P ART 3: J UDICIAL R EVIEW , U LTRA V IRES AND N ATURAL
15.2 The Parliamentary Commissioner for
The Parliamentary Commissioner is, as the name suggests, accountable to Parliament. In exercising his statutory function, the Parliamentary Commissioner reinforces the capacity of Parliament to deal with complaints against the executive. The Parliamentary Commissioner reports to Parliament through a series of annual reports, including reports of particular investigations and matters of concern, and his activities come under the scrutiny of the Select Committee on the Parliamentary Commissioner for Administration. Complaints to the Parliamentary Commissioner are required to be referred by a member of Parliament and it is likely therefore that a complainant will raise their concerns with their own constituency MP. This is particularly so in the light of the con- vention that MP’s do not involve themselves in the business of other constituen- cies. The so-called ‘MP filter’ is a unique feature of the UK’s ombudsman system. In some respects, it can be likened to the leave requirement in judicial review proceedings discussed in Chapter 13 since it represents an opportunity to identify at an early stage those grievances which do not fall within the remit of the Parliamentary Commissioner. In the event that an MP is unsure as to whether the subject matter of the complaint is an appropriate matter for the attention of the Parliamentary Commissioner, the complaint is likely to be referred so that the Parliamentary Commissioner will ultimately determine the jurisdiction issue. The need for a complaint to be referred by a member of Parliament serves to reinforce the MP’s role as the elected representative deal- ing with complaints against the executive. This point was stressed by the gov- ernment of the day in the White Paper (Cmnd 2767) which preceded the enactment of the 1967 Statute:
In Britain Parliament is the place for ventilating the grievances of the citizen ... It is one of the functions of the elected member of Parliament to try to secure that his constituents do not suffer injustice at the hands of Government ... Members are continually taking up constituents complaints ... We do not want to create any new institution which would erode the func- tion of members of Parliament in this respect... We shall give members of Parliament a better instrument which they can use to protect the citizen, namely, the services of a Parliamentary Commissioner for Administration.
15.2.1 Government departments and authorities subject to investigation
The Act of 1967 contains a schedule which includes all of those government departments and authorities whose administrative functions may be investi- gated on a complaint to the Parliamentary Commissioner. The list may be amended but may not include any body or authority whose functions are not exercised on behalf of the Crown. By way of an example, the Post Office was
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removed from the list when it was created a public corporation in 1969. The Parliamentary Commissioner is also empowered to investigate action taken by or on behalf of any of the bodies or authorities listed in the schedule. In general terms, the bodies included in the list are the government departments headed by their respective ministers, and certain other bodies which are related to those departments, such as the Inland Revenue Commissioners. References to particu- lar departments include their respective ministers, whose own contribution to any maladministration can be investigated. One of the most famous investiga- tions carried out by the Parliamentary Commissioner arose from many com- plaints from individuals who considered that the government had contributed to their loss when the holiday firm Court Line Ltd failed in 1974. The essence of the complaints was that holiday-makers who had booked with Court Line were given the impression by House of Commons statements from the Secretary of State for Industry two months before the failure that the firm was financially viable. In a special report, the Parliamentary Commissioner concluded that a misleading impression had been given by the Secretary of State. The conclusion was rejected by the government which refused to accept liability for any com- pensation for those who had suffered loss.
There have been recent extensions to the list of agencies subject to investiga- tion. Following a report by the Select Committee and discussions with the gov- ernment, a number of non-departmental public bodies were brought within the Parliamentary Commissioner’s jurisdiction. The criteria for inclusion refer to executive or administrative functions directly affecting individuals or compa- nies which would have been included if undertaken by a government depart- ment as well as subjection to some degree of ministerial accountability to Parliament and a dependency on government finance and policy. While the Monopolies and Mergers Commission is excluded as an advisory body, the Criminal Injuries Compensation Board is treated as being a tribunal and excluded also. Bodies that are added to the list include the Equal Opportunities Commission, the Commission for Racial Equality and the Horserace Betting Levy Board.
