The Delegation of Administrative Discretion
| Date | 01 June 1949 |
| Published date | 01 June 1949 |
| DOI | http://doi.org/10.1111/j.1467-9299.1949.tb02677.x |
| Author | J. F. Garner |
The Delegation
of
Administrative Discretion
By
J.
F.
GARNER
At
the present time, administrative
law has become a matter of practical
interest to the private lawyer, being
no
longer the exclusive preserve of the
constitutional expert and the local
government officer, and this is parti-
cularly true of those portions of the
law which relate
to
the delegation of
administrative functions from one
administrative body to another. In
this brief review of the latter topic
we are proposing to discuss the nature of
delegation,
as
used in this context, the
more common examples of such dele-
gation experienced in practice, and a
few of the methods by which the same
is
commonly exercised.
(A)
The nature
of
delegation
To delegate is to entrust to another
the execution of some power or duty
vested in oneself; as such, delegation
implies in its very essexice the transfer
to another of more than a mere execu-
tory power
;
a discretion also is trans-
ferred. Thus, when the
<<
competent
authority
”
under Defence Regulation
51 delegates its power to take possession
of land to
a
specified person or class
of persons, it thereby delegates a
discretion (to be exercised within such
limits as the competent authority may
have seen
fit
to prescribe) to be exercised
for the purposes of the Regulation,
but otherwise as the delegate may think
fit.
It is important to consider whether,
by the act of delegation, the principal
has, subject to any restrictions
or
limitations imposed by him at the time
of
delegation, divested himself of all
his
powers in respect of.the subject matter
delegated,
or
whether he may, subse-
quent to the delegation, give further
instructions thereon to his delegate.
In constitutional law
it
is clear that
once the Crown has delegated its
power to legislate for a colony by virtue
of the Royal Prerogative
or
under the
British Settlements Acts,
1887
and
1945,
to a representative legislature within the
colony,
it
camot subsequently (subject
to any limitations
or
express powers
imposed or reserved in the Order in
Council or Letters Patent establishing
that legislature) legislate for the colony,
or revoke the constitution of the
legislature so established (see
Campbell
v.
Hall
(1774), Cowp.
204,
and
Sammut
v.
Strickland
El9381
A.C.
678).
In the law of trusts, in connection
with which the principle
delegatus non
potest delegare
has most frequently
been considered, it has long been recog-
nised that a trustee (to whom the
settlor has delegated a discretion) may
employ agents to carry out executive
acts, but that the trustee’s discretion
delegated to him personally may not
itself be delegated.
Speight
v.
Gaunt
(1884), 9
App. Cas.
1,
is still the leading
authority1 on the subject,
so
far as
the application of this principle is
concerned, and in that case
it
was said
by Lord Fitzgerald,
“I
accept
it
as
settled law that although a trustee
cannot delegate to others the confidence
reposed in himself, nevertheless he may
in the administration of the trust fund
avail himself of the agency of third parties
such as bankers, brokers and others,
if he.does
so
from a moral necessity
or
in the normal course of business.” The
point of the difference between dele-
gation and agency here lies in the factor
of control; where a mere agent is
employed the trustee retains detailed
control and exercises any discretion
himself.
A
trustee therefore cannot
delegate, for matters of policy must be
decided by the person entrusted with
their decision by the settlor, that is,
the trustee himself.
An agent, as distinct from a delegate,
is, according to the normal principlcs
of the common law, a mere “conduit
pipe,” a person empowered to carry
out the instructions of his principal,
and one who need not necessarily be
sui
iuris;
for in
Bazeley
v.
Fordet
(1868),
L.R.,
3
Q.B.
559,
it was held that a
married woman, though
at
that time
incapable
of
contracting on her own
behalf, could none the less act as an
115
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