Right First Time: A practical guide for public authorities in Scotland to decision-making and the law - third edition

Step 3 | Decide: Taking the decision

18. Have I taken necessary considerations into account, and is my decision reasonable?

19. Does the decision need to be, and is it, proportionate?

20. Are there decisions where the courts are less likely to intervene?

Question eighteen - 18 Have I taken necessary considerations into account, and is my decision reasonable?

We have seen in the discussion of question three that when making decisions you must take into account all relevant considerations and not take into account irrelevant considerations. Crucially, when it actually comes to making the decision, you must not make a decision that is so unreasonable that no reasonable person acting properly could have taken it. These are often called the “Wednesbury principles” after the name of the court case which first established them^[18].

The test of unreasonableness concerns the decision as well as the way in which it was reached. Even if the decision-maker has taken into account the correct considerations, the decision-maker may still come to a decision so wildly unreasonable or perverse that it can be judged to have been outwith the decision-maker’s discretion to make it. If this happens then the decision will be unlawful.

A council wished to encourage the development of a key city centre site. It did this by identifying a developer, entering into an agreement to buy the land under a compulsory purchase order, and then transferring it to the developer. This was done in exchange for an undertaking from the developer that it would carry out the development and indemnify the authority from all future costs. Competing developers argued that the council had acted in a Wednesbury-unreasonable way when it chose its preferred developer. They argued that an indemnity for their costs did not represent the best price or the best terms that could reasonably be obtained for the development of the site. The Court found that the arrangement that had been entered into was reasonably necessary for planning purposes, given the difficulty of developing a site that was in multiple ownership. It could not therefore be said that the council reached a decision that no other reasonable council would have reached.

Standard Commercial Property Securities Ltd v Glasgow City Council [2006] UKHL 50

The decision-maker may even have considered all the relevant information and not considered information that was irrelevant, however the decision-maker may have attached a disproportionate weight to a particular factor or made some other mistake with regard to the logic of the decision, which has distorted the decision-making process.

The courts have recognised that when different reasonable people are given the same set of facts, it is perfectly possible for them to come to different conclusions. This means a range of lawful decisions may be within the discretion of the decision-maker. However, at the same time, the courts have defined a category of decisions which lie outside that range of discretion.

These have been described as:

• “ a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it ”^[19]; and
• “ beyond the range of responses open to a reasonable decision-maker ”^[20].

These definitions of unreasonableness (or “irrationality”) seem quite extreme, particularly the first – it might seem then that the courts would hardly ever find a decision-maker to have acted “unreasonably”. However, the courts interpret this category of decisions quite widely and will adjust the threshold of unreasonableness according to the circumstances and context of the case.

If a decision is challenged, the courts will examine it to see whether it was made according to logical principles, and will often expressly state that it is not its intention to substitute its own decision for that of the decision-maker. The courts will not make their own decision in place of that of the decision-maker because judges bear in mind that the legislation has given the discretion to make the decision to a particular decision-maker, and it is not for the courts to make that decision instead.

The practical effect of this approach is that, where the courts find that the decision was “unreasonable” and that it has to be remade, the courts will not put in place a more reasonable decision, but will simply cancel the unreasonable one, leaving none in its place.

The decision-maker will then be required to make a fresh decision, taking into account any guidance given by the courts, and this time applying logical principles.

There are good practical, as well as legal reasons for the courts adopting this “hands-off” approach: the decision-maker may be aware of policy implications or other aspects of public interest which are not obvious to the courts, or the decision-maker may have access to technical information which is not available to the courts and which must inform the decision.

In some cases the effect of the decision is such that it cannot be “undone”. If this is the case then the court can declare it to be unlawful which can lead to political embarrassment and possible damages being awarded.

See also in particular

question three

What factors should I consider when making the decision?

question nineteen

Does the decision need to be, and is it, proportionate?

Question nineteen - 19 Does the decision need to be, and is it, proportionate?

It is important to consider whether your decision is one that involves the area of human rights (or, in some cases, involves interpreting retained EU law). If so, the proportionality of your decision can be reviewed by the courts if your decision is later challenged.

