Legislative drafting tools preventing arbitrariness in discretionary powers

Despite the differences of approach that different national legal systems may adopt regarding discretionary powers, in general terms the main issue of discussion stays the same: Given that discretion is accepted and considered an essential legal technique in the context of administrative decisions, how, and to which extent, may discretionary powers be controlled and subjected to review by courts? The purpose of the present article is to discuss discretionary powers from the perspective of legislative drafting, with the aim to identify specific tools to be used by law-makers in order to prevent discretion from turning into arbitrariness. Therefore, starting from an analysis of Portuguese legal doctrine on the concept of discretionary powers, the present article will address three main issues. First, clarification as to how legal discretion is to be understood and how to identify discretionary powers granted by legislation. Second, identification of the advantages and disadvantages of legal discretion, in order to determine normative criteria according to which we can settle under which conditions discretionary powers in legislative drafting is to be employed or not. Third, identification of which legislative drafting tools may be used by lawmakers in order to grant discretionary powers. Overall, by focusing on lawmaking techniques, the article aims to demonstrate the extent to which legislative drafting tools, such as the ones identified in this article, are powerful tools to better identify discretionary powers in the law, but also to ensure that these powers are granted only when actually necessary. Taking into consideration that migration and asylum law usually involves reference to fundamental individual rights, the article argues that the provision of discretionary powers ought to be avoided whenever there are no solid and reasoned grounds for their use, so that discretion remains a tool for regulation and does not become arbitrariness.