Editorial Committee of the Cambridge Law Journal

A Metewand for Reasons?

Author(s): Christopher Forsyth
Source: The Cambridge Law Journal, Vol. 50, No. 3 (Nov., 1991), pp. 379-381
Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal
Stable URL: http://www.jstor.org/stable/4507560 .
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THE
CAMBRIDGE LAW JOURNAL
Volume
50,
Part 3 November 1991
CASE AND COMMENT
a metewand for reasons?
Although there is no
duty
at common law for a decision maker to
give
reasons for his decisions
(Public
Service Board
of
New South
Wales v. Osmond
(1986)
63 A.L.R.
559) many
decision makers are
under such a
duty imposed by
statute
(see,
for
instance,
section
12(1)
of the Tribunals and
Inquiries
Act
1971).
The statute that
imposes
that
duty
seldom
specifies
its
scope.
However,
the decided cases
establish that the reasons must be
"proper", "intelligible"
and
"adequate" (In
re
Poyser
and Millsy Arbitration
[1964]
2
Q.B.
467
and Westminster
City
Council v. Great Portland Estates
p.l.c. [1985]
A.C.
661).
The
requirement
of
adequacy
is
usually glossed
to mean
that the reasons must reveal "the conclusions . . . reached on the
principal
controversial issues"
(Hope
v.
Secretary of
State
for
the
Environment
(1975)
31 P. & C.R. 120 at
123).
The
argument
of this note is that these hallowed
epithets
are
otiose. For no metewand is
required by
which the
sufficiency
of
reasons
may
be measured. All that is
required
is that the decision
maker should record the
genuine
reasons for his decision. This
approach
is in accord with most
statutory provisions
and is
conceptu-
ally
sound. In the
planning
field,
for
instance,
Rule
17(1)
of the Town
and
Country Planning (Inquiries Procedure)
Rules 1988
simply
provides
that the
Secretary
of
State,
in
deciding
a
planning appeal,
shall
notify
his decision "and his reasons for it" to various
persons.
It
may
be that the
genuine
reasons reveal some flaw in the decision
that renders that decision void. But the
duty
to
give
reasons is
exhausted once the decision maker has recorded what are in fact his
reasons,
whether those reasons are
proper
or
improper, intelligible
or
unintelligible, adequate
or
inadequate.
This
"conceptual" approach
can draw some
support
from Save
379
380 The Cambridge Law Journal [1991]
Britain's Heritage v. Number 1 Poultry Ltd. [1991] 1 W.L.R. 153
although wider considerations were also relevant in this case. Save
Britain's Heritage determined that the hub of the City of London wlll
be transformed by the demolition of eight listed buildings opposite
the Bank of England. They will be replaced by a modern building
designed by Mr. James Stirling (an architect well known for his
design of the Cambridge History Faculty building).
In 1985 the Secretary of State had rejected plans to erect a
skyscraper designed by the late Mrt Mies van der Rohe on the site
but had indicated that a more modest proposal was not ruled out.
Thus the owners put forward the design by Stirling. The local planning
authority refused the necessary permission; but the owners appealed
and after a public enquiry, the Secretary of State accepted the
inspector's recommendation that the necessary permissions should
be granted. Save Britain's Heritage applied to the High Court under
section 245 of the Town and Country Planning Act 1971 to have this
permission quashed.
Before the House of Lords the only issue of general interest
remaining was whether the Secretary of State in his decision letter
of ehe 7th June 1989 had complied with his duty under rule 17(1) of
the rules cited above. It was common ground that the inspector's
report was exemplary; and if the Secretary of State had expressly
adopted in their entirety the conclusions of the inspector as his
reasons, his decision would have been beyond challenge. But the
Secretary of State did not indicate with what Lord Bridge called
"clarity and precision" the extent to which he adopted the reasoning
of the inspector. In the Court of Appeal Woolf L.J. held that the
inspector's reasoning could not supplement the Secretary of State's
conclusions i'if not expressly adopted by the Secretary of State".
Lord Bridge, in the leading speech, rejected this and held that it
was possible to determine whether the Secretary of State had
substantially accepted the essential elements of the inspector's judg-
ment through a detailed analysis of the decision letter. Lord Bridge
assumed that where the Secretary of State used the same words as
the inspector he would "surely have indicated if, in adopting that
conclusion as his own, he was nevertheless intending to base it on
significantly different premises". Since the Secretary of State had
used the same words as the inspector in crucial parts of the decision
letter, deficiencies in the Secretary of State's expressed reasoning
could be remedied by the implicit references to the inspector's
exemplary report.
As Lord Bridge remarked, '6this approach to the construction
of the decision letter depends on reading it with a measure of
benevolence. . .". Indeed, the greatest practical significance of Save
C.L.J .
Case and Comment
Britain's Heritage may be this principle of the benevolent construction
3B1
of decision letters. Treasury Counsel in planning appeals, when
defending a perplexing decision letter, will henceforth chant "benevo-
lent construction"
like a mantra to the judge.
However, Lord Bridge said this about the "conceptual"
approach
to reasons: if "the reasons given are improper they will reveal some
flaw in the decision making process which will be open to challenge
on some ground other than the failure to give reasons. If the reasons
given are unintelligible,
this will be equivalent to giving no reasons
at all." He went on to say that the "difficulty arises in determining
whether the reasons given are adequate, whether . . . they . . . enable
the reader to know what conclusion the decision maker has reached
on the principal controversial
issues". Here Lord Bridge plainly
adopted the "conceptual"
approach to the requirement
of proper
reasons.
He very nearly does so too in regard to the intelligibility
of reasons
but here he has conflated two possible situations: the decision maker
may reason intelligibly but may record that reasoning unintelligibly.
Such a decision maker has not complied with his duty to give his
reasons, but this flaw may be remedied. However, if it was the
reasoning itself that was unintelligible,
then the duty to give reasons
has been complied with, but the decision is flawed for a failure of
the decision maker to apply his mind properly to the task at hand.
Moreover, even the requirement
of adequacy is susceptible to the
conceptual approach. Should the decision maker fail to address an
important issue in his reasons, then once more there is evidence from
which the inference may be drawn that the decision maker failed to
apply his mind properly.
One final comment: not only is the "conceptual'
approach more
principled and more in accord with the szords of the statutes that
impose the duty, but it encourages the right attitude of mind in the
decision maker. That decision maker can concentrate simply on
recording his actual reasons. That can hardly ever impose an
intolerable burden or expense on the machinery of government.
In
addition, the decision maker will not be encouraged to record false
reasons to meet some vague test of sufficiency. And, of course, the
quality of decision making vvill benefit: the decision maker will know
that his reasons will become known to the parties and thus will
eschew deciding on improper grounds.
CHRISTOPHER
FORSYrH.