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

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3 The process of taking the decision

Those making the decision:

  • must take into account factors and/or considerations on which they have a duty to base their decision
  • must not base their decision on irrelevant factors or irrelevant considerations.

Whilst legislation will not set out every factor for the decision-maker to consider, if the legislation does list factors to consider or to which particular attention has to be paid, then these must be considered.

If the legislation doesn’t set out factors to be considered then you have to look at what the legislation is trying to achieve (its purpose). From this, factors relevant to the decision-making process can be identified.

If a decision is challenged, the court (or tribunal) will want evidence to establish what factors were considered. It is worth noting that the media’s reaction to a decision is unlikely to be relevant to the purpose of the legislation and the court (or tribunal) would likely decide that this was an irrelevant factor on which to base a decision.