England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand London WC2
		18th August 1995

LORD JUSTICE NEILL:

The Corporation of the City of London is a corporation by prescription. The functions of the Corporation are controlled through three assemblies, the Court of Aldermen, the Court of Common Council and the Common Hall.

The Common Hall consists of the Lord Mayor, the aldermen, the sheriffs and those liverymen of the City Companies who are freemen of the City. Common Hall elects the sheriffs and nominates two aldermen as candidates for the office of Lord Mayor.

The Court of Common Council is composed of the Lord Mayor, the aldermen and the common councilmen. The common councilmen are elected annually at wardmotes. The Court is the local government authority for the city.

The Court of Aldermen is composed of 25 aldermen, including the Lord Mayor, one elected for each of the City wards. I shall consider the functions of the Court of Aldermen a little later.

The office of alderman.

It appears that the office of alderman is of Anglo-Saxon origin. It was a title used by Anglo-Saxon earls and other persons of distinction. It may be that the aldermannus totius angliae held an office corresponding with that of the Lord Chief Justice of England. As time passed the title of alderman came to be applied to the bearer of high office in the municipal corporations and county councils of England and Wales and in the municipal corporations of Ireland and the United States.

The functions of the aldermen in municipal corporations depended on the charter of the individual corporation. However, following the enactment of the Municipal Corporations Act 1835 and other Acts, which were consolidated by the Municipal Corporations Act 1882, aldermen in other parts of England outside the City of London came to be elected by the councillors. More recently, as part of the major reorganisation of local government effected by the Local Government Act 1972, the office of alderman, outside the City of London, disappeared altogether.

It is plain that the office of alderman has always been one of some importance and dignity. It will be remembered that Mercutio described Queen Mab as being:

"In shape no bigger than an agate-stone on the fore-finger of an alderman..."

Aldermen in the City of London and the Court of Aldermen.

In the City of London, the office of alderman has its own special history.

For over a hundred years there has been some public debate as to whether the City of London should be amalgamated with the County of London. In 18 93 a Royal Commission was appointed to consider the matter. In 18 94 the commissioners made their report to Parliament. Appendix III to that report contains much useful information prepared by the Town Clerk of the City as to the origin of the Corporation of the City of London. It will be convenient to refer to passages in the section of the Statement by the Town Clerk relating to the Court of Aldermen. I should refer to these passages:

"In early times the Aldermen had a kind of proprietary right over their wards, and the wards were often named after their Aldermen...... The first indication in the Civic records of the Court of Aldermen appears to be in the year 1200, when five and twenty of the more discreet men of the City were chosen and sworn to consult with the Mayor on the City's affairs.

The inhabitants on the electoral roll of every ward . . . have the right to elect a freeman to be their Alderman, who must then be approved and admitted by the Court of Aldermen, before he can take his seat as such.

The Lord Mayor, upon a vacancy occurring, issues his precept, summoning the wardmote for the election of an Alderman.

The Court of Mayor and Aldermen have cognizance of the election and return of all persons selected into any place or office, at any wardmote. If the electors of any ward return a person who has been adjudged and determined by the Court of Aldermen to be unfit to support the dignity, and discharge the duties, of the office of Alderman, the court may, after rejection three times in succession, themselves nominate, elect, and admit a fit and proper person, being a freeman of the City to fill the office; a power which, although rarely exercised, has been upheld by the High Court, and was last put in force 16 years ago.

The disqualification of an Alderman is fixed by section 9 of [the City of London Municipal Elections Act 1849] .... and, ..... the duty of adjudicating on such a case devolves upon the Court of Aldermen."

The statement then gave details of the functions of the Court of Aldermen which included jurisdiction over the Livery Companies and duties relating to the control of the City police and traffic inside the City. The appointment of the Recorder of London was and remains another function of the Court of Aldermen.

In April 1958, a further statement was prepared by the Town Clerk on the occasion of the appointment of another Royal Commission on Local Government in Greater London. The Report of the Royal Commission was published in October 1960 (Cmd. 1164). The 1958 statement was brought up to date by a further statement published in 1974. The 1974 Statement contained information about the election of Aldermen. It is sufficient to refer to the following passages:

"From at least the 13 th Century, they have been elected, one in respect of each ward, and the Aldermen of the City are directly elected by the wardvoters. The Aldermen were responsible for establishing the Council to assist them in the administration of the City and it would be contrary to history for the Aldermen to be appointed by the body that they themselves had created. By an Act of Parliament, 17 Richard II, c. 11 (1393-4), Aldermen of the City held office for life, or until resignation, or removal for just and reasonable cause. An Alderman upon election now engages to resign from office on attaining the age of 70 years."

[It may be noted that the Act of Richard II replaced earlier laws passed in the time of Edward II and Edward III that Aldermen should not hold office for more than a year] .

The person elected is subject to approval according to the discretion and sound conscience of the Mayor and Aldermen as a fit and proper person to support the dignity and discharge the duties of the office. Petitions against an election on the ground of unsuitability may be presented to the Court of Aldermen by electors. This procedure of approval does much to ensure that the person admitted is in every way suitable not only to fill the office of Alderman for life, but also the offices of Justice of the Peace, of Sheriff and the office of Lord Mayor which in due time he or she may be called upon to fill. A person elected Alderman may be discharged for insufficiency of estate or disqualified by reason of insolvency, absence for six months, or conviction of fraud or any crime."

