The Delegation of Discretionary Powers

Administrative law, today, is the most litigated and rapidly developing sub-branch of constitutional law. The growing importance of administrative law is reflective of the parallel growth of awareness amongst citizens about the enforcement of their rights against the state machinery. The functions of the state has increased manifold and in the words of Wade and Smith the duty of the state today is to take care of its citizens from “Cradle to Grave”. The powers vested with the state authorities have increased so that the instrumentalities of state can frame policies in the superior interest of the people. The state agents are conferred with power to exercise discretion while carrying out the governmental functions. The paper deals with various situations where there is failure to exercise such discretionary powers when it could have been most apt to do so to protect the larger interest of the non-state party.

Failure to exercise of discretion, means failure to make choices between the courses of action where such power to make a choice was vested upon the public authority by a statute. The courts in such situations have an authority to impose controls on the way in which the discretion can be exercised with a view to see that there is no failure to exercise discretion. Main controls of this type are by limiting the delegation and the extent to which an authority can proceed through rules and policies. The courts can also develop principles to make sure that administrative authority does not misuse its power by acting irrationally and thereby placing substantive limits on its discretionary powers.

The public authority would be said to have failed to exercise its discretion when:

• There is an unlawful delegation of discretionary powers to other person when the statute states that such powers shall be exercised only by a particular public authority.
• It makes general rules and policies applicable to all without looking into merits of a special case in which the authority ought to exercise discretion.
• It enters into a contract the terms of which disable the authority to exercise its discretion

In dealing with the aforementioned situations the courts are faced with the questions such as – Can the person to whom power is delegated make decisions without approval of the delegating authority and the delegating authority ratify the unauthorized act later on?. Is an official in the ministry a delegate? The unlawful delegation can not be cured under the pretext that it was not delegation but creation of an agency? The researcher has tried find answers to such questions and examined the decisions of the court in such cases. The general role of the court in such situation has been to put constraints upon an administrative authority in order to ensure that there is no misuse of power. The judiciary can impose substantive limits on the power of an administrative authority on the ground that it is thereby ensuring that the body does not act illegally, outside the remit of its power. Cases in which such intervention was made by the judiciary in executive exercise of discretion are discussed in the paper.

Delegation of Discretionary Powers

A. Delegatus Non Potest Delegare.

A discretionary power must in general, shall be exercised by the authority to whom it has been committed. It is a well known principle of law that when a power has been confided to a person, he must exercise the power personally unless he has been expressly empowered to delegate it to another. This principle has been expressed in the form of a maxim delegatus non potest delegare, it is often applied to law of agency, trust and arbitration. Thus, if a person to whom authority to personally exercise discretion is vested by a statute, delegates his discretionary power to another person, it will amount to failure to exercise discretion by the public body.

Whether a person other than that named in the empowering statute is allowed to act will depend upon the statute which lays down the provision for delegation. The nature of the subject matter, the degree of control retained by the person delegating, and the type of person or body to whom power is delegated will be taken into account while delegating powers. [1]

The maxim is applied with the utmost rigour to the proceedings of the ordinary courts. In the entire process of adjudication a judge must act personally unless he is expressly absolved by a stature from such duty. Special tribunals and public bodies exercising functions analogous to the judicial functions are precluded from delegating their powers of decision making unless there is an express authority to that effect. [2] But, sometimes a public body may delegate its quasi-judicial functions to its own members with the authority to hear evidence, investigate and make recommendations in a report, provided that (i) It Retains the power of decision in its own hands and receives a report full enough to enable it to hear the parties properly before making a decision [3] (ii) The context does not indicate that it must perform the entire “adjudicatory” process itself. The decision may be made by an authorized official in the name of the Minister in whose office he is working.

There is a strong presumption against the granting of delegated legislative power to empower a delegate to sub-delegate the whole or any part of the substantial law making entrusted to it [4] . Thus in Allingham [5] the court held that it was unlawful for a wartime agricultural committee, to which powers concerning cultivation of land had been delegated by the Minister of Agriculture, to delegate to an executive officer the choice of which particular fields should be subjected to a certain type of cultivation. The courts are reluctant to allow a further delegation of a delegated legislative power [6] .

B. Unlawful Delegation

In a local government law there may be delegation of either executive power [7] or of power to make recommendations or decisions subject to the approval of delegating authority. In latter class of case, problems have arisen when the person to whom power is delegated makes decisions without approval of the delegating authority and the delegating authority ratifies the unauthorized act later on.

