Aims & Objectives
If an administrative decision-maker is entrusted with a discretionary power or duty expressly or impliedly for a public purpose, the decision-maker cannot divest itself of that power or duty. There are several ways in which a decision-maker may fail to exercise a discretionary power or fail perform a duty. This research is aim in elaborating on these aspects of the broad ultra vires concept.
Scope and Limitations
The scope of this research is mainly aimed at non-exercise of administrative discretionary power in the UK jurisdiction, but cases on the Jurisdiction of India and Malaysia are also illustrated.
The Research has been limited due to various reasons. To mention a few reasons here, the unavailability of enough research books on the library, the time frame available for such research assignment and the academic amateurism of the researcher.
Various questions that came across while doing this research work were as follows:
- How does non-exercise of discretion amount to abuse of discretion?
- How the courts act to prevent non-exercise of discretion?
- How do the courts distinguish discretionary necessary for administrative efficacy and non-exercise of disretion?
Text book citations are made in the following format:
[Author], [Title], [Page No.], [Name of the Publisher], [Year of Publication], [Edition], [Volume]
Journals citations are made in the following format:
[Author], [Title], [Issue], [Year], [Name of the Journal]
Chapter One of this research paper deals with Research Methodology. And Chapter two is a brief introduction of the subject of Non-Exercise of discretion.
Chapter Three is about Non-Application of Mind, this occurs when an authority is given discretionary powers it is required to exercise it by applying is mind to the facts and circumstances of the case in hand. Chapter Four is about acting under dictation. This when a decision-maker being dictated by another decision maker, on how to exercise its discretionary powers. Chapter Five is on unauthorized delegation of power. Which is a decision maker delegating the exercise of his discretionary powers to another when there isn’t an express or implied power to delegate. Chapter Six is on over-rigid adherence to self-created rules of policy. Which is the decision-maker fetters his future exercise of powers by inflexibility applying a rule of policy without regard to the individual merits of the case.
Finally, Chapter Seven is about various remedies that are available from judicial review of non-exercise of discretion. And Chapter Eight is Conclusion.
The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favor. Discretion, on the other hand, undermines justice. Discretion may exist in the context of executive, judicial and legislative branches of the modern state.
Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion, in suffering from the effect of immediacy additional to uncertainty, is open to the greatest possible abuse. The administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering are maximized at this point.
If absolute power corrupts absolutely, then extensive power is at least congenial. And non-exercise of discretionary powers by a public authority can be said to be intolerable. A private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest.
The cases in the next chapters describe how courts act when discretionary power is not exercised.
Non- Application of Mind
Where an authority is given discretionary powers it is required to exercise it by applying its mind to the facts and circumstances of the case in hand. If he does not do so it will be deemed to have failed to exercise its discretion and its action or decision will be bad.
An authority vested with authority has to apply its mind to the facts and circumstances of the case before taking action. If it acts mechanically without applying its mind, its act will be ultra vires.
Non- Application of mind on part of the administrative authority and acting mechanically is recognized as another ground of control of administrative discretion. In Jaganath v State of Orissa, in the order of detention sex grounds were verbatim reproduced from the relevant section and it was proved in the Court that the Minister was “personally satisfied” only of two out of the six grounds mentioned in the statute. The Supreme Court ruled that the Minister had acted mechanically and quashed the order of detention.
When discretion is conferred on an authority, it must personally exercise the same; it must apply its own mind to the facts and circumstances of each case and come to its own decision. If the authority acts without applying its mind to the case before it, then the action or decision taken by it will be bad because it has not exercised its discretion.
In Karpal Singh v Minister of Home Affairs a preventive detention order was issued against the plaintiff and out of the six allegations of fact, alleged against him in support of the order, one was admitted to be incorrect by the Minister issuing the order. The High Court quashed the order on the grounds that it had been made “without care, caution, and proper sense of responsibility”.
In Sukumaran s/o Sundaram v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia the High Court quashed a detention order made under section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The order in question was signed by the Timbalan Menteri without applying his mind. According to the wording of the order, it was the Minister, and not the Timbalan Menteri, who was satisfied that the concerned person be detained but he did not sign the order. The Timbalan Menteri who signs was not personally satisfied.
These rules deter the person or body which has discretionary power to act mechanically, merely as a “rubber stamp” or a “postman”, and will compel him to apply his minds on each and every facts of the case that is put before him, and consider its merits.
