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

Step 1 | Prepare: Getting ready to decide

1. Where does the power to make this decision come from and what are its legal limits?

2. For what purposes can the power be exercised?

3. What factors should I consider when making the decision?

4. Is there a policy on the exercise of the power?

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

6. Can I make this decision or does someone else need to make it?

7. Have devolution and the Scotland Act affected the power?

8. Will I be complying with human rights law?

9. Will I be complying with retained EU law?

10. Will I be complying with equality legislation?

11. What are my environmental duties?

12. What are the financial implications of the decision?

Question one - 01 Where does the power to make this decision come from and what are its legal limits?

Power to act

Public authorities only have the functions that the law gives to them, and must exercise those functions within the limits that the law provides. Officials making decisions for public authorities must only make decisions that the law gives the public authority the power to take. If not, that person will be acting ultra vires – or outside the decision-maker’s powers.

A decision-maker should therefore be clear about where the power to decide the matter before them comes from. Where the power does exist, it will usually be found in legislation.

Legislation may set out the functions that are given to public authorities in different ways. It may confer a function in general terms as an area for which the public authority may take or has responsibility, and where it may take decisions about how it does that. It may set out specifically matters which the public authority is to decide.

If the power to take a decision comes from legislation, you will need to look at its words to work out what the public authority, and so the decision-maker, can and cannot do.

Usually, words in legislation are given their ordinary meaning. Where the words might give rise to a different interpretation, the courts will try to determine the intention of the legislator that made the legislation. Either way, you will need to understand the general purpose of the legislation, as well as the particular provision. It can sometimes be helpful to consider material other than the legislation itself, that indicates the purpose of the legislation.

The courts will also read legislation with certain presumptions in mind about the legislator’s intention, and so as to comply with human rights, or (in the case of legislation made by the Scottish Government or the Scottish Parliament), the Scotland Act; or with retained or “assimilated” EU law in some cases, including the case law of the Court of Justice of the EU, the EU Withdrawal Agreement or the Trade and Cooperation Agreement with the EU.

Where you are in doubt whether the public authority has powers to make the decision, you should consult your lawyer.

In the case of the Scottish Ministers, their powers to make decisions may also come from executive functions they have at “common law” or from prerogative powers of His Majesty, which are not set out in legislation.

Limits on the power to act

Once the law giving the public authority the power to make a decision has been identified, the limits on the power to take the decision should also be understood.

Sometimes limits may be expressly set out in the legislation which gives the public authority the power to take a decision. The purposes for which a particular power was given, or the criteria to be applied in exercising it, may actually be set out in the legislation.

One example of an express limit, is where the law places a duty on a public authority to take a decision or act in a particular way. Sometimes even though the words in the legislation indicate that there is discretion as to whether or not to act – e.g. that the public authority “may” decide to do or not do something – there are cases where that must be interpreted as imposing a duty to act.

For example, a public authority with the power to grant licences may be obliged to do so where an applicant fulfils all the prescribed requirements. In order to determine what a law means when it says “may” (or for that matter “shall”) you have to look at the law in question and its purposes as a whole. If in doubt, contact your lawyer.

Sometimes, a decision-maker may appear to have more unlimited powers. A statutory provision conferring a power may say “the Scottish Ministers shall grant or refuse the application” without qualification. But however unlimited the power appears to be, there will be legal limits.

A patient challenged the Scottish Ministers’ failure to make regulations under the Mental Health (Care and Treatment) Scotland Act 2003 introducing a formal mechanism to allow patients detained in medium and low-security hospitals to challenge their conditions of security by a certain date. The Act could not effectively operate without the Scottish Ministers enacting regulations that would define key terms within the Act. The Court found that Parliament had intended to bring about an effective result that would have practical consequences. Even though the Ministers’ power to define the key terms was discretionary, failure to exercise that power would be unlawful if it frustrated the intention of Parliament.

RM v Scottish Ministers [2012] UKSC 58

Limits may, for example, be implied by the statutory scheme that gives the powers.

Other limits on the powers of public authorities on

• making decisions;
• how they should be taken;
• the decisions that can be made; and
• the reasons that should be given,

come from administrative law applicable to decision-making by public authorities generally, and are dealt with in the subsequent sections of this Guide.

See also in particular

question two

For what purposes can the power be exercised?

question seven

Have devolution and the Scotland Act affected the power?

question eight

Will I be complying with human rights law?

question nine

Will I be complying with retained EU law?

Question two - 02 For what purposes can the power be exercised?

As well as having the power to act, a public authority must use its power for a lawful purpose. Its action will be ultra vires and an abuse of power if it uses the power to achieve a purpose for which the power was not intended.

Legislation may expressly set out the purposes for which a power may be exercised, or they may be implied from its objectives. The fact that the power to take a decision on a particular matter is not expressly spelled out in legislation does not necessarily mean that a public authority cannot do so, if it is ancillary to a function that the law has given to the authority.

