Chapter 14 Answers to quick test questions

TRIBUNALS

1. Why do we have tribunals? What advantages do they have over the ordinary courts?

Many of the issues resolved by tribunals, while important to the individuals concerned, involve relatively small sums of money. As going to court can be expensive, an alternative process is needed to ensure that decisions can be challenged. Tribunals are one of those processes.

The advantages that tribunals have over the ordinary courts are cost, access, expertise, and speed.

• Cost: Access to tribunals is free and – at least in theory – there is less need for legal representation.
• Access: Tribunals sit in centres across the country. By contrast, applications for judicial review are heard by the High Court, which is based in London with regional centres in Manchester, Birmingham, Cardiff and Leeds.
• Expertise: Tribunals specialise in particular areas of law so are able to accumulate expertise in those areas, which tend to be quite complex – for example tax, immigration, and social security. By contrast, the courts are ‘generalist’, with the administrative court required to deal with judicial review applications involving any area of public law. In addition, tribunal judges can have specialist expertise of the issues involved, for example accountants sitting in tax cases.
• Speed: As tribunals are specialist they can focus on the core issues that arise in a particular case, perhaps more easily than a generalist court may be able to. Tribunals are also able to follow quicker and simpler procedures, meaning that they can deal with many more cases than the courts.

2. What key reforms did the Tribunals, Courts and Enforcement Act 2007 introduce? Are these reforms an improvement on the previous structures?

Tribunals had developed in an ad hoc fashion, particularly when they proliferated with the development of the welfare state after the Second World War. There was no form of central organisation to tribunals, with government departments creating and then administrating them as and when they felt it necessary. The Leggatt Report found that there were over seventy different tribunals which together heard nearly a million cases a year, but only twenty of those tribunals heard more than fifty cases a year. The Leggatt Report also found that the quality of decision making by different tribunals varied from ‘excellent to inadequate’.¹

Consequently, the Tribunals, Courts and Enforcement Act 2007 accepted many of the Leggatt Report’s examples and made several improvements to the previous structure. In particular, the 2007 Act introduced a ‘two-tier’ structure. The First-tier Tribunal is formed of seven chambers, within which different specialised tribunals sit, and it usually hears first instance cases. Appeals on a point of law can be made to the Upper Tribunal with the possibility of onward appeal to the Court of Appeal and, exceptionally, the Supreme Court.

This is a significant improvement on the previous structure as it allows for resources to be deployed more effectively, and the structure is flexible to allow each chamber to adopt its own procedures, tailored to the areas of law it deals with. The Act also removed from government departments any remaining responsibility for appointing tribunal judges. They are now appointed along similar lines to the judiciary by the Judicial Appointments Commission.

3. ‘The courts have taken the principle of proportionate dispute resolution very seriously when considering the relationship between the courts and tribunals.’

To what extent do you agree?

Following the Tribunals, Courts and Enforcement Act 2007, a feature of tribunals is their relationship with the courts. Under section 13, an appeal on any point of law can be made from the Upper Tribunal to the Court of Appeal. In R (Jones) v First-tier Tribunal (Social Entitlement Chamber),² the Supreme Court made clear that the court should be reluctant to intervene in decisions made by tribunals given their (the tribunals’) expertise within the areas of law in which they act. By deferring to tribunals in this way, the courts are making clear that it is for the Upper Tribunal to develop the necessary precedents and guidance for the First-tier Tribunal to apply at first instance. The rationale for the tribunal system would be undermined if the parties needed to go to the courts in order to reach a final decision on the law. This is one way in which the tribunal system gives effect to the principle of ‘proportionate dispute resolution’.

The principle of proportionate dispute resolution can also be seen in the Upper Tribunal’s judicial review jurisdiction. This ensures that the expertise of the tribunal system is available for applications for judicial review, and it has had a significant effect on the number of judicial review applications involving immigration reaching the High Court.

OMBUDSMEN

1. What is the role of the Parliamentary Ombudsman?

The role of the Parliamentary Ombudsman is to investigate complaints of maladministration made against central government departments. In England, the Parliamentary Ombudsman also acts as the Health Service Ombudsman and investigates complaints of maladministration made against the NHS.

