BELL, Joana - Reason Giving

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Modern Law Review

DOI: 10.1111/1468-2230.12457
THE
MODERN LAW REVIEW
Volume 82 November 2019 No. 6
Reason-Giving in Administrative Law: Where are We

and Why have the Courts not Embraced the ‘General
Common Law Duty to Give Reasons’?
Joanna Bell∗
This article has two aims. Firstly, it explores a body of modern challenges to administrative
reason-giving, decided in the five-year period 2014–2018. Three main themes are drawn out:
outright failures to give reasons now seem to be a rare occurrence; a number of considerations
help to ensure that at least an outline of reasons is usually offered by decision-makers; common
law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the
question of why the courts have not embraced a ‘general common law duty to give reasons.’
Four factors are discussed: doubts that introducing a general duty would add something of
substance to the law; difficulties inherent in developing a general formulation of the reasons
required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the
part of judges than academics to generality as a central feature of administrative law doctrine.
This article has two main aims. Its first aim is to improve understanding of
what legal challenges to administrative reason-giving have ‘looked like’ in
recent years. To that end, the first part of the article offers an analysis of 119
reasons challenges heard across the five-year period between 2014 and 2018.
Three important themes characterise this sample. Firstly, while administrative
law scholarship has tended to focus on a handful of classic cases in which
decision-makers had outright refused to offer reasons for their decisions, such
cases were rare across the sample; the vast bulk of challenges concerned the
adequacy of what had been offered rather than an allegation of a failure to give
reasons per se. Secondly and relatedly, there were a series of factors in play in the
case law which helped to ensure that administrative decision-makers had usually
offered at least an outline of their reasoning processes. These factors include
the prevalence of specific statutory duties of reason-giving and the increased
role that statements of generalised policy are coming to play in administration.
Thirdly, while scholarship has tended to regard common law fairness as the main
∗
Lecturer and Fellow in Law, St John’s College and Affiliated Lecturer, Cambridge Law Faculty. My
sincere thanks to Prof Liz Fisher, Alistair Mills and Prof Alison Young, as well as to the anonymous
reviewers, for extremely helpful comments on earlier drafts. Any errors or omissions are my own.

C 2019 The Author. The Modern Law Review
C 2019 The Modern Law Review Limited. (2019) 82(6) MLR 983–1008
Reason-Giving in Administrative Law
legal standard drawn on by courts in reasons challenges, this notion played a

limited role in legal reasoning across the case sample analysed. Other common
law values – including consistency and open justice – played at least an equally
important role and ultimately the particular legislative and policy framework
in the background of the case was the main determiner of lawfulness in the
majority of cases.
The second aim of the article is to build on this analysis in order to shed
light on an ongoing, but largely unaddressed, puzzle. The puzzle, put simply,
is this: on the one hand, the literature on English and Welsh administrative
law is replete with arguments1 encouraging the courts to introduce a general
common law duty to give reasons. The arguments in favour of a general duty
of reason-giving are well-rehearsed. Requiring administrative decision-makers
to explain the basis of their decisions has many virtues:2 supplying reasons for
a decision can, among other things, communicate respect,3 serve to focus the
mind of the initial decision-maker4 and assist the courts in performing their
review and appeal functions by bringing to light legal errors.5 Commentators
have also explained why considerations weighing against reason-giving supply
arguments only for relieving decision-makers of reason-giving obligations in
particular circumstances and not on a generalised basis.6 While in some con-
texts, for instance, reason-giving duties might place public administration under
an ‘intolerable’ administrative burden,7 commentators have explained why, in
many areas, having to disclose the reason for a decision will not unduly hamper
administration.8
On the other hand however, the courts have long and consistently rejected9
the idea that there is a general duty to give reasons. In a recent Supreme Court
case, for instance, Lord Carnwath repeated the oft-cited mantra that ‘public
authorities are under no general common law duty to give reasons for their
1 See for instance JUSTICE-All Souls Committee, Administrative Justice: Some Necessary Reforms
(Oxford: OUP, 1988); P. Craig, ‘The Common Law, Reasons and Administrative Justice’ (1994)
53 CLJ 282; M. Fordham, ‘Reasons: The Third Dimension’ [1998] JR 158; M. Elliott, ‘Has
the Common Law Duty to Give Reasons Come of Age Yet?’ [2011] PL 56.
2 For useful discussion, see further, G. Richardson, ‘The Duty to Give Reasons: Potential and
Practice’ [1986] PL 437; J. Hepburn, ‘The Duty to Give Reasons for Administrative Decisions
in International Law’ (2012) 61 ICLQ 641; J. Mashaw, ‘Public Reason and Administrative
Legitimacy’ in J. Bell, M. Elliott, J. Varuhas and P. Murray (eds), Public Law Adjudication in
Common Law Systems: Process and Substance (Oxford: Hart, 2016).
3 See, especially, T. Allan, ‘Requiring Reasons for Reasons of Fairness and Reasonableness’ (1994)
53 CLJ 207; T. Allan ‘Procedural Fairness and the Duty of Respect’ (1998) 18 OJLS 497; D.
Dyzenhaus, ‘Dignity in Administrative Law: Judicial Deference in a Culture of Justification’
(2012) 17 Review of Constitutional Studies 87.
4 Fordham, n 1 above.
5 A. Perry and F. Ahmed, ‘Expertise and Giving Reasons’ [2012] PL 221.
6 See, especially Elliott, n 1 above, 64-65.
7 R (Save Britain’s Heritage) v SSCLG [2018] EWCA Civ 2137 at [9] (Save Britain’s Heritage 2018).
8 See, especially, Elliott, n 1 above, 64-65; M. Taggart, ‘Osmond in the High Court of Australia:
Opportunity Lost’ in M. Taggart (ed), Judicial Review of Administrative Action in the 1980s (Oxford:
OUP, 1986).
9 The classic examples are R v Secretary of State for the Home Department, ex parte Doody [1994] 1
AC 531 (HL) (Doody), 564 and R v Higher Education Funding Council, ex parte Institute of Dental
Surgery [1994] 1 WLR 242 (DC), 263 (Dental Surgery). More recent examples include Oakley
v South Cambridgeshire DC [2017] EWCA Civ 71, [2017] 1 WLR 3765 (Oakley). For useful
discussion, see, J. Parker, ‘Reasons for the Grant of Planning Permission’ (2017) 6 JPL 587.

C 2019 The Modern Law Review Limited.
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Joanna Bell
decisions.’10 The question of why, despite repeated prompts from academics11

and counsel,12 the courts continue to resist the notion of a general common
law duty to give reasons has gone curiously unaddressed in the literature. The
assumption is perhaps that the courts’ reticence is simply grounded in a failure
to fully appreciate the strength of the arguments in favour of requiring reasons.
Such an explanation, however, is not particularly convincing. Offering reasons,
after all, is a day-to-day reality of judicial decision-making.13 If any institution
can be assumed to understand the advantages of a decision-maker offering
reasons for their conclusions it is surely the courts.
The second part of the article seeks to fill this important gap in the literature.
A fuller understanding of the sorts of reasons challenges the courts have been
faced with in recent years brings to light a series of considerations which can
help to explain why the courts have not found the case for a general duty to
be especially compelling. This part draws out and explicates four factors in
particular. Introduced briefly they are: (a) doubts that introducing a general
duty would add anything of practical utility to the current law, (b) difficulties
inherent in developing a general formulation of the kind of reasons required,
(c) a belief that the ‘hortatory’ function a general duty would serve is being
better performed by broader developments in the administrative sphere and (d)
weaker adherence on the part of modern judges than many academics to an
understanding of administrative law’s nature which puts generality at its core.
The final part of the article will conclude by offering some reflections on the
different levels at which its arguments are important. The discussion is valuable
in so far as it furthers understanding of the nature of modern litigation on
administrative reason-giving and because it sheds light on the under-explored
question of why the judges have not embraced the general common law duty
to give reasons. At a more general level, furthermore, the article highlights the
prevalence of certain tendencies in administrative law scholarship and the way
in which they can lead to disparities between commentary and case law. In
the context of reason-giving, for instance, preoccupation with a small subset
of appellate-level decisions and insufficient engagement with the statutory and
policy dimensions of reasons challenges have meant that scholars have tended
to focus on issues different to those being faced by the courts. Reflective
awareness of these tendencies is therefore of the utmost importance in ensuring
that administrative law scholarship continues to be practically useful.
WHERE ARE WE WITH REASON-GIVING?: AN ANALYSIS OF 119

RECENT CASES
As explained in the introduction, this article has two main aims. Its first is to
improve understanding of what challenges to administrative reason-giving have
10 Dover DC v Campaign to Protect Rural England (Kent) [2017] UKSC 79, [2018] 1 WLR 108 at
[51] (Dover DC).
11 See, especially, Craig, n 1 above; Elliott, n 1 above.
12 See, especially, Fordham, n 1 above and R (Hasan) v Secretary of State for Trade and Industry [2008]
EWCA Civ 1312, Official Transcript at [19].
13 For useful discussion see B. Harris, ‘The Continuing Struggle with the Nuanced Obligation on
Judges to Provide Reasons for their Decisions’ (2016) 132 LQR 216.

