Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

Abstract

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.

The Form of Forms: Everyday Enablers of Access to Justice

“…The right to reasons in administrative law is strongly rooted in the jurisprudence of fair procedures. The courts have struggled to develop clear rules on reason-giving in administrative law, with much of the case law centring on the adequacy of reasons for an administrative decision (Bell, 2019). Reason-giving is understood to provide legitimacy, fairness, transparency and trust to the administrative process and exercise of administrative power.…”