The recent Court of Appeal decision in R. (on the application of Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1312 confirmed that the law does not yet recognise a general duty to give reasons for administrative decisions. Consequently, it is always necessary to look to the particular statutory scheme in question to ascertain whether reasons need to be given. Whether fairness requires the giving of reasons will depend on the circumstances of each particular case.

Background

In R (on the application of Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1312, the appellant, a Palestinian national, sought judicial review of the Secretary of State's decision to grant licences over a period of time for the export of military equipment to Israel under the Export Control Act 2002. He originally argued that the decision was unlawful, as there was a real risk that the military equipment would be used against Palestinians for internal repression, contrary to the Consolidated Criteria of 26th October 2000. However, in the light of the Secretary of State's summary grounds of defence, which gave a brief explanation of why each licence granted during part of the relevant period would not offend the Consolidated Criteria, the appellant conceded that those licences had been lawfully issued. He therefore amended his claim, to argue that there was a general public law duty at common law to publish reasons whenever in all the circumstances the court was satisfied that the public interest so required, having regard to certain principles including proportionality, transparency, public confidence and accountability.

The decision

The President of the Queen's Bench Division (with whom Wilson and Romer LJ agreed) noted the trend towards an increased recognition of the duty on various public body decision-makers to give reasons for their decisions. However, the Court of Appeal reiterated that this does not indicate that there is, at present, a general duty to give reasons for administrative decisions. Instead, the Court held, the trend is proceeding on a case by case basis and the general rule has not yet been departed from. It is therefore always necessary to look at the statutory scheme in question, to ascertain whether an absence of a requirement to give reasons needs to be fulfilled.

Statutory mechanisms for ensuring accountability and transparency

The statutory scheme in this case expressly contained provisions for giving reasons to a licence applicant whose application was refused. It also contained a requirement for an annual report to Parliament and a power for "controlled and proportionate" use of information by the Secretary of State or HMRC. Finally, the Government had issued quarterly reports on its export licensing decisions, for scrutiny by a House of Commons Select Committee. The Court held that the scheme as a whole indicated that Parliament had considered what information should be given and to whom, and argued against a wide common law obligation. Additionally, the subject matter of the appeal was generally sensitive, such that unguarded publication was likely to be, on occasions, damaging.

Freedom of Information Act

In addition to the particular statutory scheme governing export licensing, the Secretary of State argued that the terms of the Freedom of Information Act 2000 were a strong indication that the Court should not find a common law duty to give reasons, as Parliament had already set out the parameters for the disclosure of information. The Court agreed, holding that the 2000 Act could be seen as Parliament's considered statutory framework for the disclosure of information held by public authorities. Consequently, it strongly indicated against the imposition of any general common law duty.

Comment

The Court of Appeal's decision in Hasan reiterates that there is not yet any general duty for administrative decision-makers to disclose reasons for their decisions at common law. The Court emphasised the need to examine the particular statutory scheme in question to determine whether Parliament requires any such reasons to be given. The fact that a statutory scheme provides various other mechanisms for ensuring accountability and transparency of public authorities may indicate against finding such a duty. Additionally, the Freedom of Information Act 2000 may be viewed as an indication that the Court should not, in future, impose any such general common law duty.

There are occasions where an authority will have an obligation to give reasons. Reasons must be given where statute expressly requires them, where fairness requires them and where the decision on its face without reasons appears aberrant. The development of this obligation has been incremental and has arisen in circumstances where reasons have been necessary to achieve justice or where an authority departs from its usual policy in decision making. Such considerations will always be approached in the wider context of promoting public interest and the avoidance of placing an undue burden on decision makers.

The terms in which the appellant sought in this case to formulate a general public law duty were said by the Court to be of uncontained width and imprecision. The President of the Queen's Bench Division feared that such an unpredictable lack of principle would result in subjective decisions being made by individual judges. This problem of definition was compounded by the fact that, as the appellant had conceded that the licences in question had been lawfully issued, he had merely an indirect, nominal interest in the proceedings. This lack of individual interest was also the reason that the Court declined to consider the extent to which Article 6 ECHR may require the general giving of reasons. This question is therefore left open to future consideration should the appropriate circumstances arise.

The reference to the freedom of information regime in the context of the obligation to give reasons is surprising. Whilst freedom of information goes some way to ensuring that decisions are transparent it will only enable someone to know what the reasons are for a decision if the public body is subject to the freedom of information regime, there is a document setting out the reasons and the public body does not rely on an exemption from disclosure.

The present state of the law on reasons presents some difficulties both for public bodies and those who deal with them. Whilst there is no general duty to give reasons, the circumstances when reasons are required are increasing incrementally. Therefore, unless there is clear authority for there being no requirement to give reasons in a particular context, there is a significant risk that a failure to give reasons will be unlawful. However, from the perspective of those who deal with public authorities, absent a clear express or implied requirement that reasons be given, there is no certainty that reasons will be required to be given.