The English Court of Appeal decision in R (on the
application of Hasan) v Secretary of State for Trade and
Industry  EWCA Civ 1311 reiterated that public
authorities in the United Kingdom are not yet bound by a general
common law duty to publish reasons for administrative decisions.
The Court was of the view that the statutory framework under the UK
Freedom of Information Act 2000 (the FOI
Act) sets out clear parameters for the disclosure of
information, and therefore, the law should not go further.
In April 2005, Israeli forces destroyed the appellant's
olive and almond trees and appropriated his land. The appellant
sought judicial review of the licences granted by the British
Secretary of State under the Export Control Act 2002 (UK)
for the export of military equipment to Israel. It was contended
that there was a real risk that the licensed articles would be used
against Palestinians for internal repression which was contrary to
the Consolidated Criteria of 26 October 2000. It was also contended
that there was a general public duty at common law to publish
reasons in the public domain where it is required for the purposes
of public interest, and for the sake of transparency, public
confidence, accountability and proportionality.
The Court of Appeal held that Collins J of the High Court of
Justice in the Queen's Bench Division was correct in
determining that the claim must fail. The Court agreed with the
respondent's submission that a purported duty of uncontained
width and imprecision would be a massive and unwarranted leap for
the Court to make, particularly since it could result in subjective
decisions being made by individual judges.
Further, the Court stated that the FOI Act is Parliament's
considered statutory framework for the disclosure of information
which does not leave scope for ancillary judicial determinations on
the matter. The fact that the appellant failed before the
Information Commissioner consolidated the Court's view that the
appellant should not be allowed to succeed by other means. The
Court also noted that, since the subject matter was of a sensitive
nature, any unguarded publication was likely to be damaging.
This case confirms that, in the UK, administrative
decision-makers are currently not bound by a common law duty to
disclose reasons for their decisions. The judgment makes it clear
that the existence of a freedom of information regime will
generally prevail against the parallel existence of a common law
duty. It also demonstrates that the formulation of a duty
characterised by an unpredictable lack of principle and of
uncontained scope will not make for a compelling argument in court.
Nevertheless, the Court affirmed that the question of whether
decision-makers should give reasons for administrative decisions
remains open for further consideration if the appropriate
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