Fayed, R (on the application of) v Secretary Of State For Home Department [1996] EWCA Civ 946

EWCA-Civ
Fayed, R (on the application of) v Secretary Of State For Home Department
[1996] EWCA Civ 946 · 1996-11-13
[1]Factual Background The details of these two applications for naturalisation are relatively unimportant. Suffice to say that Mr Ali Fayed is married to a British citizen. Mr Mohammed Fayed's wife is a citizen of Finland. Both men have children who are British citizens, and both men have lived and worked here for many years. In due course each applied for naturalisation, and after an extraordinarily long delay each application was refused, no reasons being given.[2]Legal background Mr Beloff, QC., for the appellants, submits that for each appellant the application for naturalisation was an important matter. Each sought from the Secretary of State for the Home Department an administrative decision in his favour, and to that end filled in a standard form which asked only for basic information and the identity of one or two referees. All that information was provided, and, Mr Beloff submits, natural justice required that if either application was to be refused the applicant should have some opportunity to deal with those matters which troubled the Secretary of State before the decision was made. Ideally the applicants should both had have that opportunity and reasons for the subsequent decision. If reasons had been given it might not have mattered so much that before the decisions were made the applicants had no opportunity to meet any case there may have been against them, because if the reasons disclosed any error on the part of the Secretary of State the applicants would have been able to press for a reconsideration of the relevant decision, but, if no reasons were to be given, it was all the more important that each applicant, before the final decision was made, had an opportunity to deal with those matters which resulted in the Secretary of State being minded to refuse. The argument which I have just summarised is entirely in accordance with the approach frequently adopted by the English courts in recent years to administrative decisions having an important effect upon the lives of individuals, and many authorities can be cited to support that general proposition. For example, in R v Gaming Board ex parte Benaim (1970) 2 QB 417 Lord Denning, M.R. said at 431F , in relation to the application for a gaming licence :- "Without disclosing every detail, I should have thought that the Board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer. That is only fair. And the Board must at all costs be fair. If they are not, these courts will not hesitate to interfere." In that case it was not thought necessary for the Gaming Board when it made its decision to give reasons. Conversely in R v Lord Mayor of London ex parte Matson (1996) Admin LR 49 the unsuccessful candidate for the office of Alderman was held entitled to reasons, but was not able to demonstrate procedural unfairness although he was never informed of the case, if any, against him. As Neill L.J. said in that case at page 62E :- "It is common ground that the law does not at present recognise a general duty to give reasons for an administrative decision; see Lord Mustill in Doody (1994) 1 AC 531 at 564E. But such a duty may be implied in appropriate circumstances. These circumstances will include the nature of the adjudicating process."[3]Statutory Framework It has been common ground before us that each case does have to be considered against the background of the statutory provisions relevant to the application under consideration, and in the present case that means that it is necessary to look at the provisions of the British Nationality Act 1981 and subordinate legislation. Part I of the Act deals with British citizenship and, as Mr Richards for the Secretary of State has pointed out, at an early stage it is possible to see a distinction being drawn between those entitled to citizenship, such as children of a British citizen born abroad (section 3(2)) and other children who the Secretary of State "may if he thinks fit" cause to be registered as British citizens (section 3(1)). Section 6 deals with applications for naturalisation by adults such as the present appellants. The section distinguishes between applicants who are married to British citizens (s.6(2)) and those who are not (s.6(1)). Consequently the application of Mr Ali Fayed fell to be considered under section 6(2), and that of Mr Mohammed Fayed under section 6(1) but for present purposes nothing turns on that distinction. When considering any application under section 6 the Secretary of State must be satisfied that the applicant fulfils the requirements of Schedule I. Those requirements differ to some extent, depending upon whether the applicant is or is not married to a British citizen, but again for present purposes nothing turns on that distinction. Broadly speaking what the schedule requires of an applicant (other than those in Crown Service) is :-(1) a period of pre-application residence in the U.K.:(2) compliance with immigration laws:(3) good character:(4) linguistic proficiency (not applicable to those married to British citizens):(5) an intention to make his principal home in the U.K. (again not applicable to those married to British citizens). Paragraph 2 of the Schedule enables the Secretary of State to waive certain of those requirements but