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Institutions And Accountability Notes

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ADMIN LAW --- WEEK 1 --- INSTITUTIONS AND ACCOUNTABILITY Barber introduction This tutorial examines the location and control of power within government. Besides judicial review and appeals to the courts, there are a variety of mechanisms of control, both political and administrative. In constitutional theory, Ministerial accountability in Parliament takes centre stage, but it has become increasingly necessary to establish other means to restrain power and resolve conflicts between the individual and the State. An important adjunct to Parliament is the Parliamentary Commissioner or ombudsman. Outside of Parliament, there are hierarchical appeals within the administrative body which made a decision. Tribunals, inquiries and ombudsmen have been established to complement or substitute for the courts as mechanisms for independent or semi-independent review of administrative decisions. In addition, the government in recent years has set up radically different mechanisms of accountability. The most important of these has been the use of real or simulated markets, through the increasing use of contracted out functions and "internal markets" in the civil service (in the form of "Next Steps" agencies) and in the Health Service. Recent years have also seen the establishment of citizen's charters. This tutorial focuses on these alternatives to the courts, partly in their own right and partly in order to enable us to assess critically the role of the courts in later tutorials. CONTROL OF THE EXECUTIVE PARLIAMENT Craig:
? The definition of government has always been quite problematic, but these problems have been exacerbated by changes in the pattern of administration, for example: creation of executive agencies, contracting-out, privatisation, and the private financing of public projects make definition of 'government' ever more uncertain
? Foundations of executive power: the expansion of the franchise and increase in areas in which government accepted responsibility were intimately connected --- i.e. the government had to 'promise' more in order to collect votes. This, in turn, increased executive power in relation to the legislature, since government had to be able to deliver on the broadened range of promises that had led to its election. This led to: (i) centralisation of legislation initiative in the hands of the government; (ii) a tighter party system.
? Role of the legislature: we can see the role of the legislature in two different ways: (i) as a body that should primarily be a critic of the government, scrutinising their manoeuvres; (ii) as a key legislator. Craig notes that the two views are not antithetical, but that they judge parliament from two different angles.


Commons and scrutiny: Parliamentary control over the content of legislation is limited because the executive will control the House of Commons (HoC) through their majority. The value of parliament, therefore, must lie elsewhere --- i.e. in scrutiny. The most important instrument in terms of scrutiny are select committees. Select committees: since reform in 1979 (which extended the number of select committees along departmental lines) select committees have become more effective, but, Craig notes, their effectiveness has been limited in several key ways: o Inadequate resources o Limited role in affecting the governments framing of legislation: limited because they could look at issues which were likely to be legislated on in the future, but could not review legislation as it was in the process of being framed by the government. o Limited opportunity to review the findings of SCs on the floor of the House: between 1979 and 1988 only 25 per cent of the reports were debated. o Limited scrutiny of financial matters. Reform of SCs: Due to these limitations, it was more accurate to say that the SCs were impartial generators of advice and information, rather than a tool that enabled parliament to reassert control over the executive. In 2002 the Select Committee on Modernization and the Select Committee on Liaison recommended that: (i) nomination of members for departmental SCs be independent and entrusted to a Committee of Nomination; (ii) SCs should be accorded more resources; (ii) there should be a list of core tasks to be undertaken by SCs (i.e. to make them more uniformly effective). Recent developments in SCs: A number of these reform initiatives have been taken forward, in particular the elaboration of a list of core tasks to be undertaken by SCs. "Select committees are coming of age, and scrutiny of expenditure has become more effective. This has been facilitated by the systemization of SC's tasks, which may well expand toencompass post-legislative scrutiny." There is still room for improvement, however, and the SC on Liaison was, for example, critical of the government's failure to publish Bills in draft so that they could be considered by the relevant select committee (only 3 such Bills out of a total of 58 were published in the 2005-6 session. Conclusion: It might be argued that, in the absence of a major catalyst prompting realignment of power between executive and legislature, any change is bound to be marginal. Electoral reform that breaks the dominance of the two major parties might be such a catalyst, but it's unlikely that this will be introduced by one of the two major parties, especially after the referendum rejecting AV. Nevertheless, the fact that backbench MPs have, relatively speaking, been more willing recently to voice disapproval of government measures, and vote against them, is a positive development.

