The Parliamentary Commissioner Act: An evaluation

  
• The discretionary power of the PO
  
• Maladministration
  
• Injustice
  
• Redress
  
• Integration into the administrative justice system
  
• Administrative guidance
  
• Jurisdiction
  
• The MP filter
  
• Investigatory powers
  
• Powers of enforcement
  

Given the lukewarm reception that the 1967 Act received, it is perhaps surprising that it has survived forty years without more significant amendments. But in hindsight we can now see that the initial response was as much a product of the poverty of the overall administrative justice network at the time, than of the 1967 Act itself. Indeed, of the criticisms of the 1967 Act that remain today, the most important of them still relate to the PO's role within that larger network.¹⁵ As for the Office itself, Parliament and the media were given early notice of its potential when in one of its first major investigations, Sachsenhausen, the PO managed to persuade the Foreign Office to reconsider its position on compensation payments.¹⁶ Ever since, debates on the PO have concentrated more on how to make better use of the Office, than whether to replace it.

The discretionary power of the PO

The effectiveness of the 1967 Act in facilitating the work of the PO owes much to the wide discretionary powers contained within it. This implies that of the limiting factors on the ability of the Office to function, perhaps the most important is the attitude of the post-holder and the interpretation that he or she gives to the 1967 Act. The idea that the PO could operate with such a degree of freedom was given a significant boost by the courts early in the history of the Office. In Re:Fletchers Application,¹⁷ leave to hear a case against the PO's decision not to investigate a complaint was refused on the grounds that the 1967 Act granted the PO discretion whether or not to investigate. This ruling did not mean that the PO could not be legally challenged, but it did send out a strong message to potential complainants as to the authority of the PO's decisions. Indeed, it was not until 1993 that the courts first clarified that the PO's decisions were subject to judicial review.¹⁸ Until now, the only successful challenges of the PO have been those in the Balchincase.¹⁹

 The approach that the courts have adopted in cases involving the PO suggests that they will not readily interfere with an exercise of the Office's discretion.²⁰ This is important, for were the courts to have taken a more activist line then it is probable that the history of the Office would have been very different. Many of the benefits of the post, such as reduced costs and stress for claimants, would be lost if it were too easy to challenge the PO's reports in the courts.²¹ More fundamentally, by adopting such an approach, the courts have allowed the PO considerable room to develop the Office. This situation can be criticised in terms of legal certainty, but it has meant that the early critics have often been proved wrong. In practice, many of the restrictions that were believed to be in the 1967 Act, and which might well have been intended by those that introduced it, have not proved to be as constricting as once feared. In possession of a significant amount of discretionary power, each new PO has been able to move the Office in the direction that was felt necessary and appropriate. Whether each post-holder has taken full advantage of these discretionary powers is a separate question, which will not be explored here.²²

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Maladministration

 The most important area in which the PO has been able to exercise considerable discretion is in determining whether or not maladministration leading to injustice has occurred in any given investigation.²³ For some years many saw this test as granting the PO insufficient power and lacking in any true meaning.²⁴ To rectify this, various proposals have been put forward for the PO to be given wider powers, such as being able to report on unreasonable, unjust or oppressive decisions.²⁵

Today the arguments that the PO should have a wider mandate are much less prominent than they were, mainly because it is now appreciated that the maladministration test is extremely malleable.²⁶ The challenging nature of the test can be demonstrated by a review of some of the more famous ombudsman investigations of the past, many of which involved innovative applications of the test to new situations.²⁷ But coming to a conclusion on maladministration can be a tough task for the PO given the politically sensitive nature of some of the decision-making investigated. Ordinarily, therefore, the skill of the PO is to concentrate a finding of maladministration on the manner in which the policy decision has been made or implemented and not on the merits of the decision itself. The recent Occupational Pensions ²⁸ report provides a good example of this approach.²⁹

 Although most ombudsman investigations focus on administrative procedures, this does not mean that ombudsmen cannot investigate the merits of decisions of public authorities. The 1967 Act left a degree of flexibility on the issue. Section 12(3) prevents the PO from questioning ‘the merits of a decision taken without maladministration’ (added emphasis). This implies that where a decision is taken with maladministration then the PO can legally consider the merits of the decision. More controversially, an administrative decision that is wholly unreasonable to most rationally minded people is a clear example of maladministration.³⁰ Either way, the PO is entitled to explore the merits of a particular administrative decision during the course of an investigation. Were this not the case, it would often be impossible to come to a conclusion as to whether maladministration or an injustice had occurred.³¹

