DISCRETION AND ILLEGALITY
[5.41] Arguments of illegality in the vast majority of cases will centre on how a public authority has chosen to exercise its discretion, for example where it has made a decision and/or acted in a particular way, or made no decision and/or failed to act.
Discretion— which denotes the ability lawfully to choose between different courses of action—is ordinarily synonymous with the existence of a statutory power, although it may also exist in a statutory duty and, more exceptionally in public law terms, in non-statutory power.[1053] Where discretion is granted by statute, arguments of illegality will focus on whether the decision-maker has acted in a manner that is consistent with the power that the legislature has delegated to them (the power may relate to, among other things, the making of subordinate legislation, the allocation of licences, the regulation of activities, the payment of grants, the workings of the social welfare system, and so on). While much will here depend on judicial interpretation of the statute and of the context to the dispute,[1054] the justification for judicial intervention is the need to safeguard the intenÂtions of the legislature and to ensure that the decision-maker does not rewrite its powers and duties by acting outside those intentions.[1055] Where, on the other hand, the discretion has a non-statutory source, the rationale for judicial intervention is different and focused more on considerations of the need to protect individuals in the face of exercises of de facto public power. The courts will thus intervene here when the issues raised are regarded as â€?justiciable’[1056] or as having implications for the wider â€?public interest’.[1057][5.42] There are six principal ways to challenge the legality of exercises of discretion (some of which overlap both with each other and with the grounds of substantive review and procedural impropriety, and which may alternatively be considered under those headings).
The first is with reference to the UK’s �constitutional statutes’, viz the European Communities Act 1972, the Human Rights Act 1998, and the Northern Ireland Act 1998 (see [5.07]-[5.08], [5.18]-[5.21], and [5.29]-[5.33]). The remaining five—considered below—relate to the common law constraints of relevancy, propriety of purpose, bad faith, non-delegation of power, and non-fettering of discretion.Relevancy
[5.43] The relevancy doctrine requires, at its most basic, that exercises of discretion take into account all relevant considerations and ignore those that are irrelevant[1058] (it can on this basis be regarded as a species of error of fact[1059]). Considerations for these purposes will ordinarily be identified expressly or impliedly in the statute that delegates power to the decision-maker, although the courts will also intervene where there �are matters so obviously material to a decision on a particular project that anything short of direct consideration of them... would not be in accordance with the intention of the Act’.[1060] Whether a consideration is relevant is therefore a matter of law[1061] to be determined through interpretation of the statute (or statutes) and, where appropriate, with reference to the wider context of the decision (considerations in statute may be read as obligatory or discretionary—those that are obligatory must be taken into account and those that are discretionary may be taken into account[1062]). While the courts have recognised that it will sometimes be appropriate to exhibit restraint when decisions are challenged—for instance, where statute has given a decision-maker a wide discre- tion[1063]6—they have emphasised that all exercises of discretion should still conform to the relevancy doctrine.[1064] Relevancy thus acts as an important constraint on the exercise of public power and, in that manner, safeguards the rule of law.[1065]
[5.44] Arguments of relevancy can arise in two main ways.
The first is as outlined above: that is, where it is argued that a decision is vitiated by irrelevant considerations or has been taken in the absence of relevant considerations. Challenges of this kind impugn the decision as illegal in the sense that it is ultra vires the statute and/or unreasonable in that no reasonable authority could have taken the irrelevant consideraÂtions into account or failed to take account of the relevant ones (the burden of establishing the point rests with the applicant,[1066] although this task may be eased where a decision-maker is under a duty to give reasons and the reasons given are â€?manifestly bad[1067]). Such arguments are commonplace in the case law, and successful arguments of relevancy have been made where: the Department of the Environment failed to consider objections to an application for planning permission;[1068] the Department of the EnvironÂment took into account a previous, but void, purported grant of planning permission when granting a subsequent application for permission;[1069] the Secretary of State for Northern Ireland failed to take account of the fact that there was a real and immediate threat to the life of the applicant when deciding to exclude the applicant from the Key Person Protection Scheme;[1070] the Recorder of Belfast did not take account of the fact that the applicant for a licence had been released under legislation enacted to give effect to the Belfast Agreement;[1071] the Water Service failed to have regard to requirements specified in legislation before granting permission for new connections to the sewerage system;[1072] a local council did not address the question of the adequacy of available facilities when deciding whether a leisure centre should open on Sundays;[1073] an appeals tribunal calculated a sum of money to be repaid by an individual partly with incorrect reference to the age of the individual;[1074] and a tribunal failed to take into account a report that should have informed its deliberations.[1075][5.45] An applicant may also argue that a decision is unlawful even though the deciÂsion-maker has taken all relevant considerations into account and ignored irrelevant ones.[1076]9 Challenges of this kind are essentially concerned with the merits of the decision and with the respective weight that the decision-maker has given to each consideration.
