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9.1
Introduction
We have dealt so far predominantly with access to the courts to challenge governmental action. Access to a judicial remedy is, however, formal, expensive
and often slow. It may also be inappropriate as being something of a sledgehammer to crack a nut. Often, instances of governmental bad practice do not
have earth shattering consequences. However, the consequences will be of significance to the individual(s) affected who may wish to seek a remedy short of
a full blown application for judicial review. It may also be the case that an
instance of bad practice is not actually illegal per se. It is merely bad administration. Of course, the person(s) affected may have a political avenue which
might be followed in particular, a complaint to his or her MP or even to the
minister responsible for the department complained against. Such remedies
are, however, somewhat indirect. They are also most unlikely to lead to anything other than an apology and, possibly, a change of practice for the future.
Further remedies have, therefore, been introduced to supplement, and provide for the deficiencies of, the judicial and political controls over the administration. The most important of these supplements are the Parliamentary
Commissioner for Administration (commonly referred to as the Parliamentary
Ombudsman) and the system of tribunals and inquiries. More recently still, the
Citizens Charter has required the setting of standards for public services and
the provision of complaints procedures for dissatisfied customers. The judicial,
political and other avenues of redress are not mutually exclusive although
the Parliamentary Commissioner cannot investigate where the complainant
has a right of appeal, reference or review before a court or tribunal unless he is
satisfied that it is not reasonable to expect the complainant to resort to these
remedies (see, for example, R v Commissioner for Local Administration ex parte
Croydon LBC (1989)). In Congreve v Home Office (1976), for example, Mr
Congreve was not only successful in his application before the courts. His complaint was also upheld by the Parliamentary Commissioner.
9.2
9.2.1
Background
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9.2.2
Terms of reference
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In his Annual Report for 1993, the Parliamentary Commissioner included within maladministration a failure to mitigate the effects of strict adherence to the
letter of the law where that produces manifestly inequitable treatment. In practice, and in response to exhortations from the Parliamentary Select Committee
on the Parliamentary Commissioner, the Commissioner has interpreted the
word in broad terms to encompass situations where the quality of the decision
is such as to clearly suggest that the procedure must have been bad. As far back
as 1967/68 the Select Committee had suggested that the Commissioner should
be prepared, where a decision appeared to be thoroughly bad in quality, to
infer from the quality of the decision itself that there had been an element of
maladministration in the taking of it.
The departments and other authorities subject to the Parliamentary
Commissioners jurisdiction are listed in Schedule 2 of the PCA 1967. The
Parliamentary and Health Service Commissioners Act 1987 brought a number
of quangos within the Parliamentary Commissioners jurisdiction also. Well
over 100 departments and authorities are now listed ranging from the Foreign
and Commonwealth Office and the Treasury to the Red Deer Commission and
Plastics Processing Industry Training Board.
Schedule 3 of the PCA 1967 identifies matters which are not subject to
investigation. Many of these exceptions are rooted in foreign affairs (for example, action certified by a minister as affecting relations between the UK and
another government or international organisation; action taken outside the
UK), other matters regarded as being within the domain of the executive (for
example, extradition and the surrender of fugitives; action taken in the investigation of crime or for the security of the state, exercise of the prerogative of
mercy), government contractual or commercial transactions, employment or
service under the Crown, and the grant of honours. The most criticised of these
exclusions has, in fact, been that of government contractual and commercial
transactions, despite governments claim that to subject such transactions to
investigation would place it at a disadvantage with the private sector. This is
hardly a compelling argument for not opening up government transactions to
investigation where there has been a complaint of maladministration in particular where the complaint relates to maladministration in the conferment of
government contracts where there is considerable scope for abuse of power.
Schedule 3 also excluded the commencement or conduct of civil or criminal
proceedings before any court of law in the United Kingdom. This had precluded the Commissioner from investigating the actions of court staff exercising the
administrative functions of the court. Section 110 of the Courts and Legal
Services Act 1990 and s 1 of the Parliamentary Commissioner Act 1994, however, made insertions to Schedule 3 of the PCA 1967 which made it clear that
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9.2.3
Procedure
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9.2.4
Further, under s 7(2) of the PCA 1967, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case.
