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right first time: A practical guide for public authorities in Scotland to decision-making and the law

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Step 1 | 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?

question one

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

A decision-maker may appear to have 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 may be legal limits.

To ensure that a decision is lawful and fair, and is not overturned on review by the Court 1 or challenged by any other authority, the starting point is to understand the nature of the power.

  • Some limitations may be express: 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.
  • Other limits will be implied by the statutory scheme that gives the powers.

Other limits may be derived from the principles of administrative law. These include:

Legality

acting within the scope of any powers and for a proper purpose

Procedural fairness

for example to give an individual an opportunity to be heard

Reasonableness or Rationality

following a proper reasoning process and so coming to a reasonable conclusion

Compatibility

with human rights and European law

To act lawfully, a decision-maker must have the legal power to do what he or she intends to do. If not, that person will be acting ultra vires or outside his or her powers. Where the power does exist, it will usually be found in legislation.

It will be necessary to study the legislation to learn the limits and purposes of the power and to consult accompanying documents such as explanatory notes for assistance. Where doubt remains, you should consult your lawyer.

Sometimes the Government and public authorities will derive their power to act from a contract, or, in the case of Government, from Ministers' powers at common law, e.g. power to employ staff. In addition there are some powers which are considered part of the "Royal Prerogative" of the Crown because Ministers act on behalf of Her Majesty The Queen.

If the power is contained in legislation, you will need to look at its words to work out what the decision maker can and cannot do. Usually, words in a statute are given their plain English meaning. Where the words might give rise to a different interpretation, the Court will try to determine the intention of the Parliament that made the legislation. Either way, you will need to understand the general purpose of the statute, as well as the particular provision. It can sometimes be helpful to consider the explanatory notes to an Act or the executive note for subordinate legislation 2, and the record of any proceedings in the Scottish or UK Parliament 3. The Court will also read legislation so as to comply with human rights, European law and, in the case of legislation made by the Scottish Parliament, the Scotland Act.

A power or a duty?

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" 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.

There may be a power available to a public authority but it may have a discretion about whether or how it is to be exercised.

Who can review decisions?

For the purposes of this guide reference is made in general to the Court reviewing decisions. However it should be borne in mind that decisions are often reviewed internally as well as by administrative tribunals.

A decision may also be reviewed by the Scottish Public Services Ombudsman. Where a person is unhappy with the service they have received (which could include a decision or series of decisions) from a public body falling under the remit of the SPSO4 they may make a complaint and have it investigated.

See also in particular

question six

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

question seven

Have devolution and the Scotland Act affected the power?

question eight

Am I complying with human rights and European law?

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 restricted patients detained in medium and low security hospitals to challenge their conditions of security. Regulations introducing such a mechanism for those detained in high security hospitals had already been introduced. Having examined the background to the Act, its passage through Parliament and guidance issued by the Scottish Health Department following its coming into force, the Court held that it was clear that the provision allowing regulations to be made was intended to deal with a problem which may arise at some point in the future. Parliament had not intended to impose a time limited duty on the Scottish Ministers to make the Regulations.

RM v Scottish Ministers
(2008) CSOH 123

question two

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.

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 policy the local authority 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 DC ( OH) 1990 SLT 235

Legislation may expressly set out the purposes for which a power may be exercised, or they may be implied from its objectives. The Court has 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.

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 seven

Have devolution and the Scotland Act affected the power?

question three

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 a statute, it might set out the factors on which you should base your decision. Some statutes set out factors which you have to pay "particular" attention to. So, whilst the statute doesn't set out every factor which you can consider, it does mean that you have to follow the factors that are listed.

If the statute doesn't set out factors to be considered then it helps to look at what the statute 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 Court 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 statute and the Court would be likely to decide that this was an irrelevant factor on which to base a decision.

An application for a regular 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 1989 SCLR 731

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 twelve) 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
  • 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 The 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 the decision.

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 Act 1998 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 ten

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

question eighteen

To what extent should I give reasons for the decision?

Relevant considerations might also be

  • policies (see question four)
  • legitimate expectations (see question five)
  • representations received (see questions eleven to thirteen)

question four

Is there a policy on the exercise of the power?

