The Inevitability of Discretion and Judgement in Front-Line Decision-Making in the Administrative State

I. Introduction

Most people’s encounters with law and legislation occur in the administrative state: when they return from holidays and meet a border official; when they obtain a driver’s license; when they apply for a building permit; and, of course, when they apply for social assistance of one sort or another. These encounters occur – unseen to the layperson’s eye – in a legal framework, occasionally influenced by considerations of constitutional law. Much of the time, front-line officials are individuals first and last points of contact with the state. Occasionally, an individual will seek an internal review, or appeal to a tribunal. Only rarely will a dispute between the individual and the state end up in court. Accordingly, how front-line officials treat legal instruments, such as statutes and constitutional provisions, is of cardinal importance.

My goal in this paper is to outline how such officials should give effect to legal instruments such as statutory provisions and constitutional texts. I will argue that front-line officials are not automatons, mechanically implementing commands issued by the legislature and their hierarchical superiors. Rather, they exercise significant discretion and judgement. In doing so, I argue that it would be unrealistic and inappropriate to expect them to think like lawyers. Instead, I propose that front-line officials adopt an informal, good faith approach in which they take legal instruments seriously but do not attempt to implement them as they imagine trained lawyers would. These diagnoses and prescriptions are strongly supported by empirical evidence.

In Part I, I explain that in interpreting legislation, front-line officials inevitably have to exercise discretion and judgement, due to the open texture of legal instruments. In Part II, I identify ontological and organizational reasons for the inevitability of administrative discretion and judgement; even assuming for the sake of argument that, sometimes, statutes are “clear”, front-line officials will still exercise significant discretion and judgement, a proposition supported by empirical research. In Part III, I explain why it would be unrealistic and inappropriate to require front-line officials to think like lawyers, exercising their functions with constitutional law and statutory interpretation texts at their elbows. Finally, in Part IV, I lay out my informal, good faith approach, describing (bolstered by empirical evidence) how front-line officials ought to exercise their discretion and judgement and explaining how this approach furthers the rule of law and democracy. Notice that my focus here is on front-line officials: further up the administrative hierarchy, department heads and administrative tribunals might find themselves under more exacting obligations; nothing I say in what follows should be taken as extending any further than the front lines of public administration. And this essay does not touch either on judicial review of administrative action: my concern here is with front-line officials, not with the rules and principles applied by courts in the exercise of their supervisory jurisdiction over the administrative state; these might, on occasion, filter down to the front lines but as I will demonstrate, front-line officials exercise a great deal of discretion and judgement which is unlikely ever to be reviewed by a court. Accordingly, it is important to focus on how front-line officials exercise such discretion and judgement and it is to that important task that this essay is devoted.

II. Interpreting Legislation

Legislation is sometimes vague or ambiguous. Lawyers tend to describe any degree of indeterminacy as “ambiguity”, but this is incorrect: “Ambiguity in the strict sense – with a stark choice between given interpretations – is comparatively rare in legislative drafting”.^[1] Typically, lawyers struggling to give meaning to a statutory provisions have been confronted instead by vagueness: “The difficulty with vague concepts is in deciding whether some apparent instance at the margins is inside or outside of the concept”.^[2] Especially where an administrative official has been tasked with implementing a statutory scheme, “legislation is often deliberately worded vaguely, the intention being that vaguely worded standards will be made more concrete by the decisions of specialized administrative actors, who are best placed to develop the relevant policies”.^[3] Old-style ‘command-and-control’ regulation has been replaced by “new governance techniques which have been fashionable in academic and policy circles for some time”.^[4] Already in the 1990s, regulatory theorists could recognize that discretion was being distributed “within rules in which legal actors may exercise choice” through the “conscious and strategic use of terms which are vague as to manner, time or place, are evaluative or use generic terms to act as implicit derogations…”^[5] The process has only accelerated since then, with context-sensitive techniques such as principles-based regulation, responsive regulation and risk-based regulation coming to the fore, all of which involve the exercise of discretion and judgement by front-line officials overseen by hierarchical superiors.

