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

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6.2 Procedural fairness

The decision-maker will need to come to a decision in a procedurally fair way. Without such procedural fairness, even if the decision-maker is not acting ultra vires, the decision may still be unlawful.

The common law recognises procedural fairness, or the existence of ‘due process’, as a key principle of just decision-making. Fairness is a concept drawn from the constitutional principle of the rule of law, which requires regularity, predictability and certainty in public authorities’ dealings with the public.

Where legislation confers an administrative power there is a presumption that it will be exercised fairly. What is ‘fair’ will depend on the particular circumstances in which the decision is to be taken and may change with the passage of time. Such principles cannot be applied by rote and what is fair depends on the context of the decision.

It is a feature of a fair procedure or decision-making process that the person affected by it will know in advance how it will operate, and so how to prepare for it and participate in it. Features of good practice include:

  • disclosure of the reasons the decision-maker intends to rely on
  • an opportunity for consultation or making representations
  • an oral hearing where appropriate
  • disclosure of material facts, or the reasons for the decision.