Acting under Dictation
This may happen where an inferior authority having a discretion in a matter allow some unauthorized superior authority to dictate to it by declining to act without the superior authority’s consent or by submitting to the wishes or instructions of that superior authority in its decision-making. Where a discretionary power is vested in a decision-maker personally, the decision-maker must turn his or her mind to the exercise, and cannot act at the discretion or behest of another person. A repository of a personal discretionary power will act invalidly if he or she makes a decision without exercising his or her own independent discretion but instead merely carries out instruction given by his or her superiors.
A case worth mentioning in this context is Patto v CPO, Perak, an Malaysian case. Under section 27(2) of the Police Act 1967, the licensing authority to issue permits for holding meetings in public places is the OCPD (Officer in Charge of Police District) of the district where the meetings are to be held. The CPO (Chief Police Officer) has no jurisdiction in this matter save that he is the appellate authority after the OCPD has decided the matter at first instance. Through a departmental arrangement, the OCPD did not apply his mind at all to applications for such permits. He acted as a mere conduit pipe to transmit such applications to his superior authority, the CPO, for decision. The Supreme Court in no uncertain terms ruled that the OCPD, as the licensing authority under the act, had abdicated his functions by transmitting the applications for consideration and determination by the CPO. He has acted under dictation and in consequence fettering the discretion legislatively vested in him which must be exercised by him, and him alone and the court so declared accordingly.
Under this principle an authority entrusted with power is required to exercise itself and not under the dictation of a superior authority. In Indian Railways Construction Co v Ajay Kumar the court laid down that in general discretion must be exercised only by the authority to whom it is committed and the authority must itself genuinely attend to the matter, not attending to the dictates of a senior officer. In Anirudhsighji Jadeja v State of Gujrat, an offence was committed under the Terrorist and Disruptive Activities (Prevention) Act 1987. The District Superintend of Police did not give an approval of his own but requested the additional Chief Secretary to proceed under the Act, which was granted. The court set aside the order on the grounds of acting under dictation.
A public body (X) upon which a discretion has been conferred may not exercise that discretion in accordance with the dictation (whether real or imagined) of another body (Y), unless that other body has a power to give directions. Body (X) will have fettered its discretion; if body (Y) has actually sought to exercise a power to give directions that it does not have, it will too have acted unlawfully.
R v The Mayor, Aldermen and Councillors of Stepney
Mr Jutsum was clerk to the vestry of Mike End Old Town. In 1901, this parish was included in the new Metropolitan Borough of Stepney. The existing parish officers were transferred to the borough council. Under the London Government Act 1899, S.30 (1), the council had power to abolish the office of any officer transferred to them, whose office they deemed unnecessary. They accordingly abolish Jutsum’s office. He was now entitled to compensation calculated in accordance with the Local Government Act 1888, s. 120. This state that regard should be had, inter alia, to the conditions on which his appointment was made, to the nature of his office or employment, to the duration of his service “and to all the other circumstances of the case, and the compensation shall not exceed the amount which, under the Acts and Rules relating to Her Majesty’s Civil Service, is paid to a person on abolition of office”
Jutsum held his post on a part-time basis, as he was also a solicitor in private practice. The town clerk of Stepney wrote to the Treasury asking what their rule was as to the amount of compensation paid to a person in the civil service on abolition of an office, held part time. The reply was that the Treasury’s practice was to calculate the compensation allowance as if the office was full time, but to deduct a quarter of the amount so arrived at. The council acted on this letter and assessed the compensation accordingly.
Court held that the mandamus ought to go because the local authority has not in fact exercised their discretion upon this matter. They have, by a mistake, thought that they were bound by a practice of the Treasury as though it was a rule, and consequently they exercised no discretion in the matter.
Parliament, in conferring grants of power, commonly imposes an obligation to consult with specified or unspecified persons or bodies prior to exercising the power. Failure to comply with this procedural requirement is viewed by the courts as an obligation which is of mandatory nature. In some instances legislation may expressly empower one body to issue “guidance” to another as to the exercise of the latter’s powers. In Lake Airways v Department of Trade the court of Appeal considered the provisions of the Civil Aviation Act 1971 under which the Sectary of State was empowered to give “guidance” to the Civil Aviation Authority as to the exercise of its functions, and the CAA was, in turn, obliged to “perform those functions in such manner as it considers is in accordance with” such guidance (1971 Act, S.3(2)). Construing the scope of this power to issue guidance, the court of Appeal held that it did not cover guidance which contradicted the general policy objectives which were expressly stated in the 1971 Act itself. The power to issue guidance was restricted to power to explain, amplify or supplement those objectives. As regards the CAA’s duty to follow guidance given under the Act.
