Exercise Of Administrative Discretion Research Articles

Panel III of the SRB Legal Conference – The Exercise of Administrative Discretion by Banking Authorities and the Need to Ensure Accountability; Perspectives From the EU and US

Panel III of the SRB Legal Conference – The Exercise of Administrative Discretion by Banking Authorities and the Need to Ensure Accountability; Perspectives From the EU and US

The essence of administrative discretion in the activities of public administration agencies

The article examines the essence of administrative discretion in the activities of public administration bodies. The author proposes his own definition of administrative discretion as intellectual, creative activity of public authorities, local governments and their officials, established by legislation on self-assessment and decision-making and a certain choice of behavior, which has a legally significant result.
 The selected properties that are inherent in administrative discretion: 1) are the right of public authorities, local governments and their officials to make decisions, carry out activities (inaction); 2) is implemented by the relevant circle of persons authorized by law; 3) the limits of discretion are limited by the law, it complies with the law and does not contradict them; 4) the process of applying administrative discretion is an intellectual and creative activity; 5) has a legally significant result.
 It is emphasized that the functioning of public authorities in the exercise of administrative discretion should be subject to regulation and proper control, as often there is a problem of abuse of administrative discretion, the reasons for which are: ambiguity of laws, which creates the illusion of great authority; lack of proper level of training and knowledge of the official; exceeding the limits of discretionary powers.

Can Robots Understand Welfare? Exploring Machine Bureaucracies in Welfare-to-Work

AbstractThe exercise of administrative discretion by street-level workers plays a key role in shaping citizens’ access to welfare and employment services. Governance reforms of social services delivery, such as performance-based contracting, have often been driven by attempts to discipline this discretion. In several countries, these forms of market governance are now being eclipsed by new modes of digital governance that seek to reshape the delivery of services using algorithms and machine learning. Australia, a pioneer of marketisation, is one example, proposing to deploy digitalisation to fully automate most of its employment services rather than as a supplement to face-to-face case management. We examine the potential and limits of this project to replace human-to-human with ‘machine bureaucracies’. To what extent are welfare and employment services amenable to digitalisation? What trade-offs are involved? In addressing these questions, we consider the purported benefits of machine bureaucracies in achieving higher levels of efficiency, accountability, and consistency in policy delivery. While recognising the potential benefits of machine bureaucracies for both governments and jobseekers, we argue that trade-offs will be faced between enhancing the efficiency and consistency of services and ensuring that services remain accessible and responsive to highly personalised circumstances.

Interrogating the Centrality of Public Interest in the Exercise of Administrative Discretion

No modern government can function without the exercise of some form of discretion by its officials. This is premised on the fact that it is humanly impossible to lay down a rule for every conceivable event in the complex art of modern government. It therefore becomes imperative to grant administrative discretion to government officials to address areas not covered or anticipated by extant rules or laws. Consequently, in this paper, the central question is not whether public officials should exercise administrative discretion in carrying out duties expected of them; rather, the key question is how and for what purposes discretion should be used. This will obviate abuses while at the same time serving the public interest. This paper posits that while the consideration of public interest is the central take in the exercise of administrative discretion, it must not be to the complete negation of secondary interests. Rather, administrators should pursue the public interest which is the primary interest, while sacrificing to the least extent possible the secondary interests connected with it.

Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law

Jerry L. Mashaw's excellent new book outlines the details of federal administrative law and practice in the late-eighteenth and nineteenth centuries, with careful attention to well-known and lesser-known case studies. It is a significant contribution, adding to a wave of recent scholarship that redefines our understanding of American political development by highlighting the complicated and robust nature of federal governance and administration in the nation's first century. Mashaw's book should help put to rest, finally, the myth of small government and primitive bureaucracy that for too long has hampered our understanding of American political and administrative development. Mashaw's main focus is on what he calls “the administrative Constitution,” by which he means the very real parts of American governance that were at work in the nation's first century—notwithstanding the “hole” in the Constitution that leaves unstated any significant discussion of administration and bureaucracy (p. 10). This hole, of course, has led to a long history of academic works and public policy discussions that view administration skeptically. Traditional scholarship and received wisdom usually see a twentieth-century administrative state replacing a small, nineteenth-century government characterized by self-executing laws, tight congressional oversight, and a few clerklike bureaucrats implementing simple and popular policies. At the extreme, some scholars, politicians, and pundits view administration—particularly rule-making, adjudicatory functions, and the exercise of administrative discretion—as unconstitutional and democratically unaccountable.

