JURD7160 Chap.9 Fettering Discretion
Fettering Discretion
Fettering occurs when the authorised decision-maker does not genuinely exercise the statutory choice. The main forms studied are acting under dictation and applying policy without regard to individual merits.
What this chapter covers
- 01
The repository of discretion
- 02
Advice and lawful coordination
- 03
Acting under dictation
- 04
Policy and consistent administration
- 05
Inflexible application and exceptional cases
Analyse a no-waiver instruction
- 1Identify who the Act entrusts with the waiver choice.
- 1Test whether headquarters guided or dictated the outcome.
- 2Ask whether the manager remained open to individual hardship under the policy.
Key terms
- Acting under dictation
- Acting under dictation occurs when another person's direction replaces the judgment of the statutory decision-maker.
- Inflexible policy
- Inflexible policy is treatment of guidance as an absolute rule that excludes genuine attention to individual merits.
Fettering Discretion FAQ
Can a superior lawfully give strong advice?
Yes, depending on the statutory scheme, provided the authorised officer evaluates the advice and retains responsibility for the choice. The decisive question is whether influence informed independent judgment or supplied a result the officer treated as compulsory.
What facts show acting under dictation?
Look for instructions that fix the result, reasons saying another person left no choice, or evidence that the authorised officer did not evaluate the case. Hierarchical pressure alone is not enough. The analysis should identify who performed the operative mental act and how the statute allocates responsibility.
Can an officer give policy substantial weight?
Yes, if the policy is lawful and the officer retains genuine willingness to consider the individual case. Strong weight is different from automatic application. Reasons that engage with exceptional facts and explain why departure is unwarranted can demonstrate that discretion remained open.
How are dictation and inflexible policy different?
Dictation concerns another person replacing the authorised decision-maker's judgment. Inflexible policy concerns a general rule replacing attention to individual merits. They can arise from the same administrative setting, but each requires its own evidence and causal explanation.
Why does consistent administration matter?
Consistency promotes equal treatment, predictability and efficient administration. Policy can legitimately serve those goals. Administrative law preserves those benefits while requiring the official to remain within the statute and, where the power is discretionary, genuinely evaluate circumstances that may justify a different outcome.
Can an administrator use a policy?
Yes. Policy can promote consistency and transparency. The decision-maker must still act within the statute and ordinarily remain willing to consider whether the particular case justifies departure.
Exam move
Start by identifying the statutory repository of discretion. Write the name of the authorised office above the facts, then trace every instruction, recommendation, policy and reason that contributed to the result. The central question is who genuinely chose. Formal execution by the authorised officer is relevant, but it does not settle whether another person supplied the outcome or whether independent judgment was exercised.
Use two columns for dictation and policy. Under dictation, collect evidence that a superior, minister, committee or adviser directed the result. Under policy, collect evidence that a general rule was treated as binding despite statutory flexibility. Some facts may appear in both columns, but the causal question differs. One ground can fail while the other remains strong. Practise with lawful advice.
Give an officer a technical recommendation, require the officer to read the file, and show a reasoned departure on one issue. Explain why consultation supports rather than replaces decision-making. Then alter the facts so the officer signs without review or says that headquarters left no choice. Comparing the versions helps locate the point at which coordination becomes surrender of responsibility.
For policy scenarios, examine wording and conduct together. Terms such as normally, ordinarily and absent exceptional circumstances may preserve flexibility, while never and no exceptions may suggest rigidity. Yet wording is not conclusive. Reasons that engage with an exception can show genuine openness; nominally flexible language can mask an automatic practice.
Link the applicant's distinctive facts to the statutory criterion the policy should not displace. Close with the administrative value of consistency and the legal need for individual judgment. A good answer does not attack policy as such. It explains how lawful guidance can promote equal treatment while the decision-maker remains responsible for the choice Parliament entrusted.
State the evidence of dictation or rigidity, address the strongest indication of independent thought, and conclude separately on each ground.
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