2. What is meaning of maladministration?

Maladministration is not defined in legislation but Richard Crossman, who introduced into Parliament the legislation that created the Parliamentary Ombudsman, stated that maladministration included ‘neglect, inattention, delay, incompetence, ineptitude, perversity, arbitrariness and so on’³. This approach was updated in 1993, when the Parliamentary Ombudsman considered that maladministration included the following;

• rudeness (though this is a matter of degree);
• unwillingness to treat the complainant as a person with rights;
• refusal to answer reasonable questions;
• neglecting to inform a complainant on request of his or her rights or entitlement;
• knowingly giving advice which is misleading or inadequate;
• ignoring valid advice or overruling considerations which would produce an uncomfortable result for the overruler;
• offering no redress or manifestly disproportionate redress;
• showing bias, whether because of colour, sex, or any other grounds;
• omission to notify those who thereby lose a right of appeal;
• refusal to informal adequately of the right of appeal; and
• faulty procedures⁴.

This is clearly more detailed than the approach of Richard Crossman, but is still quite negative in nature. In 2009, the Parliamentary Ombudsman considered maladministration in a different manner. She released the Principles of Good Administration which, if complied with, should mean that a public body is unlikely to have caused maladministration. The principles are as follows:

• Getting it right;
• Being customer focused;
• Being open and accurate;
• Acting fairly and proportionately;
• Putting things right;
• Seeking continuous improvement⁵.

3. Explain the relationship between the Parliamentary Ombudsman and Parliament. In what way can this relationship be improved?

Generally, the Ombudsman occupies an interesting position in the constitution: it stands between the executive and Parliament and appears to fulfil a judicial function through dealing with disputes that citizens have with the government, even though it is not part of the judiciary. The traditional view is that the Ombudsman is a ‘servant of the House’, as it was created to investigate government departments in ways that MPs lack the resources and expertise to do.

This is reflected in several features of the Ombudsman. Firstly, by presenting an Annual Report to Parliament. Secondly, should the recommendations of the Ombudsman not be accepted by the government, the Ombudsman can lay a special report drawing the attention of Parliament to this issue. The Public Administration and Constitutional Affairs Select Committee may then conduct its own investigation to increase the political pressure on the government’s findings.

The most controversial link between Parliament and the Ombudsman is the ‘MP filter’. This is the requirement that a complaint made to the Ombudsman must be referred to them by an MP. The aim behind the MP filter was to maintain the traditional approach to ministerial accountability, with the government being accountable to the electorate through their MP and Parliament. However, the MP filter has been increasingly criticised in recent years, with several proposals being made to abolish it. Arguably, the problem is not necessarily the MP filter itself, but that it is currently the only way a complaint can be made to the Ombudsman. Arguably, it could be retained, but the Ombudsman should be able to accept complaints directly and encourage as many complaints as possible.

4. ‘As the recommendations of the ombudsman are not legally binding, government departments are free to ignore any recommendation they like without any consequences.’

Do you agree?

While it is correct that the recommendations of the Parliamentary Ombudsman are not legally binding, politically they carry significant weight. Figures indicate that as many as 99% of the Ombudsman’s recommendations are accepted. This reflects the notion that the Ombudsman is meant to be in a supportive relationship with the public bodies they investigate, as it is in the interests of all to ensure that the maladministration complained of does not reoccur.

However, this means that 1% of recommendations are not followed by public bodies. In these instances, the Parliamentary Ombudsman can lay a special report before Parliament. The aim of this is to bring the matter to the attention of Parliament, who can then place political pressure on the government to follow the Ombudsman’s recommendation. To date, there have only been seven reports issued since 1967 but five of these have been published since 2005. This may indicate that this is an increasing problem. In addition, the Public Administration Committee may hold an inquiry into the issue, which means that the relevant government minister must account to Parliament as to why they have chosen not to follow the recommendations of the Ombudsman. This means that the issue then becomes one of ministerial accountability.

PUBLIC INQUIRIES

1. Why are public inquiries held?

Public inquiries are held to investigate issues that have become of intense public concern. This can include a major political scandal, or when there has been serious wrongdoing or failure within a public authority. The public inquiry will aim to achieve some of the following functions:

• establishing the facts, especially where these are disputed or the chain of causation is unclear;
• determining accountability;
• learning lessons and making recommendations to prevent recurrence, often by improving the constitution and powers of regulatory bodies;
• allaying public disquiet and restoring public confidence;
• catharsis: an opportunity for reconciliation between those affected by an event and those whose action caused it or whose inaction failed to prevent it;
• developing public policy.

