Ombudsmen, inquiries and political accountability

A degree of diversity within the judicial system is one thing; but a more radical form of diversity is also necessary. Legal-judicial control of government must be complemented by other techniques if the full spectrum of forms of accountability sketched at the beginning of this chapter is to be supplied.

‘pull’ of the judicial model should invariably be resisted, the appropriateness of yielding to it must be carefully weighed if the diversity of the overall accountability system is to be maintained.

1. Ombudsmen

The form of accountability supplied by public sector ombudsmen^[812] is clearly differ­ent from, and complementary to, that which is provided by courts and tribunals. For instance, ombudsmen are generally more accessible than courts; they can evaluate administrative action against standards of good administration that are in some senses broader, and more demanding, than those applicable in judicial review proceedings;^[813] and they are (sometimes) able—for instance by drawing general conclusions after examining a multiplicity of individual complaints—to identify problems, and secure change, at a systemic level.^[814]

Like most ombudsmen systems, the office of Parliamentary Ombudsman^[815]— which forms the focus of this part of the chapter—is, by design, part of the political as opposed to legal arrangements for holding government to account. This is not to suggest that the Parliamentary Ombudsman is not constituted on a legal basis, or lacks legal powers for such purposes as holding investigations and obtaining evidence.

It was argued earlier in this chapter that effective accountability institutions must be imbued with two key characteristics. Firstly, there must be a degree of tension between the accountability institution and the body being held to account. Here, the Ombudsman serves a valuable purpose as an independent outsider capable of conducting a thorough inquiry and uncovering vices ranging from individual inepti­tude to systemic failure. Secondly, however, accountability institutions must also have clout, effective accountability being impossible if the output of the process is so readily dismissible as to have no meaningful impact. The fact that most of the Ombudsman’s recommendations are accepted by public bodies is testament to the fact that an accountability institution can have considerable impact without possessing legal powers of enforcement. Administrative resistance is unlikely in run-of-the-mill cases, given their relatively self-contained nature and the modest scale of the remedial action generally recommended by the Ombudsman. Wide-ranging, high-profile cases are, though, a different matter. Here, resistance is more likely: indeed, recent years have witnessed an unprecedented number of instances of rejection by central government of the Parliamentary Ombudsman’s findings and recommendations.^[816] Even in controversial cases in which resistance is more likely, it does not follow that the Ombudsman’s inability to issue court-like binding decisions is fatal to effective- ness—but much depends upon the vagaries of the political and media climate.

However, the Ombudsman’s relatively low public profile means that such ‘soft’ forms of enforcement will not necessarily succeed: much will depend upon the extent of public, political and media sympathy for the plight of the relevant victims of maladministration. The Ombudsman’s relationship with the Public Administration Select Committee (PASC)—which both scrutinizes the Ombudsman’s work and acts, in certain instances, as the Ombudsman’s champion in Parliament—is there­fore crucial. In this way, the Ombudsman is plugged into the wider parliamentary system for securing accountable government, and there is certainly evidence that the Committee’s involvement can add real political bite to a critical report by the Ombudsman.^[818] Yet in the face of the Ombudsman’s apparent legal impotence and (occasional) government intransigence facilitated by the executive’s dominance of Parliament, the pull of the judicial model may be keenly felt. It is against this back­ground that the courts have in recent years been invited to consider the extent, if any, to which the government’s freedom to reject the Ombudsman’s findings and recommendations is legally constrained.

2. The Bradley and Equitable Life cases

Perhaps tellingly, Ann Abraham, when she was the Ombudsman, argued in favour of legal constraint. She advanced this position in R (Bradley) v Secretary of State for Work and Pensions, in which the claimants argued that ministerial decisions rejecting certain of the Ombudsman’s findings of maladministration should be quashed.^[819] The Ombudsman, making submissions as an interested party, argued that ‘the Secretary of State must proceed on the basis that the ombudsman’s findings of injustice caused by maladministration are correct unless they are quashed in judi­cial review proceedings'.^[820] Refusing to accede to this argument, Sir John Chadwick, giving the leading judgment in the Court of Appeal, endorsed the view that ‘[i]f he is prepared to take the consequences, and defend his position in Parliament,...

