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Missing Open Goals: The Duty to Give Reasons in Oakley v South Cambridgeshire DC

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About The Author

Jamil Mustafa (Private Law Editor)

Jamil is currently studying the BPTC at BPP University. His main legal interests are contract, tort and equity. Before the law, Jamil graduated with an MPhil in American History with Distinction from Clare College, Cambridge, and with First Class Honours in Government and History from the LSE. Outside academia, Jamil enjoys cricket, rugby and rowing and is a staunch supporter of Manchester United FC.

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The main question is: who is accusing me? What authority is conducting these proceedings? Are you officials?

Franz Kafka

Alas, Josef K, the protagonist of Franz Kafka’s The Trial never found out the answer to his questions, the novel concluding with his unexplained demise. Kafka – in engaging with the relationship between the individual and the state – highlighted that in order for such a relationship to be just, no individual should be subjected to state power without knowing why.

Fortunately within English administrative law there has long existed a general obligation for public authorities to give notice to parties affected by decisions. As Lord Steyn stated in R (Anufrijeva) v Secretary of State for the Home Department [2003], 'in our system of law surprise is regarded as the enemy of justice.'

However, no equivalent obligation exists at common law for public authorities to give reasons for their decisions. True, such a duty may be imposed by statute – for example, by Section 10 of the Tribunals and Inquiries Act 1992 or by the Human Rights Act 1998 (as confirmed in Stefan v The General Medical Council [1999]) – or alternatively by EU law, as occurred in the case of Kadi and Al Barakaat International Foundation v Council and Commission [2008].

But outside these limited circumstances, such bodies are under no general duty to provide reasons for their decisions. This is concerning, particularly because, in the words of Sedley J in R v Universities Funding Council, ex parte Institute of Dental Surgery [1994]:

[T]he decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts.

Almost in recognition of this, the courts have increasingly carved out exceptions to the general rule that there is no requirement that reasons be given for administrative decisions by requiring the provision of reasons in specific instances. Indeed, as this article explains, the recent case of Oakley v South Cambridgeshire DC [2017] is a prime example of this; it represents the latest in a series of judgments that, since the 1990s, have arguably rendered meaningless the nominal aversion of administrative law to a general duty to give reasons.

The General Rule

Perhaps the most oft-cited authority for the proposition that there is no general duty at common law to give reasons for administrative decisions is R v Gaming Board for Great Britain, ex parte Benaim and Khaid [1970]. There, the applicants were refused a licence to run a casino by the Gaming Board for Great Britain, which declined to disclose its reasons. The applicants – arguing that the Board had acted contrary to natural justice – subsequently applied for a mandatory order, requiring the Board to give them sufficient information to answer any case against them.

The Court of Appeal dismissed the case, holding that – while the Board was subject to a duty to act fairly – it was nonetheless entrusted by statute with controlling gaming in the public interest. Therefore, it did not need to ‘quote chapter and verse’ of its reasoning to the applicant. As Lord Denning MR curtly put it:

If they were asked by the applicant to give their reasons, they could answer quite sufficiently: ‘In our opinion, you are not likely to be capable of or diligent in the respects required of you.’ Their opinion would be an end of the matter.

The case affirmed that a right to reasons was not inherent within the duty to act fairly that had been applied in the landmark case of Ridge v Baldwin [1963] to all bodies making administrative decisions.

However, the problems with the decision in R v Gaming Board for Great Britain, ex parte Benaim and Khaid [1970] were twofold; firstly, the specific facts of the case involved idiosyncratic policy considerations upon which it was not suitable to establish general rules; and secondly, it seemed to give administrative bodies a blank cheque to make any decision they wanted and not be accountable for it by sharing their reasoning.

A New Orthodoxy

In tacit recognition of these problems, the general approach of the courts in recent years has been to continue to deny the existence of a general duty to give reasons, while nonetheless finding that specific duties to do so exist on the facts of the cases before them.  As has been illuminated by Paul Craig, the courts first began to do so on instrumental grounds:

But since the 1990s, the courts have also increasingly found specific duties on the basis of natural justice or procedural fairness. The first attempt to provide a coherent framework to guide courts as to the demands of fairness came from Sedley J in R v Universities Funding Council, ex parte Institute of Dental Surgery [1994]. Here, the Divisional Court held that the Institute could not use the failure to give reasons as a grounds to challenge the research assessment grading that it had been given by the Funding Council.

