Discretionary Powers in Admin Law
Introduction.
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.
Discretionary Power.
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
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.
Discretionary Power.
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
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.