he cannot waive the requirement of good character. Even if the requirements of Schedule I are satisfied the Secretary of State is under no obligation to grant a certificate of naturalisation. He may do so if he thinks fit. There is nothing in the Act or in the schedule to suggest that if the Secretary of State is minded to refuse he should make that fact known to the applicant before reaching a conclusion, but if the Secretary of State does grant registration or a certificate of naturalisation, and later becomes satisfied that the registration or the certificate was obtained by means of fraud, false representation or the concealment of any material fact section 40(1) provides that he may then deprive the citizen of his British citizenship. In that event section 40(6) provides that :- "Before making an order under this section the Secretary of State shall give the person against whom the order is proposed to be made notice in writing informing him of the ground or grounds on which it is proposed to be made and of his right to an inquiry under this section." Section 40(7) provides the mechanism for referring the matter to a committee of inquiry, which operates under the British Citizenship (Deprivation) Rules 1982, and all of that, Mr Richards submits, can usefully be contrasted with section 6 which makes no mention of any such procedure. Mr Richards submits that section 40(6) if applied to section 6 really sets out in terms Mr Beloff's case. He is contending that an applicant for naturalisation whose application it is proposed to refuse should receive "notice in writing informing him of the ground or grounds on which it is proposed (to refuse)". But if Parliament intended that course to be followed in relation to section 6 as well as in relation to section 40 why, Mr Richards asks rhetorically, did it not say so? That brings me to section 44 headed "Decisions involving exercise of discretion". As I have pointed out, strictly speaking not all decisions under section 6 fall into that category. If, for example, an applicant is not of good character, he fails to satisfy a requirement of Schedule I which the Secretary of State cannot waive and therefore his application must be refused. Nevertheless counsel before us are agreed, and I accept, that for the purposes of section 44 any decision under section 6 is a discretionary decision, including a refusal because the Secretary of State is not satisfied that an applicant meets a mandatory requirement of Schedule I. That is because section 44 must be read in the context of the Act as a whole, which is permeated by the distinction to which I have already referred between those entitled to citizenship as of right and those who (like all applicants whose claims fall to be considered under section 6) can only obtain it if a discretion is exercised in their favour. Section 44(1) requires that there be no discrimination on grounds of race, colour or religion, and section 44(2) so far as material provides :- "The Secretary of State .... shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State ...... on any such application shall not be subject to appeal to, or review in, any court." Before Judge J, as he then was, and before us it was accepted that the final words of the subsection do not deprive the High Court or this court of all judicial review jurisdiction. The court cannot reconsider the merits of a decision, but it can consider if a decision was made ultra vires [see Anisminic Ltd v Foreign Compensation Commission (1969 2 AC 147 and R v SSHD ex parte Mehta (1992) Imm AR 512]. But what about the opening words of this subsection? Clearly, as it seems to me, they give to the Secretary of State the discretion not to assign any reason for the grant or refusal of any section 6 application, and I simply cannot accept Mr Beloff's submission that the discretion is one that in the circumstances could only be exercised one way, namely in favour of giving reasons.[4]Natural Justice But Mr Beloff's more attractive submission is that because even in 1981 (when the Statutory provisions were re-enacted) in a situation like this, and especially if reasons were not going to be given for the decision itself, natural justice was held normally to require the decision-maker to give the applicant an opportunity to meet any case there might be against him; and because neither in section 44(2) nor elsewhere does this particular statute expressly remove that requirement, it must remain. Attractive though that argument is, I am unable to accept it. The plain intention of Parliament was to relieve the Secretary of State of the burden of giving reasons, in any case involving the exercise of discretion, to which burden but for the words of section 44(2) he would in my judgment be subject. If the Secretary of State must nevertheless canvass with the applicant a matter or matters which in his view weigh against the grant of citizenship that, in every case where there is ultimately a refusal, means that the reason or reasons for refusal will have had to be disclosed. If, as may often be the case, the Secretary of State has only been troubled about one matter, then the unsuccessful applicant will be in no doubt as to the reason for refusal and the Secretary of State will in reality have been required to assign a reason for the refusal, which is precisely what section 44(2) says should not occur. Even if at the consultation stage the Secretary of State indicates that he