## Introduction

Failure to exercise discretion arises when a decision-maker who has a power or duty to choose between lawful options does not reach an independent judgment. This may happen through refusal to decide, excessive delay, rigid rules that leave no room for exceptions, or by following someone else’s wishes rather than exercising one’s own judgment. The concept matters in administrative law because courts will review and, where appropriate, quash decisions that were not truly made by the body authorised to make them.

Good use of discretion requires fairness, attention to relevant factors, disregard of irrelevant factors, and staying within legal limits and purposes. Understanding these rules helps public bodies make durable decisions and helps candidates prepare for exam and practice scenarios involving judicial review.

## What You'll Learn

- What counts as a failure to exercise discretion, including refusal to decide and excessive delay
- The difference between lawful consultation and unlawful dictation or delegation
- How policies can be used without fettering discretion, and when they go too far
- How to identify and handle relevant and irrelevant considerations
- The role of improper purpose, reasonableness, and proportionality in review
- Key authorities: Padfield, Venables, Lavender, British Oxygen, Wednesbury, Kynoch, Fewings, and Carltona
- Practical steps to design decision-making processes that withstand challenge
- Common remedies when a failure to exercise discretion is found

## Core Concepts

### Abdication of discretion and failure to decide

A failure to exercise discretion includes:

- Refusing to make a decision when required to do so
- Indefinite or unjustified delay in deciding
- Strictly applying a fixed rule or policy without considering exceptions
- Treating a decision as if predetermined by others

Why this is unlawful:

- Parliament or the empowering instrument entrusted the judgment to a specific body or person
- The decision must be tailored to the facts and statutory purpose
- Flexibility is preserved so that special cases can be addressed

Indicators of lawful practice:

- Decisions are made within a reasonable time
- The decision-maker acknowledges the existence of discretion
- Records show consideration of whether to depart from any usual approach in light of the facts

### Acting under direction and unlawful delegation

Acting under direction (or dictation) occurs where a decision-maker treats another person’s view as binding and simply rubber-stamps it. This is different from lawful consultation, where external views inform but do not control the outcome.

Key points:

- Unlawful: Treating another department’s or stakeholder’s position as determinative
- Lawful: Seeking expert input, weighing it, and reaching an independent judgment
- Internal delegation to officials can be lawful under the Carltona principle, which recognises that ministers act through responsible officials. But the discretion must remain within the department and not be surrendered to an external body

Good practice:

- Document why advice was accepted or rejected
- Avoid wording that suggests the decision was “required” by someone without authority
- Keep the final call with the authorised decision-maker

### Policies and fettering discretion

Public bodies may adopt policies to aid consistency, but they must not bind themselves so tightly that they refuse to consider exceptions.

Core rules:

- Policies are permissible and often useful for fairness and predictability
- Decision-makers must be willing to depart from a policy where the facts justify it
- A blanket, inflexible rule that leaves no room for exceptions fetters discretion and is unlawful
- Policies should be published and applied consistently, but with real scope for case-by-case assessment

Practical markers:

- Policy documents include an “exceptions” clause
- Reasons explain why the case is typical or why it justifies a departure
- Staff training reinforces discretion rather than rote application

### Relevant and irrelevant considerations

A lawful decision must consider the factors the law requires and disregard those it rules out.

Three categories (from case law) help:

- Mandatory relevant considerations: must be taken into account (e.g., statutory factors)
- Permissible considerations: may be considered if relevant to the purpose of the power
- Prohibited considerations: must not be considered (e.g., matters outside the power’s purpose or improper pressure)

Working method:

- Identify the source of power and its purpose
- List factors the statute or case law requires
- Check the record for any irrelevant influences (e.g., partisan pressure, public clamour where inappropriate)

### Improper purpose and giving reasons

Using a power for a purpose other than the one for which it was conferred is unlawful. Even where reasons are not strictly required, giving clear reasons often demonstrates that the correct purpose and factors guided the decision.

Watch for:

- Revenue-raising disguised as public order, or vice versa
- Avoiding political embarrassment rather than pursuing statutory aims
- Vague or generic reasons that do not match the facts of the case

### Wednesbury unreasonableness and proportionality

Wednesbury unreasonableness is a high threshold: a decision so irrational that no reasonable authority could have made it. It sits alongside other grounds such as failure to exercise discretion. Where human rights under the Human Rights Act 1998 or retained EU law are engaged, courts may apply proportionality, asking whether the measure pursues a legitimate aim by suitable and necessary means and strikes a fair balance.

Positioning:

- Wednesbury often overlaps with other failings (e.g., ignoring key factors may produce an irrational outcome)
- Proportionality is a stricter, structured analysis when applicable

## Key Examples or Case Studies

### R v Secretary of State for the Home Department, ex p Venables [1998] AC 407

- Context: The Home Secretary set tariffs for juvenile offenders amid intense public pressure.
- Lesson: Decisions must be independent of improper external influence; public clamour cannot control the outcome.
- Application: Guard against pressure from campaigns or media where the statutory role is to make an impartial assessment.

### Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231

- Context: The Housing Minister refused planning permission effectively because the Agriculture Minister objected.
- Lesson: Acting under dictation is unlawful. Another minister’s view cannot be treated as binding.
- Application: Consultation is acceptable, but reasons must show an independent judgment.

### Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

- Context: The Minister declined to refer a complaint to a committee where the statute provided a power to do so.
- Lesson: Discretion must be used to achieve the statutory purpose; refusing to act for collateral reasons is unlawful.
- Application: Identify the statute’s aim and test whether the decision advances that aim rather than avoids it.

### British Oxygen Co Ltd v Board of Trade [1971] AC 610

- Context: A grant policy excluded items costing less than a set amount; the claimant’s purchases fell below that threshold.
- Lesson: A policy may guide decisions, but decision-makers must remain willing to consider exceptions.
- Application: Include and apply an exceptions mechanism; record why a case does or does not justify departure.

### Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

- Context: A cinema licence condition barred children under fifteen on Sundays.
- Lesson: Courts may quash decisions that are irrational in the Wednesbury sense, but the threshold is demanding.
- Application: Ensure reasons and evidence support a rational link between the decision and its objective.

### R v Port of London Authority, ex p Kynoch [1919] 1 KB 176 and R (Lumba) v Secretary of State [2011] UKSC 12

- Kynoch: Authorities may adopt policies if they remain open to persuasion in individual cases.
- Lumba: Decisions based on an unpublished or unlawful policy are unlawful.
- Application: Publish policies where feasible and ensure they align with statutory powers and purposes.

### R v Somerset CC, ex p Fewings [1995] 1 All ER 513 and Congreve v Home Office [1976] QB 629

- Fewings: Distinguishes mandatory, permissible, and prohibited considerations.
- Congreve: Using powers for an improper purpose (e.g., to raise revenue) is unlawful.
- Application: Map considerations against the statute; test the true purpose of the action.

## Practical Applications

For public bodies and decision-makers:

- Identify the power: Note the statute or instrument, its purpose, and any listed factors.
- Plan the process: Set timelines to avoid delay; build in consultation steps where helpful.
- Use policies carefully: Write policies that allow exceptions; train staff to consider departures.
- Record the reasoning: Show the path from facts to decision, including why advice was accepted or rejected.
- Keep independence: Seek technical input but avoid letting others dictate the result.
- Check considerations: Confirm mandatory factors were addressed and irrelevant ones excluded.
- Review purpose: Ensure the decision advances the statutory aim rather than collateral objectives.
- Quality control: Use checklists and peer review for complex or high-impact cases.

For exam answers and legal practice:

- Spot the issue: Is there refusal to decide, dictation, rigid policy use, irrelevant factors, improper purpose, or irrationality?
- Structure the analysis: Source of power → statutory purpose → relevant/irrelevant factors → policy use → independence → standard of review.
- Cite targeted authority: Use Venables (pressure), Lavender (dictation), Padfield (purpose), British Oxygen/Kynoch (policy), Fewings (considerations), Wednesbury (irrationality), Carltona (internal delegation).
- Remedies: Seek a quashing order, mandatory order (to reconsider), declaration, and, where appropriate, interim relief.

For policy drafting:

- Include a clear exceptions clause and criteria for considering departures
- Publish the policy where possible and keep it consistent with the enabling statute
- Provide templates for reasons that encourage, not replace, individual judgment
- Schedule regular reviews to ensure the policy stays lawful and effective

## Summary Checklist

- Has the correct decision-maker acted within time and reached a clear decision?
- Is there evidence of an independent judgment, not rubber-stamping someone else’s view?
- If a policy was used, was discretion retained with real scope for exceptions?
- Were all mandatory factors considered and irrelevant ones excluded?
- Does the decision serve the statutory purpose?
- Are reasons recorded and supported by evidence?
- Is the outcome rational and, where applicable, proportionate?
- Would a court see any improper pressure or collateral purpose at work?
- Are policies published, lawful, and aligned with the enabling power?
- If a flaw is found, is reconsideration required and have steps been taken to fix the process?

## Quick Reference

| Concept                        | Authority                                   | Key takeaway                                                     |
| ------------------------------ | ------------------------------------------- | ---------------------------------------------------------------- |
| Failure to decide              | ex p Venables [1998] AC 407                 | Independent judgment required; public pressure must not control  |
| Acting under dictation         | Lavender [1970] 1 WLR 1231                  | External views cannot be treated as binding                      |
| Policies and fettering         | British Oxygen [1971] AC 610; Kynoch [1919] | Policies allowed; be open to exceptions                          |
| Relevant/irrelevant factors    | Padfield [1968] AC 997; Fewings [1995]      | Consider what the law requires; exclude prohibited factors       |
| Reasonableness/proportionality | Wednesbury [1948] 1 KB 223                  | Irrational or, where applicable, disproportionate decisions fail |


Failure to Exercise Discretion