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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 2 | Investigation/evidence gathering process

11. Does the power to make the decision 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?

question eleven

Does the power to make the decision have to be exercised in a particular way, e.g. does legislation impose procedural conditions or requirements on its use?

Correct procedure (or "due process") is vitally important, because there are some tried and tested procedural mechanisms which are likely to secure a just outcome and demonstrate the rule of law. The so-called "rules of natural justice" are rules of procedure. What amounts to a fair process may vary depending on the circumstances. As a general rule, however, a person likely to be affected by a decision should be given adequate notice to allow them to make representations. This may mean that they have a right to an oral hearing or it may just allow them an opportunity to make written submissions. If there is available evidence then there must be an opportunity for all parties to consider and make representations. In determining whether there has been a fair hearing, the Court will consider whether there has been equality of treatment.

In a case involving an application by the holders of an entertainment licence for an extension of permitted hours, the Chief Constable objected on the basis of a number of incidents which had taken place in the immediate vicinity of the premises. The Licensing Board accepted that the objections were relevant to their consideration and of a serious nature, whether taken individually or together. It refused the application on the basis that the extension was likely to cause a public nuisance or be a threat to public order or safety.

The applicants argued that there should have been an opportunity to lead evidence before the Licensing Board, but the Court felt it was sufficient to ensure a fair process that the licence holder had a fair opportunity to correct or contradict the information provided by the Chief Constable. Each party had, and took, the opportunity to make submissions about what was alleged.

JAE (Glasgow) Ltd v City of Glasgow District Licensing Board 1994 SLT 1164

Legislation can also impose specific procedural conditions or requirements which must be satisfied before a power can be exercised. For example, legislation might stipulate that the Scottish Ministers or another public authority must:

  • Consult with particular persons;
  • Publish a decision in draft;
  • Make due inquiry;
  • Consider any objections before making a decision.

These procedural requirements are important, and failure to comply with them may make a decision invalid. The decision-maker will need to fulfil them (and be able to show that they have been fulfilled) in spirit, as well as literally.

Occasionally, if the requirement is technical, or breach of the required procedure does not defeat the purpose of the statute or damage the public, a failure to satisfy it will not necessarily be fatal to the decision. It might be for example that the statute required a public authority to carry out a function within a certain time limit. If the public authority performed the function, but was a bit late, the court might hold that there had been substantial compliance so that the breach could be overlooked.

See also in particular

question twelve

Have I consulted properly?

question thirteen

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

question fourteen

Could I be, or appear to be, biased?

question twelve

Have I consulted properly?

Consultation with the persons likely to be affected by the decision is very often part of the decision-making process. It helps to make the process a transparent and fair one and helps to ensure that the decision-maker is in possession of all the relevant information, so that the decision is a "rational" one as well. Consultation is generally desirable whether it is required by statute or not. Where consultation is undertaken it has to be conducted properly if it is to satisfy the requirement for procedural fairness. Four conditions have to be satisfied.

  • Consultation must be undertaken when proposals are still at a formative stage.
  • Sufficient explanation for each proposal must be given, so that those consulted can consider them intelligently and respond.
  • Adequate time needs to be given for the consultation process.
  • Consultees' responses must be conscientiously taken into account when the ultimate decision is taken.

Failures of consultation (and indeed other lapses in due process) usually occur through inadvertence on the part of the decision-maker and the pressures of work. When such a lapse forms the basis of a challenge to the decision, the decision-maker may be tempted to say "but it was an open and shut case. Consultation [or an oral hearing; or full disclosure of reasons] would have made no difference. The decision would inevitably have been the same." That may well be true, but the Court is unlikely to be sympathetic to such a response. And for good reason: the principle is that only a fair procedure will enable the merits to be determined with confidence, and must therefore come first.

See also in particular

question eleven

Does the power have to be exercised in a particular way, e.g. does legislation impose procedural conditions or requirements on its use?

question thirteen

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

question fifteen

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

question thirteen

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

As well as acting within the limits of its powers, the decision-maker will also need to come to a decision in a procedurally fair way. Without such procedural fairness, even if the decision-maker is not acting ultra vires, the decision may still be unlawful.

The common law recognises procedural fairness, or the existence of "due process", as a key principle of just decision-making. Fairness is a concept drawn from the constitutional principle of the rule of law, which requires regularity, predictability and certainty in public authorities' dealings with the public.

Where statute confers an administrative power there is a presumption that it will be exercised fairly. What is "fair" will depend on the particular circumstances in which the decision is to be taken and may change with the passage of time. Such principles cannot be applied by rote and what is fair depends on the context of the decision. It will be important to look at the terms of the statute and the parameters in which the discretion is to be exercised. It will often be necessary to allow a person or persons who may be adversely affected by the decision to have an opportunity to make representations and to have notice of the information on which the decision is to be based.

It is a feature of a fair procedure or decision-making process that the person affected by it will know in advance how it will operate, and so how to prepare for it and participate in it. That is the importance of due process.

