Expertise, Deference and Giving Reasons

Abstract

There is a consensus among courts and commentators on the grounds for a duty to give reasons in administrative law. Traditionally, the duty has been justified as a way to promote good decision-making, show respect for the parties, and reveal potential grounds for a challenge to the decision. We argue that this traditional picture is incomplete, because it omits two important considerations that favour giving reasons. Giving reasons can provide evidence that a decision-maker is a relative expert, and thus provide evidence of a reason to defer to the decision-maker. Giving reasons can also indicate a decision-maker’s findings on specific issues, making it possible for an appellate or reviewing body to selectively defer to it. Together these points show that concerns of deference are relevant to when administrative decision-makers should give reasons.

Keywords: expertise, giving reasons, reasons-giving, administrative law, deference, Doody, Cunningham, reasons, Dental Surgery