The age of reasons

In the absence of a statutory requirement, there may be no hard-edged general duty on public bodies to give reasons for their decisions. However, with “openness” and “transparency” being the watchwords of our times, there appears to be an increasing expectation that sufficient reasons will be given to ensure fairness to those affected by such decisions.

This was underlined by a decision of the Administrative Court on 18 May 2007 where Ruth Kelly, the then secretary of state for communities and local government, was told by Mr Justice Stanley Burnton to think again about a decision made on her behalf by Jim Fitzpatrick MP, a Parliamentary under secretary of state when he had overturned certain disciplinary decisions of a fire authority (see R (London Fire and Emergency Planning Authority) v Secretary of State for Communities and Local Government [2007] EWHC 1176 (Admin), [2007] All ER (D) 310 (May)).

However, since it has been said that history is a guide to navigation in perilous times, it is worth reflecting on how the law in this area has been developing in recent years.

DEMAND FOR REASONS

To call first on Mr Justice Sedley (as he then was) in July 2003. He indicated in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651, [1994] 1 WLR 242 that:
“The giving of reasons may among other things concentrate the decision-maker’s mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process. On the other side of the argument, it may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge. It is the relationship of these and other material considerations to the nature of the particular decision which will determine whether or not fairness demands reasons.”

This passage was approved by the Court of Appeal in R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88, [2003] All ER (D) 81 (Jan).

DUTY ON JUDGES

Moving forward to 18 February 1999, the duty on judges concerning reasons for their decisions was considered by Lord Justice Henry in the Court of Appeal in Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373, [2000] 1 WLR 377.

The court noted that, while there were exceptions, eg the magistrates’ court or the summary exercise of discretion, and it would not be useful to attempt to make absolute rules given that issues are so infinitely various, it would still make the following general comments:
- The duty is a function of due process, the rationale of which has two principal aspects. First, fairness requires that the parties should be left in no doubt as to why they have won or lost. Second, the requirement to give reasons concentrates the mind and if it is fulfilled the resulting decision is much more likely to be soundly based on the evidence than if it is not.
- The first of these aspects implies that absence of reasons may be a “good self-standing ground of appeal”. Where, because no reasons are given, it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of their chance of an appeal unless the court were to entertain an appeal based on the lack of reasons itself.
- The extent of the duty depends on the subject matter. Where there is a straightforward factual dispute and resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge—having, no doubt, summarised the evidence—to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where, as here, there is disputed expert evidence; but it is not necessarily limited to such cases.
- However, this is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis—with experts or otherwise. The rule is the same: the judge must explain why he has reached his decision. The question is always, “what is required of the judge to do so?” and that will differ from case to case. Transparency should be the watchword.
Public authorities, in their decision-making, are not necessarily subject to the full rigour of these principles. However, these do provide a useful guide and will be particularly resonant when authorities are making quasi-judicial decisions, for example the determination of planning applications.

CONSIDERATIONS

Stanley Burnton J took a good look at the area on 11 July 2001 in the context of reasons given by an academic institution after a decision (see R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538, [2001] All ER (D) 133 (Jul)). This case concerned a judicial review of a decision by the defendant college to reject the claimant’s complaint that the award of her second year grades did not properly take into account certain extenuating circumstances. The original decision did not give any reasons for the rejection of the claimant’s case but a subsequent letter on behalf of the college purported to. While Stanley Burnton J did—but “not without considerable hesitation”—accept as lawful the additional reasons, in the course of his judgment he extracted the following useful propositions from R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 and other authorities:
- Where there is a statutory duty to give reasons as part of the notification of the decision, so that (per Mr Justice Laws in R v Northamptonshire County Council, ex p D [1998] ED CR 14) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances, if at all, will the court accept subsequent evidence of the reasons.
- In other cases, the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
- Whether the new reasons are consistent with the original reasons.
- Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
- Whether there is a risk that the later reasons have been composed subsequently to support the tribunal’s decision, or are a retrospective justification of the original decision.
- The delay before the later reasons were put forward.
- The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

Stanley Burnton J added the following considerations:
- The degree of scrutiny and caution to be applied by the court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the court may be less demanding, and more ready to accept subsequent reasons.
- The court should bear in mind the qualifications and experience of the people involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members.

