Challenging the Authority of the Ombudsman: The Parliamentary Ombudsman's Special Report on Wartime Detainees
| Date | 01 September 2006 |
| Author | Richard Kirkham |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00610.x |
| Published date | 01 September 2006 |
REPORT
Challenging the Authority of the Ombudsman:The
Parliamentary Ombudsman’s Special Report on Wartime
Detainees
Richard Kirkham
n
INTRODUCTION
In the main the Parliamentary Ombudsman (PO)
1
occupies an eminent position
within the British constitution
2
and provides a highly e¡ective formof alternative
redress against acts of government maladministration. However, in order to
maintain that status the POis reli antupon the continuing cooperation and respect
of government departments. It is therefore of some concernthat within the space
of eight months during 2005-06 the PO was twice forced to issue a special report
in response to a government rejection of her ¢ndings, an unprecedented rate of
government resistance. This article examines in some detail the ¢rst of those
reports, ‘A Debt of Honour’:The ex gratia scheme for British groups interned by theJapanese
during the SecondWorld War (hereafter ‘the Special Report’),
3
and analyses the legal
questions that arose during the course of the PO’s investigation.
4
The Special Report was laid before Parliament under section 10(3) of the Par-
liamentary Commissioner Act1967 (PCA) and is noteworthy amongst ombuds-
man reports because in completing her investigation the PO had to address a
number of legally uncertain features of an ombudsman’s powers. Signi¢cantly,
in relationto her functions, the PO chose to interpret widely the lines of inquiry
that she is legally empowered to pursue and the standards of maladministration
that she can apply. This approach brought her into con£ict with the department
responsible, the Ministry of Defence (MOD), which was concerned that the PO
was trespassing i nto areas of authority which belo nged to the courts alone. For the
MOD, the PO should have shown much greater deference to the decision of the
Court of Appeal on the same issue in Associationof British Civilian Internees: Far East
n
Lecturer, School of Law, University of She⁄eld. I would like to thank Rhoda James, Ian Harden,
Paul Cardwell and Brian Thompsonfor their helpful comments on an earlier draft of this paper.
1 The o⁄cial title of Parliamentary Commissioner for Administration is rarely used today.
2 Select Committee on the Parliamentary Commissioner for Administration, First Report HC 129
(1990^ 91), xii i.
3FourthReport of the ParliamentaryCommissioner forAdministrationHC 324 (2004^05).
4 The s econd s10(3)report of this period wasTrusting in the PensionsPromise:GovernmentBodiesand the
Security of FinalSalary Occupational Pensions: Sixth Report of theParliamentaryCommissioner forAdmin-
istration HC 984 (2005^06).
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(2006) 69(5)MLR 792^818
Region vSecreta ry for Defe nce
5
(ABCIFER) and there was even an implicit sugges-
tion that the PO had been acting outside her remit in accepting the investigation
in the ¢rst place. By contrast, the PO felt no compulsion to link her ¢ndings or
interpretation of maladministration to any legal ruling made in ABCIFER and
was adamant that she had possessed full authority to investigate the complaint
submitted toher.
The dispute, therefore, provided a revealing i nsight into the appropriate
demarcation of responsibility between the courts and the public sector ombuds-
men (hereafter ‘the ombudsmen’)
6
when dealing with complaints. In addition,
taken together the various judgments of the courts and ombudsman related
reports on the ex gratia scheme go a long way towards enhancing our under-
standing of theconfused interface between maladministration and ordinary stan-
dards of administrative law. A proper understandingof these questions is required
in order to ascertain whether or not the PO was justi¢ed in producing the report
that she did.
Legally, though, the Special Report was labelled ‘special’ because it ide nti¢ed a
speci¢c rejection bya governmentdepartment of a recommendation made by the
PO, an event which previously was a very rare occurrence. Such reports are espe-
cially interesting because, on behalfof Parliament,they trigger a further reviewof
the issue concerned by the SelectCommittee on Public Administration (hereafter
‘the Select Committee’). With the ex gratia scheme, this review resulted in the
Select Committee issuing its own report which concurred with the ¢ndings of
the PO.
7
On this occasion, the e¡ectiveness of the Parliamentary arrangements
supporting the PO was demonst rated when the MOD provided a belated positive
response to the PO’s recommendations. Even so, in the context of the investiga-
tions thatthe PO has recently take non board, there are concerns that the govern-
ment are beginning to showan increased willingnessto challenge the ¢ndings of
the PO thanwas formerly the case. At the veryleast, the Special Report reveals a
disturbing misunderstanding within government circles of the respective roles of
the ombudsmen and the courts.
THE STORY OF THE EX GRATIA SCHEME
To understandthe Special Report and the legal andconstitutional issues that£ow
from it, it is ¢rst necessary to explain the investigation uponwhich it was based.
8
In November 2000, the Secretary of State for Defence announced that a single ex
gratia payment of d10,000 would be made‘to each of the surviving members of
the British groups who were held prisoner by the Japanese during the Second
5 [2003] EWCACiv 473;[2003] QB 1397.
6 I refer here to the Parliamentary Ombudsman, the Local Government Ombudsmen, the Health
Services Ombudsman, the Scottish Public Services Ombudsman, the PublicSer vices Ombuds-
man forWales,the Assembly Ombudsman for Northern Ireland and the NorthernIreland Com-
missioner for Complaints.
7 Public Administration Select Committee, SecondReport: A Debtof Honour HC 735(2005^06).
8 The following is taken from the account providedby the PO in her report (n 3 above) and from
the factual summaries in ABCIFER (n 5 above).
Richard Kirkham
793
rThe Modern LawReview Limited 2006
(2006) 69(5) MLR 792 ^818
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