Thursday, August 15, 2019
Parliamentary Ombudsman Essay
The Ombudsman deals with issues that had resulted in questions in Parliament. The Ombudsman is the custodian of the Code of Practice on Access to Government Information. Schedule 2 of the Parliamentary Commissioner Act 1967, requires of certain institutions to assist the Ombudsman in disclosing information on request. However there are fifteen exemptions that regulate the release of the information under this Code (Ministerial Accountability And Parliamentary Questions).            The Ombudsman investigates complaints from Members of Parliament that certain information that had been withheld as per the requirements of the Code, was to be revealed. The office of the Ombudsman has to deal with important papers and take decisions by exercising proper judgment. The office of the Ombudsman attempts to resolve complaints before any official action is initiated with regard to them, as such the work of the Ombudsman is informal or unofficial. There are certain restrictions that prevent the active participation of the Ombudsman. In 2005, it was declared that the Information Commissioner was to be bound by the provision of the Freedom of Information Act 2000 and should act within the scope of those provisions. Another drawback is that several departments do not cooperate with the office of the Ombudsman and depict reluctance to accept its recommendations. There was an absence of cooperation between the office of the Ombudsman and other departments in resolving complaints. Furthermore, changes in the activities and role of the Ombudsman are subject to legislation (Ministerial Accountability And Parliamentary Questions).           The Parliamentary Commissioner Act 1967 sets out the job description, powers and responsibilities of the Commissioner. The institution of the Ombudsman is autonomous and       neither reports to the government nor is it a public servant. The Queen on the endorsement of Letters Patent appoints the Ombudsman. The Ombudsman’s responsibility is to inquire into complaints referred by members of the public in the event of their having sustained loss or injustice due to maladministration by the government departments or other public agencies. These complaints have to be forwarded by a Member of Parliament. The complainants have to first lodge their complaints with the concerned department and facilitate the concerned officials to act on the complaint before its transmission to some other agency. Not all matters are dealt with by the Ombudsman, because certain complaints are more appropriately redressed by an appeal to a tribunal or by filing a case in a court of law. Many departments can decide on the basis of their discretionary powers. For instance the Legal Aid Board and the Planning Inspectorate are empowered to take independent decisions. If it can be established that a discretionary decision entailed maladministration, then the Ombudsman can intervene and question such acts of maladministration. The Ombudsman can also investigate administrative decisions taken on behalf of courts and tribunals but not the decisions taken directly by courts and tribunals (Parry, 2004).            The rulings of the Ombudsman are subject to judicial review as in the case of ministerial decisions. In 1994, a court affirmed this important fact in a case. Under the judicial review, it is ascertained if the application of the legislative provisions had been done correctly, while taking a decision. However, the decisions of the Parliamentary Commissioner are rarely subjected to the judicial review process. In April 2004, the High Court rejected a judicial review petition of the representatives of the Equitable Members Action Group, who were contesting the decision taken by the Ombudsman with regard to the regulation of Equitable Life (Parry, 2004). The Ombudsman does not act as courts or tribunals. The Ombudsman’s duty is not to mediate or negotiate as in the case of alternative dispute resolutions. Although the Ombudsman is a distinctive platform for taking important decisions, it is not an alternative in the process of decision making. In R v Secretary of State for Pensions, on behalf of Bradley and others, judicial review was sought due to the refusal of the authorities to provide information relating to pension schemes. In that case, Justice Bean opined that the Ombudsman exercises very wide discretion under which the Ombudsman can permit a public adversarial hearing in order to educe facts. However such discretionary power of the Parliamentary Ombudsman or the Local Government Ombudsman is subject to Parliament discretion (R v Secretary of State for Pensions, on behalf of Bradley and others, 2007).  In the event of the occurrence of maladministration or failure to provide service the Ombudsman intervenes and decides the further course of action to be undertaken for effecting redressal. Despite the fact that the decisions of the Ombudsman are final, the courts can initiate a judicial review on these decisions (Principles of Good Administration).            