It will be seen that the election of an alderman takes place in two stages, first, by the election by the voters at the wardmote, and secondly, by the confirmation by the court of Aldermen. The first stage has statutory force. Thus by section 191(1) of the Representation of the People Act 1983 a municipal election for the election of an alderman of the City of London is included within the definition of a "local government election" for the purposes of many of the provisions of that Act. The second stage remains customary, and it is important to note that in R. v. Johnson (1839) 6 CL. & FIN.413 the House of Lords held that the customary right of the Court of Aldermen to examine and determine whether or not any person elected as an Alderman is a fit and proper person and duly qualified applies whether or not such fitness and qualification has been brought into question by a petition of a person interested.

It is also necessary to take note of the fact that on election an alderman of the City of London becomes a justice of the peace. It is sufficient to refer to section 39(1) of the Justices of the Peace Act 1979 which provides:

"The Lord Mayor and aldermen of the City shall by virtue of the charter granted by His late Majesty King George II dated 25 August 1741 continue to be justices of the Peace for the City:

Provided that any of them may be excluded by the Lord Chancellor from the exercise of his functions as a justice."

I can come now to the events leading up to the present proceedings.

The Events of October, November and December 1994.

At about the beginning of October 1994 the office of alderman for the Ward of Bread Street fell vacant following the resignation of the previous incumbent. On 4 October 1994 the Lord Mayor issued a precept to the common councilmen of the Ward requiring them to summon and hold a wardmote on 7 November 19 94 for the election, subject to the approval of the Court of Aldermen, of an alderman for the Ward. The wardmote duly took place on 7 November. There were two candidates. Accordingly, on the direction of the Lord Mayor, a poll was held which took place on 8 November. Mr. Malcolm Matson was elected by 54 votes to 15. The Lord Mayor then declared that Mr. Matson was the duly elected alderman of the Ward, subject to the approval of the Court of Aldermen. It is to be noted that Mr. Matson received 78% of the votes cast on a turnout of 57%.

On 9 November 19 94 the Town Clerk of the Corporation of the City of London wrote to Mr. Matson giving him notice that having been duly elected by the inhabitants of the Ward of Bread Street he was requested to attend at the Court of Aldermen on Tuesday 6 December 1994 "to take upon [himself] the said Office subject to your election being confirmed by the Court". Enclosed with the letter were four documents:

(a) A list of questions which Mr. Matson was asked to answer so that the replies could be before the Court of Aldermen on 6 December. The letter added:

"There will, of course, be an opportunity at the Court for you to make any statement you wish in support of your election and for any other questions to be addressed to you."

(b) A list of Conventions of the Court of Aldermen, which Mr. Matson was asked to sign and return.

(c) A copy of Standing Order No. 30 of the Court of Aldermen which provides, inter alia, "That an Alderman shall not during the tenure of his Office allow himself to be described as such in connection with the promotion or direction of any Company", and that "The Alderman who is for the time being occupying the Office of Lord Mayor shall not act as a promoter in the incorporation of any company, or accept a new directorship of any company." (d) A copy of the procedure which is followed when an Alderman Elect is presented, together with a copy of the necessary Declaration and Oaths.

The fourth of these documents is an important document in this case. It was in these terms:

"COURT OF ALDERMEN. ORDERS AND RULES governing the procedure on presentation of an Alderman Elect.

Order 1. Rule (1) When a Court is formed and opened, the Comptroller and City Solicitor reports the result of the

Aldermanic Wardmote.

Order 2.

Where there is no Petition or Motion to reject. Rule (1) The Alderman Elect, having been given notice to attend by the Town Clerk, is summoned to the Bar and announced by the Common Cryer.

Rule (2) He is presented by the former Deputy of the Ward.

Rule (3) The Court then announces its intention to confer in private and strangers are ordered to withdraw. All the officers retire except the Recorder and the Town Clerk. It is the duty of any Alderman who knows, or thinks he knows, of any fact which might affect the ballot to state that fact or belief before ballot, so that the Alderman Elect may be given an opportunity to deal with the matter before the ballot takes place. Rule (4) The Alderman Elect is then invited to return to the Court and is asked by the Lord Mayor if he wishes to say anything in support of his candidature and may then be asked questions by any Alderman upon the matters of which he has been given notice or on any other matter.

Rule (5) If at any time before his withdrawal under Rule 6 the Alderman Elect wishes to have time to reflect upon his answers to any matters of which he has not been given notice, he may ask for an adjournment. In such circumstances consideration will be resumed at the next meeting of the Court of Aldermen.

Rule (6) When there are no further questions the Alderman Elect shall withdraw from the Court.

Rule (7) The decision of the Court is arrived at by secret ballot, and must be by a majority of Aldermen present. In the matter of the ballot, the Lord Mayor has no greater rights than any other Alderman.

Rule (8) When a conclusion is reached and the Court re-opened, the Lord Mayor announces the decision of the Court as to whether the Alderman Elect is, or is not, a suitable person to discharge the duties of an Alderman of the City of London.

Rule (9) If the Ward Election is confirmed, the new Alderman is sworn in, welcomed by the Lord Mayor and replies. He is robed in a violet gown and introduced to each member of the Court by the Sword Bearer. He then goes to his seat and the Officers are introduced to him in turn. If the Ward Election is not confirmed, the Lord Mayor orders a new precept for a fresh Wardmote.

Order 3

Where there is a Petition to Reject Rule (1) The Town Clerk informs the Court that he has received a Petition to Reject, and in order to save any adjournment, has sent a copy of it to the Alderman Elect, and informed both the Petitioner and Alderman Elect of the date of the hearing, and of their right to be represented by Counsel.