15.2.2 Matters excluded from investigation
The Act of 1967 expressly excludes certain matters from investigation by the Parliamentary Commissioner. The areas of exclusion are:
(1) foreign relations;
(2) action taken overseas;
(3) action affecting the administration of government in overseas territories such as colonies;
(4) action taken to extradite individuals by virtue of extradition treaties and to extradite fugitive offenders;
(5) investigation of crimes;
(6) proceedings before any court of law, international court or tribunal or disci- plinary body in the armed forces;
(7) action taken in connection with the prerogative of mercy;
(8) the health service; see the Health Service Commissioners, whose functions are dealt with later in this chapter;
(9) commercial and contractual transactions;
(10) the grant of honours, awards, privileges and charters; and (11) personnel matters in the civil service and armed services.
15.2.3 Complaints
The Act of 1967 prohibits any complaint by local authorities, public service bod- ies, nationalised corporations, bodies whose membership is appointed by the Crown, a minister or a department and bodies funded from monies provided by Parliament. Beyond these categories a complaint can be made by an individual or body which may or may not be incorporated. Consequently, a complaint may be made by a company or an unincorporated group of individuals such as a res- idents’ association. In the more common case where the complaint is that an individual has suffered injustice in consequence of maladministration, that indi- vidual must complain personally as an ‘aggrieved’ person to the MP although there are exceptions to this requirement where, for example, an agent is used if a person is unable to act for himself, or where that person has died and the com- plaint is pursued through a personal representative. Any complainant is required to have been in residence in the UK or at least ‘present’ in the country when the action subject to the complaint occurred. The complaint to an MP must be made in writing not later than 12 months from the date when the com- plainant became aware or should have been aware of the issue which forms the basis of the complaint. In some exceptional cases, the Parliamentary Commissioner will allow a complaint to be considered beyond this time limit.
15.2.4 Alternative remedies
The Act of 1967 states that the Parliamentary Commissioner shall not undertake an investigation where the person aggrieved has or had a right of appeal, refer- ence or review to or before a tribunal established by statute or under preroga- tive powers, or where the person aggrieved has or had a remedy by way of proceedings in any court of law. However, there is an exception in these circum- stances, allowing the Parliamentary Commissioner to investigate where he is satisfied that it is not reasonable to expect the complainant to rely or to have relied on these remedies. This exception indicates that there is no clear division between the legal remedies and the non-legal ombudsman remedy. This lack of clarity is well illustrated in Congreve v Home Office (1976) referred to in Chapter 11, where the Court of Appeal decided that a threatened revocation of television
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licences prematurely renewed was ultra vires the Home Secretary’s powers under the Wireless Telegraphy Act 1949. This decision followed a successful complaint to the Parliamentary Commissioner who was critical of the Home Office for a number of reasons, including the fact that there was a failure to advise the parties adequately of the department’s attitude to premature renewal of licences. In many instances, the availability and suitability of the alternative remedy will be quite clear, eg where a decision of the Secretary of State for the Environment on a planning appeal can be challenged by way of statutory review within six weeks where the only issue is the legality of that decision. On the other hand, it may not be at all clear whether there is any matter of law or legality in issue so that the Parliamentary Commissioner might be more inclined to investigate the case. Despite the fact that the decision in R v Commissioner for Local Administration, ex p Croydon London Borough Council(1989) was concerned with the jurisdiction of the local commissioner, it nevertheless appears to be rel- evant to the present issue of alternative remedies and the Parliamentary Commissioner since there is a very close similarity between the relevant statu- tory provisions in the 1967 Act and the 1974 Local Government Act.
Accordingly, in deciding whether his jurisdiction to investigate has been excluded by the 1967 Act, it would seem that the Parliamentary Commissioner is merely required to satisfy himself that the courts are the appropriate forum for the investigation of the complaint. He is not required to take a view as to the likelihood of success if legal proceedings were initiated. In addition, since the Parliamentary Commissioner is under a continuing duty to consider whether to carry on with an investigation, it may be that he will decide to discontinue an investigation where it becomes apparent in the course of that investigation that the issues raised are more suited to resolution by the courts.