is troubled by more than one matter the situation will be much the same. The applicant's further submission may meet some of the Secretary of State's concerns, so that when the decision is made if no reasons are given the applicant will not know which matters continued to be of concern, but in reality at the consultation stage the Secretary of State will have been required to identify, albeit as it turned out inter alia , the reason or reasons for his refusal. Mr Beloff rightly points out that the wording of section 44(2) relates to the decision-making stage of the process, and not to any earlier stage, but as Judge J said "although the principle of audi alterem partem and the provision of reasons for the decision are distinct they are closely related and derive from the concept of fairness". I agree, and indeed I go further. In my judgment the relationship is such that Parliament cannot have overlooked it. Undoubtedly the words of the statute do impinge upon what without them fairness would require, but not, as it seems to me, to a particularly surprising extent. As Mr Beloff conceded, there will no doubt be many occasions on which the Secretary of State, for good reason, would prefer not to explain why he is minded to refuse or is in fact refusing citizenship. In his second affidavit Mr Rawsthorne on behalf of the Secretary of State said:- "It is the practice to give reasons where refusal is based solely on failure to meet the residence, language or full capacity requirements; and not to give reasons where refusal is based, in whole or in part, on matters of judgment relating to, for example, the good character requirement or the applicant's future intentions or where security matters are involved." During the hearing of the appeal the possibility was canvassed of an applicant being believed to be involved in crime abroad but the situation being such that if that information were to be revealed by the Secretary of State it might endanger sources of information. Consideration was also given to the situation where the grant of citizenship to an applicant might jeopardise relations with another sovereign state. Those are but two examples of situations in which the advantage of the Secretary of State not being required to give reasons or even to explain why he was minded to refuse is obvious. And when considering those examples it is important to bear in mind that the applicants for citizenship with whom we are concerned and to whom section 44(2) applies seek a privilege not a right. I accept that if my understanding as to the effect of section 44(2) is correct such an applicant is at a disadvantage when compared with many others who seek an administrative decision, but his position is not unique. Not all decision makers are required either to identify to those they are minded to find against the points which trouble them, or to give reasons for their decisions, as can be seen daily in any magistrates' court.[5]Attorney-General v Ryan (1988) AC 718 I come now to the authority which Mr Beloff put in the forefront of his case. By Article 5(2) of the Constitution of the Bahamas any person who on 9th July 1973 possessed Bahamian status and who is ordinarily resident in the Bahama Islands "shall be entitled upon making application before July 10, 1974 to be registered as a citizen of the Bahamas". By the proviso to section 7 of the Bahamas Nationality Act 1973 the Minister for Home Affairs may refuse an application for registration on specified grounds or "for any other sufficient reason of public policy". Section 16 of the same Act as far as material, provided:- "The Minister shall not be required to assign any reason for the grant or refusal of any application .... under this Act ... and the decision of the Minister ... shall not be subject to appeal or review in any court." The appellant in that case applied for citizenship and was refused without reasons being given, so the case has obvious similarities when compared with the cases with which we are concerned, but:(1) the prime issue before the Privy Council was whether the concluding words of the proviso to section 7 of the 1973 Act were ultra vires the constitution.(2) counsel for the Attorney-General conceded that if, as was held, they were ultra vires the applicant, who was trying to exercise a right not asking for a privilege, was entitled to relief, because he had not been given an opportunity to meet the case against him. The Privy Council therefore never had to consider as a contentious issue whether section 16 of the 1973 Act in any way restricted the applicant's right to know the case against him, which is the point at issue in the present case. I am therefore unable to derive any particular assistance from that case.[6]Conclusion In my judgment these appeals turn in the end on a question of construction. How can this court properly give effect to the words of section 44(2) of the 1981 Act? In order to give effect to those words it seems to me that the Secretary of State when called upon to exercise his discretion must be relieved not only of any obligation to give reasons at the time of or immediately after he makes his decision, but also of any duty to indicate to an applicant at any earlier stage why he is minded to refuse. As Mr Richards points out, if Parliament intended otherwise why is there not to be found in section 44(2) some provision equivalent to that in section 40(6)? I would therefore dismiss these appeals.

