Administrative Discretion and Why It Is Conferred

In one line

Discretion is the freedom a statute gives an official to choose, and administrative law exists largely to make sure that the choice is a real one, made for the right reasons.

In the words a student can write in an exam: administrative discretion is the power conferred by a statute on an administrative authority to choose between alternative courses of action, or to decide whether to act at all, according to its own judgment of what is appropriate in the circumstances. It is indispensable in a welfare State because no legislature can foresee every case, but it is also the point at which arbitrariness enters, and it is therefore confined by the statute conferring it, structured by published criteria and reasons, and checked by judicial review on the grounds of abuse of discretion and failure to exercise discretion.

How to recognise discretion in a statute

Discretion is conferred by particular verbs and phrases, and a student should be able to spot them.

The commonest examination trap is a section using both: "the authority shall grant a licence to an applicant who satisfies the prescribed conditions, but may refuse where it considers the grant contrary to the public interest". That confers discretion on the second limb only.

Why discretion is necessary

The reasons follow from [The Rise of the Administrative State] but they are worth stating for themselves, because the syllabus asks for the "need for conferring discretion" as its own head.

1. The legislature cannot foresee every case. A statute regulating the grant of a licence cannot list every configuration of premises, applicant and locality.

2. Circumstances change faster than statutes. A rule fixed in 2010 may be senseless in 2026, and discretion allows the administration to respond without an amending Act.

3. Individual justice. A rigid rule applied to everyone produces hardship in the exceptional case. Discretion lets the administration make an exception where the rule would do injustice, which is precisely the green light argument in [Red Light and Green Light Theories].

4. Technical judgment. Whether a bridge is safe, a drug effective or a tariff reasonable are questions of judgment that a statute cannot settle in advance.

5. Prevention and management. Modern administration must plan, allocate and prioritise. Allocating hospital beds, deciding where to build a road, or choosing among tenderers all require a choice.