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Discretionary Power
- Lord Diplock in Secretary of State for Education & Science v Tameside Borough Council:
- Discretionary power is the right of a person to choose any of the possible
courses of action where it can be reasonably believed that there are more than
one possible courses of action.
- Wide or broad power given to the administration to make decisions according to its
own opinion.
- An authority having discretionary power may not act according to any
principles, but instead according to its own whim and fancies.
- The rule of law demands not for wide discretionary powers to be eliminated, but for
the law to be able to control its exercise.
- The courts are reluctant to review discretionary power because its role is restricted
only to see that the decision-maker acts within and according to the law. Courts are
not allowed to interfere where discretion is exercised properly and in accordance with
law.
Judicial review exercised by the courts over discretionary power is through the application of
the doctrine of ultra vires:
- Narrow ultra vires: Embraces administrative action by public authorities which literally
exceeds their statutory powers, in either a substantive or procedural sense.
- Privy Council in Yeap Seok Pen v Government of Kelantan: He who asserts bad
faith has the burden of proving it, mere suspicion is not enough.
- Partap Singh v State of Punjab: The petitioner was a civil surgeon, who had
been granted leave prior to his retirement. The leave was revoked and placed
under suspension pending the result of inquiry by the Chief Minister of Punjab
into certain charges against him on the ground that he accepted a small bribe
from some patient. The petitioner proved that the Chief Minister has a grudge
against him by reason of certain incidents. Thus, mala fide was proved and the
order was quashed.
- Improper purpose: A purpose lying outside the scope and purpose of the enabling
statute.
- If a statute confers power on an authority for one purpose (the purpose which
the statute aims to achieve), its use for a different purpose is invalid.
- An authority is not permitted to do an act under statutory power to achieve an
end which is unrelated to the purpose for which the statute has conferred
power.
- Municipal Council of Sydney v Campbell: The Council had statutory power to
acquire land compulsorily for the purpose of making or extending streets, or
carrying out improvements in or remodelling any portion of the city. It decided
to acquire the land on the ground that it was for the purpose of remodelling
and improving the city. However, it was actually acquired to enable the Council
to get the benefit of any increment in the value of the land in question that
was expected to accrue as a consequence of the extension of a street nearby.
Held: A body such as the Council, authorised to take land compulsorily for
specified purposes will not be permitted to exercise its powers for different
purposes.
did so.
Held: The Minister had used his discretion in a manner which was not in
accordance with the intention of the Parliament and his refusal was based on
bad reasons and extraneous considerations.
- Unreasonableness
- Although the decision-maker acts within the four corners of the discretion
conferred by statute, the decision can still be challenged if it is unreasonable.
- Associated Picture Houses v Wednesbury Corporation: The test of
unreasonableness is whether something is so absurd that no reasonable or
sensible person could have come to that decision.
- Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service
used the term irrationality as being the meaning of W
unreasonableness.
- I T o outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had
applied to his mind the question to be decided could have arrived at.
- Chai Choon Hon v Ketua Polis Daerah, Kampar: A license was granted to hold a
meeting from 5-11.30pm under the Police Act. A condition was imposed that
the number of speakers would only be 7.
Held: The condition imposing a restriction on the number of speakers was
unreasonable as the police had the means to deal with any infringement of the
time-frame.
- Pengarah Tanah Galian, Wilayah Persekutuan v Sri Lempah Enterprises: Where
the condition imposed to surrender freehold for a 99 year lease in
consideration for permission to develop the land was characterised as
unreasonable.
- Acting mechanically
- Where an authority vested with discretion, must apply its mind to the facts and
circumstances of the case. If it passes an order mechanically without applying
its mind, its act may well be ultra vires.
- Emperor v Sibnath Banerjee: The Home Secretary issued an order of preventive
detention in a routine manner on the advice of police without himself applying
his mind to the materials and satisfying himself, independently of the police
recommendation, whether an order of preventive detention was called for in
the circumstances of the case. The Privy Council quashed the order and ruled
H S
precedent to the issue of an order without which it would be invalid.
- Fettering discretion
- N - down a policy to
regulate its exercise of discretion in some matter, and seeks to apply that
policy inflexibly to all cases regardless of the merits of the case.
- When a statute confers discretion on an authority to decide on individual
cases, the authority is required to consider each case on its merits.
- The courts do not approve of an authority fettering its discretion by adopting
a policy and applying it generally to all cases irrespective of their merits.
- H Lavender and Son v Minister of Housing and Local Government: The
government adopted a policy to reserve high quality agricultural land for
agriculture against disturbance by gravel working. The Minister of Housing
who had discretion to allow extraction of minerals, refused permission to the
petitioner to extract mineral from an agricultural holding on the ground that
the Minister of Agriculture objected to the proposed use for agricultural
reasons.
Held: The order of the Minister of Housing was quashed on the ground that
- The Minister followed an inflexible policy in such cases and fettered his
discretion by a self-created rule of policy.
- The Minister in effect left the decision-making to the Minister of
Agriculture who under the law had no status to make an effective
decision except perhaps in a consultative capacity.