(2019) 82(6) MLR 983–1008 985

‘looked like’ in recent years. To that end, this part offers an analysis of 119
challenges heard by the courts across the five-year period from 2014 to 2018.
The article will shortly draw out from that sample three important themes.
Before turning to these themes, however, a brief overview of the case sample
analysed should be offered.
The 119 cases considered here were selected by use of a key-word search
focused on ‘reasons.’14 The search originally yielded 631 results across the time
period. These results were narrowed down in two ways. Firstly, because the
focus is on English and Welsh administrative law, any cases decided by courts
or tribunals other than the English and Welsh Administrative Court, the Court
of Appeal (Civil Division) or the UK Supreme Court were discarded.15 This
resulted in dispensing with many cases which were, for instance, decided in
European Courts or by English and Welsh courts dealing with criminal, family
or employment matters. Secondly, the analysis focused only on cases in which
one of the legal grounds was framed as a challenge to an alleged failure to give
any, or legally adequate, reasons. Some of the cases did not meet this criterion
and were therefore discarded.
It cannot be claimed that every challenge to administrative reason-giving
heard across 2014–2018 has been incorporated. The hope, however, is that
a significant enough sample of case law has been considered to offer helpful
insights into the kinds of legal challenge with which the courts have been
dealing in recent years. Relatedly, the decision to focus on a five-year period
was taken in order to strike a balance between ensuring that the case law sample
considered was manageable within the context of a single article and at the same
time sufficiently substantial to be capable of generating meaningful insight.
The case law which formed the sample concerned many different branches of
administration including airport security,16 criminal17 and other investigation,18
deportation19 and immigration detention,20 discipline and fitness to prac-
tice,21 housing,22 human trafficking protection,23 licencing,24 mental health
14 The search was done through Westlaw and was last completed on 28 March 2019.
15 Note, one UKSC case concerned a challenge originating in the Scottish courts: Healthcare at
Home Ltd v Common Services Agency [2014] UKSC 49, [2014] 4 All ER 210 (Healthcare at Home).
16 See, for example, Karia v Secretary of State for the Home Department [2018] EWCA Civ 1673
(Karia 2018).
17 See, for example, R (Wyatt) v Thames Valley Police [2018] EWHC 2489 (Admin).
18 See, for example, R (Tower Hamlets LBC) v SSCLG [2014] EWHC 4363 (Admin) (Tower
Hamlets).
19 See, for instance, R (H) v Secretary of State for the Home Department [2015] EWHC 377 (Admin).
20 See, for instance, R (Muasa) v Secretary of State for the Home Department [2017] 7 WLUK 691
(Muasa); R (Shoaib) v Secretary of State for the Home Department [2018] EWHC 590 (Admin).
21 See, for instance, Mills v General Dental Council [2014] EWHC 89 (Admin); R (Gopalakrishnan)
v General Medical Council [2016] EWHC 1247 (Admin).
22 See, for instance, Farah v Hillingdon LBC [2014] EWCA Civ 359, [2014] HLR 24; R (Halvai)
v Hammersmith and Fulham LBC [2017] EWHC 802 (Admin); Alibkhiet v Brent LBC [2018]
EWCA Civ 2742.
23 See, for instance, R (M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin);
AB v Secretary of State for the Home Department [2015] EWHC 1490 (Admin) (AB).
24 See, for instance, Reigate and Banstead DC v Pawlowski [2017] EWHC 1764 (Admin) (Pawlowski).

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Joanna Bell
detention,25 ombudsmen,26 parole/transfer,27 passports,28 police complaints,29

procurement,30 refugees,31 roads,32 school exclusion,33 tax,34 tribunals,35 uni-
versities,36 village greens37 and warrants.38 By far the most prevalent adminis-
trative subject-matter within the sample considered39 however was planning.40
53 of the cases analysed concerned challenges to either local planning author-
ity decisions41 or planning appeals decided by the Secretary of State42 and a
further eight to compulsory purchase orders43 or neighbourhood development
plans.44 In total, therefore, 51.2 per cent of the cases considered were connected
with planning administration. One reason for the high proportion of planning
cases is that, as will be emphasised shortly, policies and guidance often form
the basis of a challenge to the adequacy of an administrative decision-maker’s
reasoning and planning administration is characterised by a, perhaps especially,
dense body of policy and guidance.45 Another is that 2013 saw an important
reform to reason-giving in the planning context. In this year a regulatory duty
25 See, for instance, R (South Staffordshire and Shropshire Healthcare NHS Foundation Trust) v St
George’s Hospital Managers [2016] EWHC 1196 (Admin).
26 See, for instance, R (Aviva) Ltd v Financial Ombudsman Service [2017] EWHC 353 (Admin).
27 See, for instance, R (Harris) v Secretary of State for Justice [2014] EWHC 3752 (Admin).
28 See, for instance, Begum v Secretary of State for the Home Department [2014] EWHC 2969 (Admin).
29 See, for instance, R (Moore) v Chief Constable of Merseyside [2015] EWHC 1430 (Admin) (Moore).
30 See, for instance, Healthcare at Home Ltd (n 15).
31 See, for instance, R (Help Refugees) v Secretary of State for the Home Department [2018] EWCA
2098.
32 See, for instance, Trail Riders Fellowship v Hampshire CC [2018] EWHC 3390 (Admin).
33 See, for instance, R (LB) v Independent Appeal Panel of Newport CC [2017] EWHC 2216 (Admin).
34 See, for instance, Glencore Energy UK Ltd v Revenue and Customs Commissioners [2017] EWHC
1476 (Admin) (Glencore).
35 See, for instance, Gainford Care Homes Ltd v Tipple [2016] EWCA Civ 382.
36 See, for instance, R (Hassan) v Coventry University [2016] EWHC 654 (Admin).
37 See, for instance, R (Cotham School) v Bristol CC [2018] EWHC 1022 (Admin).
38 See, for instance, R (Newcastle United FC) v Revenue and Customs Commissioners [2017] EWHC
2402 (Admin) (Newcastle United FC).
39 The second most prevalent subject matter (15 cases) was fitness of practice and discipline.
40 In addition to many such cases cited throughout the article, see further, Daventry DC v Secretary
of State for Communities and Local Government [2016] EWHC 1555 (Admin); Keith Langmead v
Secretary of State for Communities and Local Government [2017] EWHC 788 (Admin), [2017] JEPL
1032; R (Mars Jones) v Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC
1111 (Admin); South Oxfordshire DC v Secretary of State for Communities and Local Government
[2017] EWHC 3554 (Admin).
41 See, for instance, R (Historic Buildings and Monuments Commission) v Milton Keynes Council [2018]
EWHC 2007 (Admin).
42 See, for instance, Wind Prospect Developments Limited v Secretary of State for Communities and Local
Government [2014] EWHC 4041 (Admin).
43 R (FCC Environment UK Ltd) v Secretary of State for Energy and Climate Change [2014] EWHC
947 (Admin) (FCC Environment); R (FCC Environment UK Ltd) v Secretary of State for Energy
and Climate Change [2015] EWCA Civ 55; Horada v Secretary of State for Communities and Local
Government [2016] EWCA Civ 169, [2016] PTSR 1271 (Horada); Mapeley Beta Acquisition Co
Ltd v Secretary of State for Communities and Local Government [2016] EWHC 2997 (Admin).
44 Abbotkerswell Parish Council v Teignbridge DC [2014] EWHC 4166 (Admin); R (Stonegate Homes
Ltd) v Horsham DC [2016] EWHC 2512 (Admin) (Stonegate Homes); R (Bewley Homes Plc) v
Waverley BC [2017] EWHC 1776 (Admin) (Bewley); R (Legard) v Royal Borough of Kensington
and Chelsea [2018] EWHC 32 (Admin) (Legard).
45 See, especially, Department for Communities and Local Government, ‘National Planning Policy
Framework’ (March 2012) (NPPF). See further G. Weeks and L. Pearson, ‘Planning and Soft
Law’ (2018) 24 Australian Journal of Administrative Law 252; A. Mills, Interpreting the NPPF (Bath:
Bath Publishing, 2018).

(2019) 82(6) MLR 983–1008 987

on the part of local authorities to produce statements of reasons for grants46 of

planning permission47 was removed.48 The change has generated a significant
body of case law.49
Unsurprisingly, of the cases considered, the majority (96 cases; 80.7 per
cent of the sample) were decided in the Administrative Court. Of the remain-
der, 20 cases (16.8 per cent) were decided in the Court of Appeal and three
(2.5 per cent) in the Supreme Court. As could be expected, some of the cases
considered recurred across the courts – 11 pieces of litigation in total. If only
the determinative cases are focused on, and any lower court cases subsequently
appealed discarded, 107 cases remain to be considered. Of these cases, the most
common outcome was that the decision-maker’s approach to reason-giving was
found to be lawful. Indeed, this was the outcome of 72 of the 107 cases; 67.2
per cent of the sample considered. The contrary conclusion, that the reasons
challenge ought to be upheld, was reached in 33 cases, giving applicants a 30.8
per cent success rate across the sample.50
Theme 1: The adequacy of reasons is the focus of most challenges
Having introduced the case law analysed, three important themes can now
be drawn out from it. In introducing the first, it is helpful to begin with a
preliminary point. The commentary on reason-giving in administrative law,
including especially the portion of the literature which advocates for a general
duty,51 has tended to focus on a particular category of cases: those in which
an administrative decision-maker has wholesale refused to offer reasons for a
decision.52 A body of well-known case law, decided in the 1990s and earlier, and
which commonly forms the starting-point for thinking about reason-giving, is
characterised by a refusal to offer reasons in this way. In the most well-known
reasons challenge53 – Doody54 – for instance, the Home Secretary had taken
46 Local planning authorities remain under a statutory duty to give reasons for decisions to refuse
planning permission. The latest iteration of this duty can be found in Town and Country Planning
(Development Management Procedure) (England) Order 2015 (SI 2015/595), art 35(1). This
duty was initially introduced by Town and Country Planning (General Development Procedure)
Order 1995 (SI 1995/419), art 22.
47 Originally introduced by Town and Country Planning (General Development Procedure)
(England) (Amendment) Order 2003 (SI 2003/2047), art 5.
48 Town and Country Planning (Development Management Procedure) (England) (Amendment)
Order 2013 (SI 2013/1238), a 7.
49 See especially Oakley n 9 above; Dover DC n 10 above. See further R (Milton Estates Co) v Ryedale
DC [2015] EWHC 1948 (Admin) (Milton Estates Co); R (Housiaux) v Staffordshire Moorlands DC
[2017] EWHC 2157 (Admin) (Housiaux); R (Tate) v Northumberland CC [2017] EWHC 664
(Admin) (Tate); Steer v Shepway [2018] EWHC 238 (Admin) (Steer); R (Tate) v Northumberland
CC [2018] EWCA Civ 1519.
50 Note that in two instances the court neglected to offer a final opinion, preferring to decide the
case on other grounds: R (Potter) v Amber Valley BC [2014] EWHC 888 (Admin) (Potter); AB n
23 above.
51 See, especially, JUSTICE-All Souls Committee, n 1 above, discussed below.
52 See, especially, cases cited ibid, ch 3; R v City of London Corporation, ex parte Matson [1997] 1
WLR 765 (CA); R v Ministry of Defence, ex parte Murray [1998] COD 134 (DC).
53 See, for instance, M. Elliott and R. Thomas, Public Law (Oxford: OUP, 3rd ed, 2016) 482-483.
54 Doody n 9 above.