Where legislation is ambiguous or (more commonly) vague, it is inevitable that an administrative official will exercise discretion or judgement in putting the legislation into effect: “Most regulatory statutes give regulators broad discretions and implementing the mandate thus involves interpretation”.^[6] As Lord Hoffmann observed in Moyna v Secretary of State for Work and Pensions, “[i]n any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way”.^[7] In the regulatory context generally, where statutes “often set out objectives that exist at mutual tension”, there is significant scope for judgement and discretion in making the inevitable tradeoffs between multiple competing objectives.^[8]

Even where a statute is neither ambiguous nor vague it will contain language which is open-textured. As HLA Hart put it, “[i]n all fields of experience, not only that of rules, there is a limit, inherent in the nature of language, to the guidance which general language can provide”.^[9] The philosopher JL Austin brilliantly captured the open texture of language with his example of a “goldfinch” which explodes or begins to quote Virginia Woolf.^[10] The point is that “goldfinch” has obvious standard instances but the term becomes indeterminate once we are faced with a goldfinch which has exploded. Linguistic open texture arises from “the possibility of vagueness – the potential vagueness – of even those terms that appear to have no uncertainties with respect to known or imagined applications”.^[11] Situations may arise in which our existing language conventions are no longer capable of describing reality.

When it comes to legal language, lawyers are less concerned with exploding goldfinches than with scenarios in which giving effect to the plain meaning of a statutory provision would lead to a problematic result: “In such cases we do not have linguistic open texture, but we might have legal open texture, and it is in such cases that legal decisionmakers must decide what to do”.^[12] In legal systems the potential for the text and purpose of a provision to come into conflict is “ever present”: “If the straightforward reading of the law produces a ridiculous or even merely suboptimal outcome, are legal actors required or even permitted to reach the right outcome instead of the outcome seemingly mandated by the plain meaning of the words on the page?”^[13] The famous debate between Professor Hart and Professor Lon Fuller about the nature of law turned in part on the ‘no vehicles in the park’ hypothetical.^[14]

For Hart, in penumbral cases – bicycles, roller skates or toy automobiles – the official must “exercise a creative choice between alternatives”,^[15] drawing on “various aims and policies” (which are not “law” in the same way as the “core of legal rules whose meaning is settled”).^[16] In response to the Fullerian view that, in such instances, judges must look to the true purpose of the rule in question such that penumbral cases involve a natural elaboration of the scope of an existing rule of law, Hart thought “it cannot be doubted that, for most cases of interpretation, the language of choice between alternatives, ‘judicial legislation’ or even ‘fiat’ (though not arbitrary fiat), better conveys the realities of the situation”.^[17] For Fuller, by contrast, even where individual words are in issue, the same process – construing words against the purpose sought to be achieved – is operative: “If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, ‘without thinking,’ that a noisy automobile must be excluded”.^[18] Therefore, it is only by discerning the objectives of the drafters of such a statute that we can accurately determine the range of cases it ought to be applied to.^[19] Both protagonists can be understood to accept that discretion and judgment will often be required of interpreters.^[20]

Legal open texture can also be observed in scenarios where statutes are interpreted in accordance with constitutional principles. In Riggs v Palmer, the majority of the New York Court of Appeals famously gave overriding effect to the principle that no man shall profit from his own wrong notwithstanding statutory language which clearly permitted the claim of a beneficiary of a will who murdered the testator (in order to prevent the latter from changing the will).^[21] In two well-known apex-court decisions from the United Kingdom – Anisminic v Foreign Compensation Commission^[22] and R (Privacy International) v Investigatory Powers Tribunal^[23] – a majority of judges refused to give effect to statutory provisions ousting judicial review of executive action, decisions which have been understood to have been grounded in the rule of law and/or separation of powers.^[24] In these cases, statutory language which was clear as a linguistic matter – the murderer can inherit; the courts cannot consider the lawfulness of certain administrative decisions – became open textured when the constitutional implications of clarity were considered. The interpreters had to exercise discretion and judgement in ascertaining the scope of the statutory provisions at issue.

