POWERS, DUTIES, AND DISCRETION
[4.22] Applications for judicial review will often centre on the lawfulness of a deciÂsion-maker’s exercise of discretion (discretion here denoting the power lawfully to choose between different courses of action/inaction).
The discretion, which will have been given to the decision-maker by statute, will typically take the form of a statutory power to act in a particular way, although it may also exist in a statutory duty (see [4.26]-[4.28]). In terms of the grounds of illegality, substantive review, and procedural impropriety, an applicant may thus argue that the decision-maker has misunderstood the nature of their discretion (illegality), exercised their discretion in a way that is unreasonable or disproportionate (substantive review), or exercised their discretion without having due regard for the rules of fairness or some other procedural requireÂment that is specified in statute (procedural impropriety). Where such arguments are made, much will depend on how the courts choose to interpret the legislation that underpins the discretion. Courts can, for instance, adopt literal or purposive approaches to statutory interpretation (among others),108 and the approach adopted in any given case will be determined by judicial perception of the nature of legislation109 and of the context to the dispute (as well as by overarching considerations of the constitutional role of the courts). A court may therefore choose: to read a power into legislation where that power can be said to be reasonably incidental to the statute’s existing powers;110 to read words â€?out’ of a statute to ensure that the supremacy of EU law is unaffected;111 to give words their broader meaning where this enables two decision-makers to exercise their powers in a complementary fashion that is consistent with the intention of the legislation;112 to find that the wider statutory context of a provision does not require that the decision-maker give effect to a procedural provision contained in the statute;113 and to conclude that a power to act in a particular way must be provided for in express terms or exist by way of necessary implication.114 Where an application for judicial review is made under the Human Rights Act 1998, the courts must, moreover, attempt, â€?so far as it is possible to do so’, to construe powers in legislation as compatible with the provisions of the ECHR that have effect under the Act.115Powers and Duties
[4.23] Legislation will ordinarily be read as granting a decision-maker a statutory
108 See [1.25]-[1.27].
109 McEldowney v Forde [1970] NI 11, 48, Lord Pearce.
110 Re Northern Ireland Human Rights Commission [2002] UKHL 25, [2002] NI 236 (House of Lords reading ss 69-71 of the Northern Ireland Act 1998 as giving the Northern Ireland Human Rights Commission an implied power to intervene on points of human rights law in judicial proceedings). And see now Northern Ireland Act 1998, s 71(2A)-(2B).
111 Perceval-Price v Department of Economic Development [2000] NI 141 (Court of Appeal isolated and disapplied the words �other than service of a person holding a statutory office’ in s 1(9) of the Equal Pay Act (Northern Ireland) 1970 and art 82(2) of the Sex Discrimination (Northern Ireland) Order 1976, SI 1976/1042 (NI 15), for reasons of ensuring that the legislation complied with what is now Art 157 TFEU).
112 Re Shields’ Application [2003] UKHL 3, [2003] NI 161 (RUC Force Order, which had been made by the Chief Constable pursuant to s 19 of the Police (Northern Ireland) Act 1998 and which laid down criteria for promotion, was challenged as ultra vires for the reason that promotions were to be made in accordance with regulations made by the Secretary of State under the Police (Northern Ireland) Act 1998, s 25: held that the Order made by the Chief Constable did not conflict with the regulations made by the Secretary of State but rather supplemented them and that the legislation should be read as permitting the Secretary of State to lay down important ground rules which would then be supplemented by measures of the kind introduced by the Chief Constable).
113 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390 (House of Lords held that it had not been Parliament’s intention to prevent the Northern Ireland Assembly from electing the First and Deputy First Ministers outside the six-week period specified for their election in the Northern Ireland Act 1998; and that, although the Act provided that the Secretary of State �shall’ call fresh Assembly elections in the event that the First and Deputy First Ministers were not elected within six weeks, the election of the Ministers outside that period was lawful and the Secretary of State had thereby also acted lawfully when proposing a delayed date for Assembly elections).
114 HM Treasury v Ahmed [2010] UKSC 2 and 5, [2010] 2 AC 534; R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115; and Raymond v Honey [1983] 1 AC 1, 10, Lord Wilberforce (cited in, eg, Pettigrew v NIO [1990] NI 179, 182, Hutton J). Although, for some limits to the approach, see, eg, R v Chief Constable of the RUC, ex p Begley [1997] NI 278 (suspect had no common law fundamental right to have a solicitor present during police interviews; and the courts would not infer the right given Parliament’s clear intention to exclude solicitors under the terms of Prevention of Terrorism (Temporary Provisions) Act 1989, s 14(1)).
