Background to the MP filter
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The MP filter has been in existence since the creation of the Parliamentary Ombudsman in 1967. It was devised during the process of adapting the Scandinavian ombudsman concept to the needs of the UK at the time.
In 1961 a report for the non-governmental organisation JUSTICE by Sir John Whyatt3 recommended that ‘in the beginning’ the Parliamentary Commissioner should receive complaints only from Members of the Houses of Lords and Commons, but that at a later stage, when the Commissioner’s jurisdiction was ‘established and well understood’, consideration should be given to the public having direct access to the Commissioner.
Whyatt’s recommendation was only partially reflected in the Government’s 1965 White Paper, which proposed that the Commissioner may only investigate where a complaint had been referred, with the consent of the complainant, by an MP. This arrangement was put in place (in the subsequent Act4) to counter concerns that the establishment of the Parliamentary Commissioner could undermine the role of MPs in looking after, and acting on behalf of, their constituents. There were also concerns that the office would be overwhelmed with complaints. This caused debate at the time and amendments at the committee stage of the Bill, designed to enable direct access to the Commissioner, were resisted by the Government. The Act did not explicitly create any mechanism for triggering a review of this provision.
In 1977, a further report for JUSTICE prepared by a committee chaired by David Widdecombe QC,5 argued for a dual track approach that would have allowed access either through an MP or directly by a member of the public. The report stated: ‘It may have been necessary in the first instance to limit [the Commissioner’s] role to that of helping Members of Parliament rather than that of directly helping the citizen, but now that the experimental period is over, we see no reason why the Commissioner should not be brought into direct relationship with those he exists to protect’.
The report reached that conclusion on the basis that experience showed that the Parliamentary Commissioner had not, as feared, ‘taken over any part of the functions of Members of Parliament’, and that Parliamentary control of the Commissioner was achieved separately from the MP filter by the existence of the relevant House of Commons Select Committee.
In response, the Select Committee on the Parliamentary Commissioner published a report in 1978 that argued for the MP filter to be retained,6 maintaining that the primary responsibility for defending the citizen against the executive still rested with MPs and reiterating the concern that the Commissioner would be overwhelmed by complaints if direct access were permitted.
In 1988 JUSTICE returned to the issue with the publication of a report by a Committee of the JUSTICE-All Souls Review of Administrative Law in the UK, chaired by Patrick Neill (now Lord Neill of Bladen) QC.7 Once again they proposed a dual track approach: the report argued that any fears about reducing the importance of MPs’ services were secondary to the public interest in allowing direct access, that the danger of the Commissioner’s jurisdiction becoming ‘too popular’ could be avoided by making additional resources available to the Commissioner, and that links with Parliament would be maintained by increased contact between the Commissioner and the Select Committee.
In 1993 the Select Committee on the Parliamentary Commissioner published a report defending the MP filter.8 It introduced the view that ‘the filter remains popular with Members themselves’, reporting that in response to a recent survey, 58 per cent of MPs had been against direct access. It also reiterated the constitutional considerations, posing the questions: ‘Will direct access undermine the constitutional role of Members in taking up the grievances of their constituents? Should the Parliamentary Ombudsman remain an ‘instrument’ of MPs or should access to his services now be seen as a right of the citizen?’.
In 1999 the Government commissioned a detailed review of the organisation of public sector ombudsmen in England. The report, known as the Collcutt Review,9 was published in 2000 and reflected the strong support it had received for removal of the MP filter on the grounds that it would increase the efficiency and speed of the investigative process, that it would improve access to justice and redress, that it would improve consistency between Ombudsman schemes, and that it would improve the accountability of public administration to the public. The report noted that the number of MPs wishing to retain the filter was down slightly from 58 per cent in 1993 to 52 per cent. The report also noted that the modernisation of government and constitutional change meant that the MP filter had become ‘inconsistent and anachronistic’ and that the ways of avoiding the Ombudsman being ‘swamped’ with complaints were better left to the Ombudsman as ‘gatekeeper’ than to the inconsistent mechanism of the MP filter. Following the Review, the Government carried out a wide consultation on the Review’s recommendations later that year.10
The Select Committee on Public Administration (PASC), which had by then assumed Parliamentary scrutiny of the Ombudsman, favoured direct access (unlike its predecessor) and said in its response to the consultation, ‘the idea of an MP filter, which was inserted at the genesis of the ombudsman scheme to assuage the sensibilities of MPs about a new form of redress, is now inconsistent with the world of public service charters and ought to be replaced by direct public access to the public sector ombudsmen’.
