Abstract
AbstractDiscretion gives decision makers choices as to how resources are allocated, or how other aspects of state largesse or coercion are deployed. Discretionary state power challenges aspects of the rule of law, first by transferring decisions from legislators to departments, agencies and street-level bureaucrats and secondly by risking the uniform application of key fairness and equality norms. Concerns to find alternative and decentred forms of regulation gave rise to new types of regulation, sometimes labeled ‘regulatory capitalism’. Regulatory capitalism highlights the roles of a wider range of actors exercising powers and a wider range of instruments. It includes also new forms of discretion, for example over automated decision making processes, over the formulation and dissemination of league tables or over the use of behavioural measures. This paper takes a novel approach by linking and extending the significant literature on these changing patterns of regulatory administration with consideration of the changing modes of deployment of discretion. Using this specific lens, we observe two potentially contradictory trends: an increase in determining and structuring administrative decision, leading to a more transparent use of discretion; and the increased use of automated decision making processes which have the potential of producing a less transparent black box scenario.
Highlights
The expansion of state administrations in the twentieth century generated a degree of anxiety about the growth of administrative discretion
Discretion is an essential feature of delegation to government departments and agencies and became progressively more significant as the state took on more functions, notably those associated with the development of the welfare state
We suggest that the concept of regulatory capitalism can be appropriately extended by recognising that modes of regulating through legislative rules and contracts are supplemented by behavioural measures and algorithmic decision making, the latter with a tendency to reduce day-to-day discretion at street- or screen-level, arguably substituting a more hidden systems-level discretion.[34]
Summary
The expansion of state administrations in the twentieth century generated a degree of anxiety about the growth of administrative discretion. In most cases they were developed and first implemented in the private sector and are often widely used in private regulatory settings.[66] In their application by public administrations, the use of new technologies brings new significant challenges to administrative decision making and discretion. (b) Structuring discretion – examples from regulatory practice (i) Standard setting Within many parliamentary systems of government, rule making is the quintessential function reserved to parliament to ensure the linkage between elected politicians and key decision making. This notwithstanding, it is common to delegate rule making powers to ministers.
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