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Joanna Bell
the decision to set the minimum term of imprisonment to be served by the

applicant, who had been convicted of murder, at 15 years55 and unlawfully
refused to offer any information by way of explaining how that figure had been
reached. Similarly in the well-known case of R v Civil Appeal Board, ex parte
Cunningham,56 it was stressed by McCowan LJ that, even at the point when the
challenge had reached the Court of Appeal, ‘neither [the applicant], nor for
that matter th[e] court, ha[d] any idea why the board recommended’57 that Mr
Cunningham a compensatory award in relation to his unfair dismissal which
was significantly lower than expected.
A striking feature of the case sample considered for the purposes of this
article, however, is that it was very rarely that the courts were faced with outright
refusals to give reasons of this kind. Indeed, of the 119 challenges analysed only
six (5.0 per cent of the sample) could be characterised in this way.58 Since two
of these concerned the same challenge across two courts59 there were in effect
only five challenges to a wholesale absence of reasons.
One thing which was striking about this small subset of challenges, further-
more, was that in all but one the court concluded that the absence of reasons
was justified and lawful. The usual reason for the applicant’s loss was that the
court considered that a feature of the background legislative scheme rendered it
justifiable for the administrative decision-maker to insist on silence towards the
applicant.60 In Karia, for example, both the Administrative Court and Court
of Appeal61 concluded that the border officer was not required to give rea-
sons for his decision to search the applicant at an airport62 because doing so
would render officers less effective in securing the statutory aim of preventing
breaches of European Union law63 by revealing risk-identification techniques.
The one case in which the applicant successfully argued that an outright failure
to give reasons was unlawful was Newey.64 Here, an officer exercising delegated
powers concluded that a proposal by a third party would be sufficient to meet
a condition in an existing grant of planning permission. The Administrative
Court concluded that the officer had acted unlawfully in light of regulation
7 of the Openness of Local Government Bodies Regulations 201465 which
55 A power exercised under Criminal Justice Act 1991, s 35. Note a declaration of incompatibility
was issued under the Human Rights Act 1998, s 4 in relation to this power in R (Anderson) v
Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837.
56 R v Civil Appeal Board, ex parte Cunningham [1992] ICR 817 (CA) (Cunningham).
57 ibid, 831.
58 Note that even some of these cases cannot be straightforwardly characterised as cases in which
there was an outright refusal to give reasons. In R (Derrin Brothers Properties Ltd) v HM Revenue and
Customs [2014] EWHC 1152 (Admin) (Derrin Brothers), for instance, the tax authorities disclosed
their reasons for undertaking an investigation to the company directly under investigation, but
(lawfully) refused to disclose them to the applicants who were not themselves being investigated
but were thought to be in possession of relevant documentation.
59 Karia v UK Border Agency [2014] EWHC 4674 (Admin) (Karia 2014); Karia 2018, n 16 above.
60 See also Nuttall v National Crime Agency [2016] EWHC 1911 (Admin); Derrin Brothers n 58
above.
61 Karia 2014, n 59 above; Karia 2018, n 16 above.
62 A power conferred by Customs and Excise Management Act 1979, s 78.
63 Finance (No 2) Act 1992, s 4.
64 R (Newey) v South Hams DC [2018] EWHC 1872 (Admin).
65 Openness of Local Government Bodies Regulations 2014 (SI 2014/2095), reg 7.

(2019) 82(6) MLR 983–1008 989

requires officers exercising delegated powers to, in some circumstances, make

a record of their reasons.
Precisely because cases of outright refusal to give reasons were rare, what
applicants sought to argue in most cases was not that there had been an unlawful
failure to give reasons as such but that what had been offered was not, in some
sense, good enough. The vast bulk of the case law, in other words, concerned
the adequacy of reasons given, rather an allegation of failure to give reasons.
There were a number of different ways in which the reasons offered by
decision-makers were argued to be insufficient by applicants. Commonly, ap-
plicants argued that the reasons offered by a decision-maker were not sufficiently
detailed.66 In Save Britain’s Heritage,67 for instance, the applicants argued that
the Secretary of State’s decision letter should have explained at greater length
why their request for a planning decision to be ‘called-in’ was not regarded
as sufficiently exceptional. It was also very common for applicants to chal-
lenge the format of reasons.68 FCC Environment,69 for instance, concerned a
dual-application for development consent and compulsory acquisition pow-
ers.70 The applicant argued that the Secretary of State ought to have separated
out the two issues – development consent and compulsory acquisition – and
have dealt with the statutory tests separately.71 Other types of challenge to the
adequacy of reasons occurred across the sample but were less common. Occa-
sionally, for instance, applicants sought to challenge the time at which reasons
were disclosed.72 Less common again were challenges to a public authority’s
approach to deciding who to disclose reasons to73 and to decisions to designate
a particular administrator to write the reasons.74
66 See for instance R (Oluyemi) v Nursing and Midwifery Council [2015] EWHC 487 (Admin); West
Berkshire v Secretary of State for Communities and Local Government [2016] EWHC 267 (Admin);
Ogunlola v Nursing and Midwifery Council [2016] EWHC 2919 (Admin) (Ogunlola); Pawlowski
n 24 above; Housiaux n 49 above; City of York v Secretary of State for Communities and Local
Government [2014] EWHC 231 (Admin); Tower Hamlets n 18 above; R (Kestrel Hydro) v Secretary
of State for Communities and Local Government [2015] EWHC 1654 (Admin); Thilakawardhana v
Office of the Independent Adjudicator [2015] EWHC 3295 (Admin); R (Swan Quay) v Swale BC
[2017] EWHC 420 (Admin); Bewley n 44 above; Steer n 49 above; R (Rogers) v Wycombe DC
[2017] EWHC 3317.
67 Save Britain’s Heritage 2018, n 7 above; R (Save Britain’s Heritage) v Secretary of State for Communities
and Local Government [2017] EWHC 3059 (Save Britain’s Heritage 2017).
68 Note that this is not to suggest that there is a clear distinction between challenging the detail
and the format of decisions. Consider for instance Legard n 44 above and Davies v Bar Standards
Board [2015] EWHC 2927 (Admin).
69 FCC Environment n 43 above.
70 See Planning Act 2008, especially ss 114 and 122.
71 For further examples see Moore n 29 above; R (Midcounties Cooperative Ltd) v Forest of Dean
DC [2017] EWHC 2056 (Admin) (Midcounties Cooperative Ltd); Speers v Secretary of State for
Communities and Local Government [2014] EWHC 411 (Admin); Newcastle United FC n 38 above.
72 See for instance Potter n 50 above; R (Jedwell) v Denbighshire CC [2016] EWHC 458 (Admin);
Glencore n 34 above.
73 See for instance Derrin Brothers n 58 above.
74 See for instance the very unusual cases of Muasa n 20 above; JG (Jamaica) v Secretary of State for
the Home Department [2015] EWCA Civ 410.

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Joanna Bell
Theme 2: Factors ensuring administrative decision-makers usually offered

reasons for decisions
The first theme gives rise to an important question: why have challenges to
outright refusals to give reasons come before the courts so rarely in recent
years? The case law suggests that there are at least three factors in play.
Firstly, a striking feature of the sample was that in most of the cases analysed
- 64 (53.8 per cent) of 119 to be precise – the administrative decision-maker
being challenged was under a specific statutory duty to compile and disclose a
specific statement of reasons for its decision. This observation connects to a
broader point. Andrew Le Sueur75 noted twenty years ago that while a great
deal of ink has been spilt lamenting the absence in English law of a general duty
to give reasons and urging the endorsement of one,76 scholars have sometimes
forgotten to pay attention to the continuing accumulation of specific statutory
duties of reason-giving. The reality, Le Sueur urged, is that participants in the
passage of legislation take an active interest in providing for issues of reason-
giving with the result that statutory duties to produce statements of reasons for
decisions are far more common than is sometimes imagined.
Le Sueur’s point continues to be of relevance and can be illustrated through
a brief discussion of a few examples. Consider, first, planning administration.
Although, as recently emphasised by the Supreme Court, planning legislation
exists as something of a patchwork,77 there are many provisions within it
which create obligations to compile statements of reasons for decisions. The
Secretary of State, for instance, in hearing appeals of local decisions, is duty-
bound to ‘notify his decision . . . and his reasons in writing’ to any persons
who participated in the inquiry.78 Local planning authorities must state ‘clearly
and precisely their full reasons’79 when refusing planning permission. When
a decision-making power is delegated to an officer, that officer is under an
obligation to produce a written record of the decision ‘along with reasons for
the decision.’80 There are also a number of statutory provisions dealing with
particular kinds of planning development which create similar duties.81 The
reality then is that most planning administrators are bound by a statutory duty
to compile statements of reasons for their decisions by one legislative provision
or another. By way of a second example, consider also professional discipline.
75 A. Le Sueur, ‘Legal Duties to Give Reasons’ (1999) 52 CLP 150.

