The Gazette 1992

GAZETTE

JUNE 1992

concerned, no obligation to give

reasons arises until they are sought.

Thus in

International Fishing Vessels,

the applicant's solicitor had sought

reasons for the respondent's refusal

as soon as it was notified to the

applicant. Reasons were also sought

in other decided cases.

Even where

the obligation to give reasons is a

statutory one, the extent of the duty

may be greater if further reasons are

sought, a point considered later. In

any event, once an unfavourable

decision has been made in respect of

an applicant, he/she would be well

advised to immediately seek reasons

for the decision and if reasons are

given which appear to inadequate,

further clarification should be

sought.

The Extent of the Obligation to give

Reasons

What then is meant by obliging a

decision maker to give "reasons" for

a decision taken by him? Is there a

difference between reasons and

findings? Does the obligation to give

reasons require more than the recital

of a statutory conclusion?

In the US the Federal legislation

already mentioned

requires that

decisions to which it applies (which

include "initial, recommended and

tentative decisions") include a

"statement of .. findings and

conclusions, and the reasons or basis

therefor, on all material issues of

fact, law, or discretion presented on

the record." This comprehensive

requirement has been described as

"essentially a codification of the law

the courts had made which was

mostly common law".

A distinction

is drawn between "findings" on the

one hand and "reasons" on the

other, a distinction explained by a

leading commentator thus: "reasons

differ from findings in that reasons

relate to law, policy and discretion

rather than to facts". The equivalent

Australian provision draws a similar

distinction in requiring "a statement

in writing setting out the findings on

material questions of fact, referring

to the evidence or other material on

which those findings were based and

giving the reasons for the

I decisions."

By contrast, the

equivalent UK provision merely

requires that a "statement, either

written or oral, of the reasons for the

decision" must be provided on

request and does not refer to findings

of fact at all.

A further distinction has been drawn

by the US Courts between findings

of "basic" and "ultimate" facts. The

ultimate fact (or "ultimate finding"

as it is sometimes referred to) is the

determining conclusion to the

decision-making process, often

expressed in the terms of the

governing statute, reached by the

application of the relevant principles

of law to the basic findings of fact

already made. It is therefore the

product of reasons and facts. A

paradigm is provided by the planning

process, where the ultimate fact

reached in every planning application

is that the proposed development is,

or is not, contrary to the proper

planning and development of the

functional area of the deciding

authority concerned. US Federal case-

law strongly suggests that, while

ultimate facts may be expressed as

reasons, that expression will not

satisfy the obligation to give reasons,

i.e. something more is required. Thus,

where a tribunal could make a

particular order only where it found

that such an order would effectuate

the policies of its governing statute,

the mere recital of such a finding was

held not to be a statement of reasons

for making the order.

On the other hand, requiring a

decision-maker to recite the relevant

ultimate fact, to make a finding

within the terms of the statute, is not

without value particularly where the

decision in dispute may be grounded

on any one of a number of such

facts. For example, in a series of

cases concerning the Wine and

Beerhouse Act, 1869 (32 & 33

Victoria, c.27), decisions to refuse

licences for beerhouses were quashed

for failure to state which one of four

available grounds was being relied on:

"the Justices ... ought to state on

which of the grounds it was that they

refused the licence, in order to justify

their decision and show that they

were acting within their

jurisdiction."

Similarly, as was

authoritatively decided by the

Supreme Court in

In re XJS

Investments Ltd.

(1986) a failure to

recite precisely the terms of particular

reasons for refusing planning

permissions which, by virtue of the

relevant statute, do not attract a

liability to pay compensation to the

disappointed developers, meant that

this statutory protection did not

apply and compensation was

payable.

Of course, the more

grounds there are available to ground

the decision complained of, the more

useful it will be to have stated the

ground actually relied upon.

Nonetheless, such statement does not

constitute a statement of reasons in

the true sense.

The distinction between the ultimate

fact on the one hand and reasons

properly so called on the other is an

important one and the two ought not

to be confused. Although the

terminology used is not the same,

this confusion is evident in the

decision of the Court of Appeal in

-v-

Secretary of State for Home

Affairs ex parte Swati

(1986) where a

distinction was drawn by the Court

between on the one hand "a

statement of reasons" which merely

recited the relevant terms of an

immigration rule requiring leave to

enter to be refused in certain

circumstances (described by the

applicant's Counsel as a "ritual

incantation") and, on the other, a

"written statement of facts" for

which the applicant was entitled to

apply or appeal (from outside the

jurisdiction) which would, according

to the Court, express a "process of

reasoning applied to evidence", the

conclusion of which was the

immigration officer's declared

"reason". It is not easy to justify

such a narrow interpretation of a

requirement to give "reasons",

focusing solely on the ultimate and

formal product of the rational

process and excluding all examination

of the process itself and the material

relied on. While the distinction may

be justified in

Swati

itself by

reference to the bipartite statutory

structure involved, a generalised

construction of the obligation to give

reasons as requiring only a statement

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