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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 4 | Notifying others of the decision

18. To what extent should I give reasons for the decision?

question eighteen

To what extent should I give reasons for the decision?

When you have made your decision - in accordance with the above principles - you will need to notify it to the person affected by it. In notifying that person, do you have to support your decision with your reasoning? And, if so, how comprehensive does your account of that reasoning have to be? You may also be under an obligation in certain circumstances to publish your decision more widely to ensure that anyone who will be affected by it has had adequate notice.

Lord President Emslie's words in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347:

"[I]n order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

Why should you give any reasons unless statute or regulation require it? There may exist an established practice of giving reasons in this type of case, and failure to give reasons may breach a "legitimate expectation". Your decision itself may appear to be inconsistent with previous policy, or with other decisions in similar cases, so that a decision unsupported by reasons may appear irrational, and it may be necessary to explain why there has been a departure from previous policy, or the Court may assume the decision is unlawful. The subject matter of the decision may be of such importance - it may affect human rights - that fairness requires that a decision be supported by reasons.

In an appeal to the Court of Session against a decision of the Mental Health Tribunal (where the Tribunal has a statutory duty to provide a statement of facts and reasons for its decision) the Court held that the Tribunal required to reach a "clear and reasoned view" on the application of the statutory test at issue. The Court stressed that the Tribunal must reach a decision based on the evidence, and provide clear reasons for making or failing to make findings that are central to the questions in issue. Where any evidence is rejected, the Tribunal must give reasons for the rejection of that evidence. The requirement of a full statement of facts and reasons is not met by a basic assertion of the findings in law.

The Scottish Ministers v The Mental Health Tribunal for Scotland 2009 SLT 273

Although it may still be true that there is no general rule requiring that reasons be given for administrative decisions, the circumstances where they are not required are becoming rare. Indeed the general availability of judicial review as a remedy makes it inevitable that in most cases fairness now requires that reasons should be given. The law was developing in this direction even before the Human Rights Act incorporated the Convention, but that (in particular Article 6 - right to a fair trial) has accelerated the process, because decisions involving human rights are likely to be scrutinised more intensely, and that means that they will have to be more fully reasoned.

There is one other important factor which should now encourage the giving of detailed reasons with the decision. Rights for the individual who is the subject of a decision about their case to access information about that decision - including the reasons for it - may arise under the Data Protection Act 1998. In addition, section 1 of the Freedom of Information (Scotland) Act 2002 provides that-

"(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority."

So, assuming that, in making the decision, he decision-maker had his or her reasons and recorded them, any person will be entitled to request that "information" under the Freedom of Information (Scotland) Act, and (unless an exemption applies) that information will have to be disclosed. There are exemptions in respect of certain categories of information, and one or more of them may be relevant to your decision, but the presumption will be in favour of disclosure. The Act should therefore be a salutary incentive to careful reasoning and good record-keeping.

This does not mean that every decision must be accompanied by copious reasoning; it will depend upon the subject matter and the importance of the interests at stake. Moreover there will be some cases where the issue to be decided does not lend itself to logical analysis, but is more a matter of subjective judgement.

The Scottish Ministers appealed against two decisions by the Scottish Information Commissioner requiring them to release certain documents to two individuals who had made Freedom of Information requests. These related to the coming into force of an Act of the Scottish Parliament, and to the grant of a planning decision. Some information was released to them, but the Commissioner took the view that certain other information was exempt from disclosure under the Freedom of Information (Scotland) Act 2002. One of the Scottish Ministers' grounds of appeal was that the Commissioner failed to give proper and adequate reasons for his decision in one of these cases. The Court held that in coming to his decision, it was sufficient for the Commissioner to state which section of the Act the Ministers had not complied with. While there was a common law duty to give proper and adequate reasons for his decision, that duty was tempered by the need to avoid disclosing information which ought not to be disclosed, so that in the circumstances, there was no need for him to explain his decision further. No error of law was found in his reasoning.

The Scottish Ministers v the Scottish Information Commissioner 2007 SLT 274

The need to record reasons when the decision is made with a view to their disclosure may be onerous, but it encourages careful decision-making. The record should show that the decision-maker addressed his mind to the relevant issues and followed the principles of good administration. There is no uniform standard for the quality or lay-out of recorded reasons, but they must at least be intelligible and address the substance of the issues. The following provides a useful outline.

  • the record should be clear about what the applicant is applying for and that you understand the application;
  • it should set out material findings of fact;
  • it should show that all relevant matters have been considered and that no irrelevant ones have been taken into account;
  • it should cite and apply any relevant policy statements or guidance;
  • it should note any representations or consultation responses as having been considered and taken into account;
  • it should show by what process of reasoning issues were resolved, and how the various factors were weighted against each other.

If all this (or as much as suits the case) is recorded, then it will provide a framework for your decision letter. The reasons given in the decision letter will of course correspond with those recorded: although there is some scope for elaborating or explaining your reasons in the decision letter (or subsequently), it is bad practice - and unlawful - to make your decision first and construct your reasons only when challenged.

See also in particular

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 ten

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

question thirteen

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