The following are some of the principles elicited from the cases in which devolution of statutory discretion has been considered.

Where an authority vested with discretionary powers, empowers one of its members, committees or sub-committees to exercise those powers independently without any supervisory control by the authority itself, the exercise of the powers is likely to be held invalid [8] .

The degree of control maintained by a delegating authority over the acts of the delegate or sub-delegate may be a material factor in determining the validity of the delegation [9] .

It is improper for an authority to delegate wide discretionary powers to another authority over which it is incapable of exercising direct control, unless it is expressly empowered to delegate. Thus a Minister of Works could not delegate Minister of Health part of his function in the system of building licensing [10]

Where the exercise of the discretionary power is entrusted to a named officer – e.g. a chief officer of police, a medical officer of health or an inspector – another officer can not exercise powers in his stead unless express statutory provision is made in this regard [11] .

The maxim delegates non potest delegare has on the whole been applied more strictly to further sub-delegation of sub-delegated powers than to sub delegation of primary delegated powers [12] . Where parliament has expressly authorized for sub-delegation it can generally be presumed that it did not intend further sub-delegation.

It is presumed that express authority to sub-delegate powers impliedly excludes power to delegate duties which involves exercise of deliberate judgments [13] .

The delegating authority must identify sufficiently what are the functions thus delegated instead of leaving the sub-delegate to decide the ambit of his own authority [14] .

Canadian courts have taken a restrictive view on competence of local authorities to confer free-discretion on their members and officials. Thus, Montreal could not make a bye-law providing that nobody was to run a business in the city without an official permit this was held to be invalid sub-delegation [15] .

Special considerations arise when a statutory power is vested in a Minister or a department of State is exercised by a departmental official. The official is the alter-ego of the Minister or the department, and since he is subject to the fullest control of the Minister he is not usually spoken off as a delegate [16] . In general a minister is not obliged to bring down his mind or bear upon a matter entrusted to him by statute but may act through duly authorized officer of his department [17]

Thus, when the delegating authority is unlawfully delegating its discretionary powers upon a subordinate it will amount to dodging from exercising discretion.

c. Agency and Delegation

Both delegation and agency involve authorizing someone to act on the behalf of another. As discussed earlier, there are limits to things which may be delegated. A glance at treatise on agency indicates that limits also exist on the capacity of an agent. An agent can perform any act on behalf of the principal but he can not perform a duty imposed on the principal personally the exercise of which requires discretion or skill, or the where the principal is required by the statute to do the act personally [18] .Where public bodies possesses powers the presumption is that the power should be exercised by the person named in the statute, though this can be rebutted in certain situations.

b. Moreover If the initial delegation to the officer is unlawful by reason of it being outside the authority of the delegating officer to do so, it can not be made valid by saying that the officer possessed apparent authority, since one of the conditions of a valid agency is that the parent should not be deprived of its authority to delegate [19] .

There are three main differences between Agency and Delegation. First, the agent acts on behalf of his principle and his name and the acts done by the agent within the scope of his authority are attributable to the principal. These principles are not applicable to the delegation in administrative law, and it would be ultra vires for an authority to invest a delegate powers exercisable in his own name. Secondly, the agent can be given detailed directions by the principal and does not usually have a wide area of personal discretion. On the other hand, one to whom statutory powers are delegated have a substantial freedom from control in exercising them. Thirdly, in agency principal retains power whereas in delegation, the delegating authority may or may not retain power.

In order to determine the validity of transfer of discretionary powers, it is necessary to examine whether the nature of devolution of powers is in the form of an agency or delegation. The ordinary course of delegation is divestment of the delegator to the delegate until and unless there was an express or implied retention of some or all of the powers. In agency the delegator retains power concurrently with the delegate. Thus, due to difference in the way the power is transferred in agency and delegation it becomes important to find out the nature of delegation.

II Fettering of discretion: Rules, policies and discretion

Unlawful delegation is one way in which a public body may be held to have failed to exercise its discretion. A second is where the public body adopts a policy which precludes it from considering merits of a particular case. The discussion which will follow is based on two issues (i) When the public body has laid down a policy or a rule what test should the court apply in determining whether such a general policy should be allowed to stand? (ii) If the public body does not have a rule or a policy how far can the courts go in actually encouraging the agency to make such rules?

