JAMELA  A. ALI

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Guyana Administrative Law Counsel

DUTY TO GIVE REASONS - THE WAY FORWARD

This Article was written in 1998 by Ms Jamela A Ali, Attorney at Law while she was employed at the Attorney General’s Chambers, Guyana, as a Principal Legal Adviser. It was updated in 2008. The author is presently in Private Practice at the Guyana Civil, Commercial, Constitutional and Administrative Bar and specialises in Mining Law & Agreements, Conveyancing, Property matters, Trademarks, Adoption of Children, Probates of Wills and Administration, Divorces, Formation of Companies, Money Claims, Mediation, Real Estate and Notarial services. She has a Masters of Law degree in Legislative Drafting which included the Public Law courses of Constitutional and Administrative Law and a Research Paper written on Legislative Drafting, Parliamentary Counsel, Statute Law Revision, Consolidation of Laws, Law Reform, Constitution, Natural Justice, and Good Administration.

INTRODUCTION

This Article was published in The New Guyana Bar Review Volume 2 Issue 1: May 2008 (The Guyana Bar Association publication).

ADMINISTRATIVE LAW has generally shown a progressive and positive trend towards the development of the law relating to the duty by decision makers to give reasons for their decisions.

Indeed, Lord Woolf regards "the giving of satisfactory reasons for a decision as being the hallmark of good administration.” Woolf, Protection of the Public, p. 92.

The giving of reasons is considered to be inextricably bound up with natural justice or the right to be fairly heard and is fundamentally important as a public law principle. It has been described by Lord Denning MR in Breen v. AEU [1971] 1 All E.R. 1148, 1154 as "one of the fundamentals of good administration."

Indeed, to omit reasons is not only to take away the "good" in the administration, but also to instill bad administration on society. The giving of reasons is a fundamental requirement of fairness and is necessary for the satisfaction of parties. The concepts of fairness, justice and reasons are interchangeable and one cannot be achieved without the other. Reasons are the link between the decision and the mind of the decision maker.

This Article outlines the common law development with regard to the duty to give reasons. Originally, the Courts were reluctant to enquire into what was viewed as administrative policy as outlined in the late nineteen century cases of The Queen v. Bishop of London (1890) 24 Q.B.D. 213 and Alcroft v. London Bishop (1891) A.C. 666. The Courts rigidly adhered to the position that there was no general duty to give reasons. This position was stated in the English cases of McInnes v. Onslow-Fane (1978) 3 All E.R. 211, R v. Kensington and Chelsea Royal LBC ex p. Grillo (1996) 28 HLR 94  and the Australian case of Public Service Board of NSW v. Osmond [1987] LRC 681 which has been described as "an opportunity lost".

However, notwithstanding a few common law setbacks, the Courts have recognised the "serious gap" and while still seeking to maintain the original common law, the Courts have adopted various approaches or grounds to justify the giving of reasons. It has been stated that although there is no duty at common law to give reasons, the duty is, inter alia, implied since it is necessary to ensure fairness, personal liberty and to prevent an aberrant, unreasonable or irrational decision.

This Article reviews the advantages and disadvantages of the duty to give reasons. It also highlights the various approaches adopted by the Courts and concludes that although there is no express general duty to give reasons, in practice this must be done. The standard of duty is also outlined. Lastly, recommendations are made and the need for appropriate legislation and a fundamental right provision is emphasised.

ADVANTAGES AND DISADVANTAGES

There are many valid reasons to justify the giving of reasons. In order to be acting lawfully, the decision maker must have reasons for the decision. To have to give them is likely to be some assurance that the reasons will be likely to be properly thought out and possibly good in law, for, having made them known, the decision will be open to scrutiny. The decision maker is likely to focus more carefully on the decision and minimise whim and caprice. Giving reasons is also “a self-disciplining exercise”, Sir Louis Blom-Cooper, QC. In R v. Islington LBC, exp. Hinds (1995) 27 HLR 65 at 75 and in Tramountana Annadora SA v Atlantic Shipping Co. (1978) 2 All E.R. 870 at 872 Donaldson J stated “Having to give reasons concentrates the mind wonderfully”. 

In addition, to give reasons is to invite accountability and transparency and to expose oneself to criticism; this helps to ensure that power is not abused or arbitrarily exercised. This will in turn promote public confidence in the system.