?????Ombudsmen were introduced in a particular context: As Bradley puts it, in the 1960s "administrative law was failing to give the individual effective protection" --- illustrated

by, for example, the Critchel Down affair. Sir Cecil Clothier also notes that Parliament's shortcomings were part of the impetus --- Parliament was focused on 'massive and detailed legislation' and could not devote its attention to "those problems of individuals which lack a national or international dimension."
?????There is something of a question over the ombudsman's role --- is his function to bolster the 'grievance-chasing' role of constituency MPs, securing redress in individual cases of maladministration? Or is he principally concerned with oversight of the administration at a general level?
o Seneviratne, Ombudsmen: Public Services and Administration: distinguishes between a 'control type' ombudsman --- created to regulate the way standards are created and understood by a public authority; concerned wit issues of supervision and accountability; focus on own-initiative investigations, in which complainants are informants; "the concern of these ombudsmen is the general protection of fundamental rights and individual liberties." --- and 'redress' ombudsmen
--- primary function is to offer and facilitate alternative dispute resolution; act as advocates for citizens; focus on citizen-initiative investigations. There is no need for these roles to conflict, but decisions need to be made about which should take precedence. o Ann Abraham (ombudsman until 2012) conceived the role as involving both these functions and noted that "handling large numbers of complaints [helps] drive improvements in the delivery of public services and to help inform public policy." Thus the functions can feed into each other --- the complaints can help inform where things are going wrong at a grass roots level. Ombudsmen and the courts:
?????The supervision of administrative functions by the courts has changed drastically since the 60s (when ombudsmen were introduced) and individuals now resort to judicial review in far greater numbers than they did. However, this growth does not render the ombudsmen otiose because the two mechanisms function differently: o Ombudsmen are able to investigate allegations --- of rudeness, delay etc. --- which may not disclose illegality for judicial review purposes. o Many of the factors which deter recourse to judicial review --- e.g. cost --- do not apply to recourse to the ombudsman. o Bradley: points out that there are procedural differences --- as against an adversarial court system, "the Ombudsman follows an administrative, inquisitorial and private process of investigation, with full access to developmental files, full power to question civil servants and the right to expect the cooperation of the department being investigated." o The Ombudsman is, unlike the courts, able to negotiate and secure systematic changes to administrative practice --- e.g. it can focus on the wider picture, rather than just the individual complaint.
?????Ombudsmen and tribunals: the use of tribunals has also grown in the decades following the introduction of ombudsmen. The two are complementary --- the PCA 1967 countenances the use of the ombudsman only where there is no possibility of appeal to a

tribunal, or where it would not be reasonable for the individual to exercise that right. E.g. the ombudsman may be used where the individual has no standing, or the issue is nonjusticiable.
?????The Ombudsman is generally (per s.5(2) PCA 1967) prohibited from investigating where a claimant has a right to go to court / tribunal to gain redress, but has some discretion where it would be unreasonable for a claimant to exercise such a remedy. This discretion is more readily allowed in relation to court proceedings --- the barriers to going to a tribunal tend to be lower.
?????The Law Commission [2010] Report No. 322 has recommended that the relationship between the courts and the tribunals be improved so, for example, cases could be more readily transferred between the two where appropriate --- e.g. where a court finds that the case would be better suited to an ombudsman. Bodies subject to investigation
? The range of bodies that can be investigated by the Preliminary Ombudsman (PA) is determined by s.4 and Sch. 2 of the 1967 Parliamentary Commissioner Act: (1) Subject to the provisions of this section and to the notes contained in Schedule 2 to this Act, this Act applies to the government departments, corporations and unincorporated bodies listed in that Schedule; and references in this Act to an authority to which this Act applies are references to any such corporation or body.
[Sch. 2 contains a long list of bodies which can be investigated by an ombudsman
--- if a new one needs to be added / removed, the s.4(2) procedure must be used. (2) Her Majesty may by Order in Council amend Schedule 2 to this Act by the alteration of any entry or note, the removal of any entry or note or the insertion of any additional entry or note. (3) An Order in Council may only insert an entry if it (a) relates to a government department / corporation whose functions are exercised on behalf of the Crown; OR (b) it relates to a corporation / body which is: (i) established by prerogative / Act of Parliament; (ii) at least half it's revenue comes from Parliament; (iii) wholly / partly constituted by appointment by the Crown / Government. (4) No entry shall be made in respect of a corporation whose sole activity is included in s.4(5). (5) Activities: (a) provision of education / training; (b) development of curricula / exams; (c) control of entry to a profession; (d) the investigation of complaints by members of the public. (6) No entry shall be made in respect of a corporation or body operating in an exclusively or predominantly commercial manner...
? The mechanism here is cumbersome (i.e. adding bodies by an Order in Council). In the Review of the Public Sector Ombudsman in England consultation paper (2000) the Cabinet Office recognized that a general definition might be preferable, but noted that some public bodies would be difficult to define. No general definition has been adopted and, due to such difficulties, the Welsh and Scottish ombudsman schemes have adopted similar procedures to that in the UK.

