Constitutional and Administrative Law Notes PDF

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Constitutional and Administrative Law NotesTOPIC 1: PARLIAMENTARY OMBUDSMAN (PART 1)Background - Whyatt Report The Citizen and the Administration (1961) - If you have a complaint, you will go to an MP - The ombudsman comes from the Swedish - The ombudsman is a person who soles citizen’s complaints, ...

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Constitutional and Administrative Law Notes TOPIC 1: PARLIAMENTARY OMBUDSMAN (PART 1) Background • Whyatt Report The Citizen and the Administration (1961) • If you have a complaint, you will go to an MP • The ombudsman comes from the Swedish • The ombudsman is a person who soles citizen’s complaints, and attempts to the improve the administration of injustice • Can you use these complaints to improve the administration? • Grievance redress or improving administration? The Ombudsman • Appointed by Crown – Not a civil servant • Reports to the House of Commons – Annual report on the performance of the ombudsman to the public administration constitution committee – Special reports, eg, Equitable Life • Reports examined by Public Administration Committee Jurisdiction • The Commissioner may investigate any action taken by or on behalf of a government department or other authority to which this Act applies [Schedule 2]- which bodies are covered, being action taken in the exercise of administrative functions of that department or authority • The ombudsman jurisdiction are central government departments or other authorities which are listed in legislation. Needs to be listed to be covered (the list may or may not cover the body that you are concerned about) • A complaint by a member of the public who claims to have sustained injustice in consequence of maladministration • In England. (not UK wide) Bodies not covered by the PCA • Health service – Health Service Ombudsman • Local Councils – Local Ombudsman • Police – Independent Police Complaints Commission • Prisons and Probation – Prisons and Probation Ombudsman • Financial services – Financial Services Ombudsman • Television etc – Ofcom • Utilities (energy, water, telecommunications, post) Maladministration • Not defined in Act • Crossman catalogue defines maladministration: bias, neglect, inattention, delay, incompetence, ineptitude, arbitrariness etc. • Concern is where the complaints should go and the relationship b/w the courts and the ombudsman

Limits on jurisdiction • Cannot go to an ombudsman (No action where – Right of appeal to tribunal – Right of action in court of law • Unless not reasonable to expect them to take it up • No action (Schedule 3 – cannot investigate matters in) – International relations – Commercial or contractual matters – Award of honours – Action authorised by SS for investigating crime or security of state – Court proceedings Procedure • Complaints must be made to your MP, who then passes it onto PCA • Have to complain initially to the MP and then passes it to the ombudsman (Standard function of MP) • HAVE TO MAKE YOUR COMPLAINT IN WRITING • Investigation by PCA • Say roughly why you think there is a problem, they then will go to the department in complaint and if necessary will check the department’s files and documents • Will go in and look at all documents of the department to find out what happened • Issues a report to the department and to the claimant • Summaries what has been found and if injustice has been occurred and if so, these are the recommendations on what can be done to improve • Remedy is not binding on Department Conclusions • What is the role of the Ombudsman? – History – a minor body – Recently – improving administration • Should jurisdiction be enlarged? – Removal of MP filter – Removal of some bars • Stronger remedial powers? PARLIMANENTARY OMBUDSMAN – ASSESSMENT AND FUTURE (PART 2) Change of orientation of PCA (2007) • Principles of Good administration (2007) – To provide an independent, high quality complaint handling service that rights individual wrongs, drives improvements in public services and informs public policy. • From 2013, more cases • Recently much more criticism of PHSO – PHSO had significant problems, roughly 2013-16 Problems with government – Compensation for interned civilians • Ex gratia (discretionary or by choice) compensation scheme for interned British civilians in WWII in Far East  Definition of British not worked out in advance • PCA found maladministration • MoD rejected recommendation to review scheme • Public Admin Ctte concluded PCA was right in findings • MOD reviewed the scheme which then produced another ombudsman report

