Human Rights in Administrative Decision-making II: Organizational and Ontological Reasons for the Inevitability of Administrative Discretion and Judgement

This is the second post in a series. The first post can be found here.

Even if we were to allow, for the sake of argument, that statutory provisions are always clear, discretion and judgement could not be eliminated from administrative decision-making. With respect to the administration of statutes – their implementation by front-line officials – there is always an ineradicable core of discretion and judgement: “discretionary powers may be thought of as subsystems of authority within which the official has some degree of freedom and autonomy in acting as he thinks best”.^[1] There are two sets of interrelated reasons for the inevitability of discretion and judgement. One we might term ontological, the other organizational.

Ontologically speaking, even when applying rules officials retain a significant degree of discretion.[2] As Roy Sainsbury observes, in gathering information, front-line officials enjoy a significant degree of autonomy by virtue of their ability to frame the file of any given claimant. There is “embedded discretion within the procedural and substantive rules”,[3] as front-line officials make decisions on whether a claimant satisfies the threshold for opening a file; whether to accept the claimant’s evidence and framing of the issues; whether to engage in back-and-forth with the claimant and interested third parties (such as employers) about the evidence; whether to make factual findings in favour of or against the claimant based on the relevant evidence; and whether (at the very end of the process) to make a decision for or against the claimant.

Indeed, as Richard Titmuss explained in the context of Nixon-era reforms to American public assistance programmes, increasing the ratio of rules to standards does not necessarily increase the efficiency or fairness of any given decision-making system but rather produced “more concealed discretionary power not less (for example, in the assessment of itemised goods); more frustration, bewilderment and apathy among claimants as fair hearings become more esoteric; more inequitable treatment with the growth of itemised entitlements; more administrative inefficiencies and fewer ‘quality controls’ and more hostility and fear on both sides of the counter not less”.[4]

Organisationally, Michael Lipsky has explained how “street-level bureaucrats” enjoy relative autonomy from their superiors and exercise significant discretion.[5] Empirical studies of front-line administrative decision-making support Lipsky’s thesis.

First, in his study of a Dutch administrative agency tasked with revitalising the Indonesian Quarter of the town of Zwolle, Marc Hertogh notes that how administrative officials exercise their powers may itself generate important insights. His first research question was: “‘How do public officials experience (legal principles of) administrative justice?’ Then, taking law as a dependent variable, we also ask: ‘What do public officials themselves experience as (important principles of) administrative justice?’”[6] The answer to the first question might for some be quite grim: “Two major elements of the Rechtsstaat – legality and equality – do not seem to play a significant role in [front-line officials’] day-to-day decision making. Rules and regulations are put aside in favour of more informal solutions and the allocation of houses favours some tenants in the Indonesian quarter over others.”[7] But as to the second question, “front-line officials are less inspired by the idea of ‘general justice’, which focuses on official rules and general norms…and adhere more to the idea of ‘individual justice’ that emphasises individual solutions for specific problems”.[8] They are “motivated by two different values instead: responsiveness and material equality…Both values do not constitute some degree or more or less Rechsstaat, but a different type of Rechsstaat altogether”.[9] He concludes: “the recipe for stepping up control may not be to strengthen official authority or sanctions, but rather to increase the responsiveness of the courts to front-line officials’ own beliefs about administrative justice”.[10]

Second, in their detailed study of front-line service providers in Cops, Teachers, Counselors: Stories from the Front Lines of Public Service, Steven Maynard-Moody and Michael Musheno came to similar conclusions.[11] They identify a “dual existence” of “law and cultural abidance” – that on the one hand, there is a demand that “workers apply law, rules, and administrative procedures”, but on the other hand, there is the “orientation of workers to concentrate on their judgments of who people are, their perceived identities and moral character” – which “unsettles a prevailing narrative about the state and governance”, that the state is “an edifice built on law and predictable procedures that insure that like cases will be treated alike”.[12] Rather, “behavior and identities” matter as much, if not more, than “law and beliefs” in the “everyday world of street-level work”.[13] Street-level workers “define themselves as advocates on a mission rather than bureaucrats implementing policy”.[14]

Indeed, this is a source of conflict: “Where law, policy, and rules are ill matched to workers’ views of fairness and appropriate action, street-level work smolders with conflict over what is the right decision and what is the right thing to do”.[15] Street-level workers “do not tell stories about efficiently implementing public policy; they tell stories about using policy and the system to serve individuals”.[16] The point about smoldering is critical. Contrary to the prevailing narrative that where front-line officials exercise discretion this is exceptional or marginal in fact it is a regular feature of street-level work. Street-level workers “must continually make judgments about citizen-clients to determine how to apply rules and procedures and to determine their meaning and value”:[17] “Rather than exceptionalism, we find that these moments of special attention arise from sustained tensions between legal mandates and workers’ beliefs about what is fair or the right thing to do”.[18] This is the “fundamental dilemma” or even the “defining characteristic” of street-level work: “the fundamental tension that drives many street-level work stories is the conflict between the needs and character – the identity – of the citizen-clients as defined by street-level workers and the demands of rules, procedures, and laws as understood by street-level workers”.[19]