A further advantage of giving reasons is that the process will facilitate appeals and assist the Courts in performing their supervisory functions to know whether the decision maker or body took into account relevant considerations or acted properly. This might well reduce the number of unsustainable appeals. Reasons also provide guidance for future conduct and so deter applications which would be unsuccessful. In short, it is essential for the efficient functioning of the machinery of good government.

In the case of Flannery v. Halifax Estate Agencies Ltd (2000) 1 W.L.R. 337 at 381, Henry LJ stated that “The duty is a function of due process, and therefore justice.”

It is submitted that constitutional justice imposes a requirement of procedural fairness and consequentially this necessitates a duty to give reasons. To not give reasons is the very essence of arbitrariness as one's status could be redefined without adequate explanation as to why this was done. Secrecy creates suspicion, justly or unjustly. This secrecy may also be described as the hallmark of inefficient and corrupt administration. Reasons must therefore be disclosed. Besides, the giving of good reasons would inevitably earn respect for the decision maker.

The disadvantage of giving reasons was outlined by Sedley J in R v. Higher Education Funding Council, ex p. Institute of Dental Surgery [1994] 1 All E.R. 651 at 665 and restated in 2003 in R (Asha Foundation) v. The Millenium Commission
 
“It may place on undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge.”

It has also been said that the great majority of cases are not likely to raise substantial points of law and the requirement is also an undue drain on resources.

Notwithstanding that in some cases, the writing of reasons may increase litigation as the decision may be right but the reasoning wrong it is submitted that considerations of administrative expediencies should not mitigate principles of fairness. Fairness should never be rationed. Indeed, it cannot be!

GROUNDS FOR DUTY

In Guyana, there is no express general statutory duty to give reasons. What about the common law? Has it supplied the omission of Parliament? Although it has been stated that there is no express duty to give reasons, it is submitted that the common law has developed to a stage that in almost every case where a right is affected or an exercise of discretion is involved, there is a duty on the decision maker to give reasons.

The duty to give reasons is imposed on the following grounds:

          a) Constitutional right - natural justice;
          b) Fairness;
          c) Where there is a right of appeal;
          d) Where judicial review and prerogative writs are available;
e) Where a misuse of power can be inferred from the absence of reasons;
          f) Where there is a change of policy;
          g) Legitimate expectation;
          h) Personal liberty.

a) Constitutional right - natural justice

The duty to give reasons may be imposed as a constitutional right. (See Gupta v. Union of India 1981 Supp. SCC 87.) This is the very essence of constitutional justice.  In the absence of an express written provision or law requiring reasons for a decision, progressive legal thinking has taken the position that natural justice requires reasons. According to Lord Donaldson MR in R v. Civil Service Appeal Board, exp. Cunningham [1991] 4 All E.R. 310

                   "There is a principle of natural justice that a public law authority should always or even usually give reasons for its decision."

Pill J. similarly said in R v. Crown Court at Harrow, exp. Dave, [1994] 1 All E.R. 315

                   "A refusal to give reasons might amount to a denial of natural justice."

Neill LJ. in Reg. V. City of London Corporation, Exp. Matson [1997] 1 W.L.R. 765 at 776 G-H was also persuaded that natural justice required that a decision not to confirm the appointment of an alderman should not be allowed to go unexplained and that reasons must be given.

Thus, although there is presently no express provision in the Constitution of Guyana 1980, Act No. 2 of 1980 stating that a person is entitled to reasons, it can be argued that a person is entitled to reasons under the constitutional as well as the common law right to natural justice. Within natural justice is the right to a hearing that is fair, and free from bias. The natural justice principle is bound up with reasons. If reasons are not given, the hearing would be incomplete and therefore unfair. In fact, some academics refer to the duty to give reasons as a third principle of natural justice.

b) Fairness

The Courts have also taken the position that the duty to give reasons may be imposed on grounds of fairness. In R v. Civil Service Appeal Board, exp. Cunningham (1991)(supra) Donaldson MR stated that the giving of reasons was necessary to ensure fairness. McCowan LJ was of the view that the court was not required to tolerate the unfairness of reasons not being given while Leggatt LJ said that the duty to act fairly extended to the duty to give reasons. Indeed, administrative justice cannot justify unfairness.

