R v Environment Secretary, ex p. Brent LBC [1982] QB 593

Key point
  • A public authority that has to exercise a statutory discretion can lay down a formula approach but must not ‘shut his ears to an application’ that challenges the approach
Facts
  • The Secretary of State launched a new policy of reduced grants to local authorities under the Rate Support Grant Order 1980 (As per the Local Government, Planning and Land Act 1980 s.49 and s.50(2))
  • The local authorities’ association asked to meet the Secretary of State to discuss the matter before the order would come into full force
  • He replied that he did not believe the meeting would have any practical effect and let the order come into effect, then exercising his discretion under s.48 to s.50 to reduce the amount of grant payable to six authorities
  • The affected authorities applied for an order to quash the decision
Held (Court of Appeal)
  • The Secretary of State’s decision was quashed as he had acted without hearing the representations of the affected authorities
Ackner LJ

Fettering of discretion

  • The Order itself was valid, as it complied with s.49(4) and s.50(2) of the Parliamentary Act and was not unreasonable or capricious: p. 636
  • ‘The Secretary of State was… fully entitled to adopt a formula approach’, i.e. pay no regard to the individual circumstances of the applicants: p.639
  • However, ‘’The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application…What the authority must not do is to refuse to listen at all’.’: p. 642 (Lord Ackner quotes Lord Reid at p.625 of British Oxygen Co. Ltd. v. Board of Trade[1971] A.C. 610)
  • “The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.”: p. 643 (Another Reid quote, from Ridge v. Baldwin[1964] A.C. 40 , 80)
  • ‘His [The Secretary of State’s] mind must be kept “ajar.”’: p. 643
  • ‘ the Secretary of State was obliged to be ready to listen to any objector who showed that he might have something new to say; putting it negatively, he was obliged not to declare his unwillingness to listen or to be unwilling, in advance of any representations. We accept that to be entitled to be heard it was for the objector to show that he had, or might have, something new to say. If the Secretary of State then refused to listen or indicated in advance that he would not listen to any representations of whatever kind, he would be in the wrong. He would be unlawfully fettering his discretion.’: p.644 ff.
  •  ‘The Secretary of State, although he had… a discretion as to whether or not to implement his power… clearly decided to turn a deaf ear to any and all representations to change the policy formulated by him’: p.644

Significance of the possibility of difference in outcome

  • In the course of the trial, the defendant put forward the argument that it would be pointless to quash the order, as the Secretary of State would simply decide the same thing as before after hearing the claimants’ representations: p. 645
  • While the court conceded that it would ‘be unrealistic not to accept that… if the representations had been listened to by the Secretary of State, he would nevertheless have adhered to his policy’, the mere chance that he may change his mind makes the quashing more than ‘a useless formality’: p.646
  • ‘It will of course be open to the Secretary of State after considering the applicants’ representations, now fully documented, to reach any decision he considers light’: p.647
  • ‘If our decision is inconvenient, it cannot be helped. Convenience and justice are often not on speaking terms’: p.646
Scroll to top