The courts have accepted that a public authority may undertake tasks “conducive to” or “reasonably incidental to” a defined purpose. If, for example, a decision-maker has the power to hold a public hearing to assist in making a decision, related powers to hire accommodation, pay for IT etc. will be treated as being “reasonably incidental” to that purpose.

A circus company applied to a local authority for a temporary public entertainment licence. The licence was refused. The local authority stated that although they had not applied a blanket ban, they had a policy which did not permit circuses featuring performing animals, based on the fact that the whole concept of animals performing in circuses was wrong. The Court found that the powers the local authority had been given by Parliament related to the registration of those wishing to provide public entertainment. This did not permit the local authority to prohibit types of performance of which it simply disapproved.

Gerry Cottle’s Circus Ltd v City of Edinburgh District Council 1990 SLT 235

See also in particular

question one

Where does the power to make this decision come from and what are its legal limits?

question three

What factors should I consider when making the decision?

Question three - 03 What factors should I consider when making the decision?

To make a decision which is lawful, two main principles should be followed:

1. you should not base your decision on irrelevant factors or considerations; and

2. if there are factors or considerations which you have a duty to base your decision on, then you must do so.

There are certain rules which will help you to decide what factors you have a duty to consider, what factors are relevant, and those which are irrelevant.

If you are using powers given to the public authority by legislation, it might set out the factors on which you should base your decision. Some legislation sets out factors which you have to pay “particular” attention to. So, whilst the legislation doesn’t set out every factor which you can consider, it does mean that you have to follow the factors that are listed.

An application for an extension to permitted hours was made to a licensing board. In considering whether or not to grant the application the licensing board was, in terms of the statutory provisions, to have regard to the social circumstances of the locality or to the activities taking place in the locality. The licensing board took into consideration that the local environmental health department had reported one week earlier that the premises were in an unsatisfactory condition. The Court decided that, in terms of the statutory scheme, this was not a relevant factor on which to base the decision.

Bantop Ltd v Glasgow District Licensing Board 1990 SLT 366

If legislation doesn’t set out factors to be considered then it helps to look at what the legislation is trying to achieve (its purpose) and from that decide what factors are relevant to the decision you are to make. If your decision is challenged the courts will want to know the factors that you considered; for example, the media’s reaction to a decision is unlikely to be relevant to the purpose of the legislation and the courts would be likely to decide that this was an irrelevant factor on which to base a decision.

To take into account all relevant considerations required to come to a decision:

• you need to make sure that you have accurate and up-to-date information;
• where you don’t have the information that you need to make the decision you have to make sure that you can get it from those who have it;
• you should consult (see question fourteen) and follow any guidance or points of reference in place within your public authority which relate to the way the decision has to be made; and
• where representations have been made regarding the decision you should take account of them where appropriate.

In a planning appeal against the refusal of outline planning permission for a residential development on agricultural land, the Court found that the Reporter, in considering the application, had failed to address the evidence on housing land supply and had also misconstrued the significance of supplementary planning guidance. He had not undertaken sufficient analysis of the evidence and did not take account of material elements. Rather he applied his own personal view of the application and failed to identify any material consideration which would properly allow for departure from the development plan. He had also failed to properly specify what was meant when he gave as one of the reasons for refusal that the developers’ proposal did not satisfy the definition of “affordable housing”. The decision was struck down.

Aberdeenshire Council v Scottish Ministers [2008] CSIH 28

It is important to remember that it is the factors which are used in making the decision that are important here and that you must be able to demonstrate that you have properly considered them.

In addition to looking to your powers you should also consider whether your decision could affect an individual’s human rights. If so then evidence that you have taken such considerations into account could assist you in responding to any challenge to your decision. You should also consider the requirements of equality legislation, and be sure that you can evidence having met them.

Whatever factors you decide are relevant, you need to be sure that the facts on which you base your decision are accurate and up-to-date. You should also consider whether the factors that influenced your decision, and the decision-making process itself, need to be recorded. In determining what should be recorded, it is worth bearing in mind the rights to access information created by the data protection legislation and the Freedom of Information (Scotland) Act 2002.

See also in particular

question one

Where does the power to make this decision come from and what are its legal limits?

question eight

Will I be complying with human rights law?

question ten

Will I be complying with equality legislation?

question seventeen

Am I handling data in line with data protection or freedom of information obligations?

question twenty-one

To what extent should I give reasons for the decision?

Relevant considerations might also be

• policies (see question four);
• legitimate expectations (see question five); and
• representations received (see questions thirteen to fifteen).

Question four - 04 Is there a policy on the exercise of the power?

Where legislation has conferred a discretionary power on Ministers or another public authority to issue something such as a licence, they will potentially have to deal with hundreds or thousands of cases. The legislation may spell out the criteria for the grant of the licence in general terms, but the decision-maker may still be left with a wide discretion. To ensure consistency and promote administrative efficiency, the decision-making authority will probably develop a standard way of dealing with such cases; they will try to apply the same criteria, attaching the same weight in each case. They will develop a “policy” for dealing with cases.

