Case 1: Hasan v Secretary of State for Trade and Industry [2008] EWCA Civ 1311

Case Information and Judicial Panel

Case Citation: Hasan v Secretary of State for Trade and Industry [2008] EWCA Civ 1311.
Court: Court of Appeal, Civil Division.
Judges: Sir Anthony May P, Wilson LJ, and Rimer LJ.
Hearing Dates: 21, 22 October 2008.
Judgment Date: 25 November 2008.
Legal Representatives: - For the Claimant (Saleh Hasan): Michael Fordham QC and Naina Patel (instructed by Public Interest Lawyers). - For the Secretary of State: James Eadie QC and Samuel Wordsworth (instructed by the Treasury Solicitor).

Overview of Subject Matter

Export Control: Concerns the exercise of functions and disclosure of information regarding the statutory process of military equipment and technology export.
Key Statutory Instruments: - Export Control Act 2002, $s\,9(8)$ . - Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003, SI 2003/2764.
Core Dispute: Whether the Secretary of State has a common law duty to publish reasons for administrative decisions (specifically the granting of export licenses) when the public interest is deemed to require it.

Background Facts

The Claimant: Mr. Saleh Hasan, a Palestinian resident of a village near Bethlehem. In April 2005, Israeli forces destroyed his olive and almond trees and appropriated his land.
Initial Claim: Mr. Hasan brought proceedings for judicial review challenging licenses granted by the Secretary of State between April and September 2006 for the export of military equipment to Israel.
The Consolidated Criteria: Under $s\,9(8)$ of the Export Control Act 2002, the "consolidated criteria" announced to Parliament on 26 October 2000 must be treated as guidance that licensing authorities are obliged to follow.
Allegations: The claimant argued the licenses were unlawful as there was a clear risk the goods would be used for internal repression against Palestinians, violating Criterion 2 of the consolidated criteria.

Evolution of the Amended Claim

Reduction in Scope: The claimant amended the claim after the Secretary of State provided a schedule of defense. This schedule listed $27$ specific licenses granted between April and June 2006, including descriptions of goods and brief reasons for their compliance with the criteria.
Specific Examples of Disclosed Reasons: - For an item described as "Naval vessel components – cable," the reason provided was: "Israel has a legitimate right to patrol its waters."
Final Contention: Mr. Hasan conceded that the lawfulness of the specific $27$ licenses could not be challenged but argued for a public law duty to publish such reasons routinely for export licenses to Israel and $19$ other countries classified as "Major Countries of Concern" in the Foreign and Commonwealth Office 2006 Human Rights Report.

Statutory and Regulatory Framework

Export Control Act 2002, $s\,9(8)$ : Establishes the "consolidated criteria" as guidance for licensing decisions regarding military goods and technology (falling within paragraphs 1 or 2).
Export Control Act 2002, $s\,10$ : Requires the Secretary of State to lay an annual report before Parliament regarding the operation of the Act.
2003 Order, Article 15: Mandates that the Secretary of State provide written reasons to an applicant if their license application is refused, suspended, or revoked, enabling an appeal.
2003 Order, Article 22: Provides for the proportionate and controlled use of information regarding control operations by the Secretary of State or HMRC.
Freedom of Information Act 2000 (FOIA): - $s\,1$ : General right of access to information. - $s\,36(2)$ : Exemption for prejudice to effective conduct of public affairs. - $s\,40$ : Exemption for personal data. - $s\,41$ : Exemption for confidential information. - $s\,43(2)$ : Exemption for commercial interests.

Claimant's Legal Arguments for a Duty to Give Reasons

The Proposed Duty: Public authorities are obliged at common law to publish reasons for administrative decisions whenever the court is satisfied that the public interest so requires.
Supporting Principles: - Concept of transparency and public confidence. - Accountability of public authorities. - Proportionality. - Individual or class impact: Decisions affecting defined classes of individuals should be reasoned.
Trend in Law: Acknowledgment of a trend toward increased recognition of a duty to give reasons and increased government openness, citing Stefan v General Medical Council.
Adequacy: The duty would be subject to reasonable exceptions and a standard of adequacy that is not "unduly burdensome."

Respondent's Legal Arguments

Scope of Duty: Argued that the proposed duty was of "uncontained width and imprecision" and would represent a "massive and unwarranted leap" for the court.
Parliamentary Intention: The statutory framework (2002 Act and 2003 Order) provides for specific circumstances where reasons are given (refusals). This implies Parliament did not intend for a wider general duty to publish reasons for granted licenses.
Sensitivity: Military exports involve national security, commercial confidence, and foreign relations matters not suited for general public disclosure.

The Role of Parliamentary Scrutiny

Strategic Export Controls: The government issues annual and quarterly reports on licensing decisions.
Select Committee: The reports are scrutinized by the Committees on Arms Export Controls (formerly the Quadripartite Committee), comprising members from the Defence, Foreign Affairs, International Development, and Business and Enterprise committees.
Closed Sessions: The committee can receive sensitive information in closed sessions that cannot be made public. Evidence showed the committee found government answers satisfactory in nearly all cases where they requested additional info (ref: Committee report 2006–2007, para $329$ ).
Volume of Data: The 2006 annual report included a CD-ROM with $1,138$ pages of data covering $198$ states.

Judicial Analysis and Findings (Sir Anthony May P)

General Rule on Reasons: There is no general common law duty to give reasons for administrative decisions. Although categories requiring reasons are increasing, the direct interest of the claimant in this case was deemed "indirect" or "nominal" as he was acting as a representative of the public interest rather than an affected individual.
Effect of Existing Statutes: - The structure of the 2002 Act and 2003 Order shows Parliament considered what information should be shared and with whom. This argues against a wider common law obligation. - FOIA 2000 represents the comprehensive statutory framework for information disclosure. The court should not create a parallel common law duty that might conflict or bypass this framework.
Practical Considerations: Compiling reason schedules is "laborious." While reasons should be formulated at the time of the decision, drafting them for public consumption requires careful consideration that the law does not currently mandate.
Transparency: The court found a "high degree of openness and public accountability" already exists through Parliamentary reports and Select Committee scrutiny.

Conclusion and Ruling

Decision: The appeal was dismissed. The court upheld the decision of Collins J.
Summary of Rationales: 1. Parliament provided for specific reason-giving in legislation. 2. Sufficient public accountability exists via voluntary reports. 3. Subject matter sensitivity makes Parliamentary scrutiny preferable to court-mandated public disclosure. 4. FOIA 2000 is the appropriate channel for information requests. 5. The proposed common law duty lacked definition and principle. 6. The claimant had only a nominal interest as he admitted the specific licenses in question were ultimately lawful.

Questions & Discussion (Cited Case Law)

R (on the application of Anufrijeva) v Secretary of State for the Home Dept [2003]: Determination of asylum claims.
R (on the application of Wooder) v Feggetter [2002]: Decision to administer medical treatment to non-consenting adults.
RvSecretary of State for the Home Dept, ex p Doody [1993]: Reasons for mandatory life sentences.
Stefan v General Medical Council (1999): Trends toward openness in government and recognition of duty to give reasons.
RvCity of London Corp, ex p Matson [1997]: Election of Aldermen and public confidence.
RvIslington London BC, ex p Hinds (1994): Public confidence and self-discipline in decision-making (homelessness cases).