just to grant the pension than to refuse it. On this basis, the provision can be
analysed in the following way:
Element (1)
There is a person.
Element (2)
The person is over the age of 18 years.
Element (3)
The person is unemployed.
Element (4)
The person has been unemployed for 6 weeks.
Discretion
The Director of Pensions forms the opinion that it is more just to grant the
pension than to refuse it.
Consequences
The Director of Pensions grants this person a pension.
Figure 26.2 Structure of a Discretion: Developed Model
This developed version of the model
effectively makes the discretion an
element of the legal rule. However, it is obviously an element with a special
nature. This element constitutes the ‘special characteristic’ that was referred to
above.
Defining the Issue
The preceding analysis reveals that a discretion has a dual visage. Given this,
we can identify two aspects.
First, in the most basic terms, which are required here, the fundamental issue
with a discretion is how it is exercised. Does the official make the decision one
way or another? In the illustration above, does the Director of Pensions grant
the pension or not grant it?
But, depending on how the discretion is framed, there may be other parts to
this issue. One common additional power in a discretion is power to determine
the nature or quantity of the consequences. For example if a tribunal is
awarding a pension it may also be vested with power to determine the amount
of the pension. Another common additional power consists of power to
impose conditions. For example, a discretion may be written in terms whereby
a person may receive a pilot’s licence on condition that, until the official
otherwise orders, they can fly only in daylight hours.
In formal terms the options for exercising a discretion can be labelled Option
1, Option 2 and so on, so that the range of options consists of Options 1-n.
Consequently, the issue can be framed in generic terms as to which option the
holder of the discretion should choose from the range Options 1-n.
Second, the option to exercise the power in one way or another is logically
translated into the question as to what is the best or most just way to exercise
it, since there is no other logical basis on which to do so. This leads directly
and neatly to the next step, which is to examine how the issue is resolved,
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