LAW1081: The Individual and the State

Lecture 17: Procedural Impropriety II

Essential Reading
 Roger Masterman and Colin Murray Exploring Constitutional and Administrative Law
(Pearson, 2018), 567-584
 Ridge v Baldwin [1964] AC 40
 R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531
 Osborn v Parole Board [2013] UKSC 61

Recommended Reading
 M Loughlin ‘Procedural Fairness: A Study in the Crisis of Administrative Law Theory’
(1978) 28 University of Toronto Law Journal 215.
 M Elliott ‘Has the common law duty to give reasons come of age yet?’ (2011) PL 56
 M Elliott ‘A right to an oral hearing in quasi-judicial proceedings?’ (2005) 64(3) CLJ
523

Learning outcomes
 By the end of this lecture, you should be able to describe and understand
 The broad considerations/framework that courts take into account in Qs of
procedural fairness
 Consultation
 The right to notice
 The right to hearing: oral/ written representations; witnesses; cross-examination;
and legal representation
 The duty to give reasons

Learning outcomes
 By the end of this lecture, you should be able to describe and understand
 The broad considerations/framework that courts take into account in Qs of
procedural fairness
 Consultation
 The right to notice
 The right to hearing: oral/ written representations; witnesses; cross-examination;
and legal representation
 The duty to give reasons

I. The duty to act fairly

The discrediting of the administrative / judicial proceedings distinction
 Prior to Ridge v Baldwin, courts took the view that administrative decisions were not
subject to considerations of natural justice; only judicial proceedings were.
 Ridge v Baldwin [1964] AC 40. The Chief Constable of Brighton had been dismissed
by the local police authority without a hearing. The authority had statutory power to
deprive him of his position for incapacity or misconduct.

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  HOL: Ridge was entitled to a hearing for two reasons: a. he had been deprived of his
job and source of livelihood (impact and duty of respect); b. the power to dismiss
him was limited by statute, so the authority did not have complete discretion – some
checks were appropriate as to whether the dismissal had occurred on statutory
grounds.
 Lord Reid (at 72): ‘We do not have a developed system of administrative law -
perhaps because until fairly recently we did not need it.’
 In short, the HOL argued courts should look not to some classification of the type of
decision being made, or the status of the person making it but rather whether
fairness demanded consultation. In determining this issue, the primary matter to
look at was the impact of the decision on the person affected and in particular on his
or her rights or interests. Per Lord Morris, 113-4:

‘the essential requirements of natural justice at least include that before

someone is condemned he is to have an opportunity of defending himself,
and in order that he may do so that he is to be made aware of the charges or
allegations or suggestions which he has to meet….’

 Many are critical of the removal of this distinction. It is either seen as too broad
(over judicialisation), or too narrow (in that it presumes an adversarial approach is
the best approach). Eg., Loughlin: the more flexible fairness is, the more courts will
need to tailor procedural fairness—but this also expands function of courts.

The basic emphasis of the modern approach: look at the impact on those affected by the
decision
 Rights: Decision impacts on a person's legal rights or fundamental freedoms:
consultation or a hearing is almost always necessary
 Interests: Decision impacts on a person's interests: a balancing act will be required,
though still depend on magnitude of impact; in such cases, the type of hearing will
still be relevant; as will benefit of fairness to individual and cost to public body
concerned
 e.g. of a severe impact on livelihood: R v Barnsley Metropolitan Borough Council ex p
Hook [1976] 1 WLR 1052. Harry Hook was a stall holder in Barnsley market. He was
banned from holding a stall for life by the Council for urinating in the street. At the
main hearing, his representatives, an articled clerk and a union representative were
allowed to make representations, but were not told the particulars of the charge or
the evidence. Lord Denning said at 1055-57: ‘I do not mind whether the market
holder is exercising a judicial or an administrative function. A stallholder counts on
his right [to have a stall] to.... earn his living.’
 In short, the greater the impact on an individual’s rights or interests, the greater the
procedural safeguards
 NB: Masterman and Murray suggest an alternative approach—that some
requirements are core and some are optional:
o Core = right to notice; right to make out a case (in this set of lecture notes,
we call this the right to a written hearing)
o Optional = an oral hearing; an appeal process; legal representation; cross
examination of witnesses; reasons for decision; the right to be consulted

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  But at the basis of this distinction is again the importance of the right or interest in
question: the right to notice and the right to a hearing are core because without
these rights individuals cannot defend themselves at all; they are the basis or
prerequisite for all other claims.