However, in his judgment, Sedley J identified two kinds of case where courts would hold there to be a duty to give reasons:

Moreover, Sedley J held that, in cases where a public authority had failed to give reasons for its decisions when it was required to, that would constitute a breach of procedural fairness and the decision was a nullity.

While the decision in R v Universities Funding Council, ex parte Institute of Dental Surgery [1994] was only from a court of first instance, Sedley J’s approach was subsequently accepted as authorities at all levels, often to find a duty to give reasons rather than deny one. In (Matson) v Mayor & Commonalty and Citizens of The City of London [1995], the concept of ‘an interest so highly regarded by the law’ in the first of Sedley J’s categories was applied to a decision by a public authority which affected an applicant’s reputation. Here, the applicant protested that he had not been told why the Court of Aldermen had not confirmed his election as an alderman, and the Court of Appeal stated reasons had to be given.

In R v Secretary of State for Home Fepartment, ex parte Mohammed Fayed [1996] too, Lord Woolf MR held that had Section 44 of the British Nationality Act 1981 not expressly dispensed with the need for reasons to deny an application of the for naturalisation the common law would have demanded them.

Elsewhere, in Stefan v The General Medical Council [1999] – which saw the House of Lords hold that the General Medical Council were under a duty to give reasons for suspending a practitioner indefinitely – Lord Clyde stated that, despite there being no general duty to give reasons, there was a strong argument that what were once regarded as exceptions to the rule may now be the norm, such that cases where reasons are not required may be taking on the appearance of exceptions. 

Not All One-Way Traffic

Nonetheless, all of the preceding cases ought not to be taken as signalling the demise of the rule that there is no general duty to give reasons at common law. In R v Ministry of Defence, ex parte Murray [1998] COD 134, Lord Bingham CJ restated the principles regarding the duty to give reasons in conservative terms. Reiterated the lack of a general duty, he made it clear public interest may demand that reasons ought not be given for a number of factors, including where:

  • It would impose an undue burden on the decision-maker;
  • It would demand the articulation of inexpressible value judgments;
  • It would invite people to scour reasons for grounds of challenge.

However, Lord Bingham CJ’s reasoning is problematic: the factors upon which he relies are spurious at best. After all, it is to be expected that all decision-makers have reasons for their decisions – so why sharing them would be so onerous is unclear.

Yet, courts in other cases followed the approach from R v Ministry of Defence, ex parte Murray [1998] COD 134: in R (Hasan) v Secretary of State for Trade & Industry [2008], the Court of Appeal denied any duty to give reasons where a claimant challenged the decision of the Secretary of State to grant licences for the export of military equipment to Israel. Earlier in R v Kensington and Chelsea RLBC, ex parte Grillo [1996] 28 HLR 94, the Court of Appeal also held fairness did not require reasons to be given for a local council’s decision that the accommodation offered to the applicant was suitable. Furthermore, it must not be overlooked that the decision in R v Universities Funding Council, ex parte Institute of Dental Surgery [1994] itself stands as authority for the general rule.

Thus, it remains clear that – despite the undeniable prevalence of specific duties on the basis of fairness – the idea that there is no general common law duty remains true not simply in the abstract. In this way, the current law seems unacceptably incoherent.

Grass on the Pitch, Play Ball

It was with the law in this sorry state of affairs that the case of Oakley v South Cambridgeshire DC [2017] was decided. Here, a local authority decided – contrary to the recommendation of a planning officer – to grant planning permission for the construction of a football stadium on Green Belt land, without giving reasons for doing so. The Court of Appeal unanimously held that reasons should have been given for the decision on the basis of fairness.

In doing so, the court – as Mark Elliott has argued – did not simply work within the framework set out by R v Universities Funding Council, ex parte Institute of Dental Surgery [1994], but also extended the second category of cases, such that the duty arises not simply where the decision was aberrant, but also where it was merely suspect. This has the obvious potential to encompass a much larger number of decisions, further eroding the status of the general rule at common law.

