Robert Thomas (Professor of Public Law, University of Manchester)
What happens when the Parliamentary and Health Service Ombudsman (PHSO) finds maladministration by central government, recommends a remedy, but this is then rejected by government? This a timely issue to consider. In 2022, the PHSO published the Earl report which made findings of maladministration and injustice against the Environment Agency. The Environment Agency has rejected the report, but it has not yet published its reasons for doing so.
In this situation, the PHSO can issue a report under section 10(3) of the Parliamentary Commissioner Act 1967 when ‘it appears … that the injustice’ investigated ‘has not been, or will not be, remedied’. In other words, there is a direct head-to-head clash between the PHSO and the relevant government department and there is therefore a need to resolve the situation.
For many years, the select committee has considered section 10(3) reports by commencing an inquiry, inviting evidence, examining witnesses and then producing a report with its own views as to whether the government was right or wrong to the reject the PHSO’s report. The select committee was created when the then Parliamentary Commissioner for Administration was established in 1967. One of the principal tasks of the committee was to concern itself particularly with those reports of the ombuds which had been rejected by the government with the result that the injustice caused was to be unremedied.
Only seven section 10(3) reports have ever been published by the PHSO. In the first six of those reports, the select committee – now the Public Administration and Constitutional Affairs Select Committee (PACAC) – inquired into the matter and threw its weight behind the ombuds. Those six cases were: the Department of Transport and the late claims for compensation under the Land Compensation Act 1973 (1978-79); the Channel Tunnel Rail Link and exceptional hardship (1995); the ‘debt of honour’ compensation scheme for British civilian detainees (2006); the pensions promise (2006); Equitable Life (2008-10); and the ‘Cold Comfort’ delayed farm payments (2009-10). The seventh report is the Earl report (2022-23).
The select committee has come to play a critically important role to in such instances. As is well-known, the PHSO can make findings and recommendations, but its reports are not legally binding upon government. Ombuds work through recommendations, persuasion and argument. They cannot force government to comply. The government is not bound by the PHSO’s findings of maladministration, although the Court of Appeal in Bradley (2008) established that the government is only entitled to reject the PHSO’s findings if it has rational and cogent reasons for doing so. However, this requires the public body concerned to publish its reasons for rejecting the PHSO’s report and also for the person concerned to seek judicial review. Moreover, litigation is a costly and lengthy process. It is difficult to see why a person whose complaint has been upheld by the ombuds should then have to seek judicial review.
Oversight by the committee is important precisely because the PHSO reports are not legally binding. When PACAC undertakes follow-up scrutiny of the rejection of the PHSO’s report, it is providing democratic oversight and scrutiny of government. This is important because the government has been found to have engaged in maladministration which has caused people injustice. Such scrutiny is required to ensure the effectiveness of the ombuds, the principal redress mechanism for people who have suffered injustice as a result of failure by central government.
If PACAC did not undertake this type of scrutiny, then the office of the PHSO could potentially be substantially weakened. People who have been harmed as a result of administrative failures by government would be left without a remedy – despite the PHSO finding in their favour. There would be no scrutiny of the reasons given by the government in the individual case as to why it had rejected the PHSO’s report.
But the whole issue goes far beyond any specific case. It touches upon the overall effectiveness of the PHSO. If the select committee did not undertake scrutiny following a section 10(3) report, then this would send out a wider signal to government. It would give government the green light to dismiss and ignore the ombuds reports in future. In addition to this, the committee would not be adhering to its long-established practice. It would not be fulfilling one of its longstanding core tasks as regards the PHSO.
The select committee has previously been highly critical about governmental resistance to the PHSO’s reports. In 1995, the select committee noted that ‘there would be no point in having an Ombudsman if the Government were to show disregard for his Office, his standing as an impartial referee, and for the thoroughness of his investigation’. The fact that the ombuds does exist means that its reports must be carefully considered by government. And if government rejects its reports, then there must be scrutiny of the government’s reasons for rejection.
In 2006, the then Public Administration Select Committee, in the ‘Pensions Promise’ case, noted that it shared the PHSO’s concerns at the time that government had been far too ready to dismiss its findings of maladministration. The Committee stated:
It would be extremely damaging if Government became accustomed simply to reject findings of maladministration, especially if an investigation by this Committee proved there was indeed a case to answer. It would raise fundamental constitutional issues about the position of the Ombudsman and the relationship between Parliament and the Executive.
The committee further stated noted that, if necessary, it would seek a debate on the floor of the House, so that all Members can discuss these issues and to re-establish the PHSO’s role. ‘The Parliamentary Commissioner is Parliament’s Ombudsman: Government must respect her.’