Open texture – whether of the linguistic or legal variety – can be observed in many areas. Background context may render unclear language which seems, at first glance, pellucidly clear.^[25] On highways in Montreal, there are prominent signs proclaiming “MAX: 100; MIN: 60”. The language here is clear: one may not exceed 100km/h and one must exceed 60km/h. What if, however, you are stuck in traffic? When I lived in Montreal, I was often stuck in traffic and had plenty of time to stare at those signs and ponder their meaning. As a linguistic matter, when traffic had snarled up I was violating the rule. Obviously, though, no traffic cop would give me a ticket and, in the unlikely event that one did, no judge would uphold it. This even though the rule is linguistically clear. Those charged with enforcing the rule therefore must exercise discretion and judgement.^[26]

Sometimes, unforeseen scenarios can create open texture. Here I have in mind not merely the unfortunate applications of a clear rule – as in Riggs v Palmer – but truly outlandish scenarios like the one envisaged by Anthony D’Amato in “Aspects of Deconstruction: The ‘Easy Case’ of the Under-Aged President”.^[27] It seems clear that someone under the age of 35 cannot become president of the United States^[28] until “we are willing to supply a suitable context in which we can imagine that an eighteen year-old would be nominated and have a serious chance of winning the election”.^[29] A “contextual change” – a student-led revolt or a disease which wipes out everyone over the age of twenty – permits the making of innovative and unforeseeable arguments, which would previously have been classified as “outrageous”.^[30] Whether we describe this as an instance of linguistic or legal open texture,^[31] the point is that even when we accept that language is clear, in some instances those charged with interpreting it will have to exercise discretion and judgement in giving effect to the formerly outrageous argument or sticking fast to the clear meaning of the provision at issue.^[32]

Experience suggests, moreover, that the meaning of statutory language is often not “clear” at all, certainly not when an authoritative interpreter is called upon, for where there is disagreement it usually follows that, “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning”.^[33] It has even been doubted whether, as an analytical matter, statutes can ever be “clear”: “As a matter of fact, in most cases when courts say that a statute is plain and therefore needs no interpretation, they do so in the inverted fashion which marks so much of the judicial process. They have already interpreted, and they then declare that so interpreted the statute needs no further interpretation”.^[34] The point is not that law is in some way radically indeterminate but that significant discretion and judgement is often exercised by interpreters, even in situations where the statutory language at issue might be said to be “clear”.

III. The Inevitability of Discretion and Judgement

Even if we were to allow, for the sake of argument, that statutory provisions are always clear, discretion and judgement could not be eliminated from administrative decision-making. With respect to the administration of statutes – their implementation by front-line officials – there is always an ineradicable core of discretion and judgement, creating “subsystems of authority within which the official has some degree of freedom and autonomy in acting as he thinks best”.^[35] There are two sets of interrelated reasons for the inevitability of discretion and judgement. One we might term ontological, the other organizational.

Ontologically speaking, even when applying rules front-line officials retain a significant degree of discretion.^[36] As Roy Sainsbury has observed, in gathering information, front-line officials enjoy a significant degree of autonomy by virtue of their ability to frame the file of any given claimant. There is “embedded discretion within the procedural and substantive rules”,^[37] as front-line officials make decisions on whether a claimant satisfies the threshold for opening a file; whether to accept the claimant’s evidence and framing of the issues; whether to engage in back-and-forth with the claimant and interested third parties (such as employers) about the evidence; whether to make factual findings in favour of or against the claimant based on the relevant evidence; and whether (at the very end of the process) to make a decision for or against the claimant.^[38]

Indeed, as Richard Titmuss explained in the context of Nixon-era reforms to American public assistance programmes, increasing the ratio of rules to standards does not necessarily increase the efficiency or fairness of a given decision-making system but rather produced in 1970s America, “more concealed discretionary power not less (for example, in the assessment of itemised goods); more frustration, bewilderment and apathy among claimants as fair hearings become more esoteric; more inequitable treatment with the growth of itemised entitlements; more administrative inefficiencies and fewer ‘quality controls’ and more hostility and fear on both sides of the counter not less”.^[39]

Organisationally, Michael Lipsky has explained how “street-level bureaucrats” enjoy relative autonomy from their superiors and exercise significant discretion.^[40] To begin with, consider Lorne Sossin and Laurie Pottie’s empirical study of front-line social welfare decisions in Canada, where “[t]he operational model, at times explicit and at other times implicit, is that written guidelines represent the norm, and deviations, when they occur, are exceptions to the rules”.^[41] Nominally non-binding guidelines issued by superiors were treated as binding. For all practical purposes, guidelines were the “law” as far as front-line officials were concerned:

