Step 1: Formulating Options
Conveniently, an issue with a discretion is framed in the terms in which it is
identified. A discretion allows the person or body in whom it is vested to
exercise it in one way or another. Therefore in basic terms the issue is framed
in the following terms: in which way does the person or body exercise the
discretion? In Figure 26.3 above, 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
designated Options 1-n.
But as has been said, options can be in a more complicated form than this.
For example the option to grant a person a social security benefit might
involve determining not just whether to grant the benefit but also (a) the
amount of the benefit and (b) whether any conditions should attach to the
benefit.
Step 2: Identifying Criteria
A discretion is exercised by reference to the legally designated criteria for the
particular discretion. Criteria are used to measure the value of each option.
There are three kinds of criteria – express, implied and general, so to resolve
this dispute, the official has to examine the three sources. These are as follows:
(1)
Express Criteria. Criteria may be expressly stated in the statute that
authorises the decision.
(2)
Implied Criteria. Criteria may be implied by and inferred from the statute
that authorises the decision.
(3)
General Criteria. Criteria may rest on widely shared social and legal
values.
Therefore an official entrusted with a discretion must identify the legally proper
criteria for exercising the discretion. In Figure 26.3 the criteria for exercising
the discretion consist of Criteria 1-n.
Each criterion pushes for the exercise of the discretion in one manner or
another. Criteria are, as we have said, the currency in which the net benefit of
an option is valued and measured. They are the things that count as benefits
and costs (the items that count for and against) when a decision is made to
exercise the discretion.
There may be an issue about the identity of the criteria for exercising the
discretion. This can be represented by the following table:
Plaintiff
Defendant
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