The duty to give reasons and the new statutory “makes no difference” principle

I wrote in December about what might loosely be termed the “makes no difference” principle introduced by section 84 of the Criminal Justice and Courts Act 2015, which  inserts new provisions into section 31 of the Senior Courts Act 1981. The effect is that in judicial review proceedings the High Court must refuse relief if it appears “to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”, unless the granting of relief is appropriate “for reasons of exceptional public interest”. (Equivalent provision is also made about the granting of permission to seek judicial review in the first place.)

The upshot, then, is that — absent an “exceptional public interest” — the High Court is now statutorily barred from granting relief if the “outcome” of a decision-making process is highly likely to have been unaffected by a legal flaw committed in the making of the decision, even though the flaw renders the decision unlawful. These new provisions are inspired by a misplaced concern that the Administrative Court is inundated by claimants who win cases on “technicalities”, thereby using — or, as the Government would see it, abusing — judicial review so as unreasonably to inhibit public administration. Significantly — for reasons considered in my earlier post — the new statutory provisions do not purport to inject any form of legality into legally flawed administrative decisions. As a result, the effect of the legislation is to require the High Court to condone unlawful administrative action by declining to issue any relief in respect of it.

To what extent, however, are the new provisions likely in practice to attenuate the availability of relief? Much is likely to turn upon the ground on which the impugned administrative decision is legally flawed. At one end of the spectrum, decisions that are flawed by a jurisdictional error of law or on the ground of Wednesbury unreasonableness are unlikely to be affected by the new provisions: it is difficult to see how it might be possible, let alone “highly likely”, for the outcome to be “not substantially different” for the claimant irrespective of the jurisdictional error or the Wednesbury unreasonableness.

At (or at least towards) the other end of the spectrum are the principles of procedural fairness. Take, for instance, a decision-maker that breaches the duty to give notice by making inadequate disclosure to an individual. It is at least conceivable that a court might conclude — particularly if the undisclosed information amounts to what seems to unanswerably strong evidence against the claimant’s position — that it is “highly likely” that the outcome would have been the same even even if the information had been supplied. (It ought to go without saying, however, that such a court would be well-advised to bear in mind Megarry J’s salutary warning that “the path of the law is strewn with examples of open and shut cases which, somehow, were not”: John v Rees [1970] Ch 345, 402.)

Reasons and the “makes no difference” principle

It occurs to me, however, that at the very far end of the spectrum may be situations in which a duty to give reasons remains unfulfilled. (I pass over, for the time being, the rule against (apparent) bias, which raises a further set of issues and which, time permitting, will be addressed in a further post.) Notwithstanding the equivocal stance adopted by Sedley J in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, it is clear (see, e.g., R v City of London Corporation, ex parte Matson [1997] 1 WLR 765) that failing to give reasons can render the accompanying decision unlawful, rendering it vulnerable to a quashing order. It is also perfectly clear that the duty to give reasons can be enforced by way of a mandatory order.

However, on the face of it at least, the possibility of such relief in the event of a breach of the duty to give reasons appears to be radically curtailed by the new provisions inserted by the 2015 Act into the Senior Courts Act 1981. This is so because failing to give reasons might be considered a paradigm case of a legal flaw in the making of a decision that “makes no difference” to the outcome, thus making it entirely possible to conclude that it is “highly likely” that the outcome for the claimant would have been the same even if the “conduct complained of” — that is, the failure to give reasons — had not occurred. Looked at in this way, the new statutory provisions appear to have the potential to eviscerate the duty to give reasons. More accurately, while the duty will remain, the courts’ capacity to give the duty practical bite by way of issuing remedies will, it seems, be radically reduced.

This conclusion should not, however, be accepted unquestioningly. In particular, much depends on what, for this purpose, we take the relevant “outcome” to be. Three possibilities arise. First, the relevant “outcome” might be the decision understood in a substantive sense. E.g. X applies for planning consent and is turned down; no reasons are given. The “outcome” is the decision not to grant planning consent — a decision which, let us assume for the sake of argument, would have been made irrespective of whether the decision-maker had formulated and supplied reasons. On this analysis, the statutory provisions preclude relief (unless some “exceptional public interest” consideration applies) because, irrespective of whether the duty to give reasons is fulfilled, the outcome — in the sense of the substantive decision as to the giving of planning consent — remains the same.

Second, the relevant “outcome” might be the provision of reasons. Breach of the duty to give reasons yields outcome 1 (no reasons are given); fulfilment of the duty yields outcome 2 (reasons are given). On this view, whether the “conduct complained of” — i.e. the breach of the duty to give reasons — takes place profoundly and decisively affects a relevant “outcome”, because the presence or absence of reasons is treated as such an outcome. This analysis, however, may appear problematic. After all, treating fulfilment of the operative principle of good administration — here, the duty to give reasons — as the (or an) “outcome” risks denuding the new statutory provisions of any effect. That is so because, on this approach, every time a decision-maker does something that results in a decision’s being legally flawed, a relevant “outcome” will have been affected, compliance with each principle of good administration — i.e. each ground of review — amounting to an outcome in and of itself.

