Government’s Duty of Candour: On the Move?

O'Loughlin, Elizabeth

Abstract

The duty of candour is triggered if a person seeks judicial review of an administrative action or decision. It requires that both parties provide a full and accurate explanation of all the facts relevant to the review before a court or tribunal. There is ambiguity, according to the Society of Labour Lawyers’ submission to the Independent Review of Administrative Law, over when the duty kicks in, how far it extends, and what type of disclosure is required. This article interrogates that claim. It argues that, while there is inherent flexibility in the duty’s application in different contexts, the law on the duty of candour is not necessarily unclear. Rather, its functioning is under strain from changing litigation patterns, and new technologies altering how government decisions are made and records are kept. This article maps what we know about how the duty of candour operates, before considering its application to these complex and evolving dynamics. The first part provides an overview of the development of the duty, and its present form. The second part maps out the law on the timing of the duty, its scope, and the extent to which the duty requires disclosure of documents. The third part considers recent court treatment of the duty in relation to the following pressure points: a) the rise in the role of technology in government decision-making; and b) the apparent rise in disclosure applications, and government resistance to such disclosure.

Citation

O'Loughlin, E. (2023). Government’s Duty of Candour: On the Move?. Public Law, 567-586

• Journal Article Type: Article
• Acceptance Date: Jun 9, 2023
• Publication Date: 2023-10
• Deposit Date: Aug 22, 2023
• Publicly Available Date: Nov 1, 2024
• Journal: Public Law
• Print ISSN: 0033-3565
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Pages: 567-586
• Public URL: https://durham-repository.worktribe.com/output/1723359
• Publisher URL: https://www.sweetandmaxwell.co.uk/Product/Administrative-Law/Public-Law/Journal/30791427