Fettering discretion
Fettering Discretion
What is Fettering Discretion?
Fettering discretion occurs when an administrative authority or decision-maker unlawfully restricts or limits the exercise of their discretionary power. This can happen if:
The authority adopts a rigid policy or guideline and refuses to consider exceptions.
They delegate their decision-making power improperly or abdicate their responsibility.
They act under irrelevant considerations or ignore relevant facts.
Why is Fettering Discretion Unlawful?
Administrative discretion must be exercised according to law and judiciously. The decision-maker must be free to consider each case on its merits, applying relevant factors and ignoring irrelevant ones.
When discretion is fettered, the decision-maker acts unfairly or unlawfully by not genuinely exercising the power entrusted to them by statute.
Key Principles
Authorities can adopt policies, but they must not rigidly apply them without considering exceptions.
No abdication or delegation of discretion unless allowed by statute.
Discretion must be exercised in good faith and in accordance with legal principles.
The courts will intervene if discretion is exercised unlawfully.
Important Case Laws on Fettering Discretion
1. British Oxygen Co. Ltd. v Minister of Technology [1971] AC 610
Facts: The Minister had a policy to grant financial assistance only for plant costing over a certain amount.
Issue: Whether the Minister fettered his discretion by rigidly applying this policy.
Decision: The House of Lords held that the Minister had fettered his discretion because he refused to consider applications that did not meet the policy threshold, even if exceptional circumstances justified it.
Significance: Established that while policies can guide discretion, authorities must be willing to consider individual cases.
2. R. v Port of London Authority, ex parte Kynoch Ltd. [1919] 1 KB 176
Facts: The Port Authority refused to grant a license to a ship because of a blanket policy.
Issue: Whether the authority fettered its discretion by refusing to consider the application on its merits.
Decision: The court held the authority fettered its discretion by applying the policy too rigidly.
Significance: Early case affirming that discretion must be exercised on a case-by-case basis.
3. Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
Facts: Immigration officers had a general policy refusing to grant entry permits to certain applicants.
Issue: Whether the officers fettered their discretion by applying the policy without exception.
Decision: The Privy Council held the discretion was fettered unlawfully because the officers failed to consider individual merits.
Significance: Reinforced the principle that discretion cannot be exercised mechanically.
4. Re Findlay [1985] AC 318
Facts: The Home Secretary refused to exercise discretion to release a prisoner on parole because of a general policy.
Issue: Whether the discretion was fettered by applying a blanket policy.
Decision: The House of Lords held that the Home Secretary fettered discretion by refusing to consider individual circumstances.
Significance: Confirmed that even in high-level executive decisions, discretion must be genuinely exercised.
5. Ex parte More (1980) 43 ALR 350
Facts: A planning authority refused to grant a permit based solely on a fixed policy.
Issue: Whether the refusal was lawful.
Decision: The court held the discretion was fettered because the authority did not consider the merits.
Significance: Emphasized that discretionary power must be applied to facts, not just policy.
Summary Table
| Case | Key Issue | Decision | Principle Established |
|---|---|---|---|
| British Oxygen Co. Ltd. (1971) | Rigid policy application | Discretion fettered | Policies must allow exceptions |
| R v Port of London Authority (1919) | Blanket refusal | Discretion fettered | Case-by-case assessment required |
| Attorney-General of HK v Ng Yuen Shiu (1983) | Immigration entry policy | Discretion fettered | No mechanical application |
| Re Findlay (1985) | Parole refusal based on policy | Discretion fettered | Individual circumstances matter |
| Ex parte More (1980) | Planning permit refusal | Discretion fettered | Facts must guide discretion |
Conclusion
Fettering discretion means unlawfully restricting or not genuinely exercising discretionary powers.
While policies and guidelines are allowed, decision-makers must be flexible and consider individual cases.
Courts will intervene to ensure administrative decisions are fair, lawful, and rational.
These cases firmly establish the limits on how discretion can be exercised, protecting citizens from arbitrary or inflexible decision-making.
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