Itself and not merely an instrument of effective decision making.

Another important statutory procedural requirement is the rule

against delegation. An official (or indeed anyone) who is entrusted with

power to make a decision should not in principle transfer that power to

someone else (delegatus non potest delegare). Applying this principle

strictly would cause administrative gridlock and many exceptions have

been made. Its only strict application is to judicial tribunals who adju-

dicate upon disputes in accordance with legal rules (Barnard v. National

Dock Labour Board (1953)). Exceptions to the principle are as follows:

. The Carltona doctrine that a minister can act through a civil servant

in his department (above, p. 332). This can be rationalised as not a

true exception in that constitutionally the minister and civil servant

are one (see R. (Alconbury) v. Secretary of State (2001)).

. Many local authority functions can be delegated by statute to

committees, sub-committees, officers and other authorities but not

to individual councillors or to outside bodies unless authorised by

statute (see Local Government Act 1972 s. 101; R. v. Port Talbot BC

ex parte Jones (1988)).

388 General Principles of Constitutional and Administrative Law

. Many governmental functions can be transferred to private bodies

(Deregulation and Contracting Out Act 1994 ss. 61, 69).

. Functions involving little discretion can be delegated, and the courts

seem ready to imply statutory authority to delegate in cases where

it would be inconvenient for the decision maker to do everything

himself (Provident Mutual Life v. Derby Corporation (1981); Nelms

v. Roe (1969)).

. Fact finding, making recommendations and giving advice can be

delegated, but the decision maker must not merely ‘rubber stamp’

the advice he is given. He must have enough information before

him, e.g. a summary of evidence, to make a genuine decision (Jeffs

v. New Zealand Dairy Board (1967)).

16.6.2 The right to a fair hearing

This ground of review is of ancient common law origin and is central

to the idea of the rule of law. Until the First World War the courts

applied a broad principle, traceable to the seventeenth century and

usually labelled ‘natural justice’, namely that anyone whose rights were

affected by an official decision was entitled to a fair hearing before an

unbiased judge (e.g. Dr Bonham’s Case (1610), Cooper v. Wandsworth

Board of Works (1863)). However, the contraction of judicial review

that took place between the 1920s and the mid-1960s saw natural

justice being withdrawn from government decisions other than those

which the courts labelled ‘judicial’. For this purpose ‘judicial’ means

the impartial application of rules to settle a dispute about the parties’

existing rights narrowly defined; essentially what a court does.

Thus the courts were taking a crude separation of powers approach

In order to define the limits of judicial review. This excluded natural

justice from political, discretionary and policy orientated areas of gov-

ernment activity which the court labelled ‘administrative’. It excluded

much of the welfare state since the conferring of benefits such as

education and housing do not strictly affect existing rights. It also

excluded government powers such as planning, compulsory purchase

and other forms of licensing which although they affect rights are

usually discretionary. The main area left for natural justice was where

a formal tribunal or inquiry determined a specific dispute but even this

caused problems in the case of public inquiries held as part of a larger

discretionary process leading to a political decision, for example to

build a new road (see e.g. Franklin v. Minister of Town and Country

Planning (1948).

389

Judicial Review of the Executive: The Grounds of Review

However, in Ridge v. Baldwin (1964) the House of Lords reviewed

the history of natural justice and returned the law to its older

rationale. The Chief Constable of Brighton had been dismissed by the

local police authority without a hearing. The authority had statutory

power to deprive him of his position for incapacity or misconduct but

not otherwise. The House of Lords held that he was entitled to a

hearing for two reasons: (i) he had been deprived of a public office (not

just an ordinary job); and (ii) the power to dismiss was limited by

statute so that the authority did not have a complete discretion. Lord

Reid emphasised that a government decision which causes serious

harm to an individual ought in principle to attract the right to be

heard. Ridge is generally taken as freeing natural justice from its

dependence on judicial functions although as we shall see the concept

of judicial remains relevant.

Since Ridge v. Baldwin the courts have extended the right to be heard