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The Role of the Ombudsman in Relation to the Protection of Citizens' Rights

  • A. W. Bradley (a1)

Extract

In his book, Taking Rights Seriously, Professor Ronald Dworkin has argued that the institution of rights against the state is justified “because it represents the majority's promise to the minorities that their dignity and equality will be respected.” But he also stressed the difficulty of ensuring that these rights are respected:

The institution of rights against the Government is not a gift of God, or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the Government's job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point.

Now Dworkin's book is concerned with the problems presented in a democratic system of law and government by a serious commitment to fundamental political rights, such as freedom of speech and the disputed right of civil disobedience; and Dworkin does not directly consider the interest which the individual may have in the maintenance of good government in matters that affect him. One object of this article is to consider whether it is worthwhile seeking to relate the debate about citizen's rights to an assessment of the Ombudsman system. Another aim, since no-one would claim that the Ombudsman should be the sole protector of citizen's rights, is to examine the relationship between the Ombudsman and other agencies for the protection of the citizen in his dealings with the administration. The material to be discussed is drawn from the experience in the U.K. of the Parliamentary Commissioner for Administration, the Parliamentary Ombudsman: but aspects of the discussion may be relevant to the experience of ombudsmen in other countries.

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1 Dworkin, R., Taking Rights Seriously, 1977, p. 205.

2 p. 198.

3 e.g., Sir Powles, Guy, “Ombudsmen and Human Rights Commissions,” Review of International Commission of Jurists, No. 21, December 1978, p. 31.

4 Immigration Appeals Act 1969, implementing the Wilson Report on Immigration Appeals, Cmnd. 3387 (1967).

5 See the Internationale Handelsgesellschaft case [1972] C.M.L.R. 255 and the Nold case [1974] C.M.L.R. 338.

6 Hansard, H.L. Deb., Vol. 208, col. 605 (1 April 1958).

7 Mr. Crossman at H.C. Deb., Vol. 734, col. 42 (18 October 1966), and Lord Gardiner at H.L. Deb., Vol. 279, col. 1364 (6 Feb. 1967).

8 Hohfeld, W. N., Fundamental Legal Conceptions, 1919.

9 In 1971, the report Administration under Law proposed the enactment of Principles of Good Administration, to apply to government departments, local authorities and nationalised industries.

10 4th Report of Select Committee on P.C.A., H.C. 615 (1977–78), p. viii.

11 Cmnd. 2767 (1965), paras. 2 and 4.

12 See the Whyatt Report, The Citizen and the Administration, 1961, Part II, recommending the creation of a general tribunal to hear a miscellany of appeals from discretionary decisions by departments: the recommendation has never been accepted by government.

13 In 1973, the existence of the P.C.A. with power to request a review of departmental decisions was stated in Parliament by a minister to be one reason why it was unnecessary to provide by legislation for a right of appeal against the power to ban an individual from conducting insurance business: see 2nd Report of Select Committee on P.C.A., H.C. 524 (1976–77), pp. xi and 28–41; and Report of P.C.A. for 1976, H.C. 116 (1976–77), p. 47.

14 Law of the Constitution, 10th ed., ed. Wade, E. C. S. (1959). p. 199. For a perceptive study of changing Anglo-Saxon attitudes in this respect, see de Smith, S. A., The New Commonwealth and its Constitutions (1964), Chap. 5.

15 See Wade, H. W. R., “The British Ombudsman: a Lawyer's View,” 24 Administrative Law Review 137. The comment in the text remains valid despite the appointment of Mr. C. M. Clothier Q.C. as P.C.A. from January 1979. But is it coincidence that phrases like “the balance of probability” seem to appear more often in his reports than previously? See e.g. 4th Report of P.C.A., H.C. 351 (1979–80), p. 48.

16 Court decisions have already been made on the powers of the Local Commissioners for Administration: Re a Complaint against Liverpool City Council [1977] 2 All E.R. 650; and R. v. Local Commissioner for Administration, ex p. Bradford Council [1979] Q.B. 287, which also has dicta relating to the formulation of complaints to the P.C.A.

17 Parliamentary Commissioner Act 1967, s. 5 (5); In re Fletcher's Application [1970] 2 All E.R. 527.

18 Introduction to the Philosophy of Law, 1959 ed., p. 63.

19 p. 68.

20 Robson, W. A., Justice and Administrative Law, 2nd ed. (1947), p. 35; and cf. Pound, op. cit., p. 65.

21 e.g., 7th Report of P.C.A., H.C. 664 (1977–78), pp. 192, 199, 202, 222, 226, 254, 260.