Final salary pension schemes • Loss of pensions when private sector schemes wound up without money to pay pensions – 1997-2004 - 125,000 people affected • The government regulates the pension schemes • Ombudsman investigation – Information misleading – led members to think entirely safe • Could have taken alternative steps – Government should consider compensation – Government rejected finding of maladministration – Bradley – findings can be rejected, but only if reasons Bradley • • • • •

Judicial review of government’s rejection Court said the minister can reject, only if there is a reason for doing so The court puts a limit on what can make them reject. Makes it difficult for the MP to reject CA – Minister can reject finding of maladministration Can only reject be finding if has a reason, other than disagreement, for this.

Equitable Life • Life insurance company unable to pay its policies • At the end of the period, may get a lump sum back. Put aside a money over the years, company invests it and is able to get the money back • Regulated by the government, gives the ombudsman jurisdiction over it • Should have picked up what was going wrong and should have produced an independent compensation scheme • Ombudsman: Failure of regulatory responsibility – Recommended independent compensation scheme • Labour Government accepts some, but not all of the PCA’s findings • Coalition government accepts findings in full, but did not pay out completely Equitable Life – RESPONSE • Government accepts some, but not all of the PCA’s findings • Rejects remedy of independent compensation scheme • Scheme for ex gratia payments to those disproportionately affected (not very popular) • After advice from High Court judge (Chadwick) Equitable Life – UPDATE • Coalition government accepts Ombudsman’s findings in full – Rejects final findings of Chadwick • Due to public spending restrictions, will only provide partial compensation • Legislation passed to allow payments • The governments refusal to engage with these remedies • The government sometimes accepts they have gotten it wrong and have been very reluctant to provide remedies which makes it difficult to the ombudsman CONCLUSION • Significant shift in PCA’s view of its work – Recently more cases • Brought it into greater conflict with government • Problems – Jurisdiction

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MP filter Remedies

The Future? PAC • Abolish MP filter • Allow telephone, e-mail complaints • Own initiative investigations • Oversee complaint handling • Single public services Ombudsman for England Ombudsman’s wishes • One Public Ombudsman service • Dual track • Own initiative investigations The future – the government • New Public Services Ombudsman – Parliamentary and Health Service Ombudsman combined with Local Government Ombudsman • No “wrong door” approach – Minded to go for dual track approach re MP filter • Champion improvements in complaint handling • Investigative tools – Joint investigations – Widen investigation to cover similar cases – Share reports – But not own initiative investigations TOPIC 2: ILLEGALITY The grounds • Illegality • Procedural impropriety/fairness • Abuse of discretion What is illegality? • DEFINITION – “the decision-maker must understand correctly the law that regulated his decision-making power and must give effect to it” • Ultra Vires - “Beyond the powers” - Theory of constitutional role of judicial review - Administrative lawyers like to use this term - Abusing their power when given the right to make a decision  Giving the public bodies the power to make a decision, but can only do so when the statute says • Public bodies powers are in statute • They can only do what the statute says • To carry out their functions, they will need to interpret the law (what are the terms of the statute?) and apply this to a particular set of facts - Note – the statute may provide for a route to appeal a decision made in breach of its terms • Action within the boundaries of the power granted by the statutory provision – intra vires • Action outside the scope of the power – ultra vires Example • AG v Fulham Corp (1921) • These acts give them power to set up washing facilities

