The Delegation of Discretionary Powers

Only available on StudyMode
  • Download(s) : 971
  • Published : October 11, 2010
Open Document
Text Preview
* -Introduction
* -Discretionary Power
* -Reasonably (Unreasonableness)
* -In Good Faith
* -Proper Authorized Purpose
* -In Accordance with the Law
* -Conclusion

Discretionary power defined could be the statutory power conferred by legislation to an administrator whom could be a Minister or any other government policy making body. All the powers exercised would consist to an element of discretion and the rule of law demands a control over the exercise of discretionary power which is inevitable. When exercising the statutory power certain elements are to be followed in order to keep a control over the discretionary power distributed. The power is exercised reasonably, in good faith, for the proper authorized purpose only, and in accordance with the spirit and the latter of law. In the upcoming discussions all the elements would further be evaluated under separate headings. In this context there is no real difference between ‘policy’ and a ‘rule’. Discretionary power must be exercised with regard to the principles of natural justice and the duty ‘to listen to any objector who shows that he may have something new to say’ should not be disregarded. If done so, would end up considering abuse of discretionary powers by the administrative courts. Discretionary power

It is of uttermost importance to emphasize the discretionary power and how it must be exercised. As mentioned earlier, such powers are granted either under statute or delegation which do not impose a duty on the decision-maker to exercise them or to exercise them in a particular way. Public officials must exercise discretionary powers in accordance with any applicable legal requirements, reasonably impartially avoiding oppression or any other unnecessary injury. The Tobacco Control Act 15/2010 states in Section 6 (e): “A person shall not buy or sell tobacco or any product from a vending machine, by post, or over the internet, or by means of such self-service where the identity of the buyer cannot be determined. The Ministry has discretionary power to prevent any other means of selling tobacco products to a person whose age cannot be determined”. The main issue to be highlighted is the discretionary power given to the Minister and how the power must be exercised in accordance with the administrative law and its guidelines. Sometimes a Minister will have power to make regulations covering the same ground as some policy which he has adopted, and it may then be argued that he should enforce his policy openly by making regulations, which may be subject to Parliamentary scrutiny rather than covertly by exercising discretion in each case. It is to be thought to be classical constitutional doctrine that wide discretionary power was incompatible with the rule of law. But this dogma, is not taken seriously as the rule of law suggests wide discretionary power be not eliminated, rather the exercise must be in control. The first requirement is that all power has its legal limits and the courts could draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. Discretion of power is an element in all power, as opposed to duty, so that ‘abuse of discretion’ could be made to include administrative law. The meaning of policy may play a vital role in determining whether a policy applies to a particular case and whether, if so, it had been followed or not followed. But interpretation of policy is vexed issue with conflicting judicial decisions varying with context. Reasonably (Unreasonableness)

The sovereign principle in the exercise of powers is that it must be exercised reasonably and in good faith on proper grounds. In simple words, it must not be abused. This is one of the twin powers that uphold the administrative law and the other is natural justice. The administrative law can thus control the exercise of power to a certain important limit, both the...
tracking img