PETITION TO THE EUROPEAN PARLIAMENT
on behalf of the PHSO Pressure Group
This petition falls within a class of case that has at stake the constitutional rights of UK citizens who make complaints against the State. In recognition of Community rights and duties as having constitutional character, and the need for developing key principles and model definitions for improving the consistency and equivalence of EU administrative law and justice across Member States, and further recognizing that modernization and strengthening of public administration has been identified as an essential objective in the EU’s 2014-2020 programming period, we call upon the European Parliament to show an active interest in the outcome of the UK Government’s consultation exercise on legislative reform of the Parliamentary Ombudsman system of administrative justice and the passage of Part Four of the Criminal Justice and Courts Bill dealing with judicial review of administrative action.
Who we are
PHSO Pressure Group is a non-partisan UK pressure group, over I year old, which campaigns to improve the effectiveness and accountability of the UK Parliamentary Ombudsman set up to investigate and provide redress from complaints against the State. We have given evidence to UK Parliamentary select committees, have regular contact and consultative status with both the Parliamentary Ombudsman and with the Cabinet Office (which acts as the main liaison department for the Ombudsman). We have a prominent role in raising public concerns about the Parliamentary Ombudsman system of administrative justice. Further information is available at our website: http://phsothefacts.com/
The Parliamentary Ombudsman system of complaint handling in the UK is in crisis. It is failing in its duty of holding the Executive to account in its day-to-day encounters with citizens. Masquerading as part of the broader administrative justice system it is effectively a dustbin for complaints against the State. The Office has not proved to be an effective addition to the system of administrative justice. It is neither a “champion of the people” nor a “serious ally of the people” as suggested by Ann Abraham, a former Ombudsman in March 2007 on the 40th anniversary of the Parliamentary Commissioner Act (1967). She was equally mistaken when adding that: ” ..there is much in the present arrangements to celebrate and to nurture. The key is trust amongst the various constitutional players. With that trust, an active and positive Ombudsman can only be good for public administration and public services. Without it, we might just ﬁnd ourselves stumbling into a crisis that nobody wants.” See:
Seven years later the “trust” to which she referred has irrevocably broken down and the Office is in “crisis”. It has been clear for some time that the UK Parliamentary Ombudsman system offers second-rate justice. It does not offer just processes and just results based on the law to produce correct legal outcomes. This must change.
In June 2014 Parliament’s Public Administration Select Committee (PASC) published its latest report on the Parliamentary Ombudsman: Time for a People’s Ombudsman Service (HC 655 2013-14). Not for the first time, PASC calls for significant changes to the Ombudsman system.
At the same time the basic characteristics of judicial review, the alternative method of holding the Executive to account in the exercise of wide powers, is being undermined and is under attack. Part 4 of the Criminal Justice and Courts Bill is an attempt by the Government to reduce the scrutiny to which the Executive and the Parliamentary Ombudsman is subjected to the courts. Lord Deben, a former Cabinet minister said during a parliamentary debate on 27 October 2014: ” It is unacceptable if we have a system whereby if the government has acted illegally it can’t be brought to account in the courts” adding that: “the British defense of freedom is judicial review.” Lord Woolf, a former Lord Chief Justice warned: ” [T]he alternative amounted to an “elective dictatorship” See:
The Administrative Justice and Tribunals Council whose function it is to keep under review the administrative justice system have conceded that: “Access to judicial review is not a realistic option for most citizens.” Judicial review of the legality of Ombudsman decisions is virtually impossible because the UK courts are reluctant to interfere with the exercise of the Ombudsman’s wide discretionary powers. This situation can be criticised in terms of “legal certainty” – which is a basic principle of Community law. It is significant to point out that since 1967 only one judicial review application to challenge the lawfulness of an Ombudsman decision has been successful. The three main legal professions in England and Wales have condemned Ministry of Justice plans to prevent charities and non-governmental organizations from intervening in judicial review cases which contain matters of public interest. On top of this the Government are using austerity to try to push through measures to restrict access to justice by its cuts in legal aid. Finally, the justice system is being fractured in the Government’s pursuit of a UK Bill of Rights to replace the European Convention on Human Rights from which it wants to withdraw.