In many welfare units, all of those interviewed considered policy guidelines as the primary if not exclusive source of guidance for day-to-day front-line decisions. Front-line staff and their supervisors stated that they rarely utilize legislation or regulations in their routine decision-making. In our discussions with welfare officials, recourse to legislation or regulations was characterized as “seldom” or “rare”. Ironically, while the purpose of guidelines is to fill in the gaps left by legislation, one official indicated that staff turn to the statute only when a guideline is unclear and requires some interpretation. Thus, in practice, it appears that the hierarchy of public law instruments is turned on its head.^[42]

This was true of Sossin and Pottie’s subjects, but in other settings hierarchy matters less than one might imagine:

[Front-line officials’] experience-tested, practical reasoning is, in their view, superior to the abstract and ideological decisions of upper-level policymakers. Moreover, experienced and expertise make workers’ judgments superior to their citizen-clients’ insights and preferences. Street-level workers’ pragmatism and experience undergirds their moral reasoning and justifies (or to the critic, rationalizes) their assertions of power and authority relative to both their hierarchical superiors and their citizen-clients.^[43]

And, as Lipsky observed, rules can be “an impediment to supervision”:

They may be so voluminous or contradictory that they can only be enforced or invoked selectively….Police behaviour is so highly specified by statutes and regulations that policemen are expected to invoke the law selectively. They could not possibly make arrests for all the infractions they observe during their working day…Similarly, federal civil-rights compliance officers have so many mandated responsibilities in comparison to their resources that they have been free to determine their own priorities.^[44]

Empirical studies of front-line administrative decision-making support Lipsky’s thesis and also underscore the ontological reason for the inevitability of administrative discretion and judgement.

First, in their detailed study of front-line service providers in Cops, Teachers, Counselors: Stories from the Front Lines of Public Service, Steven Maynard-Moody and Michael Musheno identified a “dual existence” of “law and cultural abidance” – that on the one hand, there is a demand that “workers apply law, rules, and administrative procedures”, but on the other hand, there is the “orientation of workers to concentrate on their judgments of who people are, their perceived identities and moral character” – which “unsettles a prevailing narrative about the state and governance”, that the state is “an edifice built on law and predictable procedures that insure that like cases will be treated alike”.^[45] Rather, “behavior and identities” matter as much, if not more, than “law and beliefs” in the “everyday world of street-level work”.^[46] Street-level workers “define themselves as advocates on a mission rather than bureaucrats implementing policy”.^[47]

Indeed, this is a source of conflict: “Where law, policy, and rules are ill matched to workers’ views of fairness and appropriate action, street-level work smolders with conflict over what is the right decision and what is the right thing to do”.^[48] Street-level workers “do not tell stories about efficiently implementing public policy; they tell stories about using policy and the system to serve individuals”.^[49] The point about smoldering is critical. Contrary to the prevailing narrative that where front-line officials exercise discretion this is exceptional or marginal, in fact it is a regular feature of street-level work. Street-level workers “must continually make judgments about citizen-clients to determine how to apply rules and procedures and to determine their meaning and value”:^[50] “Rather than exceptionalism, we find that these moments of special attention [to citizens] arise from sustained tensions between legal mandates and workers’ beliefs about what is fair or the right thing to do”.^[51] This is the “fundamental dilemma” or even the “defining characteristic” of street-level work: “the fundamental tension that drives many street-level work stories is the conflict between the needs and character – the identity – of the citizen-clients as defined by street-level workers and the demands of rules, procedures, and laws as understood by street-level workers”.^[52]

Second, in his study of a Dutch administrative agency tasked with revitalising the Indonesian Quarter of the town of Zwolle, Marc Hertogh asked, “‘How do public officials experience (legal principles of) administrative justice?’” The answer to this question was that in “day-to-day decision making” by front-line officials, “[r]ules and regulations are put aside in favour of more informal solutions and the allocation of houses favours some tenants in the Indonesian quarter over others.”^[53]

Thirdly, Jennifer Raso has recounted how, even in an era of heavily automated social welfare decision-making, front-line officials exercise significant discretion. In her empirical study of welfare decision-making in the Canadian province of Ontario, she notes that “creative data entry and the judicious use of notes” (entered in free-text comment boxes appended to automated menus) proliferate. One of her interviewees:

