The Law Commission Consultation Paper No 187 ADMINISTRATIVE REDRESS: PUBLIC BODIES AND THE CITIZEN A Consultation Paper ii 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 Honourable Mr Justice Etherton, Chairman Professor Elizabeth Cooke1 Mr David Hertzell Professor Jeremy Horder Kenneth Parker QC The Chief Executive of the Law Commission is William Arnold and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This consultation paper, completed on 17 June 2008, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on its proposals before 7 November 2008. Comments may be sent either – By post to: Keith Vincent Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ Tel: 020-7453-1293 Fax: 020-7453-1297 By email to: [email protected] It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format. 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. Those who wish to submit a confidential response should contact the Commission before sending the response. We will disregard automatic confidentiality disclaimers generated by an IT system. This consultation paper is available free of charge on our website at: http://www.lawcom.gov.uk/docs/cp187.pdf. 1 Professor Elizabeth Cooke was appointed a Law Commissioner with effect from 3 July 2008, in succession to Mr Stuart Bridge. This consultation paper was finalised on 17 June 2008. iii THE LAW COMMISSION ADMINISTRATIVE REDRESS: PUBLIC BODIES AND THE CITIZEN CONTENTS PART 1: INTRODUCTION 1 Introduction 1 History of the project 1 Initial consultation 1 Responding to this Consultation Paper 2 PART 2: OVERVIEW 3 PART 3: THE CURRENT POSITION FOR REDRESS 6 Introduction 6 General principles of good governance and accountability 6 Benefts of non-court remedies 7 Internal procedures 12 External procedures 18 Ombudsman schemes 20 Residual cases 28 Judicial review 29 Tort law 31 Damages under the Human Rights Act 1998 50 Damages under EU Law 52 PART 4: LIABILITY IN PUBLIC AND PRIVATE LAW 54 Introduction 54 Underlying principles 55 Overview of current problems 55 Suggested options for reform 75 iv Movement between public law and private law 96 Closing comments 98 PART 5: RELATIONSHIP BETWEEN OMBUDSMEN AND COURT-BASED OPTIONS 99 Introduction 99 Factors governing the relationship between courts and ombudsmen 99 Movement between ombudsmen and the courts 103 Access to the ombudsmen 108 PART 6: EFFECT ON PUBLIC BODIES 117 Introduction 117 Overview: gains and losses 117 Assessing the effects 119 Common law liability: a cautionary tale 128 PART 7: SUMMARY OF SPECIFIC POINTS FOR CONSULTATION 132 Introduction 132 Part 4 – Liability in in public and private Law 132 Part 5 – Relationship between ombudsmen and court-based options 133 Part 6 – Effect on Public Bodies 133 APPENDIX A: PRINCIPLES UNDERLYING REFORM 134 APPENDIX B: THE IMPACT OF LIABILITY ON PUBLIC BODIES 142 APPENDIX C: JUDICIAL REVIEW CASE RESEARCH 162 v vi PART 1 INTRODUCTION INTRODUCTION 1.1 This Consultation Paper deals with the question: when and how should the individual be able to obtain redress from a public body that has acted in a substandard manner? HISTORY OF THE PROJECT 1.2 The origins of this project lie in the consultation exercise we undertook in preparing our Ninth Programme of Law Reform. 1.3 As a part of this exercise, we published a discussion paper, Monetary Remedies in Public Law, in October 2004.1 The Ninth Programme was published in March 2005, following approval by the Lord Chancellor. The Ninth Programme made provision for a scoping study to be undertaken as a preliminary step to a substantive law reform project. The scoping paper, Remedies against Public Bodies,2 was published in October 2006 and sought to delineate the scope of the project. INITIAL CONSULTATION 1.4 As this project is directly concerned with the liability of public bodies, we recognised during the preparation of this Consultation Paper that it was important to conduct early discussions with public bodies across central and local government. 1.5 During autumn 2006, we set up a government contact group comprising representatives from a number of government departments, the Local Government Association and the police. Meetings with the contact group helped us to understand how the current law affects public bodies and what the effect of any reforms might be. 1.6 In autumn 2007, a draft Consultation Paper was circulated within the government consultation group for comment from interested public bodies. The feedback received from this process raised the specific concerns that any changes to the current regime for liability in tort or judicial review could lead to “defensive administration” by public bodies and cause an unjustifiable expansion in government liability. 