But note the distinction between withdrawal of a benefit (forfeiture) and refusal to confer
it initially (application)
 McInnes v Onslow Fane [1978] 1 WLR 1520: in this case the British Boxing Board of
Control refused McInnes’ application for a management license without giving him a
hearing—since McInnes did not have an existing license, his livelihood was not at
stake (contrast with Hook). In ‘application cases’ (as opposed to cases where a
benefit has been revoked), all that an applicant could reasonably demand was that
the decision maker should reach an ‘honest conclusion without bias and not in
pursuance of any capricious policy.’
 This case is authority for a distinction between application and forfeiture cases: in
the latter, because an existing benefit is potentially being withdrawn, the courts are
likely to impose greater procedural protection; in the former, where the applicant
had no benefit to begin with, the courts are less likely to.
 However, note that in many cases statutes grant rights to reasons e.g. some
procedural fairness, where a benefit, e.g. a licence, has been refused.
 R v Huntington District Council ex p Cowan [1984] 1 WLR 501: the claimant applied
for a license to run a night club on his premises. The applicant heard that the council
had received various objections from local people to the club. The claimant was (a)
not informed by the Council that any objections had been received nor (b) of the
substance of those objections; and (c) was not given the opportunity to comment on
those objections. Fairness required that the claimant should be told of the objections
and given an opportunity to reply.

II. Consultation
 Consultation is the process through which the public might have the opportunity to
have a say in rule-making or policymaking. In general, in the law of England and
Wales it is only possible for the public to require a right to consultation if such a right
is granted by statute or, alternatively, where a legitimate expectation to consultation
has been created. Consultation might deliver many important benefits, which were
recently summarised by Lord Wilson in his judgment in R (Moseley) v Haringey LBC
[2014] UKSC 56:

23. A public authority's duty to consult those interested before taking a

decision can arise in a variety of ways. Most commonly, as here, the duty is
generated by statute. Not infrequently, however, it is generated by the duty
cast by the common law upon a public authority to act fairly. The search for
the demands of fairness in this context is often illumined by the doctrine of
legitimate expectation; such was the source, for example, of its duty to
consult the residents of a care home for the elderly before deciding whether
to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73. But
irrespective of how the duty to consult has been generated, that same

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 common law duty of procedural fairness will inform the manner in which the
consultation should be conducted.

24. Fairness is a protean concept, not susceptible of much generalised

enlargement. But its requirements in this context must be linked to the
purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013]
3 WLR 1020, this court addressed the common law duty of procedural
fairness in the determination of a person's legal rights. Nevertheless the first
two of the purposes of procedural fairness in that somewhat different
context, identified by Lord Reed in paras 67 and 68 of his judgment, equally
underlie the requirement that a consultation should be fair. First, the
requirement "is liable to result in better decisions, by ensuring that the
decision-maker receives all relevant information and that it is properly
tested" (para 67). Second, it avoids "the sense of injustice which the person
who is the subject of the decision will otherwise feel" (para 68). Such are two
valuable practical consequences of fair consultation. But underlying it is also
a third purpose, reflective of the democratic principle at the heart of our
society. This third purpose is particularly relevant in a case like the present, in
which the question was not "Yes or no, should we close this particular care
home, this particular school etc?" It was "Required, as we are, to make a
taxation-related scheme for application to all the inhabitants of our Borough,
should we make one in the terms which we here propose?’

 This case serves to emphasise the importance of consultation to the rules on

procedural fairness more generally, and also to the law’s desire to support the role
of consultation in the enhancement of democratic discourse and accountability. The
case is also significant because the Supreme Court also held that in the
circumstances of the case the defendant council should not only have consulted on
the proposal that it had chosen, but also on the alternatives that it had rejected, in
order to give respondents the opportunity to make informed representations on the
full range of options open to the authority.
 Where does this ‘right’ to consultation sit in terms of importance? If we think about
McInnes v Onslow Fane, consultation may sit low in the hierarchy of procedural
rights (compared to say the right to notice or the right to a hearing), because
consultation is often about a benefit to be conferred rather than an existing benefit
which is being taken away.

Where there is a statutory duty relevant parties should be consulted

 Agricultural Industry Training Board v. Aylesbury Mushrooms [1972] 1 All ER 280. The
Secretary of State for Employment and Productivity was required by statute to
consult representative organisations before making an industrial training order
under the act. He failed to contact the claimant Aylesbury Mushrooms before
making an order to establish a training board for the agricultural, horticultural and
forestry industry. The effect of not consulting meant that the regulations were not
binding on the claimant.

