#15599 - Institutions And Accountability - Administrative Law

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:

  • Inadequate resources

  • 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.

  • 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.

  • 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.

PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION

The need for and role of ombudsmen

• 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?

  • 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.

  • 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:

  • Ombudsmen are able to investigate allegations —of rudeness, delay etc. —which may not disclose illegality for judicial review purposes.

  • Many of the factors which deter recourse to judicial review —e.g. cost —do not apply to recourse to the ombudsman.

  • 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.”

  • 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 non-justiciable.

• 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...