REASONS

When is there a duty to give reasons?

Starting point: There is no general duty to give reason. This is generally justified in terms of good administration

• McInnes v Onslow-Fane (1978)

Facts: The applicant had been granted a boxing manager’s license for several years but now his application was refused. He sought to appeal the decision.

Verdict: Unsuccessful. There is no general duty at common law to give reasons. The applicant’s case was an application (the grant of a new right or privilege is sought), not a forfeiture case (termination of an existing benefit). In application cases, where nothing is being taken away, the requirements of natural justice is lower than for forfeiture cases, where something is being taken away.

However, several factors may give rise to a duty to give reasons. Doody: “The law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied…”

Where a decision is subject to statutory appeal

• Norton Tool v Tewson [1973] 1 WLR 45

• Public Service Board of New South Wales v Osmond (1986) 63 ALR 559, at p. 562.

What good is an appeal if reasons are not given? Requiring reasons vindicates the intention of Parliament because to refuse reasons would be to render nugatory a right of appeal granted by legislation

Where the decision is of great importance to the individual

A duty to give reasons arose in the following:

Doody: The Home Secretary had set a minimum period of detention (‘tariff’) in excess of the period recommended by the judiciary. He did not give reasons. Held: important liberty at stake. Duty to give reasons arose.

Murray: Court Martial imposed severe sentence on a military officer, which effectively ended his military career. Held: duty to give reasons arose.

Matson: claimant elected as an alderman of the City of London, but the Court of Alderman refuse to confirm his election. Held: duty to give reasons arose. The decision would affect his reputation. There might be no valid reason for refusing his election. In the absence of reasons neither Mr Matson nor the electors can know whether he should stand again or whether, if re-elected…, he should supply additional information to the court.

Where reasons are necessary to mount an effective attack on the decision so as to permit the court to control the legality, rationality, or procedural proprietary of the decision

Doody at 565: “to mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed”

But this is dangerously expansive. It can be taken to require reasons in all cases where the decision is subject to judicial review, because reasons are necessary to the proper operation of the separation of powers. It was thus made clear that the possibility of challenging the decision (by appeal or review) was not a decisive consideration to be taken into account.

• Institute of Dental Surgery (1994)

Facts: Higher Education Funding Council decided the quality of research produced by various institutions. The Institute of Dental Surgery was given a poor rating and subsequently had its research funding reduced. No reasons were given. They sought judicial review.

Sedley J: “We readily accept…that Lord Mustill was not holding [in Doody] that reasons are called for wherever it is desired to know whether grounds for challenge exist; for to do so would be to create just such a general duty as Lord Mustill… was careful to exclude…This approach places on an even footing the multiple grounds on which the giving of reasons may in any one case be requisite.”

However, the most recent authority affirmed Doody.

• Dover District Council v CPRE Kent [2017] UKSC 79

Facts: application for planning permission. Developers wanted to build apartments and hotels which would not fit into the landscape. Council was advised against this by professional advisers. Council however accepted the application

Lord Carnwath quoted, with affirmation, at 54: “Doodyitself involved such an application of the common law principle of “fairness” in a statutory context, in which the giving of reasons was seen as essential to allow effective supervision by the courts”

Specifically, at 59: “However it should not be difficult…to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where…permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance”

Officially, there is still not duty to give reasons. But in reality, per Dover, it is highly likely that reasons need to be given.

Aberrant decisions

Apply the following analogously.

• R v Higher Education Funding Council, ex p Institute of Dental Surgery (1994)

Facts: The HEFC assessed the quality of research produced by various institutions. The IDS was graded at point 2 (having previously been graded at point 3) on a 1-5 scale, resulting in a substantial reduction in research funding. It was informed by the HEFC how the assessment had been carried out, but no reasons were given for the final decision. The IDS sought judicial review.

Verdict: Unsuccessful. A reason-giving duty would be triggered if the decision could be characterised as aberrant, but in this case the court felt institutionally incompetent to determine whether the grade was extraordinary.

• Oakley v South...

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