Fettering Discretion in UK Law

Leading Cases
  • Secretary of State for Communities and Local Government v West Berkshire District Council and Another
    • Court of Appeal (Civil Division)
    • 11 Mayo 2016

    But (2): a policy-maker (notably central government) is entitled to express his policy in unqualified terms. He is not required to spell out the legal fact that the application of the policy must allow for the possibility of exceptions. As is stated in De Smith's Judicial Review (7 th edn.) paragraph 9–013,

    Both of these principles – the rule against fettering discretion, and the liberty (generally) to express policy without acknowledging exceptions – apply whether or not the policy-maker and the decision-maker are the same or different persons. If it were otherwise, neither would have any integrity as a principle. We have expressed them in general terms; their application in the planning field's statutory context requires further elaboration.

    The second of our two principles is that a policy-maker is entitled to express his policy in unqualified terms. It would surely be idle, and most likely confusing, to require every policy statement to include a health warning in the shape of a reminder that the policy must be applied consistently with the rule against fettering discretion – or, in the planning context, consistently with s.38(6) or s.70(2).

  • R (Elias) v Secretary of State for Defence
    • Court of Appeal (Civil Division)
    • 10 Octubre 2006

    No such consideration arises in the case of an ordinary common law power, as it is within the power of the decision maker to decide on the extent to which the power is to be exercised in, for example, in setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be.

    In my judgment, there was nothing unlawful (subject again, of course, to the race discrimination point) in using common law powers to define a scheme to be governed by rules, to make specific provision for general criteria of eligibility and for exceptions and in then refusing to apply different criteria or, by way of exception, to consider or grant applications from those not falling within the published criteria.

  • R (S (A Child)) v Brent London Borough Council; R (P (A Child)) v Oxfordshire County Council Exclusions Appeals Panel ;
    • Court of Appeal (Civil Division)
    • 17 Mayo 2002

  • Attorney General Ex Rel Tilley v London Borough of Wandsworth
    • Court of Appeal (Civil Division)
    • 04 Febrero 1981

    Although the resolution appears to be mandatory and to prevent alternative housing being provided under the Children and Young Persons Act 1963, nevertheless Mr Beloff said, and the judge accepted that there was evidence, that exceptions were in practice made to the resolution.

See all results
Legislation
  • Houses of Correction Act 1782
    • UK Non-devolved
    • 1 de Enero de 1782
    ... ... of Correction for hard Labour, of such Kinds as they in their Discretion shall think most proper; and shall employ some fit Person to be the Keeper ... Prisoner shall be so fettered; and he shall not continue such Fettering longer than six Days, without obtaining an Order in Writing from one of ... ...
  • Poole Corporation Act 1928
    • UK Non-devolved
    • 1 de Enero de 1928
    ... ... conditions as the Bournemouth Corporation in their absolute discretion may think fit Provided that the consent of the Bournemouth Corporation ... that any banner streamer notice board sign or over streets, fettering, suspended across or hung over any street within the borough for the ... ...
See all results
Books & Journal Articles
  • Relocation, Relocation, Relocation: A Comparative Study of "Leave to Remove" Applications in England and Scotland
    • No. II, January 2015
    • Dundee Student Law Review
    • Jessica Gray
    • 1-9
    ... ... (3) of the Children Act 1989 is to be applied in the exercise of discretion in order to help a judge determine what will optimise the welfare of the ... without bringing about any negative results arising from the fettering of discretion ... ...
  • Retrial or Not? The Troubles of Exercising Discretion
    • No. 86-2, April 2022
    • Journal of Criminal Law, The
    ... ... guidelines is to set down an inexhaustive list of potentially rele-vant factors in certain circumstances so that it would not be fettering the courts’discretion. Along thedevelopment of case law, the list can be expanded to provide for certainty and predictability.Nonetheless, it is ... ...
  • Clare’s Law, or the national Domestic Violence Disclosure Scheme
    • No. 79-1, February 2015
    • Journal of Criminal Law, The
    • 0000
    Clare’s Law has been a PR success for the police in England and Wales—the police have engaged directly with the media over the national roll-out of the Domestic Violence Disclosure Scheme. But the ...
    ... ... which have to be decided.Legitimate expectations and issues of fettering discretionOn a last, separate observation in this doctrinal analysis of ... of a policy as a manifestation of the notion of a fettering of discretion in broader public lawterms could then be deemed as unlawful, as might be a ... ...
  • LIMITATIONS ON THE CONTRACTUAL LIABILITY OF PUBLIC AUTHORITIES
    • No. 13-4, October 1950
    • The Modern Law Review
    ... ... The Amphitrite, namely, that a person to whom a discretion has been entrusted cannot bind himself as to the manner ... of this principle of supposed impossibility of fettering a discretion to the servant of the Crown and of other ... ...
See all results
Law Firm Commentaries
  • Death Row, Human Rights And The Limits Of The Law: An Analysis Of The Judgment In 'Sandiford'
    • Mondaq United Kingdom
    ... ... legal representation overseas was an unlawful fetter of his discretion. Analysis ... Ground one: breach of ECHR and Charter rights ... It ... Grounds two and three: departure from policy and fettering of discretion ... These two grounds were addressed together. Firstly, it ... ...
  • Coroner's Duties To Prevent Future Deaths
    • Mondaq UK
    ... ... cell because he was not aware that he had discretion to enter if ... there was an immediate risk to life. He instead radioed ... met and (ii) that she erred in her approach by fettering her ... discretion and misapplying the law ... In December 2022 the claim ... ...
  • AI In Regulatory Decision Making ' Is It The End Of The World?
    • Mondaq UK
    ... ... Would that constitute improper delegation or fettering of ... discretion for example? Where a piece of legislation mandates ... ...
  • Contingent Assets
    • Mondaq United Kingdom
    ... ... carefully by the trustees in order to ensure they are not fettering their discretion or granting the employer control over the pension ... ...
See all results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT