Easter
Term
[2016] UKSC 22
On appeal from: [2014] NICA 11
JUDGMENT
In the matter of an application by JR55 for Judicial
Review (Northern Ireland)
before
Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Toulson
JUDGMENT GIVEN ON
11 May 2016
Heard on 8 March 2016
|
Appellant
Tony McGleenan QC
Philip McAteer BL
(Instructed by
Browne Jacobson LLP)
|
|
Respondent
David A Scoffield
QC
Gerard Boyle
(Instructed by
Carson McDowell Solicitors)
|
LORD SUMPTION: (with whom Lord
Neuberger, Lord Clarke, Lord Carnwath and Lord Toulson agree)
Introduction: Ombudsmen
1.
The Parliamentary Commissioner Act 1967 created for the first time in
the United Kingdom an officer, the Parliamentary Commissioner for
Administration, charged with investigating complaints of maladministration
against government departments and a limited number of other public authorities
exercising the functions of the Crown or controlled or funded by the Crown.
Since then, ombudsmen have come to fulfil an increasingly important role in
mediating between the state and the public service on the one hand and the
citizen on the other. Commissioners have been established for complaints
against the National Health Service since 1973, for complaints against local
government since 1974 and for complaints against social housing landlords since
1996. There are also separate Commissioners charged with examining complaints
against public bodies or the providers of public services in Scotland, Wales
and Northern Ireland. There are currently 19 statutory officers charged with
the handling of complaints against government departments, local government,
the National Health Service and other public authorities or undertakers. They
are generally known as ombudsmen, after the officer of that title first
established in Sweden in 1809. In some cases, the same person performs the
functions of more than one ombudsman, but each role has its own statutory
basis. The various enactments have a strong family resemblance. But some of
them have distinctive features which mean that considerable caution is required
before principles derived from one legislative scheme can be read across to
another.
2.
In 1969, two ombudsmen were established for Northern Ireland. The
Parliamentary Commissioner Act (Northern Ireland) 1969 established a Northern
Ireland Parliamentary Commissioner for Administration (later known as the
Assembly Ombudsman for Northern Ireland). His role and powers were closely
modelled on those of the Commissioner established by the United Kingdom Act of
1967. The Commissioner for Complaints Act (Northern Ireland) 1969 established a
Northern Ireland Commissioner for Complaints. I shall call him the “Complaints
Commissioner”. He is charged with reporting on complaints against bodies which
were not within the jurisdiction of the Northern Ireland Parliamentary
Commissioner, notably local authorities, the Northern Ireland Health Board and
various public statutory undertakers. Since 1972, the same person has held both
offices. But until recently (see below) his two roles have had distinct
legislative foundations. It is therefore necessary to have regard to the
particular capacity in which an ombudsman is acting and the particular
legislation governing that function in order to determine what his powers are.
The current legislation comprises two Orders in Council made on the same day in
1996, which repealed and replaced the corresponding Acts of 1969.
They are the Ombudsman (Northern Ireland) Order 1996 (SI
1996/1298 (NI 8)), governing the work of the Assembly Ombudsman, and the
Commissioner for Complaints (Northern Ireland) Order 1996 (SI 1996/1297 (NI 7)),
governing that of the Complaints Commissioner.
3.
This appeal is about the powers of the Complaints Commissioner under the
latter order, which I shall call “the 1996 Order”. In particular
it is about his powers in relation to general medical practitioners working in
the National Health Service. In Northern Ireland, as in other parts of the
United Kingdom, the National Health Service is one of the main sources of
complaints. The original jurisdiction of the Complaints Commissioner extended
to the various boards and committees responsible for the administration of the
National Health Service in Northern Ireland. But it was confined to
maladministration and did not extend to any “action in the discharge of a
professional duty by a medical or dental practitioner, pharmacist, nurse,
midwife or member of a profession supplementary to medicine in the course of
diagnosis, treatment or care of a particular patient”: see the Commissioner for
Complaints Act (Northern Ireland) 1969, Schedule 2, paragraph 4. That
jurisdiction was preserved in the 1996 Order. But the position was
significantly altered by an amendment of 1997, which followed a similar
amendment to the United Kingdom legislation. Its effect was to extend the
Complaints Commissioner’s jurisdiction to “the merits of a decision to the
extent that it was taken in consequence of the exercise of clinical judgment”:
see article 8(7) of the 1996 Order as amended.