The courts’ historical approach in such cases emphasised that judicial review was generÂally not available[1077] and that, where it was, it was limited to the standard set by Wednesbury unreasonableness, as the task of making a decision in the light of the considerations was that of the decision-maker.[1078] However, while the Wednesbury approach remains important when fundamental rights are not affected by a decision, it has not survived the requirement that the courts give effect to the proportionality principle in cases under the Human Rights Act 1998[1079] (Wednesbury had, in any event, already been modified in some pre-Human Rights Act cases that engaged common law fundamental rights[1080]). Although the courts have linked the proportionality principle to a â€?discretionary area of judgment’ doctrine that pursues judicial restraint in appropriate cases,[1081] the principle potentially requires a reviewing court to assess whether the decision-maker has struck the correct balance between all relevant considerations.[1082] The point is all the more true where the decision-maker has failed to give express consideraÂtion to a right under the Human Rights Act 1998/ECHR when making a decision: while the courts have held that such a failure will not automatically mean that the decision at hand is unlawful,[1083] they have equally noted that a closer look review may be needed to ensure that the final decision is compliant with the ECHR (see [5.20]).[1084][5.46] Two final points remain to be made about relevancy. The first concerns an emerging line of jurisprudence on equality duties and the need for decision-makers to have â€?due regard’ for those duties.[1085] [1086] In Re JR 1s Application,179 considered in more detail at paragraph [5.32], Morgan LCJ accepted that public bodies who are embraced by section 75 of the Northern Ireland Act 1998 may be required to have â€?due regard’ for their equality obligations when making decisions. However, while this suggests that equality duties are relevant considerations that should now be taken into account in decision-making processes—something that apparently places equality law at one remove from human rights law (see [5.20] and [5.45])—it is to be noted that the scope for successful challenges to decisions may be limited. This is because the leading case law has established that the nature of the â€?due regard’ duty is heavily dependent on context and, moreover, that it attracts only Wednesbury review. On the indicative facts of JR 1—which concerned a PSNI decision to authorise the use of Tasers on a pilot basis without having first completed an Equality Impact Assessment—the court thus found that there was no basis for judicial intervention. [5.47] The second point concerns cases where irrelevant considerations have been taken into account but where those considerations have not been central to the final decision. Under those circumstances, there is authority to suggest that the final decision may be allowed to stand so long as the dominant considerations that guided the decision are lawful.[1087] Whether the dominant considerations are lawful is, in turn, a matter that may be resolved with reference to the reasons for the decision (if any[1088]) and the respondent’s corresponding affidavit evidence. In the event that the dominant consideraÂtions are lawful or those that are unlawful are independent and capable of severance (see [5.40]), the decision may be deemed valid. Purposes [5.48] Arguments about impropriety of purpose are made where â€?a statutory power is given for purpose A and the donee of the power exercises it for purpose B’.[1089] Such arguments, which may overlap with or be made instead of arguments of relevancy (that is, that the purpose pursued is an irrelevant consideration;[1090] see [5.43]-[5.47]), fasten upon the need to give effect to the legislature’s intention in enacting a particular statute. [5.49] Arguments about impropriety of purpose can, however, become more complex where it is contended that the decision-maker pursued a number of purposes and that the improper purpose was only one of those. Such â€?mixed purpose’ cases are resolved through use of the â€?dominant purpose’ test; that is, the test that enquires whether the dominant purpose behind a decision or other measure was lawful or unlawful. The central task for the court under such circumstances is: to identify the different purposes that informed a decision; to decide which of the purposes were within the power and which were not; and to decide whether those purposes that were within the power predominated. While it has been recognised that it may not always be easy to formulate or apply the test[1092]—it has been suggested that the courts may instead ask whether irrelevant considerations had a substantial or material influence on the decision or other measure[1093]—it is clear that the test is intended to ensure that decisions and so on do not automatically fall because they are part tainted by illegality.[1094] There is thus some overlap here with the logic of severance and the understanding that the lawful elements of a decision or other measure should be distinguished from the unlawful with the result, where possible, that the decision is allowed to stand (see [5.40] and [5.47]). [5.50] Case law on purposes—whether mixed or not—sometimes also refers to deciÂsions as having been taken for a â€?collateral’, â€?extraneous’, or â€?ulterior’ purpose. While each of these terms can be read interchangeably with â€?improper’ insofar as they are all concerned with illegality, it has been suggested that the term â€?improper’ is different because it connotes moral impropriety and an intention to use a power unlawfully.