15.2.5 The investigation of administrative functions
An important element in the Parliamentary Commissioner’s powers is the limi- tation of investigations to administrative functions, as opposed to legislative (law-making) and judicial functions. While legislative functions such as the drafting and promotion of various types of statutory provision are outside the powers of the Parliamentary Commissioner because such functions are the con- cern of other Parliamentary processes, judicial functions are excluded because, as was seen in the previous section, there should be some remedy arising from those functions before a court or tribunal. In general, therefore, it can be said that if judicial functions are in issue, the individual’s legal rights can be enforced in proceedings before a court and any appropriate tribunal. This is well illustrated in a complaint by an ambulance driver against the Department of Health and Social Security in respect of his classification for natural insurance purposes (Case No C96/T: First Report of the Parliamentary Commissioner, 1973–74). The ambulance driver had been paying national insurance contribu- tions as a self-employed person but he considered that he should be classified as
an employed person, in which case the contributions are payable by the employer. When he applied to the Secretary of State for a decision, an inquiry was convened and the complainant was represented by a trade union official.
Subsequently, it was decided that the complainant had been a self employed person for national insurance purposes. The complainant and his representative then complained to the Department about alleged procedural irregularities at the inquiry and requested a new inquiry. At about the same time, the com- plainant’s MP wrote to the Secretary of State about the matter and, not being satisfied with the response, referred the case to the Parliamentary Commissioner. It was recognised at the outset that the decision of the Secretary of State on a question of classification is final, subject only to an appeal on a point of law to the Court of Session in Scotland or, in England, the High Court.
It was also recognised that the Secretary of State may review the decision if new facts are brought to his notice, or if he is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact. Although the existence of the appeal on a point of law was noted, it appears that the investi- gation proceeded because it was not considered reasonable that the com- plainant should have to rely on that remedy, possibly because the complaint appeared at the stage to raise questions relating to the Secretary of State’s power to review a decision. Following the investigation it was found that there had been criticism of the conduct of the inquiry but that the complainant and his representative recognised that the decision had been taken on the correct facts.
In conclusion, it was stated by the Parliamentary Commissioner:
... that the complaint is fundamentally a disagreement with the Secretary of State’s judicial decision, which is not a matter I am entitled to question; alter- natively it may constitute a contention that the Secretary of State did not cor- rectly apply the law to the facts, in which case the proper course open to the complainant was to exercise his right of appeal to the Court of Session.
15.2.6 Procedures for investigations
Whether a complaint should be investigated is entirely a matter of discretion for the Parliamentary Commissioner (Re Fletcher’s Application(1970)). If a complaint is to be investigated, the Parliamentary Commissioner proceeds in private and gives the head of any department or official concerned an opportunity to make comments. Relevant files are examined and officials interviewed. In some cases the complainant will be interviewed, which is what happened in the investiga- tion described in the previous section where the Parliamentary Commissioner was particularly concerned to ensure that, despite procedural irregularities at the inquiry, the correct facts had been reported to the Secretary of State for the purpose of his decision. The Parliamentary Commissioner has wide powers through which he can obtain his information. However, no person can be com- pelled to provide information which relates in any way to cabinet proceedings and a certificate from the Secretary to the Cabinet for this purpose is regarded
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as conclusive in relation to such information. Otherwise, the Parliamentary Commissioner cannot be met by any claim from the Crown that any documents or other information are privileged from disclosure. Where the Parliamentary Commissioner considers that he has been obstructed or in any way prevented from carrying out an investigation he can apply to the High Court which can deal with any such difficulty as a contempt of court. In the course of an investi- gation the Parliamentary Commissioner may permit a person concerned in that investigation to be legally represented while, in addition, an investigation may sometimes comprise a more formal hearing. Whatever the form of investigation adopted, the Parliamentary Commissioner has a power to require that evidence is given on oath. At the conclusion of an investigation, a report is sent to the MP who referred the complaint in the first place. The Parliamentary Commissioner may be prohibited from including information in a report on the ground that its disclosure would be contrary to the public interest as certified by a minister. In addition, the Parliamentary Commissioner is subject to the Official Secrets Acts.