In the leading House of Lords case of Doody v. Secretary of State for the Home Department (1993) 3 All E.R. 92, Lord Mustill referred to the term 'fairness' as "an insistence on greater openness, or ... 'transparency' in the making of administrative decisions." The Law Lord further stated that

         "Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both. Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

The concept of fairness as outlined in Doody was applied in R v. Secretary of State for the Department, Exp. Duggan [1994] 3 All E.R. 277, Reg. v. City of London, Exp. Matson [1997] 1 W.L.R. 765 and Reg. v. Secretary of State for the Home Department, Exp. McAvoy [1998] 1 W.L.R. 790.

In Exp. Duggan (1994) which involved a prisoner who was serving a mandatory life sentence, it was stated by Rose LJ. at p.288 that “fairness requires that the gist of reports be revealed in order to give the opportunity for comment and that reasons be given subsequently.”

In Exp. Matson (1997) M was elected as an alderman of the City of London by the voters of a ward. However, the Court of Alderman, after interviewing him, informed him that the court was unable to confirm his election. No reasons were given. It was held that the nature or circumstances of an adjudication might indicate a necessity for giving reasons; that, although by legal custom the Court of Aldermen enjoyed a wide discretion, since the decision was made in public, affected the reputation of the applicant and was important to electors, and since to give reasons would not be unduly difficult or frustrate the exercise by the Court of Alderman of its powers, fairness and natural justice required that the decision should not be allowed to go unexplained.

In Exp. McAvoy (1998) Lord Woolf MR also applied the Doody test. This case involved the process for the categorisation of prisoners and what information the Prison Service was required to provide to the prisoner to enable him to make representations as to his categorisation when that was to be reviewed.

Fairness has prevailed even where a statute was silent on reasons. In the case of R v. Borough of Lambert, exp. Walters, The Times, 6 October 1993, although the Housing Act 1985 did not expressly provide for the giving of reasons, it was stated that the Act imported a "concept of fairness throughout its statutory provisions such as to demand generally the giving of reasons". It was therefore held to be unfair not to give reasons for saying that a flat was suitable having regard to the medical needs of a child.

However, in the case of R v. The Universities Funding Council, Exp. the Institute of Dental Surgery, [1994] 1 All E.R. 651 Q.B.D., Sedley J. stated that "there will be decisions for which fairness does not demand reasons." In that case it was held that no reasons were required where based on “pure academic judgment”, even though the decision had substantial financial implications for the applicant.

This lower court decision goes against the grain of fairness, justice and good governance. It highlights the inconsistencies of the common law and is an illustration of judicial meandering. Indeed, it is anomalous when one considers the other judicial rulings. It is submitted that there will be very few cases in which reasons are not necessary.

It is encouraging to note that 8 years later in the case of R (Wooder) v Feggetter [2002] EWCA Civ 554 at no. 41, Sedley LJ doubted whether the case of the Institute of Dental Surgery would be decided the same way.

In the 1999 landmark decision of Re Hanoman (Carl) 65 WIR 157, the then Chief Justice of Guyana Desiree Bernard (now Judge of the CCJ) cited the Doody and Institute of Dental Surgery cases and held at page 167

“In the absence of specific legislation obliging a public functionary to give reasons for a decision, many cases indicate that the modern trend is towards openness, fairness and transparency regardless of the right that is infringed: personal, vested, public or rights acquired under schemes or plans. The overall objective is fairness based on the long-established principles of natural justice.” 

In that case, the then Minister of Health Henry Jeffrey rejected two nominees to the Medical Council (MC). Dr. Carl Hanoman, President of the Guyana Medical Association (GMA) had submitted 6 names and the Minister rejected the names of Dr. Hughley Hanoman and that of Dr. Walter Ramsahoye. Dr. Carl Hanoman wrote to the Minister requesting reasons for the rejection of the two names and the criteria for selection. No reply was received. In granting prerogative orders, Justice Bernard said at page 171, “If the Minster was of the view that the nominees did not reflect what he had in mind, he ought to have laid down criteria for selection initially and so informed the association.”
 

c) Right of appeal or no right!

The present position seems to be both the existence of a right of appeal or judicial review and the absence of any appeal, may be factors predisposing the courts to require reasons.

In Exp. Dave (supra), the Crown Court gave a decision without reasons. There was an appeal. The decision was quashed for absence of reasons; that absence made it impossible to exercise the right of appeal. 

In Canada, a common law duty for administrative decision makers to give reasons is also recognised where there is a right of appeal Baker v. Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817 and also where the decision has “important significance for an individual”.