 A further key aspect of the concept of maladministration is that it can be used to resolve complaints where legal grounds could also be argued.³² For instance, in the Debt of Honour report,³³ the PO found that the manner in which an exgratia compensation scheme had been announced by the Ministry of Defence amounted to maladministration due ‘to the misleading impression that it created’.³⁴ For the Ministry of Defence, this finding was not easy to accept, partly because the Court of Appeal had previously found that the same announcement lacked sufficient precision to create a legitimate expectation according to the law.³⁵ Such a finding demonstrates that the duties that can be inferred from the maladministration test can actually go further than equivalent doctrines in law. This principle is supported by the courts³⁶ and is one to which public authorities should pay more attention.

The test of maladministration, therefore, has proved to be a powerful and adaptable tool for the task to which the PO was assigned. In other countries ombudsman legislation provides more detail on the powers granted to the ombudsman, but it is questionable whether the result is necessarily a more intense scrutiny of administrative decisions.³⁷ The lack of clarity as to the meaning of the maladministration test is problematic, however, as it effectively grants the PO a high degree of autonomy. But there are ways that this criticism can be tackled. First, as with any decision-maker in the public sector, there is an onus on the PO to explain the reasoning behind her findings. In this regard, comprehensiveness has always been a feature of PO reports. The second response is for the PO to be more transparent about the Office's understanding of maladministration. Here the Office has not always been so helpful, but following a consultation exercise, in 2007 it is introducing a set of Principles of Good Administration.³⁸ How this is to be applied is going to be crucial to the future of the Office. The expectation must be that from now on ombudsman reports will ordinarily refer back to elements of the Principles in explaining findings of maladministration. This is a step to be encouraged and is evidence of the maturing of the post now that the full force of the maladministration test has been recognised. In fact, in terms of the development of administrative law more generally, it could represent the beginning of one of the most important innovations in recent years.

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Injustice

 What the term injustice means has caused less controversy than that of maladministration.³⁹ Here too the PO has found the term sufficiently flexible to allow the Office to provide redress in a wide range of cases, such as to take into account the anger, upset and outrage felt by citizens who have experienced the consequences of maladministration. In addition, it has been established that individuals can sustain injustice in consequence of maladministration, even where there are a number of factors which together caused the specific loss or detriment claimed by complainants. In the Occupational Pensions report, for instance, the PO took care to identify that the loss of pension rights experienced by the complainants was partially due to the wider context within which the pension schemes involved operated. But the actions of the Department for Work and Pensions did reduce the opportunities for the complainants to mitigate the losses that they suffered, and this was the injustice caused by the identified maladministration.

Finally, it is worth noting that the need to focus an investigation on whether or not injustice has occurred has not prevented the Office from broadening investigations to conduct more systematic reviews of administrative arrangements where appropriate. This inherent flexibility is important as it enables the PO to provide a broader service than facilitating redress alone.

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Redress

 The 1967 Act is silent on the manner in which redress should be implemented. It was always implicit in the ombudsman scheme, however, that the Office would make its findings clear in the reports produced and that it would then be for the public authority involved to respond accordingly. Unfortunately, for the first thirty years of the Office a rigid adherence to this procedure did appear to restrict the PO's work. Arguably, section 10 of the 1967 Act requires the PO to produce a report following each investigation. This requirement to produce a reasoned and defensible report was partly why the Office formerly employed so-called ‘Rolls Royce’ investigatory techniques for all complaints, even when they were not entirely necessary to achieve redress in individual cases. This approach led to considerable delay in processing complaints and much criticism from Parliament.⁴⁰

 For the last ten years the Office has responded to these criticisms by interpreting the 1967 Act differently and adopting a much more flexible working regime which allows more informal dispute resolution procedures to be used where appropriate.⁴¹ This change in approach has led to significant improvements in processing time and no apparent evidence of complainants losing out as a result. On the downside, there is a risk that a complainant's interests are compromised by reducing the formality of any investigation. To counter these risks, it is important that complainants are consulted on proposed settlements.⁴²