Matters subject to investigation
? PCA s.5 (1) "The Commissioner may investigate any action taken [by any authority to which the Act applies] being taken in the exercise of administrative functions of that department or authority in any case where:" (a) A written complaint is made by a member of the public to a member of the House of Commons --- the claim must relate to "injustice in consequence of maladministration in connection with the action so taken." (b) "The complaint is referred to the Commissioner, with the consent of the person who made it, by a member of that House with a request to conduct an investigation. (2) The commissioner shall not investigate in respect of the following matters (unless it would be unreasonable for the person concerned to exercise such a remedy). (a) Where the aggrieved person had / has the right of appeal to a tribunal. (b) Where the aggrieved person has / had a remedy by way of proceedings in a court of law.
? NB: s.5(1A)-(1C) sets out a special procedure relating to claims from victims of sexual /
violent offences --- i.e. there does not have to be maladministration in these cases.
? Maladministration: o s.5(1)(a) has the effect of limiting the ombudsman's powers to claims of injustice as a result of maladministration --- this seems to envisage a bright-line distinction between the administrative process (which can be investigated) and the substance / merits of policy decisions (which may not be investigated). This is, however, a hard line to draw. o NB: responsibility for policy decisions is ensured, at least in political theory, by Ministerial Responsibility in parliament. o Today the Ombudsman judges whether maladministration has occurred according to the Principles of Good Administration (2009) which sets out a number of process oriented criteria and includes non-justiciable matters (such as being helpful and polite). Key point is that in some ways the remit of the ombudsman to investigate is broader than that of the courts. o The term 'maladministration' is a broad and flexible one, however, two points can be made:Other ombudsmen (e.g. Welsh Ombudsman and Local Government Ombudsman) can intervene in relation to 'service failure' and 'failure to provide a service' (i.e. are not limited to maladministration).
? However flexible the concept may be, maladministration is not infinitely elastic, because it is ultimately open to the courts to set limits via judicial review. See the Balchin case below for more information.
? Injustice: the ombudsman may only investigate where injustice has occurred, but this is broad --- in Balchin (No 1) [1997] Sedley J. took a broad view, holding that it covers "not merely injury redressible in a court of law, but also the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss."

