While discretionary powers are an integral and necessary part of Administrative Law they cannot be exercised in an indiscriminate way. The courts are regularly called upon to determine whether the persons or bodies entrusted with this discretion have used it in a fair and reasonable manner. This discussion, following an explanation of discretionary powers, will through case law, show the importance of controls in preventing an abuse of these powers. It will examine how these abuses manifest themselves while at the same time investigating the rules that the decision maker must adhere to while exercising their discretion. We will also see that where the decision maker acts outside the powers entrusted to them, although not an abuse, it will still invalidate the decision. We shall also look at the factors which need to be considered by the decision maker while reaching a decision, and the courts view, as to the relevancy and weight that must be applied to these considerations. Finally we will investigate if there are any other factors necessary to control the exercise of discretionary powers and why this control is required.
Many academics have given various definitions as to what a discretionary power entails. One of the more succinct was given in Baker v Canada, where it was described as a power which referred: ...”to decisions where the law does not dictate a specific outcome, or where the decision maker is given a choice of options within the statutorily imposed boundaries”... Put simply, where a decision maker has been granted discretion by the wording of a statute, e.g. “the minister may”, that discretion must be exercised in the manner which the statute provides for. However it should be noted that within a statute, discretionary power may be laid out in the precise manner in which the legislators intend it to be used or in a manner where only a basic objective is outlined. Therefore the discretion exercised in the latter is more susceptible to an allegation of abuse. Although discretionary power is regularly challenged on grounds of an abuse of its application, it is however a necessary requirement for the legislators. In a world where the needs of society are constantly changing legislators need to frame legislation in a manner that takes into account the many complexities that arise in so many different areas e.g. housing, education and health. Therefore, on occasion, legislation may dictate a flexible approach, rather than the rigid rule of law. Whereby, this also allows for the input of expert opinion when dealing with these complex issues.
Control of Discretionary Power.
As the use of a discretionary power involves making a decision based on a number of alternatives, it is imperative that the ultimate decision does not adversely impact on the rights of the citizen. Therefore it is important that constraints are put in place to prevent such an occurrence. However, even with such constraints, public bodies can deliberately or inadvertently ignore them and make their decision based upon on a misinterpretation as to the level or nature of their discretion. It has been established that an incorrect use of discretion will be viewed in one of two ways. First, where the body exercising the power exceeds the limits of its discretion, i.e. it acts ultra vires and secondly, the body abuses its discretion e.g. the body appears to be acting mala fides. Ultimately, both instances will give grounds for a challenge to the decision by way of judicial review. Where the use of a discretionary power has been challenged, the court, barring circumstances where there has been “an identifiable error in law or an unsustainable finding of fact by a tribunal”, will be slow to interfere with a decision from a lower jurisdiction or tribunal. This reluctance stems from the fact the court is interested in the manner in which the decision was made not in the actual decision. And, even where the...
Bibliography: Carolan, Democratic Accountability and the Non-Delegation Doctrine, (2011) 18(1) DULJ 220.
Delany, The Future of the Doctrine of Legitimate Legislations In Irish Administrative Law, (1997) 32(1) JUR 217:
Carolan, Democratic Control or “High Sounding Hocus Pocus”? (2007) 14(1) DULJ 111.
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