Review of Discretion (L4)

Question 1

What is discretion?

Answer 1

The freedom a decision-maker has to choose between alternative courses of action.

Discretion exists in law where the legislation (or other source) conferring a power gives a decision-maker some freedom of action.

Controlled by law in two ways:
The ultra vires rule limits the scope of the discretion.
Other grounds of review limit the ways that discretion may be exercised within its lawful scope

Question 2

What are the advantages of discretion?

Answer 2

• Flexibility responds to the complexity and variability of state functions.
• Enables emphasis on the purposes of the legislation.
• Can consider each case according to its merits.
• Allows government to learn from experience.
• Useful in new areas of government activity.

Question 3

What are the disadvantages of discretion?

Answer 3

• Possible inconsistency of decisions.
• Decisions may be less predictable.
• Puts citizens at mercy of administrators… manipulation and control?
• Demands higher care and attention by administrators… efficiency.
• May be used to offload difficult political choices to “street level”.

Question 4

Under what headings can we group the grounds of review of discretionary decision-making?

Answer 4

Substantive review.
Retention of discretion.

Question 5

What is the ground of substantive review?

Answer 5

Relates to the content of discretionary decisions and ensures that they are influenced only by factors which it is proper for public authorities to consider, are reasonable and that decisions respect human rights.

Question 6

What is the ground of retention of discretion?

Answer 6

The retention of discretion grounds are intended to ensure that decisions are truly discretionary and that discretionary powers are exercised by the appropriate person.

Focused more on the way the decision is made.