Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Journals
You are here: BAILII >> Databases >> United Kingdom Journals >> Aldermen, Reasons and Judicial Review
URL: http://www.bailii.org/uk/other/journals/WebJCLI/1996/issue1/thomas1.html
Cite as: Aldermen, Reasons and Judicial Review
[New search] [Printable RTF version] [Help]
Web JCLI | [1996] 1 Web JCLI | Download
Aldermen, Reasons and Judicial Review
Robert Thomas LLB (Wales)
Research postgraduate.Department of Law,
University of Nottingham.
< llxmrt.ccc.cccn4.nottingham.ac.uk>
Copyright © 1996 Robert Thomas.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Summary
At present there is no general duty upon public authorities to provide reasons for their decisions. The courts have recently increased the situations in which reasons must be given. R v The Mayor and Commonalty and Citizens of the City of London ex parte Matson (transcript, 18th August 1995) is the latest in a line of cases where fairness has been employed to require reasons to be given. However, there is an inherent contradiction within the reasoning employed in such cases, which, if explicated, demonstrates the need for a general duty to give reasons. Furthermore, the means with which to impose such a duty exists in well-established authority.
Contents
- Introduction
- The Facts
- Fairness
- The Court of Appeal’s Decision
- Judicial Review Requires Reasons
- Rationality
- Conclusion
- The Facts
Introduction
The frequency with which the issue of giving reasons for administrative decisions arises in applications for judicial review is an indication of the importance of this topic. The argument presented here is that the courts will only adequately deal with the issue of reason-giving when they openly acknowledge the intimacy of reasons with judicial review. Whilst some judges have expressed favourable comments on the desirability of public authorities giving reasons for their decisions, a principled response in the case law has yet to materialise.
The Facts
The Court of Appeal dealt with the issue of reasons recently in R v The Mayor and Commonalty and Citizens of the City of London ex parte Matson. Mr. Matson stood for election to the office of alderman for the Ward of Bread Street in the City of London. He had been elected by 54 votes to 15. According to ancient custom, the alderman elect is subject to the approval of the Court of Aldermen. The purpose of this is 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 of London which in due time he or she may be called upon to fill", according to a 1974 statement by the Town Clerk relating to the Court of Aldermen. The Court of Aldermen met to consider Mr. Matson’s suitability for the office. He was questioned by the Court for some 40 minutes about his career and work in the city. When asked whether he had encouraged another person to stand as a Common Councilman, against Alderman custom, Mr. Matson replied in the negative. According to Swinton-Thomas LJ, it appeared that "the tone of the questioning was somewhat hostile". By a secret ballot, the Court of Aldermen refused the admission of Mr. Matson by 17 votes to 1, with 1 abstention. The Lord Mayor duly informed him of the decision without explaining the reasons of the Court of Aldermen for coming to that conclusion. Mr. Matson applied for judicial review. At first instance, Latham J refused the application. The applicant appealed.
Fairness
On behalf of Mr. Matson, before the Court of Appeal, it was argued that fairness required reasons to be given by the Court of Aldermen. The term "fairness" has been increasingly referred to by judges since the revival of the natural justice in Ridge v Baldwin [1964] AC 40, and the use of the term in the judgment of Lord Parker CJ in Re HK (an infant) [1967] 2 QB 617. The term "fairness" is thought to be more apt when applied to administrative bodies, and the term "natural justice" to inferior courts and tribunals, however, no rigid classification can be made. Its application is dependant upon the context in which the challenged decision was made. Lord Bridge in Lloyd v McMahon [1987] AC 625, 702H, stated that "what the requirements of fairness demand when any body, domestic or administrative or 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." The courts will imply procedural standards into a statutory framework to ensure the attainment of fairness. The requirements of fairness may in appropriate circumstances justify the imposition of a duty to give reasons upon a decision maker.
The accepted view is that there is no general duty to give reasons: R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, 564E, per Lord Mustill. However, there are situations in which fairness will require reasons to be given. Sedley J, in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651, marked out the pathways through which fairness will justify exceptions to the general rule. First, there is the type of case where "the nature of the process itself calls in fairness for reasons to be given" [1994] 1 All ER 651, 667c. Decisions concerning personal liberty, such as in Doody, fall into this category. Secondly, there may be "something peculiar to the decision which in fairness calls for reasons" [1994] 1 All ER 651, 667C. Where the decision appears aberrant, as in the view of the majority of the Court of Appeal in R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310, fairness will require reasons to be disclosed to enable the recipient to know whether the aberration is real or merely apparent.
