Administrative discretion at first instance: power, people and place

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dc.check.chapterOfThesisEmbargo entire thesis for 5 years (as per submission for examination form) to provide time for publication in peer review journals.en
dc.check.date2029-12-31
dc.contributor.advisorDonson, Fiona
dc.contributor.advisorPoustie, Mark
dc.contributor.authorRyan, Aisling Men
dc.contributor.funderUniversity College Cork
dc.date.accessioned2024-09-24T11:46:24Z
dc.date.available2024-09-24T11:46:24Z
dc.date.issued2024
dc.date.submitted2024
dc.description.abstractFirst instance decision makers in public bodies have considerable ‘wiggle room’ in coming to their decisions regarding individual claims and grievances. Yet this discretion is not unbounded. In certain circumstances, the courts will step in and quash administrative decisions. The test for control of discretionary power has been in a state of flux for decades (Hogan, Morgan and Daly, 2019). Decision makers have a range of decisions open to them, but at the outer edges of that range it is difficult to ascertain when, if, or why a court will intervene. The Irish courts have traditionally adopted a deferential approach to judicial review of administrative action, demonstrating a great reluctance to interfere with administrative decisions, often on the basis of the separation of powers under Bunreacht na hÉireann. Irish legal scholarship has a tendency to ‘constitutionalise’ administrative issues (Donson and O’Donovan, 2015). This has led to a dearth of administrative justice research in the Irish context, with administrative matters instead resolved and debated by reference to constitutional values. While constitutional values are an important aspect of the debate, they are not everything. Daly (2019) opines that for public lawyers to remain relevant and influential we must embrace a plurality of principles, sources and methodologies. Thomas (2022) argues that there is a need for a pluralistic approach to the study of administrative law and “other forms of administrative law in action that exist outside the courts and the range of purposes they serve”. In this thesis, I look both to legal doctrine and beyond legal doctrine to investigate how administrative discretion is understood by the judiciary and by administrative decision makers in developing a rich, novel account of administrative discretion at first instance. I adopt a socio-legal approach in answering four core research questions that ground this study. In answering these questions, I employ different research methods to offer different ways of ‘knowing’ about discretion. I carry out a detailed doctrinal mapping of case law on control of discretionary power, that feeds into a socio-legal understanding of discretion. I achieve this by turning the tables on traditional legal discourse to ask how discretion is really understood by the officials who exercise discretion in their daily interactions on the frontline of public administration. These officials are central actors in the delivery of public services (Lipsky, 1980), and are instrumental in developing an ‘internal’ understanding of administrative law (Mashaw, 1983). I use anonymised interview data from interviews with administrative decision makers working on rights-based adjudications in the International Protection Office of the Department of Justice, and Workplace Relations Commission. This type of qualitative research is novel in the Irish context, and illuminates many paradoxes between the law-on-the-books and the law-in-action. I reflect on my research experiences in an honest and open account of the difficulties of carrying out empirical work in public bodies, with the aim of developing a dialogue for further research in the field. This thesis makes several major contributions to public law scholarship. It challenges the current ontological underpinnings of discretion and control of discretionary power as legal phenomena by illuminating administrative decision makers as the ‘animators’ of administrative law. In doing so, I develop a new ‘complex-liminal-malleable’ understanding of discretion and control of discretionary power, and use the nebulous concept of discretion to develop socio-legal themes related to the exercise of discretion at first instance: repetition of error; bureaucratic institutional culture; and dissonant decision making. Through these themes, I combine doctrinal, empirical and theoretical research to provide a fuller account of discretion, and identify pathways for future research on these intersecting topics. What emerges is a truly novel, considered, and thought-provoking study of administrative discretion at first instance.en
dc.description.statusNot peer revieweden
dc.description.versionAccepted Versionen
dc.format.mimetypeapplication/pdfen
dc.identifier.citationRyan, A. M. 2024. Administrative discretion at first instance: power, people and place. PhD Thesis, University College Cork.
dc.identifier.endpage232
dc.identifier.urihttps://hdl.handle.net/10468/16430
dc.language.isoenen
dc.publisherUniversity College Corken
dc.relation.projectUniversity College Cork (School of Law PhD Scholarship)
dc.rights© 2024, Aisling Ryan.
dc.rights.urihttps://creativecommons.org/licenses/by-nc-sa/4.0/
dc.subjectAdministrative law
dc.subjectPublic law
dc.subjectAdministrative discretion
dc.subjectSocio-legal
dc.subjectControl of discretionary power
dc.subjectAnimating administrative law
dc.subjectJudicial review
dc.titleAdministrative discretion at first instance: power, people and placeen
dc.typeDoctoral thesisen
dc.type.qualificationlevelDoctoralen
dc.type.qualificationnamePhD - Doctor of Philosophyen
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