However, where legislation confers a discretion on a decision-maker, the decision-maker must not surrender that discretion – to another person, to a set of rules, or to a “policy”. The decision-maker must keep an open mind and consider each case on its own merits; otherwise there is a failure to exercise discretion properly. The authority must not “close its ears” to particular arguments.

The courts have held that it is lawful for decision-makers to have a policy as to the way in which discretion should be exercised – indeed, to achieve consistency in decision-making

The Secretary of State was found liable for the false imprisonment of two foreign nationals who were due to be deported. The policy had been that there was a rebuttable presumption that the prisoner would be released pending deportation. The policy was changed so that the presumption was that the prisoner would not be released, but that change in policy had not been published and so was insufficiently open and accessible.

R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12

it may be essential that there is a policy. But the courts have also held that the decision-maker must nevertheless direct their mind to the facts of the particular case and be prepared to make exceptions. This is particularly important in cases involving human rights and considerations of equality. Equally, where a decision-maker does have a policy, the decision-maker should not depart from it without giving an explanation or should ensure that a change in policy is compliant with the law.

The decision-maker must keep an open mind and consider the facts of every case – and make it clear that this has been done in the terms of the decision. This approach is also more likely to be proportionate in human rights terms because it allows a proper assessment of whether any interference with human rights is necessary on the facts of the particular case.

Where there is a policy for dealing with cases, it should be published so that persons affected by the policy can make informed and meaningful representations before a decision is made.

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 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 five - 05 Does anyone have a legitimate expectation as to how the power will be exercised?

An authority must act within its powers. It should exercise its discretion in accordance with a “policy”, provided it is operated consistently but not too rigidly. The authority must not close off (or “fetter”) the exercise of its discretion.

Sometimes a tension arises between these principles in practice. Suppose an authority operates a policy or procedure consistently, but a change of circumstances, or a review of where the “public interest” lies, means that there is a need to modify the policy or procedure. Or suppose the decision-maker misunderstands the extent of their legal powers and offers to an applicant a benefit (for example, planning permission) for which the applicant does not qualify under the legislation.

In this kind of situation, someone affected by the decision may have a legitimate expectation that because the policy or procedure has been operated in such a way in the past, that this will continue in the future. Equally, if the authority has promised someone a particular benefit, it may (depending on the circumstances) be unfair to break that promise, even if there are public interest grounds for breaking it.

A widow challenged the decision not to hold a public inquiry into the murder of her husband by paramilitaries in Northern Ireland. There had been a paper-based review, but not a full public inquiry. The then Home Secretary had given an unequivocal assurance, and had made a statement to the House of Commons, saying that there would be an inquiry. Following a change of government, the new Prime Minister decided not to hold an inquiry. The Court found that where a clear and unambiguous undertaking has been made, the authority giving the undertaking would not be allowed to depart from it unless it was fair to do so. It found that here political issues had overtaken the promise given by government, and contemporary considerations impelled a different course, with a decision made in good faith on genuine policy grounds to depart from the original undertaking.

(Re Finucane’s Application for Judicial Review [2019] UKSC 7)

The key to resolving these tensions is to strike a balance between the public interest, for example in changing the policy, and the private interest, in maintaining it. Where a legitimate expectation has arisen, a public authority can still frustrate that expectation if any overriding public interest requires it. Whether a legitimate expectation has arisen, and whether it can be overridden, will depend upon a number of factors, such as:

• were the words or conduct (i.e. the “promise” or “representation”) which gave rise to the expectation clear and unequivocal?
• did the person promising the benefit have the legal power to grant it, or was it ultra vires?
• who made the promise and how many people stood to benefit by it?
• did the person(s) to whom the promise was made take action in reliance upon it which has placed them in a worse position than they would have been in if they had not taken that action?

These are some of the factors which the courts will take into account in deciding whether a legitimate expectation has arisen and whether it is fair, or would be an abuse of power, to allow the public interest to override it. If the decision-maker had no legal power to make the promise/representation, then a claim of legitimate expectation is unlikely to succeed, though there could be exceptions to this where human rights are in play.

A procedural legitimate expectation might arise where an individual has an expectation of a particular process. A substantive legitimate expectation may exist where an individual has been given an expectation of a particular outcome.

Where an authority intends to change a policy or a procedure (for example, to change a practice of accepting late applications), practical steps should be taken to address any potential claims of there being a legitimate expectation that the policy or procedure would continue. This could be done by means of clear publicity – e.g. by providing a careful explanation as to why the change is necessary, and possibly by consultation with regard to the timing of, or change to, any new procedure to be adopted.

See also in particular

question four

Is there a policy on the exercise of the power?

question fifteen

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

Question six - 06 Can I make this decision or does someone else need to make it?

The general rule is that where legislation confers a power on a specified individual or body, the power must be exercised by that individual or body and must not be given away to another person or body. However, there are many exceptions to this rule. In particular, the courts accept that Government Ministers cannot possibly make personally every decision which is made in their name, and that officials may act on their behalf. This is known as “the Carltona principle” after the leading case^[1].

