Public Sector - Decision Making - Government/ Statutory Law

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 as a result of the freedom of information request or, indeed, simply as a result of documents being produced in the course of an internal Appeal or Court proceedings. Those making decisions should have an awareness, when making notes or corresponding with colleagues in relation to decisions, that this information may be seen by others after the decision has been taken. An e-mail that seems harmless at the time may come back to haunt you later.

Some of the legal requirements in relation to decision making can be complex and, whilst some public bodies have a requirement to have a legal advisor present during the course of deliberations, others have no such requirement. Decision makers should always be aware that, if they are in any doubt as to their vires to make a decision or any other legal requirement, they should take legal advice before making their decision (as it is too late once the decision has been made).

Beyond these practical decisions, there are certain key legal requirements for any public body to be aware of to minimum the prospect of its decisions being declared to be unlawful by the Court.

KEY LEGAL ASPECTS

Consultation

Many public bodies are required by law to consult before they make decisions. This is particularly the case for central government when making policies or issuing guidance. If a consultation is not carried out properly, that can lead to a policy or a decision being overturned by the Courts. The standards for a proper consultation exercise are known as the Sedley Requirements (having been set out by Stephen Sedley, QC in the case R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168)). The Sedley Requirements are:

Consultation must be made at a time when proposals are at a formative stage;
Sufficient reasons for the proposal must be given to allow intelligent consideration and response;
Adequate time must be given for a response; and
The product of the consultation must be conscientiously taken into account in finalising proposals.

The Cabinet Office has published a code of practice on written consultation, which also sets out certain principles that apply to consultations by Central Government and is often used as a guide by other public bodies in relation to consultation exercises that they are carrying out. The code of practice provides that sufficient time should be allowed for anyone with an interest to come forward with a considered response, and sets twelve weeks as the minimum period for a consultation.

Independence

A crucial aspect of decision making of public bodies is that the decision makers should have no personal interest in the issues upon which they are arriving at decisions. Any personal interest should be declared, and individuals with a close personal interest should not take part in the decision making process. Typical examples of interest that would preclude a decision maker from taking part in a decision are:

Where the decision maker has a financial interest in the matter being decided upon and/or its outcome;
Where a member of the decision maker's family or one of the decision maker's friends will be affected or has a financial interest in the outcome of the decision;
Where the decision maker is a director of or shareholder in an organisation directly affected by the outcome of the decision; and
Where the decision maker is an active member of any group or organisation campaigning for a particular outcome from the decision.

Situations will also arise where a decision maker has some more tentative connection with either an organisation with an interest in the decision, or some other factor in relation to the subject matter of the decision. Whilst it would be correct for the decision maker to declare any such interest, if that interest is sufficiently remote, that individual may not be precluded from making a decision. It should always be borne in mind that decisions must be seen to be fair and unbiased as well as actually being fair and unbiased. Various challenges have been brought through the Courts in relation to allegations of apparent bias by decision makers and each of these cases have been judged on its own particular facts and circumstances. In practice, if there is any doubt as to whether or not a decision maker might have an interest which would conflict with the principals of independent decision making, the individual concerned would be well advised to decline to participate in the decision making process if possible.

Procedure

Many public bodies have particular procedural requirements that they will follow when making decisions. It is essential that if a public body has procedural requirements (whether those be set out by statute, guidance, or otherwise) that these be followed. Even if no unfairness flows from failure to follow correct procedure, the simply act of failing to follow the correct procedure can be enough in itself to lead to a successful legal challenge to a decision. It is, however, essential that the procedure that is set down for the public body to follow is fair. Following an unfair procedure correctly will not ensure that the decision itself is protected from challenge.

Vires

Another essential feature of decision making by a public body is that it must only make decisions that it is enabled by statute to take. If a public body makes a decision that goes beyond its statutory powers, remit or authority, that will be ultra vires and, accordingly, that decision may be quashed by the Court. In addition to the limitations of its own empowering statute, a public body must also be aware of the effect of European and Human Rights law. Decisions which are incompatible with such legislation will also be subject to challenge in the Courts. Matters which fall within the devolved competence of the Scottish government may be challengable under the Scotland Act 1998.

Proper purpose

Public bodies must always act for a proper purpose, which means that they should not act in bad faith or with an improper motive. The issue of proper purpose or motive has been examined in various cases in relation to the Local Authorities. A common example is where a Local Authority is a landowner and requires, as planning authority, to determine planning applications in respect of land that it either owns or in respect of which it has some other interest. In such circumstances, particular care must be taken to separate a Local Authority's different functions, with external review bodies often providing an independent control and/or means of appeal.

Relevant considerations

A common thread running through all of these matters is that, in making decisions, public bodies must show that they have taken into account all relevant considerations and information, and not taken into account any irrelevant considerations. What is relevant to an individual decision depends on the subject matter being decided upon, but typical examples of information that should be considered by the decision maker prior to making the decision would include:

the proposal;
any consultation and consultation responses;
considerations of cost and best value;
advice from officers or any external legal advice obtained; and
the potential effects of the decision.

Rationality

Public bodies may exercise discretion in their decision making, but their decisions must always be rational. Many cases in the Courts have examined the concept of "irrationality", however, the leading case remains the Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223. That case simply describes an irrational or unreasonable decision as one that was "not reasonably open to the decision maker to make". Courts are very careful in their assessment of any decisions which are alleged to be irrational and tend to intervene only in cases where it can be shown that no reasonable public body would have made such a decision. If the public body can show that its decision is for a proper purpose, has taken in to account all relevant considerations and evidence, and is within its remit, it is unlikely that a Court will intervene. Whether the Court might have reached a different decision is irrelevant. If a decision can be described as rational, evidence based and reasonable, it is likely also to be regarded as being proportionate (a principal which is embedded in European and Human Rights law, and is finding its way more and more often into Judicial Review challenges of public bodies).

Proper reasoning

The final essential element of decision making is ensuring that there is a well reasoned decision. It should properly inform those who are interested of the decision that has been reached and the reasons for that decision being arrived at. Whilst reasons need not go in to every minute detail, they do require to set out the key aspects considered and the reasoning behind the decision. They do not need to set out in detail all of the documents which were considered or arguments put forward to the decision maker, however, they do require to deal with all of the substantial points that have been raised and properly reflect the procedure that has been followed. It is important that decision makers set out their decision when it is made, as it can be difficult to recollect all of the key issues and reasoning later. The reasoning for a decision may be closely examined and scrutinised not only by those with an interest but, if challenged, by the Court. If it is necessary to infer or read into a decision certain reasoning or logic, a decision maker may have difficulty in persuading a Court that all appropriate and relevant considerations were taken into account. Accordingly, any decision maker should always have in mind that a decision may be challenged and that the reasons for the decision will be one of the key links that will be examined by the Court in deciding whether or not the decision should be overturned.

CONCLUSION

In conclusion, there are many considerations for decision makers that should be borne in mind beyond the subject matter of the decision that is actually being made. Whilst the vast majority of decisions that are made by public bodies on a day to day basis are not challenged through the Courts, decision makers should always have an awareness in the background that, any decision that they may make could be challenged and, if the challenge is brought before the Courts, their decision making will be subject to intense scrutiny. If the decision maker follows the basic steps and has in mind the key legal aspects set out above, there will be a better prospect of successfully resisting any challenge brought against the public body in relation to the decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK: Public Sector - Decision Making