Where a statute 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 statute 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 statute confers a discretion on an individual, he or she 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 Court has 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 it may be essential that there is a policy. But the Court has also held that the decision-maker must nevertheless direct his or her 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 he or she should not depart from it without giving an explanation or should ensure that a change in policy is compliant with the law.

The Court criticised the Home Secretary for departing from a published policy relating to foreign national prisoners where there had been a decision to deport. The policy was 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.

Abdi and others v Secretary of State for the Home Department [2008] EWHC 3166

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.

See also in particular

question five

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

question nine

How has equal opportunities legislation affected the power?

question thirteen

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

question five

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

An authority must act within its powers; must not close off (or "fetter") the exercise of its discretion, and may exercise that discretion in accordance with a "policy", provided it is operated consistently but not too rigidly. 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 his or her legal powers and offers to an applicant a benefit (for example, planning permission) for which the applicant is not qualified under statute.

In this kind of situation someone affected by the decision can 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 in particular a benefit, it may (depending on the circumstances) be unfair to break that promise, even if there are public interest grounds for breaking it.

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 over-riding 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 (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 Court 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 over-ride 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.

Where it is intended to change a policy or a procedure (for example, to change a practice of accepting late applications), practical steps should be taken to address potential claims of legitimate expectation that the policy or procedure would continue - by clear publicity, by careful explanation why the change is necessary, and possibly by consultation with regard to the timing of any change or to the new procedure to be adopted.

See also in particular

question four

Is there a policy on the exercise of the power?

question thirteen

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

Mrs M agreed to remove herself voluntarily from a pitch on a travelling person's site on condition that she would be offered a pitch on the site following completion of modernisation works. An unconditional assurance was given and confirmed in writing. When the site was reopened she was not given a pitch. Mrs M sought review of the decision on the grounds that she had a legitimate expectation that her application would be granted. The Court had to consider whether there were factors which would permit the authority to depart from the assurance that had been given. In this case Mrs M had not been honest in her application form and the Court held that this was a factor which would justify departure.

McPhee v North Lanarkshire Council 1998
SLT 1317

question six

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 Court accepts 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 5. 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. 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.

In terms of the Scottish Prison Rules, a Governor has the power to remove a prisoner from association for particular reasons including maintaining the good order of the prison, for a period of up to 72 hours. The Scottish Ministers may authorise an extension of that removal on the application of the Governor. On the basis of the Carltona doctrine, the decision on an extension may be taken by a duly authorised civil servant of a senior grade on the Ministers' behalf.

Rule 94, The Prisons and Young Offenders Institutions (Scotland) Rules 2006

See also in particular

question seven

Have devolution and the Scotland Act affected the power?

question fourteen

Could I be, or appear to be, biased?

question seven

Have devolution and the Scotland Act affected the power?

At present, the Scottish Parliament has powers to make laws in devolved areas, but in reserved areas those powers remain with Westminster. The functions of many public authorities in Scotland were relatively unaffected by devolution, though they may be affected by subsequent Acts of the UK or Scottish Parliament. The powers of the Scottish Government (and wider Scottish Administration) on the other hand are closely aligned to the functions of the Scottish Parliament.

Whether a law is devolved or reserved depends on its subject-matter, its purpose and, among other things its effect in all the circumstances.

The UK and Scottish Governments have legal powers only over the matters that are within the range of subjects they control. 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. There are, however, a range of mechanisms in the Scotland Act that allow the boundaries of devolution to be altered. Since devolution, a range of alterations have been made.

An Act of the Scottish Parliament or the purported exercise of powers by the Scottish Ministers can be struck down by the Court, if it has an effect beyond that permitted by the Scotland Act on reserved matters, or if it is incompatible with human rights or European law.

However, as a general rule, you can assume that the current legislation is within the competence of the Scottish Parliament and proceed to make your decision on that basis.

See also in particular

question one

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

question eight

Am I complying with human rights and European law?

question eight

Am I complying with human rights and European law?

Human rights considerations permeate many areas of the work of public authorities in Scotland.