An Existing Rule or Policy

A public body endowed with statutory discretionary powers is not entitled to adopt a policy or rule which allows it to dispose a case without any consideration of merits of the individual applicant. In Carrie [20] Darling J. stated that each application must be heard on its merits. There could not be a general resolution to refuse permission at all. This does not mean that a public body is precluded from having any general policy/ rule at all. A general policy is allowed provided that due consideration of merits of an individual case takes place, and provided that the content of the policy is intra vires.

In Kynoch [21] case Bankes L.J. contrasted two situations the former being permissible and the late being not permissible. It was lawful for an authority to adopt a policy, to intimate to the applicant what the policy was and to tell that person that it would apply the policy after hearing, unless there was something exceptional in the case. It was, however, not permissible for the authority to make a determination to not to hear any application of a particular character. In British Oxygen [22] , Lord Reid stated that “While anyone possessing discretion could not shut his ears to an application, and while there might be cases where it should listen to arguments that its rules should be changed, an authority was entitled to have a policy”. There is however some cases in which only a minor role is played by a policy. The policy is allowed to be only one of the relevant factors used by the public body in arriving at its decision.

It is clear on authority and on principle that the policy must be one which is legitimate given the statutory framework within which the discretion is exercised. It must be based on relevant considerations and must not pursue improper purposes.

The existence of a rule or a policy which is upheld by the court raises three important questions:

First, the individual may wish to argue that the policy should not be applied to a particular case. There is an authority for the view that such an applicant should be informed of what the policy entails, this being necessary if there is any effective right to challenge it. [23] . The extent of availability of this right is unclear. There may depending on the circumstances be a right to hearing of some type but it is unclear whether the individual would be entitled to an oral hearing [24] . Equally it is not clear whether the individual can challenge application of the policy in his case, or whether the substance of the policy itself can be challenged. The later issue can be clearly raised at the stage of judicial review.

The second situation is the converse of the first. The individual may wish to argue that an established policy should be applied to a particular case, while the public body may whish to change the policy. In such circumstances, if an individual in the past has enjoyed the benefit or advantage of the policy which may reasonably expected to continue, the person may be entitled to a statement of reasons for the change of position and an opportunity to be consulted thereon [25] . The principle of consistency creates a presumption that public body will follow its own policy. If it seeks to depart from the policy there must be good reasons for the departure and these must be given to the applicant [26] .

No Existing Rule or “Insufficient” Rules

The discussion thus far has focused upon the appropriate judicial response to a situation where an agency has made rules. There is, however an important literature concerning the extent to which an agency should be encouraged to make rules Davis was responsible for much early work in this area [27] . He begins by making clear the importance of discretionary action: Discretion is a vital tool in society for the individualization of justice, and no society has existed in which discretion has been absent. Writers [28] who have propagated a purely rule based government in which there is no exercise of discretion is what Davis terms as extravagant version of the Rule of Law, were postulating an ideal which has and could never be attained by any country. He suggests two principal ways in which unnecessary discretion can be curtailed.

The first is to eliminate unnecessary discretionary power or to confine it within necessary bounds [29] . This can be achieved by encouraging administrators to make standards and rules which will clarify the vague legislative criteria. The agency should not feel hesitant about making rules for fear that they will involve too broad generalization, for Davis argues that such rules may be limited to the resolution of the new broad spectrum of cases.

The second method of controlling discretion is to ensure that it is structured [30] . Davis suggests number of ways in which it can be achieved: open plans, open policy, statements and rules, open findings, open reasons, open precedents and fair procedure. The overall aim is not to eliminate discretion but it is to find optimum degree of structuring in respect of each discretionary power. Structuring of discretion is not the only technique of control that is advocated. Discretion should also be checked. A variety of such checks can be used, supervision by superiors administrative appeals are three of such ways.

A number of other writers have pursued similar subject matter though with modifications. For example, Jowell [31] , lays down merits and demerits of discretion. The former include classification of organizational aims, thereby rendering it less likely that an official will take decision based upon improper criteria, and rules will be more exposed to public scrutiny, thereby rendering administration more accountable. There are moreover benefits of like cases being treated alike and the possibility of greater public participation in the formulation of goals. The defects of rules are familiar, including in particular the legalism and rigidity that can be attended upon them [32] .Despite such disadvantages other writers have joined the call for structuring of discretion [33]

iii Undertaking not Exercise a Discretion

A public authority cannot effectively bind itself not to exercise discretion if by doing so it would in turn, disable itself from fulfilling the primary purpose for which it was created. It has been said that “if a person or public body is entrusted by legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies can not divest themselves of this power and duties. They can not enter into contract or take any action incompatible with the due exercise of their power and duties” [34] . Such action of the public authority would mean to renounce a part of their statutory right. [35]