Another area where the 1967 Act is silent is on the role of the PO in making recommendations as to the specific remedy that should be made available. Nevertheless, the PO has for a long time adopted the policy of making such recommendations and the lawfulness of this approach has been recognised in the courts.⁴³ Within recommendations, the PO has been able to consider a variety of solutions. Where possible, the purpose of remedies is to return the complainant to the position that they should have been had the maladministration not occurred. In addition, the complainant's sense of outrage and the inconvenience caused by being forced to pursue a redress mechanism are also often recognised. No detailed research has ever been undertaken to compare settlements obtained through the ombudsman system with those awarded in the courts,⁴⁴ but frequently the PO is able to secure significant redress in scenarios where redress would not have been obtained elsewhere.⁴⁵ It is also noticeable that the courts have advocated using the level of financial recompense recommended by the public sector ombudsmen as a guide.⁴⁶ In any event, the utility of using the PO as opposed to the courts depends on a variety of factors, not least the objective of the complainant. For instance, the big limitation on the ability of the PO to obtain redress is that the Office generally has no power to issue injunctions or stay a decision of a public authority pending the completion of an investigation.⁴⁷ If this is required then clearly the PO is not the correct route by which to pursue redress. This limitation aside, the PO's work has come to provide a role model for how public authorities should be considering the issue of redress.⁴⁸

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Integration into the administrative justice system

 Perhaps one of the weakest aspects of the 1967 Act has been the absence of any clear explanation of how the work of the PO and the other players in the administrative justice system, in particular the courts, interlink. For the original drafters of the 1967 Act this was a deliberate oversight as the PO was designed to take on cases which were outside the ordinary remit of the courts. Indeed, when legal proceedings are available to the complainant, the presumption in the 1967 Act has been that the PO should not undertake an investigation.⁴⁹ Today, this presumption is unrealistic because administrative law has expanded so significantly that most complaints against a public authority can potentially be pursued through the courts. Fortunately, to address this overlap, within the 1967 Act an exception was included that allows the PO to investigate a complaint when it would be unreasonable to insist that the complainant pursue the legal avenue. This is another aspect of the 1967 Act which has conferred considerable discretion on the PO. Given the changes in the administrative justice landscape since 1967 this flexibility has been essential.

In certain circumstances, it is possible for a complaint to be pursued through both the courts and the PO, and this dual ‘review’ has on occasion proved extremely helpful in securing both a remedy and a change in administrative practice.⁵⁰ Nevertheless, what this potential duplication of work illustrates is the need for a more holistic approach to the administrative justice system in order to provide proportionate redress. This call appears to have been recognised in the Department for Constitutional Affairs' Administrative Justice White Paper in July 2004 ⁵¹ and, as indicated above, attempts have been made during the debate on the Tribunals, Courts and Enforcement Bill to introduce amendments to the 1967 Act to this end. Thus when it becomes clear during legal proceedings that a case could be better dealt with by an ombudsman, it would be helpful if the court could transfer a case without prejudice to the complainant's legal rights.⁵² Likewise, when an ombudsman discovers that the outcome of an investigation hinges upon an unresolved legal question, then proceedings could possibly be speeded up were the ombudsman able to refer the issue of law to the courts. Currently, in this area such proportionate redress is reliant upon the common sense of the parties involved and the flexibility of procedural rules. There are limits in both regards, and legislative change could provide a much needed boost to the ease with which complainants receive redress.

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Administrative Guidance

 The 1967 Act did not make it the duty of the PO to offer guidance to the public sector about arrangements that could lead to improved administration. In practice, however, there was never anything to prevent the PO from finding ways to promote good administrative practice through its recommendations in individual reports on resolved complaints, subject-specific reports submitted to Parliament, or by way of general publication. All previous post-holders have recognised the positive benefits to be gained where an investigation identifies and reports on administrative improvements that will prevent maladministration being repeated. Indeed, the determination to establish long-term change was one of the reasons why for so long the Office employed rigorous techniques for almost all investigations. In order to bring down investigation times, combat increased numbers of complaints, and to make the service more consumer-orientated, today the Office is more selective in the production of detailed reports. If the guidance function is to be maintained, this means that the PO must be careful not to settle complaints before establishing whether there are broader lessons to be learnt.⁵³ Arguably though, the administrative recommendations that the PO now makes are more high profile and tend to target major systemic concerns about the operation of an investigated department.⁵⁴
In undertaking such large scale investigations of administrative systems and producing such detailed reports, we see a side of the PO's work which may not have been prominent in the 1967 Act itself, but has long been viewed as one of the most important contributions that the Office can bring to the constitution.⁵⁵

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Jurisdiction

 One of the key ways in which the 1967 Act does place effective limits on the ability of the PO to operate is by listing in Schedule 2 the public bodies within the Office's jurisdiction, rather than relying on a list of exclusions which would otherwise allow the PO freedom to accept complaints on all areas of public sector activity. This approach has occasionally attracted criticism because there is the potential for gaps to appear in the PO's jurisdiction when new bodies are created.⁵⁶

 This problem has been minimised by the expansion in the jurisdiction of the ombudsmen in the UK public sector since 1967. The major developments were the introduction of the specialised ombudsmen to deal with local government and the health service.⁵⁷ Likewise, and more controversially, in some areas of public sector activity alternative forms of redress mechanism have been set up to deal with complaints, such as in the prisons, education and police sectors. These developments have meant that the public sector has become littered with subject-specific redress mechanisms, with different degrees of power and autonomy.

