18th March 2022
One of the areas of focus of this blog is what I call the ‘accountability gap’ – that is the lack of genuine accountability in the arrangements of United Kingdom government and public administration.
And one element of this accountability gap is the problem of the ‘Ombudsman’ – the Parliamentary Commissioner for Public Administration.
This is a strange and fairly obscure office and it exists to deal with what is – from a legal perspective – a strange and elusive thing: ‘maladministration’.
(My post on the obscurity of the office is here and my post on the vague concept of maladministration is here.)
It is also an office that is not without its critics – as this link demonstrates.
Part of the problem with the Ombudsman seems to me to be structural – the relevant legislation provides a strange mix of strong powers and a weak sense of purpose.
But some of the problem may be operational – that the PHSO (as it is now known) does not operate as well as it could do, even with its curious legal regime.
*
The current Ombudsman has just had his term of office extended – and, as you can imagine, this has not been received well by the critics of the Ombudsman.
The extension is for a further period of two years, which will take his term in office to 2024.
One may doubt whether such an extension is wise – and the recent extension of office of the now-departing Metropolitan police commissioner comes to mind as an unwise extension of office.
I have been, however, asked to look at whether the extension is unlawful.
Here we need to look at section 1 of the Parliamentary Commissioner Act 1967:
We also need to look at last week’s press release:
Curiously there seems no trace on the website of the Cabinet Office of the confirmation, or on the website of the parliamentary committee of such a recommendation – but let us assume that the confirmation and recommendation both actually happened.
And by way of background, the current Ombudsman was appointed in April 2017, and was widely reported that the original appointment was for a five-year term (which must be correct, else there would be no need for an extension).
*
So, looking at section 1, what can we ascertain?
Section 1(2A) provides that the Ombudsman is shall hold office until the end of the period for which he or she is appointed.
On the face of it, that would mean the current Ombudsman’s term comes to an end next month, for that was the position of the original appointment.
Section 1(3B) provides that a person cannot be ‘re-appointed’ as Ombudsman.
So if the extension was a re-appointment that would be unlawful under section 1(3B).
And section 1(2B) provides that the period of appointment shall not be no more than seven years in total.
That provision means that if the current Ombudsman served beyond April 2024 then that would certainly be unlawful.
What is not clear on the face of the legislation is what the legal position is if an office holder has an extension beyond his or her original appointment, as long as that extension does not mean more than seven years in total are served.
*
In practical terms, it could be argued that by extending the appointment before it expired, then the appointment is simply continuing.
It can also be argued that section 1(2A) does not say or necessarily imply that that an Ombudsman cannot hold office after the period for which he or she is appointed – section 1(2A) only says that they must hold the office until the end of the appointment.
On balance, I think that although the position is not clear, the extension does not look to be unlawful.
Nothing in section 1 expressly prohibits such an extension.
Had section 1(2B) said that the period of appointment shall never be longer than the duration of the original appointment, then such an extension would be unlawful.
But section 1(2B) does not say that – it instead expressly states that the duration should not exceed seven years.
And because there is this express long-stop, I do not think a court would easily imply into the Act an even shorter long-stop as a matter of law.
I also do not think the court would see the extension as a ‘re-appointment’, as it is a continuation of an existing appointment and not the start of a fresh term of office.
*
Public law is full of these situations where the legal position is not clear – and it may be that my analysis above is incorrect – and you are welcome to put forward your view below.
But the fact that the extension is (probably) legal does not necessarily mean that it is a good decision.
What may be a legal thing to do is not always the right thing to do.
*
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
For more on this blog’s Comments Policy see this page.
I think there must be a small mistake. You write that “On balance, I think that although the position is not clear, the re-appointment does not look to be unlawful.” This is of course to prejudice the question, since if the extension is cast as a “re-appointment” it would seem to be unlawful per section 3B. The term is therefore a loaded one.
Given the soundness of the assessment here, I am sure this must mean to refer to an “extension” or similar!
Whoops – well-spotted – and corrected. I thought I had corrected that at proof stage.
Interesting post, but it seems hard to support your conclusion. An appointment is clearly singular. The term, therefore, is decided at the appointment stage. An extension is clearly not the same as the original (singular) appointment.
If an appointment is singular, and the term is unseparable from the appointment, it follows that any “extension” must be a “re-appointment.” The long stop serves only to ensure that the term of appointment cannot be longer than seven years.