76 See for instance citations at n 1 above and Justice Kirby, ‘Accountability and the Right to
Reasons’ in M. Taggart (ed), Judicial Review of Administrative Action in the 1980s (Oxford: OUP,
1986).
77 Dover DC n 10 above at [58].
78 Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000/1624), rule
11.
79 Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI
2015/595), art 35(1).
80 Openness of Local Government Bodies Regulations 2014 (SI 2014/2095), reg 7(2). See further
R (Shasha) v Westminster CC [2016] EWHC 3283 (Admin), [2017] PTSR 306.
81 For instance, under the Town and Country Planning (Environmental Impact Assessment) Reg-
ulations 2017 (SI 2017/571)) planning authorities are required to ‘make available for public
inspection’ a statement of ‘the main reasons and considerations’ wherever they grant permission
for an ‘EIA development.’

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It is very difficult to find a decision-maker operating within this field that is

not subject to a specific duty to produce statements of reasons for its major
decisions. The General Medical Council when deciding whether to restore a
doctor to the register of persons able to practice,82 the Secretary of State for
Education when exercising decision-making power83 to exclude teachers from
the profession84 and police chief constables when investigating allegations of
misconduct,85 are, for instance, all subject to specific statutory duties to produce
written statements of reasons.
Secondly, even in areas where decision-makers are not under specific statu-
tory duties to compile statements of reasons, they are often under legislative
obligations to publish other documents or forms of information which disclose
details of their reasoning processes. This consideration was particularly preva-
lent in the planning context. It was mentioned briefly above, for instance,
that in 201386 the statutory duty to produce statements of reasons for grants
of planning permission87 was removed. The repeal of this duty, however, has
not meant that local planning authorities are permitted by statute to insist on
secrecy. Applications for planning permission are usually determined in a two-
stage process: planning officers undertake initial investigations and compile,
commonly extremely detailed,88 reports. Final decisions are then taken by a
planning committee. Importantly, under the relevant legislation, both the plan-
ning officer’s report and the minutes from the committee meeting89 must be
made publicly available. The availability of these documents often means that
the reasons which underlay the final conclusion of the committee are readily
available.90 Where, for instance, the committee straightforwardly approves the
officer’s recommendation it can usually be inferred that the reasons for doing
so were the same as those articulated at length in the report.91
Thirdly, the increased role being played by ‘soft law’92 in public administra-
tion was also an important factor across the sample. Policy and guidance now
82 See for instance General Medical Council (Fitness to Practise) Rules Order of Council 2004,
Schedule 1, rule 24(2)(f). See further General Medical Council v Lamming [2017] EWHC (Admin).
83 Education Act 2002, s 141B.
84 Teachers’ Disciplinary (England) Regulations 2012 (SI 2012/560), reg 8(4). See further R
(Kingston) v Secretary of State for Education [2017] EWHC 421 (Admin).
85 Police (Conduct) Regulations 2008 (SI 2008/2864), reg 18. See further Moore n 29 above.
86 Town and Country Planning (Development Management Procedure) (England) (Amendment)
Order 2013 (SI 2013/1238), art 7.
87 Town and Country Planning (General Development Procedure) (England) (Amendment) Order
2003 (SI 2003/2047), art 5.
88 For instance, in Dover DC n 10 above. the planning officer had produced a 135-page report
with appendices.
89 Local Government Act 1972, s 100(C) and Sch 12, para 41.
90 Indeed, Lord Carnwath suggested at Dover DC n 10 above at [29] that this was the major reason
for the removal in 2013 of the duty to compile a separate statement of reasons for granting
planning permission.
91 See for instance R (Hawksworth Securities Plc) v Peterborough CC [2016] EWHC 1870 (Admin).
For a pre-2003 case see further R v Aylesbury Vale DC ex parte Chaplin (1998) 76 P & CR 207.
92 Language used for instance in M. Aronson, ‘Private Bodies, Public Power and Soft Law in the
High Court’ (2007) Federal LR 1; G. Weeks, Soft Law and Public Authorities (Oxford: Hart,
2016).

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Joanna Bell
play a hugely pervasive and important role in administration93 with the result
that a great deal more generalised information is available about how decisions
within administration are made. In assessing the adequacy of reasons, the courts
treat published policy as supplying part of the reasons for a decision. In Save
Britain’s Heritage, for example, both the Administrative Court and Court of
Appeal94 regarded a written Ministerial Statement as giving a clear indication
of how a request for a planning application to be ‘called-in’95 would be dealt
with. In light of this published policy, the court concluded, it would be suf-
ficient in most cases for the Secretary of State in her decision letter to offer
a brief indication of how that policy had been applied rather than a detailed
statement of reasons. Similarly in Nzolameso v City of Westminster the Supreme
Court suggested that the publication of a generalised policy will sometimes
be the most effective way of offering reasons for an individualised decision.96
This is especially so in contexts, such as housing administration, where the
decision-maker is responsible for distributing scarce resources and will rely on
a generalised schema in doing so.
Theme 3: The limited role played by common law fairness in legal reasoning
The two themes discussed so far concerned what was offered by decision-
makers by way of reasons for their decisions. The third, by contrast, concerns
the manner in which the courts assessed the lawfulness of what had been
offered.
It is useful to begin with a preliminary point: there has been a pervasive
tendency across legal scholarship to regard common law ‘fairness’97 as the main
legal standard on which courts draw in reasons challenges. The usual story
which is told about the development of the law on reasons, that is, is one of the
courts gradually expanding the notion of common law fairness to encompass
a greater set of circumstances in which reasons will be required.98 Contrary to
this tendency, however, a striking feature of the case law in the sample analysed
was that the role played by common law fairness in legal reasoning was fairly
limited.
93 For broad discussion, see, K. Culp Davis, Discretionary Justice: A Preliminary Inquiry (Chicago, Ill:
University of Illinois Press, 1971); D. Galligan, ‘The Nature and Function of Policies Within
Discretionary Power’ [1976] PL 332; R. Baldwin and J. Houghton, ‘Circular Arguments: The
Status and Legitimacy of Administrative Rules’ [1986] PL 239; Y. Dotan, ‘Why Administrators
Should Be Bound By Their Policies’ (1997) 17 OJLS 23; A. McHarg, ‘Administrative Discretion,
Administrative Rule-Making and Judicial Review’ (2017) 70 CLP 267.
94 Save Britain’s Heritage 2017, n 67 above; Save Britain’s Heritage 2018, n 7 above.
95 Town and Country Planning Act 1990, s 77.
96 Nzolameso v City of Westminster [2015] UKSC 22, [2015] PTSR 549 at [39].
97 Focusing especially in a cluster of well-known case law including Doody n 9 above; Cunningham
n 56 above; Dental Surgery n 9 above.
98 See for example discussion in W. Wade and C. Forsyth, Administrative Law (Oxford: OUP, 11th
ed, 2014) 440-448; P. Craig, Administrative Law (London: Sweet & Maxwell, 8th ed, 2016)
ch 12.

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Three more particular points are worth making. Firstly, there was a small
subset of challenges in which fairness played a meaningful role99 in deter-
mining the lawfulness of a decision-maker’s approach to reason-giving. These
challenges tended to concern decisions, such as determinations of parole100 and
mental health detention,101 where the applicant’s liberty was at stake. The role
played by fairness here was that of lending weight to a challenge to the level
of detail in which reasons were expressed. In R (Khan) v Parole Board,102 for
example, the court regarded common law fairness as bolstering the applicant’s
argument that the Parole Board’s statement of reasons was inadequate because it
failed to engage specifically with a series of positive arguments Khan had made
in favour of his own release. Fairness, the court reasoned, requires that the
more significant the ‘differential between the minimum tariff served and the
length of time spent in prison’103 the more ‘anxiously’104 the Board’s reasons
should scrutinise the arguments in play.
Secondly however, common law fairness was not the only common law value
on which the courts drew. Two other values – consistency and open justice –
were explicitly drawn on in legal reasoning and are therefore especially worthy
of consideration.
The common law value of consistency very broadly requires that adminis-
trative decision-makers treat cases which bear similarity in the same way unless
they can point to a relevant point of differentiation.105 In a number of cases
across the sample106 applicants relied on consistency to argue that where a
decision-maker departs from a conclusion reached in a factually similar past
case it is legally obligated in its reasons to make clear what it sees as being the
relevant point of differentiation. In Midcounties Co-operative,107 for instance, the
court held that the local planning authority’s reasons were unlawful because
they failed to explain why planning permission for a supermarket had been
granted when it had rejected a substantially similar application in the past.108
99 Note that the notion of fairness was sometimes drawn on by counsel in other contexts but did
not, in the view of the court, add much weight to the argument. See for example Tower Hamlets
n 18 above.
100 See for example R (Khan) v Parole Board [2015] EWHC 2528 (Admin) (Khan), See for example
R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46, [2017] AC 52.
101 Senior Courts Act 1981, s 31.
102 Khan n 100 above.
103 ibid at [16].
104 ibid.
105 Note that all references to consistency must now be read in light of R (Gallaher) v Competition and
Markets Authority [2018] UKSC 25, [2018] 2 WLR 1583 in which the Supreme Court clarified
that while inconsistent conduct may be an indication of unreasonableness, consistency cannot
be pleaded as a separate ground of review. For critical comment see M. Elliott, ‘A “Principle” of
Consistency? The Doctrinal Configuration of the Law of Judicial Review’ (2018) 77 CLJ 444.
106 For further examples see Milton Estates Company n 49 above; King’s Lynn and West Norfolk BC
v Secretary of State for Communities and Local Government [2015] EWHC 2464 (Admin); Tate n
49 above; Moulton Parish Council v Secretary of State for Communities and Local Government [2017]
EWHC 1047 (Admin) (Moulton Parish Council).
107 Midcounties Cooperative n 71 above.
108 Most of the cases in which consistency was drawn on in argumentation were planning cases.
Indeed, consistency has sometimes been characterised as an aspect of planning, as opposed to
generalist administrative, law (see for example Pertemps Investments Ltd v SSCLG [2015] EWHC
2308 (Admin) at [61]). The Court of Appeal in R (Thompson) v Oxford CC [2014] EWCA