In the case of Mahabir Prasad v. State of U.P. (1970) 1 SCC 764, the Supreme Court of India similarly held that if a quasi-judicial order is subject to appeal the law necessarily implies the requirement of reasons otherwise the right of appeal shall become ‘an empty formality’. 

Going further, the “oracular” effect of an unreasoned decision will naturally be greater in a case where there is no right of appeal. This has led to the suggestion that the fact there is no right of appeal may be a factor in favour of requiring reasons. See Murray(1998) COD 134.

d) Judicial review

The duty to give reasons is further imposed where judicial review is available. (In Guyana, there is no judicial review known as Order 53. The prerogative writs of certiorari, mandamus and prohibition are used.) The Doody case aptly demonstrates this approach. The case concerned, the right of four mandatory life prisoners on conviction for murder to be told the reasons why the Home Secretary differed from the recommendation of the trial judge in deciding the sentence to be served for the purposes of retribution and deterrence. Lord Mustill, noting that the Minister's decision was open to judicial review said

          "To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed."

e) Inference of misuse of power

Where a misuse of power can be inferred from the absence of reasons, the duty to give reasons will be necessary. In Padfield v. Minister of Agriculture, Fisheries and Food, [1968] 1 All E.R. 694 HL, although the relevant Act did not expressly provide for reasons to be given, it was said, obiter, that if no reason was given, the court might infer no good reason existed.

However, this position was restricted in the criticised case of Lonrho plc v. Secretary of State for Trade & Industry [1989] 2 All E.R. 609. In this case, the Minister's decision not to refer a take-over bid was challenged for irrationality.  The House of Lords said

         "The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all the other known facts and circumstances point overwhelmingly in favour of a different conclusion, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision."

In Exp. Cunningham (supra) the meagre award to a prison officer who was unfairly dismissed was, in the absence of reasons, held by the Court to be irrational.

f) Change of policy

Decision makers ought to give reasons where there is a change of policy or application of a new policy. In Pepys v. London Transport Executive [1975] 1 W.L.R. 234 because there was a departure from the rule that the successful party would not be ordered to pay costs of the unsuccessful party, it was held that reasons must be given where the court ordered the successful party to pay costs.

In the case of R v. Home Secretary ex p. Urmaza (1996) COD 479, it was also held where the decision maker departs from a previously adopted policy (even if not published) fairness will require that departure to be explained.

g) Legitimate expectation

A promise, practice or assurance to give reasons may found a legitimate expectation of having them. In Breen v. AEU [1971] 1 All E.R. 1148, 1154,Lord Denning stated,
                  
          "If ... a man who has some ... legitimate expectation, of which it would not be fair to deprive him without ... reasons given, then these should be accorded him."

Again, in Exp. Cunningham (supra) it was held that C and others who resort to the Prison Board had a legitimate expectation that the Prison Board would give reasons based on the assurance that they were promised that "the conditions applying to civil servants will not be less favourable than those applying to other employees." 

Legitimate expectation and fairness also required reasons in the case of R (on the application of Bibi) v. Newham LBC (2002) 1 WLR 23.
 

h) Personal liberty

The common law implies a duty to give reasons where personal liberty is affected as stated in the Doody and Exp. Dental Surgery cases (supra). See also Brooke LJ in the R (Wooder) v Feggetter (supra) who stated “the common law implies a duty to state reasons … where the subject matter is an interest so highly regarded by the law (for example, personal liberty) that fairness requires that reasons, at least for particular decisions, be given as of right.”    

In the Doody case, Lord Mustill emphasised that in a decision concerning personal liberty, the individual cannot be left to receive an unreasoned decision as if “the distant oracle has spoken, and that is that.”

EXCEPTIONS

It has been stated that exceptions to the giving of reasons are where national security might be jeopardised; R v. Secretary of State for the Home Dept, Exp. Hosenball [1977] 3 All E.R. 452; Exp. Adams (1995) Independent, 28 April, diplomatic and confidential reasons.      
In R v. Secretary of State for the Home Department, Exp. Fayed and Another [1997] 1 All E.R.228, it was stated that where it was felt that reasons would involve disclosing matters not in the public interest, the decision maker must indicate that, so as to enable the aggrieved party to challenge that decision.

STANDARD OF DUTY REQUIRED

Having recognised that generally reasons must be given, what is the standard required? This was stated by Megaw J. in Re Poyser and Mill's Arbitration [1963] 1 All E.R. 612 as follows

          "The reasons must be proper and adequate and not only intelligible, but must deal with the substantial issues raised."

