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Administrative Law - Oversight of Policy Summary
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  • Course
  • Administrative Law
  • Institution
  • Oxford University (OX)

Comprehensive summary/exam notes on oversight of policy in Administrative Law. This document covers fettering of discretion, the content of policy, and the advantages and concerns regarding policy.

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Document information

  • October 6, 2024
  • 6
  • 2022/2023
  • Summary

Subjects

  • administrative law
  • oversight of policy
  • policy
  • discretion
  • fettering of discretion
  • british oxygen
  • nicholds
  • tilley v wandsworth lbc
  • prerogative power
  • sandiford

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  • Oxford University (OX)
  • Unknown
  • Administrative Law
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Oversight of Policy
1. General Principles:
Interpretation of Policy = correctness basis just as legislation, but wary of not being
overly legalistic.
Samuel Smith Brewery/Tesco/Hopkins
There is a general duty to comply with policy in the absence of a good reason.
Mandalia
If a public authority has policy, they have a duty to publish it.
Lumbar
2. Fettering of Discretion:
If someone applies for a benefit/some other decision and a policy is applied to their
case and they argue that the public authority should have departed from it.
Depends on the statutory context.
Starting point = British Oxygen Co Ltd v Minister of Technology – default rule:
P company’s main activity was the manufacture, sale, and distribution of
industrial and medical gases. The company used three kinds of transporter
and metal cylinders of various sizes to effect the sale and delivery of the
gases.
Company claimed that the capital expenditure on their equipment
was eligible for grant under the Industrial Development Act 1966.
The Board of Trade, who were given a very broadly framed
discretion under this Act, had a policy not to give grants for items
under £25.
SO – the grant was refused because individually worth less than £25.
Two limbs:
First – public authorities are generally permitted to adopt policies.
There is nothing wrong with having a policy and using it to
decide a case.
Second – public authority will err if it receives an application which
has something new about it and it refuses to consider those new
circumstances.
Lord Reid – “The general rule is that anyone who has to
exercise a statutory discretion must not “shut his ears to an
application” … a Ministry or a large authority may have
had to deal already with a multitude of similar applications
and then they will almost certainly have evolved a policy so
precise that it could well be called a rule. There can be no
objection to that, provided the authority is always willing to
listen to anyone with something new to say.”
SO – in general, blanket rules are not a problem so long as the authority is
willing to listen to new arguments.
BUT – there are cases where the courts have recognised that the particular statute
necessitates a different approach.
R (Nicholds) v Security Industry Authority –
s.7 Private Security Industry Act 2001 required anyone working in
door supervision industry to have a licence.
Under the criteria, a person who had committed a relevant
serious offence was automatically barred from obtaining a
licence for 5 years.
Kenneth Parker QC –
“There are exceptional statutory contexts where a policy may
lawfully exclude exceptions to the rule because to allow

, exceptions would substantially undermine an important
legislative aim.”
The Act in this case was dealing with widespread criminality in the
industry – look at Parliament’s intention in enacting the legislation.
Attorney General (Tilley) v Wandsworth LBC –
Under Children Act 1948, authority had the power to take children
into care.
BUT – under s.1 Children and Young Persons Act 1963 the
duty is to provide “such advice, guidance and assistance” to
avoid care.
Essentially, it was a duty to do anything they could do before
care (absolute last resort).
Local authority resolved that where a family is “intentionally
homeless” (Housing (Homeless Persons) Act 1977), the 1963 Act
should not be used to provide accommodation.
P, who claimed that the resolution was unlawful, brought an
action against the local authority for a declaration that the
resolution was unlawful.
Templeman LJ – the statutory task given to the decision maker (to
assess need of children) was so fact sensitive that perhaps any policy
would be too rigid and would sit inconsistently with the nature of that
test.
“A local authority, dealing with individual children, should
not make a policy or an order that points towards fettering its
discretion in such a way that the facilities offered to the child
do not depend on the particular circumstances.”
BUT – this was not with the backing of the court.
Prerogative Power cases:
R (Sandiford) v Secretary of State for Foreign and Commonwealth
Affairs –
Applicant argued that the no-fetter principle applied to this
power too and that the Government should have departed
from the policy for not providing legal assistance to those
imprisoned abroad.
Obiter comments –
Suggest that the no fetter principle is linked to giving
effect to parliamentary intention – giving effect to
parliament’s intention that power not be fettered.
Where did not have statutory basis, no legal basis for
applying the principle.
This has been criticised by Adam Perry –
The illuminating principle is not parliament’s intention but
rather it is justified by the same principles as under fair
hearings – enabling individuals to have arguments heard.
It does not make sense that confined to statutory power as
these values are just as important when talking about the
common law and prerogative powers.
3. Content of Policy:
Extent to which when drafting policy, a drafter has obligation to set out in detail the
legal obligations that apply in decision-making.
R(A) conjoined appeal in Eritrea –
Issued guidance to police officials on subject of when and how they
should disclose information about convicted child sex offenders in a
local area.

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