Reason-Giving in Administrative Law: Where Are We and Why Have the Courts Not Embraced the General Common Law Duty to Give Reasons?
Modern Law Review
Blackwell Publishing Inc.
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Bell, J. (2019). Reason-Giving in Administrative Law: Where Are We and Why Have the Courts Not Embraced the General Common Law Duty to Give Reasons?. Modern Law Review, 82 (6), 938-1008. https://doi.org/10.1111/1468-2230.12457
This article has two main aims. Its first aim is to improve understanding of what legal challenges to administrative reason-giving have ‘looked like’ in recent years. To that end, part 1 offers an analysis of 119 reasons challenges heard across the five-year period between 2014 and 2018. Part 1 highlights three important themes which characterised this sample. Firstly, while administrative law scholarship has tended to focus on a handful of classic cases in which decision-makers had outright refused to offer reasons for their decisions, such cases were rare across the sample; the vast bulk of challenges concerned the adequacy of what had been offered rather than an allegation of a failure to give reasons per se. Secondly and relatedly, there were a series of factors in play in the case law which helped to ensure that administrative decision-makers had usually offered at least an outline of their reasoning processes. These factors include the prevalence of specific statutory duties of reason-giving and the increased role that statements of generalised policy are coming to play in administration. Thirdly, while scholarship has tended to regard common law fairness as the main legal standard drawn on by courts in reasons challenges, this notion played a limited role in legal reasoning across the case sample analysed. Other common law values – including consistency and open justice - played at least an equally important role and ultimately the particular legislative and policy framework in the background of the case was the main determiner of lawfulness in the majority of cases.
External DOI: https://doi.org/10.1111/1468-2230.12457
This record's URL: https://www.repository.cam.ac.uk/handle/1810/292027
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