The Government announced in July 200111 that it accepted the Review’s main recommendations to create a new ‘unified and flexible ombudsman body for central and local government and the National Health Service’ and that there should be ‘direct access to this new body’. The Government stated that reform would be considered when Parliamentary time allowed.
Ultimately that stated intention was not translated into action. Although it witnessed the creation of a new Scottish Public Services Ombudsman scheme in 2002 and a Public Services Ombudsman for Wales in 2006, both of which were established on the principle of direct public access, the Government did not create a new integrated public sector ombudsman scheme in England, nor did it act on the proposal for direct access.
In 2004 PASC and the Parliamentary Ombudsman jointly conducted a survey of MPs on the MP filter. Approximately a third of all MPs, representing all major political parties, responded to the survey. Of these, 66 per cent thought that direct access should be introduced.12 In 2007 the House of Commons’ Regulatory Reform Committee stated that it considered that the requirement that complaints to the Parliamentary Ombudsman continue to be referred via an MP was a matter overdue for reform.13
In a 2008 consultation paper14 the Law Commission consulted on whether the MP filter should be abolished outright or replaced with a dual track approach. All but one of the 32 responses on that question agreed that the MP filter should not be retained in its current form.
In 2009, PASC published a report15 following an evidence session with the Ombudsman in which it was highlighted that the dissolution of Parliament, prior to a general election, would result in a five-week period in which people would be unable to take their complaints to the Parliamentary Ombudsman because there would be no MPs to refer them.
Subsequently, the Committee tabled an amendment to the Constitutional Reform and Governance Bill 2010 proposing a dual track approach to allow direct access. The Government did not accept the amendment.
In 2010 the Law Commission’s consultation on public sector ombudsmen in England and Wales16 specifically proposed a dual track approach, whereby alongside direct access to the Parliamentary Ombudsman, a complainant would continue to have the option of submitting their complaint through an MP. In a joint response in December 2010, the public sector ombudsmen in England and Wales said that this proposal represented an ‘acceptable compromise’. The Law Commission will publish a final report in summer 2011 in which it is expected it will recommend adoption of that dual track.
3 Sir J. Whyatt, The Citizen and the Administration: The Redress of Grievances. A Report by Justice, (1961) Stevens: London. (The Whyatt Report.)
4 The Parliamentary Commissioner Act 1967, section 5 (1).
5 Justice, Our Fettered Ombudsman, London, 1977.
6 Parliamentary Commissioner for Administration (Review of Access and Jurisdiction), HC 615 (1978–79), London: HMSO.
7 All Souls Report on Administrative Justice: Some Necessary Reforms, 1988.
8 The Powers, Work and Jurisdiction of the Ombudsman, HC 33, 1993–94. HMSO, London.
9 Review of the Public Sector Ombudsmen in England, April 2000.
10 Review of the Public Sector Ombudsmen in England: A Consultation Paper, June 2000.
11 House of Commons Official Report of 20 July 2001, Hansard, column 464W.
12 Report of the results of the survey of Members of Parliament on the work of the Ombudsman, 2004. (MP Survey)
13 Draft Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007, HC 611, June 2007.
14 Law Commission, Administrative Redress: Public Bodies and the Citizen, Consultation Paper No 187, 2008.
15 Parliament and the Ombudsman, HC 107, December 2009.
16 Law Commission, Public Services Ombudsmen, Consultation Paper No 196, 2010.
