Ombudsman's Contribution to the Task of Ensuring that Government Decision-Making is Conducted in a Defensible Way
The Parliamentary Commissioner for Adminstration (PCA) was set up
under the Parliamentary Commissioner Act 1967 as a result of the
Crichel Down affair in 1954. It was thought that pre-existing judicial
and parliamentary remedies did not provide adequate redress for
members of the public who suffered as a result of maladministration in
central government. No action was being taken towards defective
administrative workings, either because it fell outside the
jurisdiction of the courts or because MPs did not have sufficient
powers to investigate it satisfactorily.
The Ombudsman stands as an independent body, empowered to investigate
a wide range of complaints than could be investigated by a court.
Where as a court can intervene in judicial review proceedings only
where a decision is ultra vires, the Ombudsman is required to consider
‘maladministration’ (under s 10(3) of the Act), which causes
injustice, as opposed to illegality.
Many as an advantage to the system see the informal and flexible rules
underlying the procedure. The flexibility is reflected in the fact
that the Ombudsman is not barred by time limits and therefore may
provide a remedy in instances that cannot be considered by a court. On
the other hand, the informality in investigation may be more effective
at times in discovering the truth than the adversarial system in the
courts. The Ombudsman being independent and impartial where as an MP
may become biased due to political allegiance.
However, there are a number of limitations on the powers of the PCA,
which may not seem inherent but are thought to weaken his efficacy.
Certain matters, set out in Schedule 3 to the Act, are excluded from
investigation. These include extradition and fugitive offenders, the
investigation of crime by or on behalf of the Home Office, security of
the States, action in matters relating to contractual or commercial
activities, court proceedings and personnal matters of armed forces,
teachers, the Civil Service or police. The government has always
resisted the extension of the Ombudsman system into these areas.
Furthermore, Schedule 2 does not include public corporations,
tribunals, the Criminal Injuries Compensation Board or, crucially, the
A further important limitation, the system of making the complaint
through a Member of Parliament, has been much criticised: it is
thought that this ‘screening’ of complaints does not serve the best
interests of complainant. This is where...