Ombudsman – Parliamentary Commissioner

Can the period of the current Ombudsman be lawfully extended?

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.

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Did you know that there is a Parliamentary Ombudsman?

6th February 2022

Did you know that the United Kingdom had an ‘Ombudsman’?

And if you did know, did you know what this Ombudsman can and cannot do?

I have been looking into this strange office for a while now, at the invitation of campaigners.

And the more I look at this curious office, the more confused I become.

This is because it sits very oddly within our domestic legal and administrative system – and is, in effect, a 1960s transplant from another constitutional regime.

The system is almost guaranteed to not fully satisfy anyone who uses it – and, indeed, there seems to be a number of people who are very unhappy with it.

This post is an introduction to the legal basis of the Ombudsman system – and I intend to further posts look at particular problems.

This is because it offers a fascinating case practical study of transparency and accountability (and the lack thereof) in law and policy.

The notion of an Ombudsman comes from Sweden, and it was a popular and fashionable notion for administrative reformers after the second world war.

The idea was that the Ombudsman would help promote good government by investigating and thereby checking ‘maladministration’ – which is itself a problematic concept from a lawyer’s perspective.

(Is maladministration an unlawful ultra vires act? Or are there acts that are lawful but also maladministration? Who knows.)

By the 1960s – when administrative law in England and Wales was still underdeveloped – having an Ombudsman seemed like an idea that had come.

And so we had one – and then a number.

The primary Ombudsman in the United Kingdom, is the Parliamentary Commissioner for Administration.

This office was established by a 1967 Act of Parliament.

The remit of the Ombudsman is that it can, on referral by a Member of Parliament, “investigate…[an] action taken in the exercise of administrative functions…where…a member of the public…claims to have sustained injustice in consequence of maladministration”.

In some ways, it is a powerful office.

Very powerful.

The Ombudsman can only dismissed by an address of both houses of parliament.

The Ombudsman can require ministers and government departments to provide information and documents – even ‘secret’ information and documents.

It is even a criminal offence to obstruct the Ombudsman.

And the Ombudsman can, after an investigation, place a critical report before parliament that has full legal privilege.

With these legal superpowers, the Ombudsman would be a legal superhero equivalent of any other something-man or -woman.

Such a figure, given these powers, could be expected to be central to discussions about law and policy in central government.

But.

To go back to the top of the post: did you even know that the United Kingdom had an Ombudsman?

Have you ever read an Ombudsman report – or even visited its website?

And here there is a paradox – if not a contradiction.

For, at a time where there seems more and more maladministration, the Ombudsman has almost no public profile.

On the assumption that there is maladministration in central government, and given the legal super-powers of the Ombudsman, why is the Ombudsman so little-known?

And is there a problem with the Ombudsman system, as critical campaigners aver?

Let’s find out in future posts – and your informed comments are welcome below.

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Whatever happened to the concept of ‘maladministration’?

28th June 2021

The recent report from the independent panel on Daniel Morgan used the concept of ‘institutional corruption’ – and on this you can see my Financial Times video here and my post here.

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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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.

Comments will not be published if irksome.