Basic Model
In the basic model we organise the rule that houses the discretion by dividing it
into elements and consequences. In our first take on this, the discretionary
power is treated as the consequences that the rule brings. To illustrate, we
return to our hypothetical example above involving the grant of a pension by
the Director of Pensions. This takes the following form:
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.
Consequence
s
The Director of Pensions may grant this person a pension.
Figure 4.12 Structure of a Discretion: Basic Model
Developed Model
Organising the discretion in the basic model is a good start, but it is possible
to reorganise it in a way that facilitates a better understanding. The key to this
is recognising what happens when the Director grants the pension. To do this
they must have formed the opinion beforehand that they should grant the
pension. Logically they should form this opinion on the basis that it is more
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 4.13 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
This analysis reveals that a discretion has a dual visage. Given this, we can
identify two aspects.
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