Dispute Resolution in the Administrative State:
The Parliamentary Ombudsman
* Green light/functionalist approach
* Law seen as facilitator
* Advantages over courts
* Lord Hewart and the ‘New Despotism’
background of judicial opposition.
Introduction
• Administrative remedies and the grievance chain
• Red and Green light vieiws of administrative justice
• Recent trends towards cutting legal aid and stressing the
importance of ADR.
• Parliamentary Ombudsman: plugging the gaps in the
grievance chain.
• Current role of administrative tribunals.
Dispute resolution in a multi-layered
constitution
• Constitutional system of increasing complexity has
emerged over the last 50 years or so.
• Supra-national level with the EU and HRA introducing a
framework of law super-imposed from above.
• Devolution has created a new institutional framework
peculiar to Scotland, Wales and Northern Ireland.
• Courts increasingly become remedies of last resort
• Tribunals and ombudsmen to deal with the administrative
state
• Citizen remedies: bottom up including mediation and
citizen charters.
• Leading scholars (Harlow and Rawlings) have analysed
administrative law in terms of two conflicting trends:
• Red light view - originating from Dicey’s notion of the
rule of law which emphasizes a control function, often
exercised by the courts.
• Green light or functionalist view - which places great
emphasis on using the positive values of law as a
facilitator. The advocates of this second approach were
concerned to design institutions capable of delivering
reformist social policies.
Trends in administrative justice
• ADR and the bottom up perspective on administrative justice
• Robson’s objective to develop user friendly mechanisms for the
resolution of small claims
• Campaign by Laski for legal aid
• Preference for tribunals over conciliation because of the importance of
finding out the facts (e.g. Street).
• Emphasis on consistency in decision-making
• Recent trend towards proportionate dispute resolution PDR. The
process for putting things right must be proportionate – no
disproportionate barriers to users in terms of cost, speed or
complexity.
Defining ADR
• Alternative dispute resolution suggests the handling of
disputes outside of the formality of the courts systems.
• Further, it suggests the absence of the classic adversarial
style which typifies court procedures.
• However, having stated these characteristics ADR might
refer to a range of different procedures including tribunals,
ombudsman, arbitration, mediation, citizen’s charter.
Some are much more formal and judicial than others.
• In introducing his civil justice reforms Lord Woolf was
keen to proceed on the basis that access to justice would
be served if the courts were regarded as a forum of last
resort for legal disputes.
Civil Procedure Rules
These rules require the court as part of its duty to actively manage cases
to encourage the parties to use ADR if the court consider it appropriate
and they are placed under a duty to facilitate the procedure. It also gives
the court the power to stay proceedings at the request of the parties or
on its own initiative which the parties attempt to settle the case using
ADR.
Cowl v Plymouth City Council [2001] EWCA 1935 Lord Woof CJ ‘The
importance of this appeal is that it illustrates that, even in disputes
between public authorities and the members of the public for whom they
are responsible, insufficient attention is paid to the paramount importance
of avoiding litigation whenever this is possible. Particularly in the case of
these disputes both sides must by now be acutely conscious of the
contribution alternative dispute resolution can make to resolving disputes
in a manner which both meets the needs of the parties and the public
and saves time, expense and stress.’
Types of ADR
Mediation is where an independent third party helps the parties to reach
a voluntary resolution of a dispute.
Adjudication involves allows an independent third party to hear claims
from two sides with the outcome determined by the adjudicator.
Arbitration under the Arbitration Act 1996 is a similar process with the
claim heard from outside but the decision of the arbitrator is final and
legally binding.
Conciliation as a process available in some context, for example the role
of ACAS in resolving industrial disputes.
ADR involves a number of different processes, some of which may be
under a statutory framework e.g. under part VII of the Housing Act 1996
and Social Security Act 1998. Internal assessment is available before the
matter goes before a tribunal.
• The Crichel Down affair and other administrative failures
exposed a manifest gap in the grievance mechanisms
available to the individual or group.
• ‘ The Citizen and the Administration: the Redress of
Grievances’, Whyatt Report 1961 recommended that a
parliamentary commissioner for complaints should be
instituted and this eventually resulted in the Parliamentary
Commissioner Act 1967.