The theory is that, legally and constitutionally, the acts of officials are the acts of their Ministers provided the official is acting with the express or implied authority of the Minister. The principle does not however apply in local government.

Where the Carltona principle applies, a decision may still only be taken on a Minister’s behalf by an official of appropriate seniority and experience. And there will always be some cases where the special importance of the decision, or its consequences, mean that the Minister must make the decision personally.

Under the Prison Rules 1999, a prison governor had power to segregate prisoners for up to 72 hours, after which authority would have to be given by the Secretary of State. In a challenge to a decision to segregate a prisoner for seven months, it was found that the decision to segregate had not been authorised by the Secretary of State. Prison governors had an independent statutory office, and hence were constitutionally responsible for carrying out their duties. The Carltona principle therefore did not apply, and so the governor’s actions could not be treated as actions by the Secretary of State.

R (on the application of King) v Secretary of State for Justice [2015] UKSC 54

Sometimes specific statutory provisions require that the Minister make the decision personally. If the power can be delegated, you need to check whether there are limitations on the seniority of officials who can exercise it on the Minister’s behalf.

Sometimes, before you can make your decision, you will need information or policy input from another public authority. If so, it is important to remember that the decision is one for you as the decision-maker, having regard to all the circumstances, including the advice or recommendation of that other authority.

You should not merely “rubber-stamp” the advice or recommendation which you receive from elsewhere.

See also in particular

question sixteen

Could I be, or appear to be, biased?

Question seven - 07 Have devolution and the Scotland Act affected the power?

The Scotland Act 1998 created a Scottish Parliament with the power to make laws in or as regards Scotland, except for certain matters which only the UK Parliament in Westminster can legislate for. There has been further devolution of powers to the Scottish Parliament by the Scotland Act 2012 and the Scotland Act 2016.

The functions of many public authorities in Scotland, and their powers to make decisions, were relatively unaffected by devolution, though they may be affected by subsequent Acts of the Scottish Parliament. The functions of the Scottish Ministers, and their powers to make decisions, on the other hand, are closely aligned to the laws that the Scottish Parliament can make. Many functions of UK Government Ministers that could be exercised in Scotland before devolution, transferred to the Scottish Ministers.

The Scottish Parliament cannot make laws that relate to reserved matters. Whether a function of the UK Government, and the power to make a decision, has transferred to the Scottish Ministers, or has stayed with the UK Government, depends on whether the function, or exercising it in a particular way, relates to a reserved matter.

The UK and Scottish Governments have powers only over the matters that the law gives to them. Ministers and civil servants in the Scottish Government, and in the UK Government, therefore need to ensure that any decisions that they make have a lawful basis, given the terms of the Scotland Act.

Although much legislation – especially older legislation – gives functions to UK Ministers (often referencing e.g. “the Secretary of State”), those functions may have transferred to the Scottish Ministers as a result of the Scotland Act. There are also a range of mechanisms in the Scotland Act that allow the boundaries of devolution to be altered, so that powers of UK Government Ministers are to be exercised by the Scottish Ministers, powers of the Scottish Ministers are to be exercised by UK Government Ministers, or that both UK Government and Scottish Ministers have to exercise the power together, or that either the UK Government or Scottish Ministers can. Since devolution, a range of alterations have been made.

Where the power to make a decision is contained in an Act of the Scottish Parliament, or in subordinate legislation that has been made by a member of the Scottish Government, the Scotland Act may also affect how that power is to be read and understood. Such powers cannot be read in a way that would not have been within the competence of the Scottish Parliament or Ministers to legislate for. Instead they must be read as narrowly as is required to be within competence, if that reading is possible.

See also in particular

question one

Where does the power to make this decision come from and what are its legal limits?

question eight

Will I be complying with human rights law?

Question eight - 08 Will I be complying with human rights law?

The United Kingdom is party to a number of international human rights treaties which public authorities in Scotland are to protect and realise as a matter of international law. One of these is the European Convention on Human Rights (also known as “the ECHR” or “the Convention”).

The Human Rights Act 1998 gives effect to rights and freedoms set out in the European Convention on Human Rights in Scots law, and allows claims of breaches of the Convention to be brought before Scottish courts. The Human Rights Act 1998 requires public authorities to act compatibly with rights set out in the Convention. The Scotland Act also obliges members of the Scottish Government to act compatibly with rights set out in the Convention, and provides that provisions in an Act of the Scottish Parliament which are incompatible with rights set out in the Convention are not law.

A woman’s husband died after receiving contaminated blood. She asked the Lord Advocate to hold a Fatal Accident Inquiry (FAI) into the death in terms of the Fatal Accidents and Sudden Deaths Act 1976. The holding of an FAI is at the discretion of the Lord Advocate. The Lord Advocate declined to hold such an inquiry. The widow complained that this refusal was a breach of the investigative obligation present in Article 2 of the Convention (the right to life). The Court agreed and held that the decision not to hold an FAI should be reduced. The investigations that had been carried out were insufficiently wide in scope and there had been no practical or effective investigations into the death.