However, the position adopted by the Court of Appeal is more subtle than its dismissal of the Ombudsman's view may seem to imply. The Court reached the prima facie unsurprising view that the government is legally free to reject the Ombudsman's findings provided that it is not Wednesbury unreasonable to do so. Yet the court adopted a somewhat unconventional conception of unreasonableness, equating it with an absence of ‘cogent reasons'.^[822] That this involves stricter scrutiny than normal Wednesbury review is evident from the fact that the government's reasons were held not to pass muster—the Minister's ‘preference for his own view' was not an adequate reason for rejection^[823]—and from the gloss subsequently placed upon the ‘cogent reasons' test in R (Equitable Members Action Group) v HM Treasury, in which it was said to require the court to engage in a ‘careful examination of the facts of the individual case'.^[824] However, the court signalled in Equitable Members that ministerial rejections of the Ombudsman's recommendations, as distinct from find­ings, would attract review only on ‘conventional irrationality', not cogent reasons, grounds.^[825]

Does this represent an acceptable level of ‘judicialization', in the sense of imbu­ing the fruits of the Ombudsman's inquiries with a degree of legal force? On one view, it might be argued that the courts have gone too far. Criticizing the Court of Appeal's approach in Bradley, Varuhas argues that ‘an orthodox Wednesbury standard... should be applied when reviewing a governmental rejection of a finding of the [Ombudsman]'.^[826] More searching scrutiny ‘could displace Parliament as the central institution for ensuring accountability' and would ‘run against the grain' of the Ombudsman system.^[827] Varuhas is certainly right to warn that over-zealous judi­cial intervention would risk upsetting the balance between legal and political control of government; but how much judicial intervention, in this context, is too much?

It would be hard to argue plausibly that courts should readily be able to force ministers to implement the Ombudsman’s recommendations by means of (say) strict judicial scrutiny of rejections of such recommendations.

But should review of ministerial rejections of findings be similarly restrained? Judicial quashing of such rejections is likely to have relatively modest effects. If a court rules that it was unlawful for a minister to have rejected a given finding of maladministration (or of injustice occasioned thereby), the finding is, on a political level, placed back on the table. This will, inter alia, strengthen the hand of those pressing the government for a remedy: to the extent that the prior justification for not granting a remedy^[829] consisted in the dismissal of a given finding of maladminis­tration or injustice, that justification will be weakened. But this does not necessarily compel the government to do anything: whether, in these circumstances, it finds itself under irresistible pressure to provide a remedy will depend upon the political weather, including the extent of public and media criticism of government intransi­gence and the administration’s political capacity to withstand it. Meanwhile, the legal implications of quashing a ministerial rejection of a finding are likely to be some­where between slight and non-existent. The ‘reinstatement’ of a finding by means of quashing its rejection does not, in itself, generate a legal obligation to do anything. An Ombudsman’s report could only create such an obligation if it contained a recommendation that could not lawfully be rejected—but, as noted above, the court’s view in Equitable Members was that such circumstances will arise only if rejection is unreasonable in the conventional, highly limited, sense.^[830]

It follows that the principal—and, most likely, only real—consequence of quash­ing a ministerial rejection of a finding is political in nature.

3. Inquiries into matters of public concern

Inquiries come in many different shapes and sizes—from routinely-held planning inquiries to inquiries into the making of highly controversial decisions about such matters as the waging of war. The focus here is upon inquiries of the latter type. The former sort of inquiry is best regarded as part of the decision-making process itself, whereas inquiries into matters of public concern supply ex post scrutiny of that process (and its outputs), and can therefore properly be regarded as a form of accountability institution. In the light of the argument, advanced above, that an effective accountability system requires diversity, what are the distinctive features of inquiries and the accountability that they supply?

There are several senses in which inquiries occupy a different niche from courts and tribunals.^[834] The standards against which an inquiry can judge administrative action are far wider than those applicable in legal proceedings; for instance, inquiries can ask questions about such matters as the wisdom of making particular policy choices that would fall well outside the remit of a court engaged in judicial review. Moreover, whereas courts necessarily deal with individual, isolated challenges to executive decisions, inquiries can consider the wider picture by looking at a whole series of administrative actions. Meanwhile, whereas litigation is (normally) initiated by individuals, and therefore serves (at least in part) to secure litigants’ private inter­ests,^[835] inquiries are initiated and owned by the government, the inquiry’s intended role being to examine matters for the benefit of the public. Finally, inquiries can be, and often are, explicitly concerned with lesson-learning in a way that litigation is not, and cannot, be.^[836]

