Q&As

What is fettering of discretion in judicial review? When is it an actionable ground of challenge and what must be established for a challenge to succeed?

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Produced in partnership with Jamas Hodivala of Matrix Chambers
Published on LexisPSL on 12/10/2018

The following Public Law Q&A produced in partnership with Jamas Hodivala of Matrix Chambers provides comprehensive and up to date legal information covering:

  • What is fettering of discretion in judicial review? When is it an actionable ground of challenge and what must be established for a challenge to succeed?
  • When is it an actionable ground of challenge?

Save in particular circumstances, a public body cannot prevent itself from properly considering the exercise of its discretion in individual cases. While it may permissibly have guidance or a policy on how it will ordinarily exercise its discretion, it must usually operate any such guidance or policy in a flexible manner.

In British Oxygen Co Ltd v Minister of Technology at para [625], Lord Reid famously stated:

‘The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application”…What the authority must not do is to refuse to listen at all.’

When is it an actionable ground of challenge?

The starting point is Lord Reid’s analysis in British Oxygen. Whenever a public body operates an inflexible policy, it is susceptible to challenge:

  1. over-rigid policy: Even where a policy is operated flexibly, it may be applied in an overly-rigid manner. If it not possible to envisage circumstances in which exceptions to the policy would operate, the policy is in practice a blanket policy and therefore unlawful ((Rogers) v Swindon NHS Primary Care Trust at para [62])

  2. bar set too high for exceptional circumstances: Equally, the threshold for

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