The Law Commission Consultation Paper No 196 PUBLIC SERVICES OMBUDSMEN A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor David Ormerod1 and Miss Frances Patterson QC. The Chief Executive is: Mr Mark Ormerod CB. Topic of this consultation This consultation paper deals with the public services ombudsmen. Impact assessment An impact assessment is included in Appendix A. Scope of this consultation The purpose of this consultation is to generate responses to our provisional proposals. Duration of the consultation We invite responses from 2 September 2010 to 3 December 2010. How to respond By email to: [email protected] By post to: Public Law Team, Law Commission, Steel House, 11 Tothill Street, London, SW1H 9LJ Tel: 020-3334-0262 / Fax: 020-3334-0201 If you send your comments by post, it would be helpful if, wherever possible, you could send them to us electronically as well (for example, on CD or by email to the above address, in any commonly used format. After the consultation In the light of the responses we receive, we will decide our final recommendations and we will present them to Parliament. It will be for Parliament to decide whether to approve any changes to the law. Code of Practice We are a signatory to the Government’s Code of Practice on Consultation and carry out our consultations in accordance with the Code criteria (set out on the next page). Freedom of information We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents' names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE – We will disregard automatic confidentiality statements generated by an IT system. Availability of this consultation paper You can view/download it free of charge on our website at: http://www.lawcom.gov.uk/docs/cp196.pdf. 1 Professor Jeremy Horder was a Law Commissioner at the time this paper was drafted and approved. He was succeeded by Professor David Ormerod on 1 September 2010 iii CODE OF PRACTICE ON CONSULTATION THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. CONSULTATION CO-ORDINATOR The Law Commission’s Consultation Co-ordinator is Phil Hodgson. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Phil Hodgson, Consultation Co-ordinator, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ – Email: [email protected] Full details of the Government’s Code of Practice on Consultation are available on the BIS website at http://www.bis.gov.uk/policies/better-regulation/consultation-guidance. iv THE LAW COMMISSION PUBLIC SERVICES OMBUDSMEN CONTENTS Paragraph Page PART 1: INTRODUCTION 1.1 1 Origins of this consultation paper 1.2 1 Scope of this consultation paper 1.5 2 This consultation paper 1.30 5 PART 2: THE PUBLIC SERVICES OMBUDSMEN 2.1 7 Introduction 2.1 7 The public services ombudsmen 2.2 7 Overview of the ombudsman process: three common features 2.20 10 Conclusions 2.44 15 PART 3: APPOINTMENT OF OMBUDSMEN 3.1 17 Introduction 3.1 17 Statutory provisions for the appointment of the public services 3.2 17 ombudsmen Pre-appointment hearings 3.8 18 Conclusions and provisional proposals 3.27 22 PART 4: OPENING AN OMBUDSMAN INVESTIGATION 4.1 24 Introduction 4.1 24 Relationship with other institutions for administrative justice 4.6 24 Formal requirements 4.86 36 PART 5: OMBUDSMEN INVESTIGATIONS 5.1 40 Introduction 5.1 40 Closed nature of ombudsmen investigations 5.4 40 Reference on a point of law 5.36 44 PART 6: REPORTING 6.1 53 Introduction 6.1 53 The current statutory position 6.3 53 Early practice 6.35 60 Recent practice and associated case law 6.51 64 Conclusions and provisional proposals 6.71 68 v Paragraph Page PART 7: RELATIONSHIP WITH ELECTED BODIES 7.1 74 Introduction 7.1 74 Current position 7.3 74 Recent developments 7.19 76 Conclusions and provisional proposals 7.30 78 PART 8: SUMMARY OF SPECIFIC POINTS FOR 8.1 80 CONSULTATION APPENDIX A: IMPACT ASSESSMENT A.1 84 vi PART 1 INTRODUCTION 1.1 This Part sets out the origins of this consultation paper, delineates what we see as its proper scope and explains the structure we have adopted for it. ORIGINS OF THIS CONSULTATION PAPER 1.2 The starting point for this consultation paper was our project on administrative redress. The Ninth Programme on Law Reform in 2005 made provision for a scoping paper on the subject of remedies in judicial review and administrative law. We published that scoping report in 2006 and suggested that we address the following general question:1 When and how should the individual be able to obtain redress against a public body that has acted wrongfully? 1.3 We published our consultation paper in July 2008 entitled Administrative Redress: Public Bodies and the Citizen.2 This was followed by a report in May 2010.3 The consultation paper considered three primary aspects of administrative redress: judicial review, private law actions against public bodies, and ombudsmen. The first two aspects of the project, which together could be seen as court-based actions for state liability, were discontinued in our report of May 2010.4 In relation to ombudsmen the original consultation paper made four provisional proposals: (1) the creation of a specific power to stay an application for judicial review, so that suitable matters are handled by ombudsmen rather than the courts; (2) that access to the ombudsmen could be improved by modifying the “statutory bar” – the rule that recourse may not be had to the ombudsmen if the complaint has or could be pursued in a court of law; (3) a power for the ombudsmen to refer a question on a point of law to the courts; and (4) the removal of the MP filter in relation to the Parliamentary Commissioner for Administration, to allow a complainant direct access to the ombudsman without having to submit the complaint to a Member of Parliament. 1.4 Our provisional proposals met with generally favourable consultation responses. However, certain consultees thought that our initial proposals needed to be developed further. During consultation other issues came to light that we felt were 1 Remedies against public bodies: A scoping report (10 October 2006) para 5.1. 2 Administrative Redress: Public Bodies and the Citizen (2008) Law Commission Consultation Paper No 187 (hereafter CP 187). 3 Administrative Redress: Public Bodies and the Citizen (2010) Law Commission No 322. 4 Above, for the reasoning behind this discontinuance. 1 worth investigation. In our report of May 2010, we stated our intention undertake further work on the public services ombudsmen and publish the present consultation paper. SCOPE OF THIS CONSULTATION PAPER 1.5 The general scope of this consultation paper concerns what we have termed the public services ombudsmen. We consider them individually and set out their basic features in Part 2. Before that, however, we think it is worth considering what we mean by an ombudsman. The term ombudsman has come to be applied to a large number of bodies. These range from those bodies that an observer would naturally consider to be ombudsmen, to others where the application of the term may be less appropriate. 1.6 We do not think it is appropriate here to launch into an academic discussion of the various different definitions that have been suggested for an ombudsman, nor are we going to suggest one ourselves. However, we do suggest that there are certain key features to ombudsmen which taken together help differentiate them from other mechanisms for dispute resolution 1.7 First, whether as a result of a complaint or of its own motion, the ombudsman process is investigatory. This, to us, is probably the key to understanding ombudsmen. There is much that follows from this. Ombudsmen need sufficient powers to make the investigatory process effective. As we discuss in more detail later in this consultation paper, their investigatory process allows for different practices relating to disclosure to be put in place than those available to the courts.