While complaints mechanisms have proliferated the PO's jurisdiction has not remained static, as the government has periodically been persuaded to introduce amending legislation.⁵⁸ Schedule 3, however, still lists a number of subject areas which are outside the PO's jurisdiction. On the whole these restrictions can be easily explained, such as the bar on the PO investigating the commencement and conduct of proceedings before any domestic or international court.⁵⁹ The exclusions that have attracted the most criticism are the exclusions of contractual and commercial matters, and public service personnel complaints. The need for these exclusions has been regularly questioned by, amongst others, Parliamentary select committees.⁶⁰ They have been justified on the basis that the core role of the PO is ‘to investigate the complaints against government by the governed and not against government in its role as employer or customer’.⁶¹ It is also arguable that in these areas alternatives, such as the courts, are usually more appropriate. Nevertheless, in an era when private sector provision has become an increasingly important feature of governance, the exclusion on contractual and commercial arrangements needs to be monitored to ensure that this governance technique is not used as a means by which to prevent accountability. Another issue here is the interpretation that the PO gives to the public/ private divide, as for example, where a public function is contracted out to a private supplier.⁶² Fortunately, once more this is an area where the Office does retain some discretion and appears to have used it in a positive fashion.⁶³

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The MP filter

 One of the most criticised aspects of the 1967 Act, both at the time of its introduction and since, is the MP filter. The concerns that the filter was originally designed to address, to preserve the traditional position of MPs and control the flow of complaints, now seem outdated if not irrelevant.

The early fears of an avalanche of complaints were not borne out. If anything, the MP filter has been too successful and in the past a common criticism targeted at the PO has been that it is underused and has failed to raise its profile sufficiently.⁶⁴ It is hard to quantify how many complaints should be going to the PO. The wider complaints system that now exists is more developed than the one in place when the 1967 Act was first introduced and the PO normally expects complaints to be put to second-tier complaint handlers before she considers them. What this arrangement suggests is that the need for the PO to be protected by a filter mechanism is much reduced and the current post-holder has stated that her Office could cope without the MP filter.⁶⁵ At worst, removing the MP filter is likely to place more demands on the Office to act as an advisory service directing complainants towards the appropriate service. Yet this is a function that it already performs.

As to whether the role of MPs would be threatened by the removal of the MP filter, such an argument is barely credible today. The government itself has noted ‘that a very small proportion of MPs' contacts with their constituents is associated with the use of the ombudsman’.⁶⁶ Moreover, no-one is suggesting that MPs should not be able to pursue for themselves any complaints received. The point is that MPs who do not at least seek the advice of the PO where a complaint is received run the risk of failing their constituents.⁶⁷

Fortunately, there is evidence today that the MPs themselves no longer see the need for the filter. In 2004 the Public Administration Select Committee (PASC) and the Office conducted a joint survey and found that of the MPs questioned 66% favoured the removal of the filter.⁶⁸ The PASC has recommended its removal for some time⁶⁹ and the current PO, mirroring the viewpoints of her predecessors, has noted that such a move would assist the Office in its continuing efforts to become more transparent and open to complainants.⁷⁰ Removing the filter would also bring the PO into line with most of the other UK public sector ombudsmen. Even the government has in the past indicated that the arguments in favour of retention are unsustainable,⁷¹ yet because it has concluded that change would require primary legislation this issue remains unresolved.⁷²

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Investigatory powers

One of the key reasons why the PO has become accepted as an important redress mechanism has been the Office's ability to produce independent, well reasoned and accurate reports. It is highly doubtful that this could have been achieved without the strong investigatory powers created in the 1967 Act.73 In the history of the Office there have been very few occasions when the government has used its residuary powers under the 1967 Act to refuse disclosure.74 This level of access to information gives to the work of the PO enhanced credibility and enables the Office to take on with confidence even politically sensitive investigations. On the other hand, the PO has periodically had cause to complain to Parliament that the government has been slow to comply with requests for information.75 Under the 1967 Act, the PO could tackle this problem through legal proceedings, but to achieve successful outcomes the PO is reliant on maintaining good relations with the government. Therefore, a decrease in government cooperation can be viewed as an early indicator of a much larger problem.