The Human Rights Act 1998 requires public bodies to act compatibly with a wide range of the rights set out in the European Convention on Human 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 6. The key human rights are in Annex 1.

The Scotland Act also obliges the Scottish Ministers and the Scottish Parliament to act compatibly with both human rights and European law.

As the UK is part of the European Union, European law overrides Scots law. In fields governed by European law ( e.g. agriculture and parts of environmental law) broad principles of European law apply. Much significant European legislation applies directly in Scotland and can be relied upon against public authorities in Scotland. Key European law issues are summarised in Annex 2.

The use of a power may be unlawful if the effect of the decision is to contravene a person's human rights, or European law.

Mrs B'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. Mrs B 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.

Kennedy & another v Lord Advocate & Scottish Ministers [2008] CSOH 21

In this case example, the decision made by the Lord Advocate was within the terms of the statute, but the particular exercise of the power was incompatible with a human 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 given effect to in a way which is compatible with human rights 7

See also in particular

question seven

Have devolution and the Scotland Act affected the power?

question fourteen

Could I be, or appear to be, biased?

question sixteen

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

A prisoner challenged the blanket ban on voting which applied to convicted prisoners serving custodial sentences, imposed by section 3(1) of the Representation of the People Act 1983 as amended. The claim was made to the right to free elections in Protocol 3 to the Convention. The Court considered whether it was possible to read the legislation in such a way as to make it human rights compliant but found that there was no way to do so because it could not choose among the multiple policy alternatives. To do so would mean it was effectively legislating on its own account. The Court therefore declared the legislation incompatible with human rights.

Smith v Scott [2007] CSIH, 24 January 2007

question nine

How has equal opportunities legislation affected the power?

There are a number of pieces of legislation which make it unlawful to act in a particular way or reach a particular decision where it would be discriminatory.

The Human Rights Act 1998 and European law prohibit discrimination in certain circumstances. The Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Equality Act 2006 (and regulations under it) contain prohibitions on discrimination on grounds of sex, race, disability, religion or belief, or sexual orientation in the exercise of most public functions.

The Scotland Act reserves the subject matter of equal opportunities to the UK Parliament, with the exception of the encouragement of equal opportunities by, and the imposition of duties on, the Scottish Government and Scottish public authorities to ensure that their functions are carried out with "due regard" to the need to meet equal opportunities requirements.

A decision may be unlawful, therefore, if it fails to have due regard to the need to eliminate unlawful discrimination and promote equality of opportunity. Specific provisions of equalities legislation also impose duties on public authorities to evidence that they have shown due regard to certain matters 8. The public sector equality duties for race, gender and disability require public authorities to undertake equality impact assessments to ensure that the implications of decision-making, both positive and negative, for different groups in society have been considered. These duties are to be extended further under the provisions of the UK Equalities Bill.

Decisions must therefore be taken with due regard for the need to:

  • eliminate unlawful discrimination and harassment under the Sex Discrimination Act 1975
  • eliminate unlawful racial discrimination under the Race Relations Act 1976 and the Race Relations (Amendment) Act 2000
  • eliminate discrimination that is unlawful under the Disability Discrimination Act 1995 and harassment of disabled persons related to their disabilities
  • promote equality of opportunity between men and women
  • promote equality of opportunity and good relations between persons of different racial groups
  • promote equality of opportunity between disabled persons and other persons
  • take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons
  • promote positive attitudes towards disabled persons
  • encourage participation by disabled persons in public life.

Failure to do so may lead to a decision being struck down.

In 2007 the Secretary of State made amendments to the rules in accordance with which Secure Training Centres (" STCs") in England and Wales had to be run. STCs accommodate young people ("trainees") who have either been sentenced to custody or who have been remanded in custody. The amendments permitted officers in STCs to physically restrain trainees if it was necessary for the purposes of ensuring good order and discipline. The amendments to the rules were challenged, not because they were discriminatory, but because, amongst other things, no racial equality impact assessment was carried out before the Secretary of State had made them. The courts considered that the amendments to the rules were plainly a change in policy in a matter that might raise issues about racial equality, in view of the significant numbers of black and ethnic minority trainees accommodated in STCs. The Court of Appeal decided that the rule of law and the proper administration of race relations law required the amendment rules to be quashed.

