CURRENT LEGAL PROBLEMS
Lecture Series 2016-17
ADMINISTRATIVE DISCRETION, ADMINISTRATIVE RULE-MAKING AND JUDICIAL REVIEW
SPEAKER: Professor Aileen McHarg (University of Strathclyde Glasgow)
CHAIR: The Rt. Hon. Lord Reed (The Supreme Court)
Thursday 9 February 2017, from 6-7pm
UCL Gustave Tuck Lecture Theatre, Wilkins Building, Gower Street, London WC1E 6BT
Accredited with 1 CPD hour by the Solicitors Regulation Authority and the Bar Standards Board
About this lecture:
The debate over the relative merits of discretion and rules in the administrative context is a long-standing one. However, much less attention has been paid to the implications of this debate for judicial control of administrative rule-making. In 1971, the American jurist KC Davis argued in his book Discretionary Justice that administrative agencies should be encouraged (including by courts) to confine and structure their discretion through rules wherever appropriate. In the United Kingdom, by contrast, the dominant approach has been one of suspicion of administrative rule-making. The courts have traditionally insisted, not on the confining or structuring of discretion, but rather on its retention, through the principle that discretion must not be fettered.
The non-fettering principle continues to condition judicial attitudes in this area. However, the approach of the courts to administrative rule-making has evolved considerably since the 1970s. The relaxation of the non-fettering principle in British Oxygen Co v Minister of Technology  AC 610 signalled a shift from an essentially prohibitive to a permissive approach: discretion included the power to make rules, provided discretion was retained at the margins. Courts have also been willing to regulate the content and consequences of administrative rule-making, primarily through the ultra vires and legitimate expectations doctrines. More recently, in reviewing for compliance with Convention rights, courts have become increasingly concerned with the specificity of administrative rules. This culminated in R (Purdy) v Director of Public Prosecutions  UKHL 45 with the court (in complete contrast to the non-fettering approach) actually mandating the adoption of administrative guidance, though this remains an isolated and controversial example.
Despite these important developments, judicial control of administrative rule-making remains patchy, and largely indirect; i.e., incidental to other doctrines, rather than based upon a consideration of the costs and benefits of discretion versus rules or the conditions of legitimate rule-making. In this lecture, Professor McHarg will trace the evolution of the law in the area and argue that the time is ripe for a reconsideration of the basis of judicial intervention, asking whether – and, if so, when, how, and with what consequences - the courts should encourage administrators to confine and structure their discretion through rules.
About the speaker:
Aileen McHarg is Professor of Public Law at the University of Strathclyde. She previously taught at the Universities of Glasgow and Bristol. Her major research interests are in Scots and UK constitutional and administrative law, and she has published widely in this area. Her most recent book is The Scottish Independence Referendum: Constitutional and Political Implications (Oxford University Press, 2016 (co-edited with Tom Mullen, Alan Page and Neil Walker).
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