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• Fulham decided to confer a lasting benefit Household problem solved! A boon to housewives!!! The council has established a department at the baths and wash-house, for the purpose of relieving Housewives to a great extent of this most laborious work • Went along buy a bag and they would wash the clothes for you • Tax payers were not keen on this, judicial review was brought saying that they didn’t have the power to do this as it was not seen in the statute • It was all about providing the basic facilities National Aids Trust (2016) - NHS refusal to consider funding pre-exposure prophylaxis (PrEP) drug - About a life transforming drug, a lot safer than condoms in protecting HIV - NHS spent a lot of money researching, however, decided to not make it available as they do not have the power to fund the drug from preventing the public in getting the illness - Only have the power to fund preventive drugs - Take NHS to court, looking at the wording of the statute, saying that they do have the power to do this - Did the NHS have the power to provide PrEP to individuals with a high risk of HIV infection? Public Law Project (2016) - Was the Lord Chancellor’s (Chris Grayling MP) proposal to introduce a residence test for civil legal aid lawful? - This would be done by amending the LASPO Act 2012 via secondary legislation - Don’t have the power to introduce a test, which then makes it way to the supreme court - Don’t have the power, the statute is about relating to the service

Are all errors reviewable? • How much judicial review do we want? • There have been different views: – The Pure Theory • Once started on inquiry, cannot lose jurisdiction – Condition precedent • Errors that go to jurisdiction (reviewable) • Errors within jurisdiction (not reviewable) – Error of law • All errors of law are reviewable (Anisminic) Anisminic (1969)  The president has nationalized the sews canal and annoyed about the behaviour of the English and nationalized the English properties  One of these properties is animinic  This crisis is resolved and Egypt agrees to pay compensation to those companies they have taken over • Foreign Compensation Commission (FCC) – distribute tis money from the Egyptian government • Animinis applies for compensation • Duty under statute to distribute compensation to businesses which had had property confiscated by the Egyptian Government • No compensation awarded to Anisminic Ltd. TEDO (its successor in title was not a British national • The FCC had “jurisdiction” in the narrow sense, but they had gone on to misinterpret the statute • Go to court, how do they have the power to refuse. They had made a legal error in the statute. Did not interpret correctly • They had the power, the court would not have stepped in at all, but they did even if there was a small error of the statute, beyond the powers • This did not matter. You only need to look at Lord Reid’s judgment

Post – Anisminic • Standard view – all errors of law are jurisdictional – Page • All positions of law are reviewable • But courts not always willing to intervene • Page (1993) – university visitor • Involves an academic who is fired • A university visitor hears reviews whether this firing was allowed • He then concludes that the firing is fine, he applies the university rules in the wrong way • Court determine that all legal errors are beyond power • These are university regulations • The court does not intervene in this matter then • Shown the logic of anisminic, will only intervene if the matter has to do with law • Cart (2011) – new tribunal system • Tribunals, Courts and Enforcement Act 2007 • The Upper Tribunal is a “superior court of record” • Mr Cart argues that changes to his child maintenance payments are unfair • He goes to the tribunal and they dismiss his claim • And tries to appeal to the upper tribunal, superior court of records. Higher authority. They decide that they are not going to appeal. • Changes his refusal • Unsuccessful and refused permission to appeal by UT • JR to challenge the refusal • DC – The UT is the alter ego of the High Court and only subject to JR in the “grossly improbably event” of it acting clearly beyond the four corners of its statutory remit • Judicial review is limited if it exceeds its expectations • CA – Not alter ego, but JR limited to where it exceeds its jurisdiction • SC – a principled and proportionate approach (Hale): • JR only if: - General point of principle or practice - Some other compelling reason What about errors of fact? • The fact/law distinction • E v Home Department (2004) – Must be a mistake as to an existing fact – Must be uncontentious fact – Applicant must not be culpable for mistake – Mistake must have played material part in tribunals reasoning • These need to be satisfied, if they have the wrong facts, then we have illegality. Applying the wrong facts. TOPIC 3: PROCEDURAL IMPROPRIETY (PART 1 – CONSULTATION) Procedural impropriety  DEFINITION – LORD DIPLOCK o “failure to observe basic rules of natural justice”, “failure to act with procedural fairness towards the person who will be affected by the decision”, and “also failure … to observe procedural rules … expressly laid down in … [legislation] …, even where such failure does not involve any denial of natural justice”.  Consultation o Policy decisions o A broad section of society is affected by such decisions

