Discretionary justice

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. 


Davis, 1969 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]