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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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2.1 Thinking about the power

The first step is to check the legislation itself and in order to make a decision, identify in relation to the delegated power:

  • whether there are any express limitations on the power
  • what are the purposes for which the power was given
  • the criteria to be applied in exercising the power.

If any one of these criteria has been breached, then this could form part of your list of reasons to pursue a complaint. To act lawfully, a decision-maker must have the legal power to do what they intend to do. If not, that decision-maker will be acting ultra vires or outside their powers.

There are examples of local authorities having to rescind and refund parking charges which had not been made within their powers, of ministers having to review decisions and examples of governments being successfully challenged. If any one of the criteria was not followed then the decision taken is open to challenge. You will learn more about this later.