Rule (2) The Alderman Elect is summoned to the Bar. He is formally told of the Petition against him, reminded that he has been sent a copy of it, and asked if he wishes the matter to be dealt with at once, or adjourned.

If there is no adjournment Rule (3) The Town Clerk reads the Petition to the Court. The case for the Petitioner is opened and witnesses called in support. If the Petitioner gives evidence himself, he should do so before the other witnesses give theirs.

Rule (4) Evidence must be given on oath, and witnesses are subject to cross-examination by or on behalf of the other party.

Rule (5) The case for the Alderman Elect is then presented in like manner, the procedure being the same as in Rules (3) and (4) of this Order. Both parties shall be entitled to make closing speeches if they so desire. Rule (6) The Court then confers in private as in Order 2, Rule (3), any Alderman Petitioner also withdrawing, and the further procedure follows Rules (4) (5) (6) (7) (8) and (9) of Order 2.

If an adjournment is granted Rule (7) At the adjourned hearing, the procedure is the same as under Rules (3) to (6) of this Order.

Order 4

Where there is an objection by way of Motion Rule (1) The procedure is the same as that under Order 3, Rules (1) to (7) inclusive, the reference being to a "Notice of Motion' instead of a Petition."

On 6 December 1994 the Court of Aldermen met to consider Mr Matson's admission as alderman. No Petition or Motion to reject had been presented to the Court and accordingly the procedure which was adopted was that prescribed by Order 2 and the Rules thereunder. it seems clear that before the Court met Mr Matson had not been given notice of any matter on which he might be asked questions by an Alderman, as contemplated by Order 2 Rule (4) .

The Town Clerk has sworn an affidavit in these proceedings dated 8 February 19 95 in which he set out the result of the secret ballot. I can refer to part of paragraph 6 of this Affidavit (CB 185):

"Once the Aldermen had recorded their votes I collected the ballot papers and placed them before the Lord Mayor, who unfolded them and called out 'Yes' or 'No' on looking at the ballot papers. There were 17 votes against Mr Matson's admission, 1 vote in favour of Mr Matson's admission and 1 abstention. The Lord Mayor declared the result of the ballot and Mr Matson then returned to the Court."

The Lord Mayor then addressed Mr Matson in the following terms as recorded in the Minutes of the Court (CB 199): "It is well known that by an ancient custom of the City of London the election of an Alderman is subject to ratification by the Court of Aldermen.

Having regard to the many and varied duties which have to be performed by an Alderman of the City of London, for all of which he must be entirely suitable, the Court has come to the conclusion that it is unable to confirm the election of Mr Malcolm John Matson.

It follows from this decision that a fresh precept must be issued for the election of an Alderman of the Ward of Bread Street."

In paragraph 8 of his affidavit sworn on 8 February 1995 the Town Clerk set out what happened after the Lord Mayor had addressed Mr. Matson:

"The Orders and Rules do not provide for any further statement to be made by an Alderman elect and no further statement was asked for from Mr. Matson, who then withdrew."

THE PRESENT PROCEEDINGS

On 15 December 1994 Mr Matson applied for leave to apply for Judicial Review of the decision of the Court of Aldermen on 6 December that he was not a fit and proper person to support the dignity and to discharge the duties of the office of alderman and of their refusal to approve his election. The application for leave was heard by Judge J. on 16 December. He granted leave and by consent granted an injunction to restrain the Respondents from taking any steps to organise or hold any further election for the post of alderman for the Ward of Bread Street until the proceedings had been determined.

The relief which Mr Matson now seeks in these proceedings is:

(1) An order to quash the decision of the Court of Aldermen; or, alternatively,

(2) An order remitting the matter of the approval of the applicant's election as an alderman to the Court of Aldermen with a direction to reconsider it and reach a decision in accordance with the findings of the High Court or the Court of Appeal.

The application for judicial review was heard by Latham J. on 6 and 7 March 1995. On 16 March 1995 Latham J. gave judgment dismissing Mr Matson's motion for judicial review. He also refused his application for leave to appeal. Leave to appeal was subsequently granted by the order of the Court of Appeal dated 27 March 1995.

Latham J. had before him affidavits sworn by Mr Matson and by Mr Michael Zuckerman his solicitor and also Affidavits sworn by the Town Clerk and by Sir Lawrence Verney, the Recorder of London. In addition he had before him a number of exhibits including a note of the proceedings on 6 December 1994 which had been prepared by Mr Matson.

According to this note (CB 98) it appears that after Mr Matson had been introduced to the Court in accordance with Order 2 Rules (1) and (2) the Court conferred in private for about 45 minutes. Mr Matson was then called in and a number of questions were addressed to him. It will be convenient to refer to Latham J's summary of this questioning (J 19 G):

"When he appeared before the Court of Aldermen he was interviewed, according to his affidavit, for about 40 minutes. The interview clearly ranged over a wide variety of topics. Included amongst them were questions about his involvement in a recent election of Common Councilmen for his Ward, in the context of a convention that Aldermen do not involve themselves in such elections. The specific allegation which was put to him, which he denied, was that he had approached a partner in a firm of lawyers to encourage him to stand. He was asked questions about his understanding of the relationship between the Court of Aldermen and the Common Council; he was asked whether he had the support of the Common Councilmen from his Ward; he was asked about a sheet that he had had printed setting out his platform for election, and the percentages of the turnout, and the vote cast for him; in the sheet, he referred to challenges facing the City "which not all existing members of the Common Council necessarily appreciate fully', which may suggest that he was tilting at City complacency; he was asked questions about his businesses which suggested some scepticism about their value generally and in particular to the City; questions were asked about his charity work to which he was only able to give a very general answer."