4.
The main questions at issue in this appeal are whether, and if so in
what circumstances, the Complaints Commissioner has power to recommend the
payment of a money sum to a complainant; and whether in the event that that sum
is not paid he has power to make a special report drawing the attention of the
legislature to that fact. The Northern Ireland Court of Appeal decided that the
answer in each case was No.
5.
These questions will shortly become moot. The Public Services Ombudsman
Act (Northern Ireland) 2016 abolishes the offices of both the Assembly
Ombudsman for Northern Ireland and the Complaints Commissioner with effect from
1 April 2016, and combines their functions in a new officer, the Northern
Ireland Public Services Ombudsman. The jurisdiction and powers of the new
office are in some respects greater than those of either of its predecessors, and
his mode of operation different. But the new Act has no bearing on the present
appeal. The transitional provisions provide for current matters to be
transferred to the Public Services Ombudsman, but to be dealt with by him in
accordance with the 1996 legislation. We have been told that there are some 53
reports completed since the decision of the Court of Appeal which have been
held back pending the determination of this appeal, and that in four further
cases payment of a money sum has been recommended but the recommendation has
not been followed.
The facts
6.
The respondent is a general medical practitioner in sole practice in
Northern Ireland. The National Health Service operates in Northern Ireland
through a Health and Social Care Board. The respondent provides general medical
services under contract with the board for his area under Part VI of the Health
and Social Services (Northern Ireland) Order 1972 (SI 1972/1265 (NI 14)). This
means that complaints against him are liable to be investigated by the Commissioner
under article 8 of the 1996 Order. I shall deal below with the scope of that
article.
7.
The complainant is the widow of one of his patients, who has been
referred to in this litigation as “R”. R died on 6 January 2009 of a myocardial
infarction. The complaint concerns the care and treatment received by him
during the last eight months of his life. He attended the respondent’s surgery
on 30 May 2008 to ask for a heart screen. Although he had no symptoms and was
not complaining of chest pains, he was referred to a NHS hospital for a
treadmill test. The test was carried out in July, but terminated early due to
fatigue. The test recorded “negative for ischaemic heart disease” at the level
of exercise attained at the time it was terminated. A report to this effect was
sent to the respondent, whose staff recorded it on the practice computer
system, but no action was taken.
8.
On 10 December 2008, R attended the surgery again, this time complaining
of chest pains. He was seen by a locum doctor, who noted “typical angina pain
but normal treadmill earlier in the year”, but again, no action was taken. R
returned to the surgery on 15 December 2008 complaining of further chest pains.
He saw the respondent, who referred him to the Rapid Access Chest Pain Clinic
at the same hospital. The clinic, however, declined to give him an appointment,
because the earlier treadmill test had been negative. They suggested in a
report dated 20 December that if any further medical review was required R
should be referred to the outpatients department. Their report arrived at the
practice on Christmas Eve, and was input into the practice computer system. The
respondent was on holiday. The locum was on duty, but she did not review the
report because it was not marked urgent. R returned to the surgery on 6 January
2009 to find out what had happened about the referral to the clinic. The locum
told him that an appointment had been refused, but referred him to the clinic
as an outpatient for a treadmill test, as suggested in the report. He died
later that day, before anything had been done to follow up this suggestion.
9.