STERNER TEST

Generally, following the increasingly penetrative analysis of the decisions of public bodies where European Convention rights are in issue and also the transparency requirements on public authorities, eg following the Freedom of Information Act 2000, there does now appear to be a sterner onus on public authorities to give reasons for their decisions, at least so far as is necessary to enable those affected by them to understand why the decision has been made and to exercise their rights accordingly. As indicated, this is part of the duty on public authorities to act fairly.

LONDON FIRE AUTHORITY

Coming up to date and to London Fire Authority, the secretary of state for communities and local government ran into difficulties concerning reasons in the Administrative Court on 18 May 2007.
Under reg 15 of the Fire Services (Discipline) Regulations 1985 (SI 1985/930) (applicable at the material time(s)) specified appeals from a disciplinary tribunal or appeals committee were to be made to the secretary of state. In this case, in considering appeals on the part of fire-fighters who had been dismissed for breaching conditions of service—among other things for using their positions for private gain and whose appeals had been rejected by the authority’s disciplinary and appeals committee—the secretary of state had substituted lesser penalties.

The reasons in each case noted the fire-fighter’s record in the Fire Service and indicated that “in the interests of justice” the secretary of state considered that dismissal was too harsh a penalty. When the authority applied for judicial review (among other things) on the ground that the secretary of state’s reasons were insufficient, the secretary of state subsequently provided extended reasons.

In the court’s view the secretary of state’s original reasons were inadequate:

“Where an employer fire authority has, at two instances, decided that disciplinary offences should lead to dismissal, good reason is required to overrule their decision, and the Authority is entitled to know why the Secretary of State disagreed with it, just as a fire officer whose appeal is dismissed is entitled to know why.”

In addition, the court considered that the offences were “very serious indeed”, involving exploitation by the fire-fighters of their positions for private gain. In addition they involved other colleagues in these activities, which was a “serious aggravating factor”. Among other considerations:

“The invocation of ‘the interests of justice’ is wholly uninformative, no more than a formula suggestive of the absence or concealment of specific reasons. It is evident from the reduction in the sanctions itself that the Secretary of State thought dismissal was too harsh, and...to state that a sanction is too harsh is, or certainly should be, a statement of the obvious. Why the penalty was too harsh is unexplained…The Authority was left entirely in the dark”.

As for the expanded reasons, the court considered that these should not be accepted, in so far as they justify the original decisions:

“They were produced a year after the decisions were taken, without the benefit of any contemporaneous record of the reasons given at the meeting of 12 January 2006 for rejecting the original recommendation, and well after the Authority had formulated its challenge to the original reasons. I do not question the honesty of the maker of the belated witness statement, but it seems to me that in these circumstances the Court cannot and should not be assured that the reasons put forward in the expanded reasons were in fact the reasons and, what is equally important, that they represent a comprehensive summary of the salient reasons for the Secretary of State’s decision to reject the unanimous recommendations of his [sic] officials and to allow the appeals.”

In the circumstances, for the above and other reasons, the decisions of the secretary of state were quashed and the appeals remitted to her to determine afresh in the light of the judgment.

PUBLIC SCRUTINY

Local and other public authorities are under ever more intensive public scrutiny. For local authorities operating executive arrangements under the Local Government Act 2000, since 9 January 2001 there have been detailed provisions relating to the recording of executive decisions—the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 (SI 2000/3272). These require the production of a written statement in respect of every executive decision including a record of the decision and the reasons for it.

However, where no statutory duty exists authorities will no doubt wish to make sure as a matter of sound corporate governance and public accountability that the reasons for their decisions are sufficient and appropriate in the particular circumstances, having regard to the interests of all those likely to be affected by them. While governance by opacity or obscurity may—like dictatorship—be more administratively convenient, this does not sit comfortably with the democratic values of openness, transparency and stakeholder accountability. For if the 18th century is often known as the “age of reason”, public lawyers may term this part of the 21st as the “age of reasons”.

Nicholas Dobson is head of local and public law at Pinsent Masons