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Joanna Bell
Another common law value which played an important role in legal reason-
ing across the case sample was ‘open justice.’ The main case here was Dover
DC in which the Supreme Court held that the local planning authority had
failed to offer legally adequate reasons when granting planning permission for a
development within an Area of Outstanding Natural Beauty (AONB).109 One
legal consideration110 on which the Supreme Court drew was open justice. The
common law ‘principle of open justice or transparency,’111 Lord Carnwath ex-
plained, ‘extends as much to statutory inquiries and procedures as it does to
courts . . . [and] in the application of the principle to planning decisions, [there
was] no reason to distinguish between a Ministerial inquiry and a less formal
but equally public decision-making process of a local planning authority.’112
The Supreme Court’s invocation of open justice in this way gives rise to a
series of important questions.113 When Dover DC is read alongside the other
major case on open justice in recent years, Kennedy v Information Commis-
sioner,114 what seems to emerge is that the common law principle of open
justice will demand a higher standard of transparency where a decision is being
taken about a subject-matter in which the public as a collectivity has an especially
important interest. If this is right, however, difficult questions arise about pre-
cisely how the courts ought to go about identifying such interests. Should the
courts confine themselves to protecting public interests which are designated as
being especially important either by parliament in legislation or by government
in policy statements? Or is there room for the courts to conclude that the public
has an especially important interest in some matter even if this is not reflected
in the legislative and policy framework? Such questions fall beyond the scope
of this article. They are, however, in need of further scholarly attention and
remain significantly underexplored in the literature to date.115
Thirdly and finally, while common law values played an important role in
legal reasoning in a subset of cases, in the majority of cases analysed the courts
made no explicit reference to common law values.116 In most cases, rather,
the main determiner of the adequacy of reasons was the specific legislative and
policy framework at the background of the case.
Administrative frameworks are often constituted by at least three different
layers of provision: a primary Act of Parliament, secondary legislation usu-
ally in the form of Regulations and supplementing policy and/or guidance.
The legal force of the first two layers of provision – Acts and Regulations –
Civ 394, [2014] 1 WLR 1811 however rejected this characterisation, holding consistency to be
relevant in the licencing context.
109 Dover DC n 10 above.
110 For discussion of the other legal dimensions to his Lordship’s decision see J. Bell, ‘Dover DC v
CPRE Kent: Legal Complexity and Reason-Giving in Planning Law’ (2018) 23 JR 25.
112 ibid.
113 For discussion see J. Bell, ‘Reflections on Open Justice and the Status of the General Common
Law Duty to Give Reasons’ (2018) 77 CLJ 240.
114 Kennedy v Information Commissioner [2014] UKSC 20, [2015] AC 455 (Kennedy).
115 See further discussion in J. Bell, ‘Kent and Oakley: A Re-Examination of the Common Law
Duty to Give Reasons for Grants of Planning Permission and Beyond’ (2017) 22 JR 105.
116 This is not to suggest that there is always a clear divide between adjudication based on legislation
and that based on common law.

(2019) 82(6) MLR 983–1008 995

is self-evident; Acts and Regulations are legislation which is directly binding

on decision-makers.117 Where, therefore, an applicant was able to show that a
decision-maker’s approach to reason-giving was inconsistent with the detail of,
or a purpose underlying, a legislative provision this meant that the reasons were
legally inadequate. In Stonegate Homes,118 for instance, the court concluded that
an examiner had given legally inadequate reasons for authorising a proposed
neighbourhood plan to move to referendum.119 The background legislative
scheme permitted a proposed plan to be put to referendum only where the
examiner was satisfied that the plan would ‘not breach . . . European Union
obligations.’120 This provision, the court reasoned, required examiners to in-
clude in their statements of reasons a designated part which clearly identified
and reasoned through any potential conflicts between the proposed plan and
European Union law which had emerged during consultation.
The role of policy in reasons challenges is slightly more complex. Unlike
primary and secondary legislation, policy does not have direct binding force
on administrative decision-makers. ‘Soft law,’ however, does have indirect legal
force in English and Welsh administrative law. In the first place, it is not
uncommon for legislation to stipulate that Ministers and other administrative
decision-makers have powers or duties to publish policies and guidance on
specific subject-matters.121 R v Islington LBC ex parte Rixon established that such
provision are to be read as creating an implicit duty requiring the addressees of
guidance to comply unless they are able to articulate ‘good reason’ not to.122
In the second, the Supreme Court has recently concretised a more general
principle to the effect that ‘a decision-maker must follow his published policy
unless there are good reasons for not doing so.’123 The collective effect of
these two legal ideas is that, in instances where central government guidance
or policy applies to a particular decision, the decision-maker is usually legally
required to demonstrate that it has properly applied the policy and, if it has
not, to clearly articulate reasons for departure.124
There were numerous cases in the sample in which the reasons offered
by administrative decision-makers were argued and/or found to be unlawful
because they gave rise to significant doubts as to whether policy or guidance
had been properly applied. In R (Hutt) v Parole Board, for example, the Parole
Board’s reasons were inadequate because they failed to demonstrate that specific
117 Subject, of course, to the possibility that the Regulations themselves might be challenged on
the basis that they are ultra vires the empowering Act. See for instance R (Reilly) v Secretary of
State for Work and Pensions [2013] UKSC 68, [2014] AC 453.
118 Stonegate Homes n 44 above.
119 Localism Act 2011, ss 116-121 and Schedules 9-12.
120 Town and Country Planning Act 1990, Sch 4B, para 8.
121 See for example Criminal Justice Act 2003, s 239(6).
122 R v Islington LBC ex parte Rixon [1997] ELR 66 (QB).
123 R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245 at [26]
(Lumba); Mandalia v Secrteary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR
4546.
124 For further examples see Manuel Nunez Martinez v General Dental Council [2015] EWHC 1223
(Admin); R (M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin); Horada
n 43 above; Professional Standards Authority for Health and Social Care v Health and Care Professions
Council [2016] EWHC 2210 (Admin); Ogunlola n 66 above; Moulton Parish Council n 106 above.

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Joanna Bell
consideration had been given to the two separate tests for release and for
transfer to open conditions which had been laid down in Ministry of Justice
guidance.125 Similarly in Legard the applicant challenged the adequacy of the
decision-maker’s reasons on the basis that they disclosed a misunderstanding of
central government guidance relating to the designation of areas as local green
spaces.126 The Administrative Court rejected the challenge, concluding that the
administrative decision-maker’s reasons demonstrated that it had understood
the questions which the guidance required it to attend to and given careful
consideration to each in turn.
To summarise, the main aim of this part of the article has been to obtain a
clearer idea of what litigation on administrative reason-giving has ‘looked like’
in recent years. To that end it has offered an analysis of 119 cases heard between
2014 and 2018 and drawn out three important themes. Firstly, challenges to
wholesale refusals to offer reasons for decisions occurred very rarely across
the sample. In most cases the decision-maker had offered some explanation
of its reasoning process and what the applicant sought to argue was that the
reasons were not adequate. Secondly, there were a number of factors in play
which help to explain why reasons were usually offered in some form. These
factors include the prevalence of specific statutory duties of reason-giving, the
existence of legislative obligations to make publicly available documentation
of other kinds and the increased role played in public administration by ‘soft
law.’ Thirdly, common law fairness played a relatively limited role in legal
reasoning. Other common law values, including especially consistency and
open justice, played at least an equally important role. Ultimately, furthermore,
the particular statutory and policy framework in the background of the case
was main determiner of the lawfulness of reasons.
WHY HAVE THE COURTS NOT EMBRACED THE ‘GENERAL

COMMON LAW DUTY TO GIVE REASONS’?
At this point the article can loop back to an important question: why have
the courts declined to embrace the general common law duty to give reasons?
As explained in the introduction, this remains an underexplored and unsolved
puzzle. On the one hand there have been many calls in the literature for the
courts to embrace a general duty. On the other, the courts continually refuse to
heed these calls.127 We are therefore left to wonder why judges, who must be
assumed to understand the value of offering reasons for decisions better than
most, are not convinced by the need for reform.
The analysis in the first part of the article can shed useful light on this puzzle.
A better understanding of the kinds of reasons challenge with which the courts
have been dealing in recent years calls attention to a series of considerations
125 R (Hutt) v Parole Board [2018] EWHC 141 (Admin) at [10] (Hutt).
126 Legard n 44 above at [77].
127 See especially Dover DC n 10 above at [51].

(2019) 82(6) MLR 983–1008 997

which can help to explain why courts do not regard the case for reform as
compelling. This part draws out four in particular.
Doubts that a general duty would add anything of practical utility
The first consideration concerns the extent to which introducing a general

duty of reason-giving would add something of practical utility from the point
of view of the courts. In exploring this issue it is helpful to distinguish between
two broad kinds of case: (i) cases where a decision-maker wholesale refuses to
offer reasons for a decision and (ii) cases where a decision-maker has offered
some explanation of their decision-making process and the applicant challenges
its adequacy.
In relation to (i), it was explained above that the literature on reason-giving,
and especially the portion of it which advocates for a general duty, has generally
focused on the problem of administrative decision-makers wholesale refusing
to offer reasons for their decisions. In a classic call for a general duty to give
reasons in 1988, for instance, the JUSTICE-All Souls Committee128 listed a
series of cases decided in previous decades in which ‘the [relevant adminis-
trative] decision . . . [was] announced without any indication of the reasons
for it’129 and in which English and Welsh law ‘fail[ed] to insist on the giving
of reasons.’130 The Committee’s case for reform was largely built around the
inadequacy of the courts’ response in such cases.131
Fast-forwarding, however, to the modern-day, the analysis in the first part
offers a striking picture: across a sample of 119 cases decided between 2014 and
2018 there were very few cases which meet this description. In the vast bulk
of challenges analysed the administrative decision-maker had disclosed at least
some information about its reasoning process and the applicant challenged the
adequacy of what had been offered. What also emerges from the discussion
above are a series of legal and administrative developments which can explain
why cases of this kind now seem to rarely come before the courts. At least since
the late 1990s,132 specific duties to compile statements of reasons have been
proliferating in the statute book. The increasing use in public administration
of published policies and guidance also means that a good deal more gener-
alised information about how administrative decisions are taken is now readily
available.
All of this suggests that there is considerable reason to doubt whether intro-
ducing a general duty would add much of practical utility in relation to category
(i) cases. The point is simple: due to a variety of developments in the legal and
administrative landscape category (i) cases now seem to arise very rarely before
the courts. The primary problem which the classic calls for a general duty were
128 JUSTICE-All Souls Committee, n 1 above.