The Court of Appeal’s Decision
Neill LJ based his judgment upon fairness and natural justice. Whilst accepting that the law does not at present recognised the generality of a reason giving duty, Neill LJ went on to examine where such a duty could be implied. The decision of the Court of Aldermen could not be said to be aberrant. However, fairness would not allow the decision to go unexplained. The following considerations lead to the conclusion that fairness required reasons to be given in this situation. Mr. Matson had stood for public office and been elected by a substantial majority. The Court of Aldermen was a court of record. Mr. Matson had no means of knowing whether his denial of encouraging another person to become a Common Councilman had been accepted or rejected by the Court of Aldermen. Neither did he know whether he should stand for re-election. According to Neill LJ, his rejection was bound "to cast a shadow on his reputation." Finally, the giving of reasons would not frustrate or impede the exercise by the Court of Aldermen of its customary powers. In reaching this conclusion, Neill LJ stated that it was not necessary to form a final view on the argument that for the purposes of judicial review the reviewing court would require to be provided the reasons for the challenged decision.
Swinton-Thomas LJ also based his judgment upon fairness, adopting the question posed by Lord Mustill in Doody [1994] 1 AC 531, 564H, to the context of the challenged decision: "Is refusal to give reasons fair?" The office of alderman was a public one and the Mr. Matson’s rejection would have adverse consequences for him. There was no parallel with a club rejecting an application for membership, nor with an employer rejecting a job applicant. In conclusion, Swinton-Thomas LJ thought there to be no good reason for a refusal of the Court of Aldermen to give reasons. Waite LJ agreed with both Neill and Swinton- Thomas LJJ. The decision was quashed and remitted back to the Court of Aldermen with a direction to reconsider the matter and reach a reasoned decision.
The decision, not the failure to give reasons, of the Court of Aldermen was also challenged upon the grounds of procedural unfairness and Wednesbury unreasonableness (Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). In the consideration of these submissions there are, in the two reasoned judgments, interesting comments which demonstrate the real justification for a general duty to give reasons. The argument that the decision was procedurally unfair concentrated upon the allegation that Mr. Matson had encouraged another to stand as a common councilman. Both Neill and Swinton-Thomas LJJ stated that, in the absence of reasons for the decision, it was impossible to make a judgment as to whether any importance was attached to this allegation. In relation to whether the decision was Wednesbury unreasonable, Swinton-Thomas LJ found that there was nothing in the material before him which could lead to the conclusion that the decision was unreasonable. What is implicit here needs to be made explicit. Due to the lack of reasons, it was impossible for Swinton-Thomas LJ to decide whether the decision took account of irrelevant considerations, or excluded relevant considerations, whether it was for an improper purpose, or in bad faith, or was so unreasonable that no reasonable body could have arrived at it.
Judicial Review Requires Reasons
Without the reasons being given for a decision, how then is judicial review to be an effective mechanism? The answer is, as demonstrated by the judgments of the Court of Appeal, that it cannot be effective. If reasons are not given then there is a de facto denial of judicial review. Swinton-Thomas LJ summed this up: "...in the absence of reasons, it is impossible to make any judgement about this...." There is also a House of Lords dictum to support this. Lord Mustill thought "it important that there shall 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 be disclosed"( Doody [1994] 1 AC 531, 565G-H).
Administrators can therefore easily make their decisions immune from judicial review, unless they are under a specific duty to give reasons. Such a conclusion is clearly contrary to the requirements of the rule of law. The rule of law demands that all public decisions have lawful authority. The courts, under the separation of powers, are the only forum to decide upon issues of law. If to refuse to give reasons effectively means that the supervisory jurisdiction of the courts is ousted, then the only conclusion must be that the very nature of judicial review requires reason giving, for any other conclusion would be contrary to the rule of law. Whilst decisions holding that the royal prerogative is in principle justiciable, such as R v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349, are to be welcomed, it seems perverse to allow potentially more administrative decisions taken under the far greater number of statutory and common law powers to be excluded from judicial review by the decision-maker simply refusing to give reasons. Indeed to do so is to allow capricious, illegal and irrational decisions to be immune from review.
Once it is accepted that reasons must generally be given for administrative decisions, it is clear that fairness is not capable of achieving this. While the courts have developed the requirements of fairness, its limits are evident. It will not require reasons to be given where the decision does not come within the classes of case set down in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651. So in R v Bristol County Council ex parte Bailey (1995) 27 HLR 307, fairness did not require reasons for a refusal of a renovation grant. Neither can it impose a general duty to give reasons for every aspect of the homeless legislation, Part III of the Housing Act 1985: R v Kensington and Chelsea Royal LBC, ex parte Grillo, The Times, 13 May 1995.
The refusal by Neill LJ to reach a conclusion on the argument that no review of an administrative decision is possible unless the reasons for that decision are made known cannot conceal the inherent contradiction within the Court of Appeal’s decision. The rule of law requires that public decisions be susceptible to judicial review, for this end reasons must generally be given if judicial review is to be effective. Fairness cannot form the basis of an obligation for reasons to be disclosed generally. It is therefore wholly inadequate to ensure the efficacy of the rule of law. The inexorable logic within the decision leads to the opposite conclusion reached by the court: a duty to give reasons must be generally enforced and that fairness is incapable of achieving this. With the present position having proved to be untenable, what can form the basis for a general duty to give reasons?