LORD JUSTICE PHILLIPS:

"And it's greatly to his credit that he is an Englishman!"
When W.S. Gilbert wrote those words the sun never set upon the British Empire, but British nationality remains a keen aspiration of many who have made this country their home. The British Nationality Act 1981 ("the Act") sets out circumstances in which someone who has settled in Great Britain can reasonably hope that he will be granted British nationality. Schedule 1 to the Act sets out "Requirements for Naturalisation". These include a minimum period of past residence in the United Kingdom, compliance with the immigration laws, an intention to make the United Kingdom ones principal home (where the applicant is not married to a British citizen) and good character. Some of these requirements can be waived. Section 6 of the Act provides that where the Secretary of State ("the Minister") is satisfied that the applicant fulfils these requirements "he may, if he thinks fit" grant him a certificate of naturalisation as a British citizen. We have been told that the majority of those who satisfy the residential requirements have their applications granted. Mr Mohammed Fayed and Mr Ali Fayed, but for one minor matter which the Minister has waived, satisfy the residential requirements. Mr Mohammed Fayed says that he wishes to make the United Kingdom his principal home, and there would seem no reason why the Minister should doubt this intention. Mr Ali Fayed is married to a British citizen. Both have applied for naturalisation as British citizens and both have had their applications refused. Neither while their applications were under consideration, nor when they were refused were they given any indication of what, if any, adverse factors opposed the grant of the privilege which they sought. They have applied for judicial review of these decisions. Each contends that the Minister has failed to comply with the requirements of natural justice in that the procedure has been unfair in two respects: (i) The Minister failed to inform him of the matters which were causing him concern when considering his application, thereby depriving him of the opportunity to make representations in respect of them. I shall describe this complaint as 'failure to give disclosure'. (ii) The Minister failed to give reasons for his decision. The Minister contends that the requirements of natural justice did not require him either to give disclosure or to give reasons. He further contends that Section 44(2) of the Act precludes each of those obligations. That Section provides:
"The Secretary of State ... shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State ... shall not be subject to appeal to, or review in, any court."
Judge J. accepted the latter contention. He held:
"Although the principle audi alterem partem and the provision of the reasons for the decision are distinct, they are closely related and derive from the concept of fairness. Nothing in section 44(2) or in any other part of the legislation expressly permits the Secretary of State to be unfair to non-citizens and it would be astonishing if it did. In reality, however, the principle of fairness contended for in these cases means that as part of the continuing process of considering applications, if the Secretary of State forms a preliminary conclusion adverse to applicants he should notify them in sufficiently detailed terms to provide them with a proper opportunity to be heard notwithstanding the unequivocal language that he cannot be required to give any "reasons"
. If the opportunity to be heard is to have any value in practice the Secretary of State would be required to assign or identify the reasons for any adverse decision in advance. In my judgment, the imposition of such an obligation under the principle of fairness would be inconsistent with the language and effect of section 44(2) of the 1981 Act. Accordingly, the failure to give the applicants an opportunity to deal with matters considered by the Secretary of State to be adverse to their applications was not unlawful. The course he took was permitted by statute." Accordingly he dismissed the Fayeds' applications. They now appeal against his decision. In my judgment the appropriate approach to this case is one that Mr Richards for the Minister urged us not to take. I propose first to consider what obligations the requirements of natural justice would have imposed on the Minister in the absence of Section 44(2) and then to turn to consider the extent to which, if at all, these are excluded by that Section. The Duty of Disclosure Mr. Beloff, Q.C., for the Appellants, submitted that natural justice demands that an applicant under Section 6, and each of the Appellants in particular, be informed of the nature of the case against his application and given a reasonable opportunity of answering it. Of the many cases that discuss the duty of disclosure, three are of particular relevance. The nearest case to the present is the decision of the Privy Council in Attorney General v Ryan [1980] AC 718 . That case concerned an application to be registered as a citizen of The Bahamas. The applicant was entitled to registration unless the Minister was satisfied of one of a number of matters - each one of which would reflect discredit upon the applicant. In reviewing the decision of the Supreme Court of the Bahamas, Lord Diplock said this:
"(1) Applicability of the principles of natural justice In the Supreme Court both judges were of the opinion that the respondent had a constitutional right to a fair hearing in accordance with the principles of natural justice before his application to be registered as a citizen was rejected by the Minister; and that a failure to accord him this rendered the Minister's decision a nullity. This means that he was at least entitled to be informed of the nature of the case against acceptance of his application and to be given a reasonable opportunity of answering it. It does not mean that there must necessarily be an oral hearing conducted in accordance with procedures appropriate to trials in a court of law. What is an appropriate and fair procedure is very much a matter for the Minister to determine in his discretion having regard to the kind of things which he is required to take into consideration - in the instant case, the various matters referred to in the proviso to section 7 of The Bahamas Nationality Act 1973. Their Lordships, however, need not go further into this, on which ample authority is cited in the judgments of the courts below, since it is now conceded that neither at his interview with Mr. Walkine nor on any other occasion was the respondent given any indication of the grounds upon which the Minister contemplated rejecting his application for registration; so, cadit quaestio, he was given no opportunity of answering them. Their Lordships agree with the judges of the Supreme Court (as did the Court of Appeal) that as an applicant for registration as a citizen of The Bahamas under article 5(2) of the Constitution, the respondent was entitled to a fair hearing in accordance with the principles of natural justice before his application was rejected by the Minister. By virtue of section 7 and 8 of The Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and, if he fails to do so, his purported decision is a nullity. In view of the citations of so many cases in the judgments below, their Lordships upon this branch of the law do not find it necessary to do more than to refer to Ridge v Baldwin [1964] A.C.40 and particularly to the speech of Lord Reid, at pp.74-76."
Ryan differs from the present case in that in Ryan the decision of the Minister deprived the applicant of the right to registration. Under Section 6 the applicant has no more than the hope of a grant of naturalisation in the discretion of the Secretary of State. In R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417 the applicants, the proprietors of Crockford's, renewed an application to the Court of Appeal against the refusal of the Gaming Board to grant a certificate of consent to entitle them to apply for a gaming licence. The relevant provision of Schedule 2 to the Gaming Act 1968 provided:
"4. (5).....in determining whether to issue to an applicant a certificate consenting to his applying for the grant of a licence under this Act in respect of any premises, the board shall have regard only to the question whether, in their opinion, the applicant is likely to be capable of, and diligent in, securing that the provisions of this Act and of any regulations made under it will be complied with, that gaming on those premises will be fairly and properly conducted, and that the premises will be conducted without disorder or disturbance.

(a) of the applicant"

At issue was the extent of the duty of the Gaming Board to disclose to the applicants the case against them. As to the nature of Crockford's interest, Lord Denning, M.R., described it thus at p.429:
"Mr. Quintin Hogg criticised that outline procedure severely. He spoke as if Crockford's were being deprived of a right of property or of a right to make a living..... Mr. Hogg put his case, I think, too high. It is an error to regard Crockford's as having any right of which they are being deprived. They have not had in the past, and they have not now, any right to play these games of chance - roulette, chemin-de-fer, baccarat and the like - for their own profit. What they are really seeking is a privilege - almost, I might say, a franchise - to carry on gaming for profit, a thing never hitherto allowed in this country. It is for them to show that they are fit to be trusted with it. If Mr. Hogg went too far on his side, I think Mr. Kidwell went too far on the other. He submitted that the Gaming Board are free to grant or refuse a certificate as they please. They are not bound, he says, to obey the rules of natural justice any more than any other executive body, such as, I suppose, the Board of Trade, which grants industrial development certificates, or the Television Authority, which awards television programme contracts. I cannot accept this view. I think the Gaming Board are bound to observe the rules of natural justice. The question is: What are those rules?"