This statement was approved by the House of Lords in Westminister City Council v. Great Portland Estates [1984] 3 AllE.R. 744 with Phillips J. stating
                  
          "that the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues."

In other words, when reasons are not given, an aggrieved person would not understand the decision. Reasons lead to comprehension which is essential for the satisfaction of an aggrieved person.

In Save Britain's Heritage v. Secretary of State for the Environment, [1991] 2 All E.R. 10, Lord Bridge referred to Megaw J. and Phillips J. and added

          "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."

In Exp. Cunningham, (supra) it was stated that the reasons given by the board need be no more than a concise statement of the way in which it arrived at its decision and the figure awarded.

If a number of reasons are given and some are good, but one or more is bad, then the decision may be valid provided that the reasons are independent and can be severed from each other - or if the same decision would have been reached on the valid reasons. See R v. Broadcasting Complaints Commission, exp. Owen [1985] 2 All E.R. 522. On the other hand, if the reasons disclose an error of law, the decision can be quashed or reversed.
In the Indian case of Union of India v. M.L. Capoor (1973) 2 SCC 836, it was stated that the reasons should reveal a rational nexus between the facts considered and the conclusions reached. Mere mechanical or rubber stamp and uniform reasons given will not satisfy the requirement.
 

STATUTORY POSITION

Presently, Barbados has legislation described as the Administration of Justice Act 1980, Act No. 63 of 1980, which imposes a duty on "any person or body making a decision ... if requested [on or before the date of giving or notification of the decision or within fourteen days after that date]... to supply ... a statement of the reasons for the decision." (s.13(1) read with s.14(1)). However, this duty is conditional and has far too many exceptions which are not conducive to the principles of good administration. It is of interest that the Barbadian case of Forde v. Durant No. 900/1985 (unreported) was decided without reference to the Act and it was held in that case that reasons must be given.

In Guyana, although there is no express general statutory duty to give reasons, it appears that certain Acts attempt to impose this duty. However, due to poor legislative drafting skills, this intention is not adequately realised. For instance, the Dental Registration Act 1996, Act 16 of 1996, s.29, states that upon refusing to approve the registration of a person, the Dental Council is required to give "written notice" to the person affected. It is submitted that this written notice is not appropriate.  What is required is a written statement of reasons for the refusal so as to make the right of appeal effective and to give recognition to the natural justice and fairness principles.

In the Trinidadian case of Burroughs v Katwaroo (1985) 40 WIR 287, the relevant legislation provided that the Commissioner "may revoke any licence ... in any case, if he thinks fit." K was granted a firearm licence. Relying on this provision, a few weeks later the Commissioner of Police wrote to K advising him that the licence had been cancelled. No reasons were given. The Court of Appeal held that the Commissioner would be required to state the reasons for his decision by a specific date. If he failed to state them by that date, K would automatically be entitled to the restoration of his licence. The Court went further and stated that no reasons might give rise to an inference that the decision had been taken otherwise than in good faith.

Further afield, the British Nationality Act 1981, s.44(2) stated that the Home Secretary is not "required to assign any reason for the grant or refusal of any application under" the Act. However, it was held in the case of R v. Secretary of State for the Home Department, Exp. Fayed and Another [1997] 1 All E.R. 228 that even where a provision of an Act expressly states that there is no requirement to give reasons, in order to be fair, where the decision involved the exercise of discretion, there is a requirement to give sufficient information as to the subject matter of concern to enable the aggrieved party to make representations.

In a demonstration of advancing the frontiers of jurisprudence, Phillips LJ. stated

"I cannot accept that the express relief from the duty to give reasons for his decision implicitly relieves the minister from the duty of disclosure during the process of reaching that decision."

JUDICIAL DECISIONS

In the cases of English v Emery Reimbold & Strick Ltd (2002) 1 WLR 2409 Lord Phillips of Worth Matravers MR and Henry LJ in the Flannery case (supra) quoted Griffiths LJ  in Reg. v. Knightsbridge Crown Court, Exp. International Sporting Club (London) Ltd. (1981) 1 Q.B. 304, 314 that

“… it is the function of professional judges to give reasons for their decisions and the decisions to which they are a party.”

(In that case, an application for judicial review by way of certiorari was filed in March 1981, heard in May of the same year and a written judgment was delivered three weeks later.)

