1. What can the ombudsmen do that the courts cannot do?

• Remember the adversarial nature of a case before the courts.  What is the role of the judge, to investigate or to arbitrate? Contrast this with the powers of the ombudsmen to carry out investigations.  In a judicial proceeding, the court acts on information presented by a party in evidence; an ombudsman can find information that was not available to the complainant.
• Can you think of examples where an investigation might solve a problem, but an adversarial dispute would not? (Look on the website of the Parliamentary Ombudsman [www.ombudsman.org.uk] or the Local Government Ombudsmen [www.lgo.org.uk] for ideas.)  
• Think about the fact that citizens have no legal right to a remedy just because unlawful administrative conduct causes them harm.  They must fit their grievance into a recognised cause of action e.g. breach of contract, tort.  An Ombudsman, but not the courts, has the job of recommending compensation for unlawful action for which you have no legal right to compensation.
• What about where lawful administrative conduct causes you harm?  Since maladministration covers some administrative short-comings not caught by unlawfulness, think about whether this could allow you to get a remedy for harmful maladministration that was not unlawful.
• Think about the remedial flexibility of the Ombudsman.  The courts can normally only award damages for a tort, damages or specific performance where there has been a breach of contract, declarations and injunctions, and mandatory, prohibiting and quashing orders in judicial review.  What can the Ombudsman recommend? Could she get you an apology, an explanation of what really went wrong, an undertaking to review procedures to ensure the problem does not reoccur? 
• Ombudsmen can intervene in wider circumstances:
• over a longer period
• at low cost to the complainant
• informally.

2. What can the courts do that the ombudsmen cannot do?

• They can quash decisions.
• They can interfere with unlawful policy decisions (in the very constrained way discussed in Chapters 7 and 8)
• They can issue a legally binding order.

Exercise: consider the key cases at the end of chapter 6 (control of discretion). Would the applicants for judicial review in any of those cases have been better off going to an ombudsman?

3. Why is the Parliamentary Ombudsman parliamentary? Would it be better to have a central government ombudsman, independent of Parliament?

• Consider why the Swiss Ombudsmen model had to be modified in order to fit into the British constitutional order. 
• Think about the fundamental role of MPs in settling the grievances of their constituents.  The parliamentary nature of the Ombudsman’s role in the 1967 Act was an attempt to preserve this role. Was that a good idea?
• Can the Ombudsman, with her investigative techniques and resources, help MPs in their own role of holding the executive to account in Parliament?
• Can you think of any drawbacks in having a central government ombudsman independent of Parliament?
• Might it be undemocratic to have an unelected bureaucrat criticizing government behaviour?
• Would there be a chance the Ombudsman would be less independent of government if she were independent of Parliament, given the support the Public Administration Select Committee gives to the Ombudsman and the political pressure it can apply to get her recommendations implemented?

4. Can you explain the relationship among (i) maladministration, (ii) the lawfulness of a decision, and (iii) the merits of a decision?

• See the diagram in 13.5.2 (Figure 13.1) of the overlap between maladministration and unlawfulness. Is it accurate?
• A decision has merit if it is a good decision. It is sometimes suggested that neither maladministration nor lawfulness concern the merits of a decision (and the Ombudsmen are not supposed to ‘question the merits of a decision taken without maladministration’ (s 12(3) of the 1967 Act, s 34(3) of the 1974 Act). But the Wednesbury principles identify restricted respects in which a court may strike down an administrative decision on the ground that it was (extremely) bad. And in some ombudsmen’s reports it is hard to separate the finding of maladministration from a shortcoming in the merits of the decisions being administered (for example, in the ‘Debt of Honour’ report, there would have been no finding of maladministration if the merits of the bloodlink criterion had not created such resentment).
• As for maladministration and merits,
• Is it possible to have a bad decision (i.e. unmeritorious) which nonetheless was taken without maladministration?
• Think about Parliamentary Commissioner Act 1967 s 12(3) and Local Government Act 1974 s 34(3).
• Consider the judgment of Lord Denning MR in R v Local Commissioner for Administration, ex p Bradford Metropolitan City Council [1979] QB 287, at 312.
• As for maladministration and unlawfulness,
• Are there cases where there is lawful maladministration? Is delay unlawful? Consider R v LCA, ex p Liverpool City Council [2001] 1 All ER 462 (CA). 
• Are there cases where a decision is unlawful, and yet taken without maladministration?  Think about Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.  Is the test of Wednesbury unreasonableness one the Ombudsmen could apply when determining if a decision was tainted with maladministration?
• Are there cases where maladministration and lawfulness overlap?  Procedural impropriety is a ground of judicial review; could the same facts amount to maladministration?  If so, is there any reason why this conduct should not be identified as maladministration? Consider:
• S 5(2) Parliamentary Commissioner Act 1967;
• The interpretation of this restriction of the Parliamentary Ombudsman’s jurisdiction (R v LCA, ex p Liverpool City Council [2001] 1 All ER 462, CA) (concerning a similar restriction on the Local Government Ombudsman’s jurisdiction);
• The possible procedural and practical advantages of an Ombudsman investigation.
• Could there be a more clean-cut distinction between lack of merit and unlawfulness? Between lack of merit and maladministration?