15.2.7 Injustice in consequence of maladministration
The Act of 1967 allows the Parliamentary Commissioner to investigate com- plaints from those who allege that they have suffered injustice in consequence of maladministration where they consent to a reference of that complaint by the MP to the Parliamentary Commissioner. This central feature of the Act of 1967 is also a prime characteristic of the powers conferred on the other ombudsmen in the UK. The Act fails to define the meaning to these important terms, but the statute’s silence in this respect has in fact been welcomed by one former Parliamentary Commissioner on the basis that ‘to define maladministration would be difficult and unprofitable’. In practice, ‘injustice’ receives a wide inter- pretation which goes beyond some tangible loss or damage which may be suf- fered when there is an unjustified delay in adjusting a person’s liability for income tax, for example. Inconvenience, frustration and annoyance are all facets of injustice even though they may not be capable of being quantified. When the Act of 1967 was being debated in Parliament it was considered that ‘maladmin- istration’ would include ‘bias, neglect, inattention, delay, incompetence, inepti- tude, arbitrariness and so on’. In the early years of his office, the Parliamentary Commissioner tended to concentrate on what may be described as ‘procedural’
maladministration comprising things like delay, loss of documents or a failure to follow internal procedures in decision-making. With the encouragement of the Select Committee on the Parliamentary Commissioner, there has been a greater willingness to investigate complaints of ‘substantive’ maladministration where the decision itself is ‘bad’ in quality as where a successful objector to an administrative scheme is refused the costs he had incurred in that context. Sir Cecil Clothier, the former Parliamentary Commissioner, has suggested that the approach he encouraged whilst in office was to treat ‘any departure from what the average reasonable man would regard as fair, courteous, efficient and
prompt administration as maladministration’. However, it must be remembered that the Parliamentary Commissioner is in no sense an appeal body so that he is not able to substitute his own decision for that of the administrative agency sub- ject to investigation. In this respect, his role is rather like that of the Queen’s Bench Division of the High Court when it is exercising its supervisory jurisdic- tion in relation to judicial review proceedings as seen in Chapter 13.
Nevertheless, he is able to point out the areas where the decision-making exer- cise has departed from the standards of good administration. That the Parliamentary Commissioner is in no way an appeal body is emphasised by the Act of 1967 which states that the merits of a discretionary decision taken with- out maladministration cannot be questioned.
15.2.8 Maladministration and injustice in practice
To illustrate the operation of the Parliamentary Commissioner’s powers of investigation, one particular case has been chosen: Case No 213/Tfrom the First Report of the Parliamentary Commissioner, 1973–74. The complaint was made against the Property Services Agency of the Department of the Environment which was acting for the Post Office (not subject to investigation by the Parliamentary Commissioner in his powers under the Act of 1967) in the sale of a strip of land. The land in question was at the rear of the complainant’s garden and the gardens of her neighbours on either side. Despite instructions from the Post Office, the surveyor employed by the Agency failed to approach the com- plainant and accepted the view of one of the neighbours that the complainant’s husband would not want to buy the strip of land at the rear of his garden. As a result, the Post Office undertook to convey the strip of land passing at the rear of all three properties to the neighbour. When the complainant indicated that she and her husband would be interested in buying the strip of land at the rear of their garden, they were told by the Agency that there had been an exchange of contracts for the sale of the complete strip to the neighbour and that they had had many years in which to secure a purchase of the land in question.
Subsequently, the ground behind the complainant’s garden had been levelled, trees and bushes removed and old building timber deposited on the land. The complainant and her husband had incurred expense in erecting a new fence, planting new trees and bushes and seeking legal advice. On investigation it was found that the failure to give an opportunity to make an offer for the land, com- pounded by wrong information about an exchange of contracts together with a lack of sympathy and understanding in dealing with the complaints made amounted to maladministration. It was also found that injustice through dis- tress and expense had been caused as a result of the maladministration. The sta- tus quo could not be restored and the injustice removed but the Department agreed to made an ex gratia payment of £100 to cover the distress suffered and the expenses incurred.
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