Fettering of discretion by a public authority is one of the grounds of judicial review in Singapore administrative law. It is regarded as a form of illegality. An applicant may challenge a decision by an authority on the basis that it has either rigidly adhered to a policy it has formulated, or has wrongfully delegated the exercise of its statutory powers to another body. If the High Court finds that a decision-maker has fettered its discretion, it may hold the decision to be ultra vires – beyond the decision-maker's powers – and grant the applicant a suitable remedy such as a quashing order to invalidate the decision.
It is not wrong for a public authority to develop policies to guide its decision-making. Neither will it necessarily be considered to have fettered its discretion by adhering to such policies, as long as it approaches decisions with an open mind and is willing to give genuine consideration to each case at hand. It has been noted that by endorsing its application in this manner, the High Court has given legal effect to informal rules or policies, which therefore amount to "soft law".
Where a statute gives a decision-maker a discretionary power, it is generally unlawful for the decision-maker to delegate that power to another person or body unless the statute itself expressly provides that this may be done. Thus, it is illegal for a decision-maker to abdicate its responsibility of exercising power by taking orders from other bodies. The Carltona doctrine of English administrative law (which Singapore inherited at independence) allows a civil servant to take a decision on behalf of a minister, even where the statute confers discretion on the minister. The Interpretation Act of Singapore provides that the exercise of a minister's power may be done under the signature of the permanent secretary to the ministry which the minister is responsible for, or by any public officer authorized in writing by the minister. In addition, ministers are permitted to depute other persons to exercise certain powers or perform certain duties on their behalf.
Introduction In the context of Westminster systems of government, all legal power conferred on the executive by legislation is "inevitably discretionary to a greater or lesser extent".. When exercising judicial review of such discretionary powers, the courts are concerned with whether they have been exercised in a lawful manner in accordance with Parliament's presumed intentions in conferring such powers..
Over time, the courts have developed various grounds upon which discretionary powers may be reviewed, holding that Parliament must be assumed not to have intended for decision-makers to exercise powers in such improper ways. The wrongful exercise of discretion may refer to "not exercising it at all or being subject to external influences in its exercise, as well as abusing conferred discretion"..
When a public authority fetters its discretion, it can either be said to have failed to exercise its discretionary power or to have been subject to external influences. In the Singapore High Court decision Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board (1997),Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 56, High Court (Singapore). two distinct forms of fettering of discretion were recognized: fettering of discretion through rigid adherence to a policy, and fettering of discretion by an unlawful delegation of authority.Lines International, p. 86, paras. 97–98. These two forms of fettering of discretion have been said to represent two elements defining the concept of discretion in administrative law – the first form relates to freedom of choice, and second form the notion of one's personal discretion..
It has been observed that in Singapore administrative law, "extensive reference is made to the landmark English cases",. Specific reference was made to Lines International in which the High Court, in its formulation of a set of conditions regulating an authority's exercise of administrative decision, drew on the principles of fettering of discretion from a number of English administrative cases. and in particular English administrative law has largely influenced the adoption of the doctrine of fettering of discretion in Singapore. One exception is that although a contractual fetter on discretion has been established in English law to be a separate ground of review, this has yet to be recognized by the Singapore courts. In Birkdale District Electricity Supply Co. v. Southport Corporation (1926),Birkdale District Electricity Supply Co. v. Southport Corporation A.C. 355, House of Lords (UK). the House of Lords held that if legislation entrusts a public authority with certain powers and duties to be exercised for public purposes, it is illegal for the authority to enter into a contract that prevents itself from exercising its powers.Birkdale District Electricity Supply Co., p. 364.
Fettering discretion by rigid adherence to a policy Public authorities given discretion under statute to make certain decisions often adopt non-statutory policies to guide them in their exercise of such discretionary powers.. In Lines International, Justice Judith Prakash noted that were it the case that statutory bodies could not formulate policies or guidelines except through duly promulgated regulations, "then everything would come to a grinding halt while policy decisions had to be communicated to the Attorney-General's Chambers, then drafted into regulations and then the drafts approved by the organisation concerned before being sent on to Parliament and effected by gazette notification. That is not the way the executive arm of any common law country functions."Lines International, p. 77, para. 73.