Where a court is applying the principle of proportionality it will generally look more closely at the correctness of the decision given the information available than it would by just applying the Wednesbury unreasonableness test (see question eighteen).

In human rights cases, where an interference with a Convention right may be justified, the courts will consider whether or not the decision was proportionate. In human rights cases proportionality means considering:

• whether what you are trying to achieve is important enough to justify interfering with a Convention right;
• whether what you are deciding to do makes sense to what you are trying to achieve;
• whether you could decide to do something else that would have interfered less with a person’s Convention right, and still achieve what you are trying to do; and
• whether you are striking a fair balance between the effects of your decision on a person’s Convention rights and what you are trying to achieve.

The intensity with which the proportionality test will be applied by the courts – in other words, the degree of weight or respect that will be given to the assessment of the decision-maker as to what is proportionate – will depend upon the context. For example, to justify “difference in treatment” a more intense review would apply.^[21]

Proportionality has also been argued as a ground of review for all decisions. At present, however, proportionality is not currently an independent ground of judicial review at common law in its own right^[22].

See also in particular

question eight

Will I be complying with human rights law?

question nine

Will I be complying with retained EU law?

question eighteen

Have I taken necessary considerations into account, and is my decision reasonable?

Question twenty - 20 Are there decisions where the courts are less likely to intervene?

In principle, the courts are entitled to review the vast majority of decisions taken by public authorities. “In principle”, because there are still a handful of types of decision with which the courts are reluctant to concern themselves – the award of honours is one example. Even these categories are increasingly restricted, and it can be imagined that if, say, the honours system were placed upon a statutory footing, with procedures, consultation and the like, then the courts would no doubt be entitled to supervise at least procedural aspects.

There remains a class of decision where the courts accept that, because of the subject matter of the decision, the decision-maker is better qualified than the courts to make a judgement. So for example the courts are likely to “defer” to, or recognise a “demarcation of functions” with, the decision-maker in:

• ordering financial priorities, in deciding to spend public money in one way rather than another;
• assessing the needs of national security and public order;
• setting policy on maximum sentences for particular criminal offences.

A woman had been living with a man for 10 years when he died unexpectedly. Her partner was a member of local government pension scheme, and she applied for a pension as his survivor. A Department in Northern Ireland had made regulations requiring that for a cohabitee to get paid out of a pension, the deceased would have to nominate her. The woman had not been nominated by her partner, and was refused a pension. She challenged the refusal on the basis that the requirement to be nominated was incompatible with Article 14 of the European Convention on Human Rights (the prohibition of discrimination). The Court accepted that in the socio-economic field, such as pension provision, a broad area of discretionary judgment should be allowed to state authorities. But in this case, socio-economic factors were not at the forefront of the decision to impose a requirement for an unmarried partner to be nominated. The Department was not able to produce any evidence of consideration as to whether there would be administrative problems if they were to not have a nomination requirement. The Court was therefore willing to critically examine the justifications for the requirement. The Court considered it highly questionable that there was a justification for having the nomination requirement as a difference in treatment between married and cohabiting couples, and in any event there was no rational connection between the nomination requirement and the objective it was considered to pursue.

Brewster v Northern Ireland Local Government Officers’ Superannuation Committee [2017] UKSC 8

The list could go on (and could be broadened to include any topic requiring specialist knowledge or experience), but what the above topics have in common is that they all concern policy, and require a “political” judgement to be made. In the demarcation of functions, that political judgement should be left to the decision-maker, who understands the policy and has experience of its operation to inform the decision. In this kind of area, the courts may exercise restraint in reviewing the decision-maker, or recognise the demarcation of functions between the executive branch of government and the judiciary; the courts are likely to allow a “margin of discretion” or “discretionary area of judgement” depending on the nature of the decision.

It is possible that your decision too will have an element of this kind of political judgement in it; you should identify that element and be prepared to protect it. The decision-maker will usually be allowed a discretionary area of judgement, but this cannot be taken for granted. And, where human rights are involved, the courts are likely to be very careful to ensure that what the decision-maker is seeking to protect is genuinely an area of policy, and that the decision is “proportionate”.