In a case involving appeals by two City Councils against decisions of the Scottish Information Commissioner one of the grounds of appeal was that the Commissioner's decisions were unlawful as there had been procedural unfairness. The Freedom of Information requests were submitted by a firm of solicitors on behalf of "a client" (who was unnamed but in fact a firm whose business is to find out and sell information about land). One of the City Councils' arguments was that they could find out this information by paying for Property Enquiry Certificates. Providing this information free of charge under FOI would, as well as involving them in a great deal of additional work and expense, prejudice their commercial interests. Without the knowledge of the two City Councils, the Commissioner's staff conducted a survey of other relevant authorities to assess whether any of them had experienced damage to their commercial interests as a result of responding to similar requests. The evidence pointed to little, if any, damage to their commercial interests. Neither of the Councils had been provided with any information about the Commissioner's investigations or their results and they had not had the opportunity to respond to the Commissioner's findings. They had not been given the opportunity to explain why in their situation the result would be different. The Court held that the procedure had been unfair and that the Commissioner should have given the Council notice of any relevant material adverse to their position and invited their comments.

Glasgow City Council and Dundee City Council v Scottish Information Commissioner [2009] CSIH 73

Human rights, equal opportunities legislation and certain aspects of European law also require that a fair procedure is followed. At each stage of a process, a decision-maker should ensure that such issues have been properly considered and that rights or duties have been respected or followed, as appropriate.

In a case involving the removal of a migrant and whether that would infringe his right to respect for family life under Article 8 of the Convention, the Court held that the task of the appeal body was to decide whether the challenged decision is unlawful because it infringes a Convention right. It did not matter if the procedure in taking the decision was followed impeccably but the appeal body must decide for itself whether the decision challenged was lawful and if not, it must reverse it.

Huang v The Secretary of State for the Home Department [2007] UKHL 11; 2007 2 AC 167

The Court may find that in the interests of fairness additional conditions should be placed on the exercise of statutory or other executive powers. For example, the Court may insist that, before a decision is made, any of the following is required:

  • Disclosure of the reasons the decision-maker intends to rely on.
  • An opportunity for consultation or making representations.
  • An oral hearing where appropriate.

And after the decision:

  • Disclosure of material facts, or the reasons for the decision.

See also in particular

question four

Is there a policy on the exercise of this power?

question five

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

question eight

Am I complying with human rights and European law?

question nine

How has equal opportunities legislation affected the power?

Relevant considerations might also be:

  • the right to be heard and procedural conditions in legislation (see question eleven)
  • have I consulted? (see question twelve)
  • do I need to give reasons? (see question eighteen)

question fourteen

Could I be, or appear to be, biased?

One aspect of the rule of natural justice is that "no one shall be the judge in his or her own case". If a decision-maker has a financial or other interest in the outcome of the case, he or she cannot be, or be seen to be, impartial. The rule helps to ensure that the decision-making process is not a sham because the decision-maker's mind was always closed to the opposing case. It deals not only with actual bias, but with the appearance of bias: hence the saying "Justice must not only be done, but be seen to be done". Nobody should be able to allege that the decision was a fix because the decision-maker was biased, whether or not there was any truth in that allegation. The rule must be observed strictly to maintain public confidence in the decision-making process.

Impartiality is the opposite of bias. Its importance is enshrined in human rights: Article 6 of the Convention (fair determination of civil rights) requires that a tribunal must be, and have the appearance of being, impartial and independent. The rule against bias also applies to administrative decision-making (where there may be no "tribunal" as such) just as it does to the courts. It is prudent to have procedures available so as to avoid bias, or any appearance of bias. If, for example, the applicant for a grant is known personally to the decision-maker, or the decision-maker has dealt with the applicant before and decided against the applicant or expressed a view adverse to the applicant, it may be appropriate to refer the application to a different, or more senior, official.

The principle can have practical implications for the process by which a decision is made. Very often, when statute requires that a public authority make a decision on an application, it (or the officials acting in its name) will require some sort of technical input, or it may be necessary to ask inspectors to carry out an investigation. In order to ensure as much impartiality as possible, it may be necessary to have structures in place so that there is a separation between the people providing the technical input/carrying out the investigation, and the officials taking the decision or submitting the matter to Ministers (when their personal decision is required). This will reduce the risk of an unsuccessful applicant claiming that the decision-maker was not impartial due to being too involved in the case, or had pre-determined the application.

The "independence" of a decision-maker is different from, though closely linked to, impartiality. It refers to independence from external pressure or influence. It has much more direct relevance to judges (by reason for example of the way they were appointed) or the courts themselves than it has to administrative decision-makers who will often be civil servants appointed to carry out Government policy or otherwise work towards securing the objectives of their employer. But even when a decision-maker is obliged to carry out a policy, he or she must keep an open mind, and any lack of independence should be curable by the availability of judicial review by a fully independent court.

Actual bias is rare: most cases are concerned with the appearance of bias. The test is whether, in all the circumstances, the fair-minded and informed observer, having considered the facts, would conclude that there is a "real possibility of bias": that is, not a remote or insignificant risk. If there is, the decision will be set aside. Not only do you need to be sure that you are free of actual bias before making a decision, you also need to consider not acting as decision-maker if there is a real danger that your impartiality might be open to question.

If parties know of a decision-maker's interest or previous participation (because, for example, the decision maker tells them), they can agree to waive the objection. If you are aware of any reason why you might be thought to be biased, it is wise to declare it at the outset. If the objection is waived, then it is very unlikely that there could be any objection taken later.

In some rare circumstances, a decision-maker who might otherwise be disqualified can still act, if the decision needs to be made, and cannot be made without that person. You should not decide to act in these circumstances without seeking advice on whether there is some way around the difficulty.

See also in particular

question eight

Am I complying with human rights and European law?

question thirteen

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