Lord Denning answered that question as follows:

"....the board have a duty to act fairly. They must give the applicant an opportunity of satisfying them of the matters specified in the sub-section. They must let him know what their impressions are so that he can disabuse them. But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1964] A.C.40 ; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180 . After all, they are not charging him with doing anything wrong. They are simply inquiring as to his capability and diligence and are having regard to his character, reputation and financial standing. They are there to protect the public interest, to see that persons running the gaming clubs are fit to be trusted. Seeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest...... If the Gaming Board were bound to disclose their sources of information, no one would "tell" on those clubs, for fear of reprisals. Likewise with the details of the information. If the board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere."
That decision demonstrates two matters:[1]The duty to disclose the case that is adverse to an applicant for the exercise of a discretion does not depend upon the pre-existence of any right in the applicant.[2]The nature and degree of disclosure required depends upon the particular circumstances. These two decisions assist in the application to the facts of the present case of the general principles summarised by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1AC 531 at p.560:
"(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result : or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
In the light of these authorities I am satisfied that, in the absence of Section 44, an applicant under Section 6 would be entitled to be informed of the nature of matters adverse to his application so as to be afforded a reasonable opportunity to deal with them. An applicant for citizenship has not at risk any vested right. In that respect this case differs from Ryan . The right for which he applies is, however, a right of great importance. It carries with it the rights of freedom of movement and establishment enjoyed by members of the European Community. It exempts from visa requirements in many parts of the world. It carries a right to vote. It is a legitimate aspiration for one who has established his home in this country, the more so if he has children here who have British Nationality and if his wife is a British National. There is another side to the coin. The refusal of British Nationality to one who has, apparently, satisfied all the technical requirements of Section 6 is likely to carry the natural implication, both in this Country and abroad, that he has attributes of background, character or conduct that are disreputable. I consider that these factors give the Appellants stronger grounds for urging a duty of disclosure than existed in the Gaming Board case. The refusal of the benefits of naturalisation and the adverse inferences that will be drawn from such refusal, are so serious that, as a matter of natural justice an applicant should not be visited with them without a fair chance to meet the adverse case that threatens this result. The Duty to Give Reasons Whether or not the requirements of natural justice impart an obligation to give reasons is often a difficult question of administrative law, the more so because the courts have been increasingly ready to find that such a duty exists, see De Smith, Woolf and Jowell at pages 457 to 464. In this case, when considering procedural fairness, the extent of the duty of disclosure and the duty to give reasons are interrelated. For the reasons that I have given in relation to the duty of disclosure, I consider that, absent Article 44(2), the Minister would be under a duty to give reasons for refusing an application for naturalisation under Section 6 of the Act. The Effect of Section 44(2) The Duty to Give Reasons The provision that the Minister "shall not be required to assign any reason for the grant or refusal" of an application is clear and unambiguous. Mr Beloff argued that these words relate only to the Minister's "statutory duty" to give reasons and do not impinge on a parallel duty to give reasons, which exists at common law. This seems to me to be sophistry of a high order. The duty of Ministers of the Crown to act fairly in the performance of their administrative duties, which in appropriate circumstances imports a duty to give reasons, is a fundamental principle of our common law. Where the Minister is performing statutory duties, it may be correct to state that the duty to give reasons, if it exists, arises in consequence of an implication in the course of statutory interpretation, but the implication falls to be made because of the common law principle. I reject the suggestion that there co-exist common law and statutory duties to give reasons, and that Section 44(2) applies only to the latter. I am in no doubt that the express words of the Statute preclude the obligation on the Minister, that would otherwise exist, to give reasons for his decision. The Duty of Disclosure Mr Richards' submission, which Judge J. accepted, was that a duty of disclosure would "frustrate the operation of Section 44(2) and the legislative purpose of protecting the Respondent from any requirement to disclose his reasons". Section 44(2) has its origins in Section 26 of the British Nationality Act 1948, which was in almost identical terms. In 1948 it might well have been thought, having particular regard to the exclusion of "appeal to or review in any court" that the intention and effect of the sub-section was to render the decision of the Minister non-justiciable. By 1981, when the current Statute was enacted, such a view was no longer tenable in the light of the decision in " Anisminic v. Foreign Compensation Commission [1969] 2 AC 147 . The relevant statutory provisions in Attorney General v. Ryan contained an identical "ouster clause" to that in the present case, but the Privy Council, applying Anisminic , held that it did not apply to a decision made without jurisdiction and that:
"It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority" - p.730."