In the Flannery case, the Court allowed an appeal on the sole ground that the Judge has failed to give adequate reasons for his decision. Henry LJ noted that “today’s professional judge owes a general duty to give reasons is clear.”

In the English case, it was held by the Court of Appeal “it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order.”

Guyana


The Constitution of Guyana was amended in 2001 in a half baked fashion. The amendment did not impose an express duty on Judges to write reasons for their decisions. What it did was to amend Article 197(3) to extend the grounds for removal of a judge for “persistently not writing decisions or for continuously failing to give reasons therefor, until such time as may be specified by Parliament.”

The amendment is decorative but ineffectual until further legislation is drafted and passed by Parliament to specify a time limit. The amendment should have been comprehensive, effectual and definite without the hope that Parliament would at some future date enact the relevant legislation. Even if Parliament specifies a time limit, an attempt to enforce this provision would provide fertile ground for litigation as in order to make the provision effective, subsection 4 of the same Article 197 should have been amended contemporaneously and this was not done. The question would arise as to whether the omission to concurrently amend subsection 4 was deliberate or inadvertent?

All Judges should be required to give written judgments within a reasonable time of perhaps six weeks after a case is completed so that judgments can be subject to scrutiny. The right to reasons is an indispensable part of a sound judicial system. It as important as any fundamental right. Appeals, trials and other cases should also be completed within a reasonably acceptable time frame. In Guyana, there is a requirement for reasons to be written for decisions when a notice of appeal has been filed. (O.2 r. 10(2), Cap. 3:01) However, no time limit for supplying such reasons is specified. There is no legal requirement for judgments of the Court of Appeal, to be written. Now that the Caribbean Court of Justice (CCJ) is Guyana’s final Court, it will be interesting to see what position will be taken by the CCJ if the Court of Appeal does not give adequate and proper reasons for decisions.   

RECOMMENDATIONS

The law relating to the duty or right to give reasons should not be left to the whims and fancy of the Courts which seek to display judicial acrobatics to justify a particular decision. Instead, the law and procedure should be clearly expressed by the legislature to cover all administrative and judicial decisions. There ought to be a duty on all decision makers who perform functions, duties and powers of a public nature, to give proper written reasons for their decisions and where appropriate, a duty to disclose information should be included. Reasons must be given within a reasonable time which must be specified. The legislation should further indicate the precise legal consequences of a failure to provide proper reasons. These provisions would guide public officials and serve as a stepping stone to protect the citizens and promote the principles of good administration. Phrases such as "if he thinks fit" and "if in his opinion" or similar words, which are constantly drafted in many Acts, are litigious and ought never to be used.

The call for legislation was also made in 1999 by the then Chief Justice of Guyana Desiree Bernard in Re Hanoman (Carl) (supra)who recommended as Parnell J. did in 1970, “that Parliament should consider enacting legislation as was done in Barbados requiring statutory bodies and public officials to give reasons for decisions made so that the whole process may become more transparent, which in turn will lead to greater efficiency and remove the cloud of suspicion which oft engulf executive authority in the execution of its administrative functions.”

Further, a decision maker ought to give reasons at or shortly after the time of the disputed decision. This avoids the risk of composing the reasons after the challenge is made to the decision. In R (S) v. Brent LBC [2002] EWCA Civ. 693, it was held by Schiemann J that “It is not ordinarily open to a decision maker, who is required to give reasons, to respond to a challenge by giving different or better reasons.”

We need to take the lead in European law which requires reasons to be given with the decision and not follow the cases which seem to permit a decision maker to subsequently justify a decision by affidavit.
 
The absence of written judgments does not redound to the credit of the Judiciary and this places the profession and society at a profound disadvantage. It deprives legal scholars of an understanding of the reasoning which permitted decisions which are not on face value in keeping with established legal thinking.
 
The requirement to document judgments is not only advantageous to the profession and to society at large, but will serve to exonerate the Judiciary when there are criticisms that their judgments are inconsistent with hallowed principles of jurisprudence or are an abuse of the judicial process.

SUMMARY AND CONCLUSION

In sum, the common law position today is that having regard to the newly acquired aims of promoting the principles of good administration, transparency and the rights of citizens, the grounds or approaches outlined have been used by the Courts to order reasons in most cases, or to vitiate a decision where no reasons have been given. For the principles of public law and the administration of justice require that persons affected by decisions must know reasons. Reasons replace subjectively with objectivity. It is submitted that the common law has opened the doors of justice and illuminated jurisprudential principles by finding that there is a general duty to give reasons, albeit implied.

