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

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Law and change: Scottish legal heroes

2.2 A structured approach to analysing the power given

It is key to think about:

  • the legislation setting out and delegating the power
  • general legal principles developed to uphold the rule of law.

Box 1 sets out some key points when considering where the delegated power is set out in legislation.

Box 1 Key points to consider

Look at the legislation and in particular think about:

1. Wording

Look at the words in the legislation to work out what the decision-maker can and cannot do.

Usually, words in legislation are given their plain English meaning. Where the words might give rise to a different interpretation, a court will try to determine the intention of the parliament that made the legislation.

2. Purpose

You need to understand the purpose of the legislation and the reasons why the power was delegated.

It can be helpful to consider the explanatory notes to the legislation, the executive note for subordinate legislation and the record of any proceedings in the Scottish or UK Parliament.

3.Compliance Legislation should be read as to comply with human rights, European law and, in the case of legislation made by the Scottish Parliament, the Scotland Act 1998.
4. Is it a power or duty?

Confusingly even though the words in the legislation indicate that there is discretion as to whether or not to act – e.g. that the public authority ‘may’ do something – there are cases where that must be interpreted as imposing a duty to act.

In order to determine what a law means when it says ‘may’ (or ‘shall’) you have to look at the law in question and its purposes as a whole.

For example, a public authority with the power to grant licences may be obliged to do so where an applicant fulfils all the prescribed requirements.

5. How should the power be exercised?

Legislation may expressly set out the purposes for which a power may be exercised, or they may be implied from its objectives.

It is accepted that a public authority may undertake tasks ‘conducive to’ or ‘reasonably incidental to’ a defined purpose. If, for example, a decision-maker has the power to hold a public hearing to assist in making a decision, related powers to hire accommodation, pay for IT etc., this will be treated as being ‘reasonably incidental’ to that purpose.

Having considered the legislation which sets out the delegated power, you then need to also consider the limits set out by general legal principles. These principles exist to ensure fairness and compliance with the rule of law. They form part of administrative law and are outlined in Box 2.

Box 2 The general legal principles

Consider the general legal principles of:

1. Legality

Has the decision-maker acted within the scope of the power delegated and for a proper purpose?

2. Procedural fairness

Has the decision-maker ensured that due process has been followed? Have objections been considered; was there an opportunity to be heard; was there proper consultation and disclosure of any conflicts of interest?

3. Reasonableness or rationality

Has the decision-maker followed a proper reasoning process? Has the process been fair and has it led to a reasoned conclusion?

4. Compatibility

Has the decision-maker reviewed their decision to ensure it is compatible with human rights principles and European law?

5. Lawful purposeAny public authority must use its power for a lawful purpose. Any actions will be ultra vires and an abuse of power if a public authority uses the delegated power to achieve a purpose for which the delegated power was not intended.

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 and this enables their decision to be challenged.

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