28th June 2021
But the deployment of such a term makes one think of other terms that come and go in law and policy – and one such term is ‘maladministration’.
It is an odd term – it does not quite mean ‘illegal’ or ‘unlawful’ and so it does not fit into the neat binary of what is called ‘public law’ – the law that regulates what public bodies can and cannot do.
In principle, it would appear that a thing is capable of being maladministration without it also necessarily being unlawful – either as a matter of public law or as an instance of misconduct/misfeasance in public office.
The notion is that maladministration goes to the thing being complained of having an administrative remedy – rather than a judicial remedy.
The term ‘maladministration’ is used in English law, see section 5(1)(a) of the Parliamentary Commissioner Act 1967 that established the office known as the ‘ombudsman’ (emphasis added):
‘[the ombudsman] may investigate any action […] to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where […] a member of the public […] claims to have sustained injustice in consequence of maladministration in connection with the action so taken […].’
The act, however, does not define ‘maladministration’ – and all one can glean from the provision quoted is that the term is something to do with the performance of an administrative function.
In R v Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council (1979), the court of appeal averred that ‘maladministration’ had an open-ended meaning, covering ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’.
This is a broad definition.
In 1993 the ombudsman said that ‘maladministration’ included an ‘unwillingness to treat the complainant as a person with rights; refusal to answer reasonable questions; knowingly giving advice which is misleading or inadequate; offering no redress or manifestly disproportionate redress; and partiality’.
These are serious things – indeed these can even constitute criminal offences.
Given the breadth of the definition of ‘maladministration’, and the seriousness of what it can cover, it is strange that we do not have more use of the word in the public discussion of failures in the public sector.
For example, the Guardian and the Financial Times each seem to have used the word only twice in respect of United Kingdom matters in 2021.
And this is despite ‘maladministration’ being a term recognised at law and for which parliament has provided a scheme for administrative remedies.
Why do we hear so little of the term ‘maladministration’?
The reason cannot be that there is no maladministration – from the post office scandal and the Daniel Morgan report to the problems to do with Covid procurements and the exams fiasco, maladministration, like love and Christmas, is all around.
At least the failures that are covered by the word ‘maladministration’ are all around.
So these leaves two possibilities.
Either: the system of administrative remedies is working so well that that the maladministration that does take place is quickly remedied and the complaints resolved.
Or: the system of administrative remedies is not working, and so complainants are having to resort to public law and other means for their complaints to be addressed.
If the latter, this could mean that the reason we hear so little of the word ‘maladministration’ is that is not a practically useful term.
And if that is the case – that the reason we hear so little of the term ‘maladministration’ is that it is not practically useful – then why would that be the case, when parliament has set up an elaborate (and expensive) ombudsman scheme to deal with ‘maladministration’?
Given the ombudsman scheme – formally known as the the parliamentary commissioner for administration – and given the sheer amount of public sector failings, one would expect that the term ‘maladministration’ would be a commonplace in law and policy discussions.
But it hardly features.
So: is the real reason we hear so little of the term ‘maladministration’ in United Kingdom law and policy that the scheme of (to use the ombudsman’s full title) is not working?
Some posts coming up on this blog are going to find out.
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