Britain's Parliamentary Commissioner for Administration
Chapter Four
Syllabus topic 1, "Ombudsman"
Pages 14 to 17 of 1033
In one line
Britain created its ombudsman in 1967, called him the Parliamentary Commissioner for Administration, and added one feature no other country had: a citizen cannot approach him directly but must go through a Member of Parliament.
In the wording a student can write in an exam: the Parliamentary Commissioner Act 1967 established the office of Parliamentary Commissioner for Administration in the United Kingdom, appointed by the Crown, holding office during good behaviour until retiring age, with jurisdiction to investigate complaints of injustice in consequence of maladministration in the exercise of administrative functions by the departments and authorities listed in Schedule 2; a complaint reaches him only through a Member of the House of Commons, and his report goes to that Member and, in a case of unremedied injustice, to Parliament.
Why Britain resisted the idea, and then took it
The intellectual obstacle was Dicey. The English constitutional tradition held that the ordinary courts protected the citizen against officials and that ministerial responsibility to the House protected the citizen against the Government, and that a separate machinery for administrative complaints was therefore both unnecessary and a step towards the French system of separate administrative courts, which Dicey regarded as a denial of the rule of law.
Two things dissolved the obstacle.
The administrative state grew. The Crichel Down affair of 1954, in which land compulsorily acquired before the war was not returned to its owner and the handling was found to have been high-handed, showed that a citizen could be gravely wronged by conduct no court would touch and that only a special inquiry brought the facts out.
Justice reported. The British section of the International Commission of Jurists set up a committee under Sir John Whyatt, and the Whyatt Report of 1961, "The Citizen and the Administration", recommended an ombudsman on the Scandinavian and New Zealand model. The Government of the day rejected it. The Labour Government elected in 1964 adopted it, and Richard Crossman, Lord President of the Council, introduced the Bill.
The Act of 1967 in outline
The office. A Parliamentary Commissioner for Administration, appointed by the Crown on the advice of the Prime Minister, holding office during good behaviour to retiring age and removable only on addresses from both Houses. The tenure is deliberately modelled on a judge's.
Independence. Salary charged on the Consolidated Fund, so it does not require an annual vote. The same device appears in India for the Comptroller and Auditor-General, for the Central Vigilance Commission and for the Lokpal, and for the same reason: a body whose money must be voted every year can be starved.
Jurisdiction. Government departments and authorities listed in Schedule 2 to the Act, in the exercise of administrative functions. The list is amendable by Order in Council, so the reach of the office is fixed by a schedule and not by general words.
Britain's Parliamentary Commissioner for Administration
The trigger. A written complaint by a member of the public who claims to have sustained injustice in consequence of maladministration.
The exclusions. Matters in which the complainant has or had a right of appeal to a tribunal or a remedy in a court of law, unless the Commissioner is satisfied it is not reasonable to expect him to resort to it. Also excluded are foreign affairs, extradition, the investigation of crime and national security, contractual and commercial transactions, and personnel matters in the armed forces and the civil service.
The output. A report to the Member who referred the complaint, a report to the department, and where injustice has been caused and not remedied, a special report to both Houses.
The Select Committee. The House of Commons appointed a Select Committee on the Parliamentary Commissioner to consider his reports, which gives the office a parliamentary partner in exactly the way the Public Accounts Committee is the partner of the Comptroller and Auditor-General. Chapter 1010 develops that comparison.
The MP filter, and the argument about it
What it is. A complaint must be sent to a Member of the House of Commons, and the Member must refer it to the Commissioner with the complainant's consent. There is no direct access.
The argument for it. It preserves the constitutional position that a citizen's grievance against a department is raised through his representative, so the ombudsman reinforces rather than displaces the House. It also filters out complaints that a Member can settle with a letter, which is most of them, and keeps the Commissioner's workload manageable.
The argument against it. It puts a political officer between a citizen and an independent investigator. A citizen who does not know his Member, or whose Member declines, has no remedy. Every other country in the world has managed without it, and the Justice-All Souls review of 1988 recommended its abolition.
Why it matters here. India considered the filter and rejected it. The Lokayukta Acts and the Lokpal Act allow a citizen to complain directly. When a question asks you to compare the Indian institution with the British one, the filter is the first difference to name and the most defensible one to have rejected.
A worked example
Mrs Hollis is refused a disability allowance in 1975. The refusal is within the rules. The file shows the department lost her medical evidence, decided without it, told her nothing for seven months and then wrote a letter that did not answer her question.
