[2023] UKUT 132 (AAC)

I agree with Mr Lockley for the Commissioner that, where a tribunal hears an appeal against a regulatory decision, it is an integral aspect of the judicial role that careful attention should be paid to that decision and the reasons given for the decision. After all, the decision is the only reason why the case is before a tribunal. I also reject the argument that, by paying ‘careful attention’ to the Commissioner’s reasons / decision the Tribunal must have failed properly to re-hear the facts or determine afresh the merits. Paying careful attention to the reasons for a particular regulatory decision does not, without more, show that a tribunal failed to make its own findings on disputed matters of fact or unthinkingly adopted a regulator’s assessment of the merits.

The Appellant makes a determined attempt to confine Hope and Glory’s injunction to pay ‘careful attention’ to the reasons given for the decision under challenge. I find none of the Appellant’s submission’s persuasive.

At times, the Appellant’s submissions seemed to assume that paying ‘careful attention’ to a regulator’s reasons (or decision) was synonymous with giving them significant weight. But that was not what the Court of Appeal said, or required, in Hope and Glory. The Court, at [45], began by stating that, in all cases, careful attention should be paid to a licensing authority’s reasons and ended that paragraph with the following words which clearly show that paying ‘careful attention’ involves no presumption as to the weight to be given to an authority’s reasons:

“The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.”

The Appellant’s portents of doom about the implications of the Tribunal paying ‘careful attention’ to the Commissioner’s decision and reasons – ‘the enormity of its reasoning cannot be overstated’; ‘not something that any respectable legal system would countenance’ – seem to me based on this misreading of Hope and Glory. The Court of Appeal did not require first-instance judicial bodies to load the dice in favour of regulators by requiring any particular weight to be given to regulators’ reasons for their decisions. The Court was quite clear that weight was a matter for the first-instance judicial body.

The Appellant argues that paying ‘careful attention’ to the Commissioner’s decision and reasons unfairly tilts the field in the Commissioner’s favour and I think that is why the Appellant strives to distinguish Hope and Glory and its approval by the Supreme Court in Hesham Ali. The ‘field’ would only be tilted in the Commissioner’s favour if, as a matter of course, his reasons had to be given some degree of positive weight but, as I have said, that is not the case. For this reason, the Appellant’s attempts to distinguish Hope and Glory and Hesham Ali do not go anywhere. Moreover, I accept the Commissioner’s submission that the Appellant fails to identify any aspect of the Tribunal’s reasons which disclose undue deference, or pre-determined weight, having been given to the Commissioner’s reasons. Ground 2 is not made out.