Administrative Discretion, Administrative Rule-Making and Judicial Review

27 Pages Posted: 29 Sep 2017

Date Written: September 12, 2017

Abstract

This article surveys the development of judicial control of administrative rule-making in the UK since the early 1970s and proposes a major reconceptualisation of the role of the courts in this area.

Although the starting point for legal analysis of administrative rule-making remains the presumption that discretion must be retained, as encapsulated in the no-fettering rule, the article argues that judicial attitudes have changed substantially over the period under examination. The law has developed from a position which, without prohibiting administrative rule-making, deprived it of any significant legal status or effect, through an essentially permissive approach ushered in by British Oxygen Co Ltd v Minister of Technology. This landmark case paved the way for increasing judicial regulation of administrative rules from the 1980s onwards, culminating in the situation today in which, mainly under the influence of the Human Rights Act, the adoption of rules or policies may sometimes be mandatory. Nevertheless, despite increasing judicial control over rule-making practices, the article argues that the law in this area remains far from satisfactory. On the one hand, while the no-fettering rule continues to frame and shape judicial intervention, it exists in considerable tension with newer legal doctrines and its scope and functions appear to have altered. On the other hand, judicial regulation of administrative rule-making is still patchy and incomplete, and its conceptual basis is often unclear.

The article therefore contends that the time is ripe for a fundamental reconsideration of judicial control of administrative rule-making. It proposes that a clearer distinction should be drawn between the questions (1) whether administrative actors should seek to structure their discretion through rules and (2) how administrative rules should be regulated if they have been adopted. It argues for a relaxation of judicial control over the former question, advocating the abandonment of the no-fettering rule in favour of residual, rationality-based control over the degree of structuring which is appropriate in particular contexts. However, it recommends an extension and systematisation of judicial control over administrative rules, once a decision has been made to employ them, drawing upon an understanding of the functions of administrative rule-making to generate suitable regulatory standards.

Keywords: Administrative rule-making, no-fettering rule, judicial review

Suggested Citation

McHarg, Aileen, Administrative Discretion, Administrative Rule-Making and Judicial Review (September 12, 2017). Available at SSRN: https://ssrn.com/abstract=3044092 or http://dx.doi.org/10.2139/ssrn.3044092

Aileen McHarg (Contact Author)

University of Strathclyde ( email )

16 Richmond Street
Glasgow 1XQ, Scotland G1 1XQ
United Kingdom

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