The Gazette 1992

JUNE 1992

GAZETTE

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. 33 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 34 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". 35 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." 36 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. 37 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. 38 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." 39 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 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 R. -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", 41 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 apply and compensation was payable. 40 Of course, the more

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