The flexibility rule in administrative law
Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used,...
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| Format: | Journal article |
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Cambridge University Press
2017
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| author | Perry, A |
| author_facet | Perry, A |
| author_sort | Perry, A |
| collection | OXFORD |
| description | Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers. |
| first_indexed | 2024-03-07T03:05:08Z |
| format | Journal article |
| id | oxford-uuid:b23d1938-33f8-4829-bb6a-7ea1a2573903 |
| institution | University of Oxford |
| last_indexed | 2024-03-07T03:05:08Z |
| publishDate | 2017 |
| publisher | Cambridge University Press |
| record_format | dspace |
| spelling | oxford-uuid:b23d1938-33f8-4829-bb6a-7ea1a25739032022-03-27T04:10:21ZThe flexibility rule in administrative lawJournal articlehttp://purl.org/coar/resource_type/c_dcae04bcuuid:b23d1938-33f8-4829-bb6a-7ea1a2573903Symplectic Elements at OxfordCambridge University Press2017Perry, AAdministrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers. |
| spellingShingle | Perry, A The flexibility rule in administrative law |
| title | The flexibility rule in administrative law |
| title_full | The flexibility rule in administrative law |
| title_fullStr | The flexibility rule in administrative law |
| title_full_unstemmed | The flexibility rule in administrative law |
| title_short | The flexibility rule in administrative law |
| title_sort | flexibility rule in administrative law |
| work_keys_str_mv | AT perrya theflexibilityruleinadministrativelaw AT perrya flexibilityruleinadministrativelaw |