The original design
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Any evaluation of the 1967 Act must start with an understanding of the constitutional and legal environment within which the PO was introduced. By the 1960s, it had become very apparent that redress mechanisms in the UK had not kept up with the growth in government that had taken place during the 20th century.8 In comparison with today, applications for judicial review were rare, with the relevant procedural rules in the High Court incoherent and the administrative law applied there under-developed. The tribunal system was a more accessible redress mechanism and had recently been reformed,9 but large areas of executive activity were left outside its scope. As a result, citizens were too often left with no alternative but to pursue their grievances against the government through political or parliamentary channels. The Crichel Down affair in the 1950s had brought the shortcomings of this situation to wider public attention when a public inquiry was held into alleged maladministration within the Ministry of Agriculture. This inquiry provided a rare public insight into the operation of government departments and the potential injustices that could result. With this potential exposed, after Crichel Down, the need for improved forms of public sector redress mechanisms could no longer be ignored.10
To this problem the ombudsman was the eventual answer and was strongly advanced by the report of a leading reform group, JUSTICE.11 The initial calls for such a body were rejected by the government of the day, but in 1964 the Labour party came to power having made provision for ombudsman legislation in its manifesto.12 The idea was not new, as ombudsmen already existed in the Nordic countries and New Zealand, but the model eventually chosen for the UK was not taken directly from these versions. Instead, the 1967 Act owed more to the protracted debate that preceded its introduction and the concerns that were raised about the scheme at the time. In particular, it had been argued that the introduction of an ombudsman would conflict with the doctrine of ministerial responsibility; that the Office would be overwhelmed with complaints; and that the role o fMPs, and indeed Parliament itself, would be undermined. To counter these objections, a distinctly British design of the ombudsman was devised, one which deliberately placed Parliament at the heart of the scheme. A model for this approach was found in the Comptroller and Auditor-General, a post which provided a Parliamentary precedent for the extensive fact-finding powers to be conferred on the new body. This vision positioned the PO as an aid to Parliament rather than the citizens' defender, with individuals required to submit their complaints to MPs. MPs then possessed the discretion whether or not to pass the complaint on to the PO and received the results of PO investigations by way of a report. In addition, provision was made for reports to be submitted to Parliament and a select committee was established to oversee the PO's work.
To the consternation of some the 1967 Act differed in crucial respects from the proposals that had originally been mooted by JUSTICE, such as rejecting the recommendation that the MP filter should be removed after five years. Another idea that was not pursued was JUSTICE's proposal to establish, in addition to the PO, a general administrative tribunal to which appeals could be made against the merits of administrative decisions when a specialised tribunal was not already available. No attempt was made in the 1967 Act to link the work of the ombudsman with that of either the courts or tribunals. Indeed, the ombudsman institution was set upas a completely distinct branch of the administrative justice network, with the apparent implication being that where legal matters were at stake the PO would not pursue a complaint. Shorn of such radical innovations and apparently conservative and restrictive in its design, the 1967 Act was not well received in political, academic and media circles. For many an ‘ombudsmouse’13 had been introduced and the 1967 Act itself was described by one leading academic as ‘a limping and restrictive statute’ which was ‘undoubtedly botched’ and ‘would not do’.14
Despite the criticisms, there were two clear innovatory features of the 1967 Act which over time have worked in the favour of the Office. First, the 1967 Act added something to the administrative justice network that had previously been absent. MPs already possessed the celebrated role of pursuing the grievances of their constituents, but the existence of a specialised officer with statutory powers to investigate complaints significantly strengthened their ability to secure redress. Second, even though limitations were placed on the scope of the PO's authority, the 1967 Act was drafted in a manner that conferred a high degree of discretion on the PO and left many questions unanswered. In part this reflected a healthy realisation that no-one knew quite how the new body was going to operate. Of the ombudsmen already in existence around the world, none were entirely equivalent to the version being proposed for the UK or had operated in a constitution the size and nature of the British Parliamentary system. Whatever the reason or intention of the government and Parliament, the legislative design used in the 1967 Act established an institution which was free to evolve flexibly in a number of key areas.