It might be relevant to consider how Parliament arrived at this clausing. §2 and §3 were re-written by The Employment Equality (Age) Regulations 2006. Now that SI itself does not explain why these clauses are relevant to the title of that SI (as opposed to this just being a convenient piece of omnibus , and the “Notes on Regulations” explaining each provision do not appear to be readily available (having been provided to the Joint Committee on Statutory Instruments at the time). As a piece of secondary legislation, we don’t have the benefit of Hansard.
The curious reader might, however, be interested – or perhaps concerned – to learn that those innocent-sounding “Regulations” had the effect of amending whole swathes of primary legislation without troubling Parliament with debating the issue.
It is worth noting that the same wording, by the same SI, was applied to the appointment of Health Service Commissioners. Interpretation of that identical clausing might give us further insight.
In recruiting for a new Health Service Commissioner, it was stated that (at https://publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/810/810.pdf page 15):
“You will be appointed by the Queen for a non-renewable fixed term of no longer than seven years. We expect the appointment to be fixed at between five and seven years”
Whilst it is, of course, always for the Courts to decide, the view of Parliament is usually germane. In this case, it would seem that Parliament (or at least its officers) believe that the wording you’ve quoted refers to a non-renewable fixed term which is, by the usual construction of such words, not extendable. I suspect this would be material to a Court’s consideration of your question.
So on balance I have to disagree with you; the term cannot be extended, and to purport to do so is unlawful.
“An appointment is clearly singular.”
Beware of any proposition that relies on “clearly” – it is a tell that usually means that the proposition is weak. If a proposition is sound, then the word “clearly” is redundant.
“… it would seem that Parliament (or at least its officers) believe that the wording you’ve quoted refers to a non-renewable fixed term which is, by the usual construction of such words, not extendable”
The sheer length of this gloss indicates that was not parliament’s intention – and had parliament intended what you said, it would have said so, but it did not.
Had parliament intended for such an extension to be unlawful it could have said so expressly. Instead parliament chose to expressly say anything over a seven year appointment was unlawful.
I concur with the view expressed by Silas Denyer. The law requires the Ombudsman’s term of office to be fixed at the outset and this term was expressed on page 15 of the document to which Silas refers.
This document was the Fifth Report of the Health Committee of Session 2016-17 and Eighth Report of the Public Administration and Constitutional Affairs Committee of Session 2016-17.
I draw your readers attention to the response, given by the Ombudsman, to question 46 posed by Tom Randall MP at the PACAC scrutiny session held on 18th May 2020: “We will commission another peer review before the end of my term in two years. In short answer to your question, before I leave in 20 months time”.
This makes it clear the Ombudsman himself, in May 2020, recognised his term of office would come to an end in 2022 So how did this proposed ‘extension of term’ come about.
It started with a letter dated 30th April 2021 from Michael Gove, then Cabinet Minister, to Williams Wragg MP who currently chairs the Public Administration and Constitutional Affairs Committee (PACAC). The letter can be found on the PACAC website in the correspondence section. Rather than start the search for a new Ombudsman in timely fashion, Mr. Gove explained his rationale for the ‘extension of term’ in the letter and its annex, confirming he had taken legal advice. I can find no evidence the view of the Health Select Committee has been sought despite the fact it was involved in the original appointment and that about 80% of the Ombudsman’s case work is health related.
I have protested this matter to my own MP, in a written submission to PACAC and also to the current Cabinet Secretary, Steve Barclay. What I find extraordinary is that it appears PACAC, a cross party committee, has gone along with the spurious argument for ‘extension’ put forward by Michael Gove. However, my scrutiny of the official attendance record of committee members show that neither Ronnie Cowan (SNP) nor Rachel Hopkins (Labour) have attended the last two PHSO scrutiny sessions. As I write, PACAC has yet to publish its findings regarding PHSO scrutiny for the year 2020-21.
Curiously, as you say David, the only reference so far to be found is on the PHSO website. PACAC and the Cabinet Office have yet to publish confirmation of this ‘extension of term’. Until Mr. Behrens term does expire, no law has been broken but once it does – what then?
This issue is important and follows in the wake of the executives attempt to prorogue parliament and the contempt for Covid rules at the heart of government. David has come to the view that the ‘extension’ will not be illegal and Silas takes the opposite view. My question for you David is, in view of the comment from Silas and the additional information supplied here, if you were to be judging this matter at Judicial Review, would you hold to your original view?
