Public Sector - Decision Making

INTRODUCTION

Public Sector Organisations, whether they be Local Authorities, National Government or other public bodies, make decisions every day. For a Local Authority that might be a decision to adopt a new local plan; grant a review of a license application; award a contract after a Tender process; build a new school or close another. Other public bodies make decisions in relation to their statutory functions which may have an effect on an individual, a group or community, sector of industry or, indeed, the public at large.

The common theme for all public bodies, when making decisions, is that, at all times, they must act within their statutory powers (or vires) and comply with the common law.

Decisions made by public bodies, in many cases, can be challenged through internal appeal processes set out either by statute or by the public body itself. If that internal appeal process is exhausted, the ultimate recourse for the complainer may be to bring the matter before the Court. The action raised, a Petition for Judicial Review, invites the Court of Session to exercise its supervisory jurisdiction.

To minimise the risk of successful Judicial Review challenge being brought in relation to the decision of a public body, certain processes should be followed and issues taken into account by decision makers.

THE BASICS

Sometimes the most basic and obvious steps that decision makers should take are the very ones that can trip them up. Simple things, such as reading all of the papers before making a decision, are critical. Decision makers have a duty to take account of all relevant considerations, and failure to read all of the papers (and thus not necessarily being aware of all of the relevant considerations) would be likely to lead to a decision being judged to be unlawful.

Keeping an adequate record of the decision that has been reached is another key area that can create difficulties for public bodies if they are challenged in a Judicial Review. Different public bodies will operate in different ways, with some keeping detailed minutes of the decision making processes that they engage in and others simply issuing decisions without providing any narrative of the considerations leading to the decision being made. If a public body has rules in relation to how decisions should be taken and/or recorded, these should be followed every time. Likewise, if the public body has a practice or requirement to issue a decision in writing, the decision reached should be adequately described and, if appropriate, the considerations carefully narrated. It would not be the first time that a decision letter refers only to considerations A and B, whereas, when the decision is challenged, the decision makers indicate that they also had in mind considerations C, D and E in support of the conclusion that they arrived at.

On a similar note, public bodies must also be aware that whilst their decision may be taken in private, papers surrounding their decision may, at some stage, be disclosed to the public. This could be...