5. If an action is unlawful, does that mean that it should not be identified as maladministration in a report of the Parliamentary Ombudsman?

• The Ombudsmen may not investigate maladministration that could have been remedied in judicial review, unless it is unreasonable to expect the complainant to pursue that remedy (s 5(2) of the 1967 Act, s 26(6) of the 1974 Act; see 13.5.3).
• But the courts have been reluctant to hold that the ombudsmen should refuse to investigate where judicial review is available. Is that the right approach?

6. Who should decide what constitutes maladministration – the ombudsmen, or the judges?

• Consider the comparative competence of the courts and the ombudsmen in determining what constitutes maladministration.  Is it arguable the ombudsmen, with their continuous exposure to the types of problems caused by shoddy administration, are in a better position to define what exactly the standard is?
• Think also about the role of the supervisory control of the courts over the ombudsmen.  If the courts are limited to a review jurisdiction, should they be defining what maladministration is, or simply ensuring the Ombudsmen do not consider as maladministration something outside the boundaries of a reasonable interpretation of the term?
• However, consider also Lord Denning MR in R v Local Commissioner for Administration, ex p Bradford Metropolitan City Council [1979] QB 287, at 311: ‘we have ourselves to interpret the word "maladministration." The construction of that word is beyond doubt a question of law.’ Was he right?
• Might a compromise be the best solution?  Should the judges defer (to some extent) to the ombudsmen in deciding what ‘maladministration’ means?

7. In Bradley v Work and Pensions Secretary [2008] EWCA Civ 36, the Court of Appeal endorsed ‘the principle of mutual respect’ (Sir John Chadwick [63])—that is, the constitutional principle of comity (see 1.5.3). Did the decision adhere to that principle?

• The Court of Appeal held that where the Parliamentary Ombudsman makes an adverse report against a department, a minister ‘must expect to have to justify, in the parliamentary arena, why his department has not put in hand arrangements to provide a remedy in respect of the citizen’s complaint’ [41]. Yet the Court struck down the minister’s decision not to provide a remedy, on the grounds that the decision was Wednesbury unreasonable.
• If it is a matter for Parliament (or more specifically, the House of Commons and its Public Administration Select Committee) to hold the Government to account for its response to the Parliamentary Ombudsman’s report, did the Court in Bradley interfere inappropriately in the role of Parliament? In the role of the Parliamentary Ombudsman? In the role of the government department? All of the above?
• If a department makes an unreasonable response to an Ombudsman’s report, there is a parliamentary process for holding it to account. Does that make the role that the Court crafted for itself in Bradley unnecessary? If it is an unnecessary role, does it involve a breach of comity toward the other institutions?

8. Why is the Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) subject to judicial review, if the Parliamentary Commissioner for Standards is not (R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 All ER 93 (CA))?

• Consider the position of the Parliamentary Commissioner for Standards.  He supports and is supervised by the Select Committee on Standards and Privileges.  So might Article 9 of the Bill of Rights 1689 (freedom of speech in Parliament) come into play, and protect his work from judicial review? Why doesn’t Article 9 protect the Parliamentary Ombudsman from judicial review?
• Consider also the function of the Parliamentary Commissioner for Standards.  He is concerned with the propriety of the workings and activities of those engaged within Parliament (rather than with the proper administration of public services outside Parliament).  Is it likely that such issues would be justiciable?
• Think about the need for comity between the institutions of the state: would comity be breached if the courts attempted to supervise the House of Commons’ control over the integrity of its own proceedings?

9. The European Ombudsman can investigate complaints of maladministration in general, with no requirement that the complainant has suffered injustice as a result. Would a similar regime be an improvement in the role of the UK ombudsmen?