In Re Fletchers Application (1970), the Court of Appeal held that the
Parliamentary Commissioner could not be compelled to investigate, or continue to investigate, a complaint. The Appeal Committee of the House of Lords
refused leave to appeal ... on the ground that there was no jurisdiction to order
the Commissioner to investigate a complaint because s 5(1) of the PCA 1967 ...
conferred on him a discretion whether to investigate or not. In R v Commission
for Local Administration in England ex parte Newman (1997), the Court of Appeal
noted Re Fletchers Application in refusing an application for judicial review of a
decision of the Commission for Local Administration (whose discretion under
the Local Government Act 1974 is stated in equivalent terms to that of the PCA
1967). Kerr LJ noted that the use of the word may did not necessarily exclude
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Whereas the Parliamentary Commissioner for Administration is clearly a public body, this cannot necessarily (or even usually) be said of ombudsmen established as part of the process of self-regulation in the private sector. This is welldemonstrated by R v Insurance Ombudsman ex parte Aegon Life Assurance Ltd
(1994), where the powers of the Insurance Ombudsman Bureau had originally
been derived from a contractual relationship with its members, albeit that it
had subsequently been brought within a statutory regulatory framework
under the Financial Services Act 1986. The Insurance Ombudsman was held
not to be a public body and any action against it lay exclusively in private law.
(See further Chapter 6 on the public/private law dichotomy.)
9.3
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9.4
9.5
The Commissions for Local Administration (one for England with three commissioners and one for Wales) were established under the Local Government
Act 1974. Originally, a filter system operated and a complaint had to be
referred in the first instance to a local councillor. However, the Local
Government Act 1988 allowed a complainant direct access. The Local
Government and Housing Act 1989 allows the Commissions to issue codes of
good administrative practice.
9.6
The idea that citizens have rights as consumers and that government must
meet certain standards in serving its customers was recognised in the Citizens
Charter White Paper which was published in 1991. The stated aim of the
Charter was to improve standards in services to the public provided by central
or local government, the NHS and public utilities. Improvements to customer
service were to be achieved through the publication of standards, the provision
of incentives, the provision of additional information and enhancement of complaints procedures. An office of Minister for the Citizens Charter was created
by John Major when elected Prime Minister. The Charter is not itself enforceable as such. The Parliamentary Commissioner was given power to ensure
adherence to Charter standards and the Charter has some statutory support of
its principles. The Competition and Service (Public Utilities) Act 1992 requires
public utilities to have proper complaints procedures. Insofar as the public utilities are now privately owned, the statutory regulators are to play a role in
securing compliance with Charter principles. The Charter also proposed payment of compensation for a failure in the provision of certain services such as
the railways.
(On the Citizens Charter and the marketisation of the provision of public
services, see Barron and Scott, The Citizens Charter Programme (1992) 55
MLR 526.)
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9.7
Tribunals
9.7.1
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These principles were to be achieved by, inter alia, tribunal hearings being held
normally in public, allowing legal representation, requiring that decisions be
reasoned and given in writing and providing rights of appeal.
9.7.2
The original TIA 1958 has been consolidated into the TIA 1971 and, most
recently, the TIA 1992. The TIA 1958 established the Council on Tribunals
(whose membership now includes the Parliamentary Commissioner). The
Councils general remit is to keep under review the constitution and working
of tribunals specified in Schedule 1. The Franks Committee had recommended
that the Council should, apart from its general supervisory role, be responsible
for the appointment of members of tribunals. This proposal, however, was not
implemented although the Council may make recommendations to the appropriate minister on tribunal appointments. The Council must report annually to
the Lord Chancellor (its Scottish Committee to the Lord Advocate) who lays the
report before Parliament. Past annual reports have raised such issues as the
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9.7.3
Procedure
As noted above, procedural rules for tribunals will vary according to the nature
of the tribunal. The procedure to be followed will be contained within the relevant statute and/or regulations made under the statute. These may provide
for an oral hearing which might be held in public or private (normally in public), the calling and cross-examination of witnesses, the right to legal representation, the duty to give reasons for decisions etc. A balance needs to be drawn
here between procedural technicality and procedural fairness. The raison detre
of tribunals was to provide accessible justice for the individual. Tribunal procedure, therefore, must be sufficiently simple to ensure accessibility whilst at
the same time being adequate to ensure fairness. The availability of legal representation demonstrates the difficulty of maintaining such a balance. On the
one hand, tribunal procedure should be simple and informal. On the other, tribunals are judicial bodies which deal with issues of law. The procedural rules
of many tribunals allow representation (including legal representation) as of
right. In others, legal representation may be allowed. Occasionally, procedural
rules restrict legal representation. As noted above, legal aid is rarely available
for representation (it is available for legal advice and assistance) except before
the most prestigious of tribunals which might, in fact, be more properly
regarded as courts. In situations where the dispute is most often between the
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9.8
Inquiries
We are here concerned predominantly with the statutory public inquiry which
has become a feature in certain areas of the governmental decision-making
process. It is a particular feature of the legislation regulating town and country
planning and the compulsory acquisition of land. The purpose of the public
inquiry is the give an opportunity to those citizens concerned by governmental decision-making (often involving policy issues) an opportunity to represent
their views for example, on the siting of a proposed motorway or power station. It is essentially part of the consultative process which precedes the making of the decision itself. The most common form of inquiry is the planning
inquiry presided over by an Inspector (appointed by the minister).