…characterized her inventive data entries as a response to a managerial direction that all caseworkers must meet difficult-to-locate clients within a few weeks and update these clients’ Participation Agreements. If updated data were not entered into SAMS by the deadline, the software would not generate the next month’s core benefits payments to any clients with outdated data. This deadline had no basis in the OWA or its regulations. To prevent her clients’ benefits from being cancelled, this caseworker entered placeholder data into each client’s digital file regardless of whether she had met with that client. She stated: “I might put an activity in, 'independent job search,” and then I’ll put a note, “Client needs to be assessed.'” She then indicated in the comments section beside this placeholder data that she still needed to consult with these individuals about the training programs and workshops they would like to pursue.^[54]

Fourthly, based on his study of local authority housing decisions in England, Simon Halliday argues that the inevitability of discretion and judgment means that “administrative organisations organically produce internal normative systems in relation to which legal values are unwelcome intruders”.^[55] Because “systems of internal supervision are likely to leave pockets of discretion unexposed”, it is inevitable that there will be “some role for legal conscientiousness in promoting compliance with administrative law”, but the extent of this role does not depend on the law so much as it depends on the culture within the particular organization.^[56]

Furthermore, the reality is that oversight, especially judicial oversight, to check that discretionary powers are being used appropriately, is likely to be intermittent and sporadic, such that most of the time a front-line official can be confident that he or she will not have to account to a judicial or judicialized body for the exercise of a given power: “Rules and procedures are an essential part of bureaucratic life yet provide only weak constraints on street-level judgments. Street-level work is, ironically, rule-saturated but not rule-bound”.^[57] As Halliday observes, there are many “influences and factors which routinely informed the decision-making process but were in conflict with the requirements of administrative law as expressed through judicial review”.^[58]

It follows from this empirical evidence that the idea that hierarchical superiors, in an administrative agency, a legislature or a court can by virtue simply of their hierarchical superiority exercise minute control over the actions of front-line officials is quite fanciful. The ontological and organizational forces in favour of administrative discretion and judgement are too powerful for law (or even soft law) to overcome in all situations. Rather, front-line officials have a “decision frame”: “[the] structure of knowledge, experience, values and meanings that the decision-maker shares with others and brings to a choice…a master code which shapes, typifies, informs and even confirms the character of choices”.^[59] Law, or soft law,^[60] may be influential but this will not necessarily be the case.

Consider, in this regard, Hertogh’s second research question in respect of the Dutch study mentioned above: “What do public officials themselves experience as (important principles of) administrative justice?”^[61] His answer was that “front-line officials are less inspired by the idea of ‘general justice’, which focuses on official rules and general norms…and adhere more to the idea of ‘individual justice’ that emphasises individual solutions for specific problems”.^[62] They are “motivated by two different values instead: responsiveness and material equality”.^[63]

Once the inevitability of administrative discretion and judgement has been recognized, an important question immediately arises: how should legal instruments, such as statutory provisions and constitutional texts, fit into this “decision frame”?

IV. Exercising Discretion and Judgement

Given the inevitability of administrative discretion and judgement, how ought it be exercised? I argue in this section that it would be unrealistic and inappropriate for front-line officials to be expected to reason as lawyers would.

It would be unrealistic to expect front-line officials to think like lawyers because, most of the time, they are not trained lawyers. The empirical evidence suggests, moreover, that organizational and professional culture dominates consideration of how front-line officials see their roles. Culture here can refer to the professional culture of the front-line official (for instance, lawyers working in public bodies may identify with the legal profession as well as with the body they work for) or the decision-making body she serves: “Street-level workers have strong occupational identities”;^[64] and they may “describe their jobs as callings”.^[65] In an illuminating discussion of discretion, Martha Feldman explains that while “[l]aws, regulations, organizational rules, and managerial dictates all specify appropriate behaviors”, these mechanisms “are not sufficient in the case of discretionary behavior”.^[66] She notes the importance of formal training – through which “[p]ractitioners learn to value particular skills and means of doing their work and to believe that what they have learnt constitutes the right way to do their work”^[67] – informal socialization – through which the “modes of operation” of the organization are communicated^[68] – and routines – “patterns of behaviour engaged in by more than one person in response to a common stimulus”.^[69] The “unique markers” of “occupational identities” have the effect of “establishing unwritten but enforceable expectations of the ‘good’ worker and defining their jobs’ key tensions and contradictions”.^[70] These are important supplements to formal limits on authority, with particular characteristics: “These limits are not absolute or determinate. They do not prescribe specific behaviors. Limits are interpreted differently by different people. People do not always agree about whether the limits have been transgressed. Thus, the limits cannot be enforced through sanctions, and they cannot be expressed in formal rules”.^[71] Notwithstanding their indeterminacy and fluidity, they may, by virtue of their immediacy, be more robust than formal limits in some or even many cases. Culture here also includes the broader political setting, which may be relevant. For instance, in Halliday’s study of housing decision-making in local authorities, “[t]he local political environment of antipathy towards the homeless” was observable in organisational priorities and “also felt more directly in terms of the supervision of caseworkers by their team leaders”.^[72]

