R (Hasan) v Secretary of State for Trade and Industry
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division,The |
| Judgment Date | 25 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1311 |
| Docket Number | Case No: C1/2008/0030 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2008 |
[2008] EWCA Civ 1311
President Of The Queen's Bench Division
Lord Justice Wilson and
Lord Justice Rimer
Case No: C1/2008/0030
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMIN COURT
THE HON MR JUSTICE COLLINS
CO/9605/2006
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Fordham QC and Miss Naina Patel (instructed by Public Interest Lawyers) for the Appellant
Mr James Eadie QC and Mr Samuel Wordsworth (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 21 st & 22 nd October 2008
Introduction
To succeed in this claim for judicial review, the claimant needs to persuade the court to extend the circumstances in which public authorities may be under a public law duty to publish reasons for administrative decisions made under statutory power. In my judgment, Collins J correctly concluded, in his judgment of 19 th November 2007, that the claim must fail. I would uphold his decision substantially for the reasons which he gave and dismiss this appeal. I reach this conclusion in short because I am not persuaded that the duty for which it is necessary for the claimant to contend is a duty which the law should impose; and because, more narrowly, the facts of the case do not, in my view, sustain a duty to give reasons such as is contended for.
The judge's judgment may be found at [2007] EWHC 2630 (Admin). It contains a sufficient account of the facts and statutory material, which I shall not repeat other than in short outline. The judgment may be referred to for greater detail than this judgment need contain.
Facts
The claimant is a Palestinian living in a village near Bethlehem. In April 2005, Israeli forces destroyed his olive and almond trees and appropriated his land. His original claim in these proceedings contended that licences granted by the Secretary of State under the Export Control Act 2002 between April and September 2006 for the export of military equipment to Israel were unlawful. It was contended that the licences were contrary to the Consolidated Criteria of 26 th October 2000, which, by section 9(8) of the 2002 Act, are to be treated as guidance to which a person exercising a licensing power is obliged to have regard. It was said that there was a real risk that the licensed articles would be used against Palestinians for internal repression.
The amended claim
The original claim was, however, amended so as to reduce its scope, when the schedule to the Secretary of State's Summary Grounds of Defence was accepted as demonstrating that the lawfulness of the grant of the relevant 27 licences granted in April to June 2006 could not properly be challenged. That schedule listed each of the 27 items; noted whether they were to be incorporated into equipment in Israel for onward supply to a third state (in which event they would not be used for internal repression in Israel); gave a brief description of the goods; and then gave a brief comment relevant to the application of the Consolidated Criteria constituting the reasons why the grant of the licences would not offend the Criteria. For example, the goods described in the fourth item of the schedule were “Naval vessel components – cable”, for which the reason given in the final column was “Israel has a legitimate right to patrol its waters”. Mr Fordham QC, for the claimant, accepts and indeed contends that reasons of this kind, volunteered in the final column of the schedule for the 27 items, would fulfil the public law duty to give reasons for which he contends. The claimant's attenuated case is that there is a public law duty to publish reasons of this kind in the case of export licences for military equipment to Israel and to 19 other countries classified in the Foreign and Commonwealth Office 2006 Human Rights Report as Major Countries of Concern.
The public law duty contended for
There are, in my view, serious conceptual difficulties with the formulation of an underlying public law duty which would sustain this necessarily particular application of it. Mr Fordham speaks of a duty to promulgate reasons in the public domain where that is required in the public interest; a public law concept of transparency; the character and nature of the subject matter; public confidence and accountability; and proportionality. These lack definition and are hard to tie down. Mr Fordham wrote that English law has now developed to the stage where it should be recognised that there is a common law duty to give reasons for public authority decision making, subject to (a) exceptions in situations where the absence of reasons can be justified, and (b) a standard of adequacy of reasons which is not unduly burdensome. He at one stage in his oral submissions contended for a duty to articulate reasons at the time the decision was made, but later retreated from this position. He said that, if sufficient reasons were given to the Select Committee to which I refer later in this judgment, and through that Committee to the public, that would satisfy the public interest. But he says that, if it is right that reasons should be given publicly, the fact that the Government is accountable to the Select Committee does not by itself fulfil the legal duty to publish reasons.
Mr Eadie QC, for the Secretary of State, rightly submits that a duty of this uncontained width and imprecision would be a massive and unwarranted leap for the court to make. Mr Fordham, at the court's request but somewhat reluctantly, eventually formulated the duty for which he contended in terms that public authorities are obliged at common law to publish reasons for administrative decisions whenever in all the circumstances the court is satisfied that the public interest so requires having regard to the ill-defined and hard to tie down concepts or “principles” to which I have referred. His reluctance to be drawn in this direction was because he maintained that there could be a duty to give reasons in a particular context having regard to such concepts and principles. I fear that he strayed too close to an unpredictable lack of principle, whereby the court would be invited to require the publication of reasons whenever an individual judge was persuaded that it was a good idea.
Mr Fordham stressed that one factor to be taken into account was whether the administrative decision affected an individual or a defined class of individuals. This faces up to the fact that there is no authority which comes close to supporting a public law duty of the kind and width required for this amended claim to succeed. There are of course many instances where a public authority is obliged to give reasons for decisions which affect individuals. Courts and Tribunals acting judicially are generally required to give reasons for their decisions, and further normally required to publish them for the proper public administration of justice so as to comply with Article 6 of the European Convention on Human Rights. Administrative decisions affecting individuals often require reasons to be given so that the individual may know why the decision has been made, and so that he may exercise rights of review or appeal or rights to make representations. Examples of authorities to this effect are R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (prisoners serving mandatory life sentences); R v Secretary of State for Education, ex parte G. [1995] ELR 58 (direction in a case of special educational needs); R v London Borough of Islington, ex parte Hinds (1995) 27 HLR 65 (unintentional homelessness under Part III of the Housing Act 1985, where Sir Louis Blom-Cooper QC, sitting as a deputy judge of the High Court, said at page 75 that public confidence in the decision making process is enhanced by knowledge that supportable reasons are given and that giving reasons is a self-disciplining exercise); R v City of London Corporation, ex parte Matson [1997] 1 WLR 765 (confirmation of election of Aldermen); Stefan v General Medical Council [1999] 1 WLR 1293 (decision by Health Committee of the General Medical Council about a doctor's fitness to practise); R (Wooder) v Feggetter [2003] QB 219 (decision, involving personal liberty, to administer medical treatment to a non-consenting adult); R v Aylesbury Vale District Council ex parte Chaplin [1997] 3 PLR 55 (no need to give reasons for the grant of planning permission) reversed by the amendment by SI 2003 No 2047 to article 22(1) of Town and Country Planning (General Development Procedure) Order 1995 SI 1995 No 419; R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 (determination of asylum claim with reference to Income Support Regulations). Mr Fordham was able to point to references in some of these cases to fairness, public confidence and the self-discipline of giving reasons (Hinds at page 75); a trend of the law towards an increased recognition of a duty upon decision-makers of many kinds to give reasons, and increased openness in matters of government and administration ( Stefan at 1300G in the passage cited by the judge in paragraph 20 of his judgment); ensuring that decisions are sound and...
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