The Limits of Procedural Discretion
| Author | Rebecca Rotter,Nick Gill,Andrew Burridge,Jennifer Allsopp |
| DOI | 10.1177/0964663917703178 |
| Published date | 01 February 2018 |
| Date | 01 February 2018 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2018, Vol. 27(1) 49–78
The Limits of Procedural
ª The Author(s) 2017
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DOI: 10.1177/0964663917703178
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in Britain’s Asylum Appeals
Nick Gill
University of Exeter, UK
Rebecca Rotter
University of Edinburgh, UK
Andrew Burridge
University of Exeter, UK
Jennifer Allsopp
University of Oxford, UK
Abstract
Studies of procedural in-court judicial discretion have highlighted a dilemma between the
imperative to reduce it owing to its potential misuse and preserve it owing to its
importance in protecting vulnerable groups. This article offers a new framework with
which to enter this debate and new quantitative empirical evidence that favours the former
position over the latter. Drawing upon 240 in-person observations of Britain’s First Tier
Tribunal (Immigration and Asylum Chamber), the article demonstrates that judicial
discretionary behaviour that is either vulnerability-neutral, vulnerability-amplifying or
correlated with extraneous factors outweighs vulnerability-redressing behaviour, despite
the sensitivity of this particular jurisdiction and the guidelines that consequently exist for
judges. These findings lend support to calls to limit judicial procedural discretion. The
article concludes by offering some cost-effective suggestions about how to do so.
Keywords
Administrative law, asylum seekers, appeals, discretion, equal treatment, extraneous,
judicial behaviour, procedure, procedural justice, tribunals
Corresponding author:
Nick Gill, University of Exeter, Amory Building, Rennes Drive, Exeter, EX4 4RJ, UK.
Email: n.m.gill@exeter.ac.uk
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Social & Legal Studies 27(1)
Introduction
Impartiality is essential to the proper discharge of the judicial office. It applies not only to
the decision itself but also to the process by which the decision is made.
Bangalore Principles of Judicial Conduct (2002), Value 2
Classical legal studies of discretion understand it in terms of the freedom to make legal
decisions on the basis of doctrinal deliberation within the formal constraints, such as
review powers, that exist over judges’ abilities to come to binding conclusions (Christie,
1986; Rosenberg, 1971). This approach traditionally views procedure as ‘a value-neutral
means to apply the substantive law’ (Bone, 2007: 1972). Sociolegal scholars, however,
have established the importance of the way legal processes are conducted to case out-
comes as well as perceptions of fairness (Blanck, 1996; Moorhead and Cowan, 2007;
Tyler, 1988). ‘[T]he process is crucial’ Moorhead and Cowan (2007: 317) write, because
it ‘shapes meanings, establishes “truths” and fixes or unfixes notions of fairness in the
litigants’ heads’ (319).
The realization that process has a significant influence over both actual and perceived
fairness raises important questions in relation to judicial procedural discretion. Should
judges be afforded the autonomy to conduct legal proceedings in the way they see fit? Or
are there reasons to suppose that rule makers are in a better position to decide on the
fairest processes?
This article enters the debate by providing an original framework with which to
distinguish between different types of procedural judicial discretion in relation to
litigants’ vulnerabilities. Drawing on a large-scale, in-person survey of the First Tier
Tribunal (Immigration and Asylum Chamber) of England and Wales (henceforth the
‘First Tier’), we provide a rare opportunity to empirically evaluate the arguments of both
the sceptical view of procedural judicial discretion and the supportive view.
We begin by reviewing the cases for extending and limiting judicial procedural
discretion. Rather than reify the debate into ‘for’ and ‘against’ arguments, we develop
a typology of different sorts of judicial procedural discretion based on litigant vulner-
abilities. We then outline our methodological approach. We go on to examine the
evidence that our survey generated and discuss the implications for both the First Tier
and procedural discretion more broadly.
The primary contributions of the article are the development of a novel typology of
judicial discretion, the development of an innovative methodology that combines sur-
veys with intensive in-court observations and the generation of unique empirical evi-
dence that bears directly upon the issue of procedural judicial discretion.
