Fettering Discretion in UK Law

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).

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.

Bentley was decided on the basis that the Secretary of State had fettered his discretion under a misunderstanding as to the scope of the powers available to him. This is not a case of fettering discretion under a misunderstanding of the scope of a discretion exercisable according to individual circumstances.

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.