Government is duty-bound to explain its decisions

In the U.K., there is no general duty for public authorities to give reasons for their decisions. Thus an authority can merely state that your application for a licence has no merit. Courts require reasons only in certain cases, for example, where a decision seems to depart from established policy. Even then, a laconic reason (such as that your tender was not as attractive as the successful one) has sometimes been accepted. How this ever became and continues to exist as a rule of law beats me but presently I will concern myself only with Cayman, where I live.

In Cayman we are more advanced. Section 19(2) of the Cayman Constitution requires public officials to give written reasons for their decisions if reasons are requested. This provision is in the fundamental rights chapter of the Constitution. Therefore, the right to be given reasons is not just a right but a fundamental right and the court must give it a meaningful interpretation so as not to stultify or water down the reason for its inclusion in the Constitution. What is unclear is the level of detail that is needed to satisfy this provision.

Government does not appear to have given guidance regarding this important duty. For a start, I think public authorities must give reasons even without being requested. Good governance requires this. And when reasons are given, they must contain sufficient details to enable the person concerned to understand at least the gist of the reasons why a decision was made. Unless this is done, one cannot be sure that the relevant power has not been abused? Until the reasons of a decision are revealed, the fairness of a decision cannot be demonstrated. For example, if facts are given alleging that a public authority has misconducted himself or herself, it is not enough to say that the complaint has no merit. The public authority making a decision on the complaint must state if the facts are not established or that the facts do not constitute misconduct.

Further, the giving of reasons at the time the decision is made or soon thereafter is important also to ensure that the purported reasons for the decision are made part of the public record. Where this is not done, it is easy for a public authority to fabricate new reasons if the real ones are proven weak, opening the way to rationalizations once an aggrieved party decides to bring legal proceedings.

Bilika H. Simamba
Attorney at Law, formerly Senior Legislative Counsel, Portfolio of Legal Affairs

1 COMMENT

  1. I am sure the learned correspondent will agree that the wording is such that it will take an army of attorneys to unravel it: For example: What “adversely affected” means will take years to agree…..

    That said, I agree that good governance and fair governance should ensure that decisions are made openly, transparently and with due regard to what is right and fair. If anyone can name me one government that does this routinely and without being cajoled into doing so, I would be very interested in hearing it.

Comments are closed.