In the context of the use of statutory discretionary power, the courts have produced contradictory judgments, in choosing the scope in which the public organization is to be given the authority to accord to its guidelines or rule. The leading line of authority consents to the organization applying its policy as long as the claimant is provided with the chance to contest his submission. The case of British Oxygen case clarifies that the authority and policy is required to be lawful, as specified by the statutory framework within which discretion is employed. It is also required to be founded by appropriate considerations and should not follow improper purposes. Such controls are considered to be compulsory or else a public body may possibly escape the standard restrictions upon the exercise of discretion by framing common rules. Therefore in Venables, the court decided that the governing statute made it compulsory for the home secretary to have respect for and consider the interests of a child offender when making a judgment. It was for that reason, unlawful for the Home Secretary to adopt a rule which did not consider this. In addition, numerous cases have suggested that it is completely beneficial for public authorities to implement policies as this promotes ‘consistency, fairness, and certainty in routine decision-making.’ Auld L.J. further states that ‘it might well be irrational not to have one’. However, since his statement was made in a case where there was a policy, it is still unclear whether it would be decided by the courts that an organization was acting improperly and unlawfully as in Wednesbury in which the public body failed to adopt a policy. Paul Craig's outlook is that the ‘optimum balance between rules and discretion will vary from area to area,' as well, he concludes that the 'judiciary are not in a good position to assess whether the complex arguments for and against rule-making should lead to an increase in the prevalence of such rules within a particular area'.
In the context of human rights and discretion, the judgment by the Court of Appeal in P and Q provides a clear examination of the effect of Convention rights on inflexible policies. The case discussed whether in applying the strict 18 months policy, the intrusion with the mothers' and babies' right to a family life as guaranteed by Article 8 of the Convention, was proportionate to the lawful objectives which the policy attempted to pursue. The verdict of the Court of Appeal maintained that an inflexible policy was disproportionate and contradictory in the theory as it was unsuccessful in providing the individual consideration necessary to fulfil its own key aim, which was protecting the wellbeing and welfare of the child. The judgment of the House of Lords in Daly as well concerned a human rights based challenge to a rigid policy. The policy required prison officers to inspect a prisoner’s legal correspondence without the presence of the prisoner. It was held by the court that such a blanket policy is unlawful as it results in a disproportionate interference with the prisoners’ rights. It was further concluded that in English law, a public organisation entrusted with statutory discretionary powers is constrained from implementing a policy or a rule which allows it to reject a case without considering the merits of the individual claimant.
Following on, Feldman in Discretions, choices and values proposes an interesting argument. He discusses formal constraints which arise as a result of the official purposes of the organisation. Feldman argues that these may lead to the restriction of the scope or seeking justice for the individual claimant (a well-known rationalization for discretion), as individualised justice may possibly result in the development of injustice between claimants. An example put forward by is that, managers make employees aware of the goals through training and monitoring. Nevertheless, there may be “goal ambiguity’. This goal ambiguity is therefore a factor which weakens controls over discretion, as individuals are fairly freer to decide between the different official objectives.
Chris Hilson in Judicial review, policies and the fettering of discretion, lists the
advantages of a completely rule-based decision-making; it guarantees fairness and consistency, applying a rule in customary cases promotes an efficient administration, as
decision-makers will generally be capable of disposing like cases with the same rule more quickly. Hilson further argues that rules allows legal certainty as individuals are be able to see clearly if their case is included in the relevant rule so that the submission of fruitless applications is limited. Similarly, Teubner argue that rules are the most efficient method in which to effectively organise complex societies and carry out the different functions connected with the state. Rule making is depended upon by various systems of regulation and risk regulation. Complex mass systems of service delivery in welfare similarly rely on rule making, especially in cases of social service, tax collection and immigration control. Administration converts to a sequence of jurisdiction in which policies defined as rules shift up to the law maker and downwards to rule interpretation and rule application by the administration. Consequently, rule making is considered a bureaucratic phenomenon. a Weberian explanation of bureaucracy as intrinsically hierarchical is for that reason assumed; senior managers devise a practice and guidelines or record procedures as rules for the ‘line bureaucracy’ to put into operation. Likewise, whilst rule application, intention and routine is assigned to subordinates, the principle of ministerial responsibility requires that ministers and officials formulate policy assessments and decisions. This is the ‘Carltona model’ of public administration. As an extensively acknowledged stereotype, it has made an influential contribution to the way in which society perceives rules.
The establishment of ICT and development of e-governance has developed the function of service delivery agencies. As acknowledged by Davis, in previous years, before the introduction of computers, public service workers whilst working with individual citizens, were capable of exercising substantial discretion in the distribution of benefits, solving of problems and at times in imposing sanctions. However, in the modern office ‘window clerks are being replaced by web sites’ and ‘nearly all decisions are pre- programmed by algorithms and digital decision trees.’ Thus the process of decision making has evidently ‘routinised’ as discretion by street level bureaucrats is slowly fading. The NPM methodology is also very much reliant on rules. Through rules street level burecrautes can be guided, supervised and monitored; their work can therefore, be reviewed and evaluated as explained by Power. Rules are therefore likely to remain an essential tool in the mode of public administration.
Recent developments in the organisational arrangement of government have accelerated the approach of administration through rules. ‘Pseudo contracts’ whose conditions are merely a privatised form of rule, have carried out the ‘downloading of administration to executive agencies’. Since tasks have been transferred to agencies and delegated to local government or scrutinized, examined and controlled by a regulator. Likewise, the ‘joined up government’ schemes and formation of ‘hyper- ministries’ and ‘super-agencies’ rely on the capability of various organisations to communicate with all the other departments. in order to communicate effectively, they communicate with rules.