What counts as adequate consultation?

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  In order for consultation to be validly carried out, a number of criteria must be met.
These were set out in R v. Brent LBC, ex parte Gunning (1985) 84 LGR 168:

‘First, that consultation must be at time when proposals are still at a

formative stage. Second, that the proposer must give sufficient reasons for
any proposal to permit of intelligent consideration and response. Third, to
which I shall return, that adequate time must be given for consideration and
response and, finally, fourth, that the product of consultation must be
conscientiously taken into account in finalising any statutory proposals.’ Per
Hodgson J.

 Note: the Gunning criteria only apply where there has actually been consultation.

Duty to consult can overlap with procedural legitimate expectation

 See eg., R v. Liverpool Corporation, ex parte Taxi Fleet [1972] 2 QB 299; Council of Civil
Service Unions v Minister for the Civil Service [1985] AC 374

III. The right to notice

 What is notice? It is about providing the individual with the case against them when
they face a governmental decision that will cause them detriment.

Two basic rationales: (a) it is a pre-requisite to the exercise of other procedural rights; (b)
‘equality of arms’
 ‘denunciation on grounds that are not disclosed is the stuff of nightmares’ (per Lord
Hope in Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74 at
[83].
 ‘Since the person affected [by a decision] usually cannot make worthwhile
representations without knowing what factors may weigh against his interests,
fairness will very often require that he is informed of the gist of the case which he
has to answer.’ R v Secretary of State for the Home Department ex p Doody and
Others [1994] 1 AC 531, at 560, Lord Mustill.
 R v Governing Body of Dunraven School & Anor, ex parte B (by his Mother & Next
Friend) (1999) CA (unrep) 21 December 15 year-old boy was excluded from school.
He applied for JR on basis that he had not been informed of the main evidence
against him (provided by another boy). The court held his parents should have been
informed of the case against him, as otherwise it would be impossible to argue
against the decision.

The right to notice is likely to be excluded only for particular pressing reasons of public
policy/safety:
 Roberts v Parole Board [2005] UKHL 45. The claimant was a prisoner who had been
convicted of killing 3 police officers in 1966. His tariff had long since expired. During
his fifth parole hearing, the Board determined that allowing certain evidence against
the prisoner to be disclosed to him might well reveal the source of the evidence,
who might then be endangered. So that information was revealed not to the

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 prisoner but only to a ‘special advocate’, who could challenge it, but not discuss the
evidence with the prisoner. HOL held 3:2: bearing in mind the risk to the source and
the interests of the pub, this did not violate Art 5(4) ECHR. 1 (The case also enunciated
general common law principles). Lord Carswell (in the majority) at [143]-[144] said:

‘The present case is a classic instance of weighing up competing interests. The

appellant's interest in presenting his case effectively with sufficient knowledge
of the allegations made against him is clear and strong. The informant has a
compelling interest in being protected from dangerous consequences which
might ensue if any indication leaked out which could lead to his identification.
Thirdly, there is the public interest in ensuring that the Parole Board has all
proper material before it to enable it to decide which prisoners are safe to
release from prison. … Having balanced these interests, I conclude that the
interests which I have outlined of the informant and the public must prevail
over those of the appellant, strong though the latter may be.’

 W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 898. The
Court of Appeal affirmed that the right to knowledge of case against was a fundamental
right at common law and could only be displaced by clear statutory language.

The right to notice may also be excluded where claimant is a ‘mere applicant’ because:
 Usually, no wrongdoing is alleged against the ‘applicant’.
 Courts may treat applicant's request as duty to give reasons for final decision: E.g.
McInnes v Onslow Fane [1974] 1 WLR 1520
 Applicant may be entitled to be told substance of any allegations made against them
by others, e.g. R v Huntington District Council ex p Cowan [1984] 1 WLR 501.

IV. The right to a hearing: oral and written representation

 The common law has long imposed a requirement that those who are affected by a
decision should have the opportunity to be heard before a decision is made. The
hearing does not necessarily have to be an oral hearing – it is often appropriate to
allow individuals to make representations in writing. However, the courts will
sometimes impose a duty to hold an oral hearing on a decision-maker where fairness
will be served by this.

Applicants may be refused both unless reputation in danger

 See R v Secretary of State for the Home Department ex parte Al Fayed [1997] 1 All ER
228. Claimants rejected for citizenship by naturalisation on the grounds that they
failed to satisfy criterion “of previous good character”. As the decision impacted
upon their ‘good name’ the Court held they should have been given the chance to
respond.

