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.
Decision Makers
Three types of decision maker
exercise discretions. (i) Discretions
may be
vested in and exercised by a court. While many of the powers of courts
involve remedies that issue as of right, some involve discretions. (ii) Tribunals
are often vested with power to hear matters where the remedy or
consequences is discretionary. (iii) Many administrative officials are vested
with power to exercise discretions.
Thus while courts sometimes exercise discretionary powers, the main wielders
are tribunals and officials. This means that understanding how discretions are
exercised enables tribunals and officials to better manage the litigation or
decision making that comes before them.
In this discussion, for convenience,
the person or body entrusted with the
discretion may be referred to as an “official” or a “tribunal”. These are labels
of convenience. For purposes here they are interchangeable so each includes
the other. The key point is generally the discretion itself, not the person who is
exercising it.
Structure
To explain how to define and resolve an issue of discretion it is necessary first
to explain the structure of a discretion. Like any other cause of action, a
discretion is divided into elements and consequences, However, because there
is a discretion to apply or not apply the consequences there is a special
characteristic that the ensuing analysis will both focus on and reveal. This will
be explained in two staged analysis – the first stage is a basic model while the
second stage is a developed model.
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