Black v Lord Advocate [2008] CSOH 21

The human rights protected by the Convention (“Convention rights”) which public authorities must act compatibly with are:

• The right to life (Article 2);
• The prohibition of torture (Article 3);
• The prohibition of slavery and forced labour (Article 4);
• The right to liberty and security (Article 5);
• The right to a fair trial (Article 6);
• No punishment without law (Article 7);
• The right to respect for private and family life (Article 8);
• Freedom of thought, conscience and religion (Article 9);
• Freedom of expression (Article 10);
• Freedom of assembly and association (Article 11)
• The right to marry (Article 12);
• The prohibition of discrimination (Article 14)
• The protection of property (Article 1 of the First Protocol);
• The right to education (Article 2 of the First Protocol);
• The right to free elections (Article 3 of the First Protocol);
• The abolition of the death penalty (Article 1 of the Thirteenth Protocol).

A decision will be unlawful if the effect of the decision is incompatible with a person’s Convention rights. For public authorities other than the Scottish Government the only exception to this is where a duty under primary legislation made at Westminster means that you cannot do otherwise.

In the case example on p20, the decision made by the Lord Advocate was within the terms of the legislation, but the particular exercise of the power was incompatible with a Convention right and was therefore annulled.

The Human Rights Act also adds an important dimension to interpreting legislation: so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with human rights^[2].

A father was not allowed to become involved in children’s hearings concerning his child, as he had never been married to the child’s mother, and so did not fit the definition of a “relevant person” in section 93(2)(c) of the Children (Scotland) Act 1995. He sought to challenge this decision, relying on his rights under Article 8 of the Convention (right to respect for private and family life). The Court read the section in such a way that “relevant person” could include anyone who appeared to have established family life with the child with which the decision of a children’s hearing may interfere, and so ensured that the provision was compatible with human rights law. As his family life with his child was at risk, the father had the right to be afforded a proper opportunity to take part in the decision-making process.

Principal Reporter v K [2010] UKSC 56

It is important to note that there are two significant legislative proposals which, if they become law, would substantially alter the legislative human rights landscape in Scotland.

The proposals are as follows:

Firstly, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill would make it unlawful for public authorities in Scotland to act incompatibly with the “UNCRC requirements” as defined by the Bill.

Secondly, the Scottish Government is committed to introducing a new Human Rights Bill which would incorporate four United Nations Human Rights treaties into Scots law, covering economic, social and cultural rights and protections for women, disabled people and minority ethnic communities. The new Bill is planned to be introduced during the 2021-26 parliamentary session and will include specific rights, subject to devolved competence.

See also in particular

question seven

Have devolution and the Scotland Act affected the power?

question nineteen

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

Question nine - 09 Will I be complying with retained EU law?

On 31 January 2020 the United Kingdom left the European Union (EU) under the terms of the Withdrawal Agreement Treaty between the EU and the UK and entered a transition or implementation period during which the vast majority of EU law continued to apply until 31 December 2020.

At the end of the transition period much EU law as it stood in Scotland on that date became part of Scots law as “retained EU law” under the European Union (Withdrawal) Act 2018. Retained EU law includes domestic legislation which implemented EU obligations or enabled rights from membership of the EU to be enjoyed, as well as Regulations, and Decisions adopted by institutions of the EU. Retained EU law will continue to apply in Scotland until such time as new domestic legislation is made to change it. In some cases retained EU law has already been modified by domestic legislation so that it operates effectively outside of the EU, for example by providing for functions of EU entities to be exercisable by a public authority in the United Kingdom. Retained EU law will continue to be important in many areas including, for example, the law on environmental duties, procurement and data protection.

In the first instance, the text of EU Regulations and domestic legislation made to implement EU obligations or to enable rights from membership of the EU to be enjoyed will be the source for understanding the requirements of retained EU law. It will be for the courts in the UK to interpret the meaning of retained EU law. Where retained EU law has not been changed by new domestic law, its meaning and effect, and any question about whether it is valid or not, is to be decided by considering:

• relevant cases decided by the Court of Justice of the European Union or domestic courts before the transition or implementation period ended, and certain general principles of EU law;
• limits on what the EU could competently legislate for before the transition or implementation period ended.

The Withdrawal Agreement is implemented by the EU (Withdrawal Agreement) Act 2020.

The EU (Withdrawal Agreement) Act 2020 contains detailed provisions on some specific rights and obligations which apply from the end of the transition or implementation period, for example on the rights of EU Citizens.

Legal advice should be taken if it is unclear whether, or how, a particular piece of retained EU law continues to apply, or where there is any question on the effect of modifications to retained EU law.

Agreements between the UK and the EU (the Trade and Cooperation Agreement, and the Withdrawal Agreement which includes the Northern Ireland Protocol and Windsor Framework) require a degree of alignment between legal rules in the UK with the EU.

