Tribunals and Guidelines: Exploring the Relationship Between Fairness and Legitimacy in Administrative Decision-Making

Abstract

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 inderstand 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 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.