Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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Law and change: Scottish legal heroes

3.2 Discretion

When delegating powers, the legislation may confer discretionary powers. The decision-maker must keep an open mind and consider each case on its own merits; otherwise there is a failure to exercise discretion properly. Discretion cannot:

  • be surrendered (or overridden by policy or procedure)
  • be limited.

Where legislation confers a discretionary power on government ministers or another public authority to issue something such as a licence, they will potentially have to deal with hundreds or thousands of cases. The legislation may spell out the criteria for the grant of the licence in general terms, but the decision-making authority may still be left with wide discretion. To ensure consistency and promote administrative efficiency, the decision-making authority often develops a standard way of dealing with cases; they will try to apply the same criteria, attaching the same weight in each case. In effect they develop a ‘policy’ for dealing with cases.

However, and this is an important point, where legislation confers a discretion on an individual, such as a government minister, that discretion must not be surrendered to another person, to a set of rules or to a ‘policy’.

A minister or public authority must also act within their powers. They must not close off (or ‘fetter’) the exercise of their discretion. They may, however, exercise their discretion in accordance with a ‘policy’, provided the policy is operated consistently but not too rigidly.

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