Chapter 26
Model for Exercising Discretions
Introduction
Step 1
Formulating Options
Step 2
Identifying Criteria
Step 3
Grading Criteria
Step 4
Establishing Criteria
Step 5
Measuring Criteria
Step 6
Aggregating Criteria
Step 7
Evaluating Options
Step 8 Decision
Introduction
A cause of action is commonly seen as
the means of vindicating rights.
Consequently, when the elements are established, the consequences flow as of
right. That is,
they come automatically. However, in some cases at common
law, and in many cases with benefits and detriments created by statute, the
consequences are discretionary. The decision maker has a discretion or choice
to deliver or not deliver the consequences.
Thus a discretion is distinguished from a cause of action based on a right by
the discretionary nature of the remedy that it provides. But apart from this, the
two types of legal rule otherwise function in an identical way. This means that
the discussion here of issues of discretion is directed only to resolving issues
of discretion. Any issues of law and fact arising in the rule that houses the
discretion are resolved in the manner described elsewhere in this book.
Illustration
To start, let us set out an illustration of a discretion. Although it is
hypothetical, it is indicative of real discretions. Section 65 of the Benefits Act
provides as follows:
65 Unemployment pension
Where a person over the age of 18 years has been unemployed for 6 weeks the Director of
Pensions may grant them a pension.
Discretionary Power
In this provision, the use of the word “may” indicates that the remedy is
discretionary. As a general rule, any word or phrase that indicates that the
person or body granting a remedy has a choice as to how they exercise a
power creates a discretion.
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