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Fair hearing o When is there a right to a fair hearing? o What does a fair hearing look like? o Duty to give reasons o Bias

Procedures • People are entitled to be treated fairly • Procedures can delay decision making, can be costly • So there needs to be a balance • Fair procedures lead to better decisions – Although note costs to fairness Consultation • No general requirement before bringing in primary legislation • Primary legislation • MPS debate legislation • Recommended: Cabinet Office Code of Practice Statutory rights to consultation • Aylesbury Mushrooms (1972) – Imposition of tax levy, ie a tax – strict construction – Public body was required to consult agriculture societies before imposing this levy – Minister sent the consultation documents, never received this information about this incoming tax – And take them to court saying that they did not receive this letter – Should have introduced this tax to the public – The public body here did not follow the correct procedure – Required to consult the mushroom growers Common law rights to consultation • Liverpool Taxi Fleet (1972) – Explicit promise – There was a requirement to upheld your promise • GCHQ (1985) – A previous practice on consultation – not an explicit promise – Plan to change the terms and conditions for the people working here. There was news about strike – Remove the trade union from the company such that they cannot go on strike – The unions were struggling, should have consulted – When changing the terms and conditions, there has been consistent past practice of consulting. They were expected to consult Past practice  Bhatt Murphy (2008) o Impact of past practice pressing or focused o Changes to legal aid of miscarriage of justice o Should have consulted o The courts upheld that this will impact certain individuals  Harrow Community Support (2014)  Plantegenet Alliance (Richard iii) (2014) o Wanted to fig up a car park as they thought Richard was underneath it o Needed to a licence from the ministry of justice

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No one expected them to find anything But they did, and the decision to rebury him was consulted needed to be required They argued that he should not be buried in Leicester Past practice shows that they require consultation

Consultation requirements under the common law  Plantagenet Alliance (Richard III) (2014) – Lady Justice Hallet (para 98):  There is no general duty to consult at Common Law. The government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by his decision. …  There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to consult…  The Common Law will be slow to require a public body to engage in consultation where there has been no assurance, either of consultation …, or as to the continuance of a policy to consult … Meaningful consultation • Lee v DES (1968) – 3-4 days not enough – Decision to close a school and consults the parents and staff – Tells them this is going to happen and gives them a few days to respond • Gunning (1985) – Criteria for a valid consultation – Proposals at formative stage – Sufficient reasons for proposals – Adequate time – Product of consultation taken into account • Moseley (2014) – Changes to Council tax discounts, students will be able to get discounts – Central scheme for relief replaced by local scheme. – Consulting on how thye would implement these changes locally – But they do not give alternative options – Goes to court – To what extent do alternatives have to be explained? – Do have to put more reasonable options • But cf Rusal (2014) – Metal trading in London – Change the regulation on the buying and selling of metal – When they consulted the traders, they put out one option – The court said that this consultation was fine – This is a commercial context. They already know all of the options Effect of failure to consult • AMA (1986) – Failure to consult over housing benefit regulations – Unlawful, but regulations not quashed: administrative inconvenience, not much point

PROCEDURAL IMPROPRIETY (PART 2 – NATURAL JUSTICE) When do we have a right to a fair hearing? Natural justice 1. Hear the other side” – Audi alteram partem 2. No one may be the judge in their own cause” – Nemo judex in causa sua Fair Hearing • Cooper (1863) – Constructs a house didn’t get permission to do so – Local authority finds out about it – And they decide to knock down the house – Goes to court saying that he should have been given a hearing – … although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. (Byles J) When is there a right to a fair hearing? • Ridge v Baldwin (1964), Lord Reid – Chief Constable dismissed – Does the decision interfere with another’s rights/interests • Re HK (1967) – Immigration decision – Fairness • Doody (1993), Lord Mustill – Life sentence for murder Fair Hearing – Lord Mustill in Doody (1993) What does fairness require in the present case? … [It].. is essentially an intuitive judgment. …. (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness … may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a ...