However, for the sake of clarity, a separate fundamental right provision ought to be enshrined in the Constitution, the Supreme Law, otherwise decisions unaccompanied by reasons will have the effect of whittling down the importance of the Constitution. This is the way forward for Guyana and the Caribbean in the field of administrative law.

Although the requirement of the legal duty to give reasons is still in its embryonic stage in Guyana and is currently developing in the United Kingdom, it is apposite to note that European law has long recognised the need for administrative bodies to provide reasons for decisions. In UNECTEF v. Heylens [1989] CMLR 901 (See New Law Journal, Vol. 143, 1993.) wherein a qualified Belgian was unable to obtain employment in France, the European Court of Justice held that there was a duty to inform the would-be worker of the reasons on which the refusal was based so as to enable him to decide whether there was a possibility of challenging the reasons.

Having regard to the above recommendations, until such time as the appropriate legislation covering all administrative and judicial decisions is enacted, and a separate fundamental right provision is guaranteed, those responsible for making decisions should recognise that they have a legal obligation to give proper reasons or sufficient information for their decisions. This applies in cases where there is no written law; where there is written law but it does not provide for the giving of reasons and even where the written law expressly states that no reasons are required. The duty to give reasons is absolutely essential in cases where a decision would adversely affect the rights of an individual. For the giving of no reasons amounts to an "unacceptable administrative arrogance".     M. Kirby, Accountability and the Right to Reasons, Judicial Review of Administrative Action in the 1980's, 36-52 at 52. (Michael Taggart ed. 1986) On the other hand, the giving of adequate reasons is in effect the essence of democracy and good governance.

As Phillips LJ. stated in Exp. Fayed (1997) at p. 252

          "The duty of ministers ... to act fairly in the performance of their administrative duties, which in appropriate circumstances imports a duty to give reasons, is a fundamental principle of common law. Where the minister is performing statutory duties, it may be correct to state that the duty to give reasons, if it exists, arises in consequence of an implication in the course of statutory interpretation, but the implication falls to be made because of the common law principle."

Law reform is needed urgently in Guyana! TODAY! For secret, unchallengeable reports which contain damaging and misleading inaccuracies and which may result in a breach of a fundamental human right or which may affect the reputation of an individual are contrary to the rule of law and are unacceptable in a civilised and democratic society.  


Copyright 2007-2010. All rights reserved. Jamela A. Ali

Not to be published without permission from the author.

This Article was published with permission in The New Guyana Bar Review Volume 2 Issue 1: May 2008 (The Guyana Bar Association publication).

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"I have read ur article "Duty to give reason". U have done good job mam. It is very helpfull for me as a law student for the study purpose .  "Thanks for the excellent article above" and keep it up. Afra Fathima from Sri Lanka. November 28, 2016.

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"… words do not adequately express the sentiment I felt when considering the wisdom you displayed in your “DUTY TO GIVE REASONS - THE WAY FORWARD” It is a masterpiece and should be read by every lawmaker. I will do my best to pass on links to your website and hopefully others with more influence than me will run with your recommendations.
 
Next time you sit down to write another article please remember that you are encouraged, you have been blessed with a brilliant mind and to whom much is given much is expected."
From Chris Walker, Barbados
May 19, 2010
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"Your article a “DUTY TO GIVE REASONS - THE WAY FORWARD” is an excellent article and a welcome relief to my mind. You have restored my confidence in lawyers in general.
Keep up the excellent work!"
From Chris Walker, Barbados
May 19, 2010

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"Thanks for the excellent article above" - “DUTY TO GIVE REASONS - THE WAY FORWARD”
From Victor G. Lilley, UK
April 20, 2010

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Ms Jamela A Ali, LLM is an Attorney at Law with 27 years experience and appears at the Guyana Courts and Caribbean Court of Justice (CCJ).

For further information, here are the contact details:

Contact person: Ms. Jamela A Ali, LL.B. (Hons.)(U.W.I.), L.E.C., LL.M. (Legislative Drafting)(U.W.I.)

Office Address:     Lot 1 Croal Street, Stabroek, Georgetown
                           Guyana (br), South America

Telephone number:+592 225 4712  

Emails:                 jamelalawyer11@yahoo.com

                            jamelaali@gmail.com

Website:               www.GuyaneseLawyer.com

 

 

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