129 ibid, 27.
130 ibid.
131 ibid, ch 3.
132 Le Sueur, n 75 above.

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Joanna Bell
designed to address, in other words, now seems to be a peripheral one which

falls outside of the day-to-day experience of the courts.
Before moving on from category (i) cases, a final point should be made.
Even were the modern courts to be faced with an unusual case in which an
administrative decision-maker outright refused to offer reasons for a decision,
they are not, in the absence of a general common law duty to give reasons,
without options. As was seen above, the courts have regard to a number of
different layers of law and soft law in assessing the adequacy of an approach to
reason-giving. Each of these layers provides a different route to concluding that
more is required of a decision-maker. Imagine, for instance, that a local author-
ity rejects an application for a licence and refuses to disclose any information
about its reasoning process. Leaving aside the point that in reality there would
likely be a specific statutory duty to provide reasons,133 there are a number of
different ways in which the refusal may be found unlawful. Guidance issued by
the central government might, for instance, identify a series of questions the
decision-maker was required to address. In such circumstances, as in Hutt,134
the court may conclude that the decision-maker was required to make clear
whether it had followed this policy or what its reasons were for concluding
that it had ‘good reason’ not to.135 Similarly, the court may be able to draw
on a common law value – such as fairness and consistency – as the basis for
requiring more.
Turning next to cases in category (ii) cases, there are again reasons to doubt
whether introducing a general duty would provide something of practical
utility from a judicial perspective. One consequence of the courts assessing the
adequacy of reasons by reference to a number of different layers of law and soft
law is that reasons challenges often require the courts to address difficult, and
highly particular, questions. Consider, for instance, Dover DC.136 As has been
explained elsewhere137 the Supreme Court was in this case faced with a series
of very specific legal issues. These concerned, among other matters, the proper
approach to remedies when a decision-maker fails to comply with the EIA
Directive,138 whether the decision-maker’s approach to reason-giving had given
rise to significant doubts that it had properly applied the central government’s
policy on the preservation of Areas of Outstanding Natural Beauty139 and the
proper reach of the common law value of open justice.140 Where a court is
faced with such particular legal questions as these it is difficult to see what of
utility could be added by the notion of a general duty to give reasons.
133 See for example Openness of Local Government Bodies Regulations 2014 (SI 2014/2095),
reg 7.
134 Hutt n 125 above.
135 Lumba n 123 above.
136 Dover DC n 10 above.
137 Bell, n 111 above.
138 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011
on the assessment of the effects of certain public and private projects on the environment.
139 NPPF n 45 above at [15]-[16].
140 Dover DC n 10 above, especially [55]. See further Kennedy n 114 above.

(2019) 82(6) MLR 983–1008 999

Difficulties of formulation
A second consideration concerns the difficulties of formulating a general duty.

Articulating the content of general duty of reason-giving in the English and
Welsh context is a much more onerous task than is often recognised. The
difficulty, more particularly, is on settling on a formulation which, on the one
hand, avoids being empty and, on the other, risks providing inappropriately for
particular cases.
Consider two examples. Firstly, it was explained above that challenges to
the adequacy of a decision-maker’s reasons often focus on the level of detail in
which the reasons are expressed. Were the courts to introduce the notion of
a general duty of reason-giving they would be required to give direction on a
generalised basis on the subject of how detailed reasons must be. Formulating
this aspect of the duty, however, would be laden with problems. In order to
illustrate some of the difficulties it is helpful to consider an argument made by
Mark Elliott.141 Elliott has offered the most developed and cogent argument
in favour of a general duty in recent years. His argument largely focuses on
expounding the values of reason-giving142 and debunking a series of arguments
against reason-giving regarded as ill-founded.143 In a later section, however,
Elliott gives consideration to how a general common law duty to give reasons
might make prescription for issues of content.
One important thing to note about Elliott’s discussion in this regard is that
the formulation invoked by the author appears to fluctuate in very subtle, but
important, ways. At points Elliott’s suggestion seems to be that the applicable
standard should simply be one of ‘adequacy.’ At one point in the discussion,
for instance, Elliott writes that: the default position is that reasons must be
‘intelligible’ and ‘adequate’, enabling the reader to understand how the agency
reached its conclusions on the principal issues of controversy.144
The drawback of formulating the ‘general duty’ by reference to notions such
as ‘adequacy’ however is that it is difficult to see what reform would add to the
law. Providing that the reasons offered by a decision-maker must be ‘adequate’
would rarely supply answers to the kinds of specific legal question courts
routinely have to decide. The notion of a general duty to supply adequate
reasons would, rather, seem to add only an alternative way of framing these
questions.
A further worry is that expressing the task of a court in a reasons challenge
in terms of deciding whether what was offered by the decision-maker was
‘adequate’ might detract from the point that judges in such cases as not exercis-
ing unconstrained discretion to decide, by reference to their own preferences,
whether the approach taken by the decision-maker could have been improved
on. They are rather working closely with the background legislative and policy
framework to the case, and a series of common law values, in order to assess
the lawfulness of what has been offered.
141 Elliott, n 1 above.

142 ibid, 61-64.
143 ibid, 64-66.
144 ibid, 66.

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Joanna Bell
A second, stronger, possible reading of Elliott’s view can be inferred from

the following passage:
this is not to deny that there may be considerations weightier than mere expe-
diency that tell against a duty to provide detailed reasons, standard public policy
considerations – such as national security, international relations, and so on . . . but
the preference should always be to require the provision of as much by way of reasons
as is consistent with due regard for the policy interests that would be compromised
by more extensive disclosure.145
In this passage Elliott might be read as suggesting a different approach. The

question asked by the court would not be whether the reasons offered were
‘adequate.’ Rather the default position in law would be that a decision-maker is
required to give maximal reasons unless it can point to a consideration, such as
a resulting threat to national security, which demands less by way of disclosure.
This approach however would have its own difficulties. It will often not be
difficult for an applicant to be able to point to an aspect of a decision-maker’s
reasoning which could have been more detailed.146 There is surely therefore
cause for concern that the introduction of a general duty in such terms would
incentivise applicants to scour through statements of reasons seeking to identify
aspects of the reasoning which could have been fuller or better explicated.
This same set of difficulties can be further illustrated by a second example.
As indicated above, a problem which the courts have sometimes had to grap-
ple is that of who is entitled to have access to, or, to put it another way, the
proper manner of disclosing reasons.147 There is evidently not a one-size-fits-
all model which would be workable in all administrative contexts. In some
circumstances, such as the planning context, it may be appropriate for the
decision-maker’s statement of reasons to be made publicly accessible. In others,
however, especially in the context of tax, social welfare or housing administra-
tion which involve highly individualised decision-making, this could constitute
an unjustified violation of privacy.
Once again, however, developing a formulation which simultaneously avoids
being unhelpful and, at the same time, is not overly prescriptive is very difficult.
It might be tempting, for instance, to borrow from the Senior Courts Act 1981
the notion that a person is entitled to be given reasons if they have a ‘sufficient
interest in the matter to which [their] application relates.’148 The case law on
standing, however, is surely testament to the difficulties inherent in applying
such an ambiguous phrase.149 Other plausible formulations, on the other hand,
such as whether a person is ‘directly affected’150 by the decision, risk providing
145 ibid, 67 (emphasis added).

146 See, for instance, Jenyo v General Medical Council [2016] EWHC 1708 (Admin).
147 See, for instance, Derrin Brothers n 58 above.
148 Senior Courts Act 1981, s 31(3).
149 See especially R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed
[1982] AC 617 (HL); R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co
[1990] 2 WLR 186 (QB).
150 Language used, for instance, in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46,
[2012] 1 AC 868.

(2019) 82(6) MLR 983–1008 1001

inappropriately for certain contexts. A carer, for instance, might be materially

and directly affected by a decision by the Department of Work and Pensions to
refuse the person for whom they care a social security benefit. It is, however,
much less clear that they should be entitled to access the reasons if the subject
of the decision elects not to request them herself.151
The core problem then is that a shift to a general duty to give reasons would
make the offering of generalised guidance with regards to issues such as the
content and manner of release of reasons unavoidable. It is, however, very
difficult to see how the courts could formulate such guidance in a manner
which was both capable of adding something of practical utility to the law and
which did not risk providing inappropriately for certain circumstances.
Doubts about the ‘hortatory’ need for a general common law duty
So far the discussion has focused on the value of a general duty of reason-giving
from a judicial perspective. Supplying techniques by which courts can identify
solutions to concrete legal questions is, however, not the only use or value of
doctrine. As scholars including Carol Harlow and Richard Rawlings,152 and
more recently Dean Knight, have emphasised, administrative law doctrine can
also perform an important ‘hortatory function’ in ‘articulating and elaborating
the principles of good administration.’153 Administrative law doctrine can also
be useful and important, in other words, by sending messages regarding the
importance of some practice or value to institutions of public administration.
It is possible to envisage an argument in favour of introducing a general
common law duty to give reasons which focused on the hortatory value such a
duty would have. Although a general duty, the argument would go, may have
limited utility as a judicial-adjudicative tool for the reasons discussed in the
first and second sections above, it would send a clear message to administrative
decision-makers that reason-giving is a deeply important and valuable practice.
This, in turn, would help to foster a ‘culture of justification.’154 At first sight
this appears to be an appealing argument. Two complications however ought
to be discussed.
Firstly, the analysis in the first part gives rise to the question of whether there
is a pressing need for the courts to send a message to public administration about
the importance of reason-giving. There may, in particular, be good reason to
believe that a message of this kind has been permeating public administration
for some decades. It was emphasised above, for instance, that at least since the
1990s155 parliament in enacting primary legislation and ministers in creating
151 For related discussion see Durayappah v Fernando [1967] 2 AC 337 (PC), 352-353.
152 C. Harlow and R. Rawlings, Law and Administration (Cambridge: CUP, 3rd ed, 2009) 669.
153 D. Knight, Vigilance and Restraint (Cambridge: CUP, 2018) 31.
154 See, especially, D. Dyzenhaus, M. Hunt and M. Taggart, ‘The Principle of Legality in Ad-
ministrative Law: Internationalisation as Constitutionalisation’ (2001) 1 OUCLJ 5; D. Mullan,
‘Because I said so! Is that ever good enough? – Findings and Reasons in Canadian Administrative
Law’ in D. Dyzenhaus, M. Hunt and G. Huscroft (eds), A Simple Common Lawyer: Essays in
Honour of Michael Taggart (Oxford: Hart. 2009).

