Law Commission expands review of public sector ombudsmen
The Law Commisson is to expand the scope of its review of public sector ombudsmen, and has opened the door to self-generated investigations.
In its original consultation paper, the Law Commission had proposed four main reforms to the Parliamentary Commissioner for Administration, the Local Government Ombudsman, and the Public Services Ombudsman for Wales. They were:
- the creation of a specific power to stay an application for judicial review
- that access to the ombudsman could be improved by modifying the statutory bar
- a power for the ombudsmen to refer a point of law to the courts, and
- removing the MP filter in relation to the Parliamentary Commissioner for Administration.
In its report Administrative Redress: Public Bodies and the Citizen published in May, the law reform body said the proposals had found favour with the majority of consultees.
It added that it intended to widen the scope of the review. It will now also look at the nature of the ombudsman process, the relationship of ombudsmen with Parliament, and the nature of findings and recommendations.
The Law Commission will examine the inquisitorial nature of ombudsman investigations and the possibility of self-generated investigations, although it recognised that the latter “would fundamentally change the nature of an ombudsman as a complaints investigator”.
The report highlighted a “fundamental difference” between the effect of findings of the Local Government Ombudsman and those of the Parliamentary Commissioner for Administration.
It said the judgements of ex parte Eastleigh BC in relation to the Local Government Ombudsman and Bradley in relation to the Parliamentary Commissioner meant it was far easier for a public body to reject the findings of the Parliamentary Commissioner than it is to reject the findings of the Local Government Ombudsman.
“We make no comment as to the correct approach that should be taken but we point out that there is a difference and that this merits further consideration,” the report said.
The Law Commission said it would consult on its proposals for reform of public sector ombudsmen later this year, with final recommendations being made to the government in 2011.
However, the law reform body has decided against continuing its review of court-based remedies despite there being “good arguments for reform”.
The Law Commission said it was impractical to attempt to pursue the reform of state liability because of the level of opposition to its earlier proposals – particularly from the government – and a lack of data on the costs of compensation paid by public bodies.
The law reform body had suggested the creation of a specific regime for the liability of public bodies, based around a series of elements including the need for the claimant to show “serious fault” on the part of the public body, rather than – in judicial review – public law illegality or – in tort – negligence.
Accepting that it had failed to convince consultees of the need for reform, the Law Commission nevertheless called on the government to establish a process for collecting and publishing information on the cost of public compensation.