Clearly, this does not mean that a public authority is never competent to limit its discretion by entering into commercial contracts [36] or restrictive covenants [37] ; the principle must be stated more conservatively. However, some generalizations may be offered:

A public authority cannot effectively disable itself from making [38] or enforcing a bye-law, refusing or revoking a grant of planning permission or exercising any other statutory power of primary importance [39] such as a power to compulsory purchase [40] , nor it can effectively bind itself to exercise such a power in a particular way. Similarly, it can not be stopped by its inertia or acquiescence from fulfilling a duty to exercise power when the occasion arises for it to be exercised [41] . And these principles apply a fortiori to fettering the effective discharge of public duties.

More specifically, a body endowed with statutory powers and duties exercisable for public purposes in relation to land cannot disable itself from fulfilling those purposes by dedicating or granting the land or interests therein in a manner or for a purpose incompatible for the fulfillment of the primary purposes [42] . Whether a proposed new purpose is compatible with the primary purpose may raise question of interpretation, fact and reasonable foreseeable probability. Incompatibility can not be established by a mere conjecture.

Contracts and covenants entered into by crown are not to be construed as being subject to implied terms and conditions that would exclude the exercise of discretionary powers for the general public good; on the contrary they are to be construed as incorporating an implied term that such powers would be exercisable. [43] Assertions that crown is incapable of entering into such contract that may fetter its future executive action in any way or that in all contracts entered by crown there is an implied term that crown may hrepudiate its obligation whenever in its opinion executive necessity so demands must be viewed with reserve today [44]

If a public authority lawfully repudiates or departs from the terms of a binding contract in order to exercise its overriding discretionary powers, or if it is held that such contract would have never had binding effect because the terms of the contract may fetter the exercise of general discretionary powers, the other party to the agreement has no right whatsoever to the damages and compensation under the general law, no matter how serious the damage that party may have suffered.

Partial or total failure to exercise discretion may also occur when the public authority has failed to appreciate the amplitude of its authority to exercise discretion. In one case an authority has discretionary power to grant pensions to its officers that amounts up to two-thirds of their retiring salaries; misconstruing the scope of its powers under the statute, it thought that it had no discretion as to that amount, and for this reason it refused to award the pension at all to an officer who in its opinion did not deserve the full amount. Its error of law had caused it to refuse to exercise part of discretion conferred upon it, and the officer obtained mandamus to order the authority to consider and determine his claim. In a New Zealand case a magistrate who had heard and dismissed an appeal against refusal of a milk license.

Acting under dictation

An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. The discretionary power vested upon an authority is to be exercised by him without being influenced by the will of the superior authority. Thus discretionary power shall not be exercised under a dictation. There are some common law cases that illustrate; it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide [45] . In such cases, it is immaterial that the external authority had not sought to impose its policy. For instance, where a local authority, in assessing compensation for loss of the office, erroneously made certain deductions because it thought it was obliged to do so having regard to the practice followed in such cases by the treasury, mandamus issued to compel it to determine the claim according to the law [46] . Where a Minister entertaining a planning appeal dismissed the appeal purely on the strength of the policy objections raised by another minister, it was held that his had to be quashed because he had, in effect surrendered his discretion to the other Minister [47] .

Authorities directly entrusted with statutory discretions, be they executive officers or members of distinct tribunals, are usually entitled and are often obliged to take into account consideration of public policy, and in some contexts the policy of a minister or the government as a whole may a relevant factor in weighing those considerations; but this will not absolve them from their duty to exercise their personal judgment in individual cases [48] unless, there is an explicit statutory provision to be given binding instructions by a superior. If the hierarchical subordination (in the case of civil servants and local government officers) make it clear that it is constitutionally proper for them to receive and obey instructions in the proper manner and form, it is proper to exercise discretion as per the direction of the superiors.

Conclusion

It is apparent that there has to be an optimum balance between rules and discretion. Such balance is essential so that there is no misuse of discretionary powers by the executive. Inevitability of granting discretionary power to the executive is undisputed but it is necessary that rules be formulated to stipulate when and when not to exercise discretion. Judicial intervention in administrative functioning can only be minimized only if the executive makes an intra vires exercise its power. It would be improper on the part of judiciary to invade upon executive discretionary powers; the courts should not force or persuade executive agencies to develop rules. Judiciary shall not fetter administrative discretion by deciding whether administration should make rules or not where it is upon executive discretion to do so.