COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMIN COURT
THE HON MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE RIMER
| THE QUEEN ON THE APPLICATION OF HASAN
|- and -
|THE SECRETARY OF STATE FOR TRADE AND INDUSTRY
(now BUSINESS, ENTERPRISE AND REGULATORY REFORM)
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Mr James Eadie QC and Mr Samuel Wordsworth (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 21st & 22nd October 2008
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The President of the Queen's Bench Division:
The amended claim
The public law duty contended for
"I have set out extracts from the Committee Reports at some length because they demonstrate that careful scrutiny of exports to Israel (and, indeed, elsewhere) of military equipment has been exercised. The Committee can call for any information which may be material and that includes sensitive material which for good reason cannot be made public. It is to be noted that, as the information given in this claim and the reports show, there is no evidence that the criteria are not being properly applied."
The Freedom of Information Act
The judge's decision
"An obligation to give reasons is rooted in the common law's concern that there should be fairness or, as the historic approach stated, compliance with the rules of natural justice so that individuals directly affected should not suffer without any possible remedy or at least knowing why they were suffering. It is always necessary to look at the statutory scheme to ascertain whether an absence of a requirement to give reasons needs to be filled.
Public scrutiny is required by the Act through Parliament. The Quadripartite Committee, as the transcripts of the evidence given before it and its reports show, fulfils that role and ensures compliance with the criteria. It is obvious that there will be sensitive matters arising in some of the licensing decisions and the Committee can obtain all necessary information, even though it cannot be published openly. While no doubt the defendant could routinely give the information which has been given in this case, it would involve a considerable amount of extra work. I have no doubt that the law does not require this exercise to be undertaken. In principle, judicial review is a remedy of last resort and is only needed if appropriate redress cannot be obtained by another route. Parliament has set out the means whereby the lawfulness of licensing decisions such as those with which the claimant is concerned should be monitored. Thus there is in my judgment the necessary transparency and insofar as the defendant fails to comply with it, the Committee will comment and the ultimate judge will be Parliament."
(1) the 2002 Act and the 2003 Order themselves contain provision for giving reasons to an applicant for a licence whose application is refused, a requirement for an annual report to Parliament and a power for proportionate disclosure of information. This structure shows that Parliament considered what information should be given and to whom, and argues against a wide common law obligation.
(2) the 2002 Act is in fact administered with the additional voluntary publication of quarterly reports and assiduous scrutiny by the Select Committee. There is in practice a high degree of openness and public accountability which suggests little necessity for a common law duty. The fact that on occasions the Select Committee expressed the view that the information provided by the Government was less than complete does not detract from this.
(3) the subject matter is generally sensitive, such that unguarded publication is likely to be on occasions damaging. Parliamentary scrutiny, with a possibility of receiving information in closed session, is thus to be seen as preferable.
(4) the existence of the Freedom of Information Act argues against the parallel existence of a common law duty for the reasons I have indicated.
(5) as I have also indicated, the formulation of a sufficiently confined and principled common law duty, which is not simply a cocktail of the particular facts relied on, eluded Mr Fordham.
(6) the problem of definition is compounded because the claimant, having conceded that the licences of which he initially complained were lawfully issued in accordance with the Consolidated Criteria, now has no more than a nominal interest in the proceedings. This strips the case for finding a common law duty to give reasons of a number of the considerations which otherwise might militate in favour of so finding. Admittedly he conceded the original case when reasons were given. But an obligation to give reasons after the event when, it is accepted, the export in question cannot be stopped, does not enable him or anyone to challenge effectively the decision for which reasons are sought.
Wilson LJ: I agree.
Rimer LJ: I also agree.