• Terminology: Parliamentary Commissioner for
Administration, Parliamentary Ombudsman, PCA or PO.
(1) The Question of Access
‘MP Filter’ (Limitations) – usurping the role of MPs and
preventing the PO from being swamped. Unnecessary.
Not a characeristic of other UK ombudsmen.
This has resulted in a smaller caseload than comparable
institutions e.g. France (2000 p.a. as compared to
17,000).
PCA 1967 s.5(1) routed through MPs
This limitation should be compared with the
Commissioners for Local Administration - 1974 Local
Government Act as amended by the 1988 Local
Government Act.
(2) Limitations in Schedules 2 & 3
Parliamentary and Health Service Commissioners Act 1987, sch. 1,
extended the remit of the PO from fewer than 50 to more than 100
departments and non-departmental government bodies, although not
all non-departmental government bodies, or ‘quangos' as they are
frequently called, are covered
Schedule 3: excluded from investigation include: foreign affairs and
dealings with international organisations and bodies, criminal
investigations, prerogative of mercy, appointments, grants of honours,
contractual and commercial transactions of government (important
exclusion).
(3) Remit
What is maladministration? - no definition in the Act
‘Crossman catalogue’ - “bias, neglect, inattention, delay,
incompetence, ineptitude, perversity, turpitude,
arbitrariness and so on” or is it just ‘any administrative
shortcomings’ (Marre - 1973 Annual Report of the PCA).
See also the 1993 Annual Report
s.12(3) “... nothing in this Act authorises or requires the
Commissioner to question the merits of a decision taken
without maladministration”
s.5(2) not available if there is right of appeal or judicial
remedy
(4) Emphasis on procedural rather than substantive
maladministration
(a) at the outset the PO and other ombudsmen were not
expected look into a decision where it is the quality of the
rules and regulations which are being called into question.
(b) PO should not question ‘the merits of a decision taken
without maladministration’ (emphasis added). These are
known, respectively, as the ‘bad rule’ and the ‘bad
decision’. But these issues may be related.
Increasing tendency to investigate systemic failings
Case study 1
The Ombudsman found that the Benefits Agency and the Independent
Tribunal Service had made serious mistakes which caused a long
delay to a woman's appeal against a refusal of attendance allowance.
An ex-gratia payment was made by the Independent Tribunal Service
and the Benefits Agency agreed to consider further compensatory
payments if it were shown that the woman's health had been affected.
Case study 2
The Ombudsman found that Customs and Excise had made mistakes
when measuring and recording the length of a fishing boat, with the
result that the boat needed more safety equipment than the owner
had been led to suppose. Customs paid £12,000 to the owner of the
boat in recompense.
(5) Investagative Procedures used by the PO
Problem of fairness can arise in regard to the investigation
process. Should those subject to investigation be given a
right to reply and be legally represented?
In general, ombudsmen are an extension of the political
process and they assist in the investigation of
maladministration in general. They have no powers to
insist on the mandatory enforcement of legal rights but are
empowered to make recommendations.
Occupational pensions and debt of honour report
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A large number of pensioners up to 125,000 claimed they had lost money because of a
leaflet the PO found to be misleading which had been produced by the Ministry of WP.
This was after a comprehensive review of the evidence from more than 500 individuals.
Those yet to retire only stood a 50% chance of receiving a full pension. If PO
recommendations followed to restore core pensions would cost up to £3.7 bn in
repayments.
The department flatly rejected the findings and ignored government’s own rule book.
This became a constitutional issue
R (On the application of Bradley) v SS for Works and Pensions [2008] it was held
that in principle the minister can reject PO’s findings if he has reasons for doing so.
Quashing order remained to invalidate the decision rejecting the PO’s decision
because rejecting one of the findings had been irrational. Although there were
significant concessions as a result of the process the government still refused to accept
full liability on behalf of the tax payer.
For detailed case study see Harlow & Rawlings p.554ff.
Principles of Good Administration
1. Getting it right
2. Being customer focused
3. Being open and accountable
4. Acting fairly and proportionately
5. Putting things right
6. Seeking continuous improvement
Putting things right = Acknowledging mistakes and apologising where
appropriate.