I am a fierce critic of the PHSO and the lack of oversight by PACAC. Over the last three years, PACAC has received 112 submissions about PHSO and published 92 of them. The overwhelming majority are highly critical although PHSO does attract some support from organisations such as the GMC, NHS Resolution and the Health Ombudsman of South Africa.
Criticism can also be found elsewhere. Recently the journalist David Hencke has published two articles on 1st and 25th February on the website ‘Westminster Confidential’ regarding DWP and pension issues.
I will be interested to see what your readers make of this. When the legislation was set up 55 years ago, Quentin Hogg MP, later Lord Hailsham, described it as “a swiz”. It still is and with the contradictions in the role of PHSO and the Health Service Safety Investigation Branch in the Health and Care Bill currently before parliament, an even greater ‘swiz’ is about to be perpetrated on an unsuspecting public. That is a law and policy issue in which I hope you will take an interest in the near future.
Hi David
Can I first pay tribute to the dedication you have shown in holding the Ombudsman to account. We both have concerns about the performance of PHSO. That we differ on this point does not take away from those concerns or my tribute.
On particular points:
“the Ombudsman himself, in May 2020, recognised his term of office would come to an end in 2022” is a statement that does not bind the Ombudsman and nothing as a matter of law rests on it. Nothing stopped him changing his or the government’s mind.
“The law requires the Ombudsman’s term of office to be fixed at the outset” does not preclude an extension of that terms, as long as it does not exceed the seven years expressly stated in the Act. Had parliament wanted it to be unlawful for an extension, it would have said so, but it didn’t. I am a former government lawyer, and I agree with the advice that Gove appears to have received.
As you aver, however, whether or not the extension was lawful, it is – in political and normative terms – not ideal. The question of why it was extended is certainly one which needs to be posed.
There is no doubt this Ombudsman service fails the public. The main causes are likely to be twofold.
1. The lack of adequate funding
2. The strategic direction in which the organisation is heading.
The Ombudsman decreed he would no longer be in a position to investigate health complaints which fell within Tier 1 or 2 of his scale of injustice. He has recently extended this moratorium on these complaints until August 2022. The question is how does he justify being able to identify where a complaint sits on a scale of injustice without first investigating it?
In 2014 I went to the Ombudsman in good faith and subsequently had my faith destroyed (as have many of the 189 people who have made negative comments on PHSO Trust Pilot).
As a solicitor experienced in clinical negligence claims once told me “We wouldn’t recommend any client to go to the Ombudsman”. I suspect they will make the same recommendation about HSSIB with all the secrecy and confidentiality in the proposed legislation.
Turning back to the core issue of the Ombudsman’s term of office the question seems to be is a term of office decide on appointment which is how I interpret the legislation, or is the continuance in office a re-appointment or extension?
I’m surprised by your reading of this, both in the overall context and in the text itself.
The Act gave 2 distinct limitations — the 7 year limit (2B), and the prohibition of re-appointment (3B). Why? What does 3B add that isn’t covered by 2B. I’d say (without knowing the drafting history) that the time limitation avoids stagnation and forces new blood into the system. The re-appointment limitation encourages independence, removing the incentive to play nice in the hope of being re-appointed.
You would agree, I suppose, that a ‘re-appointment’ would be unlawful even if the combined terms amounted to under 7 years. So the question is whether anything about an ‘extension’ makes it sufficiently different from a ‘re-appointment’ that 3B doesn’t apply. Skipping a selection process? Maintaining the original terms of reference? Neither seem compelling in this context.
You may disagree with my interpretation and construction of the provision, but I do not think it is open to you to be ‘surprised’. The provision is not clear and it is thereby open to different approaches. I am not ‘surprised’ by your reading.
The use of the phrase ‘fixed term’ is interesting. It suggests that the term is fixed on appointment but apparently it can be ‘un-fixed’ if expedient.
[Re-re-submitting comment as previous attempts never appeared]
There is a remarkable parallel with last year’s botched extension of the 5-year term of the then Information Commissioner.
The London Gazette had claimed: “The Queen has been pleased by Letters Patent under the Great Seal of the Realm dated 9 July 2021 to re-appoint Elizabeth Anne Denham, to be the Information Commissioner, for a further period of three months and thirteen days commencing on the 18 July 2021.”