21a In 1978, an index by subject–matter of decisions published during 1978 was made available on request from the P.C.A.'s office: H.C. 205 (1978–79), p. 6. In 1980, when only selected reports on cases are being published, each quarterly report contains a brief list of departments investigated, the earlier proposal for a continuing subject–index having been abandoned.

22 See by Marshall, G., “Maladministration” [1973]Public Law 32 and “Techniques of Maladministration” (1975) 23 Political Studies 183.

23 Quoted by Brown, L. N. and Lavirotte, P. in “The Mediator: a French Ombudsman?” (1974) 90 L.Q.R. 211, 213.

24 Report of P.C.A. for 1968, H.C. 129 (1968–69) pp. 84, 85, 125; and Report of P.C.A. for 1970, H.C. 261 (1970–71), p. 10.

25 See, e.g., 1st Report of P.C.A., H.C. 35 (1975–76), pp. 116, 143, 214; 1st Report of P.C.A., H.C. 126 (1977–78), p. 8.

26 See in particular the difficulties resulting from new rights to compensation given by the Land Compensation Act 1973: 6th Report of P.C.A., H.C. 598 (1977–78) and 1st Report of Select Committee on P.C.A., H.C. 91 (1978–79).

27 See, e.g., in respect of war pensions, Report of P.C.A. for 1977, H.C. 157 (1977–78).

28 e.g., 1st Report of P.C.A., H.C. 35 (1975–76), pp. 165 and 226.

29 Note 21 above.

30 Legrand, A., L'Ombudsman Scandinave (1970), Paris, p. 406.

31 Evidence of D. W. Williams to Select Committee on P.C.A., H.C. 444—v (1977–78), p. 119.

32 First Report. June–December 1977, H.C. 359 (1977–8).

33 e.g., in the Hunterston development case, 3rd Report of P.C.A., H.C. 241 (1974–75), p. 166, and in the invalid tricycle affair, 6th Report of P.C.A., H.C. 529 (1974–75) p. 162.

34 National Health Service Reorganisation Act 1973, Sched. 3, para. 1. The restriction was considered by the Select Committee on the P.C.A. in the Report on the independent review of hospital complaints, H.C. 45 (1977–78). This restriction as such does not apply when the P.C.A. is examining complaints against the Ministry of Defence about medical treatment received by civilians in military hospitals (e.g., 7th Report of P.C.A., H.C. 664 (1977–78), p. 20) or complaints by prisoners about their medical treatment while in prison: but the P.C.A. may take the view that a matter of pure clinical judgment involves no element of maladministration. In July 1980, a Government decision on the clinical judgment exception was still awaited: 3rd Report of Select Committee on P.C.A., H.C. 406 (1979–80), p. xiv.

35 e.g., the current policy of Inland Revenue on remission of unpaid tax brought about by official error (see Gregory, R. and Hutchesson, P. G., The Parliamentary Ombudsman (1975), pp. 573580) and the changed policy regarding the starting date for arrears of war pensions which arose from Captain Horsley's case (2nd Report of P.C.A., H.C. 587 (1970–71)). For the latest statement on tax remission, see H.C.Deb., Vol. 973, col. 180, W.A. (7 November 1979).

36 1st Report of P.C.A., H.C. 35 (1975–76), p. 157; 5th Report of P.C.A., H.C. 524 (1977–78), p. 173.

37 e.g., regarding the use of typewriters by prisoners: 5th Report of P.C.A., H.C.406 (1972–73) p. 129, Report of Select Committee on P.C.A., H.C. 268 (1974), p. x and 2nd Report of Select Committee on P.C.A., H.C. 488 (1975–76) p. v.

38 Isolated cases do occur, e.g., 7th Report of P.C.A., H.C. 664 (1977–78), p. 151.

39 2nd Report of Health Service Commissioner, H.C. 160 (1976–77) p. 58 and 2nd Report of Select Committee on P.C.A., H.C. 372 (1977–78) p. v.

40 M., Lerhard (ed.), The Danish Ombudsman 1955–69 (1972), Copenhagen, pp. 6263.

41 Cf. Legrand, op. cit., p. 513.

42 By s. 11 (3) of the 1967 Act, a Minister may exclude from the P.C.A.'s reports material the disclosure of which would be “prejudicial to the safety of the State or otherwise contrary to the public interest.”

43 e.g., Report of P.C.A. for 1967, H.C. 134 (1967–68), p. 74.