Mrs R complained to the Complaints Commissioner. She gave his officials
to understand that she was not looking for compensation but wished to
understand what had happened. The Commissioner agreed to undertake the
investigation, and in due course reported. He concluded that the practice had
failed to provide a reasonable level of care and treatment. In particular, he
found that it was guilty of maladministration in (i) failing to take action
after the treadmill test, (ii) failing to follow up promptly the clinic’s
failure to give R an appointment, and (iii) failing to refer R to the emergency
services on 6 January 2009. He also found that the respondent had acted
inappropriately after R’s death in (iv) prematurely assigning responsibility to
the hospital, (v) discouraging the family from making a complaint, and (vi)
having promised to contact the hospital about Mrs R’s complaint against them,
failing to get back to Mrs R after doing so. The Complaints Commissioner made
no finding that these failures caused the death of R, and the facts that he has
found do not suggest that they did. He specifically found that the failure to
take appropriate action on 6 January 2009 made no difference to the outcome.
But at para 70 of his report he concluded:
“I have identified learning points
earlier in this report for the Practice and I recommend that [the GP] acts upon
them. I also recommend that the Practice should pay [the complainant] £10,000
in respect of the clearly identified failings in the care provided to [the patient]
and the events which consequently followed.”
10.
The respondent has apologised to Mrs R and, as the Complaints
Commissioner’s report observes, has put in hand changes to his practice’s
procedures designed to avoid a recurrence of the administrative failings. But,
having taken legal advice, he has declined to pay the money sum recommended, on
the ground that he was not legally bound to do so. The Complaints Commissioner
has responded by saying that in that case he was minded to issue a “special
report” to the Northern Ireland legislature reporting the respondent’s failure
to comply with the recommendation.
The Commissioner for Complaints (Northern Ireland) Order
1996
11.
The Complaints Commissioner is empowered to investigate and report on
complaints made to him by those claiming to have suffered injustice as a result
of the conduct of certain bodies and persons. The bodies and persons in
question, and the matters which he is empowered to investigate are identified
by articles 7 to 10 of the Order. The scheme of these provisions is that
article 7 provides for the investigation of complaints about maladministration
by any of the bodies listed in Schedule 2. These are all non-departmental public
bodies exercising functions conferred on them by statute. Schedule 2 may be
amended by Order, but article 7(3) provides that such an Order may extend its
operation only to bodies which either exercise statutory functions or have
their expenses substantially defrayed from public funds. The investigation of
Mrs R’s complaint against the respondent was conducted under article 8, which
deals with the investigation of complaints against individuals who have
undertaken to provide general medical, dental, ophthalmic or pharmaceutical
services under Part VI of the Health and Social Services (Northern Ireland)
Order 1972 or in certain circumstances those performing personal medical or
dental services. Unlike the bodies whose conduct may be investigated under article
7, the persons liable to be investigated under article 8 are not public bodies.
They are individuals like the respondent providing professional services under
contracts or other consensual arrangements with the National Health Service.
The distinction is significant, as I shall explain. article 8(a) provides for
the investigation of complaints against independent health and social care
providers. These are not public bodies either. Like the individuals covered by
article 8, they provide services under arrangements with the National Health
Service. Articles 9 and 10 restrict in certain respects the undertaking of
investigations authorised under all three preceding provisions.
12.
Article 9 is mainly concerned with the potential overlap between the
Complaints Commissioner’s investigations and other remedies available to the
complainant. Article 9(3) and (4) provides:
“9. Matters not subject
to investigation
…
(3) Subject
to paragraph (4) and to [section 78 of the Northern Ireland Act 1998], the
Commissioner shall not conduct an investigation under this Order in respect of
-
(a) any
action in respect of which the person aggrieved has or had a right of appeal,
complaint, reference or review to or before a tribunal constituted under any
statutory provision or otherwise;
(b) any
action in respect of which the person aggrieved has or had a remedy by way of
proceedings in a court of law.
