Delegability

Question 1

Barnard

Answer 1

Unless the legislation conferring the discretionary power provides otherwise, it is presumed that discretionary power may ONLY be lawfully exercised by the person or body upon whom it is conferred

Question 2

Justify the presumption of non-delegability.

Answer 2

o Parliament is likely to have chosen the power-holder based on his institutional qualifications and Parliamentary intention must prevail.
o The party responsible for a decision must be readily identifiable so he may be held accountable.

Question 3

Lavender and Sons

Answer 3

It is also illegal for the ordained decision-maker to enter into an arrangement where the real power is exercised by someone other than him (here the Minister made his approval contingent on the decision of another Minister)

Question 4

Carltona

Answer 4

Ministers’ functions are “so multifarious that no Minister could ever personally attend to them” and requiring Ministers to personally exercise every function would put an end to public business

Question 5

Bushell (analysis)

Answer 5

Parliament’s intention in conferring discretion on a Minister is to also entrust discretion to his departmental officials for whom he is legally responsible and politically accountable (analysis - Carltona doctrine thus involves devolution rather than delegation of power since it is within the organization of the ordained decision maker.

Question 6

Sherwin

Answer 6

Ministerial powers may be lawfully exercised by executive agencies in accordance with S.69 of the Deregulation and Contracting Out Act 1994

Question 7

Can statutory power-holders other than Ministers delegate?

Answer 7

o Lord Phillips, DPP v Haw – “if responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate”
o However the delegate must be “of an appropriate level of seniority having regard to the nature of the power in question”

Question 8

Oladehinde

Answer 8

The power to delegate is a common law constitutional power capable of being negative or confined by express statutory provision, exercise of which should be challenged on the basis that “the decision to devolve authority was Wednesbury unreasonable”