The Inter-Dependence of Public & Private in the Regulation of the Right of Peaceful Protest and the Problems Thrown Up by its Privatisation

This article takes a more holistic perspective on the regulation of peaceful protest, one that is different to that usually taken in Anglo-American literature. It will show how private law rules are as much capable of affecting our ability to engage in protest as is public law regulation through the criminal law or the exercise of administrative discretion. That latter will only ever paint a partial and simplistic picture of how protest is regulated. The first part plots the ways in which private law rights and remedies can shape the exercise of the public right of peaceful protest. It comprises three aspects: the criminalisation of what are essentially private, civil law relationships; the differentiated reality of protest resulting from private law rules and concepts relating to land; and the privatisation of the regulation of protest by which the commercial targets of a protest utilise their own private law rights and remedies to control and constrain protesters. The second part considers some of the ramifications of this privatising of the regulation of protest. It concludes by locating these shifts within contemporary domestic politics and the ideological tensions that lie at the heart of the Conservative-LibDem government in the UK. The case will be made in this article that full restoration of the right to non-violent protest, as was pledged in the coalition agreement in May 2011, will require several contentious decisions to be taken.

From Neutrality to Compassion: The Place of Civil Service Values and Legal Norms in the Exercise of Administrative Discretion

[W]e Canadians do not know much about our own situation. We do know that in our country, as in England and the United States, there is at the federal level and at the provincial level a heterogeneous collection of bodies other than courts – independent commissions, civil service departments and other statutory authorities – deciding disputes between that mighty engine, the state, and the individual citizen or business corporation; but of what most of them in fact do, how they in fact do it, and to what extent they are in fact supervised, checked and controlled, we have only a hazy and rather general knowledge ... Law teachers and political scientists take note; here lies an untilled field for badly needed research and description.1 I Introduction I start from a proposition that owes much to Willis's influence, namely, that administrative law has failed to develop an account of administrative decision making rooted in the lived experience of administrative decision making. Willis juxtaposed the formalism and abstract reasoning of lawyers with the functionalism and practical reasoning of civil servants.2 Rather than emphasizing this dichotomy, I suggest that coming to terms with the dynamics of administrative decision making leads to a consideration both of civil service values and of legal norms. Further, I argue that courts have a key role in shedding light on civil service values and that civil servants have a key role in shedding light on legal norms. Willis wished 'to talk administrative law with a civil servant and political science accent,' to be a 'government man' and a 'what actually happens' man. In this paper, I attempt to apply this invocation to keep the [End Page 427] lived experience of decision makers in mind through an analysis of the discretionary judgements of immigration officers. Specifically, I examine how civil service values and legal norms interact in the exercise of the discretion to grant exemptions from the operation of the Immigration and Refugee Protection Act (IRPA) based on humanitarian and compassionate grounds ('H&C decisions').3 This setting was also the subject of Baker v. Canada (Minister of Citizenship and Immigration),4 arguably the farthest-reaching administrative law decision from the Supreme Court of Canada in a generation on the relationship between judicial review and administrative discretion. As I elaborate below, seeing administrative law through the eyes of these civil servants is daunting. Civil servants reconcile a variety of competing obligations – to the legislature; to the public; to applicants and their families; to professional duty and personal moral belief; to the rule of law; to the minister, the government of the day, and the honour of the Crown; and to self-interest and the self-preservation of the office and ministry. How these obligations are balanced in particular cases reflects institutional structures and individual preferences. Some parties will benefit from such structures and preferences, while others will be adversely affected. Put simply, public administration is not and has never been a science – it is and has always been normative.5 [End Page 428] The Supreme Court has recognized that the civil service is an 'organ of government' with a separate constitutional personality from the government of the day.6 The civil service, however, remains, in the judicial imagination, a means to ends set by legislative or cabinet policy makers. The notion that civil servants individually or the civil service collectively has ends of their or its own seems inimical to principles of democratic legitimacy and the rule of law.7 This is in large part why the administrative law account of discretion focuses more on its boundaries than on its substance. This is also why the claim that civil service values matter, or that there is a meaningful relationship between such values and legal norms, may have significant ramifications for...

La discrétion administrative et la mise en oeuvre d'une politique

This article deals with the relationships between the exercise of administrative discretion and the implementation of a policy. Chapter I defines administrative discretion as a power to make a choice in a particular case. This choice may be technical or political but in both instances relates to the implementation of a policy. The exercise of discretion is also situated within a system under the Rule of Law using H.L.A. Hart's concepts of primary and secondary rules. Chapter II deals with the exercise of discretion in relation to policy. First, if refers to K.C. Davis' model of confining, structuring and checking discretion. To confine discretion is to set the limits within which it should be exercised. To structure it is define the manner by which it is to be exercised notably in opening the decision-making process. To check discretion is to subject the decision to another authority. The next three sections of this chapter are concerned with legislative, regulatory and administrative policy. The first section studies legislative expressions of policy and their impact on the exercise of discretion. Secondly, the question of the choice between regulation and administrative discretion is analysed as is the control over that choice and the nature of regulation over it is decided to adopt it. Finally, the impact of an administrative discretion is seen when attacked by the citizen on the grounds that it fetters discretion, constitutes bias or when relied upon by the citizen. It is seen that in most cases, the administrator may structure his discretionary power in a manner respected by the courts.