In stating his grounds for rejecting Mr Matson's application for judicial review Latham J. dealt first with the question whether the decision itself was so apparently absurd or perverse that in the absence of reasons he had to assume that the Court of Aldermen had abused its power. The judge concluded that it was not self evident on the material before him that Mr Matson met all the criteria which any reasonable Court of Aldermen could have required and accordingly the decision was not perverse on its face.

He then considered the question whether the nature of the decision in its context required reasons to be given. The judge referred to some of the authorities on this matter and it is clear that the question caused him anxiety. In the end, however, Latham J. decided that the ratification of an alderman fell into the same category as the appointment or promotion of an office holder where no reasons need to be given. The Judge was also impressed by the argument that it is the more difficult to expect reasons to be given where the decision is "very much a matter for the subjective judgment of each individual alderman."

Mr Matson has now appealed to this Court.

The Case in the Court of Appeal.

The arguments advanced in the Court of Appeal on behalf of Mr. Matson and on behalf of the Corporation of London covered a wide field but they can be summarised quite shortly. I propose to consider these arguments under four headings.

(1) The nature of the determination by the Court of Aldermen.

It was argued by Lord Lester at the outset of his submissions that the customary power which was exercised by the Court of Aldermen was a power of disapproval only, and that it could only be exercised on the ground that the alderman elect was unsuitable for office. The election by the wardmote established that the alderman elect was prima facie suitable; the task of the Court of Aldermen was to examine whether there were any negative factors which entitled them to reject him. As the case developed, however, Lord Lester modified his submission and accepted that the Court of Aldermen could also properly examine the strength of the factors which were in favour of confirmation. He emphasised, however, that the election of an alderman could not be treated in the same way as an election of a member of a social club.

Mr. Sullivan on the other hand drew attention to the scope of an alderman's duties and to the fact that, though there were separate elections for the offices of aldermanic sheriff and Lord Mayor, an alderman once elected would in the ordinary course of things be likely to become Lord Mayor in due course. Moreover, the alderman would become a justice of the peace ex officio and would be likely to remain in office until the age of seventy. The Court of Aldermen had therefore to consider the suitability of an alderman elect with the greatest care.

On this aspect of the case I am satisfied that Mr. Sullivan's submissions were broadly correct. The office of an alderman of the City of London is one of high standing and the person elected becomes one of a small group of people from whom future Lord Mayors are chosen. The Lord Mayor of London during his year of office becomes not only the leading citizen of the City of London but an important representative of this country on the international stage. It is therefore appropriate that before an alderman's election is confirmed the Court of Aldermen should consider not only whether there are any matters which tell against him, but also whether his experience, his attainments and his personal qualities fit him for the exacting role of being an alderman. Both negative factors and positive factors are relevant to this enquiry.

At the same time, however, members of the Court must set aside any personal prejudices and must base their judgments on their genuine assessment of the individual's fitness for office. The test is whether the individual is thought fit to carry out his important responsibilities over a period of years in a way which will be of benefit to the City and to the community it serves.

(2) Whether the procedure adopted on 6 December 1994 was unfair.

It was argued on behalf of Mr. Matson that, quite apart from the failure of the Court of Aldermen to give reasons for their decision, the procedure on 6 December was flawed by procedural unfairness. It was said that he was never informed of the case, if any, against him.

In this context Lord Lester drew our attention to the procedural Orders and Rules of the Court of Aldermen and to the decisions in Weinberger v. Inqlis [1919] AC 606 and Kanda v. Government of Malaya [1962] AC 322. Lord Lester pointed to a passage in the judgment of the Privy Council in the latter case at 337:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him."

In addition Lord Lester drew our attention to other authorities to the same effect including a passage in the speech of Lord Mustill in R. v. Home Secretary, ex parte Doody [1994] 1 AC 531 at 563 where he said that in many instances an explicit disclosure of the substance of the matters on which the decision-maker intends to proceed is required.

In the present case, however, the process on which the Court of Aldermen was engaged was not accusatory in nature. No petition had been presented against Mr. Matson's election. The Court was considering whether his election should be confirmed and for this purpose, as I have explained, any positive factors as well as any negative factors had to be weighed in the balance.

It would appear from Mr. Matson's note of the meeting on 6 December that the only explicit criticism which might have been made of him related to his alleged approach to someone to stand as a common councilman. In the absence of any reasons for the Court's decision it is impossible to know whether any importance was attached to this allegation.

I have come to the conclusion that on the information at present before the court it is impossible to say that the decision of the Court of Aldermen was flawed for procedural unfairness. It may be that negative factors played no part in the decision and that the absence of sufficient positive factors tipped the scales. The question whether Mr. Matson's election should be confirmed clearly occupied the attention of the Court of Aldermen for a considerable time. The procedure laid down in the Orders and Rules was followed. On the other hand the fact that on a matter of some public importance one knows so little about the decision raises a question which I shall have to examine more fully when I consider whether reasons should have been given.

(3) Whether the Decision was unreasonable in a Wednesbury sense.

Once it is accepted that the Court of Aldermen has to weigh both positive and negative factors before reaching a decision it seems to me impossible to say that the decision not to confirm Mr. Matson's election was ex facie unreasonable. I agree with the judge that it is not self evident from the material before the court that Mr. Matson met all the criteria which any reasonable Court of Aldermen could have required. It is to be remembered that the members of the Court had an opportunity to make their own assessments of Mr. Matson during the course of the interview which lasted about forty minutes.

(4) Whether the Court of Aldermen were under a duty to give reasons.