Approximation of laws and legitimate expectations
It is necessary and desirable, in our opinion, that administrative justice standards to protect citizens from abuse of power should be uniform and indivisible across EU Member States. According to Article 3 (1) (h) EC the approximation of the laws of Member States is one of the activities of the EC. Approximation can be characterized as driving change in legal and administrative rules and structures by conscious and intended Community action. The approximation of laws requires a point of reference, which the law is approximated to. For the purpose of our petition two references are applicable. The first is the “right to good administration” enshrined in Article 41 of the EU Charter of Fundamental Rights which the UK has not adopted. The second reference was created in June 2007 when the Committee of Ministers of the Council of Europe adopted the consolidated Recommendation of the Committee of Ministers to Member States on Good Administration together with a Code of Good Administration. See:
Recommendations, opinions and non-binding guidelines of the nature of the Council’s have a harmonizing effect comparable to that of open co-ordination to which Member States are presumptively expected to adapt their legal orders. In “The Administration and you. Principles of administrative law concerning the relations between administrative authorities and private persons: A handbook”: http://www.coe.int/t/dghl/standardsetting/cdcj/Handbook%20on%20Administration%20and%20You/Admin%20and%20youE.pdf the Council of Europe said:
6  As regards the significance and practical impact of Council of Europe recommendations and resolutions, it is important to observe the following: contrary to conventions which states may have ratified, recommendations and resolutions have no legally binding effect on states and governments. They do have, however, a moral and political effect on them. This effect stems from two facts: first of all, it is difficult, albeit impossible, for a government to totally ignore for a long period of time certain standards to which all or most of the other democratic states of the region pledge commitment: moreover, there can be an obvious problem with a government’s good faith in cases where a government itself is among those who have not only participated in the negotiations of a text, but also voted for its adoption in the form of a “Recommendation from the Committee of Ministers to governments of member states”. If such a government later on refuses to conform to its own appeal, politicians, citizens and all kinds of political pressure groups can use the argument at home and abroad, and lawyers might draw additional arguments from them for an interpretation of domestic legal rules in conformity with the content of such texts. This is, however, only valid if a government has not made use of its right to express reservations to all or part of a recommendation, as it can do under Article 10.2 lit (c) of the Rules of Procedure for the meetings of the Ministers’ Deputies
The Council’s 9 principles of good administration are: lawfulness, equality, impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy and transparency. The Code provides a comprehensive set of principles relating to legal arrangements, as well as codification, internal and external monitoring, and the dissemination of good practice. Together the Principles and Code create legitimate expectations the protection of which is at the root of the UK constitutional principle of the rule of law, which requires regularity, predictability, and certainty in dealing with the public. Yet, in March 2007, with presumptive knowledge that the Council’s Principles and Code would be adopted three months later, the Parliamentary Ombudsman published a distinct set of 6 Principles of Good Administration in respect to which all public bodies in the UK are expected to comply, namely: getting it right first time, being customer focussed, being open and accountable, acting fairly and proportionately, putting things right, and seeking continuous improvement. In Written Evidence dated 14 May 2007 to Parliament’s Joint Committee on Human Rights, the Ombudsman explained that:
” The purpose of the Principles is to be clear both with complainants and public bodies about the sorts of behaviour we expect when public bodies deliver public service, and the tests we apply in deciding whether maladministration and service failure have occurred.” You will see from the enclosed copy of the Principles that the very first principle makes reference to the need for public bodies to act with due regard to the rights of those concerned. See: http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/40/40we14.htm
Yet, in Principles of Good Administration: Response to Consultation dated 27 March 2007 the Ombudsman stated that: ” After careful consideration we decided against explicit reference to the Human Rights Act which might seem to give precedence to one piece of legislation over another.” See:
Later in November 2007 at a Council of Europe conference at which the Ombudsman presented: “The role of the Ombudsman in the implementation of principles of good administration in the UK” it was stated that:
“The desire to make human rights part of everything we do informs the work my Office has been undertaking to incorporate human rights considerations into our investigation of complaints. Our focus has been on raising awareness that human rights frequently affect the daily lives of many people seeking access to public services. I have also taken the opportunity to promote this approach in my discussions with Ombudsman colleagues in Europe. I spoke in Vienna at a General Assembly of the European Region of the International Ombudsman Institute last year; and I have just returned from a Round Table of European Ombudsmen and the Council of Europe’s Commissioner for Human Rights in Athens where we explored, amongst other things, the scope for co-operation between Ombudsmen and National Human Rights Institutions. I enclose a copy of my Vienna speech to give you a flavour of the sort of approach that I am seeking to take and that will shape my future approach to complaints touching upon the human rights of people …… Relevant too are the Principles of Good Administration recently published by my Office.”
