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Right First Time: a practical guide for public authorities to decision-making and the law - second edition

Right First Time is a practical guide for public authorities in Scotland to decision-making and the law.


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Step 4 | Notify: Notifying others of the decision

21. To what extent should I give reasons for the decision?

Question twenty-one

21 To what extent should I give reasons for the decision?

When you have made your decision – in accordance with the above principles – you will need to notify it to the person affected by it. In notifying that person, do you have to support your decision with your reasoning? And, if so, how comprehensive does your account of that reasoning have to be? You may also be under an obligation in certain circumstances to publish your decision more widely to ensure that anyone who will be affected by it has had adequate notice.

Why should you give any reasons unless legislation requires it? There may exist an established practice of giving reasons in this type of case, and failure to give reasons may breach a “legitimate expectation”. Your decision itself may appear to be inconsistent with previous policy, or with other decisions in similar cases, so that a decision unsupported by reasons may appear irrational, and it may be necessary to explain why there has been a departure from previous policy, or the courts may assume the decision is unlawful. The subject matter of the decision may be of such importance – it may affect human rights – that fairness requires that a decision be supported by reasons.

“[I]n order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.”

Lord President Emslie’s words in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347

Although it may still be true that there is no general rule requiring that reasons be given for administrative decisions, the circumstances where they are not required are becoming rare. Indeed the general availability of judicial review as a remedy makes it inevitable that in most cases fairness now requires that reasons should be given. The law was developing in this

direction even before the Human Rights Act 1998 incorporated the European Convention on Human Rights, but that (in particular Article 6 – right to a fair trial) has accelerated the process, because decisions involving human rights are likely to be scrutinised more intensely, and that means that they will have to be more fully reasoned.

In an action to evict a tenant from a council house, the tenant argued that the absence of any obligation in the Housing (Scotland) Act 2001 on the council to give reasons for seeking repossession made the legislation incompatible with the requirements of Article 8 (the right to respect for private and family life) of the Convention. The Court held that an obligation on the authority to give notice of reasons for seeking repossession, could, and should, be read into the legislation.

South Lanarkshire Council v McKenna [2012] CSIH 78

Data protection and Freedom of Information considerations also support the giving of detailed reasons with the decision. Rights for the individual who is the subject of a decision about their case to access information about that decision – including the reasons for it – may arise under data protection legislation. Additionally, as anyone may make a freedom of information request about how a decision was taken, it is important to keep an appropriate record of how that decision was reached and the reasoning for the decision. More detail on freedom of information considerations is given in question seventeen: Am I handling data in accordance with Data Protection or Freedom of Information obligations?

This does not mean that every decision must be accompanied by copious reasoning; it will depend upon the subject matter and the importance of the interests at stake. Moreover there will be some cases where the issue to be decided does not lend itself to logical analysis, but is more a matter of subjective judgement.

A council refused planning permission for a railway development. The developer appealed to the Scottish Ministers, who appointed a reporter to make recommendations. The reporter provided a detailed report recommending that planning permission should be refused for a number of reasons, including that the development would not be in accordance with the development plans. The Scottish Ministers disagreed with the reporter’s recommendation and granted planning permission. Scottish Ministers’ decision letter gave reasons for this decision, but did not explain why Ministers disagreed with the reporter on a number of critical issues, or why the development plan should not be followed. The council appealed the Ministers’ decision on the grounds that the decision letter did not give proper, adequate and intelligible reasons. The Court agreed that the decision letter did not contain proper and adequate reasons for reaching a conclusion contrary to the reporter’s recommendations and the development plans. The Court quashed Scottish Ministers’ decision.

North Lanarkshire Council v Scottish Ministers [2016] CSIH 69

The need to record reasons when the decision is made with a view to their disclosure may be onerous, but it encourages careful decision-making. The record should show that the decision-maker addressed their mind to the relevant issues and followed the principles of good administration. There is no uniform standard for the quality or lay-out of recorded reasons, but they must at least be intelligible and address the substance of the issues.

The following provides a useful outline:

  • the record should be clear about what the applicant is applying for and that you understand the application;
  • it should set out material findings of fact;
  • it should show that all relevant matters have been considered and that no irrelevant ones have been taken into account;
  • it should cite and apply any relevant policy statements or guidance;
  • it should note any representations or consultation responses as having been considered and taken into account;
  • it should show that equality legislation has been complied with; and
  • it should show by what process of reasoning issues were resolved, and how the various factors were weighted against each other.

If all this (or as much as suits the case) is recorded, then it will provide a framework for your decision letter. The reasons given in the decision letter will of course correspond with those recorded: although there is some scope for elaborating or explaining your reasons in the decision letter (or subsequently), it is bad practice – and unlawful – to make your decision first and construct your reasons only when challenged.

See also in particular

question five

Does anyone have a legitimate expectation as to how the power will be exercised?

question eight

Will I be complying with human rights law?

question nine

Will I be complying with retained EU law?

question ten

Will I be complying with equality legislation?

question fifteen

Will I be acting with procedural fairness towards the persons who will be affected?

question seventeen

Am I handling data in accordance with Data Protection or Freedom of Information obligations?

Contact

Email: ImprovingTogether@gov.scot

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