For example, the Leveson Inquiry investigated the practice and ethics of the press and the relationship between the media, the police, and politicians. It aimed to establish the facts, allay public disquiet about the conduct of the media, and develop policy by proposing a new regulatory system for the press.

It must also be stated that an inquiry can serve an ulterior purpose. In response to a scandal, the government can be tempted to hold public inquiry to make it appear as though it has responded to the scandal and taken it seriously. However, the government will refuse to do anything more until the inquiry has published its report. Politically, this can give the government breathing space for the short term, although ultimately any recommendations made by the inquiry will need to be responded to and this might be controversial.

2. Lord Morris, a former Attorney General, stated that ‘when a judge enters the market place of public affairs outside his court and thrown coconuts, he is likely to have the coconuts thrown back at him. If one values the standing of the judiciary, the less they are used [to chair public inquiries] the better it will be’.⁶

Do you agree?

Judges are often invited to chair inquiries because they have the skills and expertise necessary to decide factual disputes based on the evidence the inquiry has received. The independence of the judiciary means that selecting a judge is a clear indication that the inquiry is independent. Furthermore, any legal issues that inquiry raises will be able to be dealt with.

However, judges may not have the necessary experience within public bodies to make appropriate recommendations. In such circumstances, a non-judicial chair could be more appropriate. For example, the Butler Inquiry considered the use of intelligence before the Iraq War and this inquiry raised sensitive issues of national security and the use of intelligence information. Consequently, it was chaired by a former Cabinet Secretary, a senior civil servant, a former Chief of the Defence Staff, and two MPs, who all had experience in dealing with intelligence matters.

Arguably, some inquiries are too political and might be inappropriate to be chaired by a judge. For example, the Hutton Inquiry involved matters of high political controversy, and Lord Hutton’s report was considered by some to be a ‘whitewash’ in favour of the government. This led to some questioning as to whether ‘a Law Lord’s “borrowed authority” should have been lent to such an inquiry . . . When its subject-matter is considered, the Hutton Inquiry may represent the classic instance of why we should question the public’s ready acceptance of asking a senior judge to hold a public inquiry’.⁷

Under the Inquiries Act 2005, section 10, before a judge can be appointed to chair an inquiry, the Lord Chief Justice (in their capacity as Head of the Judiciary) needs to be consulted.

Overall, whether a judge is best to chair a public inquiry depends on its subject matter.

3. Should inquiries be held in public or private?

If a public inquiry is held under the royal prerogative, it could sit entirely in private. However, if the inquiry is established under the Inquiries Act 2005 the position is more complex. Under section 18, the chair of an inquiry is required to ‘take such steps as he considers reasonable’ to ensure that members of the public and the media can attend the inquiry and ‘see and hear a simultaneous transmission’ of proceedings. A ‘simultaneous transmission’ does not necessarily mean one that is televised. Although the Leveson Inquiry was televised live, the Hutton Inquiry allowed some public access, but also a live link to another room with greater capacity.

Under section 19, public access can be restricted if it is necessary for the inquiry to fulfil its terms of reference or is in the public interest. This requires the chair to balance several considerations. The overriding aim of the inquiry is to allay public concern but this is balanced against the risk of death or injury, damage to national security or the economic interests of the UK, or damage caused by disclosing commercially sensitive information.

Overall, it seems the presumption is that inquiries should be held in public unless there are good reasons for not doing so. If necessary, it is also possible for part of an inquiry to be held in private with the remainder being held in public.

¹ Sir Andrew Leggatt, ‘Tribunals for Users: One System, One Service’ (2001) Overview, para 2.

² [2013] UKSC 19.

³ HC Deb, 18 October 1966, vol 734, col 51

⁴ Parliamentary Commissioner for Administration, Annual Report 1993 (1993-94, HC 290) para 7

⁵ Parliamentary and Health Service Ombudsman, ‘Principles of Good Administration’ (Parliamentary and Health Service Ombudsman 2009), https://www.ombudsman.org.uk/sites/default/files/page/0188-Principles-of-Good-Administration-bookletweb.pdf

⁶ HL Deb 21 May 2003, vol 648 col 883.

⁷ Louis Bloom-Cooper and Colin Munro, ‘The Hutton Inquiry’ [2004] Public Law 472, 476.