Unauthorized Delegation of Power
The rule against delegation is related to the rule against acting under dictation. This is to ensure that when a specific person or body is given a statutory discretion, the discretion is exercised by that person or body and not by someone else. The principle is derived from the maxim delegates non potest delegare which means that a delegate cannot further delegate the power to someone else.
Enabling provisions in the UK commonly require the authority making delegated legislation to consult. Sometimes the requirement is to consult a specified body, and any delegated legislation made under such an enabling provision will declare in its preamble that there has been consultation with the body specified. On occasion, proposals for delegated legislation are required to be submitted to a body which may report on the proposals and if it does so the minister must lay that report before Parliament when laying delegated legislation to which the report refers.
The grounds of challenge reflects a presumption of statutory interpretations of the maxim delegates non potest delegare– the principle that where a function has been entrusted by statute to body “X”, the function should be performed by “X” and not delegated by “X” for performance by body “Y”.
The rule does not impose an absolute prohibition on delegation. It usually operates as a principle of interpretation that a statute will only be interpreted as permitting delegation of discretion powers if express words to that effect are used or power to delegate is very clearly implied in the statute.
This principle, taken to an exteme, could operate as a severe restraint on administrative decision-making. Therefore, there are certain exeptions to to this rule.
- The principle does not prevent the exercise by civil servants of powers entrusted by legislature to the ministerial head of department or entrusted to the Department itself.
- Parliament may provide express authority to a body, whom it has conferred powers, to delegate, and even for that delegate to sub delegate, those powers. The maxim delegates non potest delegare is a presumption of interpretation which must give way to clear contrary legislative intention. Where a power of delegation does exist, the courts may still be called upon to consider whether the delegate has acted within or beyond the scope of the powers delegated.
- The rule against delegation has been interpreted as requiring that the ultimate power of decision as to the whether and how a discretionary power is to be exercised should be retained by the designated statutory body. It does not preclude that body from delegating to another body some preliminary task leading up to that final decision. In so doing the appointed body is adopting a procedure by which it seeks assistance in reaching what can still be regarded as its own decision on the matter. Thus a body may delegate certain fact-finding tasks to, and even seek recommendations from, another body (or it’s own sub-committee). It must, however, retain to itself the power of final decision – it must not allow itself to be dictated to by the delegate, nor can it confer power to make any binding decision (as distinct from non-binding recommendation) on the delegate.
Huth v Clarke
By section 6 to the Contagious Diseases (Animals) Act 1878, a country council had power to appoint an executive committee with all the council’s power under the Act. In turn, the executive committee could appoint a sub-committee and delegate all or any of the committee’s power to it. A delegation could be revoked or altered from time to time. In 1889, West Sussex County Council appointed an executive committee. On October, the executive committee appointed local sub-committees, and authorized them to exercise certain powers, including power under the Rabies Order 1887, to make regulations for the muzzling of dogs. No such regulation were in fact made by the local sub-committee , but on March 21, 1890, the executive committee made an order under the Rabies Order that no dog should be at large within the district of Chichester local sub-committee unless it was effectively muzzled or kept under proper control. The appellant was summoned for a breach of this order. He argued in his that defense that that the order was ultra vires, on the ground that it could only be made by the Chichester sub-committee.
High Court held that unless it is controlled by statute, the delegating power can at any time resume its authority. Here the executive committee has exercised the power which the sub-committee might have exercised-but did not- and no question of conflict of jurisdiction arises. I think, therefore, the conviction must be upheld.
Barnard v National Dock Labor Board
The Dock Workers (Regulation of Employment) Order 1947 set up a scheme to ensure greater regularity of employment for dock workers, and to secure an adequate number of dock workers available for the efficient performance of dock work. The National Dock Labor Board was establishing by the order to administer the scheme. It was required by the order to delegate to local boards all appropriate functions. These included the operation of a disciplinary code. Under clause 16, the local board could suspend for seven days a registered dock worker who failed to comply with any of the provisions of the scheme. One of the local boards, the London Dock Labor Board, passed a resolution which had the effect of leaving the power of suspension to the London port manager, Mr Hogger. As a result of a dispute, Mr Hogger suspended the plaintiffs. They exercise their right of appeal to an appeal tribunal set up under the Order, which only had power to revise penalties imposed by the Local Board. Their appeal were dismissed. Further industrial action followed. Eventually the plaintiffs applied to the High Court for declaration that their suspensions had been wrongful in the light of the facts of the dispute. At the recovery of document stage, the plaintiffs learned for the first time that they had been suspended, not by the local board, but by the port manager. They amended their pleadings and claimed a further declaration that the original notices of suspension were ultra vires and invalid. Counsel for the Board argued that the disciplining of dock workers was an administrative function which could be delegated.