(4) The
Commissioner may conduct an investigation -
(a) notwithstanding
that the person aggrieved has or had such a right or remedy as is mentioned in paragraph
(3), if the Commissioner is satisfied that in the particular circumstances it
is not reasonable to expect him to resort to or have resorted to it; or
(b) notwithstanding
that the person aggrieved had exercised such a right as is mentioned in
paragraph (3)(a), if he complains that the injustice sustained by him remains
unremedied thereby and the Commissioner is satisfied that there are reasonable
grounds for that complaint.”
13.
Article 11 provides, in relation to all three categories of
investigation:
“11. Purposes of
investigation
The purposes of the investigation
by the Commissioner shall be -
(a) to ascertain if the
matters alleged in the complaint -
(i) may properly warrant
investigation by him under this Order;
(ii) are,
in substance, true; and
(b) where it appears to the
Commissioner to be desirable -
(i) to effect a settlement
of the matter complained of; or
(ii) if that is not
possible, to state what action should in his opinion be taken by the body
concerned, the general health care provider concerned or the independent
provider concerned (as the case may be) to effect a fair settlement of that
matter or by that body or provider or by the person aggrieved to remove, or
have removed, the cause of the complaint.”
14.
Articles 15-19 cover (among other things) enforcement. Three modes of
enforcement are provided for. First, under article 15, the Complaints
Commissioner is required to send a copy of the report of his investigation to
specified people, including the complainant and the body or person
investigated. Where the investigation is carried out under article 8 into the
conduct of an individual health provider, the report must be sent to the
National Health Service entity with whom he or she has contracted or arranged
to provide the service in question. That body may take whatever disciplinary or
other action is open to it under its arrangements with the practitioner.
Secondly, article 16 provides:
“16. Application for
compensation by person aggrieved
(1)
Where on an investigation pursuant to a complaint under article 7 the
Commissioner reports that a person aggrieved has sustained injustice in
consequence of maladministration, the county court may, on an application by
that person, by order award that person damages to be paid by the body
concerned.
…
(3) Damages awarded under
this article shall be such as the county court may think just in all the
circumstances to compensate the person aggrieved for any loss or injury which
he may have suffered on account of -
(a) expenses reasonably
incurred by him in connection with the subject matter of the maladministration
on which his complaint was founded; and
(b) his loss of opportunity
of acquiring the benefit which he might reasonably be expected to have had but
for such maladministration.
(4) In calculating the
amount of damages to be awarded by virtue of paragraph (3)(b) the county court
shall apply the same rule concerning the duty of a person to mitigate his loss
as applies in relation to damages recoverable at common law.”
The third mode of enforcement is provided for by article
17. The substance of this provision is that where the Complaints Commissioner
conducts an investigation under article 7 and reports persistent or systemic
maladministration, the Attorney-General may, at his request, apply to the High
Court for an injunction. In court proceedings under article 16 or 17, article
18(1)(a) provides that
“a recommendation of the
Commissioner and any report of the Commissioner relating to the complaint in
connection with which the recommendation is made shall, unless the contrary is
proved, be accepted as evidence of the facts stated therein.”
15.
It is, finally, necessary to refer to articles 19 and 21. They provide
as follows:
“19. Reports to the
Assembly
The Commissioner shall annually lay
before the Assembly a general report on the performance of his functions under
this Order and may from time to time lay such other reports before the Assembly
as he thinks fit.
…
21. Disclosure of
information by Commissioner
(1) Information obtained by the
Commissioner or his officers in the course of, or for the purposes of, an
investigation under this Order shall not be disclosed except as permitted by
paragraph 1(B) or for the purposes of -
(a) the investigation and
any report to be made thereon under this Order;
(b) any proceedings for an
offence under the Official Secrets Acts 1911 to 1989 alleged to have been
committed in respect of information obtained by the Commissioner or any of his
officers by virtue of this Order;
(c) any proceedings for an
offence of perjury alleged to have been committed in the course of an
investigation under this Order;
(d) an inquiry with a view
to the taking of proceedings of the kind mentioned in sub-paragraphs (b) and
(c); or
(e) any
proceedings under article 14, 16 or 17.”
Power to recommend monetary redress: Article 9(3) and (4)
16.