In theory, the public inquiry is part of the process of open and fair governmental decision-making. In practice, it is perceived by some as something of a
facade (see, for example, Franklin v Minister of Town and Country Planning
(1947), though this decision preceded the procedural reforms of the TIA 1958).
Such a perspective is understandable, even if mistaken. The ultimate decision
on major policy issues for example, to confirm a scheme for a motorway or a
compulsory purchase order will be for the minister. (The minister may delegate his decision-making powers under the Town and Country Planning Acts
and his Inspectors now often take the decisions on everyday planning appeals
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In between these extremes, however, was the grey area, ie the decision, based
on traffic need, as to which stretch of the motorway was to be built next. It was
on the methodology used for determining these local needs that the objectors
had wished to cross-examine. Lord Diplock was of the view that methodology
could be regarded as an essential element in the policy of determining priorities in the construction of future stretches of a motorway. In any case, challenges to methodology were not appropriate for investigation at the stage of
local inquiry where the Inspectors consideration was limited by the material
presented to him. He concluded:
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9.9
Conclusion
There is certainly room in the process of protecting the citizen from bad decision-making on the part of government for extra-judicial avenues of complaint
which emphasise speed, informality and cheapness. However, not all the
avenues established themselves meet these requirements. Investigation by the
Parliamentary Commissioner, for example, is a very lengthy process as, indeed,
a public inquiry can be (though maximum delay may well be a desired objective here). Such methods should not be viewed, however, as substitutes for
recourse to the courts. In particular, recent developments in terms of the
Citizens Charter and the Code on Access to Government Information should
not be allowed to distract from greater constitutional reform such as freedom
of information legislation.
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SUMMARY OF CHAPTER 9
In addition to judicial review, there exist supplementary remedies for the citizen
against the state. In particular, a number of Ombudsmen have been established
in different fields, both public and private.
Procedure
A complainant cannot access the Parliamentary Commissioner directly; he or
she must submit a complaint in the first instance to an MP who acts as a filter.
The rationale for this restriction was to preserve the relationship between constituent and MP and to recognise the political avenue of control via individual
ministerial responsibility. Where a complaint is made direct to the
Parliamentary Commissioner, the practice is to refer it to the constituents MP
in the hope that, if appropriate, the complaint will then be referred back. A
complaint must be made within 12 months of when the complainant had notice
of the matter which is the subject of the complaint.
If, after conducting an investigation, the Parliamentary Commissioner finds
maladministration, his powers are limited. He cannot make an order for compensation or quash a decision. His or her powers are essentially limited to reporting to Parliament and making a recommendation as to the action appropriate to
remedy the complaint.
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Tribunals
Tribunals were developed to provide cheap, accessible and speedy justice. A
host of tribunals now exists dealing with issues such as entitlement to state
benefits, immigration, mental health reviews, rent assessments, unfair dismissal and redundancy. Most are created by statute. The decisions of tribunals may be subject to appeal. Tribunals are also subject to judicial review.
The procedure of tribunals should be characterised by openness, fairness and
impartiality.
Procedure
Procedural rules for tribunals will vary and will be contained within the statute
establishing the relevant tribunal and/or regulations made under the statute.
A balance needs to be drawn between simplicity and accessibility on the one
hand, and fairness on the other. Legal aid is rarely available for representation
before tribunals although legal representation may be allowed either as of right
or at the tribunals discretion.
Inquiries
The statutory public inquiry has become a feature of certain areas of governmental decision-making, in particular in the fields of town and country planning and compulsory purchase. The intention is to provide citizens with an
opportunity to represent their views. The ultimate decision on policy issues
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