High Court held that the suspension ordered by the port manager was unlawful and void. We can declare it to be the nullity which in law it is.
R. (On the Application of Chief Constable of the West Midlands) v Birmingham Justices
Section 1 of the Crime and Disorder Act 1998 enables a chief of police after consulting the local authority for the area to apply to a magistrates’ court for an Anti-social Behavior Order prohibiting the defendant from doing anything described in the order. The Chief Constable of the West Midlands issued an internal memorandum authorizing “all OCU (Operational Command Unit) Commanders, their Operation and Crime Managers, Operational Departmental Heads and their Deputies to apply for “ASBOs” (Anti-social Behavior Order) and to exercise all ancillary powers in connection with those applications until such authority is terminated by me”. In this present case, an application was made by Superintendent Ellis; such consultation as had occurred was done by Sergeant Higgins. The District Judge held that the person consulting must at eh very least be a person no lower than the rank of superintendent and held that the proceedings were null and void.
In Malaysia, there is the Delegation of Powers Act 1956 which provides the procedures for delegation. Section 6,8 and 9 of the Act enables the Chief Minister and the Ruler/Yang Dipertua Negeri to delegate. Delegation is by notification in the Gazette. However when a decision has been made by the administrator, communication of that decision may be done by someone else. The deciding authority does not have to sign the communication itself communicating the decision to the affected person. Eg: a decision made by the District Officer may be executed by the Assistant District Officer.
There is also a difference between delegation and seeking assistance in the discharge of power. When power is conferred on an authority, it can seek assistance provided the final decision rest with the authority itself. Eg: The District Officers has the power to grant licenses. He may appoint a committee to assist him. But the final decision lies with him. This procedure involves no delegation of power.
Over-rigid adherence to self-created rules of policy
A version of non-application of mind by an authority in exercising its discretion arises when it lays down a policy to regulate the exercise of its discretion, and seeks to apply the policy inflexibly to all cases coming before it for decision irrespective of the merits of an individual case. This sometimes called as fettering discretion, and is held invalid on the ground that when a statute confers discretion on an authority, it is expected to consider each irrespective of their merits and this preventing itself from applying its mind to the circumstances of each case.
Individual justice is important. But decision-makers should also have regard to the “administrative justice” which is associated with consistency and predictability in decision-making. In any case where a decision has been taken in accordance with a self-created rule of policy the following matters must be considered.
- Is the policy intrinsically flawed? For example, does it require the decision-maker to take into account irrelevant considerations? Does it seek to utilize the power for an improper purpose? Is the policy Wednesbury “unreasonable” or irrational? These are grounds are also grounds of challenge which courts can intervene to struck down the act.
- Assuming that there is nothing intrinsically objectionable about the policy, has the policy been applied over-rigidly and to the exclusion of the genuine exercise of discretion in the particular case? The tests applied by the courts in determining this question appear from the cases which follow.
Lavendar (H) & Son Ltd v Minister of Housing and Local Governement
The company applied for planning permission to extract sand, gravel and ballast from part of Rivernook Farm. Most of the site was within an area of high quality agricultural land reserve for that purpose in accordance with the Report on Sand and Gravel. The planning authority refused planning permission, and the company appealed to the Minister. The only substantial objection to the development came from the Ministry of Agriculture, which wished to see the land maintained as agricultural land. There was evidence that the company would be able to restore the land to a high standard of fertility after excavation. The inspector who conducted the public inquiry could find no reasons to refuse planning permission apart from the objection of Ministry of Agriculture. The Minister dismissed the appeal.
Courts held the Minister failed to exercise a proper or indeed any discretion by reason of the fetter which he imposed on his exercise in action solely in accordance with his stated policy; and further that on the true construction of the Minister’s letter the decision to dismiss the appeal, while purporting to be that of the Minister, was in fact, and improperly, that of the Minister of Agriculture.
British Oxygen Co Ltd v Minister of Technology
The company manufactured, sold and delivered industrial and medical gases, which had to be kept in special containers of various kinds. One general class of containers includes individual cylinders of different sizes. The company bought a large number of these over three years, their total expenditure exceeding £4 million. They cost, on average £20 each. The Board of Trade had discretion to award investment grants under the Industrial Development Act 1966 in respect of new “plant”. They had a rule of practice not to approve for grant, expenditure on items which cost individually less than £25, however great the number of such individual items purchased at any one time. The company applied for a declaration, saying that the Board of Trade was not entitled to decline to make a grant on the sole ground that each cylinder cost less than £25.