44 See Gregory and Hutchesson, op. cit., pp. 593–599.

45 R. v. Chief Immigration Officer, ex p. Salamat Bibi [1976] 3 All E.R. 843.

46 Judgment of the Court, 21 February 1975, series A, Vol. 18.

47 Report of P.C.A. for 1970, H.C. 261 (1970–71), p. 124 and Yearbook of European Convention on Human Rights (1970), p. 730.

48 6th Report of P.C.A., H.C. 665 (1975–76), p. 143.

49 This impact is discussed in Harris, D. J., “The Application of Article 6 (1) of the European Convention on Human Rights to Administrative Law” (1974–75) 47 British Yearbook of International Law 157.

50 Gregory and Hutchesson, op. cit., Chap. 11.

51 Cmnd. 218 (1957), p. 9.

52 e.g., 1st Report of P.C.A., H.C. 37 (1975–76), pp. 94–129; 1st Report of P.C.A., H.C. 126 (1977–78), p. 109; Gregory and Hutchesson, op. cit., pp. 226–230.

53 Parliamentary Commissioner Act 1967, s. 5 (1).

54 See, e.g., Bell, K., Research Study on Supplementary Benefit Appeal Tribunals 1975 (H.M.S.O.) and Adler, M. and Bradley, A. W., Justice, Discretion and Poverty (1976).

54a On delay by tribunals, see 4th Report of P.C.A., H.C. 351 (1979–80), p. 31. On the ambiguous position of county court officials, see the same report, p. 60.

55 e.g., 1st Report of P.C.A., H.C. 37 (1975–76), p. 78.

56 Ibid., p. 74.

57 Note 64, below.

58 1st Report of P.C.A., H.C. 37 (1975–76), p. 83.

59 Parliamentary Commissioner Act 1967, s. 12 (3).

60 See respectively 1st Report of P.C.A., H.C. 2 (1974), p. 140 and 3rd Report of P.C.A. HC 223 (1976–77), p. 192.

61 E.g., 1st Report of P.C.A., H.C. 37 (1975–76), p. 90.

62 Tribunals and Inquiries Act 1971, s. 1 (1) (c).

63 e.g., 1st Report of P.C.A., H.C. 37 (1975–76), p. 62.

64 In R. v. Environment Secretary, ex p. Ostler [1977] Q.B. 122, Ostler's case failed because of the six-week rule.—After investigation by the P.C.A., Ostler recovered compensation for the costs of his abortive pursuit of a legal remedy: 3rd Report of P.C.A., H.C. 223 (1976–77), p. 40 and 2nd Report of Select Committee on P.C.A., H.C. 524 (1976–77), pp. 16–18.

65 See respectively R. v. Home Secretary, ex p. Phansopkar [1976] Q.B. 606; Congreve v. Home Office [1976] Q.B. 629; R. v. Barnsley Council, ex p. Hook [1976] 3 All E.R. 452;Laker Airways Ltd. v. Department of Trade [1977] Q.B. 643.

66 For the new procedure of application for judicial review, see Rules of Supreme Court, new Order 53 (S.I. 1955 of 1977), discussed by J. Beatson and M. H. Matthews (1978) 41 M.L.R. 437.

67 Foulkes, D. “The Discretionary Provisions of the Parliamentary Commissioner Act 1967” (1971) 34 M.L.R. 377, 380–384; Gregory and Hutchesson op. cit., pp. 230–241.

68 e.g., Street, H., Justice in the Welfare State (1968), Chap. 5.

69 Wade, H. W. R., Administrative Law, 2nd and 3rd eds., p. 12; 4th ed., pp. 73–86. And cf. Harlow, C., “Ombudsman in Search of a Role” (1978) 41 M.L.R. 446.

70 Braibant, G., “Les Rapports du Mediateur et du Juge Administratif” (1977) Actualité Juridique, Droit Administratif, p. 283.

71 Conway v. Rimmer [1968] A.C. 910.

72 Parliamentary Commissioner Act 1967, ss. 7 (2) and 8 (2).

73 7th Report of P.C.A., H.C. 690 (1974–75); Congreve v. Home Office, (above, note 65).

74 The Danish Ombudsman 1955–69, op. cit., p. 78.

75 Parliamentary Commissioner Act 1967, s. 7 (4). The one exception to this under the 1967 Act was that the P.C.A. had power to direct that an alien or Common-wealth immigrant be re-admitted to the U.K. for the purposes of his investigation. But this power seems never to have been used, and it is uncertain whether the power still exists, since the former legislation on aliens and Commonwealth immigrants has been replaced by the Immigration Act 1971.

