Hasan, R (on the application of) v Secretary of State for Trade & Industry

There is no general common-law duty requiring public bodies to give reasons for every administrative decision. A duty may arise from fairness, openness, the statutory scheme, the nature of the decision, or the effect on an individual. Transparency is not an overriding free-standing principle requiring government to publish reasons where Parliament has established another system of scrutiny. In export licensing, the statutory framework, published criteria, annual reporting and parliamentary scrutiny provided sufficient accountability. The Secretary of State was therefore not required routinely to publish reasons demonstrating compliance with the export licensing criteria for each military export licence.

The claimant, a Palestinian living near Bethlehem, challenged the Secretary of State’s grant of military export licences to Israel. The original challenge to 27 licences was abandoned after information was provided showing compliance with the applicable criteria. The claimant amended the claim to seek a declaration that the Secretary of State was legally obliged to publish reasons demonstrating compliance when making quarterly export reports.

The issues were whether the claimant had sufficient interest and whether common-law fairness, transparency or the statutory scheme imposed a duty to give those reasons.

1. Standing. The claimant had sufficient interest under section 31(3) of the Supreme Court Act 1981. A direct private interest was unnecessary. A claimant would normally have standing unless acting from an improper motive or being a busybody with no apparent legitimate interest. The claimant’s indirect connection with the effects of military exports was sufficient.
2. Reasons and transparency. The common law does not impose a universal duty on administrative decision-makers to give reasons. The duty has developed incrementally and may arise where fairness or openness requires it, particularly where an individual is adversely affected, or where the statutory context and nature of the decision justify it. The principle of transparency discussed in Kuijer v Council of European Union (No 2) was derived from a specific Council access regime and did not bind domestic courts as an overriding general principle.
3. Statutory scheme. The Export Control Act 2002 and the 2003 Order established export controls, published guidance and reporting obligations. The Consolidated Criteria required particular attention to human rights, internal repression, international law and regional stability. The Quadripartite Committee could scrutinise licensing decisions and obtain sensitive information which need not be published.
4. Application. Parliament had provided the appropriate mechanism for monitoring the lawfulness and policy compliance of licensing decisions. Judicial review remained a remedy of last resort. The law did not require the Secretary of State to undertake the additional routine exercise of publishing reasons for each licence. The claim failed.