LL201 Administrative Law MT Essay Dicey was right when he said that discretion was the biggest problem

with the administrative state. What he failed to predict was that discretion would also become a fundamental feature of judicial decision-making in

administrative law. Discuss.

Inconsistency, insecurity, injustice these are the sentiments that spring to mind when discussing discretion in the context of the administrative state; sentiments that Dicey articulated when he identified it as the anti-thesis of his conception of the rule of law. While his fears were not unfounded, his antipathy for discretion was unfortunate in that it failed, not so much to predict or foresee, but rather account for the inevitably of discretion at all stages of the administrative process including in judicial decision-making in administrative law. This essay will thus discuss and examine the unique nature of discretion in the courts, arguing that while the presence of such discretion should be managed, its exercise is inevitable, and ultimately necessary and acceptable in ensuring consistency, security, and justice.

One immediate solution to the problem of discretion is a proliferation of rules in the administrative state a proposal advanced by K.C. Davis who saw rulemaking as a miniature democratic process 1 that could be used to manage discretion. However, the relationship between discretion and rules is not a zero-sum one; it is instead a complex interrelationship, with discretion forming the space within and between rules. 2 It is a self-affirming cycle: rules
1 2

Davis, K.C., Discretionary Justice (Louisiana State University Press, 1969). Black, Julia, Managing Discretion, 2001 ARLC Conference Papers, 2.

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lead to the exercise of discretion, which in turn encourages more rules in a bid to curb freedom in bureaucratic decision-making. This inevitability of discretion also exists in the sphere of judicial decision-making, particularly where administrative law is concerned.

To a large extent, judicial decisions are formalist in nature an adherence to literal and abstract analysis, as opposed to a substantial and merits-based approach, is more often than not the norm particularly given the oftentimes constitutional implications and issues at stake in administrative law cases. Nevertheless, just as how rules frame and define discretion, formalism and legalism also inevitably create space for judicial discretion. An example that is most appropriate for our analysis and which we will return to continually is the case of Regina v North and East Devon Health Authority ex Parte Coughlan3. The applicant in this case was an elderly, disabled woman who was promised a home for life in Mardon House, an NHS facility. An application for judicial review was lodged when the facility was closed, with the Court of Appeal eventually finding in favour of the applicant by stating that she had a legitimate expectation of a benefit which is substantive in treating Mardon House as a permanent home. Despite Lord Woolf acknowledging in his judgment that this doctrine of substantive legitimate expectation was controversial, but felt that they had managed to avoid jeopardising the important principle that the executives policy-making powers should not be trammelled by the courts.

Leaving aside the fact that that the decision in Coughlan was in
3

[2001] Q.B. 213

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response to the administration departing from a rule (rather than implementing one!), the controversial doctrine introduced serves as an example of the Court of Appeal exercising judicial discretion in contrast to a more conservative, deferential, and less substantive approach to the issue facing the applicant. While commentators like Sales and Steyn argue that it is not uncommon for a decision-maker to change its mind [if] confronted with unanticipated situations4, substantively the outcome of the present case is welcome, insofar as Miss Coughlan seemed a deserving enough applicant. We thus see here how discretion, perhaps slightly counter-intuitively, has resulted in justice as opposed to the injustice it is regularly associated with.

The inevitability of discretion therefore arises from prioritising a principle in this case, ensuring a just outcome above a rule of noninterference with the administrations decision-making. We can therefore identify a separation between discretion, rules, and principles, with the last category especially important for the latter half of our analysis, where we consider that while discretion needs to be managed, it is ultimately acceptable in judicial decision-making. Positive and just outcomes such as the one in the Coughlan case do not quite do enough to dissipate the fears surrounding discretion just yet.

