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The Common Law, Reasons and Administrative Justice

Published online by Cambridge University Press:  16 January 2009

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Extract

The capacity of the common law to develop and evolve is well recognised within both private and public law. This is indeed one of its enduring qualities. The objective of the present article is not, however, to contribute to the jurisprudential debate concerning the nature of the adjudicative process at common law. My object is more modest. It is to consider and place in perspective some of the recent developments which have occurred at common law in relation to the duty of public authorities to provide reasons. It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision. It is equally well known that this proposition has been the target of regular attack by those who argue that such a general duty should exist. A reconsideration of both of these propositions is timely in the light of case law developments culminating in the House of Lords' judgment in R. v. Secretary of State for the Home Department, ex p. Doody.

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Articles
Copyright
Copyright © Cambridge Law Journal and Contributors 1994

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References

1 [1993] 3 All E.R.92. (See also the note at p. 207 above.)

2 See generally Akehurst, “Statements of Reasons for Judicial and Administrative Decisions” (1970) 33 M.L.R. 154; Flick, “Administrative Adjudications and the Duty to Give Reasons—A Search for Criteria” [1978] P.L. 16; Richardson, “The Duty to Give Reasons: Potential and Practice” [1986] P.L. 437. See also Galligan, “Judicial Review and the Textbook Writers” (1982)Google Scholar 2 O.J.L.S. 257.

3 “Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement” 44 U.Chi.L.Rev. 60, 77–78 (1976).

4 Craig, , Administrative Law (2nd ed., London 1989)Google Scholar, p. 200.

5 [1993] 3 All E.R.92.

6 Ibid. p. 98.

7 [1947] A.C.09.

8 Ibid. p. 123.

9 See, e.g., R. v. Secretary of Stale for the Home Department, ex p. Dannenburg [1984] Q.B. 766; Alexander Machinery (Dudley) Ltd. v. Crabtree [1974] I.C.R. 120.

10 1973 1 W.L.R. 45.

11 Ibid. p. 49.

12 [1994] 1 All E.R. 315.

13 R. v. Secretary of Stale for the Home Department, ex p. Doody [1993] 3 All E.R. 92.

14 [1993] 3 All E.R.92, 111.

15 Craig, , op cit. note 4 above, pp. 304305Google Scholar; Harden, and Lewis, , The Noble Lie, The British Constitution and the Rule of Law (London 1986)Google Scholar.

16 Padfield v. Minister of Agriculture. Fisheries and Food [1968] A.C. 997.

17 Ibid. pp. 1030–1034.

18 Ibid. pp. 1058–1060.

19 Ibid. pp. 1053–1054.

20 [1972] 2 Q.B. 455.

21 [1989] 1 W.L.R. 525.

22 Craig, “Legitimate Expectations: A Conceptual Analysis” (1992) 108 L.Q.R. 79.

23 [1972] 2 Q.B. 299.

24 Ibid. p. 308.

25 Ibid. p. 311.

26 [1984] 1 W.L.R. 1337.

27 Ibid. p. 1344.

28 Cf. R. v. Secretary of Stale for Transport, ex p. Richmond–upon–Thames London Borough Council [1994] 1 All E.R. 577, 596–597, where Laws J. held that the court should not substitute its decision as to what the public interest demands for that of the public authority, but went on to hold that a change of policy was nonetheless subject to review on Wednesbury grounds in the same way as any other discretionary decision.

29 [1991] 4 A11 E.R. 310.

30 The applicant was deemed to be employed in the police service and therefore could not appeal to an industrial tribunal: Employment Protection (Consolidation) Act 1978, s. 146.

31 [1991] 4 A11 E.R. 310, 317.

32 Ibid. p. 318.

33 Relying on Lord Bridge in Lloyd v. McMahon [1987] 1 A.C. 625, 702–703.

34 [1991] 4 A11 E.R. 310, 318.

35 Ibid. p. 319.

36 Lord Donaldson M.R. was also influenced by the fact that the Government had promised that employees who were subject to the Board would not be treated less favourably than employees who had rights before industrial tribunals. Industrial tribunals do give reasons and this lent weight to the conclusion that so too should the Board: Ibid. 319–320.

37 [1992] Q.B. 740.

38 Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754.

39 R. v. Secretary of State for the Home Department, ex p . Gunnell (1984) The Times, 7 November.

40 Review Committee on the Parole System, Cm. 352.

41 Report of Select Committee on Murder and Life Imprisonment, HL 78–1 of 1988–89.

42 Crime, Justice and Protecting the Public, Cm. 965 (1990), paras. 6.18—6.21.

43 Thynne, Wilson and Gunnell v. UK (1990) 13 E.H.R.R. 666.

44 Criminal Justice Act 1991, s. 34. The relevant part of the Act had not yet been brought into force at the time when the applicant brought the present proceedings.

45 [1981] 1 W.L.R. 754.

46 (1984 The Times, 7 November.

47 Following R. v. Spencer, R. v. Smails [1985] Q.B. 771 and Williams v. Fawcett [1986] 1 Q.B. 604.

48 [1993] 3 All E.R. 92.

49 Ibid. p. 110.

50 Ibid. p. 106.

51 Ibid. p. 107.

52 Ibid. p. 106.

53 Ibid. pp. 109–111.

54 The Times,6 October 1993.

55 [1994] 1 All E.R. 651. (See note at p. 207 above.)

56 Ibid. p. 666.

57 Ibid. pp. 671–672.

58 Ibid. p. 665.

59 Bromley London Borough Council v. Greater London Council (1983) 1 A.C. 768.

60 Protection of the Public(London, 1990)Google Scholar, p. 92.

61 EC Tready, Art. 190. See generally, Schwarze, , European Adminsitrative Law (London, 1992), pp. 14001416.Google Scholar