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Powers of enforcement

 A feature of the 1967 Act that attracts regular criticism is the lack of enforcement power it grants the PO. The PO can make recommendations, but the public body under investigation retains the discretion to refuse to implement those recommendations. According to the 1967 Act, once the PO has exhausted her skills of persuasion, all she can do is submit a special report to Parliament under section 10(3) where ‘it appears … that the injustice’ investigated ‘has not been, or will not be, remedied’.

The extent to which this is considered a weakness of the 1967 Act depends upon a number of factors. First, the PO and the government must take much credit for the fact that this feature of the 1967 Act has rarely proved to be a problematic issue. It is difficult to quantify the exact number of occasions when the PO has failed to secure redress. In the early years of the Office the PO had to put in a considerable effort to persuade various government departments, in particular the Inland Revenue, to make ex gratia compensation payments.⁷⁶ How many of these cases were finally settled is unclear, but what is known is that on only four occasions has the PO felt it necessary to issue a section 10(3) report to Parliament notifying it of a failure of the government to provide suitable remedies.⁷⁷ Furthermore, on only one of those occasions, the most recent and ongoing Occupational Pensions case, has the government continued to refuse to provide appropriate redress to remedy the injustice sustained once the relevant Parliamentary select committee had reported its support for the PO's findings and recommendations. Notwithstanding the number of complainants affected by the Occupational Pensions case, the past track record of the PO and the support that the Office receives from Parliament, suggests that the current arrangement has been extremely successful.

A second consideration is the principal reason why the PO lacks enforcement powers. Far from being an unusual flaw in ombudsman design, this is a common solution in ombudsman schemes and goes to the heart of the work that the institution is expected to perform.⁷⁸ Ombudsmen are given almost total access to information and people within public bodies, and possess a very broad remit with which to investigate public sector activity. Given the potential depth of such investigations, the consequences of an ombudsman's report can have a huge impact on the design of future policy. Recognition of the potentially sensitive nature of the ombudsman's work is one of the reasons why ombudsman schemes tend to leave the power of implementation in the hands of the public authority concerned. Political accountability between the decision-maker and the electorate for the consequences of an ombudsman's report is thereby maintained. Arguably, another important benefit of this arrangement is that because public authorities know that they retain control of their decision-making, they are more likely to be encouraged to participate constructively in the investigation. It is this fear that powers of legal enforcement would radically alter the hitherto cooperative nature of the ombudsman's work that best explains why most ombudsmen are reluctant to go down this route.⁷⁹

 Building on this understanding, a third point needs to be taken on board. As public authorities retain the final decision to provide redress, for the purposes of Article 6 of the European Convention of Human Rights, it is unlikely that the investigations and reports of the PO could be considered determinations of civil rights. Were the PO to possess powers of enforcement, this position could change.⁸⁰ Such a development would almost certainly force the Office to reconsider its working practices. This could mean the increased use of formal hearings and more frequent legal representation. If this were the case, then the whole ethos and rationale of the ombudsman institution would be severely challenged and it is possible that many of the benefits would be lost.

Advocating powers of legal enforcement, therefore, is an argument that needs to be treated with care. There are ways that it could be introduced which might minimise the likely negatives, but it is not a step that should be taken lightly. Nor is there overwhelming evidence that the Parliamentary mechanism currently in place needs strengthening. Perhaps a more appropriate solution has been identified in the recent case of Bradley et al v Secretary of State for Work and Pensions. In this case Mr Justice Bean was prepared to quash the Secretary of State's decision to reject one of the PO's finding of maladministration in the Occupational Pensions report and accordingly directed the government to reconsider one of the PO's recommendations.⁸¹ In doing so, Mr Justice Bean implied that while public authorities retain the discretion not to implement the recommendations of ombudsmen, it is unlawful to reject their findings of maladministration unless those findings can be ‘objectively shown to be flawed or irrational, or peripheral, or there is genuine fresh evidence to be considered.’⁸² Were public authorities to adhere to such a principle of law on the rare occasion that they refuse to implement the PO's recommendations, it would have the benefit of focusing political attention on the reasons why they made that decision rather than the finding of maladministration by the PO.

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