Principales Métricas para medir la efectividad del plan de Inbound

(a) The Justification for the Giving of Reasons for a Decision.

The giving o f reasons is often regarded, with justification, as an aspect o f due process

See e.g., Kadawatta Meda Korale Multi-purpose Co-operative Societies Union v.

Ratnavale, (1965) 66 N. L. R. 220.

A D. 77, at p. 38. /6zW., at p. 38.

and procedural fairness, and a corollary o f natural j u s t i c e . T h e duty to give reasons is contingent upon the right to receive reasons for a decision. It is because o f our view that this right is an important aspect of fundamental justice, that we regard the duty to give reasons as one o f the pillars of natural justice and not merely as an aspect o f the right to a hearing. The duty to give reasons for a decision is postponed until the hearing has been completed. It cannot, therefore, be considered as an aspect o f the right to a hearing; it is, however, an important process right, which warrants protection if a given society is to forcefully articulate a rights based model of administrative law.

The duty to give reasons for a decision is universally acknowledged as an aspect o f a fair trial: it would also ensure fairness in a civil h e a r i n g . E n g l i s h administrative law has, however, been slow to acknowledge a general duty to give r e a s o n s , e v e n though there have been some currents in this d i r e c t i o n . Y e t , Commonwealth countries, such as Australia for instance, have statutorily recognized that a decision-maker should be under an obligation to give reasons when requested to do so.’^^ This type o f obligation

See, e.g., Mears, Martin, 'In safe hands ?' (1997) 147 N. L. J. 1380.

See, e.g., Carr, Sir Cecil Thomas, Concerning English Administrative Law [New: York: Columbia University Press, 1941], at p. 122.

See, e.g., article 6 (I) o f the European Convention on Human Rights; see also article 14 (I) o f the International Covenant on Civil and Political Rights.

See, e.g., R. v. Secretary o f State fo r the Home Department, ex parte Doody, [1993] 3 W. L. R. 154; R. v. Higher Education Funding Council, ex parte Institute fo r Dental Surgery, [1994] 1 W. L. R. 242.

See, e.g., Padfield v. Minister o f Agriculture, Eisheries and Food, [1968] 1 A. C. 997; R. V. Secretary o f State fo r the Home Department, ex parte Doody, [1993] 3 W. L. R. 154.

See, e.g., s. 28 (I) of the Administrative Appeals Tribunal Act 1975 which provides:

is intrinsically desirable and helps to advance rights consciousness in society. The absence o f a general duty to give reasons, in English administrative law, is a disappointing development, and this has had the unfortunate side effect o f stultifying the advancement o f rights consciousness in Sri Lanka.

The right to due process, o f which the right to reasons is an integral part, provides protection for certain public law v a l u e s . T h e right to reasons is inherently interwoven with the public law values of'dignity' and 'respect.'.'^' The public law value o f dignity o f dignus means, inter alia, honour and reputation; respect or reverrentia encompasses the twin principles o f regard and consideration'^^. Upholding the right to reasons, in effect, results in an acknowledgement of the significance and importance o f these values.

In 1989, Sir Harry Woolf, the present Master o f the Rolls, in his Hamlyn Lectures, indicated that, in his opinion, he considered the introduction o f a general requirement that reasons should normally be available, at least on request, for all administrative actions, would be "the most beneficial improvement which could be made

Tribunal fo r a review, any p e r s o n who is entitled to apply to the Tribunal fo r a review o f the decision may, by notice in writing given to the person who made the decision, request that person to furnish to the applicant a statement in writing setting out the findings on material questions o f fact, referring to the evidence or other material on which those findings were based and giving the reasons fo r the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and furnish to the applicant, such a statement. ”

See, discussion in part I supra.

See, e.g., Oliver, Dawn, 'The Underlying Values o f Public and Private Law' in The Province o f Administrative Law edited by Taggart, Michael [Oxford: Hart Publishing,

1997], pp. 2 1 7 - 2 4 2 , at p. 224.

i bid., dit p. 225.

to English administrative iaw."'^^ Prior to that, in 1977, the Council o f Europe, in a resolution, to which the United Kingdom was a party, strongly recommended that reasons be given for administrative acts which adversely affected the rights, liberties or interests of the person concerned. In 1994, the English Law C o m m i s s i o n ' i n its report.

Administrative Law: Judicial Review and Statutory Appeals, observed as follows:

”[T]he absence o f a general duty to give reasons does, however, affect procedural matters. Because in judicial review proceedings "the vast majority o f the cards will start on the authority's hands". The absence o f a general duty leads to pressure fo r greater discovery in judicial review proceedings and makes it more difficult to justify a restrictive approach to discovery. The absence o f a general duty may also affect consideration o f what form o f appeal should lie from a decision. ...We therefore welcome the increased willingness by the courts to imply a duty to give reasons as part o f the duty to act fairly.