On the particular facts of this case, there is a short answer to the
Complaints Commissioner’s appeal. Under article 9(3) of the 1996 Order, he may
not carry out an investigation into any actions in respect of which the
complainant has a remedy by way of proceedings in a court of law. This is,
subject to article 9(4), a condition precedent to his jurisdiction. It follows,
as a Divisional Court in England held about a similar provision limitation on
the powers of the Commissioner for Local Administration under the Local
Government Act 1974, that the operation of article 9(3) cannot depend on
whether the complainant’s allegations are well-founded. For the purposes of article
9(3) she has a remedy by way of proceedings in a court of law if, on the
assumption that her complaint was justified, she would have a remedy in court:
see R v Commissioner for Local Administration, Ex p Croydon London Borough
Council [1989] 1 All ER 1033, 1044.
17.
By way of exception to the restriction in article 9(3), article 9(4)
provides that the Complaints Commissioner may nevertheless conduct the
investigation if he is satisfied that in the particular circumstances it is not
reasonable to expect the complainant to resort to law. This is primarily
directed to cases where litigation would not be worth the cost and trouble
involved. But it may also apply in other cases, for example where the complainant
is looking for explanations rather than money. According to the evidence of the
Commissioner’s staff, this was the position of Mrs R. The Commissioner accepted
that the complaint should be investigated because Mrs R said that she was not
seeking monetary redress but only wanted to know what had gone wrong. I agree
that that was a proper basis on which to undertake the investigation. The Commissioner
could properly conclude that it would not have been reasonable to expect Mrs R
to commence proceedings in court if she was not seeking financial relief. But
if the only basis on which the Commissioner felt able to undertake the
investigation at all was that Mrs R did not want money, it could not be proper
for him to recommend a payment of money and threaten to report on the
respondent’s failure to pay it.
Power to recommend monetary redress: in general
18.
There is, however, a more fundamental question, which is directly raised
by the Court of Appeal’s judgment, namely whether the Complaints Commissioner
has power to recommend monetary redress at all. The Court of Appeal held that
he did not. If that is correct, it applies irrespective of the basis on which
the Commissioner satisfied the conditions in article 9(4).
19.
The starting point is the legal and constitutional status of the
Complaints Commissioner’s reports. The practice of the United Kingdom
government is to comply with the recommendations of statutory ombudsmen unless
the department in question can put forward good reasons for not doing so: see Handling
of Parliamentary Ombudsman Cases (Cabinet Office, 1996), para 61, and Managing
Public Money (HM Treasury, 2013), para 4.12.2. This corresponds to what has
been held to be the position of the United Kingdom government in relation to
reports of the Parliamentary Commissioner for Administration. In R (Bradley)
v Secretary of State for Work and Pensions [2008] EWCA Civ 36; [2009] QB 114, the Court of Appeal in England accepted (para 63) that where a minister
was responsible to Parliament for the public body in question, he was not bound
to accept the Commissioner’s findings or recommendations, because Parliament
cannot have intended to preclude the minister from explaining his rejection of
them to Parliament. Nevertheless, it was held (para 72) that he could not
rationally reject them without “cogent reasons”.
20.
The decision in Bradley raises delicate questions about the
relationship between judicial and Parliamentary scrutiny of a minister’s
rejection of the recommendations of the Parliamentary Commissioner for
Administration. But they are not questions which arise on this appeal, because
on any view the principle stated in Bradley cannot be transposed without
modification to a case where the Complaints Commissioner recommends financial
redress against a medical practitioner. In the first place, as I shall explain
below, the Complaints Commissioner has a very different relationship with the legislature.
Secondly, even in a case where his recommendation is directed to a public body,
article 16, which has no equivalent in the United Kingdom legislation, provides
for claims to compensation to be determined in adversarial litigation before a
court. The effect is to create a statutory cause of action for
maladministration which would not necessarily exist otherwise. The function of
the court is to decide the issue on the merits, and not simply by way of
judicial review of the Commissioner’s report. The Commissioner’s
recommendations and findings are no more than rebuttable evidence of the facts.