Lord Lester put forward a number of arguments in support of a submission that the Court of Aldermen were under a duty to give reasons for their decision not to confirm Mr. Matson's election. These arguments were advanced on the following lines:

(a) That the Court of Aldermen was a court of record sitting in public which had the task of determining the right of Mr. Matson to take up an office to which he had been duly elected.

(b) That Mr. Matson's election had been through a democratic process and both he and the electors were therefore entitled to expect that his election would be confirmed unless it was disapproved on just and reasonable grounds.

(c) That, though there was no general rule of administrative law that a decision-maker had to give reasons, a requirement to give reasons could no longer be regarded as exceptional.

(d) That Mr. Matson' s rejection by the Court of Aldermen was a slur on his good name and fairness demanded that the reasons for his rejection should be explained.

(e) That once the decision had been challenged by proceedings for judicial review the Court of Aldermen were under a further and separate duty to explain their reasons to the court. In this context Lord Lester referred to a passage in the judgment of Sir John Donaldson MR in R. v. Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 at 947 where he said that when the decisions of local authorities are challenged "they should set out fully what they did and why, so far as is necessary, fully and fairly to meet the challenge".

(f) That the existence of a duty to give reasons and of the further duty to give reasons to the court was reinforced by Article 6 of the European Convention on Human Rights which provided:

"1. In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal established by law."

The right to a good reputation, it was argued, was a civil right within the meaning of Article 6.1. It followed that there must be an effective judicial review of any impairment of that right, and no such review of an administrative decision was possible unless the reasons for that decision were made known.

On behalf of the Corporation of London on the other hand it was argued that there was no duty to give reasons and that Article 6.1 had no application because the decision of the Court of Aldermen did not involve any "determination" of Mr. Matson's civil rights.

It is common ground that the law does not at present recognise a general duty to give reasons for an administrative decision: see Lord Mustill in Doody (supra) at 564 E. But such a duty may be implied in appropriate circumstances. These circumstances will include the nature of the adjudicating process.

In R. v. Higher Education Funding Council [1994] 1 WLR 242 Sedley J. at 263 identified two classes of case where there is such a duty. One such class, he said, is "where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reason, at least for particular decisions, be given as of right." The second class he identified as being where the decision appears to be "aberrant" and where "fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengable) or apparent."

The decision in the present case is not on its face aberrant. The question therefore arises whether fairness requires that reasons should be given.

It is important to remember the wide discretion which is given to the Court of Aldermen by legal custom. As Lord Brougham LC explained in R. v. Johnson (supra) at 64 "the eligibility of the [alderman elect] is a matter entirely in the discretion and subject to the judgment" of the Court of Aldermen. It is also important to remember the fact that the collective decision not to confirm the election was based on the votes of individual members whose reasons for recording a negative vote may have differed from one member to another.

After careful reflection, however, I am persuaded that fairness and natural justice require that this decision should not be allowed to go unexplained. I have been led to this conclusion by the following considerations:

(1) Mr. Matson was standing for public office and wished to serve his constituents and the City of London in that office.

(2) Mr. Mat son was elected by the voters at a Wardmote by a substantial majority and by an electoral process recognised by section 191(1) of the Representation of the People Act 1983.

(3) The second stage of the election involved a decision by the Court of Aldermen which is a court of record.

(4) The decision of the court was announced in public and is a matter of public record.

(5) During the course of the private interview questions were put to Mr. Mat son which suggested that he had acted in an inappropriate manner. He has no means of knowing whether the Court accepted his explanation. As McCowan L.J. pointed out in R. v. Civil Service Appeal Board, ex parte Cunningham [1992] ICR 816 at 830 H, in the absence of reasons a person in Mr. Matson's position will not know whether his submissions have been rejected or not.

(6) The basis for the Court's decision may have been that Mr. Matson lacked the necessary positive qualities for the office. On the other hand the Court, or some members of it, may have been dissatisfied with his answers to some particular questions or as to his experience of or commitment to the City.

(7) In the absence of any reasons neither Mr. Mat son nor the electors can know whether he should stand again or whether, if re-elected at a wardmote, he should supply additional information to the Court. The cost and time involved in a further election is not inconsiderable. It is also to be remembered that if an alderman elect is rejected three time in succession the Court of Aldermen is empowered to nominate and elect some other person to the office.

(8) The public rejection of Mr. Mat son is bound to cast a shadow on his reputation. It may be that through no fault of his he lacks those special qualities which the office of alderman demands. On the other hand his rejection may be interpreted as meaning that there is a black mark against him.

(9) The giving of short reasons will not frustrate or impede the exercise by the Court of its customary powers. On the contrary the articulation of short reasons will enable the Court to ensure that their decisions in every case are sound and manifestly just and in the interests of the City.

In reaching this conclusion I have not found it necessary to seek the assistance of Article 6 or any other of the Articles in the European Convention on Human Rights, important though those Articles are. I am satisfied that English law provides a fair solution. Nor have I found it necessary to reach a conclusion on Lord Lester's submission that in proceedings for judicial review the court itself may require to be provided with reasons for the challenged decision.

In these circumstances I would allow the appeal, quash the decision of 6 December 1994 and remit the matter of the approval of Mr. Matson's election as an alderman to the Court of Aldermen with a direction to reconsider the matter and reach a reasoned decision in accordance with the findings of this court.

LORD JUSTICE SWINTON THOMAS:

The election of an Alderman in the Court of London is governed in part by the provisions of the Representation of the People Acts, and in part by ancient custom.