• Do you think the meaning of ‘injustice’ is settled in English law? Would one way of getting rid of any confusion be to scrap the requirement?
• How would this change affect the nature of the Ombudsman investigations? If injustice was not required, anyone could complain to the Ombudsman about any bad administration.  Would this move the work of the ombudsman away from the resolution of individual complaints towards a more general role of supervision and promoting good administration?
• Is there merit in having a system to address individual grievances? Is the promotion of good administration through the solution of individual cases sufficient to improve standards?
• Does the injustice requirement minimise the risk of busybodies and vexatious complainants?
• Would the recommendations and remedies recommended by the ombudsmen carry the same weight, if they could not be tied to a particular grievance causing injustice?

10. The Finnish Parliamentary Ombudsman oversees the legality of actions of the armed forces and government ministers, and oversees the courts (See the website of the Finnish Parliamentary Ombudsman). The Swedish Parliamentary Ombudsmen also oversee courts, as they have done since 1809 (but not ministers; see the website of the Swedish Parliamentary Ombudsmen).  Both can initiate investigations without having received a complaint. Why is our Parliamentary Ombudsman more limited in scope?

• Consider first the role of Parliament in the English Constitution.  It involves a special responsibility for scrutiny of the Government that is every important even though it is not well defined (a concern for that role led to the invention of the MP filter in the English system). Would an extension of the remit of investigation of the Parliamentary Ombudsman duplicate, or interfere with, the role already played by Parliament?
• Secondly, consider the role of the judiciary.  Would the investigation of the courts by ombudsmen mean that a bureaucrat would have the last say on questions of law?  Would it be compatible with the independence of the judiciary?

Additional questions:

Would the ombudsman process be improved if ombudsmen could make legally enforceable orders?

• Is there a need in practice for an Ombudsman power to make such orders? Compliance is fairly high anyway.
• Might such a power actually damage the process? An appeal would be needed, and the decision process would become more adversarial.
• If the Ombudsmen were given the power to make legally enforceable orders, would it not be necessary to limit the remedies the Ombudsman can currently recommend?  Consider whether sacrificing this remedial flexibility is worth legally ensuring the findings of the Ombudsmen are complied with.
• Would a power to make legally enforceable orders turn the Ombudsman into another tribunal?
• Would such a power be likely to encourage or to discourage cooperation between the Ombudsmen and public authorities to improve administration? Might a reluctance to cooperate, or an unhealthy focus on avoiding an order rather than genuine improvements, result?

In an application for judicial review, should the court have the power to refer the applicant’s complaints to an ombudsman?

• In Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, Lord Woolf MR gave judgment for the Court of Appeal, saying that the court should adjourn or stay a claim for damages under the Human Rights Act 1998 in judicial review ‘until use has been made of alternative dispute resolution, whether by a reference to a mediator or an ombudsman or otherwise….’ ([81], point (iv)).
• What is the risk of such a practice applying to all applications for judicial review? A waste of time? Would it be slower overall if the court adjourns a claim in order to make use of ADR? 
• Also consider that, if the court is able to conduct the inquiry needed, it could just go ahead. If it is unable to do so, then it could simply dismiss the application for judicial review and the complainant could still go to an ombudsman at that point. Would this be more sensible overall?

Since the 1960s, ombudsmen have sprung up all over the common law world (e.g., they spread to state and local governments in the U.S. after the American Bar Association drew up a ‘Model Ombudsman Statute’ in 1971). But in Canada and the U.S., there are no ombudsmen at the federal level. Why not?

• Consider the type of complaints which ombudsmen deal with: individual injustice caused by bad administration. The state and provincial governments provide most of the services about which people might have complaints.
• An example of the various quasi-independent complaints investigators for particular agencies set up by the Canadian and U.S. federal governments is the Commission for Public Complaints Against the Royal Canadian Mounted Police (www.cpc-cpp.gc.ca)   

In the ‘Debt of Honour’ case, what would have happened if instead of waiting for the litigation to conclude, the Ombudsman had pursued the investigation at the same time? (R (British Civilian Internees - Far Eastern Region) v Secretary of State for Defence[2003] EWCA Civ 473)

• In light of the limitation on her jurisdiction in Parliamentary Commissioner Act 1967 s 5(2) where the complainant has a right of review or appeal before a tribunal or a remedy by way of court proceedings, is it possible the Ombudsman would have limited herself to considering those aspects of the complaint which amounted to lawful maladministration (i.e. for which Professor Hayward would not have any possible alternative remedy)?
• Could the Ombudsman have justified her investigation of the entire complaint by pointing to the proviso to this jurisdictional limit (it was not reasonable to expect Hayward to have resort to the courts)?
• Given the differences between unlawfulness and maladministration, would it have mattered, or caused any conflict, if the Ombudsman concluded there had been maladministration at the same time that the courts concluded the Government had not acted unlawfully?