Given the reality of how front-line officials actually exercise discretion and judgement, inculcating deep knowledge of – say – the principles of statutory and constitutional interpretation in front-line officials would be very difficult. Not only are the technicalities of legal interpretation hard to master, this knowledge (if inculcated) would have to compete in any event with the cultural norms embedded in the decision-making environment.

It would also be inappropriate to expect front-line officials to master the details of legal interpretation.^[73] Where a legislative choice has been made to delegate authority to bodies other than courts, it ill becomes courts to insist on the application of judicially crafted doctrine to circumscribe the authority of administrative officials. Such an approach holds non-lawyers to legal standards and forces them to adopt an interpretive mindset that is not necessarily their own.^[74] The upshot is that all front-line officials have to think like lawyers, even if the whole point of empowering them in the first place was to avoid having decisions made by people who think like lawyers.

V. An Informal, Good Faith Approach

Having explained in the previous section how front-line officials should not exercise the discretion and judgement they inevitably exercise, I turn in this section to how they should do so. My answer has two prongs. First, front-line officials should approach legal instruments such as statutes and constitutional texts in an informal manner, developing an understanding of the instruments which coheres with the officials’ understandings of the objectives of the regulatory schemes they are charged with administering. Second, in applying legal instruments, front-line officials should make a good faith effort to remain within the boundaries of the legal framework they are operating in. This should be part of the decision frame they use in their daily activities.

In terms of informality, Abella J’s reasons for the Supreme Court of Canada in Doré v Barreau du Québec^[75] are particularly notable. Abella J’s reasons targeted, in particular, the application of Canada’s Charter of Rights and Freedoms but the guidance they contain is of general relevance to front-line officials. Here, the applicant was a lawyer who was reprimanded by his regulatory association for writing an intemperate letter to a trial judge with whom he had locked horns. The dispute between the two was extremely heated, but the letter was not made publicly available. The lawyer did not challenge the validity of the Code of Ethics under which he was punished by a disciplinary tribunal, but challenged the decision as a violation of his right to freedom of expression.

Doré has been much maligned for the risk it creates of under-powered judicial review of administrative action which infringes constitutional fundamentals.^[76] It replaces the hard-edged proportionality test set out in R v Oakes^[77] with the more deferential standard of reasonableness. But this should not be allowed to obscure the crucial passage in which Abella J set out the analytical approach front-line officials should take in Charter cases:

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives…Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives…^[78]

This approach recognizes that it would be unrealistic and inappropriate to require administrative officials to have Professor Hogg’s loose-leaf Constitutional Law of Canada text to hand whenever they encounter a human rights issue and Ruth Sullivan’s text on the interpretation of statutes on the shelf in case a knotty interpretive problem arises in the course of their work. It deformalizes the process of decision-making by front-line officials. Rather than the Charter, they are directed towards Charter values; rather than statutory text, they are directed towards statutory objectives. And they are directed to balance Charter values against statutory objectives, having regard to “the specific facts of the case”.^[79]

