The Reasons for Reasons: External and Internal Pressures For a General Duty to Give Reasons

Paul Daly March 17, 2017

What follows is a longer version of a short note written for Per Incuriam, the termly publication of the Cambridge University Law Society.

As is well known, perhaps even notorious, there is no general common law duty to give reasons for administrative decisions. Even those judges who seem in favour of recognising a general duty typically stop short of requiring reasons to be given in all circumstances (see e.g. here and here).

But does the common lawyer’s obdurate stance make sense in a world in which “[t]he use of standardised reasons is characteristic of modern decision-making practices in fields of public administration where large numbers of applications can be processed more efficiently by employing information technology, using decision templates, drop-down menus and other software” (R (Agyarko) v Home Secretary [2017] UKSC 11, at para. 71, per Lord Reed), a world in which, moreover, the scope and intensity of review of the reasons for decisions has increased inexorably in recent decades?

Given the relative ease with which reasons for decisions can be produced these days, it is worth wondering why the common law continues to set its face stubbornly against the recognition of a general right to reasons: the usual objections based on the potential of a reason-giving requirement to gum up the works of administrative machinery have been rendered suspect by technological developments. The difficulty is, as Colin Yeo observed in a comment on Agyarko, that “[s]tandardised, templated reasons…can profoundly irritate the recipients, particularly where mistakes are made by the official responsible”. If the point of requiring reasons is, at least in part, to treat people with dignity and respect, the point is blunted by the provision of reasons that do not engage with the unique circumstances of individual cases. Taking the point seriously means courts would have to inquire into whether good reasons were provided. But if so, decision-makers could not rely so readily on the new technologies that facilitate the production of standardised reasons.

The ‘no general duty to give reasons’ stance has also come under pressure from another angle internal to administrative law. Because the intensity of substantive review of decisions for reasonableness and, increasingly, proportionality has increased dramatically in recent years it is no longer adequate for decision-makers whose decisions are marked by badges of unreasonableness or have disproportionate effects to respond that they had some reasons to justify their decision — the reasons they give must engage with the criticism of their decision, that is, they must be good reasons, not just standardised reasons. For instance, as my colleague Professor Mark Elliott has suggested, “[t]he imposition of a duty to give reasons in the event of departure [from an established policy] is a natural corollary of the substantive requirement that policy generally be adhered to”.

Moreover, as the Federal Court of Appeal recently observed, having commented on the low threshold applied in Canada to the existence of reasons, decision-makers have strong incentives to provide good reasons in order to survive judicial review:

…it is important to emphasize that the foregoing discussion only concerns the minimum requirements that will still pass muster under reasonableness review in accordance with Newfoundland Nurses. The best administrative decision-makers—the ones that have the strongest reputations and command public confidence—go beyond the minimum. They strive to fulfil the many important substantive and procedural purposes of reasons for decision…They do so without any sacrifice of timeliness, efficiency, brevity, and practicality.

In substantive review, however, the focus has typically been on the provision of good reasons at the time of the hearing, not contemporaneous with the original decision. This may not result in treating people with dignity and respect, for the goal is to provide reasons to allow the court to perform its reviewing function, not to explain to the individual concerned why a particular decision was taken.

Nonetheless, these external and internal pressures could yet ensure that the common law duty to give reasons comes of age. Technology could help decision-makers to provide standardised reasons that are also good reasons. Drop-down menus and templates can usefully focus decision-makers’ minds on issues that regularly recur and generally prompt one of several responses. With technology focusing their minds on what is relevant, decision-makers can then turn their surplus attention to providing good reasons that are responsive to the facts presented.

And courts might usefully take a hard line against reasons that are not provided contemporaneously but are cooked up after the fact. Indeed, there are encouraging examples of judges recognising the desirability of contemporaneous reasons (see e.g. here and here and, to a lesser extent, here). Disregarding, or subjecting to closer scrutiny, reasons that were not provided at the time a decision was made would incentivise decision-makers to canvass the available bases of decision as thoroughly as possible during the administrative process.

Properly understood, these internal and external pressures combine to make the recognition of a universal reason-giving requirement very plausible. To the extent that technology makes more effective decision-making possible, the objections to recognising a general duty to give reasons in administrative law will start to ring hollow. And if good, contemporaneous reasons are required to survive substantive judicial review, the jump to a general duty to give reasons will become less daunting.

 

Updated March 17, 2017 at 15:19.

Comments

Laisser un commentaire