It necessarily follows that the public body in question is entitled to dispute
them on any ground which may find favour with a court. Third, and critically, the
recommendation which is challenged in the present case was not directed to a
public body. A general practitioner working in the National Health Service is
not a public body, but merely provides services to a public body under a
contract or some other consensual arrangement. The Complaints Commissioner is
not a court. He is an official, albeit an independent one, performing an
investigatory and advisory function under statute. Except in relation to
compelling the attendance of witnesses and the production of documents (see
article 13 of the 1996 Order), he has no powers of compulsion. Subject to the
terms of the practitioner’s agreement with the relevant NHS body and to any
power of enforcement conferred by the relevant legislation, the Commissioner’s
recommendations are not binding on any one as a matter of private law. At best,
they are legally enforceable only by virtue of the public law duty of a public
body not irrationally to reject them. But that duty is irrelevant to a person
in the position of the respondent, who has no relevant public law duties.
21.
The scheme of the 1996 Order, like that of the 1969 legislation which it
replaced, is based upon a similar distinction between public and private
bodies. The right of a complainant to claim damages in court under
article 16 is limited to cases of maladministration found in the course of an
investigation conducted under article 7, ie by one of the public bodies to
which that article applies. The same limitation applies to the right to request
the Attorney General to apply for an injunction under article 17. Similarly, by
article 21, the Complaints Commissioner is permitted to disclose information
obtained in the course of or for the purpose of an investigation only for
limited purposes. They are conducting the investigation and preparing his
report on it, defending himself and his officers against a charge of breach of
the Official Secrets Acts, and taking proceedings for perjury or obstruction in
the course of an investigation. The information may also be made available for the
purpose of enforcement proceedings under articles 16 and 17, both of which as I
have pointed out are limited to investigations conducted under article 7.
Leaving aside the possibility of a special report, to which I shall return,
there is no power to use the information for the purpose of enforcement
measures of any other kind.
22.
Article 11 of the 1996 Order empowers the Complaints Commissioner to try
to effect a fair settlement of the complaint. If that is not possible, he may
state what action should in his opinion be taken by the object of the complaint
in order to effect such a settlement. In a case where the complainant has
suffered loss in consequence of the defaults found by the Commissioner, a fair
settlement is likely if not certain to require that that loss should be made
good. It follows that if the Commissioner chooses to operate the settlement
procedure, and fails to achieve a settlement, he must be entitled to recommend
in his report a monetary payment sufficient to bring about a fair settlement.
That power is available irrespective of the statutory basis of the
investigation, and therefore whether the party investigated is a public or a
private body. But the power is not relevant here, because the Complaints Commissioner
never sought to operate the settlement procedure. If he had done, a settlement
might well have been achieved without difficulty, since Mrs R had not sought
monetary redress and the respondent has accepted the Commissioner’s other
recommendations.
23.
Article 18(1)(a) of the 1996 Order provides that the Commissioner’s
recommendations as well as his findings may be relevant to an action for
damages against a public body under article 16. It is arguable that the
Complaints Commissioner may also have power to make recommendations that would
be relevant in such proceedings. But since the respondent is not a public body
and not amenable to proceedings under article 16, that question does not arise
on this appeal and I should prefer to leave it open.
24.
What is clear is that investigations under article 8 into the conduct of
persons who are not public bodies are an entirely different matter. It is one
thing for a public officer performing an investigatory and advisory role to
recommend a payment out of public funds. It is another thing altogether for him
to recommend the payment by a private individual out of his own pocket of a sum
which that individual has no public or private law duty to pay. Articles 16 and
17, as I have pointed out, have been deliberately limited to investigations
under article 7 into the conduct of one of the public bodies identified in
Schedule 2. There is no statutory mode of enforcing a monetary payment against
a private contractor to which the Complaints Commissioner’s recommendation
could be relevant. More generally, a private individual has no means open to
him of challenging the Commissioner’s findings before a court, such as a public
body enjoys under article 16, except by way of judicial review, which offers
only limited scope for a review of the merits. I can think of no rational
reason why the draftsman of the 1996 Order should have intended that private
individuals with no relevant duty of compliance should have a more limited
right to challenge the Commissioner’s report than a public body. On the
contrary, the assumption must have been that the Commissioner would not make
recommendations against private individuals of a kind which could have no legal
effect directly or indirectly, either under the Order or under the general law.
