delegatus non protes delegare PDF

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Administrative law is the most litigated and rapidly developing sub-branch of constitutional law. The growing importance of administrative law is reflective of the parallel growth of awareness amongst citizens about the enforcement of their rights against the state machinery. Discretionary powers exercised by administrative and legal authorities are permissive, and not binding. These powers are granted to these officials by statute or delegation. Discretionary powers do not impose an obligation on a decision-maker to exercise them in a particular manner. Administrative agencies must exercise discretionary powers in accordance to legal requirements. Discretionary powers must be used reasonably, impartially and avoiding oppression or unnecessary injury. Failure to exercise of discretion, equals to failure in making decision between the courses of action where such power to make a choice was vested upon the public authority by a statute. The authority that may impose controls on which the discretion can be exercised with a view to see that there is no failure to exercise discretion is vested by the courts. The courts developed some principles in order that the administrative authority does not abuse its powers by placing substantive limits. The public authority would be said to have failed its discretion when: 

There is an unlawful delegation of discretionary powers to other person when the statute states that such powers shall be exercised only by a particular public authority

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It makes general rules and policies applicable to all without looking into merits of a special case in which the authority ought to exercise discretion.

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It enters into a contract the terms of which disable the authority to exercise its discretion

An agent can perform any act on behalf of the principal but he cannot perform a duty imposed on the principal personally the exercise of which requires discretion or skill, or the where the principal is required by the statute to do the act personally. For an agency to be valid is that the parent should not be deprived of its authority to delegate. A. Delegatus Non Potest Delegare. A discretionary power must in general, shall be exercised by the authority to whom it has been committed. It is a well-known principle of law that when a power has been confided to a person,

he must exercise the power personally unless he has been expressly empowered to delegate it to another. This principle has been expressed in the form of a maxim delegatus non potest delegare, it is often applied to law of agency, trust and arbitration. Thus, if a person to whom authority to personally exercise discretion is vested by a statute, delegates his discretionary power to another person, it will amount to failure to exercise discretion by the public body. The maxim is applied with the utmost rigor to the proceedings of the ordinary courts. In the entire process of adjudication a judge must act personally unless he is expressly absolved by a stature from such duty. Special tribunals and public bodies exercising functions analogous to the judicial functions are precluded from delegating their powers of decision making unless there is an express authority to that effect. B. Unlawful Delegation In a local government law there may be delegation of either executive power or of power to make recommendations or decisions subject to the approval of delegating authority. In latter class of case, problems have arisen when the person to whom power is delegated makes decisions without approval of the delegating authority and the delegating authority ratifies the unauthorized act later on. The following are some of the principles elicited from the cases in which devolution of statutory discretion has been considered. Where an authority vested with discretionary powers, empowers one of its members, committees or sub-committees to exercise those powers independently without any supervisory control by the authority itself, the exercise of the powers is likely to be held invalid. The degree of control maintained by a delegating authority over the acts of the delegate or subdelegate may be a material factor in determining the validity of the delegation.

It is improper for an authority to delegate wide discretionary powers to another authority over which it is incapable of exercising direct control, unless it is expressly empowered to delegate. Thus a Minister of Works could not delegate Minister of Health part of his function in the system of building licensing. Three main differences between Agency and Delegation 1) The agent acts on behalf of his principle and his name and the acts done by the agent within the scope of his authority are attributable to the principal. 2) The agent can be given detailed directions by the principal and does not usually have a wide area of personal discretion. 3) In agency principal retains power whereas in delegation, the delegating authority may or may not retain power. A public body endowed with statutory discretionary powers is not entitled to adopt a policy or rule which allows it to dispose a case without any consideration of merits of the individual applicant. In Carrie Darling J. stated that each application must be heard on its merits. There could not be a general resolution to refuse permission at all. The policy must be based on relevant considerations and must not pursue improper purposes. The existence of a rule or a policy which is upheld by the court raises important questions. 1) The individual may wish to argue that the policy should not be applied to a particular case. They may be depending on the circumstances be a right to hearing of some type but it is unclear whether the individual would be entitled to an oral hearing. 2) If an individual in the past has enjoyed the benefit or advantage of the policy which may reasonably expected to continue, the person may be entitled to a statement of reasons for the change of position and an opportunity to be consulted thereon. The importance of discretion:

1) Discretion is a vital tool in society for the individualization of justice, and no society has existed in which discretion has been absent. Davis suggests two principal ways in which unnecessary discretion can be curtailed. 1) To eliminate unnecessary discretionary power or to confine it within necessary bounds by encouraging administrators to make standards and rules which will clarify the vague legislative criteria. 2) To ensure that it is structured (open plans, open policy, statements and rules, open findings, open reasons, open precedents and fair procedure.) The overall aim is not to eliminate discretion but it is to find optimum degree of structuring in respect of each discretionary power. Jowell lays down merits and demerits of discretion which include classification of organizational aims. A public authority cannot effectively bind itself not to exercise discretion if by doing so it would in turn, disable itself from fulfilling the primary purpose for which it was created. A public authority also cannot effectively disable itself from making or enforcing a bye-law, refusing or revoking a grant of planning permission or exercising any other statutory power of primary importance. A body endowed with statutory powers and duties exercisable for public purposes in relation to land cannot disable itself from fulfilling those purposes by dedicating or granting the land or interests therein in a manner or for a purpose incompatible for the fulfillment of the primary purposes. Contracts and covenants entered into by crown are not to be construed as being subject to implied terms and conditions that would exclude the exercise of discretionary powers for the general public good but to be construed as incorporating an implied term that such powers would be exercisable. The terms of the contract may fetter the exercise of general discretionary powers, the other party to the agreement has no right whatsoever to the damages and compensation under the general

law. Partial or total failure to exercise discretion may also occur when the public authority has failed to appreciate the amplitude of its authority to exercise discretion. An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person without being influenced by the will of the superior authority. There has to be an optimum balance between rules and discretion so there is no misuse of discretionary powers by the executive....