76 In the Edinburgh Airport case (1st Report of P.C.A., H.C. 2 (1974), p. 140), the Government's decision to proceed with construction was taken to the Prime Minister by objectors and was raised in Parliament, but without success: H.C. Deb., Vol. 861, col. 1417 (29 October 1973).

77 H.C. 154 (1977–78), Chap. 4.

78 The case was first reported in 5th Report of P.C.A., H.C. 496 (1975–76), p. 194. For a case of obstinacy in the N.H.S., see 3rd Report of Select Committee on P.C.A., H.C. 406 (1979–80), p. xiii.

79 Gregory and Hutchesson, op. cit., Chap. 11.

80 L.J, Roskill. in Congreve v. Home Office (above, note 65).

81 Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147.

82 Ashbridge Investments Ltd. v. Minister of Housing [1965] 3 All E.R. 371, 374.

83 For typical cases, see 1st Report of P.C.A., H.C. 37 (1975–76), pp. 42 and 65. And see comments on the Nigg Bay decision, Report of P.C.A. for 1976, H.C. 116 (1976–77), p. 7.

84 Leading decisions include Re H.K. [1967] 2 Q.B. 617; Wiseman v. Borneman [1971] A.C. 297; R. v. Liverpool Corporation [1972] 2 Q.B. 299; Maxwell v. Department of Trade [1974] Q.B. 523.

85 Report of P.C.A. for 1976, H.C. 116 (1976–77), App. B; and 2nd Report of Select Committee on P.C.A., H.C. 524 (1976–77), p. xi.

86 Report of P.C.A. for 1976, H.C. 116 (1976–77), p. 5.

87 [1968] A.C. 497.

88 [1977] A.C. 1014.

89 See also the Report, Whyatt, The Citizen and the Administration (1961), Part II and Jowell, J., “The Legal Control of Administrative Discretion” [1973]Public Law 178.

90 Discretionary Justice: A preliminary Inquiry (1971), p. 4.

91 [1973] Public Law 178, 179.

92 e.g., R. v. Minister of Transport, ex p. Males [1970] 3 All E.R. 434.

93 The case law includes R. v. Port of London Authority, ex p. Kynoch [1919] 1 K.B. 176 and British Oxygen Co. v. Board of Trade [1971] A.C. 610.

94 Gregory and Hutchesson, op. cit., p. 461.

95 Consider, e.g., R. v. Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864.

96 Note 44, above.

97 e.g., note 78, above.

98 e.g., 1st Report of P.C.A., H.C. 37 (1975–76), p. 94

99 Report of P.C.A., H.C. 37 (1975–76), p. 88.

1 R. v. Customs and Excise Commissioners, ex p. Cooke [1970] 1 All E.R. 1068. In 1st Report of Select Committee on P.C.A., H.C. 91 (1978–79), the official evidence distinguishes between ex gratia payments (justifiable by the exceptional circumstances of a case) and extra-statutory payments (not within the terms of a statute but broadly in line with it), but states that payments cannot be made directly contrary to a statute. For recent criticism of extra-statutory tax concessions, see Vestey v. I.R.C. (No. 2) [1979] 2 All E.R. 225.

2 The case law includes Robertson v. Minister of Pensions [1949] 1 K.B. 227; Re 57 Demon Road, Twickenham [1953] Ch. 51; and Leven Finance Ltd. v. Westminster Council [1971] 1 Q.B. 222.

3 [1970] A.C. 1004.

4 [1977] 2 All E.R. 492.

5 See report of Tribunal of inquiry into the collapse of the Vehicle and General Insurance Co., H.L. 80, H.C, 133 (1971–72) and 4th Report of P.C.A., H.C. 485 (1975–76) concerning the National Life Insurance Co.

6 1st Report of P.C.A., H.C. 126 (1977–78), p. 51.

7 [1964] A.C. 465.

8 Ministry of Housing v. Sharp [1970] 2 Q.B. 223.

9 e.g., 4th Report of P.C.A., H.C. 126, (1977–78), p. 14.

10 Note 24, above.

11 1st Report of P.C.A., H.C. 126 (1977–78), p. 14.

12 Report of Select Committee on P.C.A. on the independent review of hospital complaints, H.C. 130 (1977–78).

13 e.g., 1st Report of Health Service Commissioner, H.C. 130 (1977–78), p. 88.

14 Harlow, C., “Fault Liability in French and English Public Law” (1976) 39 M.L.R. 516.

15 1st Report of P.C.A., H.C. 37 (1975–76), p. 156.

The Role of the Ombudsman in Relation to the Protection of Citizens' Rights

  • A. W. Bradley (a1)

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