Putting mistakes right quickly and effectively.
Providing clear and timely information on how and when to appeal or
complain.
Operating an effective complaints procedure, which includes offering a fair
and appropriate remedy when a complaint is upheld.
Firewatcher or firefighter
'The office has an adjudicative and inspectorial role, in
which "firefighting" and "fire-watching" are combined.'
[Harlow and Rawlings].
The role envisaged by Whyatt was an administrative small
claims court substitute decisively oriented towards
individual small claims (firefighting) rather than a
mechanism for overseeing and rooting out administrative
inefficiency (firewatching).
Conclusions/ effectiveness
1.Higher profile required but the reports provide blue
prints of good and bad practice.
2. Remedial action usually follows an investigation and
report even if reluctantly e.g. Barlow Clowes but recent
dispute with Ministry of Works and Pensions.
3. Guidance notes issued on good administrative practice.
Prevention is better than cure. Recent emphasis on
establishing general principles of good administration.
4. How long investigations take? The Rolls Royce method
but is this appropriate. Politicians favour quick fire
remedies, but systemic failure requires much more
thorough attention.
5. Freedom of Information Act 2000 part of a trend
towards openness but many limitations under the Act.
An important plus is an official in the form of the
Information Commissioner to enforce compliance. The
publication of reports helps but there is no requirement to
take further action.
6. Removal of the filter to provide direct access. This
change is still called for and would make a significant
difference.
TRIBUNALS
(1)
(2)
(3)
(4)
(5)
(6)
An overview of the system e.g. variety and throughput
Comparing courts and tribunals
Appeals and judicial review
Tribunals and the HRA 1998
Leggatt Review and reform of system
Inquiries - how they differ from tribunals
Donoughmore and Franks reports
• Tribunals pushed towards exercising a courts substitute
function
• A third tier in the administration of justice
• Influence of adversarial procedures strong but also
controversial. Franks sought a balance between
administrative and judicial functions
• Encouraged convergence between tribunals and inquiries
Throughput of Tribunals
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Asylum and Immigration Tribunal - 173,000 cases p.a.
Criminal Injuries Compensation Panel - 3,700 cases p.a.
Employment Tribunal Service - 89,000 cases p.a.
Employment Appeals Tribunal - 1100 cases pa
Mental Health Review - 22,000 cases p.a.
Social Security and Child Support Appeals - 250,000
cases p.a.
Courts and tribunals compared
• Inquisitorial rather than adversarial approach
• Specialised jurisdictions
• A need to encourage applicants:
• accessibility, speed, informality and economy
• More flexible approach to problem solving
Appeals and Judicial Review
• Tribunals have been part of a hierarchical appellate
structure
• Post Leggatt - uniform appeals to an appellate tier/body
staffed by by tribunal judges, circuit judges and
sometimes High Court judges.
• Supervisory role - Court of Appeal
• Judicial review on points of law
• Ouster clauses to limit the involvement of the courts e.g.
Asylum and Immigration Act 2004
Tribunals and the HRA 1998
• Section 6 of the HRA statutory tribunals are regarded as
public authorities and as such required to act in a way
which is compatible with the European Convention on
Human Rights.
• Article 6(1) has obvious procedural implications
• Section 3 requires tribunals to interpret primary and
secondary legislation in a way which is convention
compatible but a tribunal cannot issue a declaration of
incompatibility.
Procedural implications of the HRA
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Right of access to an impartial hearing in reasonable time;
Public pronouncement of reasoned judgment;
Right of parties to be personally present;
Compliance with principle of equality of arms e.g. right to
see opponents case;
• Rules of evidence must be fair.