[1095] Whether the courts in fact use the term â€?improper’ for this reason is, however, unclear and there is no definitive judicial statement on the point. On the other hand, the fact that the terms â€?collateral’ and â€?ulterior’ have been preferred in some highly politicised disputes would suggest that the courts are anxious to avoid the use of terminology that may be taken to question the integrity of political decision-makers.[1096] The term â€?improper’ has thus been used more readily in what may be regarded as less politically charged disputes, for instance those concerned with the administration of criminal justice[1097] and disciplinary matters in the armed forces.[1098] Bad Faith [5.51] Exercises of discretion may also be deemed unlawful where it can be shown that the decision-maker has acted in â€?bad faith’.[1099] At its highest, bad faith will vitiate a decision where it is shown that the decision-maker has acted dishonestly, or taken action which he or she knew to be improper.[1100] While there is clearly some potential for overlap here between bad faith and â€?relevancy’ and â€?propriety of purpose’ as a means for challenging decisions (on which see [5.43]-[5.50]), bad faith is perhaps better viewed as distinct in the sense that the applicant has to show that the decision-maker intended to abuse their power, or was reckless as to whether they did so (this is certainly the understanding of the concept that infuses the tort of misfeasance in public office[1101]). Bad faith therefore â€?always involves a grave charge. It must not be treated as a synonym for an honest mistake’.[1102] [5.52] Challenges based on bad faith are rare in the case law, undoubtedly because of the difficulties of making out the argument. Nevertheless, the heading remains as an important safeguard against the potential abuse of power, and it in that sense correÂsponds with other little-used headings such as actual bias.[1103] Delegation [5.53] Where statute gives a decision-maker a discretionary power, whether of a judicial, legislative, or administrative nature,[1104] it is generally unlawful for the decisionÂmaker to delegate that power of decision to another person or body[1105] unless the statute itself expressly provides for such delegation.[1106] This notion is sometimes expressed in the Latin maxim delegatus non potest delegare, which means that a body or person to whom power has been delegated by the legislature cannot itself delegate the power.[1107] The principle of non-delegation does not, however, take form as a rule but rather as a presumption to the effect that the legislature intends that only the beneficiary of a statutory scheme may exercise the corresponding power. While the presumption is strong, it can nevertheless be rebutted where the courts find that there is something in the wider statutory scheme that permits of delegation.[1108] The courts, moreover, recogÂnise that decision-makers may have to take the advice of others or make use of agents or employees in the decision-making process, and the courts will here consider that the principle of non-delegation has not been offended where the beneficiary of the statutory scheme retains the final decision-making power[1109] (although it may not always be easy to identify precisely the roles played by the recipients of power and those that assist them[1110]). In the converse circumstance where the decision-maker regards itself as bound by the opinion of others, the courts will make a finding of unlawful delegation or, depending on how the argument is made, of an unlawful fettering of discretion[1111] (on which see [5.56]-[5.58]). [5.54] There is one main exception to the principle of non-delegation, which has hisÂtorically been made in respect of central government departments. Under the so-called Carltona principle,[1112] the courts accept that it is legitimate for junior Ministers and governmental officials to take decisions in the name of a government Minister entrusted with a particular statutory power[1113] (the exception, which may be displaced by a contrary intention in a statute,[1114] now also applies to Ministers in the devolved Executives[1115] and to police Chief Constables in certain circumstances;[1116] it does not appear to apply to local authorities or other statutory bodies[1117]). The corresponding rationale for the excepÂtion is based largely on considerations of pragmatism, as the courts accept that it would not be practically possible for a Minister to apply his or her mind to each decision. However, the exception is also aligned to a constitutional justification that centres on the doctrine of ministerial responsibility and the understanding that Ministers are finally answerable to Parliament for each of the actions of their departments. Where officials act in the name of the Minister, it is therefore sometimes said that there is in fact no delegation of power as the junior Minister or official represents the â€?alter ego’ of the Minister.[1118] Should a Minister in consequence choose for an important matter â€?an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament’.