Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?
| Published date | 01 November 2019 |
| Date | 01 November 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12457 |
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Modern Law Review
DOI: 10.1111/1468-2230.12457
THE
MODERN LAW REVIEW
Volume 82 November 2019 No. 6
Reason-Giving in Administrative Law: Where are We
and Why have the Courts not Embraced the ‘General
Common Law Duty to Give Reasons’?
Joanna Bell∗
This article has two aims. Firstly, it explores a body of moder n challenges to administrative
reason-giving, decided in the five-year period 2014–2018. Three main themes are drawn out:
outright failures to give reasons now seem to be a rare occurrence; a number of considerations
help to ensure that at least an outline of reasons is usually offered by decision-makers; common
law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the
question of why the courts have not embraced a ‘general common law duty to give reasons.’
Four factors are discussed: doubts that introducing a general duty would add something of
substance to the law; difficulties inherent in developing a general formulation of the reasons
required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the
part of judges than academics to generality as a central feature of administrative law doctrine.
This article has two main aims. Its first aim is to improve understanding of
what legal challenges to administrative reason-giving have ‘looked like’ in
recent years. To that end, the first part of the article offers an analysis of 119
reasons challenges heard across the five-year period between 2014 and 2018.
Three important themes characterise this sample. Firstly, while administrative
law scholarship has tended to focus on a handful of classic cases in which
decision-makers had outright refused to offer reasons for their decisions, such
cases were rare across the sample; the vast bulk of challenges concerned the
adequacy of what had been offered rather than an allegation of a failure to give
reasons per se. Secondly and relatedly, there were a series of factors in play in the
case law which helped to ensure that administrativedecision-makers had usually
offered at least an outline of their reasoning processes. These factors include
the prevalence of specific statutory duties of reason-giving and the increased
role that statements of generalised policy are coming to play in administration.
Thirdly, while scholarship has tended to regard common law fairness as the main
∗Lecturer and Fellow in Law, St John’s College and Affiliated Lecturer, Cambridge Law Faculty. My
sincere thanks to Prof Liz Fisher, Alistair Mills and Prof Alison Young, as well as to the anonymous
reviewers, for extremely helpful comments on earlier drafts. Any errors or omissions are my own.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(6) MLR 983–1008
Reason-Giving in Administrative Law
legal standard drawn on by courts in reasons challenges, this notion played a
limited role in legal reasoning across the case sample analysed. Other common
law values – including consistency and open justice – played at least an equally
important role and ultimately the particular legislative and policy framework
in the background of the case was the main determiner of lawfulness in the
majority of cases.
The second aim of the article is to build on this analysis in order to shed
light on an ongoing, but largely unaddressed, puzzle. The puzzle, put simply,
is this: on the one hand, the literature on English and Welsh administrative
law is replete with arguments1encouraging the courts to introduce a general
common law duty to give reasons. The arguments in favour of a general duty
of reason-giving are well-rehearsed. Requiring administrative decision-makers
to explain the basis of their decisions has many virtues:2supplying reasons for
a decision can, among other things, communicate respect,3serve to focus the
mind of the initial decision-maker4and assist the courts in performing their
review and appeal functions by bringing to light legal errors.5Commentators
have also explained why considerations weighing against reason-giving supply
arguments only for relieving decision-makers of reason-giving obligations in
particular circumstances and not on a generalised basis.6While in some con-
texts, for instance, reason-giving duties might place public administration under
an ‘intolerable’ administrative burden,7commentators have explained why, in
many areas, having to disclose the reason for a decision will not unduly hamper
administration.8
On the other hand however, the courts have long and consistently rejected9
the idea that there is a general duty to give reasons. In a recent Supreme Court
case, for instance, Lord Carnwath repeated the oft-cited mantra that ‘public
authorities are under no general common law duty to give reasons for their
1 See for instance JUSTICE-All Souls Committee, Administrative Justice: Some Necessary Reforms
(Oxford: OUP, 1988); P.Craig, ‘The Common Law, Reasons and AdministrativeJustice’ (1994)
53 CLJ 282; M. Fordham, ‘Reasons: The Third Dimension’ [1998] JR 158; M. Elliott, ‘Has
the Common Law Duty to Give Reasons Come of Age Yet?’ [2011] PL 56.
2 For useful discussion, see fur ther, G. Richardson, ‘The Duty to Give Reasons: Potential and
Practice’ [1986] PL 437; J. Hepburn, ‘The Duty to Give Reasons for Administrative Decisions
in International Law’ (2012) 61 ICLQ 641; J. Mashaw, ‘Public Reason and Administrative
Legitimacy’ in J. Bell, M. Elliott, J. Varuhas and P. Murray (eds), Public Law Adjudication in
Common Law Systems: Process and Substance (Oxford: Hart, 2016).
3 See, especially, T. Allan, ‘Requiring Reasons for Reasons of Fairness and Reasonableness’ (1994)
53 CLJ 207; T. Allan ‘Procedural Fairness and the Duty of Respect’ (1998) 18 OJLS 497; D.
Dyzenhaus, ‘Dignity in Administrative Law: Judicial Deference in a Culture of Justification’
(2012) 17 Review of Constitutional Studies 87.
4 Fordham, n 1 above.
5 A. Perry and F. Ahmed, ‘Expertise and Giving Reasons’ [2012] PL 221.
6 See, especially Elliott, n 1 above, 64-65.
7R (Save Britain’sHer itage) vSSCLG [2018] EWCA Civ2137 at [9] (Save Br itain’s Heritage 2018).
8 See, especially, Elliott, n 1 above, 64-65; M. Taggart, ‘Osmond in the High Court of Australia:
Opportunity Lost’ in M. Taggart (ed), Judicial Review of AdministrativeAction in the 1980s (Oxford:
OUP, 1986).
9 The classic examples are RvSecretary of State for the Home Department, ex parte Doody [1994] 1
AC 531 (HL) (Doody), 564 and RvHigher Education Funding Council, ex parte Institute of Dental
Surgery [1994] 1 WLR 242 (DC), 263 (Dental Surgery). More recent examples include Oakley
discussion, see, J. Parker, ‘Reasons for the Grant of Planning Permission’ (2017) 6 JPL 587.
984 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(6) MLR 983–1008
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