obligation or had treated it as immaterial, but had merely declined to give it
any, or significant, weight. It was entirely for the decision-maker to attribute to the
relevant considerations such weight as he thought fit, and the court would not interfere
unless the decision-maker had acted unreasonably in the Wednesbury sense.

In short, courts:
a. Will intervene if a relevant consideration hasn’t been taken into account, BUT
b. Won’t intervene with regards to the weight accorded to a consideration; UNLESS
c. The weighing was Wednesbury unreasonable; OR
d. There is evidence that the decision-maker had fettered its discretion

Other cases on relevancy…

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R v Parliamentary Commissioner Administration ex parte Balchin [1997]
B sought judicial review of a decision by the Ombudsman following a complaint that
the Secretary of State for Transport was guilty of maladministration in confirming a
road order without seeking assurances as to the adequacy of compensation to B from
the local planning authority. B contended that the chosen route of a bypass would cause
significant depreciation of the value of his property under the Highways Act 1980
s.246(2A), which came into force between the date of the inspector's report
recommending the route and its confirmation by the Secretary of State. B's property
was adjacent to the proposed route and its value was seriously affected by the proposal.
This had financial consequences for B, such that his business was ruined. B submitted,
inter alia, that the Ombudsman's decision that maladministration had not occurred was
tainted by his rejection of the contention that the Secretary of State's failure to draw the
local authority's attention to its discretionary powers under s.246(2A) of the 1980 Act
caused B injustice.
Held, allowing the application, that the Ombudsman's acceptance that the power under
the 1980 Act s.246(2A) had been overlooked should not have been dismissed by relying
on the fact that the local authority would have any such application adversely treated as
a foregone conclusion. Although the Ombudsman had no authority to consider the
functions of the local planning authority, the refusal by the authority to contemplate its
powers under s.246(2A) amounted to a textbook example of fettered discretion, and the
Ombudsman should have decided that the refusal was an unacceptable answer, given
the nature of s.246(2A) and the Department of the Environment's advice which
accompanied it. In taking account of the authority's stance, the Ombudsman had not
reached the question as to whether the Secretary of State's omission amounted to
maladministration.
The conscious omission of an evaluation of the authority's stance amounted to a failure
to consider a relevant fact and meant that the Ombudsman had omitted a potentially
decisive element in determining whether the Department of Transport caused B
injustice by maladministration in its dealings with the local planning authority.
Comment: The basic point of law at the bottom of this case is relatively simple. It is that
highway authorities are under a legal duty to consider using their discretionary powers to
purchase land which will in their opinion be seriously affected by their construction of a
highway. This power is of course very different from the duty to acquire land in advance where
that land will be needed to construct the highway but it at least gives landowners a hope that
local authorities will alleviate cases of serious hardship. The important change which was
introduced by the Planning and Compensation Act 1991 is that the power can now be used
where the enjoyment of the relevant property has not yet been affected but it will be affected.
The case is made complicated because the application for judicial review was not levelled at a
decision of the county council but rather at the decision of the Parliamentary Commissioner for
Administration who had investigated a charge of maladministration against the Department of
Transport in the way they had confirmed the road orders made by the county council. So it was
a case of the guardians guarding the guardians who were checking on the way the Department
was carrying out its own supervisory functions!

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From the facts it would seem clear that the Department did not consider asking the council
directly to consider using their new discretionary powers of advance purchase. Sedley J. did
not hold that this in itself amounted to maladministration but rather that the Parliamentary
Commissioner had erred in declining to consider whether this failure did amount to
maladministration resulting in injustice. The Parliamentary Commissioner had come to his
conclusion on the grounds that, the failure of the Department to take up the matter of
compensation with the council, would have made no difference as the council had already made
it clear that they were not prepared to purchase the property. It was therefore on this relatively
small issue of fact that Sedley J. was disagreeing with the Commissioner though this led him
to hold that there had been a failure to consider a relevant consideration. It is believed that this
is the first case of a decision of the Parliamentary Commissioner for Administration being
overturned by the courts and it confirms the increasing reach of judicial review. The difficulty
of this decision is that it gets very close to usurping the Commissioner's discretion to determine
matters of fact. On the other hand, the decision can be defended on the grounds that the
Parliamentary Commissioner could not be certain that pressure from the Department might
have produced results. Also as Sedley J. pointed out, injustice can be caused by
maladministration even if the maladministration did not cause any loss.

R (Abbasi) v Foreign Secretary and Home Secretary [2002]

It was no answer to a claim for judicial review to say that the source of power of the
Foreign Office was the prerogative, since it was the subject-matter.

Wilberg ‘Deference on Relevance or Purpose? Wrestling with the Law/Discretion Divide’ in

The Scope and Intensity of Substantive Review, Traversing Taggart’s Rainbow (access in
Bodleian libraries)

NB: also read cases on contractual liability (s.11 of core list) to understand fettering (ch.5
of Craig).

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