In terms of good faith Abella J’s approach recognizes that front-line officials should take the Charter seriously. The document is not “some holy grail which only judicial initiates of the superior courts may touch” but one which belongs to the people and, as a result, “law and law-makers that touch the people must conform to it”.^[80] There is no free pass for front-line officials: they must make a good faith, conscientious attempt to apply the Charter and respect the human rights of those citizens with whom they come into contact. This does not require them to engage in a detailed proportionality analysis (the so-called “Oakes test”) but to balance Charter values with their statutory objectives. They must, the Supreme Court has recently emphasized in its articulation of reasonableness review in Vavilov v Canada (Immigration and Citizenship), justify their decisions in light of the applicable legal and factual constraints, be responsive to the arguments made by the individuals who appear before and take particular care with decisions which have potentially harsh consequences for those concerned.^[81]

There is further support for Abella J’s approach in an important recent book by Margaret Doyle and Nick O’Brien, Reimagining Administrative Justice: Human Rights in Small Places.^[82] They argue, amongst other things, for a reinvigorated administrative justice system, shorn of formalism and legalism. They deplore the fact that, “[f]or the most part, human rights and administrative justice are ships that pass in the night”,^[83] as there is now a “two-tier system which recognises civil and political rights as superior, with legal enforceability the essential criterion of credibility”.^[84] What is required is a return to the original post-World War II vision of human rights, which “entails engagement more with the ‘culture’ or ‘mentality’ of human rights as an instrument for promoting social citizenship and equality than with human rights law as a vehicle primarily for protecting individual liberty, and with the implications of that culture for the specific issue of administrative justice design”.^[85] In their view a human rights charter is not simply a “conventional legal instrument” but is rather “a charter for the achievement of relational rights and social citizenship more than merely individual civil rights in isolation from a broader communitarian vision”.^[86] These rights are relational and “consistently with that relational focus, they articulate the foundations of an ethic of care and ‘active kindness’ as the overriding institutional value of the democratic state that administrative justice must serve”.^[87]

For Doyle and O’Brien, administrative justice is “a set of principles for shaping humane relationships between citizen and state”,^[88] not to be confused with legalistic notions of procedural fairness and human rights: “Too much ‘system’ can lead to precisely the uniformity, bureaucracy and inflexibility (associated so often with the legal system) that administrative justice has always aspired to counter”.^[89] In the United Kingdom, a focus on “‘right first time’, has resulted in a ‘system’ that resembles an ever-busy assembly line of complaints and appeals rather than the ‘learning machine’ focused on improvement”.^[90] They identify “the alternative values of ‘community’ (rather than individual user), ‘network’ (as opposed to system) and ‘openness’ (instead of closure)”^[91] as a means of creating “demosprudence”, “a term intended to denote practices that build on the ability of social movements or mobilized communities to make, interpret and change the law. It is a means of making more democratic the process of responding to citizen grievance and of ensuring that legal change is embedded in broader cultural transformation”.^[92] Indeed, theirs is a theory of law “that seeks to democratise the process of responding to grievance by fashioning values and processes that can enable civic participation and create bridges between different interests”.^[93] Ultimately, the aims of administrative justice should extend to “the promotion of virtuous behaviour among street-level bureaucrats, to the cultivation of virtuous disposition and so to the support of an environment in which such dispositions might flourish”.^[94] This can be understood as a call for informal, good faith decision-making by front-line officials, where they are “oriented towards the legal principles implicit in [legal] rules and the public purposes that they are designed to advance”.^[95]

Abella J’s approach coheres with the empirical evidence. In terms of informality, front-line officials do not tend to think like lawyers. As Zach Richards reports, based on his empirical study of officials in Australia’s Refugee Review Tribunal, front-line officials “argued that their decisions were most justified when they took the particular concerns of the refugee applicant into consideration, sensitively and perceptively working with the law to achieve a fair outcome”; they did not see themselves as automatons whirring into action when an application reached their desk and mechanically working from statute to facts to produce a decision but were, rather, “chameleon-like and flexible”.^[96] In terms of good faith, deviations from authority are not treated lightly by front-line officials: “By substituting pragmatic judgments for the unrealistic and untenable views of those with formal and legitimate authority, street-level workers view themselves as acting responsibly. They are taking on the burden of making moral and pragmatic judgments that alter citizens’ everyday lives, justifying decisions and actions as workable improvisations of unrealistic rules, laws, and procedures”.^[97] Indeed, street-level workers may make good faith efforts to square their sense of what is appropriate in a particular concrete context with the requirements of rules, developing for example “an elaborate account to enfold her moral judgment with her legal obligations”.^[98] This emphasis on good faith is critical. Whilst it is unrealistic and inappropriate to expect front-line officials to exercise discretion and judgement as lawyers would, it is nonetheless entirely realistic and wholly appropriate to expect them to make good faith efforts to remain within and to further the objectives of the applicable legal framework. Not, in other words, taking the decisions they imagine legally trained people would take, but exercising discretion and judgement in good faith in the context of the statutory or regulatory scheme at issue.^[99]

