Question 1

Magnus has paid too much income tax over the last ten years. Her Majesty’s Revenue and Customs accept that he has been overcharged, but have not refunded his money. HMRC do not answer his letters, e mails or telephone calls. Magnus has heard of the Parliamentary Ombudsman (formerly known as the Parliamentary Commissioner for Administration) and wonders if he can help.

Advise Magnus.

Answer guidance

The Parliamentary Ombudsman is a fully independent body with its own staff and considerable legal powers to investigate under the Parliamentary Commissioner Act 1967. Magnus must make his complaint in writing and it must be made within 12 months. There is no fee and he does not need a lawyer, which makes it cheaper than using the courts. Magnus could, of course, sue the HMRC in court, but under section 5(2) of the Parliamentary Commissioner Act 1967 he is not expected to do so if the legal remedy is cumbersome, expensive and slow.

The major drawback is the so-called “MP filter”. First the complaint must be made to the complainant's constituency MP, who then refers it to the Parliamentary Ombudsman. It is possible that the MP might be able to resolve the complaint simply by writing to the HMRC, but if this fails the MP refers it to the Parliamentary Ombudsman. If the constituency MP does not wish to help, it is possible to ask another MP. Complaints to the Ombudsman about taxation are common.

Under s. 5(1) of the PCA 1967, the complainant must claim 'to have sustained injustice in consequence of maladministration '. 'Maladministration' is not defined in the Act, but the sponsoring Minister, Richard Crossman, gave some examples during the passage of the Bill: 'bias, neglect, inattention , delay, incompetence, ineptitude, perversity , turpitude, arbitrariness and so on', which is sometimes known as 'the Crossman Catalogue'. This would seem to cover Magnus’s case.

The Parliamentary Ombudsman is not a court and so cannot award damages. It can make recommendations, which can include the paying of compensation or in this case a refund. If a government department declines to accept the recommendations, then the Ombudsman can make another report and involve the Parliamentary Select Committee on Public Administration, to which it reports. The courts would also put pressure on the HMRC to pay: R (Equitable Members Action Group) v HM Treasury [2009] EWHC 2495. Courts rarely disagree with the findings of the Ombudsman as they accept that his task is different from that of the court. He is looking for maladministration, which is not the same as unlawfulness: R (Rapp) v Parliamentary Health Services Ombudsman [2015] EWHC 1344.

The “Ombudsmen” looks like a good remedy for Magnus, although having to ask an MP to authorise his complaint seems a cumbersome and unnecessary step.

Question 2

In what ways is an administrative tribunal similar to and different from a court of law? Why might decisions be allocated to a tribunal rather than a court of law?

Answer guidance

A tribunal, like a court can be defined as an independent, impartial body with power to make decisions binding on the parties by the application of legal rules to facts established by evidence. The distinction between courts and tribunals lies in terminology rather than substance. The term 'court' is generally used where the body has a general jurisdiction over a wide range of cases, whereas 'tribunal' refers to body with a limited, often very specific jurisdiction.

Under section 1 of the Tribunals, Courts and Enforcement Act 2007, tribunals are given the same guarantee of judicial independence as the courts. A judge, the Senior President of Tribunals, is in charge. Most tribunals are grouped together under this Act, but some remain outside this system, such as the Employment Tribunal and the Investigatory Powers Tribunal.

Courts uses judges, who try cases in many different areas of law, but tribunals are often staffed by persons with specialist expertise, usually with a legally qualified chair. The specialist knowledge can be an advantage.

Tribunals are designed to be cheaper to run and use than courts. The procedures of tribunals are designed to be as simple, straightforward and informal as possible, so that many applicants will represent themselves, with maybe only an adviser from, say, the Citizens' Advice Bureau or a trade union, to help them. Unfortunately for some applicants to a tribunal, they may find themselves, unrepresented, facing a lawyer appearing for the other side, particularly now that legal aid is so restricted. In that respect that makes tribunals little different from courts. Both now supply written reasons for their decisions. To try to redress this imbalance, tribunals take a more active part in the proceedings than the traditional judge, who remains neutral. The procedure may be a little more inquisitorial than the adversarial courts. If both parties and the tribunal itself agree the case may be decided on written submissions rather than an oral hearing. Tribunals also offer mediation, as an alternative to a hearing.

Nowadays, tribunals are better organised than they once were under the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007). A new, unified tribunal system was created, run as an executive agency of the Ministry of Justice, which clearly signals that these are independent judicial bodies and not just the complaints departments of government ministries. There are two main tribunals, the First-tier Tribunal and an appeal to the Upper Tribunal. There is also a proper appeal mechanism on point of law with the permission of the Court of Appeal.

