Presumption that Delegated legislation would be used rationally
Misuse of power covers a wide variety of cases, and I am relieved from considering at length what amounts to misuse of power in bona fide because I agree with the analysis made by Lord Greene, M.R. in Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 KB 223. There the local authority had power to grant licences for cinema performances subject to such conditions as the authority think fit to impose . They allowed Sunday performances subject to the condition that no child should be admitted and were held entitled to do this. I quote what seem to me the leading passages in Lord Greene's judgment. He said (p. 228):
" The exercise of such a discretion must be a real exercise of the discretion. If. in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters ... (p. 229) a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ' unreasonably' . . . (p. 230) it is true to say that, if a decision in a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That. I think, is quite right; but to prove a case of that kind would require some- thing overwhelming ... (p. 233) The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. None of those cases need involve mala fides.”. A local authority may have had regard to quite irrelevant considerations or may have acted quite unreasonably but yet be entirely innocent of dishonesty or malice.[per Lord REID]
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