Step one. She cannot write to the Commissioner. She writes to her Member of Parliament.
Britain's Parliamentary Commissioner for Administration
Step two. The Member writes to the department. In most cases this ends the matter, because a departmental official answering a Member's letter reads the file properly, perhaps for the first time.
Step three. The department's answer is unsatisfactory, so the Member refers the complaint to the Parliamentary Commissioner with Mrs Hollis's consent.
Step four. The Commissioner obtains the file, interviews the officers, and finds maladministration: the loss of evidence, the decision taken without it, and the delay.
Step five. He reports to the Member and to the department. The department apologises, reconsiders, and makes a payment for the delay.
Step six, if it had refused. The Commissioner would lay a special report before both Houses. The Select Committee would take evidence from the permanent secretary in public. That is the machinery, and its force is entirely political.
Distinctions: Britain against Denmark, and against India
| Denmark 1955 | Britain 1967 | India, Lokpal Act 2013 | |
|---|---|---|---|
| Access | Direct | Through a Member of Parliament | Direct complaint |
| Appointed by | Folketing | The Crown on the Prime Minister's advice | President, on a Selection Committee's recommendation |
| Covers grievances | Yes | Yes | No, allegations of corruption only |
| Covers corruption as a crime | No | No | Yes, with an Inquiry Wing and a Prosecution Wing |
| Can prosecute | No | No | Yes |
| Parliamentary partner | Folketing | Select Committee on the Parliamentary Commissioner | None equivalent |
What beginners get wrong
That the British Commissioner is appointed by Parliament. He is not. He is appointed by the Crown on the Prime Minister's advice, which is an executive appointment, and his parliamentary character comes from the filter, the Select Committee and the reporting duty rather than from the manner of appointment. Students who write that Britain's ombudsman is appointed by Parliament have made a factual error that a careful examiner will notice.
That maladministration is defined in the Act. It is not. The Act uses the word and leaves it undefined, deliberately, for the reason Crossman gave in the debate.
That the office can overturn a decision. It cannot. It reports. Every classical ombudsman is in the same position, and the Indian departure from it in 2013 is the interesting thing about the Indian statute.
Quick revision
Statute: the Parliamentary Commissioner Act 1967. Office: Parliamentary Commissioner for Administration.
Preceded by: the Crichel Down affair of 1954 and the Whyatt Report of 1961, "The Citizen and the Administration", from Justice.
Appointment: by the Crown on the Prime Minister's advice; good behaviour to retiring age; removable on addresses from both Houses; salary charged on the Consolidated Fund.
Jurisdiction: departments and authorities in Schedule 2, in the exercise of administrative functions; excluded where a court or tribunal remedy exists, and in foreign affairs, crime, security, commercial transactions and service matters.
Britain's Parliamentary Commissioner for Administration
The trigger: injustice in consequence of maladministration, undefined in the Act.
The MP filter: no direct access; complaint through a Member of the House of Commons.
The partner: the Select Committee on the Parliamentary Commissioner.
Test yourself
1. What was the constitutional objection to an ombudsman in Britain, and what overcame it? The Diceyan position that the ordinary courts plus ministerial responsibility to Parliament were a complete protection, and that separate administrative machinery was a step towards the French system. It was overcome by the Crichel Down affair of 1954, which showed a citizen could be gravely wronged without any legal remedy, and by the Whyatt Report of 1961 recommending the Scandinavian and New Zealand model.
2. Explain the MP filter and state the argument on each side. A complaint may reach the Parliamentary Commissioner only through a Member of the House of Commons, who refers it with the complainant's consent. For: it preserves the constitutional route of the citizen's grievance through his representative, reinforcing rather than displacing the House, and it filters out complaints a Member can settle himself. Against: it interposes a political officer between the citizen and an independent investigator, and a citizen whose Member declines has no remedy.
3. Give three differences between the British Commissioner and the Indian Lokpal. Access: through a Member in Britain, direct in India. Subject matter: injustice from maladministration in Britain, allegations of corruption in India. Powers: report and recommendation in Britain, and in India an Inquiry Wing, a Prosecution Wing, attachment and confiscation and trial in special courts.
4. Who appoints the British Parliamentary Commissioner, and why is the answer a trap? The Crown, on the advice of the Prime Minister, so it is an executive appointment. It is a trap because the office is called parliamentary and students assume Parliament appoints him; its parliamentary character comes instead from the MP filter, the duty to report and the Select Committee that examines those reports.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.