Responsive Reasons in Administrative Law: the UK

This is the latest post in my series on ‘Responsive Reasons’: for the previous posts, see here, here and here

It cannot be said that the notions of justification and responsiveness have been developed in the United Kingdom to anything like the extent they have been in Canada and Ireland.

Nonetheless, a degree of commitment to justification and responsiveness can be glimpsed in British jurisprudence. In particular, where one decision-maker has made recommendations or a decision subsequently overridden by a second decision-maker, the second decision-maker bears a burden of explaining itself in responsive terms: the second decision must be justified in view of the existence of the first decision, and the decision-maker must respond to relevant elements of the first decision.

The leading case is R (Evans) v Attorney General.[1] Here, the Upper Tribunal ordered the disclosure of some of Prince Charles’s (as he then was) letters to Ministers: the Guardian newspaper had requested them under access to information legislation.[2] These were the so-called ‘black spider memos’, a tribute to the then-Prince’s handwriting style. Much clamour ensued: the law was amended to ensure that no letters would be disclosed in the future; and the Attorney General exercised a veto power in respect of the disclosure of the black spider memos under s. 53 of the Freedom of Information Act, which provides for a veto where the Attorney General has “reasonable grounds” for its exercise. The veto was accompanied by a detailed decision explaining why the Attorney General considered it to be in the public interest to refuse to disclose the black spider letters. Why did the Attorney General veto the Upper Tribunal’s decision? From the Attorney General’s own summary:

• The fact that the information in question consisted of private and confidential letters between The Prince of Wales and Ministers.
• The fact that the request in this case was for recent correspondence.
• The fact that the letters in this case formed part of The Prince of Wales’s preparation for kingship.
• The potential damage that disclosure would do to the principle of The Prince of Wales’s political neutrality, which could seriously undermine the Prince’s ability to fulfil his duties when he becomes King.
• The ability of the Monarch to engage with the Government of the day whatever its political colour, and maintain political neutrality as a cornerstone of the UK’s constitutional framework

The newspaper sought to quash the veto, in litigation that terminated with the UKSC’s decision in Evans. In finding for the newspaper, the UK Supreme Court split three ways. A plurality of three (Lords Neuberger, Kerr and Reed) drew on fundamental constitutional principles to construe the veto power narrowly and quash its exercise in this case. A minority of two (Lord Wilson and Lord Hughes) read the veto power broadly and upheld its exercise. Whereas two more (Lord Mance and Lady Hale) agreed with the conclusions of the plurality but on much narrower grounds. For present purposes I am interested in the plurality reasons and those of Lord Mance and Lady Hale.

Having considered a series of decisions in which the courts had invoked fundamental principles to narrow the scope of executive and legislative action, Lord Neuberger concluded “that where, as here, a court has conducted a full open hearing into the question of whether, in the light of certain facts and competing arguments, the public interest favours disclosure of certain information and has concluded for reasons given in a judgment that it does, section 53 cannot be invoked effectively to overrule that judgment merely because a member of the executive, considering the same facts and arguments, takes a different view”.[3] His solution was to give s. 53 a “significantly narrower application than it might otherwise have had, in order to respect the two fundamental constitutional principles identified”.[4] Specifically, he endorsed the Court of Appeal’s approach, requiring “a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law”.[5]

Lord Mance took a slightly narrower view, based on a general acceptance that Parliament can authorize a radical measure such as a veto of the decision of an independent tribunal, tempered by an acknowledgment that searching judicial scrutiny is required of the rationality of any such veto. The analysis must be “context-specific”:[6] “When the court scrutinises the grounds relied upon for a certificate, it must do so necessarily against the background of the relevant circumstances and in the light of the decision at which the certificate is aimed”.[7] On the one hand, mere disagreement with the findings of the Upper Tribunal would not be sufficient: it would “require the clearest possible justification” in legislation to authorize a veto on such grounds.[8] On the other hand, “disagreement about the relative weight to be attributed to competing interests found by the tribunal is a different matter,…which the statute contemplates and which a certificate could properly address, by properly explained and solid reasons”.[9] Here, however, the Attorney General had erred by “undertaking his own redetermination of the relevant background circumstances”.[10] He had given no “real answer” to the Tribunal’s “closely reasoned analysis and its clear rebuttal of any suggestion that a risk of misperception could justify withholding of disclosure”.[11] Accordingly, the veto was based on “findings which differed, radically, from those made by the Upper Tribunal,…without any real or adequate explanation”.[12]

