Review of Discretion III (L6) Flashcards
What is the basic principle around delegating discretion?
When a public authority is granted a discretionary power, it is expected to exercise that power itself.
Delegatus non potest delegare.
How does Barnard v National Dock Labour Board [1953] 3 QB 18 demonstrate unauthorised delegation?
Dock Workers (Regulation of Employment) Scheme 1947 empowered dock boards made up of equal representatives of employers and workers to suspend workers.
Port manager suspended workers during a strike without reference to the board.
Court held that power had been granted to the board and it was not authorised to delegate its discretion to the port manager.
How does Vine v National Dock Labour Board [1957] AC 488 demonstrate unauthorised delegation?
Same statutory scheme as Barnard case.
This time the board delegated authority to a disciplinary committee.
Court held this was unlawful – the purpose of having a board with equal numbers of employers and workers taking suspension decisions was designed to inspire confidence in fairness of decisions.
Delegation in this case undermined the purpose for which the discretion was granted to the board.
How does R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 demonstrate unauthorised delegation?
Minister empowered to authorise continued segregation of a prisoner after he had already been segregated for 72 hours.
Minister delegated his power to prison governor.
UKSC held unlawful: purpose of vesting the Minister with the power to decide on prolonged segregation was to ensure someone external to the prison system could review segregation and protect prisoners from being segregated for an unnecessarily long time.
R v Race Relations Board, ex parte Selvarajan [1975] 1 WLR 1686 demonstrates lawful delegation. What was the situation in this case?
Race Relations Board delegated a complaint of race discrimination under Race Relations Act 1968 to the employment committee. S16 RRA did not expressly authorise delegation.
The Board then endorsed the recommendations of the employment committee, albeit not all members of the Board had access to all the documents considered by the employment committee.
Why did the court hold the delegation in R v Race Relations Board, ex parte Selvarajan [1975] 1 WLR 1686 to be lawful?
The Race Relation Board’s functions were administrative rather than judicial in nature (e.g. procedures not adversarial but conciliatory; settlement rather than litigation).
Would not rely on this now, a much less clear distinction.
The Board had discretion about how best to perform its statutory duties.
As long as the Board stayed in overall control of the decision and had enough information on which to base a decision, then effectively it was still exercising the power rather than fully delegating it.
How does the case of Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 demonstrate lawful delegation?
Commissioner of Works exercised statutory discretion to requisition claimant’s factory under Defence (General) Regulations 1939.
Claimant claimed this was ultra vires because the decision had been taken by an assistant secretary and the Commissioner did not personally take the decision.
Court held that delegation in this context was lawful, since Ministers cannot be expected to take all decisions personally.
What does Lord Greene say to justify the ‘lawful delegation’ decision in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560?
“It cannot be supposed that this regulation meant that, in each case, the Minister in person should direct his mind to the matter. The duties imposed upon Ministers and the powers given to Ministers are normally exercised under the authority of the Ministers by responsible officials in 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” – at 563.
What is the law surrounding delegation in local government (Scotland)?
In the case of local authorities, section 56 of the Local Government (Sc) Act 1973 gives a general power to councils to delegate performance of their functions to committees, subcommittees, officers and other local authorities in Scotland.
Committees delegate to sub committees.
Sub committees delete to officers of the council.
Section 56 is expressly made subject to any other provision in the 1973 Act or any provision of any subsequent enactment.