Rationality
For an administrative decision to be lawful it must pass the tests developed by the courts. Lord Diplock conveniently summarised these tests in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410D-E. They are illegality, irrationality and procedural impropriety. An irrational decision was defined as one "which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (at p 410G). A rational decision will therefore always have reasons for it. If the decision defies logic or accepted moral standards, it will not be one for which reasons exist and hence may be challenged under this head. To explain this better, imagine a decision which prima facie appears to be irrational, either it defies logic or offends accepted moral values. Without knowing the reasons for that decision it may be that the reviewing court will conclude that it is irrational, or following Swinton-Thomas LJ simply refuse to review the decision. However, if reasons are given then they explain the apparent defiance of logic or of accepted moral values. The decision, irrational upon its face, is explained and justified by its reasons. A rational decision will therefore be a reasoned decision. This approach has been adopted by the courts in South Africa, (see Boulle 1987, pp 116-119), and has also been advocated by Sir John Laws (Laws 1992).
It is well accepted that a failure to give reasons can be subject to judicial review on the grounds of procedural impropriety, as in Doody [1994] 1 AC 531, and upon illegality, for example, where a public body is under a statutory duty to give reasons, such as the duty imposed by the Tribunals and Inquiries Act 1992 s 10(1), and fails to fulfil such an obligation. There is therefore no reason why a failure to give reasons is not itself justiciable on the substantive ground of rationality. If a rational decision is one for which reasons exist, what puts the decision-maker under an obligation to disclose his reasoning? As Sir John Laws explains (Laws 1992, para 12):
"If legal certainty and the avoidance of capricious power require reasons to be given, and nothing save perhaps a modicum of administrative inconvenience and cost points the other way, a decision to refuse reasons will be an irrational one; and so will itself be in breach of duty."
As it would be generally unjustifiable to refuse reasons, a general duty to give reasons exists. Such a general duty would not, however, be absolute. For example, in national security cases it would be irrational to disclose the reasons for the decision. This duty would require reasons to be given for both positive and negative decisions. All of the decided cases concern instances where reasons have been refused for a decision with adverse consequences for the applicant. A duty based upon rationality would necessitate reasons for decisions whether the outcome of the decision was adverse or in the applicant’s favour. A public decision, by its very nature, will affect others than the direct recipient, ie a decision in favour of X may also be a decision against Y.
Furthermore, there exists dicta to support such an approach. In R v Ministry of Defence, ex parte Smith [1995] 4 All ER 427, 448d, 452d, the Divisional Court, upheld by the Court of Appeal, rejected a challenge to the policy of the Ministry which prohibited homosexuals from the armed forces on the basis of irrationality because reasons had been given. Whether the irrationality argument would have been rejected had reasons not been disclosed from is far from evident.
Conclusion
The above argument supports the existence of a general duty to furnish reasons. Other arguments have been made. Administrative self-regulation and good public relations between administrators and the governed are both encouraged by the provision of reasons. These and other arguments, whilst persuasive, cannot found a duty to give reasons. They are consequences of that duty. Also arguments based upon the instrumental and non-instrumental objectives of process rights (see Craig 1994, p 311) are not directly on point as the basis of this general duty to give reasons is on substance, not form.
Whilst Wednesbury unreasonableness is the only ground of substantive review of administrative action, other principles of substantive review, if adopted, would also require reasons to be given in order that such principles be capable of being applied. This can be seen in the tentative movement towards a principle of consistency. In R v LB of Tower Hamlets ex parte Mohab Ali (1993) 25 HLR 218, 228, Rose LJ held that inconsistent application of certain criteria between people in the same position would be unlawful if not justified. Also the principle of proportionality, if adopted, would also require the provision of reasons to enable the court to determine whether the balance of interests was proportionate.
The efficacy of judicial review as a mechanism of controlling the legality of administrative action is dependant upon the establishment of a general obligation of providing reasons. Once this is accepted then the way is clear for the establishment of such a duty on the above lines. It is unfortunate then that the courts persist with deciding cases on an essentially ad hoc approach based upon fairness, as the Court of Appeal has done so in the present case.
Bibliography
Boulle, L (1987) "Elements in the Crucible: Developing Public Law for the Future" 104 South African Law Journal 104.
Craig, P P (1994) Administrative Law, 3rd ed (London: Sweet & Maxwell).
Laws, Sir John (1992) "A Duty To Give Reasons", an unpublished speech given at 2 Hare Court, London, 25th September.