1. Are there any grounds other than abuse of power, on which judges may interfere with the substance of an exercise of a discretionary power?

• There are many grounds on which decisions can be quashed apart from abuse of power – such as a procedural irregularity, or an innocent mistake of law as to the claimant’s legal rights. But where a public authority has a discretionary power, it is not so clear that there are other grounds. The substantive protection of legitimate expectations, for example, is a control on the exercise of discretionary powers, and it uses abuse of power as a standard (see 8.4.5).
• The doctrine of relevance (see 8.2) protects against abuses of power; can a decision be unlawful on grounds of relevance without being an abuse of power? Perhaps, if it is the courts’ job to make all decisions as to what is relevant without any deference to administrative authorities, then the doctrine of relevance goes far beyond protecting claimants from abuse of power. What if the doctrine of relevance gives discretion to public authorities in deciding what is relevant?
• If an administrative authority innocently fails to implement an established policy that is in favour of the claimant it may be unlawful. Can it be said that the authority abused its power?
• The doctrine of proportionality can give more than just protection against abuse of power; how? (see 8.3)

2. Can a public authority lawfully act contrary to a legitimate expectation?

• If it is unfair to thwart a legitimate expectation, it is unlawful. So the law’s protection of procedural expectations is simply an instance of the requirement of due process; the law’s protection of substantive expectations is a requirement of substantive fairness –which explains why protection of substantive expectations is limited. Are there ways of thwarting a legitimate expectation that are not unfair? (hint- consider the Bibi case, see 8.4).

3. Should the courts defer to a public authority on the question of what purposes the authority’s powers can properly be used to pursue?

• Consider first the purposes an authority’s powers can properly be used to pursue. Think about the court’s fundamental role: to prevent abuse of power.  The court’s role is not to determine what counts as a good use of the power. Consider also that frequently the public authority is in a better position than the court to determine the purposes to be pursued. Finally consider that it is the public authority, and not the court, that has been given the responsibility for exercising the power. So if the public authority’s view of the purposes is reasonable, might these considerations constitute reasons to defer to the authority’s view of what purposes its powers can properly be used to pursue? As an example, think about R v Ministry of Defence, ex p Walker [2000] 1 WLR 806.  Might there be especially strong reasons to defer to the Ministry of Defence in deciding what purposes are to be pursued in creating a compensation scheme for soldiers?
• But see World Development Movement [1995] 1 WLR 386 above, on statutory powers. When Parliament has specified the purposes for which a statutory power is to be used, the judges insist that its construction (and therefore, the identification of the purpose of the power) is a matter for them.

4. Should the courts defer to a public authority on the question of what considerations are relevant to the exercise of a discretionary power?

• Now think about the relevant considerations doctrine. Once again the court’s role is to prevent abuse of power, not to identify the best considerations for the use of the power to be based on.   Again, the public authority is often in a better position than the court in order to identify the considerations that are relevant.   And finally, it is the public authority (and not the court) that has been given the responsibility for exercising the power. Might these considerations constitute convincing reasons to defer to the authority’s view of the relevant considerations, so long as this view was reasonable? Consider the criticisms in the chapter on ‘Ombudsman and Other Investigators’ of the intrusive review of Sedley J (on the grounds of relevant considerations) in R v Parliamentary Commissioner for Administration, ex p Balchin [1997] JPL 917 (Balchin (No 1)). Could deferring to a public authority on the questions of purposes and relevant considerations be seen as part of a general doctrine of partial deference to the judgment of the person to whom the power has been allocated?

5. Why is proportionality a general principle of the law of due process, but not a general principle of the control of discretionary powers?

• It is o.k. for judges to decide how much procedural involvement in a decision is enough for a person affected by it, and how much is too little. Is it o.k. for judges to decide in general whether the substance of a decision imposes too great a burden on a claimant, or gives a claimant too little benefit?

6. The courts have a doctrine of precedent (requiring them to abide by [some] previous decisions), and a doctrine of res judicata (giving conclusive effect to a decision once it is made and is not subject to any appeal). Is there a doctrine of precedent or a doctrine of res judicata for public authorities in general?

• No – neither one. There is no general rule that public authorities have to decide like cases alike (but see the discussion of Mandalia v Home Secretary [2015] UKSC 59 in 8.5: the Supreme Court made it clear that inconsistency will be unlawful at least where it is unfair). The doctrine of legitimate expectations requires public authorities not to disappoint certain expectations in certain ways, but there is nothing to stop a public authority from departing from an earlier policy when doing so does not raise the special problems of fairness addressed in this chapter. And public authorities may even reconsider particular decisions they have made, subject to similar requirements of fairness that may make it unlawful to change a decision that benefited someone.
• The judges do treat consistency as a virtue in administrative decision making (see 8.5), and the fact that another person has been treated more favourably in a similar case can be part of an argument that there was no rational basis for a decision.

7. Your Local Council sends you a cheque for £1000 with a letter explaining that you have paid too much council tax. You deposit the cheque (quite reasonably thinking that they must know what they are doing), and buy a case of champagne with the money. Then the Council accountants realize that because of a clerical error, they wrote the cheque and sent the letter to the wrong taxpayer. Can they demand the money back?

• Yes, ordinarily. If a bank did the same thing, it could demand repayment on ordinary principles of the law of restitution. Those same principles apply to a payment from a public authority, but there is an exception: if it would count as an abuse of power to demand the money back, the court will not order restitution. But this difference between a public authority seeking restitution and a private person seeking restitution is hard to pin down: in private relationships too, the recipient of a mistaken payment may have a defence to a claim for an order of restitution. See Rebecca Williams, 'The Beginnings of a Public Law of Unjust Enrichment?' (2005) 16 King's College Law Journal 194-208.
• It might be worth arguing that reliance on the public authority’s responsible exercise of its duties led you to take a step that makes it unfair for them to demand the money back. But if they do not delay, and if they explain their mistake, and they act throughout in good faith, it will be hard for you to convince a court that the Council’s request for repayment of the windfall is an abuse of power.
• The courts are not keen to help the government to recover payments made by mistake. In R (Child Poverty Action Group) v Work and Pensions Secretary [2010] UKSC 54, the government tried to recover social security benefits that were paid by mistake. The Social Security Administration Act 1992 s.71 provided a mechanism for repayment of benefits that a claimant obtained by misrepresentation, but did not provide for recovery of mistaken payments. The Supreme Court held that the Secretary of State could not use the common law to recover the payments, because the legislation should be interpreted to provide an exclusive code for recovery of payments.

8. The Government has a regular practice of responding to a declaration of incompatibility under the Human Rights Act by making an amending order. If a statute is declared incompatible, does a person affected by it have a legitimate expectation that the Government will do so?

• No! That practice does not make it unfair for the government to decide not to make an amending order in any new case. The Human Rights Act was deliberately designed to leave the question of whether an amending order ought to be made to the government subject to its responsibility to Parliament; the courts really would be departing from that scheme if they gave legal force to the political practice of amending legislation after a declaration of incompatibility.