Grounds of Judicial Review: Failure to Exercise Discretion

In one line

An authority fails to exercise its discretion when it goes through the motions of deciding but does not actually decide: it obeys somebody else, applies a rule it has bound itself to, hands the job to another, or does not apply its mind at all.

In the words a student can write in an exam: failure to exercise discretion is the second family of grounds of judicial review. It arises where the authority in whom the discretion was vested has not brought its own independent judgment to bear on the particular case, whether because it acted under the dictation of another, because it fettered its discretion by a rigid rule or a self imposed policy applied mechanically, because it unlawfully sub-delegated the power, because it surrendered its judgment by acting on an agreement or a direction, or because it did not apply its mind to the matter at all.

Why this is a separate family

Because the complaint is different in kind. In [Grounds of Judicial Review: Abuse of Discretion] the authority made a choice, but made it for the wrong reason. Here it made no real choice at all.

The principle underlying the whole family is one sentence: the discretion is to be exercised by the authority on whom the statute conferred it, on the facts of each case. Everything below is a way of failing to do that.

MU prints the two families as separate items in topic 3.2, so an answer must not merge them.

Ground 1: acting under dictation

The authority takes the decision because somebody else told it to. It has the power, it goes through the process, and then it does what a minister, a superior officer or a committee directed.

It is no answer that the person giving the direction was senior. The statute chose the deciding authority, and a superior cannot exercise a power vested in a subordinate unless the statute allows it.

How to tell it from lawful guidance. An authority may seek advice, consult, and consider a departmental policy. It fails to exercise discretion only when it treats the direction as binding and decides because of it rather than on its own view. The question is whether the authority applied its own mind or merely relayed another's decision.

Ground 2: self imposed fetters

The authority adopts a rule or policy and then applies it mechanically, refusing to consider the particular case.

The law's balance is worth stating carefully, because both halves are examinable.

1. An authority may adopt a general policy. Consistency is a virtue, and a policy structures discretion and protects against arbitrariness: [Administrative Discretion and Why It Is Conferred].
2. But it must keep its mind ajar. It must be willing to hear that this case is exceptional and to depart from the policy if the case warrants it.