The third possibility is a variant of the second. The provision of a reasoned decision and an unreasoned decision might be treated as two alternative outcomes, such that whether the duty to give reasons is or is not fulfilled necessarily affects the “outcome” in a relevant sense. On this approach, the outcome is either a decision that is accompanied by reasons or a decision that is not, compliance with the duty to give reasons being decisive as to which of those alternative outcomes eventuates.

Possible ways forward

It may seem unlikely that the courts would be prepared to interpret “outcome” in the second or third of the ways sketched above, not least because such interpretations appear to be strained. However, two points should be noted. First, it is a well-established principle of statutory construction that legislation is to be interpreted, as far as is possible, in a way that preserves the courts’ powers of judicial review. That principle of construction finds its starkest expression in relation to ouster clauses that, at least prima facie, wholly preclude judicial review by appearing to prevent curial consideration of the lawfulness of administrative action. Yet the constitutional logic that drives courts very narrowly to interpret ouster clauses surely applies with equal force to provisions such as those inserted by the 2015 Act into section 31 of the Senior Courts Act. Indeed, it would be absurd if the constitutional values that animate the strict construction of ouster clauses in order to preserve the courts’ capacity to determine whether administrative action is lawful were not to extend to preserving their capacity to issue relief in the event of a finding of unlawfulness.

Second, however, even if the courts were to invoke in the present context the same sort of strict interpretive approach that is utilised in respect of ouster clauses proper, that does not — unless the availability of judicial review is considered to be an irreducible constitutional requirement — permit the statute to be ignored. The question, therefore, is whether it is possible to interpret the new provisions in a way that leaves room for relief when the duty to give reasons has been breached. (Of course, the “exceptional public interest” provision can and no doubt will be leveraged, but it necessarily has its limits.)

The issue, then, is whether a strict interpretive approach might lend support to construing “outcome” in the second or third of the ways outlined above. As already noted, a possible objection is that such interpretations might achieve too much because they could apply not only to the presence/absence of reasons, but also to the provision/non-provision of any of the other safeguards that find expression in the principles of good administration, thus driving a coach and horses through the new statutory provisions. Yet the possibility arises of treating reasons as something of a special case in this context, because whether reasons are provided can fairly be treated as an “outcome” in a way that compliance with many other grounds of review cannot (or at least cannot as easily) be treated. That is so because reasons are necessarily an outcome of the decision-making process in the sense of being an output, a decision for which reasons are given being a qualitatively different outcome, or output, from a decision for which no (or inadequate) reasons are given. The same cannot be said of, say, a decision taken after the giving of no (or inadequate) notice, the giving of notice being a step in the making of the decision rather than something that, along with the decision itself, forms an output or outcome of the decision-making process. Strictly construing “outcome” in this way might therefore open up the possibility of preserving remedial protection of the duty to give reasons — a ground of review that is, as noted above, prima facie particularly vulnerable to the statutory “makes no difference” principle — without doing violence to the new statutory regime as a whole.

There is, of course, another way of looking at all of this. Saying that it is “highly likely” that the decision would be the same whether or not reasons for it are given overlooks what Michael Fordham, in his valuable article “Reasons: The Third Dimension” [1998] Judicial Review 158, terms the disciplinary effect of reason-giving. As Sedley J pointed out in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, 256, “the giving of reasons may among other things concentrate the decision-maker’s mind on the right questions”. For that reason, it cannot always be straightforwardly said that it is highly likely that the same outcome would have been reached irrespective of whether the decision-maker had taken seriously its legal duty to give reasons, even if “outcome” is understood in substantive terms only (i.e. the first of the three senses outlined above). On this analysis, the warning, noted above, that Megarry J issued in John v Rees — concerning the dangers of predicting whether the provision of a given procedural safeguard would have made a difference — is relevant in respect of reason-giving just as in respect of other aspects of procedural fairness.

In ways that I explored in an article published in Public Law in 2011, the duty to give reasons has come a long way in English law over recent years — and that, for reasons advanced in the same paper, is a good thing. On the face of it, the new provisions inserted into the Senior Courts Act 1981 by section 84 of the Criminal Justice and Courts Act 2015 threaten to undermine that duty by stealth, through the erosion of the scope for the duty’s enforcement. However, for the reasons considered in this post, it is far from a foregone conclusion that the new statutory provisions will necessarily produce such an effect. That, too, is a good thing.