The extension was emphatically botched, because the Data Protection Act 2018 not only includes restrictions equivalent to those applying to the Ombudsman, forbidding appointment “more than once”, but further provides that the Information Commissioner “is to hold office for such term…as may be determined at the time of the Commissioner’s appointment”, expressly precluding extension of an existing term (as if the ban on re-appointment were not enough for that to be purposively inferred). https://www.legislation.gov.uk/ukpga/2018/12/schedule/12/paragraph/2
But the extension was doubly botched, because transitional provisions in the same Act had already extended the existing Information Commissioner’s term to 7 years, until 2023.
https://www.legislation.gov.uk/ukpga/2018/12/schedule/20/paragraph/19
That would have rendered the unlawfulness academic, were it not for the imminent appointment of Ms Denham’s successor, John Edwards.
Naturally, when the law was drawn to their attentions, DCMS and the ICO denied that anything was awry. It took the prospect of judicial review for them to concede that the existing Commissioner’s term had indeed already been extended by Parliament. Thus enlightened, Ms Denham submitted her resignation to The Queen just in time to avoid the Caroline prospect of an Act of Parliament and Mr Denham’s royal Letters Patent purporting to have rival Information Commissioners in office at once.
Links to the pre-action letter and to the Government’s formal response are at the foot of the article by Jon Baines to which this tweet links:
https://twitter.com/owenboswarva/status/1438477255769010183
In relation to the Parliamentary Ombudsman, I see that Michael Gove reported last April to the Public Administration and Constitutional Affairs Committee:
“We [the Cabinet Office] have sought legal advice on this extension and have been advised that neither the PCA 1967 or the HSCA 1993 prevents us from extending the Ombudsman’s current appointment…. This would constitute a variation of the Ombudsman’s existing terms of appointment which can be distinguished from a new appointment or reappointment – the latter being prohibited by the legislation.”
https://committees.parliament.uk/publications/6181/documents/80061/default/ (Annex A)
That undermines the principle that officeholders should neither fear nor favour the possibility of their tenure being altered by those whom they are charged to judge.
It would be interesting to read the terms of Rob Behrens’ fresh Letters Patent. A case, perhaps, of maladministration.
Thank you for this comment – it is both fascinating and informative.
My view is that taking the Denham situation at its highest, the PHSO situation is distinguishable – it may look like semantics to the outsider, but an extension of an existing appointment by means of a variation of the existing contract (as long as it does not go beyond the statutory long-stop of even years) is lawful.
I know my view here is frustrating for those that think the extension unlawful – but to those I say that something being legal does not make it sensible.
(I have no idea why your previous attempts to post this comment failed – this is the first I have seen in the moderation queue. This is the sort of high-quality comment I would publish like a shot.)
In the interest of openness and transparency, it would be useful to see the original Letters Patent issued by Her Majesty and also ascertain whether fresh Letters Patent have been granted.
There is also a further issue. The Ombudsman, Rob Behrens, has expressed concern that the proposals of the forthcoming Health and Care Act will limit his access to information held by the Health Service Safety Investigation Branch and he contends this will be in contravention to the ‘Venice Principles” to which the UK Government is a party. Therefore, on one hand he complains that the Government is proposing legislation which contravene existing law yet has accepted that regarding his re-appointment the Government is acting lawfully
David. I thank you for getting this debate into the public eye. Reading the responses so far there is, at best confusion and uncertainty. I do not see Steve Barclay, the current Cabinet Minister, approaching the courts to see if what he is doing is lawful. It will take a challenge at Judicial Review. The Ombudsman himself is remaining silent and may well be hoping the issue of his re-appointment (I no longer wish to use the term extension) will be overtaken by other events.
> In the interest of openness and transparency, it would be useful to see the original Letters Patent issued by Her Majesty and also ascertain whether fresh Letters Patent have been granted.
Indeed. Oddly, appointments of the Parliamentary Commissioner for Administration and the co-held Health Commissioner for England have not been notified in the London Gazette, as is otherwise customary for Letters Patent, since 2002.
https://www.thegazette.co.uk/London/issue/56745/page/13485
It would be ironic if, instead of expressly amending the existing period, the new Letters Patent were drafted – as is usual when consecutive terms are required – in terms of granting an additional period. In that case, in determining whether a further term is actually part of an existing term, the Cabinet Office would have to pivot from advocating form over substance to advocating substance over form.
