The 1961 Whyatt Report recommendation to adopt mechanisms to deal with maladministration i. e. decisions taken with bias, negligently or unfairly, along with inspiration from the success of the ombudsmen in Scandinavian countries (where an independent and impartial person would investigate complaints of maladministration made by members of the public) resulted in the enactment of the Parliamentary Commissioner Act 1967, appointing a Parliamentary Commissioner for Administration.
(PCA) Individuals who claim to have suffered injustice in consequence of maladministration in an action taken by particular government departments or public bodies1 can enlist the aid of the PCA (provided an MP has referred the complaint. (S5 (1) PCA 1967)) Maladministration has never been precisely defined either in statute or litigation. The so-called Crossman Catalogue offered by Richard Crossman during the passage of the Bill remains the primary reference point to its definition.
This embraced "bias, neglect, inattention, delay, incompetence, ineptitude etc," which has enjoyed a rather more authoritative legal status ensuing Pepper v Hart 1993. Once established that a complainant has suffered injustice the PCA attempts to ensure that an appropriate redress is made. The recent proliferation of ombudsmen is a result of the growing concern over the conduct of certain people in the public eye following disreputable conduct by MPs and other holders of public office. There was a general sense that "sleaze" had infected the government.
These concerns let to the establishment of the Nolan Committee in 1994, resulting in a report, described by Craig as a "catalyst for the House of Commons to establish a Select Committee on Standards in Public Life. " This led to a belief that such people could not be trusted to maintain the required standard of behaviour unless there existed a body, to independently investigate them. As a result, the Parliamentary Commissioner for Standards and the Commissioner for Public Appointments came into being.
A democratic government is complex and thus the possibility of administrative error is high. It became apparent that the entailing complexities could not be adequately dealt with under the conventional system. It was thus deemed appropriate to found certain bodies whose sole purpose was to maintain standards. Hand in hand with this went the issue that the more complex a system becomes; the more likely it is that mistakes will be made, and that external bodies such as the Ombudsman could minimise such errors.
(Clothier) Furthermore, without a system of ombudsmen, individual complaints tend to be set side, in favour larger scale issues such as those of national or international importance. There was great demand for ombudsmen to oversee citizens' interests and to give a voice to those who would not otherwise be heard. This would allow the main part of organisations to continue unhindered, whilst simultaneously having a body to oversee their work to ensure fairness. This said, whilst recognising the need for a body to perform such a function, it may be questioned whether ombudsmen are needed per se.
Why cannot the courts undertake this task by way of judicial review? The courts are already overloaded; they are technical, formal, slow, and expensive. The advantages of ombudsmen and commissioners are clear: they are less daunting by being informal, cheaper and offer a real opportunity for those who, if the only option were to be the courts, would be forced to endure the situation and perpetuate the alleged injustice. Thus, the multiplication of ombudsmen is a clear and positive response to the pressures placed upon both Parliament and the courts.
The fact that the existence of ombudsmen to check on maladministration has taken hold in other areas e. g. the health service, legal services, pension, insurance, Local Government implies a positive impact and a good contribution in dealing with citizens' grievances. Nevertheless, assessing the impact, positive or otherwise, that Ombudsmen have had seems to hinge on the basic principle that how one views the objectives of the ombudsmen determines how successful one believes them to have been in dealing with people's grievances, since clearly success is measured according to perceived objectives.
As regards ombudsmen's contribution to dealing with citizens' grievances, there are a number of benefits witnessed in this field, which apply regardless of whichever school of thought one subscribes to, with regard to the 'correct' function of such bodies. Firstly, there is evidence that the knowledge that some external body may review one's work has a deterrent effect2, insofar as an official may be more careful in an attempt to avoid an allegation of maladministration in the first place.
Clearly, this is of benefit to the citizen by reducing the number of incidents prompting complaints. The PCA has no formal power of enforcement. The HL in X v Bedfordshire County Council reconfirmed that maladministration "by itself gives rise to no claim for damages. " A claim of damages must be passed on private law causes of action e. g. negligence or breach of statutory duty. Public law has not developed in such a way due to concerns that imposing liability for damage on public bodies would not allow officers to discharge their duties "expeditiously and fearlessly.
This implies that any investigation is futile; nevertheless, the PCA's reports show that his recommendations have led to a wide range of remedies. In 1995, there were 154 cases where the PCA was able to secure a remedy going beyond a mere apology e. g. departmental changes in working practice or financial compensation. Also, in 1988, it was recommended that a remedy in damages should be available where "a person suffers loss as a result of wrongful administrative action not involving negligence.
"Wrongful" was defined by Lord Diplock in GCHQ as "an action or omission tainted by illegality, irrationality, or procedural impropriety, which is thereby liable to be declared illegal, quashed, void or voidable. " Such a change was recommended through legislation but none has been passed yet. Nevertheless, developments have been made in this area i. e. the PCA's attempt to restore those who have suffered a loss due to maladministration to the position they would have been had the maladministration not occurred is causing considerable erosion.
Other factors increasing liability of public bodies in damages according to Amos is Community Damages Law development and section 8 of the HRA 1998. 6 Nevertheless, it must be remembered that the PCA has stated that no case in which he considered redress was requires "was the complainant left without it,"7 and it has been said that he does "not take no for an answer" when redress is recommended.
It is also generally accepted there is a strong political obligation on ministers to accept the PCA's findings and to take action. 9 The PCA has had remarkable success in securing financial redress for complainants, e. g. in Barlow Clowes, and it seems that in some cases the applicant who chooses to pursue a remedy for maladministration via the PCA rather than by judicial review may find that he is financially better off.
The Health Service Ombudsman also demonstrates that his recommendations are accepted, despite having no power of enforcement. Since the HSC's caseload is increasing dramatically year by year10, it becomes apparent that an increasing number of citizens are having their medical grievances settled, largely due to the ombudsman's input. Hence, it would seem that ombudsmen are a "valuable addition to the constitutional and administrative life of the United Kingdom. "