In Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71, a Court of Appeal with strong public law credentials — consisting of Elias, Patten and Sales LJJ — addressed the scope of the common law duty to give reasons. In this area, the orthodox position has long been understood to consist in the principle — laid down by Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] AC 531 — that there is no ‘general duty’ to give reasons, coupled with the guidance given by Sedley J in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 (‘IDS’). According to the latter case, the default ‘no reasons’ position will be displaced — and reasons therefore required — if a decision appears to be ‘aberrant’, such that it calls for explanation via the giving reasons, or if it affects interests ‘so highly regarded by the law … that fairness requires reasons’. Oakley provides a useful insight into the extent to which the position staked out by Doody and IDS over two decades ago remains pertinent today.
A planning officer had recommended that planning permission should be refused for a football stadium on Green Belt land. However, the local authority’s planning committee, rejecting that recommendation, approved the development in principle and subsequently granted permission. It gave no reasons for doing so. The question for the Court of Appeal was whether that failure entailed a breach of the common law duty to give reasons — which required it to determine in the first place whether that duty arose. The Court unanimously held that it did, although the reasoning of Elias LJ (with whom Patten LJ agreed) and Sales LJ diverged somewhat.
Sales LJ’s approach was perhaps the more conservative. The essence of his thinking is distilled in the following excerpt from his judgment:
Where the public interest in ensuring that the relevant decision-maker has considered matters properly is especially pressing, as in cases of grant of planning permission as a departure from the development plan or in cases of grant of planning permission as a departure from the usual protective policy in respect of the Green Belt, that is a factor capable of generating an obligation to provide reasons. This is because requiring the giving of reasons is a way of ensuring that the decision-maker has given careful consideration to such a sensitive matter. Similarly, where a person’s private interest is particularly directly affected by a decision, that may also provide a normative basis for imposition of a duty to give reasons, as exemplified in the Doody and Cunningham cases. In the planning context, I think that there is particular force in this point where the decision appears out of line with a natural and reasonable expectation on the part of the public that decisions will comply with the local development plan and with national policy to protect the Green Belt. Although it might be said that decisions to allow development in the Green Belt or contrary to the development plan are not aberrant as such, in that such decisions are not uncommon and cannot be assumed to be irrational, I think that they do give rise to an important onus of justification on the part of the decision-maker which, taken with the parallel public interest considerations in such cases, grounds an obligation under the common law to give reasons in discharge of that onus.
Viewing matters in this way led Sales LJ to the conclusion that
the foundation for the identification of a duty to give reasons for the decision of the Council in this case is the fact that the decision to grant planning permission appeared to contradict the local development plan and appeared to subvert the usual pressing policy concern that the Green Belt be protected (I think either of these factors alone would be sufficient), which engaged a particular onus of justification on the part of the Council which could only adequately be discharged by the giving of a sufficient indication of its reasons for making the decision it did.
This reasoning remains, at least to some extent, anchored in the principles laid down in IDS over two decades ago, but also shows how the application (and perhaps even content) of those principles has evolved in the intervening years. That reasons can be required in planning cases if there is departure from a development plan or a policy such as that pertaining to the Green Belt bears some relation to Sedley J’s category of ‘aberrant’ decisions, but it was unnecessary in Oakley to go as far as showing that the decision was aberrant: indeed, both Elias and Sedley LJJ acknowledge that the decision could not be characterised as aberrant. Rather, for Sales LJ, the opposition of a decision to extant policies and comparable instruments is sufficient to impose an ‘onus of justification’.
Although Sales LJ does not explicitly join these particular dots, there is surely a connection between his view in Oakley and the increasing willingness of courts to insist (now independently of the doctrine of legitimate expectation) that decision-makers live up to their policies, and depart from them only with good reason. The imposition of a duty to give reasons in the event of departure is a natural corollary of the substantive requirement that policy generally be adhered to. Against this background, the language of ‘aberrance’ today seems inapt, in that it implies a higher bar than is appropriate. What we are seeing, therefore, is the emergence of a category of decisions that are ‘suspect’, as distinct from decisions that are prima facie ‘aberrant’, to which a duty to give reasons attaches.