The Ombudsman comes to the rescue of individuals in order to provide redressal of their complaints against the activities of the government agencies’ activities and other entities. Several types of Ombudsmen are established by legislation. The foremost amongst them is the Parliamentary Commissioner. There are other authorities who act as ombudsmen such as the Health Service Commissioners who deal with complaints lodged against the Health Service and the Local Commissioners or Local Government Ombudsmen who investigate complaints against local authorities. They resolve complaints by making the necessary recommendations to the departments against whom the complaints had been lodged. They can make public recommendations but they do not possess the power to enforce such recommendations. The Parliamentary Commissioner inquires only into complaints, which are lodged by a Member of Parliament. The general public can approach the Local Government Ombudsmen directly or through a local representative. Individuals are initially required to bring their complaints to a Councillor or an MP. Subsequently, if no action is initiated or if the action initiated is unsatisfactory then the complaint is forwarded to the Ombudsman (Ombudsman, 2004).            It is the responsibility of the Members of Parliament to ensure that the general public has access to relevant authorities, in order to secure redress for maladministration or poor service. However, if they fail to get satisfactory redress or action from those mechanisms then they can approach the Ombudsmen (The Ombudsman – who are her customers?).            Ombudsmen can resolve most of the complaints received by them. Efforts have been undertaken in the United Kingdom to attain a general cooperation among several Ombudsmen. There are certain barriers to this laudable objective. Some Ombudsmen are affiliated to the outdated legislative framework, their actions are subject to legislation and there is no direct access. The MPs have to forward complaints to the Ombudsmen if problems arise with public servants. Hence, the citizens need to have direct access to the office of Ombudsmen. There are a number of problems in reforming institutional aspects, in the context of the devolution and decentralization of powers. In the present scenario of multi agency service provision, a coherent complaint handling procedure is urgently needed (The Ombudsman – who are her customers?).            In order to eliminate potential restraints, there should be a Cabinet Office review of the activities and responsibilities of public sector ombudsmen. There should be institutional reform and the legislative framework should be modified to suit modern day challenges with regard to the operational scope of the Ombudsman (The Ombudsman – who are her customers?).            The House of Commons Public Administration Select Committee or the PACS had acrimoniously criticised several departments for maladministration and inefficiency. Some of these departments were the Immigration and Nationality Directorate, the Child Support Agency and the Legal Services Commission. In its report, based on the findings of the Parliamentary Ombudsman, the PACS pointed out a number of shortcomings in government bodies. The report criticised the obsolete IT systems of these departments, their failure and unanticipated delays in responding to questions relating to the Hinduja brothers’ case and the queries raised by the Member of Parliament, Peter Mandelson (Public Administration Select Committee).            The PACS pointed out the failures of administration, departmental apathy and the negative influence of political parties on the administrative process. It also exhorted the Government to respond to the report and initiate immediate action (Public Administration Select Committee).            The Home Office was also criticised for its reluctant and indifferent behaviour towards the Code on Access to Government Information. The Home Office had failed to carry out a decision of the Ombudsman when the latter ruled that the former had to reveal information regarding the number of times Ministers had declared their interests. This was the first time that a government department had refused to comply with the Ombudsman’s ruling. The PACS considered this to be a dangerous development. The Committee criticised the then Cabinet Secretary for failing to disclose the information on the specious claim that it was beyond the purview of the Ombudsman (Public Administration Select Committee).            The Home Office was further criticised for its indifferent response to the Ombudsman’s inquiries and his request for papers that relate to the case of the Hinduja brothers and Peter Mandelson MP. There were several repeated failures to reply to the Ombudsman’s letters coupled with extraordinary delays and the supply of incorrect and unrelated files to the Ombudsman Office. As such, it could be construed as a conspiracy to withhold the called for information and constituted an administrative failure in the Home Office. The PACS had recommended to the Government that it should immediately initiate action to correct such maladministration and to reform the entire Ombudsman system (Public Administration Select Committee).            The number of complaints with regard to tax credits, to the Parliamentary Ombudsman is gradually increasing. Nearly twenty – six percent of the total complaints pertain to tax credits. They fall under three categories, namely, the design of the system, mishandling and failures in handling complaints and unjust recovery of overpayments (Ombudsman says that HMRC is in danger of Getting it Wrong on Tax Credits, 2007).            