Not only is an informal, good faith approach a realistic and appropriate approach to front-line administrative decision-making but it can also support the rule of law, in particular by increasing congruence between law in the books and law in action. Given the empirical evidence that directives issued from upon high are singularly unlikely to deliver uniform behaviour on the front lines of public administration, informal, good faith efforts to implement legal instruments such as statutes and constitutional texts may be more likely to deliver decisions which are respectful of the legal edicts they implement. Marc Hertogh’s solution, based on his study of decision-making in a Dutch local authority, was as follows: “the recipe for stepping up control may not be to strengthen official authority or sanctions, but rather to increase the responsiveness of the courts to front-line officials’ own beliefs about administrative justice”.^[100] The intuition here is that a de-formalized approach would be much more effective than a formalized approach which prioritizes lawyerly methods of legal and constitutional interpretation which it is unrealistic and inappropriate to expect front-line officials to master.

There is a theoretical structure for this intuition. The informal, good faith decision-making I am advocating would involve the development of an interpretive community capable of “displacing the need for control by building up understandings within the regulatory system as to what the regulate is meant to do, how it is meant to act”.^[101] In other words, statutory objectives and constitutional values, broadly understood, would become part of the decision frame of front-line officials and embedded in the culture of administrative decision-making organizations:

The analysis of interpretive communities explains this interaction: rules are based on tacit understandings; they require an informed reading. The greater the shared understanding of the rule and practices it is addressing, the more the rule maker can rely on tacit understandings as to the aim of the rule and the context in which it operates, the less the need for precision, and the greater the degree to which simple, vague rules can be used.^[102]

For “rules” in this passage, read “legal instruments, including statutes and constitutional texts”. By developing a de-formalized approach to legal interpretation, whereby front-line officials and the citizens they serve develop a shared vision of what legal instruments mean, gaps which exist between the law in the books and the law in action can be reduced, thereby enhancing the rule of law.

Finally, it bears emphasizing that this informal, good faith approach has democratic bona fides. It treats legal instruments as objects with which ordinary people can engage, not sacred texts reserved only for a select group of initiates. On this approach, democracy is not equated with the top-down imposition of legal norms, but is rather a bottom-up process in which ordinary citizens can contribute to the meaning of the law from, potentially, a variety of perspectives: public administration can be progressive, republican, libertarian and much more besides depending on who is taking decisions. Democracy does not begin and end at the door of the legislature. Rather, “a functioning democracy requires a continuous process of discussion”,^[103] one which can occur between citizens and front-line officials on a regular basis across the vast terrain covered by the contemporary administrative state.^[104]

VI. Conclusion

Of course, there is potentially a dark side to the exercise of discretion and judgement by front-line officials, as readers of Léonid Sirota’s contribution to this issue might well remark.^[105] Officials are in a position of power relative to many of those they serve: those of a libertarian or republican bent might find “the prospect of discretion at the point of service provision particularly unsavoury because it elicits the threat of personal domination – it makes vulnerable citizens depend upon the potentially arbitrary judgment of a particular other”.^[106] For libertarian-minded readers, the solution might be to shrink the size of the administrative state; for republicans, to humanize it. But I take the administrative state as it is. My proposal, very simply, is that front-line officials should exercise their discretion and judgement in an informal, good faith manner. How higher-ups and courts review the resulting decisions is a separate matter and, as it happens, I agree with Sirota as a matter of first principles.^[107] But robust judicial review is hardly a panacea: we have had and will always have administrative constitutionalism, whether we like it or not. For the same empirical evidence which demonstrates the inevitability of front-line discretion and judgement also demonstrates that top-down hierarchical control of public administration is a chimera.^[108] Instead of putting place top-down solutions which are liable to fail, let us focus instead on developing a bottom-up approach, in which individuals and front-line officials work together to implement legal instruments, informally and in good faith.