In R. V. Secretary o f State fo r the Home Department, ex parte D o o d y ,Lord Mustill

expressed the view that there was no general duty to give reasons in English law. He did, however, strongly suggest that the giving o f reasons was desirable. His Lordship observed that "the law does not at present recognise a general duty to give reasons for an administrative d e c i s i o n . " H i s Lordship took pains to point out, however, that "it [was] equally beyond question that such a decision may in appropriate circumstances be [implied].'** The view has, however, been taken that, in English law, there is, at present.

'*^ Woolf, Sir Harry, Protection o f the Public - A New Challenge, Hamlyn Lectures 1989 [London: Stevens & Sons, 1990], at p. 92.

'*"' (1994) Law Com. No. 226 [London: HMSO, 1994].

185

ibid., at p. 17, para., 2.30.

187

ibid., at p. 172.

no general duty to give reasons for a decision.

The Franks Report, referring to ministerial decisions taken after the holding of an inquiry, gave a powerful justification for providing reasons for a decision. The report stated:

"It is a fundamental requirement offa ir play that the parties concerned in one o f these procedures should know at the end o f the day why the particular decision has been taken. Where no reasons are given the individual may be forgiven fo r concluding that he has been the victim o f arbitrary decision. The giving o ffu ll reasons is also important to enable those concerned to satisfy themselves that the prescribed procedure has been follo w ed and to decide whether they wish to

challenge the minister's decision in the courts or elsewhere. ”

According to Jones and Thompson,'^' "[t]he significance o f a reasoned decision as distinct from one which is unreasoned is its potential assistance in allowing an intending applicant for judicial review to make an early assessment as regards the likelihood o f a challenge being successful." Foulkes'^^ argues that "[t]o be acting lawfully, the administrator must have reasons for his decision. To have to give them is some assurance that those reasons will be good in law, for having made them known, his decision must be open to scrutiny. To give reasons is to invite accountability and to expose oneself to criticism; it helps to ensure that power is not arbitrarily exercised.”

See, e.g., R. v. Secretary o f State fo r Trade and Industry, ex parte Lonrho pic, [1989] 1 W. L. R. 525, per Lord Keith, at p. 539; R. v. Inland Revenue Commissioners, ex parte Rossminster, [1980] A. C. 952, p e r Lord Diplock, at p. 1013.

Report o f the Committee on Administrative Tribunals and Enquiries, 1957, Cmnd. 218 [London: HMSO, 1957], para., 98.

Jones, B. L., and Thompson, K., Garner's Administrative Law [London: Butterworths, 8^*’ edn., 1996], at p. 242.

Foulkes, David, Administrative Law [London: Butterworths, 8^'’ edn., 1995], at p. 324.

Giving a powerful theoretical justification, in favour of the right to reasons for a decision, R a b i n s t a t e s :

"Fundamental to the concept o f procedural due process is the right to a reasoned explanation o f government conduct that is contrary to the expectations the government has created by conferring a special status upon an individual The very essence o f arbitrariness is to have one's status redefined by the state without an adequate explanation o f its reasons fo r doing so. It is crucial that this value be seen as distinct from the concern about administrative accuracy - the interest in correcting wrong decisions. Obviously, the two are related since a reasoned explanation is a means o f assuring the individual that the facts in his case are correctly perceived. But I would insist that the respect fo r individual autonomy that is at the foundation o f procedural due process imposes a distinct obligation upon the government to explain fu lly its adverse status decision. ”

The giving o f reasons is, therefore, an important aspect o f good administration. It promotes consistency in decision-making and acts as a safeguard on the exercise of arbitrary power. The giving of reasons is, therefore, a very valuable process right. It ensures that there is fairness and transparency in the process o f decision-making. Ensuring that decision-makers have supportable reasons for their decisions is invaluable for ensuring a rights culture.

Rabin, Robert. L., 'Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement' (1976 ) 44 The University o f Chicago Law Journal 60, at pp. 77 - 78.

(b) A rg u m en ts in F avou r o f G ivin g R eason s fo r a D ecision.

Fundamentally, the arguments in favour o f the giving of reasons for a decision are influenced by a perception that the role o f the state should be circumscribed.'^'^ It is an approach that favours a sharper focus on the courts rather than on the government; in this approach the state is often regarded as an intruder. It has been pointed out that the articulation o f "the bases o f a decision may improve the quality o f [decision-making].” '^^ This is illustrated by the fact that "[fjormulating reasons for a decision requires the decision-maker to identify the relevant issues, to marshal and weigh the evidence and arguments systematically, and to state and explain the conclusions. This exercise can help to ensure that the decision-maker does not overlook some relevant matter and to avoid other kinds of m i s t a k e s . " I n addition to this, "[t]he publication o f reasons may increase the confidence of members o f the public, particularly those adversely affected by a decision, in the administrative process, by offering some assurance that decisions are not made arbitrarily, and that the relevant arguments and evidence have been understood and properly taken into a c c o u n t . I t should also be noted that "[i]n the absence of reasons, it will often be very difficult for a court to review the legality o f a decision."