1.7 This Consultation Paper seeks to address these concerns within the context of creating a clear, simple and just system of redress for individuals who have suffered loss due to substandard administrative action. 1.8 To further our understanding of alternative mechanisms to court-based remedies, we have met the Parliamentary Commissioner for Administration, the Welsh Public Service Ombudsman and the Local Government Ombudsman to discuss 1 Monetary Remedies in Public Law: Discussion Paper (11 October 2004). 2 Remedies against Public Bodies: A Scoping Report (10 October 2006). 1 issues relating specifically to the relationship between ombudsmen and the courts. 1.9 We also had the advantage of a well-attended seminar with a range of academics on 26 April 2007. In addition, Justice David Ipp of the New South Wales Court of Appeal kindly agreed to speak at a seminar organised in association with the London School of Economics on 12 March 2008. Justice Ipp, who was responsible for the report that preceded the reform of negligence in Australian jurisdictions in 2002, spoke on the current state of negligence laws in Australia. 1.10 We would like to record our particular thanks to Donal Nolan and Tom Cornford, both of whom very helpfully gave us access to unpublished material.3 RESPONDING TO THIS CONSULTATION PAPER 1.11 This Consultation Paper deals with issues of vital importance to public bodies and the public at large. The question of when individuals should be able to obtain redress from public bodies necessitates fine balances of public policy and justice. 1.12 In this Consultation Paper, we suggest various options for reform which appear to us to offer a principled and balanced way forward. These are difficult issues. The proposals we present are tentative and provisional. Others will prefer to see the balances between public and private interests struck in different ways. Even those who agree with the broad thrust of our approach will see different ways of working out the details. We will be undertaking a wide consultation process in order to gather as many different views and information as possible. Details of how to respond can be found on the inside front page. 3 D Nolan, “The Reach of Breach: Breach of Duty as a Control Mechanism in Negligence” (forthcoming); T Cornford, Towards a Public Law of Tort (forthcoming). 2 PART 2 OVERVIEW 2.1 At the outset, we wish to emphasise that everything contained in this Consultation Paper is provisional and depends on the responses to consultation. 2.2 This project examines the mechanisms through which claimants can obtain redress from public bodies for substandard administrative action. In undertaking this project, we have been guided by two fundamental conclusions. The first is that, in principle, claimants should be entitled to obtain redress for loss caused by clearly substandard administrative action. The second is that special consideration should be given to the role played by public bodies when considering when and under what terms they should be liable for such losses. 2.3 Part 3 starts the discussion of redress by analysing the various mechanisms currently available for aggrieved citizens who are seeking redress for substandard administrative action. We divide these mechanisms into four broad pillars of administrative justice. The first pillar consists of internal mechanisms for redress, such as formal complaint procedures. The second pillar is composed of external non-court avenues of redress, such as public inquiries and tribunals. The third pillar consists of the public sector ombudsmen. Finally, the fourth pillar is formed by the remedies available in public and private law by way of a court action. 2.4 Our general view is that, while the vast majority of complaints are handled effectively in the first three pillars, there are a comparatively small number of “residual” complaints where the involvement of the courts is necessary. Therefore it is vital to consider the appropriateness and effectiveness of court-based remedies. 2.5 The analysis of court-based remedies is divided between those available in judicial review and in private law. In private law, we focus on the torts of misfeasance in public office, breach of statutory duty and negligence. 2.6 Part 4 builds on the analysis in Part 3 to highlight certain defects in the current law relating to court-based remedies. In judicial review, we consider that it is incorrect that damages are available in situations covered by EU law and by the Human Rights Act 1998 but are not available in other situations solely covered by domestic law.