Richard III, “unfettered discretion” and the foundations of judicial review

The case concerning the reinterring of the recently-discovered remains of Richard III has already attracted comment, including an excellent piece by Tom Hickman on the UK Constitutional Law Blog. I wish to make only some brief observations about paragraphs 20-21 of Haddon-Cave J’s permission decision:

Section 25 of the Burial Act 1857 confers an unfettered discretion on the Secretary of State to decide to decide whether to grant a licence on what terms; and, in the absence of special circumstances, it is inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters as being somehow implicitly limited or fettered (per Lord Neuberger MR in R (Rudewicz) v. Secretary of State for Justice [2013] QB 410 at paragraph [30]).

The Secretary of State, however, has a duty when granting such licences to act rationally and in accordance with the general law. A duty arises at common law to consult before making decision law where there is a promise to do so, or a legitimate expectation that there will be consultation.

It is very surprising to see Haddon-Cave J in this case – and Lord Neuberger in the case cited above – conceding to a government Minister (or to any other holder of public power) an “unfettered discretion”. Public law orthodoxy is – and, these ill-considered comments notwithstanding, doubtless remains – that there is no such thing as an unfettered discretion. Indeed, this point is – paradoxically – affirmed by Haddon-Cave J’s assertion that, the so-called “unfettered” nature of the power notwithstanding, the Secretary of State is obliged to “act rationally and in accordance with the general law”.

This begs a question, however, about the source of those obligations. If Parliament has conferred upon the Secretary of State a truly unfettered discretion, can the courts legitimately impose obligations to act rationally and to consult? This, of course, is the question over which parties to the ultra vires debate differ so sharply. But Haddon-Cave J’s (admittedly brief) comments expose the difficulty faced by those seeking to advance an explanation of the courts’ judicial-review jurisdiction that does not rely, at some level, on ultra vires reasoning. If the power conferred by Parliament is truly unfettered, then the executive is authorised by Parliament to do with that power whatever it wishes, and it would be unconstitutional for the courts – whether by invoking a common law duty to consult or otherwise – to interfere. Authority which Parliament gives cannot (if Parliament is truly sovereign) be taken away by the courts or the common law.

This point should not be mistaken for one that is relevant only to administrative law anoraks. It is precisely this sort of reasoning that secures the voidness of unlawful administrative action (as affirmed by the Supreme Court in Ahmad v HM Treasury (No 2) [2010] UKSC 5) and equips the courts to adopt an appropriately robust approach to measures which may appear diminish or oust the supervisory jurisdiction of the High Court. And the resulting relationship between the courts and the administration is based in large part upon the former’s capacity to subject to constitutionally-inspired interpretation the legislation which forms the principal source of the latter’s authority. The courts should therefore be slow to concede that such legislation is amenable to a form of construction that results in the executive branch acquiring power that is either unfettered in general terms or unconstrained by specific constitutional norms. It was precisely that sort of error into which the Supreme Court fell in Bank Mellat v HM Treasury (No 1) [2013] UKSC 38 when, by a majority, it accepted that the constitutional principle of open justice had been displaced by mere implication. Under our unwritten constitution, the bedrock upon which the courts’ powers of judicial review are based is surprisingly fragile. It is therefore disappointing to see judges – whether in a permission decision like the Richard III case or a Supreme Court ruling like Bank Mellat (No 1) – carelessly relinquishing or diluting the limited tools which they have at their disposal to ensure that the executive branch is subject to appropriate rule-of-law based constraint.

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