On the 7th November, 1994, Mr.Matson was elected as Alderman for the Ward of Bread Street. The election was contested. Those entitled to vote are few in number, and Mr. Matson was elected by 54 votes to 15. As was rightly stressed by Mr. Sullivan,Q.C., on behalf of the Respondents to this appeal, the Mayor and Commonalty and Citizens of the City of London, election and confirmation of an Alderman is a two stage process. First, there is the election, and second, confirmation or non confirmation by the Court of Aldermen. Nonetheless, in my judgment, the facts that the nominee has been democratically elected in the Ward Election, that the procedure is governed by the Representation of the People Acts, and that the successful candidate is then described as the Alderman Elect, are all relevant features to the decision which has to be made by this Court.

Mr. Matson attended at the Court of Aldermen on the 6th December, 1994, for the Court's decision as to whether he should be confirmed. Prior to the hearing he had filled in a Questionnaire sent to him by the Town Clerk. The document asks a number of formal questions relating to Mr. Matson's background, business standing and the like. The general duties of an alderman are set out in the affidavit of Mr. Jones, the Town Clerk of the City of London sworn on the 8th February, 1995. They participate in the Committees of the Corporation of London, meetings of the Court of Common Council and the Court of Aldermen, act as returning officers in elections, act as governors and trustees of various City bodies, and participate in charities and the City Livery Companies. In addition the Sheriff and the Lord Mayor are chosen from the Aldermen, who are 25 in number. They are elected for life but by custom retire at the age of 70. They sit as Magistrates for the City of London. Accordingly, it is clear that the Court of Aldermen are entitled to, and indeed must, consider before confirming the Alderman elect whether he is a suitable person to carry out those various duties. Lord Lester, Q.C. submitted that whether the Aldermen Elect might or might not be a suitable person for future election as a Sheriff or as Lord Mayor was irrelevant at this stage. I do not accept that submission. Bearing in mind the small pool of Aldermen from whom the Sheriff and the Lord Mayor are drawn, and an expectation that an elected Alderman will in due time be considered for those important offices, this is a matter which, in my view, the Aldermen are entitled to consider at the time of the confirmation hearing.

The hearing is governed by the Orders and Rules governing the procedure on presentation of an Alderman Elect. They are set out in the judgment of Neill L.J. After the votes have been counted, the Lord Mayor announces the decision of the Court as to whether the Alderman Elect is, or is not, a suitable person to discharge the duties of an Alderman of the City of London. Those words, namely "is or is not a suitable person to discharge the duties of an Alderman of the City of London" are to be found in Rule 8 and are fundamental to this case.

On the 6th December, 19 94, the Aldermen conferred for about three quarters of an hour. Mr. Mat son wa s then called to attend before them. He was questioned for about 40 minutes. Mr. Matson has prepared from his recollection a note of the questions and answers. Obviously it is not a full record. It appears that the tone of the questioning was somewhat hostile. He was asked whether he had encouraged another person to stand as a Common Councilman, it being a custom that Aldermen play no part in Council Elections. Mr. Matson said that he had not done so. There is a suggestion that Mr. Mat son's answers to these questions were greeted with a degree of scepticism. He was asked about his business career, his work in the City, and his work for charity. At the conclusion he withdrew. Mr. Matson's admission to the Court was rejected by 17 votes to 1.

Lord Lester's first submission is that the decision of the Aldermen is perverse and irrational and should be quashed on Wednesbury principles. In R v The Mayor and Aldermen of London ex parte Scales [1832] 3. B and Ad 255 (well known as the Scales litigation) Lord Tenterden referred to "the customary right of the Court of Aldermen to examine and determine whether or not any person elected as an Alderman of any Ward of the City, is, according to their discretion and sound conscience a fit and proper person and duly qualified in that behalf." That judgment was followed in a Statement issued by the Corporation of London in 1974 which stated :

" The person elected is subject to approval according to the discretion and sound conscience of the Mayor and Aldermen as a fit and proper person to support the dignity and discharge the duties of the office......... This procedure of approval does much to ensure that the person admitted is in everyway suitable not only to fill the office of Alderman for life, but also the offices of Justice of the Peace , of Sheriff and the office of Lord Mayor which in due time he or she may be called upon to fill."

Lord Lester says that Mr.Matson is a well educated, successful business man of impeccable character and reputation who has been duly elected by the electors of the Bread Street Ward. He submits that no positive case was raised against or put to Mr. Matson. It is not open , he submits, for the Aldermen to reject an Alderman Elect save for good positive identifiable reasons. Lord Lester submits that the power vested in the Aldermen is a power of disapproval, exercisable only on the basis that it has been shown that the Alderman elect is unsuitable for office. Mr. Sullivan submits that the boot is on the other foot. He emphasises strongly the two stage procedure. He submits that the fact that the Aldermen Elect has been elected in the Ward election is irrelevant and that he has no in-built advantage at the second stage.

He submits that it is for the Alderman Elect, who is in the position of an applicant to the Court, to show that he is in everyway suitable to hold the post of Alderman and to fulfil the posts of Magistrate, Sheriff and Lord Mayor.

Mr. Sullivan submits that it is for the Alderman Elect to open the gate and that his election did not mean that the gate was already open to him, subject only to there being no overwhelming , proved objection. Mr. Sullivan submits that a refusal to confirm does not have to be based on any factual matter but can properly be based on an overall appraisal of the character and personality of the candidate.

Mr. Sullivan submits that this is not a case like R. v Civil Service Appeal Board ex parte Cunningham [1992] I.C.R. 816(C.A.) 835 where the decision appears to be perverse on the face of it.