R(C) v The Secretary of State for Justice [2008] EWCA Civ 882

As can be seen from the case example, the duty applies even in cases where you might think you are not making a significant change or where you think your decision will affect everyone equally. Other cases where challenges have been brought arguing that the duty was not carried out, or not carried out properly, have included decisions on planning control, an ex gratia compensation scheme and the funding of voluntary organisations.

What does a duty to have "due regard" to these needs require you to do when making a decision? There are no reported cases in the Scottish courts but the Court of Appeal in England and Wales has said that due regard means: "the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing". 9

The duty however is not a duty to achieve the elimination of discrimination or the promotion of equality of opportunity. It is only a duty to have regard to the need to achieve these goals.

There are relevant materials that will assist you in complying with these duties. The Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission (replaced in October 2007 by the Equality and Human Rights Commission) have published Codes of Practice, which still have effect, on the performance of these duties and good practice examples from the implementation of the duties by public bodies 10. The Scottish Government has published schemes which show how it intends to fulfil these duties. 11 An Equal Opportunities Impact Assessment toolkit and guidance are 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.

See also in particular

question three

What factors should I consider when making the decision?

question eight

Am I complying with human rights and European law?

NHS 24 Equal Pay Review

The Gender Equality Duty requires that listed public bodies "consider the need to have objectives to address the causes of any gender pay gap". In late 2007 and early 2008, NHS 24 carried out an equal pay review to ensure their compliance with the element of the Gender Equality Duty that requires public bodies to publish arrangements for delivering equal pay and then to report on progress.

Although the NHS has a national pay review programme (Agenda for Change), NHS 24's first equality and diversity annual report (Delivering Equality, Embracing Diversity, published in September 2007) highlighted the fact that there was a need to gather further information on a number of related issues. These included wage levels, actual earnings, the implication of part-time working, gender segregation, shift work and continuous service, among others. An equal pay review was identified as the most appropriate tool to complement work on, and add value to, meeting specific employment duties as well as providing an evidence base for the delivery of equal pay. The equal pay review is available on the NHS 24 website.

The review found an overall pay differential between women and men, and within particular grades, enabling a further exploration as to the underlying reasons. NHS 24 has now committed to undertaking an annual update of the review to help address any structural factors which may cause pay differentials between women and men.

www.equalityhumanrights.com/scotland

question ten

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

Data Protection

Information about individuals held by public authorities is governed by the Data Protection Act 1998 ("the DPA"), as is such information held by private bodies. The DPA is a UK statute which gives effect to a European Directive. If the information is biographical, and is capable of being used on its own or in conjunction with other information to identify a person, it is probably covered by the DPA.

Where it applies, the DPA restricts the use you can make of the information, and allows the individual rights to get that information. There are a wide range of exemptions which can apply, e.g. national security, and where disclosure is required by law. However, you should proceed on the basis that any information that you receive or generate about an individual could end up being seen by that individual. You should ensure that all personal information is accurate, up to date, kept for no longer than necessary, and stored safely. More information is available on the general requirements of the DPA12.

Issues often arise about sharing information obtained for one public purpose for another (usually known as "data sharing") either between public authorities or within a single public authority. Information should only be accessed and used in decision-making when there is a proper basis for you to have sight of the information. There is detailed Scottish public sector guidance available 13.

Freedom of information

Under the Freedom of Information (Scotland) Act 2002, members of the public are given rights to get information from most Scottish public authorities merely because it is held by the authority. They do not require to give reasons for their request. You should bear in mind when making a decision, that the information you have available to you and the material that you generate in the course of the decision-making process may subsequently require to be released, either proactively or in response to a freedom of information request.

There are a wide range of exemptions, though many are subject to a public interest test. Where that test appears to apply, it has to be considered in relation to each piece of information - you should remember that information should be released unless there is a good reason in terms of the exemption not to release it. Your decision can be reviewed by the Scottish Information Commissioner 14.