The Retained EU Law (Revocation and Reform) Act 2020 will reform this body of law at the end of 2023. At that date, retained EU law will become known as “assimilated law”. Assimilated law will differ from retained EU law in a number of ways but it will continue to have legal force in Scotland.

See also in particular

question eleven

What are my environmental duties?

question twelve

What are the financial implications of the decision?

question seventeen

Am I handling data in line with data protection and freedom of information obligations?

Question ten - 10 Will I be complying with equality legislation?

The Equality Act 2010 (“the 2010 Act”) consolidated and replaced the previous equality and discrimination legislation for Scotland, England and Wales. It makes it unlawful to act in a particular way or reach a particular decision where it would be discriminatory on any of the specific grounds and circumstances covered by the 2010 Act.

The 2010 Act covers discrimination because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These categories are known as protected characteristics.

In providing a service or exercising a public function, a public authority must act and make decisions in a way that avoids unlawful discrimination, harassment and victimisation.

In addition, section 149 of the 2010 Act sets out the public sector equality duty (“PSED”). This duty requires a public authority in the exercise of its functions to have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct prohibited under the 2010 Act;
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

A 56-year-old woman wished to take a catering course. The Education (Student Loans) (Scotland) Regulations 2007 made provision for student loans for the course, but only students under the age of 55 were eligible. She was refused a student loan and petitioned for judicial review.

Age is a protected characteristic under the 2010 Act. The Court found that the PSED applied to the implementation of policies as well as their formulation. Even though the policy dated from before the PSED came into force, the duty was ongoing. Where there are grounds to believe that the manner in which a public function is being exercised is not fulfilling the requirements of the PSED, then due regard must be had to exercising it in a manner that does. The Court held that these grounds were established when the Scottish Ministers made amendments to the 2007 Regulations. These amendments disapplied the age limit for certain vocational courses but failed to do so for the course the woman had applied for. At that point the Scottish Ministers failed to meet the requirements of the PSED.

Hunter v SAAS [2016] CSOH 71

Those exercising public functions in or on behalf of public authorities should keep an accurate record showing that they have considered the PSED and relevant questions. Certain public authorities, when applying a new or revised policy or practice have additional specific duties in relation to the PSED and must assess the impact of the policy against the requirements of the PSED^[3]. This can be achieved by completing an equality impact assessment. Failure to keep an accurate record of steps taken or failure to carry out an equality impact assessment may lead to a decision being challenged and ultimately struck down.

A man who suffered from physical and mental health problems and had been made homeless made an application for rehousing to a local authority. The Court found that the local authority was required to closely consider the public sector equality duty at every stage in the decision-making process as to whether the man was in priority need of accommodation as a vulnerable person. This duty applied over and above duties towards people with disabilities under the relevant housing legislation.

Hotak v Southwark LBC [2015] UKSC 30

As can be seen from the case examples, the PSED is ongoing and can apply to a policy or practice that pre-dates the introduction of the PSED. Cases have been brought in which it was argued that the duty was not carried out properly, in relation to matters such as decisions on planning control, housing, an ex gratia compensation scheme, and the funding of voluntary organisations.

What does a duty to have “due regard” to the needs of the PSED require you to do when making a decision? The UK Supreme Court has held that “due regard” means the regard that “is appropriate in all the circumstances”^[4]. In the case of Hotak, Lord Neuberger explained that:

“in light of the word ‘due’ in section 149(1), I do not think that it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependent on individual judgment”.

The case law gives some further guidance ^[5].The duty must be exercised in substance, with rigour, and with an open mind, and it is for the decision-maker to determine how much weight to give the duty.

“The court cannot interfere...simply because it would have given greater weight to the equality implications of the decision”^[6]. The duty is “not a duty to achieve a particular result”^[7]. It is a duty to have regard to the need to achieve the goals set out in the PSED.

Some other key principles from the case law are that the duty cannot be delegated, must be fulfilled before and while a policy is being considered, and requires the decision-maker to be properly informed.

In addition to the PSED, the 2010 Act imposes a duty on certain public authorities, when making decisions of a strategic nature about how to exercise their functions, to have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage. This is known as the Fairer Scotland Duty, which came into force in April 2018.

There are relevant materials that will assist you in complying with the PSED and Fairer Scotland Duty. The Equality and Human Rights Commission has published Technical Guidance on the PSED in Scotland^[8]. The Scottish Government has published ‘The Fairer Scotland Duty: Guidance for Public Bodies’^[9] and the ‘Equalities Outcomes and Mainstreaming Report 2021’^[10] in relation to meeting the requirements of the Specific Duties Regulations^[11]. These Regulations place specific duties on certain public authorities, including reporting and publishing duties, with the aim of enabling better performance of the PSED by those authorities.

Comprehensive Equality Impact Assessment guidance is available through the Scottish Government intranet to all Scottish Government staff to help ensure these duties are met. Other public authorities will have their own schemes and guidance.

