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

There is no general common-law duty to give reasons for an administrative decision. The categories in which reasons are required remain capable of development, but any extension proceeds incrementally and by reference to the statutory scheme and the circumstances of the decision. A duty to publish reasons in the public interest cannot be founded on open-ended concepts such as transparency, accountability and proportionality without a confined and principled legal basis. Where Parliament has provided for reasons to an unsuccessful applicant, reporting to Parliament and controlled disclosure, and has created a statutory framework for access to information, those arrangements weigh strongly against implying a wider duty. The case for such a duty is weaker where the claimant has only a nominal interest and cannot use reasons to obtain effective relief.

The claimant, a Palestinian living near Bethlehem, challenged military-equipment export licences granted by the Secretary of State for Trade and Industry for exports to Israel and other countries of concern. The original challenge alleged inconsistency with the Consolidated Criteria made relevant by section 9(8) of the Export Control Act 2002. The claim was narrowed after the Secretary of State’s schedule showed that the lawfulness of 27 licences could not properly be challenged.

The remaining issue was whether the Secretary of State owed a common-law public-law duty to publish reasons for granting military export licences in this context. Collins J dismissed the claim in [2007] EWHC 2630 (Admin), holding that the statutory and parliamentary arrangements supplied the necessary scrutiny and transparency. The Court of Appeal considered whether that decision should be upheld.

The appeal was dismissed. The Court of Appeal upheld Collins J’s decision substantially for his reasons and held that the proposed duty to publish reasons for granted military export licences was not established.

1. No general duty. The common law recognises no general duty to give reasons for administrative decisions. The categories in which reasons are required are not closed, but development has proceeded case by case. Existing examples principally concern persons directly affected, so that reasons enable them to understand the decision and exercise review, appeal or representation rights. The present claimant had, at most, an indirect and nominal interest.
2. Statutory context. The Export Control Act 2002 and the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 provided for written reasons to an unsuccessful licence applicant, an annual report to Parliament and proportionate disclosure of information. That structure indicated that Parliament had considered what information should be given and to whom, and argued against adding a broad common-law obligation.
3. Practical accountability. The Government also published quarterly export-control reports, which were scrutinised by the Select Committee on Arms Export Controls. The resulting degree of openness and accountability reduced the need for a judicially created duty. Parliamentary scrutiny, including the ability to receive sensitive information in closed session, was preferable in a subject involving national security, commercial confidence, foreign relations and ministerial advice.
4. Freedom of information and legal principle. The Freedom of Information Act 2000 was Parliament’s considered framework for disclosure by public authorities. It did not abrogate any previously recognised common-law duty, but the absence of such a duty meant that it militated against creating one incrementally. The proposed formulation, based on whether the public interest required reasons in all the circumstances, was insufficiently confined and risked unpredictable judicial discretion.
5. Relief and final order. The claimant’s concession that the licences were lawful meant that reasons supplied after the event could not effectively stop the exports or enable a challenge to the decisions. The cumulative considerations therefore provided no principled basis for the claimed duty. Appeal dismissed.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1311, the appeal was dismissed and the decision below upheld.
• Queen’s Bench Division, Administrative Court: Collins J dismissed the claim in [2007] EWHC 2630 (Admin), holding that the statutory reporting and parliamentary scrutiny arrangements supplied the necessary transparency and that no common-law duty required the Secretary of State to publish the claimed reasons.