Quasi Judicial Decisions, Democratic Accountability and Fettered Discretion
Another interesting question is that of the inter-relationship between democratic accountability and the rule of law.
For some time there has been a campaign to refer the matter of BSkyB to the competition authorities.
Many politicians have taken a view on this. This means that they have pre-judged the decision. Given the debate about the question as to what extent politicians are bound by their statements before elections it raises a question as to whether they are then legally prevented from taking decisions about issues that they have a stated position on prior to an election.
This has happened a lot with the planning committee. Planning decisions are of considerable importance to people. Sometimes people get elected to the planning committee having campaigned on an issue. Then they are prevented from voting the way they have campaigned because they are deemed to have fettered their discretion.
The government have recognised that this is wrong and are changing the law so that planning can be more democratically accountable.
This raises the same question as the BSkyB question. People and organisations should be subject to the rule of law where who someone is should not affect how they are treated.
Rupert Murdoch's particular difficulty also arises from the fact that he participates substantially in party politics.
So we now have two contradictory requirements. One for the rule of law and the other for democratic accountability. The question is one as to what extent judicial review could quash a decision taken by a politician who has a stated view on the issue.
My feeling is that for such quasi-judicial decisions that the issue of a fettered discretion should not be a ground for certiori and that only the Wednesbury reasonableness test should apply as well as the usual vires questions.