Administrative Law

“Ombudsman”

In 1809, Sweden introduced a system called as ombudsman. Under this system an independent
government official is appointed to receive complaints such as abuses or capricious acts, from
individuals against public administrations and to investigate those complaints. Later in 1967, this
concept was adopted by UK and named it as Parliamentary Commissioner Act (known as PCA).
Complaints against maladministration of government officials is dealt under this Act. Private and
Public sectors consist a lot of ombudsmen at different levels but the two most important are:
Commissioner for Local Authorities (CLA) and Health Service Commissioner (HSC). CLA
deals with complaints of maladministration against local authorities.
Situation before introducing Ombudsman: Before PCA was introduced, complaints of
maladministration of government officials were made to a MP or by seeking judicial review.
However, these methods were not efficient enough for proper investigation against
maladministration of government officials. As in case of MPs, their busy schedule and lack of
ability became a problem. As well as they were not allowed to access certain departmental
documents. On the other hand, the procedure of judicial review was complex, time consuming
and expensive. Also, this method was not allowed to interfere in all cases of poor performance.
Crichel Down Affair (1954) is an example, where the case was about takeover of private
property during World War II which was never returned by the government. Following this
incident, formation of the Justice Committee happened. In 1961 Whyatt Report was published,
that suggested to introduce ombudsman system.
Appointment of PCA and procedure of complaints: PCA is appointed by the Crown on the
advice of the prime minister and consulting with the chairmen of the House of Commons Select
Committee. Both Houses of Parliament controls the power to remove anyone from the post.
According to s.5 and s.6 of PCA 1967, any UK citizen other than civil servants and local
authorities have to send a written complaint to MP, if there are no other method. As said by S.6
(3) of PCA 1967, the complaint has to be sent within 12 months of the problem, where time can
be extended if the commissioner feels the necessity of investigation. The MP decides the
suitability of the complaint and if so then it is transferred to the PCA, who will take the matter if
it concerns with maladministration.
PCA will choose whether to continue or discontinue an investigation and the choice cannot be
questioned (Re Fletcher’s Application). Administrative Court can bring back any matters related
to public body, refused by PCA for Judicial review.
Complaint must relate to maladministration: The key concept to the Commissioner’s
jurisdiction is maladministration, though it was not defined in the Act. The Whyatt Report of
1961 consisted this concept, where it was used as a term other than an exact meaning. Different
members of the parliament described it in their own ways. Richard Crossman described it in his
catalogue as bias, neglect, intention, delay, incompetence etc. It was described as faulty and bad
administration in ex parte Bradford. Sir Alan Marre in his 1973 report said it as any
administrative short-comings. William Reid and Professor Paul Craig also contributed to the list
of examples of maladministration. Thus, the list of maladministration is not fixed and can be
extended.
Excluded matters: S.5 (3) of PCA 1967 consists of matters that PCA cannot investigate such as
foreign affairs, diplomatic activity, investigation of crime etc. Furthermore, the police, the
cabinet office, Prime Minister’s office, Tribunals, Bank of England, Criminal Injuries
Compensation Board, government commercial and contractual transactions are all excluded. Any
matter which can be re-appealed or review to tribunal or a remedy in any court of law can not be
investigated by the commissioner, except if the complaint is expected to have any relation with
the remedy of S.5 (2) of PCA 1967.
Power of PCA: Under S.8 (1) of PCA 1967 investigation will be started if any complaint is
found. The reason behind the efficiency of Ombudsman, is its access to information that can
acquired from ministers and relevant authorities. Under S.10 (3), ombudsman has to make a
special report before parliament, if injustice happened with a person because of
maladministration and the injustice has no other method to be solved. Also, under S.10 (4) the
PCA have to represent other reports to the parliament related to their function.
Criticisms of PCA: The PCA’s findings were totally disregarded in some of the situations which
were frequently pointed out by the critics. For instance, the tourism ministry in Court Line Affair
and the transport ministry in Channel Tunnel Rail Link case. These are quite few examples of
where the PCA’s fundamental power of suggestions was nothing but pointless. As Edmond
Compton states, PCA does not have any power or right to check the quality of the government
department’s rules, policy and merits. Additionally, the method or system of MP filter does not
truly helps, rather the process is being slowed down as the MPs can be biased in some cases.
Sometimes, the complaints or allegations are just ignored of which are against their interest.
Moreover, schedule 3 limits them from investigating where the most significant areas of
Ombudsmen’s investigation are needed.
Reform proposal: A lot of discussions has been going on in the last few years about the
reformation of ombudsman system in England. In 2015, a consultation was released by the
Cabinet on the creation of Public Service Ombudsman which was an build up of a Gordon report
from the previous year. Later in 2015, a response from the Government was published and in
December of 2016 the Government published a draft Public Service Ombudsman Bill. Where,
the draft bill Ensure significant changes which will combine the offices of the Parliament and
Health Services Ombudsman and the Local Commissioner for Administration which will hold an
objective of offering a single ‘no wrong door’ office for dealing with complaints of
maladministration.
The controversial issue that had arisen was whether the Public Service Ombudsman should have
a authority of ‘own initiative’ investigation. Where, the Government had rejected it and it was
also not included in the draft bill. Nonetheless, the ombudsmen should have been given the
power to some extent. Few case examples would be R (Bradley) ) v Secretary of State for Work
and Pensions [2008] and also R (EMAG) v HM Treasury [2009]. However, In R (Gallagher) v
Basildon District Council [2010], the court decided that it was unlawful of the authority not to
follow the recommendations in the Commissioner’s report.