If "vital interests" at stake, much more likely to be granted

1
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is
not lawful.

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  R v Secretary of State for the Home Dept ex p Harry [1998] 1 WLR 1737. H was a
mental patient detained in conditions of mental security which would mean minimal
liberty. Following a review of his case, an advisory board advised the Home Secretary
to refuse the recommendation of a mental health review tribunal that H be
transferred to a lower security hospital, with considerably more freedom, and that
he should stay at a maximum security classification. The Home Secretary did not
disclose the advice to the detainee or allow him to make representations. The Court
said he should have done both.
 R (on the application of Smith) v Parole Board [2005] UKHL 1. The appellants (S and
W), formerly prisoners serving determinate sentences, appealed against decisions
upholding the refusal of the Parole Board to hold oral hearings in respect of their
opposition to the revocation of their licences (revocation meaning that they were
returned to prison). Held: while the requirements of procedural fairness did not
require the Board to hold a hearing in every case of revocation of licence it should
have done in this case.

‘The common law duty of procedural fairness does not, in my opinion,

require the Parole Board to hold an oral hearing in every case where a
determinate sentence prisoner resists recall, if he does not decline the offer
of such a hearing. But I do not think the duty is as constricted as has hitherto
been held and assumed. Even if important facts are not in dispute, they may
be open to explanation or mitigation, or may lose some of their significance
in the light of other new facts. While the Parole Board's task certainly is to
assess risk, it may well be greatly assisted in discharging it (one way or the
other) by exposure to the prisoner or the questioning of those who have
dealt with him. It may often be very difficult to address effective
representations without knowing the points which are troubling the decision-
maker. The prisoner should have the benefit of a procedure which fairly
reflects, on the facts of his particular case, the importance of what is at stake
for him, as for society.’ [35]

Had applicant requested a hearing?

 Lloyds v McMahon [1987 1 AC 625. Liverpool City Council had been late in setting a
rate, so the Council had lost money, ie., the rates it would have collected had the
rate been set at the proper time. The District Auditor (DA) wrote to the Councillors,
warning them that due to their wilful misconduct they were in danger of being held
personally liable to make up this loss. The individual Councillors were informed that
they could make written representations to the DA before he reached his decision.
They did so but the DA found them jointly and severally liable for the sum lost,
namely £106,103. The case was an appeal against the DA's decision under the LGA
1982. Held: no right to an oral hearing. ‘If any [of the councillors] had asked to be
heard orally and the auditor had refused, there would have been clear grounds for a
complaint of unfairness’ (Lord Bridge at p. 706)

V. Witnesses, cross examination and legal representation

Basic approach: is there an important dispute of fact on an issue that seriously affects the
rights of the claimant?

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 The right to legal representation is the most costly of rights (in administrative terms),
and therefore most cumbersome and hardest to argue for. The courts have generally
been reluctant to impose a requirement of legal representation because of the very
substantial process cost that might be imposed by such a requirement.
 R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251.
Another prisoners’ right case—the court explained which factors would be important
in determining whether or not permission to have legal representation should be
granted:
o seriousness of charge
o whether points of law were likely to arise
o capacity of prisoner to present case
o procedural difficulties
o speed
o fairness between parties
o The courts are also generally reluctant to require cross-examination of
witnesses or other parties in cases of administrative decision-making.
However, there are some circumstances in which the common law, or perhaps
the requirements of Article 6 ECHR, will permit cross-examination.
 R v Board of Visitors of Hull Prison ex parte St Germain No 2 (1979); R v. Board of
Visitors of the Maze Prison, ex parte Hone and McCartan [1988] AC 379 (HL). The
claimants, prisoners in Hull Prison, faced disciplinary offence charges arising from a
prison riot. A finding against them entailed a loss of remission, effectively increasing
the length of their time in prison – so liberty was at issue. The claimants sought
judicial review arguing that the procedure had been unfair, given that the Board did
not allow them to call witnesses in alibi or to challenge the hearsay evidence of
witnesses through cross-examination. The Court considered that both the nature of
the matter (alibis could disprove their involvement in the riot) and its seriousness
(liberty was at stake) required the availability of cross-examination under the
overriding obligation to provide a fair hearing.
 Bushell v. Secretary of State for the Environment [1980] 2 All ER 608 (HL) – where a
government witness is presenting new evidence to an inquiry that has not been
previously disclosed, or where the evidence is particularly controversial, counsel for
participants in the inquiry should be able to cross-examine the witness.
 R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin): Consultant
paediatrician faced proceedings against fitness to practice on the basis of allegations
of sexual assault of children in Kenya. Although most evidence came from Witness A,
she was not called into court – so no cross-examination was possible. The Court found
a breach of procedural fairness. Stadlen J stated:

‘It is hard to imagine circumstances in which the ability to cross-examine the

uncorroborated allegations of a single witness would assume a greater
importance to a professional man faced with such serious allegations.’ [43]

 R(S) Knowsley NHS Primary Care Trust [2006] EWHC 26: a doctor faced being
effectively barred from practice after allegations of indecently assaulting four
patients. Held: the disciplinary panel should hear the complainants and permit their
cross-examination.

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VI. The duty to give reasons
 The duty to give reasons is an important part of the requirements in respect of
procedural fairness. There is a general view that the imposition of the duty to give
reasons can support the broad instrumental and non-instrumental goals set out in
the previous lecture. Common law courts have been unwilling to impose a blanket
duty to give reasons in respect of all administrative decisions. However, over time
the duty has expanded, and it is fair to say that the duty now has broad scope.

Distinguish from the right to notice of case against a person

 Notice: prior to the final decision being made, a claimant may argue that they should
have an opportunity to hear the case against them, so that they might make
representations against it.
 Reasons: a separate head of review—the final decision was flawed regardless of the
process that led up to it, because reasons for that final decision were not given.

Arguments for and against requiring reasons for final decisions

Arguments for:
 ensures that decision-makers’ minds are focused on the task at hand and ensures
that they make better decisions (R (Telford Trustee No.1 Ltd) v Telford and Wrekin
Council [2011] EWCA Civ 896). (instrumental)
 Reasons enable the person affected to judge whether the decision has been properly
taken (reasons may reveal, for instance, an irrelevant consideration was taken into
account in making the decision); or they may assist the judicial review court in
assessing whether the decision is properly taken. (instrumental)—recall Osborn v.
Parole Board [2013] UKSC 61, [67]-[72]
 The giving of reasons for a decision may show respect for the individuals concerned
recognising them as rational beings capable of understanding why the decision has
been taken. Reasons show that the decision has been taken carefully and after
proper consideration, showing respect for the person affected. (non-instrumental) –
again, Osborn

Arguments against:
 Free and uninhibited discussion would be impeded by considerations of what would
be made public subsequently.
 It could amount to an excessive burden on government machinery (delays, costs
etc).
 Decisions would be unduly ‘judicialised’.
 Decision-makers would be less candid (and conceal the true reasons).

Reasons required by statute

 Eg., Tribunals and Inquiries Act 1992, s. 10

The general position at common law: there is no general duty at common law to give reasons
for administrative decisions, but there will be in particular cases.

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  R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531. See
below on facts.
 But note Stefan v GMC [1999] 1 WLR 1293 at 1301:

‘There is certainly a strong argument for the view that what were once seen as
exceptions to a rule may now be becoming examples of the norm, and the
cases where reasons are not required may be taking on the appearance of
exceptions.’

 “there is no clear indication of where the division comes." (R v Higher Education

Funding Council (1994) 1 All ER, at 666, per Sedley J).

Two basic categories

 Those where decision adversely impacts upon "highly regarded" rights or interests of
the applicant
 Other cases, where the applicant will need to point to some particular feature of the
particular decision made.

The "highly regarded interests" category

 R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531. The
four applicants had each received mandatory life sentences for murder. The Home
Secretary, after consulting with the Lord Chief Justice and the trial judge had set the
"penal element" in the sentence, the part they had to serve to satisfy the demands
of retribution and deterrence. Once the penal part of the sentence had been served,
the case would then go to the Parole Board who could then recommend whether it
was safe to release the prisoner on licence. If it was not, they could recommend that
the prisoner had to serve a further period of imprisonment in order to protect the
public from him ("the risk element"). In this case, the Home Secretary determined
the penal period without consulting the prisoners; he then informed them of his
decision, but did not give them any reason for it, or tell them whether he had fixed a
period which differed from that recommended by the judges. The applicants sought,
inter alia, declarations that the Home Secretary was required to inform them (1)
what period had been recommended by the judges and their reasons; (2) if he had
differed from the judges, of his reasons for so doing. Held:

(a) Without reasons, the prisoners could not, as they were entitled to, make
meaningful representations to the H.S. about the fixing of the penal element.
(b) Fairness required reasons to be given, given that the liberty of the
applicants was at stake and their position was anomalous compared to other
prisoners.
(c) Without reasons, "the prisoner has virtually no means of ascertaining
whether this is an instance where the decision-making process has gone
astray" (per Lord Mustill, at 565)