Debating Procedural Discretion
Most legal definitions of procedure recognize that some aspects of procedure are
directed by formal rules and others are not. Some legal dictionaries, for instance, differ-
entiate between ‘form’ or ‘rules’ on one hand and ‘manner’ on the other as constituents
of procedure. This is the case with Black’s Law Dictionary, which describes procedure
Gill et al.
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as ‘The judicial rule or manner for carrying on a civil lawsuit or criminal prosecution’
(Black et al., 1999: 1221). Jowitt’s Dictionary of English Law, having directed us from
‘procedure’ to ‘practice’, also outlines ‘The form and manner of conducting and carrying
on suits, actions or prosecutions . . . .’ (Jowitt et al., 1977: 1400). Other dictionaries
reflect a comparable dichotomy but with a different lexicon, such as Nolo’s Plain
English Law Dictionary (Hill and Hill, 2009) that defines procedure as the ‘method or
act that furthers a legal process’ (n.p.) and Osborn’s Concise Law Dictionary that defines
procedure as ‘the mode or form of conducting judicial proceedings, civil or criminal’
(Woodley, 2009: 326). There is, then, typically a dual meaning associated with proce-
dure, incorporating both a rule-based element and a more contextually variable element.
Two points follow.
First, since aspects such as the ‘manner’ of judges in the conduct of cases is an
element of procedure, then in principle procedure is a broad category. It does not just
include steps in legal processes in themselves – such as filing complaints, serving
documents, setting the dates and locations of hearings, giving notice to parties and
holding hearings, as well as many more activities that make up the mechanics of the
legal process – but also how these are undertaken. Even taking just the last of these for
instance – holding hearings – procedure could include a wide variety of aspects that
make up a trial or hearing event, including introductions, court etiquette, the schedule of
the hearing, the timing of breaks, the treatment of adjournment requests and the method
of communication (both verbal and non-verbal) between the judge and the other parties.
As sociolegal scholars have argued, it is the ‘minutiae’ (Moorhead and Cowan, 2007:
316) of these arrangements that often exert a disproportionate influence over fairness,
both perceived and actual (Blanck, 1996).
Second, the nature of procedure as partly governed by rules – but partly not – raises
the question of what balance can and should be struck between regulating procedure and
allowing it to be discretionary. Black’s Law Dictionary defines discretion as ‘[a] public
official’s power or right to act in certain circumstances according to personal judgment
and conscience’ (Black et al., 1999: 479), and Jowitt’s Dictionary of English Law offers
the (unfortunately gendered) definition of ‘a man’s own judgment as to what is best in a
given case, as opposed to a rule governing all cases of a certain kind’ (Jowitt et al., 1977:
624). In the United Kingdom, there are civil, criminal and family procedure rules, a body
of law that is referred to as adjective law (see Ministry of Justice, 2017). But is the
balance between that portion of procedure that is discretionary and that which is regu-
lated correct? Should we, for example, look to legislate and regulate procedure as much
as possible in order to reduce the irregularities associated with human predilections, or
should we aim to preserve and enlarge the amount of procedural discretion available to
judges on the basis that they are the experts in matters of their own court process and will
know best how to conduct it on a case by case basis?
In relation to substantive issues of law, judges as well as many legal scholars have
defended judicial discretion passionately. Cravens (2011: 33), for example, writes that
‘in order to achieve justice in particular cases, the law must . . . allow judges flexibility to
do justice in the cases to which the general rule does not seem to apply’. Indeed, the very
essence of judging requires a degree of choice, so it is unsurprising that ‘judges value
their discretion very highly’ (Bone, 2007: 1976). In this light, attempts to ‘promote
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Social & Legal Studies 27(1)
consistency’ (Jacobs, 2012: 255) have been seen to threaten judges’ ‘space to ren-
der . . . rightful decisions’ (269).
That judges and the craft of judging requires a reasonable degree of substantive
discretion is not under dispute in this article. The question of procedural judicial dis-
cretion, however, is separate, at least in principle, because it refers to the leeway that
judges have to determine the way that the legal process is conducted, as distinct from
doctrinal and substantive legal reasoning about the decision at which they arrive.
Arguments to defend and enlarge judicial procedural discretion include considera-
tions related to moral factors as well as litigant vulnerability or disadvantage. In relation
to moral factors, commentators point out that judges’ room for manoeuvre to exercise
discretion is an important defence against...
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