The principle of not fettering one's discretion "directs attention to the attitude of the decision-maker, preventing him from rigidly excluding the possibility of any exception to that rule or policy in a deserving case"."Procedural Fairness: Fettering of Discretion", De Smith's Judicial Review, pp. 479–498 at 480, para. 9-004. A decision-maker must not "shut his ears" to exceptional cases because of such a policy.Leyland & Anthony, p. 259.
The ground of fettering discretion on this basis is distinct from the right to a fair hearing. The latter relates to a separate ground of judicial review, namely, procedural impropriety, and particularly the audi alteram partem ("hear the other side") principle.De Smith's Judicial Review, p. 480, para. 9-004.
English position The English courts have held that there is nothing wrong with a public authority adopting a policy to base its decisions on as long as the authority does not refuse to listen at all to anyone who has something new to say. Both the English and Singapore positions are similar in that they both regard consideration of exceptional cases as the benchmark for whether discretion has been fettered. In R. v. Port of London Authority, ex parte Kynoch, Ltd. (1918),R. v. Port of London Authority, ex parte Kynoch, Ltd. 1 K.B. 176, Court of Appeal (England and Wales). the Court of Appeal of England and Wales held that:Ex parte Kynoch, p. 184.
The House of Lords agreed with ex parte Kynoch in British Oxygen Co. Ltd. v Minister of Technology (1970).. The court held that there was nothing to stop the Minister from requiring the operation of some limiting rule if that is what policy or good administration requires. It also reiterated that for discretion to be unfettered, consideration must be given to exceptional cases. "What the authority must not do is to refuse to listen at all. There can be no objection to [the formulation of the rule], provided the authority is always willing to listen to anyone with something new to say."British Oxygen, pp. 624–625.
This position was further buttressed in Re Findlay (1984),Re Findlay A.C. 318, H.L. (UK). where four prisoners contended that the Home Secretary's new policy of refusing parole in all but exceptional cases was a fetter upon his discretion. The House of Lords rejected the argument that the relevant statutory provisions required "individual consideration of individual cases in every instance, free of presumptions or policies", and held that it would be difficult to understand how a Secretary of State could properly manage the complexities of his statutory duty without a policy.Findlay, pp. 334–335.
Singapore position
Lines International conditions
In Lines International, the plaintiff, a cruise operator, challenged the adoption by the Singapore Tourist Promotion Board ("STPB") and the Port of Singapore Authority ("PSA") of a general policy in the form of non-statutory guidelines regulating cruises-to-nowhere ("CNWs"), which were mainly operated for gambling purposes. The guidelines had been read out to cruise operators at a meeting. One condition was that berths might not be allocated for CNWs if operators scheduled more than 30% of their cruises as CNWs over a three-month period. The plaintiff argued that the PSA's power to control the use of its berths had to be exercised through subsidiary legislation. The High Court held that the PSA had discretion in deciding which vessels could use which berths, and went on to consider whether the PSA had fettered its discretion in enforcing the guidelines. Justice Prakash laid out a set of conditions by which the adoption of a policy by an authority exercising discretionary power would be valid. The conditions were that such a general policy will be valid if:Lines International, p. 79, para. 78.
the policy is not Wednesbury unreasonable in the sense used in Associated Provincial Picture Houses v. Wednesbury Corporation (1947),. that is, it is not "a decision that is so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it or that no reasonable person could have come to such a view";Lines International, p. 79, para. 78, citing . in considering what constitutes "reasonableness", the courts are not to substitute their views of how the discretion should be exercised, and the plaintiff bears the burden of proving that the policy or guideline is illegal or ultra vires; the guidelines must be made known to the persons affected; and the authority must not fetter its "discretion in the future and is prepared to hear out individual cases or is prepared to deal with exceptional cases". In the formulation of this condition, the judge referred to the English cases of British Oxygen (1970) and Re Findlay (1984), and accepted that a decision-maker cannot fetter its discretion by rigid adherence to a policy.
On the facts of Lines International, the judge held that the policy satisfied all four conditions and that the adoption of the guidelines was valid. On the fourth consideration relating to fettering of discretion, the judge found that the PSA and STPB had not rigidly enforced the guidelines as they had made it clear at the meeting attended by the plaintiff that they would consider representations from cruise operators, and, in fact, a number of such concessions were made. Hence, the guidelines had been flexibly applied and the PSA had not fettered its discretion by rigidly adhering to a policy.Lines International, p. 86, para. 97. The Lines International conditions were approved by the Court of Appeal in JD Ltd. v. Comptroller of Income Tax (2005)..