194

See, e.g., Harlow, Carol, and Rawlings, Richard, Law and Administration [London: Butterworths, 2"^ edn., 1997], especially chapter 2, 'Red light theories'.

195

See, Evans, J. M., Janisch, H. N., Mullan, David J., Risk, R. C. B., Administrative Law [Toronto: Edmond Montgomery Publications, 3"^^ edn., 1989], 309.

198 ,7 • ibid.

The All Souls Review o f Administrative Law in the United Kingdom^^'^ grouped, under four convenient headings, the arguments in favour of giving reasons for a decision.

Firstly, from the point o f view o f the functioning o f the machinery o f government the requirement that reasons be given imposes a healthy discipline on the decision-maker.

As a result the quality of a reasoned decision is likely to be much better than one for which reasons were not required. Additionally, the requirement to give reasons acts as a check upon the exercise of arbitrary power and is a fundamental o f good administration.

Secondly, the giving o f reasons is of relevance from the point o f view o f the parties affected by the decision. This is because the giving o f reasons helps to satisfy a basic need for fair play. Furthermore, it enables a person affected by a decision to know whether the decision itself can be challenged. It should also be noted that, even if the decision is adverse, the person affected may be convinced, as a result o f the reasons adduced, that the decision is a rational one beyond the pale o f challenge - an unbiased exercise o f discretionary power.^^'

Thirdly, the giving of reasons will be beneficial to the reviewing authority. It will expose the thinking of the decision-maker, with the inevitable outcome that it will result in the reviewing authority being in a better position to understand the decision and to

Administrative JUSTICE Some Necessary Reforms, Report o f the Committee o f the JU STICE - A ll Souls Review o f Administrative Law in the United Kingdom [Oxford:

Clarendon Press, 1988], at pp. 69 - 70.

ibid., at p. 69. z6w f,atp. 70.

exercise any appellate, reviewing or investigatory powers. Advancing proper reasons would expose the possible grounds for judicial review.^®^

Finally, the public at large benefits because if reasons are given it would result in enhancing public confidence in the process o f decision-making. Thus, supportable reasons are expected, by the public, from those who exercise administrative power.^®^ This is perhaps the cost one must bear for administration according to law. The absence o f a requirement that reasons should be given for a decision is not conducive to the advancement o f the rule o f law. The giving o f reasons is, therefore, a fundamental o f good administration.

(c) Arguments Against Giving Reasons for a Decision.

The theoretical justification for the denial o f reasons is influenced by the model o f government. It favours the use of administrative power for the benefit o f the community.^^'^ The All Souls Review o f Administrative Law in the United Kingdom^^^ has summarised the arguments, commonly advanced, against the duty to give reasons. It has been pointed out that “ [ejfficient administration requires free and uninhibited discussion among decision-makers, unimpeded by considerations of what can or cannot be made

ibid.

ibid.

204

See, e.g., Harlow, Carol, and Rawlings, Richard, Law and Administration [London: Butterworths, 2"^ edn., 1997], especially chapter 3 - 'Green light theories'.

supra.^ note 199.

public s u b s e q u e n t l y . C o n c e r n has also been expressed that a general requirement that reasons be given for a decision "would impose an intolerable burden on the machinery o f g o v e r n m e n t . T h e r e are also reservations that the duty to give reasons will result in delays being experienced in the process o f decision-making, a “judicialization o f affairs” and a lack o f candour on the part o f the decision-maker.^^*

It is submitted, however, that the arguments advanced against the duty to give reasons are weak and do not stand the test o f scrutiny. They are wholly inconsistent with a rights based model o f administrative law, and have no place in a democratic society where transparency and accountability are fundamental for government according to law. A decision-making process clothed in secrecy can rarely be justified and is not conducive for advancing rights consciousness in society.

(d) The Duty to Give Reasons and Natural Justice.

The duty to give reasons is acknowledged as a requirement o f natural justice. It is "the analogue in administrative law o f the common law's requirement that justice should not only be done, but also be seen to be done."^^^ Referring to the duty to give reasons, in the context o f a withdrawal o f a benefit, Lord Diplock, in Council o f Civil

ibid., at p. 70.

ibid.

!è/rf.,atpp. 70-71.

p er Lord Bridge, in Save Britain's Heritage v. Number I Poultry Ltd., [1991 ] I W. L R. 153, at pp. 170 -171.

Service Unions v. Minister fo r the Civil S e r v i c esaid that "the prima facie rule of procedural propriety in public law, applicable to a case of legitimate expectations that a benefit ought not to be withdrawn until the reason for its proposed withdrawal has been communicated to the person who has therefore enjoyed that benefit and that person has been given an opportunity to comment on the reason."

According to Wade and Forsyth^' ' the principles of natural justice have not, in the past, encompassed any rule o f general application that reasons for a decision should be given. Yet, Wade points out that "[ujnless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived o f the protection o f the law. A right to reasons is therefore an indispensable part o f a sound system o f judicial review. Natural justice may provide the best rubric for it,