Governmental Rejections of Ombudsman Findings: What Role for the Courts?

Publication Date01 Jan 2009
AuthorJason N. E. Varuhas
derogation, provided there is a collective agreement at national level and it
appears that the Joint Declaration by the UKGovernment, CBI and TUC will
ful¢l this criterion.The draft Directive does not,of course, prescribe employment
status and there is still much to be clari¢ed about its scope and enforcement. It is
possible that contractual provisions such as those referred to in this Note will still
be legally viable after the Directive has been implemented. However, as the draft
speci¢callyprohibits attempts to avoid itsapplicationwe can anticipate interesting
case law based on comparable facts to those of Kalwak! Agreement on the draft
Directive may well be possible in 2008, though it i s vital that any legislation is
practical and capable of enforcement.
The decisions discussed in this note have ultimately done nothing to remedy a
legal situation where thousands of agency workers have no contract of employ-
ment at all. Theretreat to contractual principle in James has neither solved the pol-
icy dilemma left in Dacas and Muscat, nor ultimatelyclari¢ed the legal position of
agency workers. Kalwak has leftpotential con£ict withproposed EU legislation as
regards the interpretation of ‘sham and attempts to avoid the application of the
legislation. The real question is not whether the agency worker has employment
status but who should have primary responsibility for this worker. EU law has
recognisedthat the principleof equal treatmentdoes apply toa number of speci¢c
groups of atypical workers and that the responsibility for agency workers is that
of the agency. E¡ective implementation of EU law in the context of currentjudi-
cial approaches in the UK is likely to prove problematic.
Governmental Rejections of Ombudsman Findings:
What Role for the Courts?
Jason N. E.Varuhas
This article discusses the recent Bradley litigation beforethe High Court and Court of Appeal, in
which applicants sought judicial review of a Government Minister’s decision to reject ¢ndings
made by the ParliamentaryCommissioner for Administration in her report,‘Trustingi n the Pen-
sions Promise’. The article critically analyses the Court of Appeal’s approach to reviewing the
Minister’sdecis ion, focusing on the standard of review applied and placing the Court’s approach
in the wider context of the Ombudsman process, which is inherently political.
Ph.D. Candidate, Universityof Cambridge. I would like to thank Professor Richard Rawlings and
the anonymous reviewer for their helpful comments on earlier versions of this paper. Any errors
remain my own.
Governmental Rejections of Ombudsman Findings
102 r200 9 The Authors.Journal Compilation r20 09 The ModernLaw Review Limited.
(2009) 72(1) 91^115

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