Judicial regulation of administrative policies that influence the exercise of statutory discretions

This paper argues that, in light of the prevalence of administrative policies, the normative force they carry and the reliance placed upon them by the public, there is a need for the courts to develop the law regulating the way that administrators use policy to structure and guide the exercise of their statutory discretions. It will be argued that such developments would give effect to both the 'controlling' and the 'facilitating' objectives that underpin administrative law, and, would strike an appropriate balance between the competing values at play so as to foster good governance. First, the nature2of administrative policies, their rise as a regulatory tool of government and the growing administrative preference for policy over delegated legislation are explored. It is argued that there is a necessity for the courts to develop the law regulating the administrative use of policy to foster the democratic principle of accountability. The current legal principles regulating the use of administrative policies in a discretionary context, under the broad banner of the 'fettering by rigidity principle' are explored and assessed. It is argued that the fettering by rigidity principle has been applied in a nuanced and variable way, and that it plays an important role in fostering good governance, particularly by promoting flexibility, responsiveness and participation, but does not go far enough in promoting the values of certainty, fairness and consistency. It is argued that a more appropriate balance between these values could be struck by developing a duty for administrators to apply policy consistently and only to depart for good reasons. Finally, it is argued that the principle of legitimate expectations should be developed to allow for substantive protection where an administrator unjustifiably frustrates the trust and reliance which individuals may have placed in an existing policy where that policy is subsequently replaced by a new one.

Grantor dc:publisher.institution

Department of Public Law

Year dc:date.issued

2016

Author dc:creator

• Adderley, Megan

Advisor dc:contributor.advisor

• Corder, Hugh

Language dc:language.iso

eng

Handle dc:identifier.uri

http://hdl.handle.net/11427/20811

OAI identifier oai:identifier

oai:open.uct.ac.za:11427/20811