Recourse to principles as opposed to rules is an approach advocated by Braithwaite, who argues that principles deliver more consistency than rules once phenomena get more complex 5 and what could be more complex than
4

Sales, Phillip & Steyn, Karen, Legitimate expectations in English public law: An analysis, (2004) PL 564, 569. 5 Braithwaite, Jo, Rules and Principles: A theory of legal certainty (2002) 27 Australian Journal of Legal

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the administrative process? Dworkin also advocates principles over rules, characterising them as trumps: embodiments of rights that trump policy decisions6 providing a safe haven of sorts for those affected by said decisions. Such a position has an appealing application to judicial making as well the principle of prioritising principles has the distinct advantage of being allowing a distinction to be drawn between the substantive context of the facts at hand and a higher-order, overarching principle that is able to take precedence. Consistency and security are thus achieved at a level that is able to accommodate grey areas and greater complexity than the rigidity of rules.

Minimizing the ills of discretion in judicial decision-making then, does not necessarily mean falling back on a formalist approach. As we have previously noted, the relationship between rules and discretion is not of a zero-sum nature. There is therefore no necessity to choose between two extremes. The characterisation of the rule/discretion divide as an

interrelationship, rather than an opposing dichotomy, is crucial here. Principles allow for a balance between the two, and serve as a meeting point between the firmness of rules and the flexibility of discretion. Discretion should thus be managed rather than countered, with greater emphasis placed on shaping, defining and filling these in-between spaces, rather than futility attempting to eliminate them entirely at the outset. But we are merely articulating a phenomenon that occurs naturally; principles by-and-large govern and inform judicial decisions. Management of discretion occurs quite naturally, such as in cases such as Anufrijeva7.
Philosophy 47. 6 Dworkin, Ronald, Laws Empire (Fontana, 1986) 223.
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[2003] UKHL 36.

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Perhaps, however, our faith in principles and of the courts being cognizant of and adhering to said principles may well be misplaced, or is unjustified. Harlow and Rawlings note with concern that the doctrine of substantive legal expectation espoused in Coughlan may potentially violate principles of economic and efficient public management 8 principles of a very different sort from treat like cases alike, but important principles that operate in the sphere of the administrative process nonetheless. A conflict of principles may well arise and in that situation, what solution is there?

The key to resolving this source of tension lies in one crucial difference between the nature of discretion exercised by the executive and the judiciary. Unlike most bureaucratic decisions, judicial decisions take place in the public sphere. The inherently public nature of the discretion exercised in a judicial context aids in managing it. It is this distinction that makes judicial discretion an easier pill to swallow and less dangerous than unchecked bureaucratic discretion it can be subject to intense scrutiny by other legal professionals: lawyers, judges and academics alike. Returning to Coughlan, Cases such as Re Findlay9 and Walker10 have helped to extend and clarify the boundaries of the substantive legitimate expectation doctrine. In the public eye, there is always the potential for discourse and criticism, and the shadowy aspects of rule making (or breaking) or exercises of unbridled discretion are dragged into the public sphere when judicial review is undertaken. The public nature of the
8

Harlow, Carol & Rawlings, Richard, Law and Administration 3rd Ed., (Cambridge University Press, 2010) 227. 9 [1985] A.C. 318
10

[2000] 1 WLR 806

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entire judicial process lends itself to making acceptable and legitimising the use of discretion. It is a very different sort of discretion from the one utilised by agencies and ministries and this distinction lends credibility to the idea that discretion in judicial decision-making can be well managed by utilising principles, more so than in the bureaucratic process.

Discretion in judicial decision-making in administrative law cannot therefore be placed on the same footing as discretion in the administrative state, as the statement in question suggests it should be. Dicey might well have failed to predict the rise of judicial discretion but it does not attract the same level of concern as bureaucratic discretion for the reasons outlined above. When judicial discretion is exercised, as it inevitably will be, there is no need for concern due to its highly public nature, and in any case it can, and is, well managed by prioritising principles over definite and inflexible rules. Consistency, security, and justice the best way to fulfil these values is to incorporate them as the principles that strike the balance between rules and discretion and incorporate them into the decision-making process; extending Dworkins doughnut metaphor11, principles are well placed to fill the hole in the middle. In this manner, discretion becomes an asset to be utilised rather than feared, a fundamental, unproblematic and useful tool in judicial decisionmaking. 1461 Words

11

Dworkins doughnut metaphor conceives of discretion as always shaped and structured by rules: the hole in the doughnut [Harlow & Rawlings, 203.].

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