Meanwhile, Sales LJ’s view that reason-giving is required when ‘a person’s private interest is particularly directly affected by a decision’ maps onto Sedley J’s view in IDS that reasons may be needed when sufficiently ‘highly-regarded’ interests are engaged. But whereas Sedley J illustrated this point in IDS by reference to the liberty of the individual — which had been at stake in Doody — it is clear that for Sales LJ the bar is now substantially lower. (As we will see below, the same is true for Elias LJ.) For Sales LJ, then, the scope of the common law duty to give reasons is evidently broader than it was 20 or so years ago, albeit that the basic methodology remains the same. On this approach, ‘no reasons’ remains the default, and reasons will be required if a trigger condition is satisfied. The difference is that the trigger conditions are now substantially easier to satisfy than they once were.
However, the judgment of Elias LJ, with which Patten LJ concurred, offers a glimpse of — even though it does not ultimately deliver — a more radical break with the past that would involve embracing a general duty to give reasons. Elias LJ’s inclination in that direction is rooted in his normative commitment to reason-giving:
There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding – and perhaps thereby more readily accepting – why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.
Elias LJ does not dismiss the arguments against reason-giving, but his treatment of them is relatively cursory:
The disadvantage, accepted by Jay J in this case [at first instance], is that having to provide reasons — particularly where they have to withstand careful scrutiny by lawyers — might involve an undue burden on the decision maker. Exceptionally, there may be some powerful public interests, such as national security, which could justify withholding reasons, but there is no such competing public interest under consideration here.
It has been suggested in the past that the default ‘no reasons’ position is, in practice, turned on its head by the increasing willingness of the courts to conclude that that default is displaced on account of some trigger condition or other being satisfied. This empirical reality, coupled with the strong normative case for reason-giving, raises the question whether it might be time to reverse the starting-point, such that a duty to give reasons will apply unless good cause can be shown for relieving the decision-maker of that duty in the particular circumstances of the case. In a crucial passage, Elias LJ signals that that time may be approaching. Having cited Lord Clyde’s observation in Stefan v General Medical Council (No 1) [1999] 1 WLR 1293 to the effect that in practice reason-giving is becoming the norm (thanks to the scope of the exceptions to the ‘no reasons’ default) Elias LJ goes on to say:
In view of this, it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.
Against this background Elias LJ declares himself ‘strongly attracted’ to the argument that ‘reasons should always be given unless the reasoning is intelligible without them’. However, he ultimately steps back from endorsing, saying that ‘courts develop the common law on a case by case basis’, and that ‘there may be particular circumstances, other than where the reasoning is transparent in any event, where there is a justification for not imposing a common law duty’. Instead, in the end, he decides the case in a way that, like Sales LJ’s approach, refers back at least implicitly to the IDS model. He thus concludes that a duty to give reasons arose in the light of ‘[t]he right for affected third parties to be treated fairly arises because of the strong and continuing interest they have in the character of the environment in which they live’ and the need for people to be told why a decision-maker considers it appropriate to do something that flies in the face of established policy.
Where does this leave us? It suggests that even if the common law is ‘moving to the position’ that reasons must be given ‘unless there is a proper justification for not doing so’, it has not yet reached that point. Instead, the common law continues to inch towards that position by dint of the increasing willingness of the courts to conclude that the ‘no reasons’ default is displaced. In 2011, I wrote an article in Public Law under the title: ‘Has the common law duty to give reasons come of age yet?’ In it, I argued that maturity would be reached only when the orthodox position sketched in Doody was abandoned, and a general duty to give reasons — subject, of course, to appropriate exceptions — embraced. Six years on, it appears that the answer to my own question is still ‘no’ — albeit that Elias LJ’s judgment suggests that maturity may now be at least within judicial contemplation.
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