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Sanjaya Wilson Jayasekera, LL.B Attorney-at-law. [email protected] 0094713357643 NO UNFETTERED ADMINISTRATIVE DISCRETION

No unfettered administrative Discretion

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Administrative Discretion, if abused, is the denial of Rule of Law

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Page 1: No unfettered administrative Discretion

Sanjaya Wilson Jayasekera, LL.B

Attorney-at-law.

[email protected]

0094713357643

NO UNFETTERED ADMINISTRATIVE

DISCRETION

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NO UNFETTERED ADMINISTRATIVE DISCRETION

““Unfettered Discretion can not exist where rule of law reigns…all Unfettered Discretion can not exist where rule of law reigns…all power is capable of abuse, and that the power to prevent abuse power is capable of abuse, and that the power to prevent abuse is the acid test of judicial control…”is the acid test of judicial control…”

-Wade, Administrative Law.-Wade, Administrative Law.

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Delegation of powers

Discretion

Abuse of discretion Failure to exercise Discretion

Unauthorized Delegation Surrender & Abdication under Dictation Fettering

- By over rigid policies

- By Contract

Judicial Review

Remedies

Writs HR

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Grounds of Judicial Review:

Bad Faith Ulterior Motive Against the Spirit of the legislation Improper Purpose Irrelevant ConsiderationsArbitrariness Unreasonableness (Wednesbury) Irrationality( CCSU case)Proportionality

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“Bad faith, dishonesty-these of course stand by themselves- Unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that….at any rate…overlap to a great extent. A person entrusted with discretion must…direct himself properly in law. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said…to be acting unreasonably.”

Lord Green- Associated Provincial Picture House Ltd v. Wednesbury

Corporation

[1948] 1 K.B. 223

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R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER 433

-Unreasonableness(Irrationality) Principle of Proportionality -Three-stage test-Human Rights Act 1998, Sch 1, Pt 1, art 8(1)

-European Convention of Human Rights and Fundamental Freedoms

-Lord Steyn - Three-stage test of Lord Clyde in de Freitas v. Permanent Secretary of Minister of Agriculture, Fisheries land and Housing [1999]1AC 69 followed.

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“ First, the doctrine of Proportionality may require the reviewing court to access the balance which the decision maker has struck,not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional ground of review in as much as it may require attention to be directed to the relative weight accorded to to interests and considerations.Thirdly, even the heightened scrutiny test….is not necessarily appropriate to the protection of human rights.”

Lord Steyn

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“ I think that the day will come when it will be more widely recognized that the Wednesbury case was an unfortunately retrogressive decision in

English administrative law, in so far as it suggested that there are degrees of

unreasonableness and that only very extreme degree can bring an administrative decision

within the legitimate scope of judicial invalidation.”

Lord Coke

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The three-stage test of Proportionality:

In determining whether a limitation by an act, rule or decision is arbitrary or excessive the court should ask itself:

whether,

i). The legislative objective is substantially important to justify limiting a fundamental right,

ii). The measures designed to meet the legislative objective are rationally connected to it,

iii). The means used to impair the right or freedom are no more than is necessary to accomplish the objective.

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A and Others v. Secretary of State for the Home Department

X and another v. Secretary of State for the Home Department [2005] 5 LRC 34

Unreasonableness (Irrationality) Principle of Proportionality -Convention for the protection of Human Rights and Fundamental

Freedom 1950, arts 5, 14, 15

-Human Rights Act 1998, s 2,3,6,14, Sch 1

-Human Rights Act 1998(Designied Derogation) Order 2001, Sl 2001/3644

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“ It is now recognized that ‘domestic courts must themselves form a judgment whether Convention right has been breached’ and that ‘ intensity of review is somewhat greater under the proportionality approach.”

Lord Bingham

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Desmond Perera and Others v. Karunarartne, Commissioner of National Housing and Others [1994]3SLR316

Irrationality, Illegality, Procedural impropriety

Art 140 of the Constitution

-Council of civil Service Unions v. Minister for Civil Service (1984) 3 All ER 950

-Schimdt v. Home Secretary (1969)2 ch 149

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“Lord Diplock…clearly classified under three heads, the grounds on which administrative action could be made subject to control by judiciary”

Grero,J. and quotes:

“By irrationality, I mean what can by now succinctly be referred to as unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”

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Sunila Abeysekera v. Ariya Rubasinghe, Competent Authority and Others [2000] 1 SLR 314

A move towards a proportionality test

Constitution Article I,12(1),14(1)(a) and 15(7)

-Re Compulsory membership of journalists association, (1986) 8 E. H. R. R. 165.

-The Sunday Times v. United Kingdom (No. 2), (1992) 14 E. H. R. R 229.

-Gay News v. United Kingdom, (1983) 5 E. H. R. R. 123.

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“The 'necessity' requirement involves a review of whether the restrictions are proportionate to the legitimate aim pursued. Proportionality is… inherent in Article 15(7) read with Article 155(2) of the Constitution. just as it is inherent in Article 10(2) of the European Convention.

A restriction, even if justified by compelling governmental interests, such as the interests of national security, must be so framed as not to limit the right protected by Article 14(1)(a) more than is necessary. That is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it.”

Amarasinghe J.

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Benedict and Others v. Monetary Board of Central Bank and Others (Pramuka Bank Case) [2003] 3 SLR 68

Traditional Wednesbury principle followed

Art 140 of the Constitution

- Wenesdbury case

- Secretary of State for Education v. Tameside Metropolitan B.C [1977] AC 1064

-R v. Secretary of State for the Environment ex.p Nottinghamshire [1986]AC 204

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“ ..the court can examine the exercise of the discretionary power in order to see whether it has been used properly, fairly and according to the rules of reason and justice.”

Sripavan J.

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To conclude:

A wide Human Rights Chapter to the Constitution needed

Development of the law of Human Rights means development of Administrative law.

A fusion with the Principle of Proportionality is essential.

Judiciary has a vital role

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