It is of fundamental importance that the Courts should exercise great caution when asked to question the decision making of a body to whom that function has been entrusted. The Courts will not interfere with the exercise of a power or discretion vested in another body , providing the power is not exercised capriciously or without any reasonable basis. There is no reason to believe that the Court of Aldermen , composed of distinguished representatives of the City, would act in that manner. They have to consider a very important issue, the confirmation or non-confirmation of a duly elected Alderman to the Court. In due time the Alderman, if confirmed, is likely to come forward for consideration as the Aldermanic Sheriff and then Lord Mayor of London. He acts as a Magistrate in the City. In those circumstances, in my judgment, the Aldermen are entitled, as Mr. Sullivan submitted, to take into account in their deliberations and when casting their vote, their perception of the personality, attributes and character of the prospective alderman.

I do not find the competing submissions as to whether it is for the Alderman Elect to demonstrate to the Court that he is a fit and proper person and duly qualified, or whether it is for the members of the Court to show that he is not a fit and proper person either important or helpful to the decision that this Court has to make. The fact that he has been elected by the electors in the Ward is a relevant consideration but is, in my judgment, in no way decisive. The task of the Court is to consider all the material before them, including the impression that he has made in the course of the question and answer session, all material facts, their assessment of his personality and character, and come to a conclusion as to whether he is or is not a suitable person to discharge the duties of an Alderman of the City of London. There is nothing in the material which has been provided to this Court which would lead me to the view that the decision to reject Mr. Matson was perverse and I would reject the application to quash the decision on Wednesbury grounds.

REASONS

In an affidavit sworn on the 5th February, 1995, Sir Lawrence Verney, the Recorder of London, says:

"It does not appear to be in dispute in these proceedings that from time immemorial it has been a custom of the City of London that the Court of Aldermen has had the right to examine and determine whether or not any person returned to the Court as Alderman Elect is a fit and proper person and qualified for the office of Alderman."

Then a little later he continues:

"The Court of Aldermen does not state and has never stated its reasons when rejecting an Alderman Elect. Support for this proposition is drawn from R. v Mayor and Aldermen of London [1832] 3.B and Ad 256."

In that case Lord Tenterden C.J. said at page 271:

"Then it is said, that, allowing the custom to be good, the defendants ought to shew the grounds of their disapproval; but the cases which have been cited are decisive against this objection, and so is all reason; for if a matter is left to the discretion of any individual or body of men, who are to decide according to their own conscience and judgment, it would be absurd to say that any other tribunal is to enquire into the grounds and reasons on which they have decided, and whether they have exercised their discretion properly or not."

There is no doubt that that was the law in 1832 but so far as judicial review of a decision making body is concerned things have moved on since that date. In coming to a conclusion as to whether reasons must be given for a decision, much will depend upon the nature of the decision itself and the process by which that decision was reached.

Once again, the courts must be slow to interfere with decisions arrived at by bodies to whom the decisions are entrusted. It is impossible to lay down rules or guidelines of general application. I start with the very well known passage from the speech of Lord Bridge in Lloyd v McMahon [1987] A.C.625 at page 702.

"Rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic or administrative of judicial, has to make a decision, which will affect the rights of individuals depends on the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates.

In particular, it is well established that when a statute has conferred on anybody the powers to make decisions affecting individuals , the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards and will ensure the attainment of fairness."

The concept of the "attainment of fairness" is one that has been followed through in the later cases.

In Cunningham (supra), Lord Donaldson said at page 824:

"The principles of public law will require that those affected by decisions are given the reasons for those decisions in some cases, but not in others. A classic example of the latter category is the decision not to appoint or not to promote an employee or officeholder or fail an examinee."

I should say in passing, in relation to Cunningham, that I agree entirely with the view of Latham J. that, on the facts of this case, unlike Cunningham, the mere granting of leave to move for judicial review would not of itself require the giving of reasons.

In Regina____v Secretary of State for the Home Department,ex parte Doody[19 94] 1.A.C.531, Lord Mustill said at page 561:

"I prefer to begin by looking at the question in the round and inquiring what requirements of fairness, germane to the present appeal, attach to the Home Secretary's fixing of the penal element. As a general background to this task, I find in the more recent cases on judicial review a perceptible trend towards an insistence on greater openness."

Then at page 564:

"I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied."

Then :

"I prefer simply to assert that within the inevitable constraints imposed by the statutory framework, the general shape of the administrative regime which Ministers have lawfully built around it, and the imperative of the public interest, the Secretary of State ought to implement the scheme as fairly as he can. The giving of reasons may be inconvenient, but I can see no ground at all why it should be against the public interest: Rather the reverse. That being so, I would ask simply : Is refusal to give reasons fair? I would answer without hesitation that it is not. "

Then on page 565;

"I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed."

The vital and central question posed by Lord Mustill in Doody was: " Is refusal to give reasons fair?" That question cannot stand alone, because it has to be asked in the context of the decision which is challenged.

The decision that had to be made by the Court of Aldermen was not akin to a decision made by members of a Club when considering an application for membership. Nor, in my view, is there any exact parallel between the consideration that the Court of Aldermen had to give to Mr. Matson and that given by employers to a job applicant. True it is that the Aldermen had to consider Mr. Matson's suitability and fitness to be an Alderman, and to be a Magistrate, and for consideration in due time as Sheriff and Lord Mayor. However he had been elected by the Ward. In those circumstances, he was a sole candidate. He was not a man who was being considered for a post in competition with others. The post in question is a very public one, and his rejection must have adverse consequences for him. There are , on the papers before us, no compelling reasons for rejecting him and, of course, neither we nor he know whether there were such reasons or what the reasons were for his rejection.