In short, if PACAC did not undertake scrutiny of government following a section 10(3) report by the PHSO, then this would amount to a failure to perform its long-standing constitutional function of scrutinising government when it had been found by the ombuds to have engaged in faulty administration resulting in injustice.
What then is PACAC’s current position on section 10(3) reports and the Earl report in particular? The situation is not entirely clear.
In June 2022, the PHSO, Rob Behrens, wrote to the chair of PACAC, William Wragg MP, urging him to undertake follow-up scrutiny of the Earl report. Behrens doubted Wragg’s suggestion that such scrutiny could be better undertaken by the relevant departmental select committee. Without further scrutiny by PACAC, ‘complainants who have already undertaken an often arduous complaints process are left without the chance of achieving any real closure’. The inability to secure a redress represented a serious loss for citizens who had been failed by a government body which had then rejected with the PHSO’s recommendations.
By December 2022, PACAC has not launched an inquiry into the rejection of the Earl report. Instead, William Wragg MP, wrote to Terese Coffey, the Secretary of State for Environment, Food and Rural Affairs urging the Government to issue a statement of the reasons why the PHSO’s Earl report had been rejected by the Environment Agency. According to Wragg, it was only proper, from a constitutional point of view, that the Environment Agency be answerable to Parliament for its non-compliance rather than to any individual select committee. PACAC did not take a view on the individual case, but Wragg noted that the Environment Agency had to be answerable to Parliament. Wragg also wanted the statement from the Environment Agency to be published by as a command paper laid before Parliament. However, the Department for Environment, Food and Rural Affairs (DEFRA) – as the relevant parent government department – had refused to lay the response before Parliament either by way of a command paper or even a mere written ministerial statement.
The Wragg letter is a welcome recognition that non-compliance with a report by the PHSO requires the relevant government body to be answerable to Parliament. However, the letter is somewhat unclear as to whether or not PACAC is itself willing to undertake scrutiny of the rejection of the Earl report by the Environment Agency. The wording and general tone of the letter is ambiguous; it might appear to imply that PACAC may well not undertake follow-up scrutiny and that the Environment Agency would simply have to issue a statement of reasons for rejecting the PHSO’s report and that would be an end of the matter.
If this is the case, then it would amount to a radical departure by the committee from its long-established approach. The committee has always undertaken follow-up scrutiny of section 10(3) reports. If the committee is now to change its whole approach, then it should at least articulate its reasons for doing so.
It is important to note that publishing a command paper or a written ministerial statement do not really qualify as mechanisms of parliamentary scrutiny. They are merely procedures which enable government to inform Parliament of its position. They do not provide anything like an effective forum for scrutiny and accountability. The Environment Agency’s reasons for non-compliance could potentially be challenged through judicial review, although it is difficult to comprehend why complainants should be forced to resort to court litigation – with all of its costs and delays – when the committee could and should itself undertake scrutiny. It is much more likely that the matter would simply disappear into the ether with only the thinnest veneer of parliamentary scrutiny being preserved.
What then should happen? First, the Environment Agency and DEFRA should publish the required statement with the reasons for rejecting the Earl report. That is what has happened in the past. Second, PACAC should scrutinise and test those reasons. Again, this is exactly what the select committee has done in the past.
Guidance on precisely how the committee should undertake this scrutiny can be found in its previous reports. In 2006, the select committee stated that it could not (and would not expect to) replicate the PHSO’s investigations. It would be confident in the evidence assembled by the PHSO, which is also revealed to the Government. The committee would not automatically accept the PHSO’s findings without making its own assessment of the PHSO’s report, the Government’s response and the other evidence available. Instead, the committee’s approach would test both the PHSO’s contentions and those of the government thoroughly. It would approach such matters objectively and dispassionately and make up its own mind whether or not to support the ombuds. Holding an evidence session with relevant officials is the obvious means of testing the strength of their arguments.
There is, of course, no guarantee that an inquiry by the committee will in fact secure compliance with the PHSO’s report. In both the pensions promise and the Equitable Life reports, the government remained obdurate. In both cases, there was litigation in the courts: see the Bradley case referred to above. Nonetheless, compliance is much more likely if the select committee undertakes an inquiry. Past experience demonstrates that having an inquiry with an evidence session(s) and then a report being published by the select committee provides the best means of scrutiny. It is therefore necessary and important for the select committee to continue this form of scrutiny. Government should not be able evade being held to account for its failures and people who have suffered injustice should not be let down for a second time by government.
The letter, dated 22nd March 2023, written by PACAC to Therese Coffey, published on the PACAC website, would seem to indicate the end of th matter insofar as PACAC and the Government are concerned. The Executive Summary of the Environment Agency’s response is annexed to the PACAC letter. Correct me if I am wrong, Professor Thomas, but this is just the latest case to demonstrate the ineffectiveness of PHSO.