115 Human Rights Act 1998, s 3; and, eg, Re King’s Application [2003] NI 43. power to do something or not to do something where it uses permissive terms such as â€?may’ or â€?as the decision-maker considers appropriate’ (the permissive is to be conÂtrasted with the mandatory â€?shall’[741]). Where permissive terms are interpreted as giving the decision-maker wide discretionary powers, this will reduce the scope for judicial intervention, particularly on the ground of substantive review (save where there is, for instance, bad faith[742]). The separation of powers doctrine entails that, where the legisÂlature entrusts a public authority with a decision-making power, the primary decision-making power rests with the authority and not with the courts.[743] In terms of the grounds for review, this may thus mean that the courts will rely upon the â€?soft- edged’ standard of review when a decision is taken to be one of â€?policy’ ([4.20]-[4.21]); and it may also lead the courts to conclude, given the context of a case, that not all of the grounds for review should be available and/or that restraint would be appropriate (see [4.16]-[4.17]). Under those circumstances, it may therefore be suggested that the decision-maker is taken to have an â€?unfettered discretion’,[744] although any understanding of power as unfettered is at the same time difficult to reconcile with the fundamental precept of the â€?rule of law’.[745]
[4.24] Permissive terms can, however, also be read more narrowly and the courts may, for instance, require that power is exercised reasonably and that all relevant consideraÂtions are taken into account.[746] Moreover, where fundamental rights are in issue (particularly absolute rights[747]), the common law and ECHR may subject an exercise of power to a test of â€?anxious scrutiny’ (the common law) and/or a test of proportionÂality (the ECHR).[748] In other circumstances, the courts may even read permissive terms as not importing discretion but rather as imposing a duty to act.
Whether permissive terms will be read in this way will, of course, depend on context and, in particular, on whether the �power’ is to be exercised for the benefit of particular individuals and/or the wider public. As Earl Cairns LC stated in Julius v Bishop of Oxford:[T]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions in which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed, to exercise that power when called upon to do so.[749]
[4.25] Recipients of statutory power may finally be under a number of common law duties in respect of the exercise/non-exercise of the power, and these duties continue to develop in the light of the ECHR (the recipient thus here retains discretion but must exercise it in the light of common law/ECHR obligations). Subject to context, these include: the duty to consider whether to exercise the power;[750] the duty to act reasonably;[751] the duty to act in good faith;[752] the duty to act fairly;[753] the duty to act in the public interest;[754] the duty to avoid undue delay;[755] the duty to communicate a decision;[756] the duty to give reasons;[757] and the duty to act in a manner that is consistent with the purpose of the legislation[758] (which purpose may be apparent from the legislaÂtion or be implied by judicial interpretation). This last duty entails not just that decision-makers understand the nature of the power and give effect to it (illegality as traditionally defined[759]) but also that they exercise the power for proper purposes.[760] Where a power is exercised for an improper purpose, this will be indicative of an abuse of power and/or an unreasonable use of the power.
However, where the improper purpose is only one of several �mixed purposes’ and the true and dominant purpose is held to be lawful, the improper purpose may be regarded as incidental and the decision allowed to stand. The same �dominant purpose’ test may also apply where there are two purposes, one of which is lawful and the other not.[761]Duties and Discretion
[4.26] The existence of a statutory duty is typically signified by the use of mandatory language in a statute, for instance, the word �shall’.[762] The basic distinction between a statutory power and a statutory duty lies in enforceability: while a statutory power need not be exercised should the recipient of the power decide not to exercise it (subject to arguments about its nature and context), a statutory duty must be performed.[763] Should a public authority therefore expressly refuse to discharge its duty and/or act in a manner that suggests non-compliance, an application for judicial review should typically seek an order of mandamus as the remedy most suited to ensuring that the decision-maker’s obligations are met.[764] An applicant may, depending on context, also seek damages for any loss they have suffered in consequence of the non-performance of the duty.[765]
[4.27] Legislation can, however, also be read as including discretion as to how a duty is to be performed, and this may complicate the question of which—if, indeed, any— remedy is appropriate (on the converse circumstance where permissive terms may be read as imposing duties see [4.24]). Such an interpretation is most often given to legislaÂtion that imposes obligations—sometimes called â€?target duties’[766]—in relation to the provision of public services like policing, healthcare, housing, child protection, road safety, and so on.[767] While the use of mandatory language in such legislation reflects the social imperative of providing services to members of society, the courts are aware that public authorities may here have to make value judgements and that the courts should, for reasons of relative expertise, be slow to intervene in the decision-making process.[768] This may be particularly so where a decision is concerned with spending priorities, as the courts accept that limited financial resources may mean that difficult discretionary choices must be taken in the performance of a statutory duty.[769] The courts may thus—though not always—accept that limited resources will result in a public authority reducing expenditure on services that it is under a duty to provide;[770] and they may on that basis decide either that the decision-maker has not acted unlawÂfully or, in the event that it has acted or will act unlawfully, grant a declaration in preference to an order of mandamus that may have the effect of dictating the financial priorities of the authority.