The EU, with not much responsibility of direct administration or service delivery tasks; which is mainly applied by national or provincial governments, is a system committed to regulation and clasped as one by rules. The chief executive body of the EU, the European Commission, is often regarded as a ‘super regulator’. The most significant function of the European Commission is rule making, and the harmonization and regularization of rules. The rules are essential as they maintain the system of government. The locating of EU agencies, with significant liaison functions, together with state administrations, third states and agencies shows that rules in such a framework are essentially required; especially since the EU agencies only possess power which is consultative and interpretive. However, recently, governance in the EU has evolved and it now appears to rely on a layout of ‘soft governance’, and the ‘Open Method of Co-ordination’ as the formal EU legislation fashioned by ‘the Community method’ is replaced with informal devices such as guidelines and the code of practice previously decided on by the Commission and representatives of national administrations.
The final persuasive reason for the use of rule-based decision-making in modern society leads us to the post-Human Rights era. In 1997, the arrival of the Labour Party to government, produced greater dedication in constructing a society founded on equality and inclusiveness, as further demonstrated by the phrasing of the Equality Act 2006. Through the determination of prioritising principles relating to equality, the significance of rules has been highlighted. This is due to the common belief that rules maintain fairness, equal opportunity and consistency; inversely, administrative discretion promotes unpredictability and unfairness. it could also be argued that rule-based decision-making contributes in some way to equality by widening the opportunity of involvement in the policy making procedure by the general public. However, the reality that rules do in fact function in an ‘all or nothing fashion’ as remarked by Dworkin, produces a serious contradiction with the theory of ‘individuation’ which is preferred by the courts. It would therefore appear that rules preserve consistency whilst promoting unfairness. West concludes that when reviewing the qualities, by which rule-based decision- making is valued, the majority of its aims ‘conflict with most of the others.’
Conclusion
It has become clear through the research on this topic that rules are not merely the antithesis of discretion, and rules cannot replace discretion. Generally rules embody discretion as rules are rarely formulated with enough exactitude to eradicate discretion. The exercise of discretion is therefore inevitable as discretion is logically necessary when enforcing rules. Discretions are inherent in the structure of rules; the option to formulate rules, ‘policy discretion’, may, for instance, be transferred throughout the entire system: ‘from lower levels officials to higher ones, or onto judges, or onto Parliament, or whatever,’ as it cannot be completely eradicated. ‘Judgement discretion’, exercised each time rules are interpreted is similarly difficult to eliminate, as remarked by Cohen, ‘judges are not slot machines’. Furthermore, even when the court applies precise and unambiguous rules, they have at their disposal doctrines, such as the principle of human rights to alter the rules. Also as implied by Goodin every unacceptable feature of discretion such as inaccessibility, inequality, arbitrariness and uncertainty, are all achievable in a rule-based decision-making system. With the final words of Baldwin, ‘Rules may commence life as short, clear statements but they tend to become less accessible and more fudged as powerful interests are accommodated and political flak is side-stepped.’
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Bibliography
K.C. Davis, Discretionary justice: A preliminary inquiry, Louisiana State University Press, Baton Rouge (1969) Chs 1-2.
J. Jowell, Law and Bureaucracy, Administrative Discretion and the limits of Legal Action (Dunellen, 1975), Ch.1.
Hilson, C (1997) Liability of Member States in Damages: The Place of Discretion. International & Comparative Law Quarterly
R v LCC, exp Corrie (1918),
Boyle v Wilson (1907)
British Oxygen Co Ltd v Board of Trade (1971) A.C. 610.
R v Secretary of State for the Home Department Ex p. Venables (1998)
R v North West Lancashire Health Authority, ex parte A,D and G [2000]
R v Secretary of State for the Home Department, Ex p Anderson [1984]
R v Secretary of State for the Home Department, ex parte Daly (2001) 2 AC 532
D. Feldman, 'Discretions, choices and values' [1994] PL
Griffith, G (1994) Sentencing guidelines and judicial discretion: a review of the current debate . Parliamentary Library. 5 ( 15) 375
Hilson, C Judicial Review, Policies and the Fettering of Discretion’ [2002] Public Law
Harlow, C & Rawlings, R (2009) Law and Administration . 2nd ed: Cambridge.
E. Page, ‘The civil servants as legislator: Law making in British administration’ (2003) 81 Pub. Admin
M. Bovens and S. Zouridis, ‘From street level to system level bureaucracies’ (2002) 62 Pub. Admin. Rev.
C. Hood ‘Bureaucratic regulation and new public management in the United Kingdom: Mirror- image developments?’ (1996) 23 LJ
Harlow, C & Rawlings, R (2009) Law and Administration . 2nd ed: Cambridge.
G. Majone, ‘The rise of the regulatory state in Europe’ (1994) 17 W. European Politics 77.
J. Scott and D. Trubek, ‘Mind the gap: Law and new approaches to governance in the European Union’ (2002) 8 ELJ 1
Lord Hewart, The New Despotism (Ernest Benn, 1929), Ch. 4
West, ‘Administrative rule-making’
R. Goodin, ‘Welfare, rights and discretion’ (1986) 6 OJLS 232
Baldwin, R (1990 ) Why Rules Don't Work. The Modern Law Review. 53 (3)
G.R. Baldwin ‘Why rules don’t work’ (1990) 53 Modern Law Review 321
G.R. Baldwin and K. Hawkins ‘Discretionary justice: Davis reconsidered’ (1984) Public Law 570
D. Feldman ‘The Human Rights Act and Constitutional Principles’ (1999) Legal Studies 165
M. Freedland ‘The rule against delegation and the Carltona principle in an agency context’ (1996) Public Law 19
