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The Flexibility Rule in Administrative Law

Cambridge Law Journal (Forthcoming)

33 Pages Posted: 10 Jan 2017 Last revised: 30 Mar 2017

Adam Perry

University of Oxford - Faculty of Law

Date Written: January 4, 2017

Abstract

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

Keywords: Policies, Rules, Fetter, Sandiford, Flexibility, Participation

Suggested Citation

Perry, Adam, The Flexibility Rule in Administrative Law (January 4, 2017). Cambridge Law Journal (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2893766

Adam Perry (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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