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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 3 | 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?

question fifteen

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

We have seen in the discussion of question three that when making decisions you must take into account all relevant considerations and not take into account irrelevant considerations. Crucially, when it actually comes to making the decision, you must not make a decision that is so unreasonable that no reasonable person acting properly could have taken it. These are often called the "Wednesbury principles" after the name of the court case which first established them.

The test of unreasonableness concerns the decision as well as the way in which it was reached. Even if the decision-maker has taken into account the correct considerations he or she may still come to a decision so wildly unreasonable or perverse that it can be judged to have been outwith the decision-maker's discretion to make it. If this happens then the decision will be unlawful.

The decision-maker may even have considered all the relevant information and not considered information that was irrelevant, however he or she may have attached a disproportionate weight to a particular factor or made some other mistake with regard to the logic of the decision, which has distorted the decision-making process.

A local authority wished to encourage the development of a key city centre site. It did this by identifying a developer, entering into an agreement to buy the land under a compulsory purchase order, and then transferring it to the developer. This was done in exchange for an undertaking from the developer that it would carry out the development and indemnify the authority from all future costs. Competing developers argued that the local authority had acted in a Wednesbury unreasonable way when it chose its preferred developer. They argued that an indemnity for their costs did not represent the best price or the best terms that could reasonably be obtained for the development of the site. The House of Lords found that the arrangement that had been entered into was reasonably necessary for planning purposes, given the difficulty of developing a site that was in multiple ownership. It could not therefore be said that the local authority reached a decision that no other reasonable local authority would have reached.

Standard Commercial Property Securities Ltd v Glasgow City Council [2006] UKHL 50.

The Court has recognised that when different reasonable people are given the same set of facts, it is perfectly possible for them to come to different conclusions. This means a range of lawful decisions may be within the discretion of the decision-maker. However, at the same time, the Court has defined a category of decisions which lie outside that range of discretion. These have been described as:

  • "a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it";
  • "beyond the range of responses open to a reasonable decision-maker".

These definitions of unreasonableness (or "irrationality") seem quite extreme, particularly the first - it might seem then that the Court would hardly ever find a decision-maker to have acted "unreasonably". However, the Court interprets this category of decisions quite widely and will adjust the threshold of unreasonableness according to the circumstances and context of the case.

If a decision is challenged, the Court will examine it to see whether it was made according to logical principles, and will often expressly state that it is not its intention to substitute its own decision for that of the decision-maker. The Court will not make its own decision in place of that of the decision-maker because it bears in mind that the statute has given the discretion to make the decision to a particular decision-maker, and it is not for the Court to make that decision instead.

The practical affect of this approach is that, where the Court finds that the decision was "unreasonable" and that it has to be remade, the Court will not put in place a more reasonable decision, but will simply cancel the unreasonable one, leaving none in its place. The decision-maker will then be required to make a fresh decision, taking into account any guidance given by the Court, and this time applying logical principles 15.

There are good practical, as well as legal reasons for the Court adopting this "hands-off" approach: the decision-maker may be aware of policy implications or other aspects of public interest which are not obvious to the Court, or the decision-maker may have access to technical information which is not available to the Court and which must inform the decision.

See also in particular

question three

What factors should I consider when making the decision?

question seventeen

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

question sixteen

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

Proportionality essentially means the decision should meet a legitimate policy goal and should not going further than necessary to achieve that goal - i.e. it must be appropriate and necessary to achieve its aim.

The Court will adjust its view of what is or is not proportionate according to the importance of the rights involved. It will apply a greater intensity of review where (in particular) human rights are engaged; in other words, the Court lowers the threshold for a decision to be found unlawful. This is particularly so because human rights bring their own specific rules of interpretation, which means the Court will look at whether any action or decision which is alleged to infringe human rights was proportionate. In areas where European law applies too, a standard of proportionality will be applied by the Court.

The principle of proportionality may be used by the Court where it is looking at an alleged breach of human rights or European law that has occurred because of the decision, or where it is dealing with a right such as Article 8 (right to private life) which necessarily involves a decision-maker considering if a decision to interfere is proportionate.

Where the Court is applying the principle of proportionality it will generally look more closely at the correctness of the decision given the information available than it would by just applying the Wednesbury unreasonableness test (see question fifteen).

It is important to consider whether your decision is one that involves the area of human rights or is a decision made under European law. If so, the proportionality of your decision can be reviewed by the Court if your decision is later challenged.

Proportionality has also been argued as a ground of review for all decisions, outside the fields of human rights and European law. At present, however, proportionality is not currently an independent ground of judicial review at common law in its own right 16.

See also in particular

question eight

Am I complying with human rights and European law?

question fifteen

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

question seventeen

Are there decisions where the Court is less likely to intervene?

In principle, the Court is entitled to review the vast majority of decisions taken by public authorities. "In principle", because there are still a handful of types of decision with which the Court is reluctant to concern itself - the award of honours is one example. Even these categories are increasingly restricted, and it can be imagined that if, say the honours system were placed upon a statutory footing, with procedures, consultation and the like, then the Court would no doubt be entitled to supervise at least procedural aspects.

There remains a class of decision where the Court accepts that, because of the subject matter of the decision, the decision-maker is better qualified than the Court to make a judgement. So for example the Court is likely to "defer" to, or recognise a "demarcation of functions" with, the decision-maker in:

  • ordering financial priorities, in deciding to spend public money in one way rather than another;
  • assessing the needs of national security and public order;
  • setting policy on maximum sentences for particular criminal offences.

The list could go on (and could be broadened to include any topic requiring specialist knowledge or experience), but what the above topics have in common is that they all concern policy, and require a "political" judgement to be made. In the demarcation of functions, that political judgement should be left to the decision-maker, who understands the policy and has experience of its operation to inform his decision. In this kind of area, the Court may exercise restraint in reviewing the decision-maker, or recognise the demarcation of functions between the Executive branch of government and the Judiciary; the Court is likely to allow a "margin of discretion" or "discretionary area of judgement" depending on the nature of the decision.

This case involved a terminally ill applicant who wished to have her husband assist her to commit suicide but was concerned that if he did so, he might be prosecuted. As a consequence she might have to end her life sooner than she would wish, while she herself was capable of doing so. She claimed that this was an interference with her human rights. The Court recognised the considerable deference to be accorded to the views of the Director of Public Prosecutions in determining whether proceedings for an offence should be instituted, but nonetheless found that he should publicise a policy identifying the facts and circumstances which he would take into account in deciding whether or not to sanction a prosecution for assisting in a suicide.

R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45

It is possible that your decision too will have an element of this kind of political judgement in it; you should identify that element and be prepared to protect it. The decision-maker will usually be allowed a discretionary area of judgement, but this cannot be taken for granted. And, where human rights are involved the Court is likely to be very careful to ensure that what the decision-maker is seeking to protect is genuinely an area of policy, and that the decision is "proportionate".