1. Can the court demand reasons without demanding correct reasoning?

• Sometimes the court will quash a decision for inadequate reasons when the judges really seem to disagree with the public authority’s reasoning. See what you think of R v Parliamentary Commissioner for Administration ex parte Balchin No 2 (2000) 79 P & CR 157: the applicant succeeded with what the court called a ‘reasons challenge’. But was the court’s concern that the Ombudsman had not explained why he reached his decision, or that the decision was not supported by the reasons that the Ombudsman had given for it?
• If the court in Balchin No 2 was requiring the right reasoning under the guise of requiring the giving of reasons for a decision, could this be squared with
• The House of Lords authorities on reasons (especially Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153)?
• The principles governing the control of discretionary powers?
• Is there a sanction against a public authority that decides for the wrong reasons?  Would such a sanction be more or less invasive than review on Wednesbury unreasonableness grounds? (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  [1948] 1 K.B. 223)

2. Can you give an example of a situation in which a person would have no standing to require a public authority to give reasons for a decision?

• Think of a determination as to a particular person’s case (e.g., a decision whether they are entitled to housing benefit, or a decision to dismiss a public official as in Ridge v Baldwin). Should someone other than the person affected be entitled to know the reasons for the decision?
• Are there other cases? Think of the decision in R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598 (Chapter 1 above).

3. What difference has the Human Rights Act made to the law on administrative authorities’ duties to give reasons?

• See the discussion of the Handyside case in 3.7.

 4. Should judges be more deferential in reviewing matters of substance, than in reviewing matters of procedure?

• Are matters of substance more likely to involve considerations that are specific to the specialized work of the public authority making the initial decision? If so, it may be that judges (at least sometimes) need to defer more on matters of substance.
• Is the expertise of administrative authorities more likely to relate to matters of procedure, or matters of substance?
• Perhaps judges are less likely to damage the capacity of administrative authorities to do their own job if they impose their views as to good process, than if they impose their views as to good substance?

5. In Padfield v Minister of Agriculture [1968] AC 997, the House of Lords did not

impose a legal duty on the Minister to give reasons for decision. Would the courts

require reasons to be given today, in the same situation?

• Did the decision in Padfield fall within the deprivation principle, so as to require the giving of reasons? Was the Minister’s refusal to set up the investigative committee (to consider complaints regarding the operation of the milk sale scheme to the Milk Marketing Board) such as to deprive the aggrieved milk producers of a right or legitimate expectation? Did it impose a penalty on them or discipline them?
• Did the Minister’s decision not to set up the committee fall within R (Wooder) v Feggetter [2002] EWCA Civ 554?  Was the subject-matter ‘an interest so highly regarded by the law….that fairness requires that reasons…be given as of right’ Brooke LJ [24])?
• Alternatively, was there a ‘trigger factor’ such as to require reasons in the particular circumstances, even if the nature and impact of the decision alone do not call for reasons as a routine aspect of procedural fairness (Sedley J, R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242, 261)?  Might the decision of the minister be sufficiently aberrant as to call for reasons? Consider…
• The prima facie legitimate nature of the complaints of the milk producers (that the Milk Marketing Board refused to change regional variations in prices despite the changed transport costs).
• The fact the power to set up such an investigative committee was given to the Minister to deal with the very type of thing the producers were complaining about (i.e. Parliament intended the milk producers to have such a remedy).
• The Minister’s duty to act if the Board did something contrary to the public interest.
• Lord Pearce’s view of the investigative committee as “a cornerstone in the structure of the Act” and “a deliberate safeguard against injustices that might arise from the operation of the scheme” for producers (among others) (1052).

 6. Should the law require universities to give reasons for undergraduate examination marks?

• Consider the requirement that the giving of reasons must have some demonstrable process value before the law will require them.
• Can you think of any process values that would be achieved by requiring the giving of reasons for undergraduate exam results?
• Would the likelihood of a mark fairly reflecting the quality of the paper increase if those marking the paper had to explain themselves to the students concerned? Are current requirements sufficiently stringent to ensure a meritocracy in marking?
• Might it show respect to a student, if the person determining the outcome of their degree had to give reasons why the student was awarded a certain mark?
• Is there a risk of arbitrary decision-making, which may be mitigated by the transparency that is a perceived advantage of requiring reasons?  Might the inherent value-judgments and intuitive opinions necessary in some subjects render exceedingly difficult any requirement to give reasons?
• What about the countervailing process costs?
• Is it feasible to require reasons from a marker who may have 100 exam scripts to mark in a matter of days?
• Would this pose problems in terms of cost and time taken for marking?
• Would there be process costs attendant on challenges to the reasons given?
• Might it be dangerous to require reasons for undergraduate exam marks?
• Might it undermine the traditional anonymity between markers and students?
• Would this make it harder to get people to agree to take on the task of marking scripts?
• Disappointed candidates would want to challenge the adequacy of the reasons in court. Might the risk of misguided challenges undermine the certainty and speed of the whole exam marking process?
• Would the need to provide reasons prioritize certain tangible qualities of an exam script, to the detriment of less readily explicable features?
• Is this an area where the law could usefully require the giving of reasons?
• Would the court be able to judge the adequacy of the reasons given, or would the academic judgments be outside the range of justiciable matters?
• Would the giving of reasons enable the student to mount any effective sort of appeal or review?

Additional Questions

Should there be a general duty to give reasons to those affected by a decision?

• If the decision on reasons in R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598 is right (that the court should not order the Foreign Secretary to give reasons for refusing to confront a foreign government), then there cannot be a general duty. Would it be possible, though, to have a general duty to give reasons for purely administrative decisions that do not involve such considerations? Is there any way to define the cases to which it would apply?
• Might a general duty to give reasons over-emphasize the benefits of giving reasons? Would it pay insufficient attention to the process cost and process danger that might result?
• Is it logical to relegate the consideration of process danger (the danger of distorting good decision-making) to second place, given that the rationale behind procedural requirements is ultimately to contribute to good substantive decisions?
• Can you think of any benefits that would flow from a general duty to give reasons?
• Consider the possibly enhanced coherence of domestic law with EC law and the requirements of Article 6 of the Convention.
• Consider the moves towards open government: might a general duty to give reasons enhance this development?
• What would be the disadvantages of such a general requirement?
• Might the tendency of people to use any available procedural challenge when they are disappointed by the substance of an administrative decision lead to a great deal of cases challenging the adequacy of the reasoning?
• Consider the increased costs and time that would be required.
• Would such a general requirement to give reasons pose real problems where decisions by necessity have to be taken on the basis of inexplicable value judgments?

Should the courts be able to demand that a decision-maker uses the correct reasoning process?

• Consider Lords Bingham and Hoffman in R (Begum) v Denbigh High School [2006] UKHL 15 and their suggestion that, in domestic law, any incorrectly reasoned decision can be set aside on judicial review.
• Can you think of any scenario in which demanding that the decision-maker use the correct reasoning process will not demand that the decision-maker makes the right decision?  If the decision-maker uses the correct reasoning, as verified by the courts, but then takes a decision that does not follow logically from the reasoning, might a claimant have a good case that the public authority acted as no reasonable authority would have done? (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223)
• Think about the rationales for the courts’ insistence that they carry out a review and not an appeal when they consider a claim for judicial review.  Would these rationales be undermined by an ability to demand that the decision-maker use the correct reasoning?