1002 (2019) 82(6) MLR 983–1008

Joanna Bell
regulations have been giving careful consideration to issues of reason-giving

with the consequence that the statute books are now littered with specific
duties requiring administrative decision-makers to compile and publish reasons
for their decisions. The well-documented156 phenomenon of administrators
structuring decision-making discretion by adopting and publishing policies has
also meant that a great deal more generalised information about administrative
decision-making is now readily available than in precious decades.
Other important developments can, furthermore, be added to the list.157
The year 2000, for instance, famously saw the landmark enactment of the
Freedom of Information Act.158 Although, as Le Sueur has explained,159 this
Act, to the disappointment of some, did not introduce a general statutory duty
to give reasons,160 section 19 utilises a ‘soft law option’161 which places all
public authorities under an obligation to ‘adopt and maintain a scheme which
relates to the publication of information’ and which includes a duty to ‘have
regard to the public interest . . . in the publication of reasons for decisions
made by the authority.’162 Alongside the Freedom of Information Act, other
important policy drives towards transparency in recent years have also included
the introduction of a Local Government Transparency Code which emphasises
that ‘in principle all data held and managed by local authorities should be made
available to local people’163 and the introduction of a ‘duty of candour’ on
‘registered persons’ operating within the National Health Service to ‘act in an
open and transparent way . . . in relation to care and treatment.’164
Secondly, and furthermore, the question is periodically raised in legal schol-
arship of the extent to which judicial decisions can produce the kind of sys-
tematic, widespread change of culture the hortatory argument presupposes.165
One issue in this regard is that, as Carol Harlow and Richard Rawlings have
stressed, the ‘number of cases [heard by the courts] is infinitesimal compared
with the millions of decisions taken daily by public authorities.’166 Another is
that it is far from clear that, for instance, a Supreme Court judgment on reason-
giving in planning administration will reach the attention of those working in
housing administration. If systematic, cultural change is what is desired, then
it is plausible that institutions other than court are better placed to bring such
reform.
156 See citations at n 93 above.

157 See, especially, E. Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010)
63 CLP 272.
158 Freedom of Information Act 2000.
159 A. Le Sueur, ‘Taking the Soft Option? The Duty to Give Reasons in the Draft Freedom of
Information Bill’ [1999] PL 419.
160 See further, Cabinet Office, ‘Your Right to Know: Freedom of Information’ (28 February
1998).
162 Freedom of Information Act 2000, 19. For discussion see P. Gibbons, ‘The Fall and Rise of the
Publication Scheme’ (2016) 13 FOI 4.
163 Department for Communities and Local Government, ‘Local Government Transparency Code
2015’ (February 2015) at [4].
164 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, reg 20.
165 See, for instance, C. Harlow, ‘Striking Back and Clamping Down’ in Bell, Elliott, Varuhas and
Murray, n 2 above.
166 C. Harlow and R. Rawlings, Law and Administration (Cambridge: CUP, 2nd ed, 1997) 537.

(2019) 82(6) MLR 983–1008 1003

It is important to be clear that this is not an argument for complacency. The

point is not that public administration is perfectly transparent and no reform is
necessary. The question being raised rather, is whether it is naı̈ve to suppose a
U-turn in the Supreme Court today in which a general duty to give reasons
were introduced into English and Welsh law would result directly in reason-
giving being taken more seriously than it currently is. Arguably reason-giving
is already seen as important within public administration. The ability of the
courts to bring about systemic change, relative to other institutions, is also open
to question.
Weaker adherence to generality as an essential part of administrative law
The final consideration to be discussed is more theoretical in that it concerns

the way in which administrative law is visualised. Generality has been at the heart
of the academic way of visualising administrative law for many decades. Since
the publication of a series of leading textbooks from the late 1950s onwards167
the dominant way of thinking about administrative law in scholarship is as
a cluster of legal principles which apply generally across all areas of public
administration.168 This is reflected in the introductory chapters of many of the
leading textbooks.169 William Wade and Christopher Forsyth’s Administrative
Law, for instance, informs the reader that:
administrative law may be said to be the body of general principles which govern the
exercise of powers and duties by public authorities . . . what has to be isolated is
the law about the manner in which public authorities must exercise their functions,
distinguishing function from structure and looking always for general principles.170
The focus on generality continues to shape how many aspects of administrative

law are explained by legal scholars. It is common to read in the literature
of procedural fairness, for instance, that all public administrators are under a
general legal duty to ensure that they perform their functions in ways which are
procedurally fair171 but that the precise demands of fairness alter depending
on the circumstances of the case.172 Similarly, textbooks commonly strive173
167 See, especially, S. De Smith, Judicial Review of Administrative Action (London: Stevens & Sons,
1959); W. Wade, Administrative Law (Oxford: OUP, 1961). For discussion of these textbooks,
see further, D. Galligan, ‘Judicial Review and the Textbook Writers’ (1982) 2 OJLS 257.
168 See, further, Knight n 153 above and C. Harlow and R. Rawlings, ‘Administrative Law in
Context: Restoring a Lost Connection’ [2014] PL 28. Note that this mode of conceptualising
administrative law was not reflected in earlier textbooks such as F.J. Port, Administrative Law
(London: Longmans, 1929) and J. Griffith and H. Street, Principles of Administrative Law (London:
Pitman & Sons, 1952).
169 See, for instance, Craig n 98 above, ch 1.
170 Wade and Forsyth, n 98 above, 5 (emphasis added).
171 Re HK (An Infant) [1967] 2 QB 617 (CA).
172 In a piece of oft-cited dicta in Lloyd v McMahon [1987] AC 625 (HL), 704 Lord Bridge famously
opined that ‘so-called rules of natural justice are not engraved on tablets of stone.’
173 See discussion in J. Bell, ‘Rethinking the Story of Cart v Upper Tribunal and Its Implications for
Administrative Law’ (2019) 39 OJLS 74.

1004 (2019) 82(6) MLR 983–1008

Joanna Bell
to organise discussion of judicial oversight of statutory interpretation around a

general principle such as that administrative decision-makers are required to act
within ‘jurisdiction’174 or that the courts should usually intervene to correct
‘errors of law.’175
The close relationship in the academic mind-set between administrative law
and general principles points to a further reason why legal scholars have found
the courts’ reluctance to embrace a general duty of reason-giving to be difficult
to understand. The refusal to introduce a general common law duty to give
reasons has meant that judicial oversight of administrative reason-giving does
not neatly fit with the dominant academic idea of what administrative law is.
At least in some places, judges, by contrast, do not seem to be as firmly
wedded to the image of administrative law as a body of generally-applying
principles. Indeed, in recent years a cluster of influential judges have cast
doubt on the utility of understanding parts of administrative law in this way.
In R (L) v West London Mental Health NHS Trust176 (West London NHS Trust)
Beatson LJ, for instance, criticised the tendency to think of judicial oversight
of administrative procedure stemming from a unifying and ‘flexible notion of
overarching fairness.’177 Placing emphasis on a general notion of fairness, for
Beatson LJ, risks ‘obscuring the overarching principle or stating it at a level
of generality which is not of use as a practical tool to decision-making.’178
Similarly, in the important cases of Cart179 and Jones180 the Supreme Court cast
doubt on the utility of explaining judicial oversight of statutory interpretation
by reference to general notions such as ‘jurisdiction’ and ‘error of law.’
If it is right that judges are not as firmly wedded to the image of administrative
law as a body of generally-applying principles, this helps to explain why the
courts have not regarded the case for a general duty to give reasons to be
especially compelling. The absence of a general duty to give reasons appears
as an outlier against the background of an understanding of administrative law
which imagines it as a cluster of overarching principles. If, however, one does
not proceed from this image of administrative law in the first place the absence
of a generalised duty to give reasons will not appear especially anomalous or
problematic.
Of course, if it is right that the ‘generalist’ notion of administrative law has a
weaker hold in the judicial mind-set than it does in the academic this gives rise
to the important question of why this is the case. Part of the answer is surely
that scholars and judges are in different institutional positions and this shapes
what they prioritise in thinking about doctrine. The task of the academic,
very broadly, is to further understanding of a body of law. For many academics
organisation is key to this task.181 Legal scholars have often seen their role as
being that of arranging the law in order that it can be understood as a coherent
174 See for instance M. Elliott and J. Varuhas, Administrative Law (Oxford: OUP, 5th ed, 2017) ch 2.
175 See, for instance, Craig, n 98 above, ch 12.
176 R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47, 1 WLR 3103.
177 ibid at [69].
178 ibid at [72].
179 R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663.
180 R (Jones) v First-tier Tribunal [2013] UKSC 19, [2013] 2 AC 48.
181 See discussion in S. Smith, Contract Theory (Oxford: OUP, 2004).