” We need to follow up the launch of the Principles by first of all making sure that PHSO practices what it preaches, that we implement the Principles internally. And to keep awareness of the Principles high so that public bodies in jurisdiction have regard to them and put them into practice. We want the Principles to become second nature for those involved in public service”
There is a sufficient body of evidence to show that the Ombudsman does not practice what it preaches. It systematically breaches rights guaranteed by the European Convention on Human Rights (procedural such as right to a fair hearing under Art 6). In evidence to the UK Parliament (PASC) this year we pointed out that: “The main reason for our dissatisfaction is the systematic manipulation and denial of the facts by [the Ombudsman] in order to find no case to answer or minimize the case against the public body concerned and their total lack of accountability when their poor decision making is criticized.”
A detailed critique of what are the public’s concerns about the Parliamentary Ombudsman is set out in our various publications available here: http://phsothetruestory.com/report-into-reform-of-the-ombudsman/ and here: http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/4751.
Responsibility for law reform in England and Wales rests with the Law Commission. In May 2014 a Ministry of Justice report on implementation of Law Commission proposals stated that the Government intended to respond in summer 2014 to proposals made in July 2011 in its report on Public Services Ombudsmen (Law Com No 329). To the best of our knowledge this has not yet happened. The Law Commission is silent on the Council’s Principles and Code and makes no recommendation to enforce convergence of a Euro standard by insertion into the UK legal order to ensure full protection of Community rights and adherence to equal standards and so bring the various routes into one highway. Instead the Law Commission writes:
” 6.11 We think that the recent development of publishing principles and showing broad examples of best practice is to be encouraged. Ombudsmen are in a unique position as an independent redress mechanism with the capacity to produce such material”
“6.12 A risk here is that there is overlap with the role of other bodies, such as the Administrative Justice and Tribunals Council… potential duplication should be avoided” [Footnote 83 states: “The AJTC recently consulted on potential principles of administrative justice: Principles of administrative justice – consultation draft (2010)”]
“6.14 We do not, however, feel that it would be appropriate to give such principles or codes of practice legal effect. The purpose of these would be to suggest good practice based on the ombudsman’s knowledge of the public sector rather than to allow additional regulatory burdens to be imposed on the public sector”
Significantly, in their second report of 2014: “More complaints please!” PASC concludes that: ” Government as a whole cannot be said to be complying with best practice in complaints handling or adapting to the needs and expectations of today’s citizen” See:
On the EU Principle of “transparency” whereas the Law Commission acknowledges at 5.18 that: “……[t]he closed nature of ombudsmen investigations does not necessarily fit with modern requirements of public administration….closed investigations mean that the methodology adopted by the public sector ombudsmen in their investigations is harder to scrutinize. This can lead some to query the independence of the public services ombudsmen from those they are tasked to investigate…”, it nevertheless recommends that: “…the vast majority of investigations should still be conducted in private”. The effect of this stance is that no Ombudsman jurisprudence has been nor can be built up as distinct from case law derived from judgements made in open courts.
In conclusion, Law Commission proposals for domestic legislation should be consistent with the UK’s obligations as a member of the European Union. The disparities in terms of convergence and equivalence, in particular the explicit expectations of “legal certainty”, “lawfulness”, “participation” and “impartiality” can no longer be overlooked. Article 95 EC speaks of ‘laws, regulations or administrative processes’ referring primarily to the means of positive (statutory) law. It is necessary and desirable, in our opinion, that the Council of Europe Principles and Code should be recognized as the minimum standards for development of UK Government policy and reform of the law in relation to complaints against the State. We urge the European Parliament to intervene and participate in the law reform process currently underway in the United Kingdom. It matters to every citizen that we get this right.