The designing part of the system is a process which Parliament and the government have to consider. The principles of the annualised system are difficult to comprehend by the individuals. Under the present system, overpayments and underpayments are inevitable and take place despite the best possible administration. This leads to the dissatisfaction among individuals and gives rise to several complaints. Such dissatisfaction and distress are often experienced by the low income group families, who are required to return the debts unexpectedly. In some cases, they may be required to repay the debt after a long period of time had elapsed (Ombudsman says that HMRC is in danger of Getting it Wrong on Tax Credits, 2007).            The British Constitution had provided an important position to the Parliamentary Ombudsman. The fundamental role of the Ombudsman is to provide efficient and productive redress to the complainants against acts of maladministration by the government bodies. In achieving this efficient alternative redress provider status, the Parliamentary Ombudsman requires mutual cooperation between several departments and the office of the Ombudsman. However, the reality is otherwise and resistance and apathy are exhibited by several governments department, while responding to the inquiries of the office of the Ombudsman. For instance, during the period 2005 to 2006 the Parliamentary Ombudsman was compelled to submit a special report when the findings of the Ombudsmen were rejected by several government departments (Kirkhamn, Sep2006).            The Parliamentary Ombudsman submitted a special report with regard to the investigation in to the proceedings of the ex gratia schemes for the British groups engaged by the Japanese during the World War II. The Special Report was submitted to the Parliament under section 10(3) of the Parliamentary Commissioner Act 1967. This report discussed the Parliamentary Ombudsman’s powers and their legal aspects in quite some detail. It also discussed the functions of the ombudsman and its powers in interpreting the inquiry process. It also focussed on the power of ombudsman to investigate acts of maladministration by government bodies. In one particular instance, the Ministry of Defence had challenged the authority of the ombudsman in investigating claims of maladministration against it and held that this constitute trespass into its authority. This Ministry contended that such a prerogative was solely the province of the courts and not that of the ombudsman (Kirkhamn, Sep2006).            This Special Report clearly established the authority of the government bodies and public authorities and the extent to which the ombudsman could conduct investigations into their alleged acts of maladministration. The conclusion to be reached from these developments is that the parliamentary ombudsman has become more or less redundant and does not serve any useful purpose. Moreover, this body cannot compel any government department to comply with its decisions (Kirkhamn, Sep2006). Another drawback with the ombudsman system is that the person, who lodges a complaint, has to wait for a considerable period of time, prior to any decision being taken with regard to the complaint. A number of cases were observed to have been abandoned by the complainants due to this inordinate delay. In comparison, the judicial process is much faster. Moreover, the ombudsman system cannot compel the government bodies to accept its decision. On an average, the time taken to take a decision by the ombudsman, in respect of a complaint, was around two years (Caplan, 2006. P. 203). References Caplan, R. (2006. P. 203). International Governance of War – Torn Territories: Rule and Reconstruction. Oxford University Press. Kirkhamn, R. (Sep2006). Challenging the Authority of the Ombudsman: The Parliamentary Ombudsman’s Special Report onWartime Detainees. Modern Law Review , Vol. 69 Issue 5, p792-818, 27p; DOI: 10.1111/j.1468-2230.2006.00610.x; (AN 21979909). Ministerial Accountability And Parliamentary Questions. (n.d.). Retrieved November 25, 2007, from http://www.publications.parliament.uk/pa/cm200102/cmselect/cmpubadm/1086/108603.htm Ombudsman. (2004). Retrieved November 25, 2007, from In Dictionary of Politics and Government: http://www.credoreference.com/entry/6505736 Ombudsman says that HMRC is in danger of Getting it Wrong on Tax Credits. (2007, June). Retrieved November 25, 2007, from Press release: http://www.ombudsman.org.uk/news/press_releases/pr2007_06.html Parry, K. (2004, June 8). Ombudsman decisions: right of appeal. Retrieved November 25, 2007, from Parliament & Constitution Centre Standard Note: SN/PC/3079: http://www.parliament.uk/commons/lib/research/notes/snpc-03079.pdf Principles of Good Administration. (n.d.). Retrieved November 24, 2007, from http://www.ombudsman.org.uk/pdfs/pga.pdf Public Administration Select Committee. (n.d.). Pasc Attacks â€Å"Disturbing†Evidence Of Government Administrative Failure. Retrieved November 25, 2007, from Session 2002-03. Press Notice No.8: http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_pn_8.cfm R v Secretary of State for Pensions, on behalf of Bradley and others, (2007) EWHC 242 Admin (2007). The Ombudsman – who are her customers? (n.d.). Retrieved November 25, 2007, from http://www.bioa.org.uk/otherinfo/AnnAbraham-LakemanLecture.pdf Â
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