(2019) 82(6) MLR 983–1008 1005

or unified whole.182 From this viewpoint, a lack of ‘neatness’ in the law is a

major concern. Judges, by contrast, are always faced with a specific set of legal
issues which they are required to adjudicate on. The judicial priority, therefore,
is naturally that of developing a workable solution to the particular problem at
hand. Given this priority, concerns about the degree of ‘fit’ between a proposed
solution and popular modes of conceptualising administrative law are likely to
be seen as being of secondary importance.
There may, however, be more to it. A line of thinking which characterises
some judicial thinking is that by focusing on the general, conventional accounts
of administrative law are inevitably pitched at a level of abstraction which ob-
scures the role often played by the specific legislative and policy provisions in
play in a given case.183 This can, in turn, present administrative law adjudi-
cation as a far more discretionary exercise than it, in reality, often is. A good
example is supplied by procedural fairness. As recognised by Beatson LJ in West
London NHS Trust, the tendency in administrative law scholarship has been to
characterise review of administrative procedure as stemming from a ‘flexible
notion of overarching fairness.’184 The impression such accounts promote of
adjudication however is one in which judges consult their own conception of
what is ‘fair’ in order to determine whether the processes deployed by an ad-
ministrator are permissible. Such an impression overlooks the deeply important
role which is usually played by the specific legal and policy framework which
sits at the background of a given case. Much like administrative reason-giving,
administrative procedure is often extensively provided for in Acts of Parlia-
ment, regulations, policy and guidance.185 All of these layers of law and soft
law play an important role in legal adjudication and there is a risk that this role
is obscured by a focus on a general concept of fairness.
To summarise, this part of the article has sought to draw out four consid-
erations which can help to explain why, despite the proliferating calls in the
literature, the courts continue to insist that ‘public authorities are under no
general common law duty to give reasons for their decisions.’186 Summarised
briefly, these are as follows. Firstly, it is unclear from a judicial point of view
what the introduction of a general duty would add which would be of practical
utility to the law. Secondly, there are difficulties of formulating a statement of a
general duty in a way which simultaneously offers helpful guidance but which
also avoids being overly prescriptive. Thirdly, it is far from clear that there is a
strong ‘hortatory’ case for introducing a general duty of reason-giving at this
stage in administrative law’s development. Fourthly, the extent to which the
absence of a general duty of reason-giving appears as an outlier depends on
182 Or, to borrow a phrase from Christopher Forsyth, as being organised around a single ‘organising
principle’, see C. Forsyth, ‘Blasphemy Against Basics: Doctrine, Conceptual Reasoning and
Certain Decisions of the Supreme Court’ in Bell, Elliott, Varuhas and Murray, n 2 above, 155.
183 See further, Lord Carnwath, ‘From Judicial Outrage to Sliding Scales- Where Next for Wednes-
bury?’ ALBA Lecture, 12 November 2013.
184 West London NHS Trust n 176 above at [69].
185 For useful discussion see P. Craig, ‘Perspectives on Process: Common Law, Statutory and Political’
[2010] PL 275.

1006 (2019) 82(6) MLR 983–1008

Joanna Bell
how one imagines administrative law and there are indications that judges are
not as firmly wedded to the ‘generalist’ understanding as many academics.
CONCLUSION
It is useful to conclude by offering some reflections on the importance of

the preceding analysis. A specific level, the analysis in this article advances
understanding of judicial oversight of administrative reason-giving. The first
part highlighted three important themes which have characterised the case law
in recent years which are currently being overlooked in the literature. The
second part identified a series of factors which can help to explain why the
courts have not embraced the general common law duty to give reasons.
This article, however, is also important at a more general level. An overarch-
ing theme of the analysis has been that there are important disparities between
the aspects of reason-giving on which academics have focused and the sorts of
legal issue which have been occupying the courts. Thus on the one hand, legal
scholarship has been largely preoccupied with a series of well-known cases in
which an administrative decision-maker has wholesale refused to offer reasons
for its decision.187 On the other hand, by contrast, the courts have rarely been
faced with outright refusals to give reasons in recent years. The commentary
has also been dominated by a single issue: the virtues of, and perceived need
for, a general duty of administrative reason-giving. Judges, by contrast, have
found the case for reform much less compelling than many commentators.
There are a series of tendencies within administrative law scholarship which
may have contributed to the disparity between commentary and case law.
Four are especially worthy of discussion. Firstly, administrative law scholarship
tends to focus on cases heard at the appellate level and to engage less often
with first instance decisions. As Sarah Nason’s scholarship illustrates, this can
result in scholars becoming preoccupied with issues which are rarely seen as
central by the Administrative Court188 where, ultimately, the bulk of judicial
adjudication on administrative law matters takes place.189 Secondly, to borrow
a phrase from Elizabeth Fisher, in common law jurisdictions legislation is
sometimes thought of as having ‘second-class status.’190 Consequently, when
analysing case law, scholars commonly home in on the common law dimensions
to a decision and overlook the, often pivotal, role played by the background
legislative and policy framework. In the context of reason-giving, for instance,
as Le Sueur has stressed,191 specific statutory duties of reason-giving do a
huge amount of the legal work in promoting good reason-giving practice
but are rarely discussed by academics. Thirdly, the point has often been made
187 See, especially, Doody n 9 above; Cunningham n 56 above.

188 S. Nason, Reconstructing Judicial Review (Oxford: Hart, 2017) especially ch 6.
189 Note this article has not considered tribunal adjudication on matters of reason-giving. Increas-
ingly, however, tribunals are grappling with traditional administrative law issues. This is a field
ripe for further study.
190 E. Fisher, Environmental Law: A Very Short Introduction (Oxford: OUP, 2017) 26.

(2019) 82(6) MLR 983–1008 1007

that administrative law scholarship is traditionally ‘court-centred’192 in that it

focuses primarily on judicial adjudication and engages little with developments
in public administration itself. In the context of reason-giving this has meant
that a number of developments, including the increased use of ‘soft law’ in
administration and its implications for reasons challenged have been overlooked.
Finally, in the second part it was argued that generality has been at the core
of the dominant academic conception of administrative law for decades. The
result of this, again, is that generalised statements of principle by judges tend to
attract the focus of scholars while specific legislative and policy details receive
little explicit discussion.
Awareness of these tendencies and the kinds of disparity to which they can
give rise is important in ways beyond this article. Each of these tendencies
runs throughout administrative law scholarship and review of reason-giving is
therefore likely not the only aspect of the field affected by them. One hope
of this article, therefore, is to encourage administrative law scholars to think
carefully about what they focus on when analysing case law in this field and
the broader consequences that such focus can have.
192 M. Taggart, ‘A Prolegomanon to an Intellectual History of Administrative Law in the Twentieth

Century: The Case of John Willis and Canadian Administrative Law’ (2005) 43 Osgoode Hall
LJ 223, 232.

1008 (2019) 82(6) MLR 983–1008

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Modern Law Review

Reason-Giving in Administrative Law: Where are We

legal standard drawn on by courts in reasons challenges, this notion played a

984 (2019) 82(6) MLR 983–1008

decisions.’10 The question of why, despite repeated prompts from academics11

WHERE ARE WE WITH REASON-GIVING?: AN ANALYSIS OF 119

(2019) 82(6) MLR 983–1008 985

986 (2019) 82(6) MLR 983–1008

detention,25 ombudsmen,26 parole/transfer,27 passports,28 police complaints,29

(2019) 82(6) MLR 983–1008 987

on the part of local authorities to produce statements of reasons for grants46 of

Theme 1: The adequacy of reasons is the focus of most challenges

988 (2019) 82(6) MLR 983–1008

the decision to set the minimum term of imprisonment to be served by the

(2019) 82(6) MLR 983–1008 989

requires officers exercising delegated powers to, in some circumstances, make

990 (2019) 82(6) MLR 983–1008

Theme 2: Factors ensuring administrative decision-makers usually offered

75 A. Le Sueur, ‘Legal Duties to Give Reasons’ (1999) 52 CLP 150.

(2019) 82(6) MLR 983–1008 991

It is very difficult to find a decision-maker operating within this field that is

992 (2019) 82(6) MLR 983–1008

(2019) 82(6) MLR 983–1008 993

994 (2019) 82(6) MLR 983–1008

(2019) 82(6) MLR 983–1008 995

is self-evident; Acts and Regulations are legislation which is directly binding

996 (2019) 82(6) MLR 983–1008

WHY HAVE THE COURTS NOT EMBRACED THE ‘GENERAL

(2019) 82(6) MLR 983–1008 997

Doubts that a general duty would add anything of practical utility

The first consideration concerns the extent to which introducing a general

128 JUSTICE-All Souls Committee, n 1 above.

998 (2019) 82(6) MLR 983–1008

designed to address, in other words, now seems to be a peripheral one which

(2019) 82(6) MLR 983–1008 999

A second consideration concerns the difficulties of formulating a general duty.

141 Elliott, n 1 above.

1000 (2019) 82(6) MLR 983–1008

A second, stronger, possible reading of Elliott’s view can be inferred from

In this passage Elliott might be read as suggesting a different approach. The

145 ibid, 67 (emphasis added).

(2019) 82(6) MLR 983–1008 1001

inappropriately for certain contexts. A carer, for instance, might be materially

1002 (2019) 82(6) MLR 983–1008

regulations have been giving careful consideration to issues of reason-giving

156 See citations at n 93 above.

(2019) 82(6) MLR 983–1008 1003

It is important to be clear that this is not an argument for complacency. The

Weaker adherence to generality as an essential part of administrative law

The final consideration to be discussed is more theoretical in that it concerns

The focus on generality continues to shape how many aspects of administrative

1004 (2019) 82(6) MLR 983–1008

to organise discussion of judicial oversight of statutory interpretation around a

(2019) 82(6) MLR 983–1008 1005

or unified whole.182 From this viewpoint, a lack of ‘neatness’ in the law is a

1006 (2019) 82(6) MLR 983–1008

It is useful to conclude by offering some reflections on the importance of

187 See, especially, Doody n 9 above; Cunningham n 56 above.

(2019) 82(6) MLR 983–1008 1007

that administrative law scholarship is traditionally ‘court-centred’192 in that it

192 M. Taggart, ‘A Prolegomanon to an Intellectual History of Administrative Law in the Twentieth