The Paradox of Discretion and the Case of Elian Gonzalez

The exercise of administrative discretion is inevitable in complex policy-making and law enforcement, including immigration policy generally and the Elian Gonzalez case specifically. Clearly, discretion is in tension with democratic notions of political accountability, the rule of law, and constitutional separation of powers. Yet the Elian case suggests that although discretion poses a threat to democracy it also contributes to a democratic public administration. Furthermore, because discretion is exercised in a sea of safeguards its dangers can be reconciled to its necessity.

The SEC's Ban on Upward Asset Revaluations and the Disclosure of Current Values

Prior to 1930, the upward revaluation of fixed assets was common in the United States. By 1940 the practice was virtually extinct, and for decades thereafter U.S. corporations which were registered with the Securities and Exchange Commission (SEC) have been constrained both from making upward asset revaluations, and from presenting supplementary information about the ‘current values’ of fixed assets. These changes were effected without the publication of any rules or guidelines by either the SEC or the U.S. accounting profession.This paper traces the early history of SEC activities and policies in relation to ‘write‐ups’, using primary source materials which include minutes of SEC meetings, internal memoranda prepared by SEC staff, and reports of SEC decisions in stop‐order proceedings. These documents show that, initially, SEC staff actively ‘discouraged’ write‐ups through the exercise of administrative discretion in the course of assessing whether documents filed with the Commission were adequate to support the registration of prospectuses or securities. Later, formal decisions to reject the use of ‘appraisals’ were based on findings that estimates of current values had been arrived at arbitrarily or capriciously. Over a twenty‐five‐year period no decisions were located which formally rejected write‐ups or the disclosure of current values when they were based on defensible estimates of current market prices. However, subsequently these decisions were cited as precedents for the rejection of the use of both ‘appraisals’ and estimates of market prices as the basis for valuing assets in all financial reports lodged with the SEC. By the 1940s, the SEC was using its registration powers to ‘censor'financial statements which referred to estimates of current values, regardless of the evidence used to arrive at those estimates. By the 1950s, the SEC had extended its policy of censorship to prevent any disclosure of estimates of ‘current values’— even when those disclosures were only made in ‘supplementary’ notes in takeover documents.

Politics, Organisation and Environment–Influences on the Exercise of Administrative Discretion within the Housing Benefit Scheme

Abstract The housing benefit scheme, introduced in 1982/3, accoided local councils sole responsibility for administering rent and rate rebates to occupants of rented housing.1 Implementation of the scheme, a blend of centrally defined rules and discretionary powers, has been widely criticised as slow, error-prone and inconsistent, ‘Erskine 1983; Fielding 1983; Kemp 1984), leading the Secretary of State for Social Services to establish a review of the scheme's administration, which reported in June 1985.2 This paper examines two local authorities’ exercise of certain discretionary powers, using data gathered during fieldwork conducted in 1986, and attempts to analyse the factors influencing the procedural and substantive conduct of the councils' activities.

A Simultaneous Equation Model of the Provision of Services to Handicapped Children at the School District Level

This study of the provision of services to handicapped children focuses on local school districts because they are assigned the responsibility of evaluating children, providing services, and paying for state-imposed special education mandates. A three-equation model is developed and a tentative test of the model is made with recently available data from Wisconsin. The empirical results show that fiscal and socioeconomic variables play statistically identifiable roles in labeling children as handicapped and in the amount spent per handicapped child. Budget-maximizing behavior and the response to financial incentives are as likely to show up through the process of identifying children as handicapped, as in spending decisions. One can infer the exercise of administrative discretion and the tendency of local school districts to operate in their own financial interests.

The Bureaucracy in Pressure Politics

Public administrative agencies in many ways re semble and behave like pressure groups. They not only ad minister laws, but they attempt to influence public opinion and legislative action, promoting the interests of their members and of related groups. General statutory regulations do not re strict them noticeably in this regard, although in some impor tant ways the Chief Executive does, especially through budg etary, personnel, and other organizational controls. Never theless, public bureaucracies enjoy considerable autonomy to propose public policies and promote their adoption. By day-to-day liaison with legislators, avenues are kept open for administrative lobbying. Most crucial in the legislative ac tivities of executive agencies is their strategic work with com mittees considering bills in the legislature. Among the critical kinds of support which may be mobilized here are executive superiors, employees, and clientele. Also, by elaborating their administrative structure, bureaucracies enlist the interest and participation of influential citizens as advisors and sponsors. Additionally, bureaucracies may bring pressure to bear upon legislators through the exercise of administrative discretion. Finally, in the publicity arena, bureaucrats have certain privi leged positions, although they may invite legislative reprisals through overzealous propagandizing.