Leggatt Report
• Clear separation between minister and authorities whose
decisions tested by tribunal
• Restructuring of tribunal network
• New training scheme - competence based approach
• Single route of appeal
• Promoting best practice with charter for users and
enhanced standards of service
Leggatt continued
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Civil justice reforms and case management approach
Procedures should be speedy, proportionate and cheap
No general recommendation for legal aid to be available
Council of tribunals to be retained but revamped as
Administrative Justice and Tribunals Council and this body
would oversee the new system
Tribunal Service under DCA
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Finance and Tax tribunals
General commissioners of Income Tx
Asylum and Immigration tribunal
Immigration Service Tribunal
Lands Tribunal
Pensions Appeal Tribunal
Social Security and Child Support Commissioners
Transport Tribunal
Pathogens Access Appeals Commission
Proscribed Organisations Appeals Commission
Special Immigration Appeals Commission (SIAC)
Six Additional Tribunals under Tribunal
Service
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Employment tribunal service
Employment appeal tribunal
Special Educational Needs and Disability Tribunal
Appeals Service
Mental Health Review Tribunal
Criminal Injuries Compensation Appeals Panel
Not in new service
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Agricultural land tribunal
Asylum support adjudicators
Care Standards tribunal
Family health services appeals authority
National Parking adjudication service
Parking and traffic appeals service
Residential property tribunal service
Valuation tribunal service
Latest trends in tribunals
• Single system compare to Conseil D’Etat.
• Emphasis on good administration as with the
Parliamentary Ombudsman.
• HRA sets procedural norms.
• Establishing lines of communication between tribunals
and the relevant department, link severed to achieve
independence.
• Proportionate dispute resolution (PDR) tailored solutions
rather than expectation of oral hearing
Tribunals and Inquiries compared
• Tribunals mainly adjudicative - court substitutes hear
appeals against decisions;
• Also finding facts and applying legal rules derived from
statutes and regulations.
• Inquiries are usually fact finding and not necessarily
statutory
• Inquiries can be part of the original decision-making
process or set up after an objections has been lodged
against the initial government decision. For many types of
inquiry (e.g., land and planning matters) an inspector also
hears evidence and finds facts
Citizen’s charter and dealing with complaints
• ‘The charter adopted a ‘stakeholder’ approach to
complaining and suggested a new function for complaints:
the so called ‘gift’ function of informing managers of
defects in the service.’ (Harlow and Rawlings)
• All public services must be seen to be delivering their
services on the basis of fair and equitable treatment of all
their users. The same principle applies to the handling of
complaints (Putting things right).
• The Charter has changed the culture and had a lasting
impact.
Citizens Charter
• Wide application throughout public sector
• linked to ‘New Public Management’ setting standards
and targets
• Also linked to contracting between public and private
bodies
• Publication of target/greater transparency
• Citizen treated as customer
• Joined up government
• Is this really a remedy at all?
• Re-badged charters as Service First/Chartermark
Conclusion
• New unified tribunal service is highly significant
• More independent than previously
• Note in particular the procedure for appointment of
tribunal judges
• Wider range of procedures
• Human rights consideration require oral hearing plus
strong safeguards
• Case management approach gives rise to stronger
impetus to settle.
The Grievance chain
• Idea that remedies are available at different levels
• Strictly informal e.g. citizen’s advice bureau, law centres,
and citizen’s charter.
• More formal but not strictly legal e.g. ombudsman with
investigatory powers but can only recommend remedies
• Tribunals as administrative remedies – large case load,
diverts issues from courts and can give legal remedies
e.g. compensation, unfair dismissal.
• Courts e.g. judicial review : formal remedy of last resort.
Typically empowered to quash decisions of public bodies.
Further reading
• P Cane (2009) Administrative Tribunals and Adjudication, (Oxford:
Hart Publishing)
• M Elliott Beatson, Mathews and Elliott’s Administrative Law, (Oxford
UP, 2011).
• C Harlow and R Rawlings Law and Administration, chapter 10
• Richardson, G. and Genn, H. (2007) ‘Tribunals in Transition:
Resolution or Adjudication?’ PL 116.
• Thomas, R. (2005) ‘Evaluating tribunal adjudication: administrative
justice and asylum appeals’ 25 Legal Studies 462.
Question and answer
• Define the concept of parliamentary sovereignty.
• This core concept of the UK constitution means that
Parliament is the supreme law-making body empowered
to pass or repeal any law. In consequence, it appears that
Parliament cannot bind its successors (entrench laws) as
the most recent act will prevail over any earlier act. Also, it
means that the courts can interpret legislation but cannot
question the validity of statute law.
• However, sovereignty has been qualified by EU
membership ECA 1972 and HRA 1998 as the doctrine of
implied repeal does not apply to these statutes.