Chapter

Fair Procedures in Discretionary Decisions

D. J. Galligan

in Discretionary Powers

Published in print May 1990 | ISBN: 9780198256526
Published online March 2012 | e-ISBN: 9780191681653 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198256526.003.0007

Series: Clarendon Paperbacks

Fair Procedures in Discretionary Decisions

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The question of fair procedures in discretionary contexts has been in recent years of increasing concern to the legislature, court, and administrative authorities. This chapter deals with that issue and considers the ways in which traditional procedural doctrines, based around the ancient principles of natural justice, have been developed and extended to take account of discretionary powers. The analysis goes beyond that, however; it begins by considering the basis of procedural fairness, for without some theoretical stance it is difficult to assess the course of legal doctrines and to suggest lines for further development. It is also necessary to consider the place that the concepts of representation and participation have in the design of procedures. In Chapter 2 it was suggested that there are limits on the capacity to regulate discretionary powers by general legal norms, and that, accordingly, participatory procedures are important in influencing outcomes and in securing their legitimacy. The chapter attempts to show how these ideas can be translated into specific procedural requirements. The concept of consultation is considered and shown to be especially helpful in linking discretionary powers to the broader political system, and in devising appropriate modes of participation. Finally, within this general framework, procedural doctrines developed by the courts are considered.

Keywords: fair procedures; discretionary powers; representation; participation; consultation

Chapter.  24230 words. 

Subjects: Human Rights and Immigration

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