A father, whose son suffered from severe learning and mobility issues, challenged the closure of an adult day care centre. One of the grounds of challenge was that the council had failed to comply with its duties under section 149 of the 2010 Act. The Court found that the effective decision to close the day care centre had been taken without an Equality Impact Assessment. It accepted that a failure to carry out an assessment may be excusable where it can be shown that the duty under section 149 has been observed, but that was not the case here. A scoping exercise that had been carried out had the hallmarks of a tick-box exercise completed after the effective decision had been taken. The Court reduced the decision, which meant that the council was required to keep the day care centre open beyond the date that it was due to close.

McHattie v South Ayrshire Council [2020] CSOH 4

South Wales Police trialled the use of automated facial recognition technology to capture digital images of members of the public which were then compared with images on a police “watch list”. A man who was caught on camera twice challenged the use of this technology against him on a number of grounds, one of which was breach of the public sector equality duty. Although South Wales Police had carried out an equality impact assessment, the Court found it had not taken reasonable steps to investigate whether the technology had an unacceptable bias on grounds of race or sex, and therefore had not fulfilled the public sector equality duty.

Regina (Bridges) v Chief Constable of South Wales Police v Information Commissioner and others [2020] EWCA Civ 1058

See also in particular

question three

What factors should I consider when making the decision?

question eight

Will I be complying with human rights law?

Question eleven - 11 What are my environmental duties?

There are a number of pieces of legislation which place duties on decision-makers to take steps to consider the environment, climate change and biodiversity before making a decision. Not all of these duties will be relevant to every decision, but you must consider whether they apply and meet them if they do.

This section sets out some environmental duties that could apply to your decisions. Failure to meet these duties could mean that a decision is unlawful and could be struck down.

Environmental assessments

If you are making a decision about a plan, programme or project that is likely to have a significant effect on the environment then you might have to undertake an environmental assessment before you make your decision.

The process of environmental assessment ensures the environmental implications of decisions are taken into account before those decisions are made. It is designed to ensure the environment is considered early and openly in your decision, that there is appropriate consultation and that you have compared different options. The process applies in a wide range of situations.

There are three types of environmental assessment. The first are Environmental Impact Assessments (EIA), which evaluate the environmental effects of individual proposed development projects (e.g. a new factory, road or windfarm).The requirements for EIAs are set out separately in respect of different statutory regimes under which consent is given for a project to proceed.

The second are Strategic Environmental Assessments (SEA)^[12], which evaluate the environmental effects of qualifying public plans, programmes and strategies (e.g. infrastructure plans).

The third are Habitats Regulation Appraisals^[13], which evaluate the impact a plan or project may have on the habitat of a specially protected site. These are also referred to as “appropriate assessments”.

It is important to determine from the outset whether you need to conduct an environmental assessment. If you think one might be required, you may wish to contact your lawyers or other specialist teams for advice.

Further information on environmental assessments, including relevant guidance, can be found on the Scottish Government website.

A decision could be open to challenge if you don’t undertake an environmental assessment when one is required, or if the process is flawed in some way.

Public bodies’ climate change duties

Part 4 of the Climate Change (Scotland) Act 2009 places duties on most public bodies in Scotland to contribute to climate change mitigation, climate change adaptation, and to act sustainably when exercising their functions.

The duties apply whenever decisions are made in the exercise of a body’s functions – this covers a very wide variety of decisions, such as decisions about services, plans, funding, licences etc. In practice the level of consideration that needs to be given to the duties will vary depending on the type and level of decision being made.

Public bodies should be embedding these principles into decision-making processes and you may want to check whether local arrangements are in place to demonstrate that your decisions comply with them.

There is guidance on the climate change duties and it is a legal requirement that public bodies have regard to the guidance.

Biodiversity

Section 1 of the Nature Conservation (Scotland) Act 2004 is another example of an environmental duty relevant to decision-makers. It places a duty on public bodies and office-holders, when exercising any functions, to further the conservation of biodiversity. You don’t, however, need to take action which would be inconsistent with the proper exercise of your functions.

In meeting this duty you must have regard to the Scottish Diversity Strategy and the United Nations Environmental Programme Convention on Biological Diversity.

The original diversity strategy was published in 2004 but has since been supplemented by the ‘2020 Challenge for Scotland’s Biodiversity’ published in 2014. The two documents together now constitute the Scottish Biodiversity Strategy and can be found on the Scottish Government website:

• Scotland’s Biodiversity: it’s in your hands
• 2020 Challenge for Scotland’s Biodiversity

Question twelve - 12 What are the financial implications of the decision?

Financial propriety and accountability

Many, if not most, decisions by public authorities will have public resource implications: from straightforward disbursement of funds, to taking a decision on whether or not to enforce a debt (for example a tax liability or an unpaid penalty). In all cases public authorities are responsible for the efficient and effective use of public funds and will be subject to internal protocols relating to the level of authority required and the basis on which financial decisions can be made.