In Cunningham McCowan LJ. said at page 831 when deciding that reasons had to be given :

"I am influenced by the following factors. 1. There is no appeal from the Board's determination of the amount of compensation. 2. In making that determination the Board is carrying out a judicial function. 3. The Board is susceptible to judicial review. 4. The procedure provided for by the code, that is to say the provision of a recommendation without reasons, is insufficient to achieve justice. 5. There is no statute which requires the Court to tolerate that unfairness. 6. The giving of short reasons would not frustrate the apparent purpose of the Code. 7. It is not a case where the giving of reasons would be harmful to the public interest."

As Lord Lester submitted each of those considerations is present in the instant case. Leggatt LJ. said at page 832:

"There are not here, as in certain contexts there are, any valid grounds for adhering to the general rule that there is no duty to give reasons. On the contrary, there are here particular grounds for departing from the general rule. The Applicant has a legitimate grievance, because it looks as though his compensation is less than it should be and yet he has not been told the basis of the assessment...... The cardinal principles of natural justice are that no one shall be a judge in his own cause and that everyone is entitled to a hearing. But the subject matter of the decision or the circumstances of the adjudication may necessitate more than that."

That statement highlights a vital central issue in this case, namely, in addition to the concept of fairness requiring the giving of reasons whether the subject matter of the decision or the circumstances of the adjudication also indicate a necessity for the giving of reasons.

Mr. Sullivan was at pains to emphasise that the decision to be made by the Court of Aldermen is an important one. They are resolving the question of the fitness or unfitness of the Alderman Elect to hold office. He has been elected by the Ward. The pronouncement of approval or disapproval is made in public. A finding of unfitness to serve clearly affects the reputation of the Alderman elect. It may also be a matter of importance and interest to the electors themselves.. Amongst other matters, if Mr. Matson should choose to stand a second time, the electors are likely to want to know the reasons for his rejection by the Court of Aldermen.

In my judgment, apart from the antiquity of the custom, I can find no good reason for a refusal to give the Alderman Elect reasons for the decision that he is not a suitable person to discharge the duties of an Alderman of the City of London.

Mr. Sullivan puts forward as an objection to the giving of reasons, the difficulty of articulating them. He says that the reasons may be based on factual matters or an assessment of the character and personality of the Alderman Elect, or a combination of the two. When objections are based on character or personality, Mr. Sullivan submits that it may be difficult to articulate the general view. It may be based on value judgments. There are 24 Aldermen engaged in the process. They may have a variety of views, and there may be difficulty in expressing the view of the Aldermen as a body. This is a plea which is often heard from bodies when they are asked initially to give reasons for their decision making. For example, when the Parole Board was first required to give reasons for their decisions, it was thought by the Members of the Board that the giving of reasons would present problems such as those put forward by Mr. Sullivan. On the contrary , the Board found that the requirement to give reasons for a decision, most particularly a decision to refuse parole, concentrated the minds on the proper issues involved in the decision making and imposed a very desirable discipline . The giving of reasons ensured that the decisions were based on proper objective grounds. As Sedley J. said in R. v Higher Education Funding Council [1994] 1 W.L.R. 242 at page 256:

"The giving of reasons may amongst 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." Sedley J. then referred to 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 articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge."

Mr.Sullivan submitted that to require the Aldermen to give reasons for their decision would require them to articulate "inexpressible value judgments." I do not accept that argument. I do not believe that it would be unduly difficult or arduous for the Aldermen to give a collective reason for their decision. True it is , that individual members may have considered differing factors. That is likely to apply to any collective decision. There is no difficulty in articulating a factual basis for a decision. If I am right in my conclusion that the Aldermen are entitled to take into account their assessment of the Alderman Elect's character and personality then, equally, I do not believe that any adverse assessment involves the articulation of inexpressible value judgments. Assessments of that nature are made day in day out in every walk of life. For those reasons I am firmly of the view that the Court of Aldermen are under a duty to give reasons for the decision that Mr. Matson was not a suitable person to

discharge the duties of an Alderman.

Procedural Fairness

I propose to deal with this ground of challenge shortly, for the simple reason that this Court does not know the grounds upon which the decision of the Aldermen was based.

Certain factual matters arose at the hearing on the 6th December, 1994. Amongst them were Mr.Matson's financial standing, his work in the City, his charitable work, and the suggestion that he had encouraged a third person to stand as a member of the Common Council contrary to City tradition.

I accept Mr. Sullivan's submission that in relation to questions of character and personality, they must be very much a matter of judgement formed by the Aldermen on the material that they have,, including the question and answer session.

Factual matters, however, fall into a different category. Reading the short account of the interview, it may be that the suggestion that Mr. Matson had canvassed a third person to stand, which was denied by him, played a real part in the decision which was made to reject him. If that be so, then , in my judgment, fairness would demand that he be given notice of that allegation and a proper opportunity to deal with it. If it was an issue of importance then the overwhelming probability is that he would have wished to ask for an adjournment of the hearing so that he could call as a witness the person concerned and possibly others. The essential ingredient is that the Alderman Elect must be given a fair hearing. The question of canvassing for election as a Common Councilman having been raised at the hearing, Mr. Matson may well have left the hearing of the 6th December feeling strongly that he had not been given a fair hearing. However, as I have said, in the absence of reasons, it is impossible to make any judgment about this.

I have read in draft the judgment of Neill L.J. I agree with it as with the order proposed by him.

LORD JUSTICE WAITE:

I agree with both the judgments that have been delivered.