[1119] [5.55] The workings and logic of the Carltona principle are not without criticism, and it has been argued that decisions and other measures that have implications for fundaÂmental rights and freedoms should be taken personally by the relevant Minister.[1120] It has also been queried whether the principle, which was enunciated more than 70 years ago, is suited to the modern structures of government. The point here is simply that the proliferation of, among other things, executive agencies has resulted in the compreÂhensive redesign of public service delivery and of the corresponding relationship between central government and civil servants. Case law in England and Wales has, however, held that Carltona remains of application in the context of executive agencies, although the courts have at the same time indicated that the matter may need to be decided on a case-by-case basis.[1121] Fettering of Discretion [5.56] It is a basic rule of administrative law that a public authority entrusted with discretion must retain for itself the option of exercising that discretion on a case-by- case basis. This rule against the â€?fettering of discretion’ is most frequently argued to be offended where a public authority adopts a policy to guide it in the exercise of its discretion,[1122] for instance where it has to allocate a limited number of licences[1123] or admit individuals to educational institutions[1124] or to governmental schemes.[1125] Although the courts have long recognised that it is legitimate for public authorities to formulate policies that are â€?legally relevant to the exercise of (their) powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust’,[1126] they have at the same time emphasised that authorities must remain free to depart from their policies, or make exceptions to them, as the circumstances of individual cases require.[1127] A public authority cannot therefore adopt a policy that (a) is so rigid that it in effect becomes a rule to be applied in any given case or (b) establishes an unacceptably high threshold for individual applicants to cross.[1128] Should such a policy be adopted, the corresponding decisions of the authority may be challenged either on the ground that they are ultra vires the empowering statute (where relevant[1129]) or, depending on circumÂstance, on the ground that the individual has not been given a fair hearing on the matter (procedural impropriety). This latter point corresponds to the requirement that deciÂsion-makers must not prejudge a matter or â€?shut their ears’[1130] to individual applications simply because the authority has in place a particular policy. However, where the decision-maker has granted the individual a hearing—whether as a result of a statutory or common law obligation to do so—it is thereafter free to apply its policy notwithÂstanding the applicant’s viewpoint. Any further challenge at that stage would thus centre on the reasonableness of the authority’s decision and/or the related argument that the authority had failed to take the individual’s representations into account[1131] (see [5.44]-[5.47]). Should the individual’s fundamental rights be affected by the outcome, a challenge may also be made on the ground that the decision lacks proportion[1132] or has not been accompanied by sufficient reasons given the authority’s obligations under the Human Rights Act 1998.[1133]6 [5.57] Public authorities can also fetter their discretion in other ways. For instance, an authority may be said to have fettered its discretion where it has unlawfully delegated its power of decision to another person or body[1134] (see [5.53]-[5.55]); and an authority may likewise fetter its discretion where it enters into a contractual arrangement that has the effect of limiting some of its statutory powers. Given that there may be a practical need for an authority to engage in a contractual relationship for purposes of performing some of its functions, the courts will not, however, automatically hold that a contract that has a limiting effect is void. The courts will, instead, enquire whether the contract is compatible with the relevant statutory scheme and, in the event that it is, will accept the corresponding limitation on statutory power.[1135] [5.58] One further point about the rule against the fettering of discretion concerns the potential for a tension between that rule and the protection of substantive legitimate expectations. The doctrine of substantive legitimate expectation entails, at its strongest, that a public authority that has made a clear, unambiguous, and lawful representation to an individual that it will act in a particular manner cannot subsequently resile from the representation save where there is an overriding public interest justification for doing so.[1136] Although the corresponding case law on the protection of substantive legitimate expectaÂtion is complex and overridden by considerations of the limits to the judicial role, it is predicated on the understanding that there will be circumstances in which individuals can prevent authorities from exercising their discretion in a particular manner. To the extent that the rule against the fettering of discretion thus seeks to ensure that authorities retain their power to make discretionary choices, the doctrine of substantive legitimate expectaÂtion has the clear potential to constrain those same choices.[1137]