In the circumstances, Sales LJ stated that the reason the Court of Appeal had felt it necessary to impose a duty to give reasons upon the local authority was the fact that:

[T]he decision to grant planning permission appeared to contradict the local development plan and appeared to subvert the usual pressing policy concern that the Green Belt be protected…

Consequently, the court felt it was only fair that the local authority gave reasons for a decision that contradicted the evidence in question. Indeed, in such circumstances, Elias LJ stated that public authorities should give reasons ‘unless there is a proper justification for not doing so’. However, he – regrettably – stopped short of endorsing a general duty to give reasons because of ‘particular circumstances where there is a justification for not imposing a common law duty’. As such, he preserved, albeit in diminished form, the prior confusion in the law.

Enough is Enough

The case of Oakley v South Cambridgeshire DC [2017] was therefore a step in the right direction but failed to clarify the law; by neither affirming a general duty nor denying one without exception, the Court of Appeal left the law in a state of limbo.

There seems an obvious solution to the quandary, which requires accepting the proposition that there is no general duty to give reasons on grounds of procedural fairness is meaningless. Although decision-making processes subject to fairness still do not automatically require reasons to be given, Oakley v South Cambridgeshire DC [2017] has clearly confirmed that a decision need not even be aberrant to necessitate reasons. It seems clear that the time has therefore come to recognise a general duty for reasons at common law, and determine its extent on a case-by-case basis in line with the duty to act fairly.

As Mark Elliott has argued, the conventional position since Ridge v Baldwin [1963] has been to determine the requirements of fairness on a contextual basis rather than establishing hard and fast rules. In light of this, the explicit aversion to a general duty based on fairness makes little sense, especially in light of cases where the courts have denied a general duty yet found one on specific facts. Recognition of such a duty matters, because it shifts the burden to the state to justify not giving reasons rather than it falling on the claimant to prove why they should be given.

Furthermore, it should not be contended that the requirement imposed by Section 31A of the Senior Courts Act 1981 – that the court ‘must’ refuse relief if the outcome of a case would not be substantially different if reasons were given – renders the need for a general duty pointless. Indeed, this argument can be refuted for three reasons. For one thing, it misses the basis of such a duty in procedural fairness; the idea that human beings should be treated with dignity by the state, and that relief is not integral to discharging such a duty.

Secondly, there have been cases where the provision of reasons by a public body pursuant to a duty to do so has resulted in the case reaching a different outcome. For example, in R (Wall) v Brighton & Hove CC [2004], it was only after a planning committee subsequently asked for reasons for a decision that it was discovered that a local authority which had initially failed to provide reasons for a planning decision had made its decision based on factual inaccuracies.

Thirdly, this argument places too little weight on the extent to which focusing on reasons might guide – or indeed, change – a decision-maker’s thinking. As Sedley J observed in R v Universities Funding Council, ex parte Institute of Dental Surgery [1994], a requirement to give reasons ‘concentrates the decision-maker’s mind on the right questions’. It therefore cannot be assumed that a decision-maker, now forced to consider evidence and articulate a justification for a decision, would necessarily have reached the same decision had they been under no requirement to do so. As a result, it is far from certain that by Section 31A of the Senior Courts Act 1981 has eviscerated the need for a general duty to give reasons in administrative law.

Conclusion

The courts' long-standing refusal to recognise the existence of a general duty to give reasons seems increasingly unsustainable; the decision in Oakley v South Cambridgeshire DC [2017] represents yet another erosion into a status quo that surely must be awaiting a true strike into its heart. And this would be a justified and welcome final assault; as the Justice-All Souls Committee reported in 1988:

[N]o single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions.

It is therefore fortunate that, as documented above, the common law has been flexible enough to generally mitigate the extent of this inhibition. However, it is still regrettable that in some circumstances, it still has the potential to have an impact when – surely – the time has come to dispel it once and for all.

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Tagged: Administrative Law, Judicial Review, Justice

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