Step 1: Formulating Options
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 4.14 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.
Criteria are of three kinds – express, implied and general:
(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 4.14 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.
Step 3: Grading Criteria
Some criteria carry more weight than others. Therefore the official must grade
the criteria. If required, Criteria 1-n in the first column of the model can be
numbered by reference to their relative importance.
 |
 |
 |