Limiting Discretion

Introduction

Limiting discretion (often called fettering discretion) occurs when a public authority with legal power to choose between options treats that power as fixed. Typical examples include applying a blanket policy with no room for exceptions, taking instructions from an external body, or passing the decision to someone not authorised to make it. The result is a decision not truly based on the merits of the individual case.

Parliament often grants discretion so decision‑makers can respond to different facts fairly and lawfully. If that flexibility is removed by rigid rules or outside pressure, the decision risks being unlawful. Courts can quash such outcomes and require the authority to look at the case properly. This guide explains the core rules, leading cases, and practical steps to get decisions right.

What You’ll Learn

• What “limiting discretion” means and how it arises in practice
• Common forms: rigid policies, refusal to consider exceptions, acting under dictation, and unauthorised delegation
• How policies may guide decisions without becoming hard rules
• How promises and legitimate expectations affect discretion
• Why discretion must give effect to the statute’s purpose
• The leading cases: British Oxygen, Coughlan, Padfield, plus Lavender, Kynoch, and Lumba
• Consequences of limiting discretion and how to avoid it
• Practical steps for decision‑makers and those considering a challenge

Core Concepts

What counts as limiting discretion?

When a statute gives a public body power to choose, the authority must genuinely consider the facts of each case. Discretion is limited unlawfully if the authority:

• Applies a hard‑and‑fast policy and refuses to hear exceptions
• Predetermines the outcome (a “closed mind”)
• Lets another person or body decide (unauthorised delegation)
• Accepts instructions from elsewhere (acting under dictation)
• Refuses to consider relevant factors or treats irrelevant factors as decisive
• Uses a secret policy or unpublished rule

Any of these can lead a court to find the decision unlawful.

Policies: guidance vs hard rules

Policies are useful. They help similar cases to be treated consistently and transparently. The law permits policies if:

• The policy is used to guide, not to predetermine
• The decision‑maker is prepared to depart from it where the facts justify doing so
• Exceptions are considered with an open mind

Key authorities include R v Port of London Authority, ex p Kynoch Ltd [1919] 1 KB 176 and British Oxygen Co Ltd v Minister of Technology [1971] AC 610. Together they confirm that a policy is acceptable if the decision‑maker is willing to listen and make exceptions; it becomes unlawful when treated as unyielding.

Promises and legitimate expectation

Sometimes an authority’s statement or promise gives rise to a legitimate expectation. If someone has a strong, specific promise (or a consistent practice) that they will receive a particular benefit, fairness may require the authority to honour it unless there is a sufficient public interest to justify departure. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 is the leading case. Discretion is not “gone”, but it is constrained by fairness: the authority must weigh the expectation properly, explain any departure clearly, and be able to justify that departure.

Acting under dictation and unauthorised delegation

Discretion must be exercised by the authority to whom Parliament gave it:

• Acting under dictation: It is unlawful to let another body decide the outcome. In Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231, the Minister in effect accepted the Ministry of Agriculture’s view as determinative, which was impermissible.
• Unauthorised delegation: Passing the decision to an outside body without legal power to do so is unlawful (see Ellis v Dubowski [1921] 3 KB 621, concerning film censorship). Internal delegation to officials is usually allowed under the Carltona principle, provided the statute and context permit it and the responsible Minister or authority retains accountability.

Statutory purpose and relevant factors

Discretion must be used to give effect to the aims of the statute, not to frustrate them. In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, the Minister refused to act on a complaint; the House of Lords held the refusal unlawful because it thwarted the policy of the Act. Decision‑makers must:

• Consider the factors the statute requires and avoid taking into account improper considerations
• Give reasons that show the statutory purpose has guided the choice
• Avoid reliance on secret policies: in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, detention based on unpublished criteria was unlawful

Key Examples or Case Studies

British Oxygen Co Ltd v Minister of Technology [1971] AC 610

• Issue: A policy refused grants for items costing under a set amount. British Oxygen bought many small items and sought a grant.
• Decision: The policy was lawful because the Minister kept an open mind and considered whether there was a case for an exception; he was not bound to depart from the policy.
• Key point: Policies can guide, but authorities must be prepared to make exceptions where the facts warrant it.

R v North and East Devon HA, ex p Coughlan [2001] QB 213

• Issue: A health authority promised Ms Coughlan a “home for life” and later decided to close the facility.
• Decision: The promise created a substantive legitimate expectation. The authority could not resile without strong justification. On the facts, the closure decision was unlawful.
• Key point: Firm promises to a defined person or small group can bind an authority unless there is a compelling reason to depart.

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

• Issue: The Minister refused to refer a complaint to a committee, asserting broad discretion.
• Decision: The refusal was unlawful because it defeated the aims of the statute. Discretion must be exercised to give effect to legislative purpose.
• Key point: A wide power is not absolute; it must be used for proper purposes and in line with the Act.

Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231

• Issue: The Minister effectively allowed another department’s view to dictate the planning decision.
• Decision: Acting under dictation was unlawful; the Minister had to make the decision independently.
• Key point: Do not treat external views as determinative unless the statute expressly permits it.

R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12

• Issue: Foreign national prisoners were detained under unpublished policies.
• Decision: Reliance on a secret policy rendered decisions unlawful, even where detention could have been justified under a lawful policy.
• Key point: Policies that shape discretion must be clear, lawful, and published.

Practical Applications

For public bodies and decision‑makers

• Keep policies flexible: State that they guide decisions and that exceptions will be considered. Include an “exceptions” section in the policy and show it is used.
• Record case‑specific reasoning: Set out the key facts, the policy position, why the policy was followed or departed from, and how the statutory purpose guided the outcome.
• Avoid hard‑edged wording: Phrases like “we never” or “no exceptions” suggest a closed mind. Replace with wording that shows openness to departure where justified.
• Publish applicable policies and guidance: Avoid secret rules. If a policy changes, update and publish promptly.
• Manage legitimate expectations: Before withdrawing a promised benefit, identify who relied on it, consult where appropriate, and document clear reasons if you must depart.
• Maintain proper decision routes: Check that the right person is deciding. Use internal delegations lawfully and avoid external dictation.
• Train staff: Provide regular training on discretion, policies, exceptions, relevant factors, and giving reasons.
• Quality‑assure decisions: Sample decisions for signs of rigidity, such as identical template reasons or blanket refusals.

For claimants and advisers

• Ask for the policy: Request copies of all policies, guidance, and internal instructions said to apply.
• Probe for flexibility: Ask whether exceptions were considered, by whom, and with what reasons.
• Check for dictation or delegation: Identify who actually took the decision and whether they had the legal power to do so.
• Look for secret or unpublished rules: If a decision appears to follow a rule that is not public, raise Lumba.
• Use pre‑action correspondence: In judicial review, act promptly, set out the alleged fetter (with case law), and seek reconsideration with an open mind.
• Remedies: A quashing order is common, often with directions to reconsider lawfully; declarations and, in rare cases, damages may also be relevant.

Summary Checklist

• Have you identified the statutory purpose and used it to guide the decision?
• Is any policy expressed as guidance, with an exceptions route?
• Have you genuinely considered an exception where the facts justify it?
• Are the reasons case‑specific, not boilerplate?
• Has the right person made the decision, without dictation from elsewhere?
• If a promise was made, have you addressed any legitimate expectation and justified any departure?
• Are all relevant factors considered and irrelevant ones put aside?
• Is any policy that shapes the decision published and lawful?
• Have you recorded the reasoning clearly to withstand scrutiny?
• If challenged, can you show an open mind and a fair process?

Quick Reference