The Giving Of Reasons Reading Notes

The Giving of Reasons While in Stefan v General Medical Council 1999 Lord Cylde noted clear trend in English law towards increased recognition of duty upon DM to give reasons, still remains case that as general rule, not duty to give reasons (Lord Mustill in ex p Doody). -- Thus, "context is everything" Reasons, notice, and rationality Let's compare first to other times in admin law where some form of reason needed: 1. Notice: it is a part of fairness and L Woolf MR in ex parte Fayed acknowledged relation between notice and reasons that "notice may reveal ultimate reason", but obviously notice is before, reasons after Decision. One of these areas is 2. Absence of reasons -> irrationality? Obiter dicta in Padfield v Minsiter of Agriculture, esp Lord Pearce, suggest that. But such an inference will be made only rarely as emphasized by Lord Keith in ex p Lonrho 1989. Also, Padfield distinct from duty to give reasons because it imposes no positive obligation upon DM to furnish reasons for their decisions. Toube 1997 JR explains that Padfield simply says failure to give reasons may result in finding of irrationality. In summary: at best, Padfield and other points taken together is that it provides incentive not duty. What Speaks in Favor of Having Such a Duty? I. Fordham: Three reasons underlie fully developed duty to give reasons 1. Serves the interests of the court reviewing the decision. (Craig also makes this point CLJ 1994) 2. Serves interest fairness towards person affected by the decision. e.g. Ex p Doody * Allan 1998 OLJS develops this point, calls giving reasons serving a 'dignitarian' function distinct from arrangements for securing right decision, allows applicant to identify with DM process. Although that it turn depends on the sincerity of the reason giver. 3. "It will concentrate the DM mind on the right question" - R v Min Defence ex parte Murray 4. Public confidence is increased. (Craig CLJ 1994 also makes point) II. JUSTICE All Souls Committee In their report itself all in all not impressed by reasons for status quo, and suggest, modeled on Australian law, a stat duty to give reasons with carefully crafted exceptions: * a. if giving reasons would be prejudicial to nat security/defence/international relations. * b. disclosure of protected legal privileged material. * c. confidential info disclosure * d. reveal professional or trade secrets or hurtful to third parties (seems too wide, says Nabil) * e. where decision of which reasons were sought related to appointment to any post or office of any specific task. * Interesting that chairman of committee, Sir Patrick Neil shortly after committee meeting wrote in "The Golden Metwand and the Crooked Cord" that time was not ripe for such step of general duty to give reasons, because: * * Drafting act very difficult. Let case law develop in light of ECHR and let general duty to give reasons develop tempered by exceptions empirically evolved. III. Craig 1994 Speaking about situation before proceedings commence, and notes that "what has always been a mystery is why the same logic (regarding duty to give reasons) should not be equally applicable to review as opposed to appeal". Lord Mustill in Doody seemed to have some sympathy for this view IV. R. v. Secretary for Trade and Industry ex p. Lonrho plc [1989] Lord Keith "if all the other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision". 

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