Thirdly, Jennifer Raso has recounted how, even in an era of heavily automated social welfare decision-making, front-line officials exercise significant discretion. In her empirical study of welfare decision-making in the Canadian province of Ontario, she notes that “creative data entry and the judicious use of notes” (entered in free-text comment boxes appended to automated menus). One of her interviewees:

…described her creative use of data inputs in response to a managerial direction requiring that she meet a large number of difficult-to-locate clients within a couple of weeks to update their Participation Agreements. If updated data was not entered into the case management software program on time, those clients whose data was out of date would not receive their monthly welfare benefits. To ensure that her clients’ benefits were not cancelled, this caseworker entered placeholder data into each of her clients’ electronic Participation Agreements regardless of whether she had met with them, and then typed a note in the comments section beside her data entry to indicate that she still needed to meet with these clients and discuss which employment measures they would like to participate in.[20]

Of course, the law imposes constraints on how officials may use their discretionary powers: “discretion occurs in a context of standards, and although in the strongest cases of discretion these standards may offer little guidance or discretion, there are usually some standards guiding, constraining and influencing the way a discretionary decision is made”.[21] As Rand J, a famous Canadian judge, put it, “there is always a perspective within which a statute is intended to operate”.[22] Ronald Dworkin analogised discretion to “the hole in a doughnut”, which “does not exist except as an area left open by a surrounding belt of restriction”.[23] To illustrate his point, he distinguished between ‘weaker’ and ‘stronger’ forms of discretion. For instance, a sergeant who has been told “to pick any five men for patrol” has stronger discretion than a sergeant who “is told to take the five most experienced men”.[24] Dworkin’s discussion is useful in pointing out that the shape of the doughnut may differ from case to case. The extent to which a decision-maker is constrained by law will depend on various factors, including the language of the empowering statute, the existence of previous decisions on point and broader contextual considerations.

The tightness of the constraints of law should not be overstated, however. Discretionary powers may be granted in broad terms and even nominally ‘clear’ statutory language has an open texture; when officials are confronted with a novel situation – an exploding social welfare benefit – they may find they have little guidance from statutory language. Simon Halliday argues that the inevitability of discretion and judgment means that “administrative organisations organically produce internal normative systems in relation to which legal values are unwelcome intruders”.[25] Because “systems of internal supervision are likely to leave pockets of discretion unexposed”, it is inevitable that there will be “some role for legal conscientiousness in promoting compliance with administrative law”, but the extent of this role does not depend on the law so much as it depends on the culture within the particular organization.[26]  

Furthermore, the reality is that oversight, especially judicial oversight, to check that discretionary powers are being used appropriately, is likely to be intermittent and sporadic, such that most of the time a front-line official can be confident that he or she will not have to account to a judicial or judicialised body for the exercise of a given power: “Rules and procedures are an essential part of bureaucratic life yet provide only weak constraints on street-level judgments. Street-level work is, ironically, rule-saturated but not rule-bound”.[27] As Halliday observes based on a study of housing decisions by English local authorities, there are many “influences and factors which routinely informed the decision-making process but were in conflict with the requirements of administrative law as expressed through judicial review”.[28]

In fact, it may be that soft law, in the form of guidelines, operational manuals, internal memoranda and the like, exercises more influence over administrative discretion and judgement than statutory provisions or delegated legislation. Consider, Lorne Sossin and Laurie Pottie’s empirical study of front-line social welfare decisions in Canada, where “[t]he operational model, at times explicit and at other times implicit, is that written guidelines represent the norm, and deviations, when they occur, are exceptions to the rules”.^[29] Guidelines issued by superiors were treated as binding. For all practical purposes, guidelines were the “law” as far as front-line decision-makers were concerned:

In many welfare units, all of those interviewed considered policy guidelines as the primary if not exclusive source of guidance for day-to-day front-line decisions. Front-line staff and their supervisors stated that they rarely utilize legislation or regulations in their routine decision-making. In our discussions with welfare officials, recourse to legislation or regulations was characterized as “seldom” or “rare”. Ironically, while the purpose of guidelines is to fill in the gaps left by legislation, one official indicated that staff turn to the statute only when a guideline is unclear and requires some interpretation. Thus, in practice, it appears that the hierarchy of public law instruments is turned on its head.^[30]

This was true of Sossin and Pottie’s subjects, but in other settings hierarchy matters less than one might imagine:

Their experience-tested, practical reasoning is, in their view, superior to the abstract and ideological decisions of upper-level policymakers. Moreover, experienced and expertise make workers’ judgments superior to their citizen-clients’ insights and preferences. Street-level workers’ pragmatism and experience undergirds their moral reasoning and justifies (or to the critic, rationalizes) their assertions of power and authority relative to both their hierarchical superiors and their citizen-clients.[31]

And, as Lipsky observed, rules can be “an impediment to supervision”:

They may be so voluminous or contradictory that they can only be enforced or invoked selectively….Police behaviour is so highly specified by statutes and regulations that policemen are expected to invoke the law selectively. They could not possibly make arrests for all the infractions they observe during their working day…Similarly, federal civil-rights compliance officers have so many mandated responsibilities in comparison to their resources that they have been free to determine their own priorities.[32]