The senior courts regard tribunals as a proper part of the judicial system. Even the Upper Tribunal can be judicially reviewed by the High Court: R (Cart) v Upper Tribunal [2012] 1 AC 663. The courts will not accept Acts of Parliament which attempt to prevent judicial review of a tribunal decision by the courts. A tribunal has no power to make an ultra vires decision: Anisminic v Foreign Compensation Commission [1969] 2 AC 147 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. Fees to access the tribunal should not be too high or the whole point of tribunals is lost: R (Unison) v Lord Chancellor [2017] UKSC 51.

So, nowadays tribunals look just as “judicial” as the courts, except that tribunals have expert, specialist “judges” and are cheaper and easier to use than the courts.

Question 3

Consider whether there is sufficient control over the use of delegated legislation.

Answer guidance

Most modern Acts of Parliament only give an outline or framework, with the detail to be filled in later by delegated legislation. A “Parent” or “Enabling” Act grants power to a person or body to make laws. For example, government ministers have the power to make statutory instruments and local authorities may make byelaws. There has been a huge growth in the volume of this delegated legislation in the twentieth and twenty first centuries.

Its use has many advantages for Parliament. It saves time and the process is quicker than an Act of Parliament. In an emergency, when an urgent change in the law is required, delegated legislation can be used. It can deal with detailed, technical matters more easily than an Act and it is more flexible in that it is easier to repeal or amend.

The main criticism is that there is too much delegated legislation and it is undemocratic. Important matters are often dealt with by delegated legislation, such as the implementation of European Union Law under the European Communities Act 1972, s. 2(2). Retrospective delegated legislation is not unknown and sometimes there is the power to amend or repeal Acts of Parliament by delegated legislation e.g. Human Rights Act 1998, s. 10. A controversial feature of the European Union (Withdrawal) Act 2018, is the wide powers granted to ministers to change the existing law, including Acts of Parliament, by delegated legislation, as the UK gradually removes EU law. Similar so-called, ‘Henry VIII’ clauses, are contained in the European Union (Withdrawal Agreement) Act 2020.

There is some democratic control and accountability. Consultation of interested groups is normal and might be required by the enabling Act. Parliament also debates the enabling Act and could decline to grant excessive legislative powers to a minister.

Statutory Instruments must be approved by Parliament. There are two basic procedures. Under the Affirmative Resolution procedure, Parliament must vote for the SI. This is the procedure adopted under the European Union (Withdrawal) Act 2018. Each House of Parliament must approve the regulation, unless the matter is urgent. Whereas, under the Negative Resolution procedure the SI becomes law unless Parliament votes against it. However, Parliament has little time to consider delegated legislation.

Parliament also has a Joint Committee (of the Lords and Commons) on Statutory Instruments, which can draw attention to technical problems with delegated legislation, such as whether there was a power in the enabling Act to make the instrument or whether it is clearly worded, not the wisdom or otherwise of the statutory instrument. However, this committee can only look at a tiny proportion of the vast amount of delegated legislation. The House of Lords also has the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee. The former can raise concerns to Parliament if it considers the use of delegated legislation inappropriate or if it is of political or legal concern, and the latter draws attention to enabling Acts that grant excessive power to ministers. Whether Parliament has any time to deal with these concerns is another matter.

Local authority byelaws must be approved by central government and indeed councils can only enact byelaws from an approved list.

In some Acts of Parliament, delegated legislation is made in the form of Orders in Council. Under the royal prerogative, the Queen, in reality the government, may also make Orders in Council. These do not have to be approved by Parliament, but can be controlled by the courts, by means of judicial review: Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374.

The worst excesses of delegated legislation can be challenged in court by judicial review. Procedural ultra vires, such as a failure to consult as required by the Parent Act, is likely to be the most successful ground: Agricultural, Horticultural and Forestry Training Board v. Aylesbury Mushrooms [1972] 1 WLR 190.

Straightforward illegality, where there was no power in the Parent Act to make the law, was rare (A-G. v. Wiltshire United Dairies (1921) 37 TLR 884), but is now more common as the amount of delegated legislation grows. The courts have even struck down delegated legislation affirmatively approved by Parliament: R (Public Law Project) v Lord Chancellor [2016] UKSC 39. It is, however, still unusual for a piece of delegated legislation to be struck down for Irrationality (Unreasonableness): Kruse v. Johnson [1898] 2 QB 91. Breach of Human Rights) under the Human Rights Act 1998, is a newer ground, which has occasionally caused the court to quash delegated legislation: R (Javed) v. Home Secretary [2001] 3 WLR 323.

Delegated legislation is necessary in a modern society, but it does increase the uncontrolled power of the government.