In these circumstances Mr Richards rightly conceded that the Minister's decisions were justiciable. He attached no significance in the present context to the provision purporting to preclude review or appeal. In these circumstances I consider that it would be wrong, as I was initially inclined to do, to approach the provision that the Minister is not required to assign reasons for his decision as being designed to render his decision non-justiciable. That provision relieves the Minister of the disadvantages attendant on the duty to give reasons that are identified in De Smith, Woolf and Jowell at paragraph 9-045, namely:
"....the possibility that reasons, especially if published, will unduly increase "legalisation" and the formal nature of the decision making process, place burdens upon decision makers that will occasion administrative delays, and encourage the disappointed to pore over the reasons in the hope of detecting some shortcoming for which to seek redress in the courts. In addition, a reluctance to give reasons perhaps because they may occasion harm (by, for example, causing personal distress, revealing confidences, or endangering national security) could discourage the making of difficult or controversial decisions or result in the production of anodyne, uninformative and standard reasons."
The removal of these disadvantages provides explanation enough for the existence of the provision. Mr Richards' argument seeks to give greater effect to the words of the provision than their natural meaning bears. He submits, in effect, that they mean "the Minister is entitled to conceal the reasons for his decision". It is only this construction which renders it possible to argue that disclosure at the interim stage of the decision making process will frustrate the object of the provision. Disclosure of matters of concern to the Minister at that stage will by no means remove all the benefits that flow from being relieved of the obligation to give reasons for his ultimate decision, even if it may enable applicants, on occasion, to make a fair guess at what they are. Even if the duty of disclosure were to remove essentially all the benefits of the relief from the obligation to give reasons, I would not be prepared to hold that the latter implicitly overrides the former. This is because I consider that the duty of disclosure is a more significant element in the fairness of the procedure than the duty to give reasons. The duty of disclosure is calculated to ensure that the process by which the Minister reaches his decision is fair. It enables the party affected to address the matters which are significant and thus helps to ensure that the Minister reaches his decision having regard to all the relevant material. The duty to give reasons is calculated to enable the party affected to see that the Minister has acted fairly in reaching his decision. While this can have a salutary effect on the process of reaching the decision, it does not have such a direct effect as the duty of disclosure. For these reasons I cannot accept that the express relief from the duty to give reasons for his decision implicitly relieves the Minister from the duty of disclosure during the process of reaching that decision. Mr. Richards drew our attention to the provisions of Section 40 of the Act. These include a specific procedure to be followed before a British citizen can be deprived of his citizenship. He has to be informed of the grounds upon which such action is proposed and is entitled to apply for an inquiry before a committee, chaired by a person having judicial experience. Mr. Richards suggested that this exemplified the kind of procedure for which provision would have been made had the legislature intended there to be a duty of disclosure in favour of applicants for naturalisation. It is much more serious to be deprived of citizenship than to fail to be granted it, as is evidenced by the grounds of misconduct specified in Section 40 that must be established before one can suffer the former fate. For this reason I was not persuaded that the existence of express provisions for precise and formal steps before a citizen is deprived of his citizenship carries the implication that no steps at all by way of disclosure have to be taken in respect of applications for citizenship. For these reasons I have concluded that this appeal should be allowed and concur in the Order proposed by the Master of the Rolls.

Order

Appeals allowed with costs. Decision of Secretary of State quashed. Leave to appeal to House of Lords granted.

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