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

Introduction

Welcome to the third edition of Right First Time. Its purpose continues to be to assist decision-makers making relevant decisions to do so in a fair, efficient, accessible and non-arbitrary way.

Since its introduction in 2010, Right First Time has become an important part of the public administrators’ toolkit, helping them make sound decisions, and we are delighted to bring this updated edition to you.

Good public administration is key to ensuring that the rule of law is upheld and puts law at the heart of government. The Coronavirus pandemic has highlighted that compliance with the rule of law is just as important, if not more so, in times of crisis. Good public administration, in all instances, starts with high quality decision-making.

We live in dynamic and fast-changing times. This is particularly apparent if you consider recent developments in public law and the wider public discourse around the actions of public bodies.

Indeed, since the first edition was published, much has changed in Scotland – not only in the legal landscape but also in the work of public administration and the way individuals interact with government. What remains constant, however, is the requirement for robust public decision-making that is of the highest standard and, crucially, is in accordance with the law. This edition contains commentary on new and developing areas of law and provides updates relating to legal parameters and obligations of longer standing. Legal principles are illustrated throughout by case examples highlighting where issues have arisen in the courts in the past. It also features, for the first time, horizon scanning on changes to areas of law that are likely to occur and have an impact on decision-making in the future.

The guide is designed to help users on the decision-making journey, from the early preparatory stages through to notification of the decision. Remember though, the checklist and guide are not intended to be a substitute for taking specific legal advice from your lawyer.

This edition has a number of parallels with the Treasury Solicitor’s publication, ‘The Judge Over Your Shoulder’, which is now in its fifth edition, and which remains an important accompanying resource.

Ruaraidh Macniven

Solicitor to the Scottish Government

What is Right First Time?

Right First Time is a user guide intended to help people responsible for making, or advising on, decisions of public authorities. It helps them consider the legal questions that may arise during any such decision-making process.

It is a guide for officials to help identify the relevant principles of administrative law and apply those to any decision. The guide should help you to assess what can and cannot be done in the decision-making process and how to go about making the decision.

This guide, and the checklist on page 7, are here to help navigate the legal landscape that applies to the work of decision-making in public authorities. The checklist sets out key questions to ask yourself at each step. The rest of the guide helps you answer them.

What is meant by a decision?

There are many different types of administrative decisions that this guide could apply to, ranging from the awarding of a high-value contract, to dealing with correspondence; and everything in between.

Other examples could be a decision to make regulations, to grant or refuse a licence or permission to do something, to hold an inquiry or investigation, to provide or stop providing some public facility or to decide to operate it in a particular way, to award or refuse some benefit, to require somebody to do something or to prohibit them from doing something, or to award or refuse a grant.

Decision-making, or considering the scope of recommendations that can be made to decision-makers (such as Ministers, boards or senior officials), will be constrained by administrative law.

How to use this guide

The steps in this guide will help you consider all the relevant administrative law principles to help you arrive at a lawful decision or outcome.

The checklist sets out key questions to ask yourself at each step of the decision-making process.

The checklist does not, of course, represent a linear process. Decision-making will feel and be messier than the checklist suggests. The questions overlap and it has been flagged in each chapter where other considerations may be relevant. Regardless of where in the process you may start, do bear in mind that all questions may have to be considered.

The checklist and guide also have limitations. They are intended to help with any administrative decision, but they are not specific to a particular kind of decision under a particular power, nor a substitute for the specific, detailed or nuanced guidance that will sometimes be needed.

The checklist and guide are not intended to be a substitute for asking your lawyer.