In substance, then, the majority judges scrutinized the Attorney General’s reasons, respectful of the possibility that an accountable political actor might sometimes permissibly wield a veto, but conscious of the violence to the constitutional order of permitting the executive to set aside decisions of independent tribunals on the basis of mere disagreement. Where the reasons were found to be lacking was in the absence of engagement with the analysis of the Upper Tribunal. In short, the fatal flaw in the Attorney General’s reasons was a lack of responsiveness to that analysis.

The reasoning in Evans is supported by a prior line of cases. For instance, in R (Bradley) v Secretary of State for Work & Pensions,[13] the Ombudsman made findings of maladministration against the Department in respect of the winding up of final salary pension schemes. On foot of these findings the Ombudsman made several recommendations, one of which was to replace the full amounts lost by those affected by the maladministration. The Minister rejected the findings of the Ombudsman. One of the affected persons sought judicial review. The Court of Appeal quashed aspects of the Minister’s decision, for reasons explained by Sir John Chadwick:

I am not persuaded that the Secretary of State was entitled to reject the Ombudsman’s finding merely because he preferred another view which could not be characterised as irrational. As I have said, earlier in this judgment, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the Ombudsman’s findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies 1967 Act: he must have a reason (other than simply a preference for his own view) for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act.[14]

Similarly, in R v Warwickshire County Council, Ex p Powergen plc,[15] a planning inspector’s decision on a road safety issue constrained the Council’s ability to take a different view, because of the inspector’s “independence” and the “process” he had followed;[16] in R v Secretary of State for the Home Department, Ex p Danaei,[17] the Minister was bound to accept an immigration adjudicator’s finding of fact about the circumstances in which the applicant had left Iran unless the finding was “demonstrably flawed” or undermined by “fresh evidence”; in R (Hindawi) v Secretary of State for Justice,[18] the Minister was not entitled to depart from a finding of fact made by the Parole Board without “good reason” for doing so;[19] and in AB v Secretary of State for the Home Department, failure to grapple with a report relevant to the application of the Minister’s own policies led her into unlawfulness.[20]

Whereas the Canadian and Irish cases involve situations where decision-makers failed to respond to evidence and submissions, these were all instances in which two bodies were required to or were able to take a view on the same issue. Indeed, it has been suggested in the context of Parole Board decisions that the line of cases supporting Evans relate primarily to subsequent departure from findings of fact. In Hindawi, for example, Thomas LJ (as he then was) drew a distinction between the Parole Board’s findings of fact and its assessment of risk: “assessment of risk is, as experience has more clearly shown over the years, a task of great difficulty where those entrusted with it can reasonable differ”.[21] The idea here is that where a body, even an expert body, performs an evaluative task, rather than a fact-finding function, another decision-maker may legitimately come to a different view.[22] However, I doubt that this distinction is tenable as a general proposition in light of Evans, which itself involved an evaluative task rather than a fact-finding function, even though it might have purchase in the specific area of parole.[23]

Another relevant decision, closer to the Canadian and Irish position, is Dover District Council v CPRE Kent,[24] where Lord Carnwath offered some important observations on the duty to give reasons in administrative law. The underlying issue involved an application for planning permission in the Kent Downs, an Area of Outstanding Beauty. Against the advice of its professional advisers, the local authority granted the application, no doubt heavily influenced by the positive economic impact the development would have.

An obligation to give reasons was imposed in the instant case on the basis that “openness and fairness to objectors required the members’ reasons to be stated”.[25] The circumstances – both the expert report and the public debate – imposed a duty to give reasons that justified the Council’s decision in a manner responsive to the concerns raised by the experts and the public. However, the “widespread public controversy” and departure from the expert recommendations “made it impossible to infer the reasons from [the members’] report or other material available to the public”[26] and the duty to give reasons was not satisfied. Cases in which reasons (and, I suggest, requirements of justification and responsiveness) are required can be identified, Lord Carnwath suggested, by reference to the following criteria:

Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance…Such decisions call for public explanation, not just because of their immediate impact; but also because…they are likely to have lasting relevance for the application of policy in future cases.[27]

Given that the reasons for the underlying decision were shrouded in doubt, the question became how to remedy the inadequacy. Here, the appropriate remedy was to quash the permission, because reasons had not been given to explain points of fundamental importance.[28] This is a significant decision, especially because the reasons were held to fall short in terms of justification and responsiveness not just because the local authority and its professional advisers took a different view on the same issue – similar to the Evans line of cases – but also because there was an obligation in this instance on the authority to provide reasons that responded to widespread public controversy and because departures from a development plan require responsive reasons.[29]

A third aspect of the common law of judicial review in the United Kingdom that contains elements of justification and responsiveness is the Tameside duty.[30] The eponymous case involved a statutory provision requiring the Secretary of State for Education to act reasonably: accordingly, Lord Diplock held, in the passage treated as the locus classicus of the Tameside duty, the Minister was obliged to “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.”[31] Where the duty applies, a decision-maker must conduct “a sufficient inquiry prior to making its decision.”[32] The duty applies even to decision-makers exercising wide discretionary powers: indeed, “[t]he wider the discretion conferred … the more important it must be that [the decision-maker] has all relevant material to enable him properly to exercise it.”[33] The basic premise of the Tameside duty is, I suggest, that decisions require justification in terms of available evidence and responsiveness to facts on the ground.

In short, although the UK case law does not contain any full-throated commitment to responsiveness, there are important elements of responsiveness built into the jurisprudence on reasonableness and the duty to give reasons.

[1] [2015] UKSC 21.

[2] [2012] UKUT 313.

[3] [2015] UKSC 21, at para. 59.

[4] [2015] UKSC 21, at para. 87.

[5] [2015] UKSC 21, at paras. 71, 78.

[6] [2015] UKSC 21, at para. 128.

[7] [2015] UKSC 21, at para. 130.

[8] [2015] UKSC 21, at para. 130.

[9] [2015] UKSC 21, at para. 130.

[10] [2015] UKSC 21, at para. 131.

[11] [2015] UKSC 21, at para. 142.

[12] [2015] UKSC 21, at para. 146.

[13] [2008] EWCA Civ 36.

[14] [2008] EWCA Civ 36, at para. 91.

[15] (1997) 96 LGR 617.

[16] (1997) 96 LGR 617, at p. 626.

[17] [1998] INLR 124.

[18] [2011] EWHC 830.

[19] [2011] EWHC 830 at para. 62.

[20] [2015] EWHC 1490 (Admin), at para. 41.

[21] [2011] EWHC 830, at para. 51.

[22] R (John) v Secretary of State for Justice [2021] EWHC 1606 (Admin), at para. 84.

[23] See also Re ABO Wind NI Ltd & Energia Renewables Company 1 Ltd’s Application for Judicial Review [2021] NIQB 96, at paras. 99-100, applying Bradley and Evans to departure by a planning officer from a determination of law made by an independent and impartial tribunal.

[24] [2017] UKSC 79.

[25] [2017] UKSC 79, at para. 57, emphasis added. See also Oakley v South Cambridgeshire District Council [2017] 2 P & CR 4, [2017] EWCA Civ 71.

[26] [2017] UKSC 79, at para. 57.

[27] [2017] UKSC 79, at para. 59.

[28] [2017] UKSC 79, at para. 68, emphasis added.

[29] See also Gladman Developments v Daventry District Council [2016] EWCA Civ 1146, at para. 35. Cf R (Fiske)) v Woodington Solar Ltd [2022] EWHC 1111 (Admin), at para. 29 (an obligation to grapple accepted in principle but not breached on the facts).

[30] Secretary of State for Education and Science v Tameside MBC, [1977] AC 1014 [Tameside]; Balajigari v Secretary of State for the Home Department, [2019] EWCA Civ 673.

[31] Tameside, at p. 1065.

[32] R (Plantagenet Alliance Ltd) v Secretary of State for Justice, [2014] EWHC 1662 (Admin), at para. 99, Haddon-Cave LJ.

[33] R (Venables) v Secretary of State for the Home Department, [1998] AC 407, at p. 466G.

This content has been updated on May 6, 2024 at 10:13.