This is, in substance, what the majority of the Court of Appeal decided. In my
opinion, as applied to investigations under article 8, their conclusion was
correct.
Power to make a special report
25.
The Complaints Commissioner’s main response to this is that his recommendations
do not depend for their efficacy on their legal enforceability but on the power
of publicity. By publicising a respondent’s failure or refusal to comply with a
recommendation, he can bring pressure to bear on him to comply notwithstanding
the lack of any legal obligation to do so. This is what the Commissioner hopes
to achieve by issuing a “special report”. Mr McGleenan QC, who appeared for the
Commissioner before us, drew our attention to the observations of Wade and
Forsyth, Administrative Law, 11th ed (2014), p 69, about the
Parliamentary Commissioner Act 1967:
“An ombudsman requires no legal powers except powers
of inquiry. In particular, he is in no sense a court of appeal and he cannot
alter or reverse any government decision. His effectiveness derives entirely
from his power to focus public and parliamentary attention upon citizens’
grievances. But publicity based on impartial inquiry is a powerful lever. Where
a complaint is found to be justified an ombudsman can often persuade a government
department to modify a decision or pay compensation in cases where the
complainant unaided would get no satisfaction. For the department knows that a
public report will be made and that it will be unable to conceal the facts from
Parliament and the press.”
26.
I have no difficulty with this proposition as applied to a public body
and to the scheme of the United Kingdom Act. The United Kingdom Parliamentary
Commissioner for Administration is an officer of the legislature. The White
Paper which preceded the passing of the 1967 Act (The Parliamentary
Commissioner for Administration, Cmnd 1965/2767) observes at para 4, that
his office was conceived as supporting the traditional constitutional function
of Parliament of receiving the grievances of citizens and holding ministers individually
and collectively accountable for their amendment. The Parliamentary
Commissioner in the United Kingdom is empowered to investigate complaints
referred to him by a Member of Parliament against government departments and
other public bodies identified in Schedule 2: see sections 4 and 5 of the 1967
Act. He has no power to investigate complaints against private individuals
providing services to government departments or public bodies. The
Parliamentary Commissioner’s practice is, in appropriate cases, to recommend
that the department or public body provides financial redress, generally on a
compensatory basis. If the department decides not to comply, he may make a
“special report” under section 10(3), which provides as follows:
“(3) If, after conducting an
investigation under section 5(1) of this Act, it appears to the Commissioner
that injustice has been caused to the person aggrieved in consequence of
maladministration and that the injustice has not been, or will not be,
remedied, he may, if he thinks fit, lay before each House of Parliament a
special report upon the case.”
In all of these respects, the
position of the Assembly Ombudsman for Northern Ireland under the Ombudsman (Northern Ireland) Order 1996 is the same. Section 10(3) of
the 1967 Act of the United Kingdom is reproduced by section 10(3) of the
Parliamentary Commissioner Act (Northern Ireland) 1969, and then by article
17(2) of the Assembly Ombudsman (Northern Ireland) Order 1996. But no
corresponding power was conferred on the Complaints Commissioner either by the
legislation of 1969 or by that of 1996.
27.
