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

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Law and change: Scottish legal heroes

6.6 Giving reasons

Although it may still be true that there is no general rule requiring that reasons be given for administrative decisions, the circumstances where they are not required are becoming rare.

There is one other important factor which should now encourage the giving of detailed reasons with the decision. Rights for the individual who is the subject of a decision about their case to access information about that decision – including the reasons for it – may arise under data protection legislation. In addition, Section 1 of the Freedom of Information (Scotland) Act 2002 provides that:

‘(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.’

So, assuming that, in making the decision, the decision-maker had their reasons and recorded them, any person will be entitled to request that ‘information’ under the Freedom of Information (Scotland) Act 2002 , and – unless an exemption applies – that information will have to be disclosed. There are exemptions in respect of certain categories of information, and one or more of them may be relevant to your decision, but the presumption will be in favour of disclosure. The Act should therefore be a salutary incentive to careful reasoning and good record-keeping.

This does not mean that every decision must be accompanied by copious reasoning; it will depend upon the subject matter and the importance of the interests at stake. Moreover there will be some cases where the issue to be decided does not lend itself to logical analysis, but is more a matter of subjective judgement.

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