Hasan, R (on the application of) v Secretary of State for Trade and Industry (Now Business, Enterprise and Regulatory Reform)

English law does not recognise a general common-law duty requiring public authorities to give reasons for administrative decisions, still less a free-standing duty to publish reasons whenever the public interest appears to require it. Duties may arise in particular statutory or factual contexts, especially where an individual needs reasons to understand a decision or exercise review, appeal or representation rights. Whether to recognise a further duty requires a confined and principled assessment of the statutory scheme, existing accountability, the sensitivity of the subject matter and the statutory framework for information disclosure. A scheme providing targeted reasons, parliamentary reporting and proportionate information-sharing may militate against a wider duty. The export-control arrangements here did not justify one.

The claimant, a Palestinian living near Bethlehem, challenged military export licences granted by the Secretary of State for Trade and Industry for exports to Israel and other countries of concern. He relied on the Consolidated Criteria, which had to be taken into account under the Export Control Act 2002. The claim was amended after the Secretary of State showed that the lawfulness of 27 licences could not properly be challenged. The remaining issue was whether the common law imposed a public law duty to publish reasons for the grants. Collins J rejected the claim in a judgment reported at [2007] EWHC 2630 (Admin). The claimant appealed.

The President of the Queen’s Bench Division gave the leading judgment. Wilson LJ and Rimer LJ agreed. The appeal was dismissed and Collins J’s decision was upheld.

1. General principle. The common law does not recognise a general duty to give reasons for administrative decisions. The categories in which reasons are required are not closed, but their development has proceeded case by case. Duties commonly arise where reasons are needed by persons directly affected to understand the decision or exercise review, appeal or representation rights. The authorities concerning such individual interests did not support the wider public-interest duty sought here, including the position stated in Stefan v General Medical Council [1999] 1 WLR 1293 and R v Royal Borough of Kensington and Chelsea ex parte Grillo (1995) 28 HLR 94.
2. Statutory context. Section 9(8) of the Export Control Act 2002 required regard to be had to the Consolidated Criteria. Section 10 required an annual report to Parliament. Article 15 of the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 required written reasons to an applicant where a licence was refused, suspended or revoked, while article 22 provided for controlled and proportionate use of information. This structure indicated that Parliament had considered what information should be given and to whom, and weighed against a wider common-law publication duty.
3. Accountability and sensitivity. The Government also published quarterly reports and was subject to detailed scrutiny by the relevant Select Committee. That practice demonstrated a high degree of openness and public accountability. Given the sensitivity of military exports, parliamentary scrutiny, including the receipt of information in closed session, could be preferable to unguarded publication.
4. Freedom of information. The Freedom of Information Act 2000 provided Parliament’s considered framework for disclosure, including exemptions concerning public affairs, personal data, confidentiality and commercial interests. It would not, without express words, abrogate a previously well-recognised common-law duty. However, no such duty existed, and the statutory framework militated against judicial creation of a parallel or wider obligation.
5. Application. The proposed duty was insufficiently confined and risked becoming dependent on an individual judge’s view that publication was desirable. The claimant had conceded that the original licences were lawful and consequently had no more than a nominal or indirect interest. Reasons supplied after the event would not enable an effective challenge to decisions which could no longer be stopped. The circumstances cumulatively did not sustain the asserted duty. The appeal was dismissed.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the decision below.
2. Queen’s Bench Division, Administrative Court Collins J rejected the judicial review claim in the judgment dated 19 November 2007, reported at [2007] EWHC 2630 (Admin).