‘Is refusal to give reasons fair? I would answer without hesitation that it is
not. As soon as the jury returns its verdict the offender knows that he will be
locked up for a very long time. For just how long immediately becomes the

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 most important thing in the prisoner's life. … Where a defendant is convicted
of, say, several armed robberies he knows that he faces a stiff sentence: he
can be advised by reference to a public tariff of the range of sentences he
must expect; he hears counsel address the judge on the relationship between
his offences and the tariff; he will often hear the judge give an indication
during exchanges with counsel of how his mind is working; and when
sentence is pronounced he will always be told the reasons for it. So also
when a discretionary life sentence is imposed, coupled with an order under
section 34. Contrast this with the position of the prisoner sentenced for
murder. He never sees the Home Secretary; he has no dialogue with him: he
cannot fathom how his mind is working. There is no true tariff, or at least no
tariff exposed to public view which might give the prisoner an idea of what to
expect. The announcement of his first review date arrives out of thin air,
wholly without explanation. The distant oracle has spoken, and that is that. …
I therefore simply ask, is it fair that the mandatory life prisoner should be
wholly deprived of the information which all other prisoners receive as a
matter of course. I am clearly of the opinion that it is not.’ (564-5, per Lord
Mustill)

 R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310. Public body
provided a very low award for the unfair dismissal of a prison officer. The court
considered that ‘the duty to act fairly in this case extends to an obligation to give
reasons’. The need for an explanation of the low award and the lack of significant
factors militating against reasons were key here.
 R v Ministry of Defence, ex parte Murray [1998] COD 134. The reviewing court found
that a Court Martial was required to provide reasons after imposing a severe
sentence on an officer and rejecting his argument that his behaviour had been partly
caused by anti-malarial medication. Key to this finding was the fact that the sentence
would end the officer’s military career and thus it was important for him to assess
whether any reviewable errors had occurred in the reasoning of the Court Martial.

Cases where individual must show a particular feature of the decision is such that it
requires reasons
Character of the decision making process: is it judicial in character?
 Stefan v GMC [1999] 1 WLR 1293 PC; ex parte Cunningham The Times 21 Jan 1992)

Effect of decision on individual

 Stefan v GMC [1999] 1 WLR 1293 (PC). The applicant doctor had been suspended
indefinitely from practicing by the GMC, a statutory body. Their reasons merely
recited the grounds given in the statute for suspension: that they had judged her
“fitness to practice to be seriously impaired” because of her physical and mental
condition. The Board was governed by detailed statutory regulations, none of which
mentioned any obligation to give reasons for its decisions. Held: the Board had to
give outline reasons for its decisions.

Factors which may lead to the requirement to give reasons

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Where the decision reached seems prima facie unreasonable, unlawful or inexplicable:
e.g:
 all the available evidence seems to point the other way (Sinclair The Times 5 Feb
1992)
 the decision is substantially different from what the applicant reasonably expected.
(eg R v Criminal Injuries Compensation Board ex p Cunningham [1991] 4 All E.R. 310;
R v. City of London Corporation, ex p. Matson (1995) 94 LGR 443 (this case may also
be explicable because the decision impugned the claimant’s reputation).

There was a conflict of (factual) evidence, and it is unclear what view of the evidence the
decider took
 R v Criminal Injuries Compensation Board ex p Cummins (1992) [The Times, 21
January 1992].

Where there is a statutory right of appeal from the body in question

 Stefan v General Medical Council (1999). If the person with the right of appeal has no
reasons, they may well be unable to exercise the right of appeal in any meaningful
way. (see above on facts)

Cases where reasons do not (yet) have to be given

If interests are not sufficiently serious
 R v Higher Education Funding Council [1994] 1 WLR 241: A leading Dental School was
assessed for the quality of its research by HEFC and was awarded a lower than
expected grade for its research, with the consequence that its funding would be cut
by £270,000. Sedley J claimed the interests at stake were not sufficiently serious; and
there was also an issue about the difficulty of determining what would constitute
academic judgment—that is, even if reasons were given it was hard to see how they
could be evaluated.

If there are statutory duties to put information re a decision in the public domain, may be
deemed to exclude any additional common law duty
 R (on the application of Hasan) v Secretary of State for Trade and Industry [2008]
EWCA Civ 1312; [2009] 3 All ER 539.

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