Tribunals and Guidelines: Exploring the Relationships between Fairness and Legitimacy in Administrative Decision-Making
The objective of this paper is to address two questions: why do administrative tribunals such as the Immigration Refugee Board resort to developing guidelines, and what are the principles and values which legitimize these initiatives? The role of tribunals in policy-making and/or policy-implementing raises important questions. For example, to whom are tribunals accountable for the development and application of guidelines where the functions of a tribunal - especially the adjudicative functions - are intended to be independent of government?The authors seek to understand better the dynamics of tribunals’ role in the policy process. They propose a classification of guidelines based on the function they perform in administrative proceedings and provide an analysis of the normative framework underlying guidelines. The authors explore how a legal analysis of guidelines might shed on the theory and practice of public administration. The authors conclude that in the absence of a nuanced understanding of the legal status of guidelines, the relationship between administrative practice and the rule of law remains uncertain and unstable.
Discretion Unbound: Reconciling the Charter and Soft Law
The issue of when, how and why the court may remedy the unconstitutional exercise of administrative discretion is largely unexplored. This study explores the relationship between discretion and the Charter and argues for a broader, more contextual approach to remedying the source of unconstitutional discretion. Guidance as to how to exercise broad discretionary authority comes in the form of “soft law,” which encompasses a variety of non-legislative instruments such as policy guidelines and training materials, and which, more informally, extends to administrative culture. Administrative discretion involves choices and judgments usually shaped by a range of legal, bureaucratic, social and personal factors. Under present jurisprudence, the less precise a statutory discretion and the greater the reliance on non-legislative guidelines, the more difficult that discretion will be to subject to constitutional scrutiny. This article challenges this logic and concludes that respect for governmental accountability and the rule of law require bringing soft law out of the constitutional shadows. The first part of the analysis examines the regulation of discretion generally and soft law specifically outside the Charter. The second part analyses the leading case law on the regulation of discretion under the Charter. The third section explores the intersection of discretion, soft law and the Charter. Finally, the fourth section considers the problem of remedying unconstitutional exercises of discretionary authority. Alternative principles are suggested for the development and application of soft law, which envisions a central role for the Charter in rendering the discretionary decision-making process more accountable and just.
Discretion in Social Welfare: The Uneasy Position in the Rule of Law
Prior to the routinization and bureaucratization of public welfare, the system could be loosely described as discretionary, professional, and decentralized. In general, eligibility was not clear-cut; budgets were individually determined. But even in those days, there were rules. Professionalization was the ideal, but most workers were in fact not professionals. And there were efforts at centralization at both the federal and state levels. Certainly as compared to the present, however, the public assistance programs had far more play. What was that system like? Then, as now, there was great variety, but some generalizations can be made. Wisconsin was a benign, liberal system. Basic grants were relatively generous, there was an elaborate system of special grants to meet both emergency and rehabilitative goals, and there was a considerable degree of professionalism. In practice, however, the system was quite routinized. The special needs program was not utilized in any significant amount; it depended, for the most part, on client initiative and clients lacked information or were hesitant to ask. The caseworkers, a shifting sea of people who used their public assistance jobs as way stations, were not particularly interested in spending more agency resources or engaging in more paperwork. At that time, home visits were mandatory, but, for the overwhelming majority of recipients, the visit was pleasant and attitudes toward the caseworker were positive. For the most part, these were friendly, non-threatening social calls. But in the rare situation in which caseworkers did have control over something that the clients wanted, then negative feelings arose-feelings of dependency and coercion. The next example comes from Professor Mashaw's empirical work in Virginia, but is a story that has been found many times over in many parts of the country. These are the depressing tales of refusals to take