The absence of a power in the Complaints Commissioner to
make a “special report” of the kind which is expressly conferred on the
Assembly Ombudsman was not an oversight. It reflects a significant difference
in their constitutional status. The Assembly Ombudsman, like the United
Kingdom’s Parliamentary Commission for Administration, is an officer of the
legislature. Under the Ombudsman (Northern Ireland) Order 1996, he may investigate
only such complaints as are made by a member of the public to a member of the Assembly
and referred by the latter to him: article 9(2). He reports to the member in
question or another appropriate member, as well as to the public body under
investigation: article 16. In keeping with this scheme, the sole mode of
enforcing his recommendations provided for by the legislation is a special report
to the legislature under article 17(2). These had also been features of the Parliamentary
Commissioner Act (Northern Ireland) 1969. Their effect is that the Assembly
Ombudsman’s recommendations are enforceable politically, but they are not
enforceable legally save arguably by way of judicial review. This reflects the
fact that the bodies subject to investigation by the Assembly Ombudsman are
government departments and public bodies for whom the relevant minister is
responsible to the legislature.
28.
The position of the Complaints Commissioner is different.
He is a public officer but he is not an officer of the legislature in the same
sense as the Assembly Ombudsman. Under the 1996 Order, he receives complaints
directly from the public: articles 7(7) and 8(5). He reports to the complainant
and to the bodies and individuals whose conduct is at issue: article 15. There
is no power to make a special report to the legislature or to any one else on
non-compliance with his recommendations. Instead, his recommendations and
findings are legally enforceable by the court by the procedures set out in articles
16 and 17, but only as against public bodies investigated under article 7. In
1969 and 1996, it was evidently not considered appropriate to confer
enforcement powers against private individuals with no relevant duties either
in public or private law, whether by way of resort to the courts or by
denouncing the recalcitrant party to the legislature.
29.
I do not accept the Complaints Commissioner’s submission
that this deliberate scheme can be circumvented by resort to article 19 of the
1996 Order, which empowers him to lay before the Assembly an annual report on
the performance of his functions and “such other reports … as he thinks fit”.
Reports of his investigations are governed by article 15. The context and the
scheme of the legislation, both in 1969 and in 1996, show that article 19 is
concerned with general reports on his work, and not with reports on individual
cases. The assumption of the Complaints Commissioner that he can make a special
report to the legislature on a failure to comply with his recommendations
confuses his two roles, which are legislatively distinct. The position of the
new Public Services Ombudsman under the 2016 Act will be different, because his
power to issue a special report is wider: see section 46(2). But that is not
the legislation upon which this appeal turns.
The Commissioner’s recommendation in this case
30.
I have quoted para 70 of the Commissioner’s report, in which he
recommends a payment by the respondent of £10,000. The respondent challenges
the rationality of that recommendation. On the view that I have reached about
the limits of the Commissioner’s powers, this question does not arise. However,
I would not like to part with this case without commenting on the fact that the
Commissioner thought it appropriate to make a recommendation in these terms,
even on the footing that he was entitled to recommend monetary redress at all.
The Commissioner’s recommendations, in those cases where he is entitled to make
them, are discretionary and he has more latitude in arriving at a figure than a
court would have. But a monetary recommendation, like any other, must be
rational, and it must be explained. The only explanation proffered is that the
£10,000 should be paid “in respect of the clearly identified failings in the
care provided to [the patient] and the events which consequently followed.” The
report does not explain why these failings warrant a payment of £10,000 or how
that figure has been arrived at. It does not say whether Mr or Mrs R suffered
any loss by the failings for which the £10,000 should be treated as
compensation. Some of the failings, notably the failure to take more urgent
action on 6 January 2009 are found to have made no difference and others, such
as the events which followed R’s death could not in the nature of things have
done so. It is possible that the recommendation was intended as a solatium for
injured feelings, but the report does not say so, and in the absence of
explanation £10,000 seems to be an excessive amount to recommend on that basis.
On the face of it, the figure has simply been plucked out of the air. If I had
concluded that the Complaints Commissioner had power to recommend a payment by
the respondent, I would have regarded this particular recommendation as lacking
any rational basis.
Conclusion
31.
For these reasons I would dismiss the appeal.
