The concept of discretion has been much debated since the 1960's; discretion has been portrayed as a concept opposing rule-governed activity, suggesting the exercise of discretion as objectionable and urgently requiring the control of discretion by the promulgation of rules. The argument K. C Davis in 'Discretionary Justice: a preliminary inquiry' argues for the importance of discretionary action as a significant tool in society as it promotes the individualisation of justice.
He especially highlights that no society has existed in which discretion has been absent . Davis, however rejecting 'the extravagant rule of law' doctrine, he makes a case that there is 'too much of it', too much of discretion. Therefore, he suggests 2 main ways in which to restrict unnecessary discretion. Firstly, administrators can assist in the elimination of unnecessary discretion by limiting it within indispensable bounds. This can be achieved by the formation of standards and rules which will make clear vague legislative criteria.
The remodelling of agency policy through rule-making is considered to be preferable to development which is carried out through adjudication as it allows more conference and involvement by interested parties. Davis secondly suggests that discretion ought to be controlled in order to make certain that it is structured. This can be achieved through such things like 'open plans, open policy statements and rules, open findings, open reasons, open precedents and fair procedure'. The general aim is therefore not to remove discretion.
Davis further makes the suggestion that discretion should be checked through for example, regulation by superiors, administration appeals and judicial review. On the other hand, Jeffrey Jowell favours the use of rule-based decision making rules. He argues that with rules it is less likely that an administrator will accept a decision supported by improper criteria. He also brings forth the argument that rules will be more exposed to scrutiny by the public, thus rendering the organization more accountable.
As further argued by Jowell rules are essential and beneficial; there are benefits such as of similar cases being decided in the same way, the public is also given more of an opportunity to participate in the construction of goals. The defect of rules is recognizable, in relation to the rule's legalism and inflexibility, as argued by Jowell, 'for example a parking meter will not show understanding or mercy to the person who was one minute over the limit because he was helping a blind man across the street.
' Similarly, Chris Hilson argues that the advantage of individualised decision-making in contrast is that account is taken of all the features of an application, including any exceptional ones. This ensures that the particular applicant is treated justly. This indeed appears true in the following cases. In Corrie the court reversed a decision rejecting the applicant's authorization to sell leaflets at specific meetings. The choice to refuse permission had been in decided on by a council in accordance with the law that no-one was allowed sell anything in the parks.
Darling j, in his consideration of the case remarked that each claim should be heard on its merits. He especially rejected the notion that there could be a general decision to refuse all applications. It was further highlighted that a public body is not banned from having a general policy or rule. Although a general policy is approved of, the merits of an individual case must be carefully considered, the case was held to be intra vires.
For the most part, discretionary power is required to be in accordance with statute, common law is however unclear on its position in use of discretionary power. In Elias, for example, the applicant claimed by means of comparison with the case law on statutory discretion that by declining to deliberate on whether to make an exception to the standard for compensation, the Secretary of State had improperly restrained his common law power.
This analogy was dismissed by court of appeal, it was decided that it was lawful to devise a policy for the implementation of statutory discretionary power, but the individual who was included within the statute could not be entirely disqualified as they have a statutory right to be careful considered by the individual entrusted with the power of discretion. Such considerations the court held failed to apply in the case of an ordinary common law power, as it was inside the power of the decision-maker to determine the degree to which the power was to be used.
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 Griffith 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, asdecision-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 phenomenona 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.