A judge refusing permission to appeal should say why. The justification is not courtesy to the unsuccessful party, though it is that too. It is that a decision unaccompanied by reasons cannot be subjected to review, cannot be distinguished by a subsequent court, and cannot be demonstrated to have been reached on one particular ground and not another. Reasons are what make a decision part of the law and not an occurrence that happened to a litigant. They furthermore work on the individual providing them: a judge who must write down why an appeal has no prospect of success will occasionally discover, in the writing, that it possesses one. That discipline is the whole argument for reasoned judgment everywhere else in the system. Nothing about the permission stage diminishes its applicability. If anything the permission stage renders it more applicable, because permission decisions are taken quickly, on paper, by one judge, and those are precisely the conditions under which a decision-maker most needs to be compelled to articulate. There is an additional consideration the practical objections obscure. A refusal of permission is conclusive for the litigant, and finality is the circumstance in which an unexplained decision is least defensible. Nor is the burden as considerable as it sounds: a sentence identifying the ground that failed and why is short, and it is the identification, not the length, that accomplishes the work.
[[PASSAGE B]]
The case is sound in principle and fails on volume. A judge at the permission stage determines many applications a week, and reasons generated at that rate are not the reasons the argument envisages. They are formulae -- the grounds disclose no arguable error, the proposed appeal has no real prospect of success -- selected from a short mental inventory and attached to the file. A formula of that description is worse than silence, for it has the shape of a reason and consequently forecloses the complaint that none was given, while communicating nothing that could be reviewed or distinguished. It also corrupts the discipline it is supposed to supply: a judge who has written that sentence four hundred times does not think harder on the four hundred and first. If we want reasons that do the work, we must pay for the time necessary for their composition, and the way to accomplish that is a reduction in the number of applications, not a requirement of a paragraph on each. Anything else buys the appearance of accountability at the price of the thing itself, which is the worst transaction a legal system can make. The choice is not between reasons and no reasons. It is between fewer decisions properly explained and the present number nominally explained, and only the first is worth legislating for.