Excluded matters
? s.5(3) precludes the ombudsman investigating any matter described in Sch. 3. Most of these matters are uncontroversial (e.g. matters relating to international affairs, the commencement of civil / criminal proceedings, and the grant of honours). One controversial category, however, is Para. 9 of Sch. 3 which precludes the investigation of "action taken in matters relating to contractual or commercial transactions."
? Contractual matters: This is significant, not least due to the increasing use of contract as an instrument of government --- it seems odd, then, that the ombudsman cannot investigate issues such as the sudden removal of an invitation to tender without good reason etc.
? On behalf of: s.5(1) notes that the ombudsman can investigate actions taken 'on behalf of' public agencies --- they have used this to investigate complaints about public services which have been contracted out. There are concerns about how far 'on behalf of' can be stretched and the Cabinet Office Review has recommended that "where a service is largely publically funded, provides a service to the public ... there seems a strong case for it to be within the ombudsmen's jurisdiction." Discretion to investigate
? The Ombudsman is not obliged to investigate matters which are within her jurisdiction, but (per 5(1)) 'may' do so.
? This decision is within the scope of judicial review --- see Dyer [1994] below --- although the court in that case envisaged that such review cases would be successful only rarely due to the wide discretion the Act gives to the ombudsman.
? Own initiative investigations: the Ombudsman cannot initiate her own investigations
--- there has to be a complaint first. The Cabinet Office Review found that this situation was satisfactory noting that "any power for the ombudsman to initiate an investigation without complaint will make them vulnerable to external pressure to examine alleged systematic weaknesses. An ombudsman's function must remain grounded in addressing injustice caused to an individual and own initiative investigation appears inconsistent with impartiality." BME: note that it's not clear why own-initiative investigations would be inconsistent with impartiality, given that the ombudsman has discretion to investigate (i.e. could ignore such pressure). o NB: that the lack of such a power is indicative of a certain conception of the ombudsman's role --- i.e. of redress rather than control. o Implications for the ombudsman's powers: they cannot use a complaint on which to hang a broader investigation of an issue not actually complained about. This was confirmed in R (Cavanagh) v Health Service Commissioner for England [2005].
? The MP filter: in most other countries direct access to the ombudsman is the norm (e.g. Scottish and Welsh ombudsmen), so why do we have the MP filter?
o Pragmatic: prevents the ombudsman being inundated with complaints. It is true that many MPs (51 % according to the Cabinet Office Review) send complaints direct to the ombudsmen, but on a crude level some are deterred just by the extra hoop of contacting an MP. A further pragmatic reason was given by Ann Abraham (the PCA

until 2012) who noted that it generates interest in the ombudsman amongst MPs ---
making them more likely to take note of findings etc. o Constitutional: the MP filter is fitting because it renders of the ombudsman an adjunct of parliamentary process --- reflecting the MPs role as having primary responsibility for holding the executive to account. Securing redress
? It is apparent from s.10 of the 1967 Act that the ombudsman cannot enforce her recommendations --- rather she reports maladministration and can recommend redress. Where redress is unlikely to to be remedied, the ombudsman may lay special reports before Parliament.
? The Public Administration Select Committee (PASC) takes an interest in the extent to which the Ombudsman's recommendations are followed and can apply pressure --- by reporting to Parliament --- when they are not.
? The majority of the Ombudsman's recommendations are followed, but there have been notable instances here they are not. A good example is the case of the Equitable Life Assurance Society: o The ELAS was unable to meet the guarantees it had made to policy holders. Several policy holders complained that the public bodies regulating insurers had been guilty of maladministration. o The ombudsman found that there had been 'serial regulatory failure' and recommended, inter alia, that the government should establish a compensation scheme. o Following the report, the PASC said that it would be "deeply concerned" if the government refused to accept that maladministration took place. o The government then rejected several of the Ombudsman's specific findings and refused to implement the suggested compensation scheme, instead agreeing to implement a less generous scheme. o The PASC responded with harsh criticism of the government, suggesting that the compensation scheme they proposed was "inadequate as a remedy for injustice." o MPs from all parties expressed disquiet about the government's treatment of the Ombudsman's report --- but on a whipped vote, the government defeated an opposition motion calling on it to abide by her recommendations.
? Note that it is political and not legal pressure that is applied here --- the government, having a majority, is therefore somewhat immune. The 'Big Inquiry'
? Grouping complaints: group complaints are a way of surmounting the embargo on 'own-initiative' investigations --- the practice is to select around four sample cases from a group, parking the rest and absorbing them in a Special Report under s.10(3). For example: o Child Support Agency case: PCA received 95 complaints of administrative failings by a the CSA in tracing 'absent parents' and collecting maintenance failings from

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