House of Lords held that there were no grounds of ultra vires of the Board in deciding not to make grants on items costing less than £25, and therefore the appeal was dismissed. Furthermore the House went on to held that where the authority exercising discretion ought to listen to a substantial argument reasonably presented urging a change of policy. What authority must not do is to shut his ears to the applicant; the authority must not refuse to listen at all; it should always be willing to listen to any one having something new to say.
Sagnata Investments Ltd v Norwich Corporation
Here, the corporation by a majority of 41 to 1 took a policy decision not to grant permits for amusements with prizes so as to allow there to be any amusement arcade in Norwich. Sagnata applied for a permit. The committee to which power to determine application had been delegated afforded Sagnata a full hearing at which it was represented by a solicitor, but rejected the application, applying the policy decision. The reasons given were as follows.
The use of these premises as an amusement place would be likely to have undesirable social effect on the young people expected to frequent them; the making available of gaming facilities in Norwich which could be used by children was something which the committee are not prepared to permit.
Court held that an administrative body, including a licensing body, which has to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, “provided always that it is a reasonable policy which it is fair and just to apply”. Once laid down, the administrative authority is entitled to apply the policy in individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not “shut it ears to an application.”
The principle has been applied by the Malaysian High Court in MUI Finance Bhd v Menteri Kewanagan. Under section 129, Customs Act 1967, the Minister has power to “deliver” to the owner any goods “seized” and forfeited under the Act. A lorry belonging to the applicant was seized by the Customs and later ordered to be forfeited by a magistrate. The owner’s application to the Minister for the release of the lorry under section 129 was rejected. The Court quashed the decision of the Minister as he failed to exercise his discretion properly. The court found that the Minister followed the policy of rejecting all applications made by financial institutions under section 129. According to the Ministry’s affidavit filed in the court, “there would be an automatic rejection of all appeals coming from financial institutions under section 129”. “In that even” ruled the court, “the discretionary power given to the respondent by s129 would be nugatory”
1). Private Law remedies for breach of private law rights – available via writ following the traditional common law process and now under the CPR 1998 :
Damages (compare only available under EC Law for Public Law matters)
Specific Performance (compare enforcement order under Public Law)
Injunctions: A-G v Guardian Newspapers (NO.2) The Crown was not entitled to a permanent injunction against certain newspapers as the information they contained was neither damaging to the public interest nor in breach of any duty of confidentiality since the information was already in the public domain.
Declaration: Cannot be used in hypothetical situations. There must be a real problem and a real doubt. The value of the declaration is that such an interpretation would be unlikely to be challenged in the courts. Available as of right.
2). Public Law remedies These replicate those listed in 1) above – the difference being that they are only available via judicial review where the wrong arises due to the abuse etc of a public law right. Available in public law via Order 53 (CPR 1998 Civil Procedure Rule 54).
3). Remedies peculiar to public Law (rebranded by CPR 1998)
Prohibition: Quashing Order (Certiorari); Enforcement Order (Mandamus).
These cannot be use in conjunction with private law remedies: The remedies are discretionary and are subject to the procedures within Order 53 The discretion means that undue delay and unmeritous behaviour can result in a refusal to grant the order. Applications for judicial review are brought ex parte on behalf of the applicant by the crown. The first hearing will normally only involve the applicant – temporary injunctions may be granted – but a full hearing which follows a successful application will usually involve all interested parties.
4). Quashing Order (Certiorari): The higher court orders actions of a lower court or body acting in a judicious manner to be undone. The court exercises a supervisory function over bodies exercising judicial or quasi judicial functions. The lower body is ordered to present a record of the proceedings to the high court, which then reviews the proceedings and will quash previous decisions that it finds to be bad. See for example:-
R v L.C.C. ex parte Entertainments Protection Association.Where the L.C.C. exceeded its jurisdiction by granting permission for a cinema to open on Sundays contrary to statute.
R v Hendon R.D.C.A councilor sat on a committee which granted planning permission for land owned by the councilor. A rate payer successfully challenged the decision.
R v Northumberland Compensation Tribunal ex parte Shaw.A miscalculation of the amount of compensation given to the applicant following the loss of his job resulted in a finding of error on the face of the record.
R v Swansea City & County, ex p Jeffrey David John Davies,the court held that the hol
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