Propriety of expenditure is not in itself a legal test but involves political and ethical judgement against the accepted norms of the day expected of public servants. A key principle here is whether an accountable officer or other public official with financial responsibility would be prepared to defend the expenditure/commitment publicly.

Any decision must be looked at carefully to ensure it complies with the relevant requirements. While such financial obligations may not be legal in the strict sense of being enforceable in court, most, if not all, public authorities will be subject to internal and external audit, their duties to their sponsor bodies and, to a lesser or greater extent, to Scottish Ministers and the Parliament depending on the type of public authority or, in the case of local authorities, their Council Members.

In taking a decision therefore you need to be very clear on what the financial implications of that decision are and ensure that other alternatives have been considered to establish the decision represents good value for money within a framework of Best Value, calling on specialist financial advice (which may, depending on the organisation, be internal or external) where required. Value for money does not always mean choosing the cheapest option, there is in fact an overriding obligation on officials to ensure that public funds are disbursed with due consideration to the suitability, effectiveness, prudence, quality and value of a decision, and should be judged for the public sector as a whole, alongside ensuring the avoidance of error and other waste.

Your organisation may be bound by the terms of the Scottish Public Finance Manual (SPFM).

The bodies to which the guidance in the SPFM is directly applicable includes:

• the constituent parts of the Scottish Administration (i.e. the Scottish Government, the Crown Office and Procurator Fiscal Service, Scottish Government Executive Agencies and non-ministerial departments);
• bodies sponsored by the Scottish Government;
• the Scottish Parliament Corporate Body; and
• bodies sponsored/supported by the Scottish Parliament Corporate Body.

Bodies sponsored by the Scottish Government essentially means those commonly referred to as non-departmental public bodies (NDPBs). NDPBs include Executive NDPBs, Public Corporations and NHS Bodies.

The SPFM sets out the rules for spending money, accounting requirements, accountability of officials and auditing arrangements.

The Local Government (Scotland) Act 1973 requires every local authority to make arrangements for the proper administration of their financial affairs and to secure that the proper officer of the authority has responsibility for the administration of those affairs. The 1973 Act sets out the requirement for local authority annual accounts and for the audit of those accounts. Regulations made under the 1973 Act set out additional requirements in relation to financial management and annual accounts^[14]. The Local Government in Scotland Act 2003 places a local authority under a duty to secure best value.

Does the decision involve the award of money (or other commercial advantage) to a third party?

There are a number of contexts in which public authorities enter into contracts or award grants to private businesses or third parties to fund certain activities. In taking decisions which involve the expenditure of public funds, an authority must ensure that it complies with applicable law as well as any internal guidance or process which applies, for example, the Scottish Public Finance Manual.

Where an authority makes an arrangement with a third party which involves an economic advantage (which can be by way of a contract or grant, but also more broadly, other advantages, e.g. the ability to use the authority’s intellectual property), the authority should consider whether procurement or competition and trade considerations are relevant to the proposal. Procurement refers to the process by which public authorities purchase work, goods or services from others. Procurement law applies to the provision of most works, goods and services to public authorities and in many cases mandates the use of a competitive procurement process, in which all suitably qualified entities can participate on a fair, open and transparent basis. This is a complex area on which specialist advice will be required, but a general overview is provided here.

Any decision which involves the granting of a commercial advantage to a third party will need to be considered in the context of competition and trade law, in particular constraints on the granting of distortive subsidies (also referred to in the context of EU law as “state aid”). At the time of publication, this area of law was in a period of significant change arising from the UK’s exit from the European Union and specialist advice will be required to ensure relevant obligations are respected.

When do I need to think about procurement?

The procurement rules are engaged when a public authority enters into a contract for works, goods, services or the operation of a concession (i.e. granting the right to revenue arising from the operation or exploitation of a particular asset or right, e.g. the operation of a car park where the revenues are dependent on the use of that asset and are not guaranteed by the public authority). These derive originally from EU law as set out in a suite of procurement Directives^[15] which have been implemented in Scotland through domestic legislation^[16], much of which has become retained EU law following the UK’s exit from the European Union and the expiry of the transition or implementation period on 31 December 2020. In addition, the Procurement Reform (Scotland) Act 2014 and supporting Regulations^[17] places further obligations on public authorities in relation to procurement.

Contracts above applicable threshold values need to be awarded following a fair, open and transparent competition in accordance with the relevant rules, other than for a few exceptions where the rules may not apply or where direct awards are expressly permitted. There are a number of different procedures available depending on the nature of the contract to be awarded. Specialist support will be required in the design and execution of the procurement.

Failure to comply with the applicable rules may have significant consequences, including financial consequences.

Particular care must be taken when awarding grants to ensure that the arrangement is not in fact a contract for the provision of goods or services. If it is a contract the procurement rules must be followed. Failure to do so may result in the illegal direct award of a contract with potential severe consequences, including financial penalties. Whether or not the arrangement is truly a grant will depend upon its nature and purpose and not the form of agreement used.

See also in particular

question nine

Will I be complying with retained EU law?