Moreover it is not clear to me that there is any power for The Queen to amend Letters Patent made by virtue of an Act, even if altering their provisions were desirable. To the contrary, the implied power of amendment bestowed by the Interpretation Act 1978 on various classes of subordinate instrument does not extend to Letters Patent; the need for such an implied power implies an underlying common law vacuum which, in respect of Letters Patent, Parliament has not chosen to fill.
https://www.legislation.gov.uk/ukpga/1978/30/section/14
An extension of term is not expressly forbidden by the rules. However an extension is also not specifically allowed.
The sentence “shall hold office until the end of the period for which he is appointed” indicates to me that his* term is fixed at time of appointment. There is one appointment, therefore one period, and it can only be truncated, and only for the reasons listed in (3) or (3A). If extending the appointment was intended to be possible, or multiple appointments totalling 7 years, the text would say so. Government appointments shouldn’t work like Air Bud.
All said, my judgement is that extending the appointment breaks the spirit, but not the letter of the law.
The questions I have are, why was the appointment not initially made for the full term? And why are they passing up the opportunity to replace the incumbent?
*I noticed the male pronouns, I assume that has no legal significance.
It may be helpful to know that, prior to the appointment of the current Ombudsman, the Government heralded a brave new world in that it was ‘time for a people’s Ombudsman’. A draft bill was introduced by Chris Skidmore which had the intention of combining the roles of the Parliamentary and Health Service Ombudsman with that of the Local Government Ombudsman. The bill failed due to lack of parliamentary time. I was pleased it did because it was short on reform of Ombudsman’s powers and jurisdiction.
The answer as to why the Ombudsman was not appointed for the full seven years lies on page 15 of the document referred to by Silas Denyer in his comment. It was made clear to the Ombudsman his appointment might be shortened as a result of the proposed legislative change. To me this is worrying. Let us assume the role of the PHSO and LGO is amalgamated during the next two year period. Neither role will then exist. Is it not the case that, by giving the amalgamated body a new name, the current PHSO can then be given the new job for a further seven years?
Thank you for providing a bit of interesting background.
As for the appointment of a successor position, presumably that would be governed by new rules written for that specific position. Unless the rules expressly forbid it, a successor position could be held by someone who had previously held one of the previous positions. The spirit of the law ought to preclude such people from applying, but restraining oneself in that manner requires (to use DAG’s phrase) a sense of constitutionalism.
Thank you all (for the post and for all the responses to it.)
If any haven’t seen the Wragg letter to Mr Behrens, dated 22nd July 2021, declaring discussion of the extension proposal at a public session, to maximize transparency, it can be found at
https://committees.parliament.uk/publications/6930/documents/72668/default/
It includes:-
‘Extension of term as Chair and Ombudsman of the Parliamentary and Health Service Ombudsman
As you are aware, the Committee has been approached regarding the extension of your term as Chair and Ombudsman of the Parliamentary and Health Service
Ombudsman (PHSO). The Committee has valued the contribution you have made to furthering the aims of the PHSO and noted your achievements in exercising the functions of the position of Ombudsman. It is clear that your vision and leadership
have allowed the PHSO to weather difficult times and continue to provide such a vital service in the face of numerous challenges.
The Committee understands the discrepancy in the length of your term – being five years instead of the usual seven envisaged under the relevant legislation – due to the prevailing situation at the time of your appointment and the failure of the Government to bring forward relevant legislation in the intervening period. This
anomaly has been noted by the Committee, and we lament the Government’s lack of action in this space. The Committee also fully understands and appreciates the need to provide clarity, certainty, and stability to the organisation as it launches its future strategy following the disruption caused by the Covid-19 pandemic.
Nevertheless, the Committee has a responsibility to ensure that public appointments are carried out properly and correctly, maximising transparency and ensuring public confidence in appointees, I am sure that you can understand the Committee’s desire to approach this matter in the same vein. While the Committee recognises that this is an unprecedented and unusual situation, we feel obliged to act with the same level of propriety as would be expected in relation to all public appointments. The Committee will therefore examine this matter in a public session at the earliest convenience this Autumn, alongside the Committee’s annual scrutiny session.
As always, I am at your disposal to discuss any questions you may have…’