Declarations may also be preferred in cases that are not centrally concerned with questions of resource allocation but in which the courts consider that an order of mandamus would nevertheless result in undue judicial interÂference in areas of decision-making better left to others.146[4.28] The courts may likewise be reluctant to make awards of damages where an indiÂvidual argues that they have suffered loss as a result of discretionary choices made in the performance of a statutory duty.147 For instance, where an action is framed as breach of statutory duty, existing case law indicates that the statutory duties in question may be read as owed not to specific individuals but rather to wider society.148 This approach has been particularly apparent in the context of social welfare schemes concerned with child abuse and housing, and the courts have emphasised that such legislative schemes are not intended to give rise to private law causes of action but that they instead sound in—and are thereby only actionable in—public law.149 Moreover, where claims have been framed as negligence actions, the courts have here been reluctant to impose common law duties of care on public service providers, particularly where the exercise of discreÂtion is said to involve matters of â€?policy’ (which are regarded as â€?non-justiciable’: see [4.15]150). Although case law on negligence liability has become markedly more complex in recent years (particularly in child welfare cases),151 the highest domestic court has, in general, continued to emphasise that the interests of the wider public are better served where decision-makers are not made readily liable in damages.152 Negligence actions that centre upon the exercise of discretion may therefore be struck out on the ground that the decision-maker does not owe a common law duty of care to the individual153
146 See, eg, Re McBride’s Application (No 2) [2003] NICA 23, [2003] NI 319 (Court of Appeal refusing to grant an order of mandamus in a case in which the Army Board had acted unlawfully in failing to discharge two soldiers who had been convicted of murder: while a declaration would issue, the mandatory order would be inappropriate as �decisions on what is best for the Army and its soldiers are best left to the Army and it would be an unwise usurpation of power if the court were... to intervene by mandamus ([2003] NI 319, 366, para 52, McCollum LJ)).
147 On the availability of damages as a remedy in judicial review see [8.21]-[8.30].
148 See, eg, X v Bedfordshire CC [1995] 2 AC 633 (no private law duty owed to children under the Children and Young Persons Act 1969, the Child Care Act 1980, and the Children Act 1989); O’Rourke v Camden LBC [1998] AC 188 (no private law duty owed to the homeless under the Housing Act 1985); Maye v Craigavon Borough Council [1998] NI 103 (art 7(1) of the Litter (Northern Ireland) Order 1994, SI 1994/1896 (NI 10), which imposes a duty to keep roads free from litter, not imposed for the protection of a limited class of the public but rather for the benefit of the public at large); and Metcalfe v Chief Constable of the RUC [1995] NI 446 (exercise of DPP’s powers under art 5(1) of the Prosecution of Offences (NI) Order 1972, SI 1972/538 (NI 1), could not give rise to a claim for damages because of �compelling considerations rooted in the welfare of the whole community’). See further [8.26]-[8.27]
149 X v Bedfordshire CC [1995] 2 AC 633 (child welfare legislation); and O’Rourke v Camden LBC [1998] AC 188 (homelessness legislation).
150 Barrett v Enfield LBC [1999] UKHL 25, [2001] 2 AC 550.
151 See G Anthony, �The Negligence Liability of Public Authorities: Was the Old Law the Right Law?’ (2006) NILQ 409.
152 See [8.23]; and, eg, Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 WLR 1057 (highway authoriÂties); D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373 (healthcare profesÂsionals who suspect parents of abusing their children); and Van Colle v Chief Constable of Hertfordhire; Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225 (police in their dealings with victims of crime).
153 See, eg, D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373; Brooks v Metropolitan Police Commissioner [2005] UKHL 24, [2005] 2 All ER 489; and Jain v Trent Strategic Health Authority [2009] UKHL 4, [2009] 1 AC 853 (note that the proceedings in this case were not struck out but that it was held, on appeal, that the defendant had not owed a duty of care). Compare Smith v Ministry of Defence [2013] UKSC 41, [2013] 3 WLR 69 (Supreme Court refusing to strike-out an action for negligence brought by the families of soldiers who alleged negligence in the context of preparation for military operaÂtions in Iraq).
(the point has added force where an action concerns the exercise/non-exercise of statuÂtory powers as opposed to discretionary choices made in relation to statutory duties[771]). Claims may alternatively fail at the breach stage; that is, when the court considers the reasonableness of the decision-maker’s actions/inactions.[772]