Judicial Review and Ombudsmen TH QUESTION 36 © ‘in a number of respects, the Parliamentary Ombudsman has proved more effective as a means of providing redress for the citizen mistreated by government authorities than have judicial remedies » Discuss. How to Read this Question This raises the question of whether the Ombudsman system is effective, but it is of wider scope as it: (8) includes a comparison with another means of redress; and (b) concerns the whole of the Ombudsman system, not Just the Parliamentary Commissioner for Adminis tration (PO). How to Answer this Question Some background to the Ombudsman system is required, before then going on to how it ‘works, and then critiquing it and comparing it to judicial remedies. It must be remem- bered that, in some respects, certain Ombudsmen may be more effective than others in comparison with ether available remedies Answer Structure ‘The aim in setting up the Ombudsman system ‘The extension afthe system y The nature of maladminisration’ as posed to illegally ‘comparison with the courts ‘The lack of coercive remedies avaiable to the PCAPO, the decision in (on the application of Bradley) v Secretary of State for Work and Pension: (2007) ¥ ‘The teforms suggested by the Cabinet Office Review (2000),25 ‘clevant The matters above should be considered in your answer.ANSWER ~~ In addressing this question, it should be borne in mind that the Ombudsman system was, not set up as a replacement for ather remedies, but in order to remedy their deficiencies and to fill gaps they created. It will be argued that although the system does have advant- ages over pre-existing judicial and parliamentary remedies, its limitations mean that it is hampered in fulfilling its aims. Asthe statement applies to the whole of the Ombudsman system, It will be argued that in some respects, certain Ombudsmen may be more effective than others in comparison with other available remedies The PO was set up under the Parliamentary Commissioner Act 1967 as 2 result of the per- ception that arose after the Crichel Down affair in 1954 that pre-existing judicial and parliamentary remedies did not provide adequate redress for members of the public who had suffered as a result of maladministration in central government. Thus, defective administrative action was going unremedied either because it fell outside the jurisdiction of the courts or because MPs did not have sufficient powers to investigate it satisfactorily, In providing a further means of investigating complaints, the intention was that the PO would not only uncover maladministration, but would also enable civil servants wrongly accused of maladministration to clear their names. The Ombudsman system has been extended to the NHS, to Northern |reland and to Scotland and Wales, under devolution. In being required to consider ‘maladministration’ (under s10)3) of the 1967 Act) as opposed to illegality, Ombudsmen are empowered to investigate a wider range of complaints than could be investigated by a court, A court can intervene in judicial review proceedings only where a decision is ultra vires, or where It is considered Wednesbury unreasonable, or where there has been a breach of natural justice or a breach of rights protected under the European Convention on Human Rights (ECHR), as incorporated into UK law via the Human Rights Act 1998 (HRA) (s6(1), Alternatively, in some instances, there may be a statutory right of appeal to a tribunal. ‘Maladministration’ may cover some instances that would give rise to redress in a court or tribunal, but it goes further than that. It has been described as ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpi- tude, arbitrariness and so on’ (Richard Crossman in the debate on the Parliamentary Com- missioner Bill 1967). Where @ court or tribunal could consider such defective administration, the PO will not investigate the matter unless it would not be reasonable to expect the complainant to seek redress in litigation. Although maladministration is a wide concept, it does mean that the PO is broadly con- cerned with procedural defects rather than with the merits of a decision. This distinction is contained in s12{3) of the 1967 Act, which provides that the PO may not investigate the merits of a decision taken without maladministration, Procedurally, the Ombudsman system may have advantages over a court hearing: its informality in investigation may be more effective at times in discovering the truth than the adversarial system in the courts. It is also, of course, free to use. Moreover, in court, the Crown may plead public interest immunity to avoid disclosing documents; in contrast, the PO can look at all departmental files. Such flexibility is also reflected in the fact thatthe Ombudsman procedure is not circumscribed by rules as regards time limits, and therefore may provide a remedy in instances which cannot be considered by a court.” On the other hand, unlike a court, the PO lacks the power to award a remedy, although ex gratia payments to individuals may at times be mae. In some situations, this lack might be said to amount to a weakness in the PO system. However, although the lack of formal power to award a remedy might appear to weaken the PO severely, it is arguable that the need for such a limitation is inherent in the role. If the PO could award remedies, it would be hard to avoid making the investigative proceedings more formalised, so as to give the body complained of a full opportunity to answer the allegations made. Probably, some of the procedure would have to be conducted in public. The fact that the PO operates informally and privately has been thought to enhance her powers of persuasion. More- over, the decision in & (on the application of Bradley) v Secretary of State for Work and Pen: sions (2007) adds teeth to findings of the PO. It concerned the PO report finding maladministration by the Department for Work and Pensions in relation to people who had lost benefits through the winding up of final salary pensions schemes, partly, it was found, because of misinformation provided by the Department. The Secretary of State's rejection of the PO's findings was challenged by a number of individuals by way of Judicial review. The Court of Appeal found that the Secretary of State had been wrong to reject, some of the PO's findings and must reconsider. It put forward the test that where a minister rejected a PO finding, he or she must do so for ‘cogent reasons’. It was just before the Department's appeal to the Court of Appeal that it agreed to implement the PO's findings, indicating that the legal proceedings acted as an effective means of indirect, enforcement; moreover, the general finding that PO findings may only be rejected for good reason will make it far harder for departments simply to disregard compelling find ings of maladministration in future. When the Commissioner for Complaints in Northern Ireland finds that an individual has sustained injustice as a result of maladministration, the individual concemed can apply to the county court under s7(2) of the Commissioner for Complaints Act (Northern Ireland) 1969, which may award damages at its discretion. The new Welsh Ombudsman (above) may, if he or she is satisfied that a public authority has disregarded a report served on it without lawful excuse, issue a certificate to that effect to the High Court (s20)." It has been suggested by Birkinshaw and Lewis (When Citizens Complain, 1993) that giving the Local Government Ombudsman (ICO) powers to enforce their findings would imperil their rela- tionship with local authorities which, they fear, would become defensive and ‘minimalist’ in their responses to LGO recommendations; the current practice of negotiating the response of the authorities in @ consensual and informal way would be placed in Jeopardy (p. 36). In response to this, it may be argued that even if the LGO were given enforcement powers, consensual methods would still be used; that they would still be, and would be presented as 12 tes important to set out clearly and with sufficient detail the acvantages of the PO system over court remedies. 13 These form cogent counter-examples to the argument that iis inherent in the role of the PO that her recommendations ae not enforcea le