#16704 - Reasons Problem Question Notes - Administrative Law

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 Cambridgeshire District Council (2017)

Facts: Cambridge City Football Club applied to build a stadium on land that was designated as a Green Belt, which was against all relevant planning policies. However, the Council granted permission.

Verdict: Successful. The decision was so aberrant that the Council placed itself under the obligation of providing reasons. Public policy requires strong countervailing benefits before such a development could be allowed, and affected members of the public should be told why the committee considers the development to be justified notwithstanding its adverse environmental effects. The DC had to provide reasons.

In PQs, mention that Oakley represents a lowering of the threshold of what ‘aberrant’ decisions are.

Legitimate expectation

R (Bibi) v Newham London Borough Council: As well as requiring reasons when a express or implied undertaking is made to the effect that reasons will be given, the doctrine of legitimate expectation may require reason-giving more broadly.

When a LE as to substance has arisen, reasons may need to be furnished either to the individual (in circumstances where it is possible for the authority to frustrate the expectation provided, for example, that the individual has been consulted, which can only meaningfully occur if reasons are given) or the court (eg. Coughlan: The expectation can only be lawfully frustrated if the court is satisfied as to the necessity of the conduct).

Public interest at stake; departures from public policies/opposition

Oakley v South Cambridgeshire DC: “When the public interest in ensuring that the relevant decision-maker has considered matters properly is especially pressing, as in cases of grant of planning permission as a departure from the development plan or in cases of grant of planning permission as a departure from the usual protective policy in respect of the Green Belt, that is a factor capable of generating an obligation to provide reasons.”

Dover District Council v CPRE Kent: Where a duty to give reasons will arise, “[t]ypically they will be cases where, as inOakleyand the present case, 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. Such decisions call for public explanation, not just because of their immediate impact; but also because… they are likely to have lasting relevance for the application of policy in future cases.”

Art 6 ECHR

Note the relevance of Art 6(1)

However, there are some qualifications to this

1. The scope of Art 6(1) – civil rights and obligations/criminal charge – is unclear. Refer to notes on rules against bias above to see when Art 6 is triggered

2. Even if Art 6(1) is triggered, the failure of the initial decision-maker to give reasons can be cured by a subsequent judicial body with full jurisdiction – the curative principle giving reasons. Lord Clyde in Stefan v General Medical Council noted that this principled extends to a failure to give...