how to use this guide
If you are responsible for making or advising on decisions, the legal considerations you have to take into account may sometimes seem daunting, even bewildering. What should you be thinking about, or doing, and when?
The checklist on page 5 and this guide are here to help.
The process will begin with you getting ready to make a decision (or a recommendation to Ministers or officials) by sizing up and scoping out the task in front of you. You will move to gathering and analysing facts, evidence, views and opinions to inform the decision. Having done that you will evaluate the options and take the decision. Finally, you will notify others of the decision.
The checklist sets out key questions to ask yourself at each step. The rest of the guide helps you answer them.
The checklist and guide 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 guidance that will sometimes be needed. They are no substitute for asking your lawyer.
Decision-making will feel and be messier than the checklist suggests. The questions overlap - in places we flag up where one can be relevant if you are considering another, but bear in mind that all of the questions may have to be considered.
Step 1 | Getting ready to decide
questions designed to make sure that you understand the law regulating your decision-making power. They are important - you will have to return again and again to these questions and the law regulating your power at each step.
Step 2 | Investigation/evidence gathering process
important questions about the way in which the decision is made, i.e. on the procedure leading to the decision, not its substance or merits.
Step 3 | Taking the decision
Make sure the substance of the decision will be respected by the courts.
Step 4 | Notifying others of the decision
Do you have to give reasons?
What does the legal jargon mean?
We introduce and explain the legal terms used on page 6.
Step 1 | Prepare: Getting ready to decide - 10 questions
01. Where does the power to make this decision come from and what are its legal limits?
02. For what purposes can the power be exercised?
03. What factors should I consider when making the decision?
04. Is there a policy on the exercise of the power?
05. Does anyone have a legitimate expectation as to how the power will be exercised?
06. Can I make this decision or does someone else need to make it?
07. Have devolution and the Scotland Act affected the power?
08. Am I complying with human rights and European law?
09. How has equal opportunities legislation affected the power?
10. Am I handling data in line with Data Protection or Freedom of Information obligations?
Step 2 | Investigate: Investigation/evidence gathering process
11. Does the power have to be exercised in a particular way, e.g. does legislation impose procedural conditions or requirements on its use?
12. Have I consulted properly?
13. Will I be acting with procedural fairness towards the persons who will be affected?
14. Could I be, or appear to be, biased?
Step 3 | Decide: Taking the decision
15. Have I taken necessary considerations into account, and is my decision reasonable?
16. Does the decision need to be, and is it, proportionate?
17. Are there decisions where the Court is less likely to intervene?
Step 4 | Notify: Notifying others of the decision
18. To what extent should I give reasons for the decision?