The Decision-making Process (I)
This and the next chapter are concerned with control of the 'decision- making process'.1 In this chapter we first examine limitations which the law imposes on decision-makers in order to preserve the element of choice which is central to the concept of discretion. We then go on to look at controls which the law places on the matters which the decision- maker may take into account in making the decision. Chapter 8 deals with decision-making procedure.
Discretion lies at the heart of administrative activity.2 Should a developer be granted planning permission? Should any conditions be attached to the grant of a cinema licence, and if so what conditions? Should a stall-holder at a fair be deprived of his or her licence? Should a taxidriver be deprived of the right to ply his or her trade at Heathrow? Should an illegal immigrant be deported? What should the price of electricity be? Questions such as these face administrators daily. As we saw in Chapter 6, discretion is a feature not only of policy decisions but also of decisions on questions of fact and law, which often have no 'right answer' but more than one 'reasonable answer' between which the decision-maker must choose. Discretion as to procedure to be followed in making a decision can also have an important impact on the decision itself. Discretion is central not only to the making of individual decisions but also to the making of general rules. Discretion may be the product of a deliberate grant, or it may exist simply as a by-product of the power (perhaps de facto) to make decisions or rules.
The essence of discretion is choice; the antithesis of discretion is duty. The idea of 'decision-making' implies an element of choice: duty does away with the need to make decisions. Duty removes discretion; but____________________