The idea that hierarchical superiors, in an administrative agency, a legislature or a court can by virtue of their hierarchical superiority exercise minute control over the actions of front-line officials is therefore quite fanciful, at least in light of the empirical literature. The ontological and organizational forces in favour of administrative discretion and judgement are too powerful for law and even soft law to fully overcome. Rather, administrative officials have a “decision frame”: “[the] structure of knowledge, experience, values and meanings that the decision-maker shares with others and brings to a choice…a master code which shapes, typifies, informs and even confirms the character of choices”.[33] Once this reality has been recognized, an important question immediately arises: how should the law (including constitutional law) be fit into this “decision frame”?

[1] Denis Galligan, Discretionary Powers: A Legal Study of Official Discretion (Clarendon Press, Oxford, 1986), at p. 22.

[2] “[In] no legal system, however minute and detailed its body of rules, is justice administered wholly by rule and without recourse to the will of the judge”. Roscoe Pound, Jurisprudence (1959), at p. 355.

[3] Roy Sainsbury, “Administrative Justice: Discretion and Procedure in Social Security Decision-making” in Keith Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1991), at p. 311.

[4] “Welfare ‘Rights’, Law and Discretion” (1970) 42 Political Quarterly 113, at p. 125.

[5] Michael Lipsky, Street Level Bureaucrats: Dilemmas of the Individual in Public Service (Sage, 1980).

[6] Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 203, at p. 207. See also Davina Cooper, “Institutional Illegality and Disobedience: Local Government Narratives” (1996) 26 Oxford Journal of Legal Studies 255.

[7] Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 203, at p. 211.

[8] Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 203, at p. 213.

[9] Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 203, at p. 214.

[10] Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 203, at p. 223.

[11] (University of Michigan Press, Ann Arbor, 2003).

[12] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 4.

[13] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 5.

[14] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 62.

[15] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 9.

[16] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 49.

[17] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 156.

[18] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 13.

[19] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 93.

[20] Jennifer Raso, “Unity in the Eye of the Beholder? Reasons for Decision in Theory and Practice”, Public Law Conference 2016, at p. 12.

[21] Denis Galligan, Discretionary Powers: A Legal Study of Official Discretion (Clarendon Press, Oxford, 1986), at p. 22.

[22] Roncarelli v Duplessis [1959] SCR 121, at p. 140. See also Miranda v Home Secretary [2014] EWHC 255, at para. 83, per Laws LJ:

[I]n English law the executive never enjoys unfettered power. All State power has legal limits, for it is conferred on trust to be exercised reasonably, in good faith, and for the purpose for which it was given by statute; and where a discretionary power touches a fundamental right, its use must fulfil the proportionality principle. It is always for the court to ascertain the statute’s purpose as a matter of construction.

[23] Taking Rights Seriously (Duckworth, London, 1977), pp. 31-39.

[24] Ibid. at p. 32.

[25] Simon Halliday, Judicial Review and Compliance with Administrative Law (Hart, Oxford, 2004), at pp. 53-54. See further ibid. at pp. 101-106, discussing factors which influence “judicial review’s capacity to secure compliance with administrative law” where there are “other forces” pushing front-line decision-makers in a different direction.

[26] Simon Halliday, Judicial Review and Compliance with Administrative Law (Hart, Oxford, 2004), at p. 173.

[27] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 10.

[28] Simon Halliday, Judicial Review and Compliance with Administrative Law (Hart, Oxford, 2004), at p. 19.

[29] Lorne Sossin and Laurie Pottie, ‘Demystifying the Boundaries of Public Law: Policy, Discretion, and Social Welfare’ (2005) 38 UBCLR 147, 157.

[30] Lorne Sossin and Laurie Pottie, ‘Demystifying the Boundaries of Public Law: Policy, Discretion, and Social Welfare’ (2005) 38 UBCLR 147, 152. Note, though, that it was the relative lack of seniority of front-line decision-makers that resulted in slavish adherence to nominally non-binding guidelines:

In the social welfare setting, front-line staff and clients are generally not in a position to distinguish between the policy guidelines that must be followed and those that are optional. Policy guidelines in the form of manuals, directives, emails, and memorandums are used to train new staff, to direct day-to-day decision-making, to justify refusals to provide benefits, and to redirect staff who stray from the norm. Unless the policy itself states that its application is discretionary (which may or may not accord with administrative practice), the likelihood is that the decision-maker will not have any sense that they are obliged to do anything other than to follow the manual.

Ibid. at p. 155. In other words, the front-line decision-makers in this setting trusted their superiors. It was part of the institutional or organizational culture to follow directives from above. This will not always be the case.

[31] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 156.

[32] Street Level Bureaucrats: Dilemmas of the Individual in Public Service (Sage, 1980), at p. 14.

[33] Keith Hawkins, “Using Legal Discretion” in Keith Hawkins ed., Uses of Discretion (Oxford University Press, Oxford, 1995).

This content has been updated on December 12, 2019 at 19:16.