Inquiries’ role can also be readily distinguished from that of the Parliamentary Ombudsman (and, for that matter, ombudsmen more generally). While the Ombudsman can and does look at the bigger picture with a view to facilitating lesson­learning, this is generally done through the prism of individual complaints. In con­trast, inquiries are generally concerned first and foremost with the bigger picture (albeit that the macro-level investigation might be into an administrative failure that caused myriad individual hardships). Furthermore, although the Ombudsman’s assessments of administrative action can (as noted above) take account of certain benchmarks not available to courts or tribunals, examining the merits of admin­istrative decisions is off limits.^[837] So, while both inquiries and the Ombudsman operate in the political realm—whether a government acts upon or ignores their reports is ultimately a matter of realpolitik, not legal obligation—inquiries are capa­ble of supplying a more explicitly political (albeit non-partisan) form of account­ability. Whereas the Parliamentary Ombudsman’s remit is statutorily restricted to questions of administrative effectiveness and implementation, inquiries (subject to their terms of reference) are able to examine matters in a way that potentially contributes to political discourse, and to the evaluation of government, at a deeper policy level.

From all of this, it follows that inquiries do not simply replicate other accountability institutions. Rather, inquiries complement the judicial and ombudsman systems, allowing issues to be explored in notably wide terms and from a perspective that dif­fers from those necessarily adopted by the other accountability institutions. In this sense, inquiries contribute to the diversity of, and so enrich, the accountability system. However, this begs further questions. Why is it considered necessary to establish ad hoc public inquiries rather than leaving it to Parliament—and, in par­ticular, Select Committees—to inquire into matters of public concern? And why are judges so often called upon to lead public inquiries? These questions fall to be addressed here because they engage the issues that are of central concern in this chapter—namely, the relationships between different accountability institutions (and so the diversity of the accountability system taken as a whole) and, in particular, the ‘pull’ of the judicial model.

The answers to these questions consist partly in concerns about institutional capacity. While parliamentary committees can and do conduct inquiries into matters of public concern, they are ill-equipped to undertake the sort of large-scale evidence-gathering that is often necessary in order for an inquiry to be conducted in meaningful depth. Public inquiries, on the other hand, can be imbued with the institutional resources necessary to perform this task. Meanwhile, the assumption is that judge-led public inquiries are equipped not merely to gather large amounts of evidence, but to bring to bear upon such material forensic techniques that will enable the inquiry to get to the bottom of things.

There is, however, a further, crucial, strand to the narrative which holds that the judicial inquiry is the Rolls Royce of the accountability system: judicial independence. It is unremarkable that independence per se is regarded as a desirable characteristic of a public inquiry; and it is clear that other potential conductors of inquiries, such as Select Committees, are not obviously imbued with it.^[838] But why judicial inde­pendence in particular? An important part of the answer is that, as noted towards the beginning of this chapter, judicial independence is an unusually clear manifes­tation of the separation of powers in the UK. That is why the risk arises of the judicial model of accountability being regarded as a paradigm—a possibility that has arguably been realized in the present context, judicial inquiries being treated as a gold standard. Indeed, the need for independence is arguably especially great in this sphere. Since it is the executive that has ‘ownership’ of public inquiries—in that they are established and funded, and their terms of reference set, by the administrative branch^[839]—the need to demonstrate the independence of an inquiry, executive ownership notwithstanding, is most obviously and completely met by appointing as its chair a judicial figure. This point arguably acquires even greater force under the Inquiries Act 2005, which explicitly authorises ministers to suspend or terminate inquiries.^[840]

As others have noted, there are many potential drawbacks to relying upon judges in this way: appointing a judge ‘will not depoliticise an inherently controversial matter’, such that judicial involvement in inquiries risks compromising perceptions of judicial independence;^[841] judges’ capacity to handle legal and evidential issues in the courtroom may not be readily transferrable to the inquiries context^[842] and may result in an unduly legalistic approach that renders the inquiry process almost impossibly unwieldy and expensive;^[843] and judicial involvement in inquiries represents a drain on judicial resources.^[844]

Alongside these specific objections to judicial involvement in inquiries is a set of wider considerations which call into question the place of judicial inquiries within the broader accountability landscape. Beatson notes that the ‘skills argument' in favour of judicial leadership of inquiries ‘is strongest where the task of the inquiry is solely to find facts'.^[845] Establishing the facts is certainly important, and some inquiries—including some with non-judicial chairs—regard this as their only, or main, function. For instance, Lord Butler said of his inquiry into the handling of intelligence in the run-up to the Iraq war that ‘having given a full account of the facts, we left it to Parliament and the public to draw their own conclusions'^[846] (although Butler's report in fact did rather more than that). Indeed, transparency—in the sense of uncovering the truth, and placing hitherto unavailable information in the public domain—is arguably one of the most important functions performed by any inquiry. For example, although the Hutton Inquiry's conclusions were trench­antly criticized by some, there was general recognition that it had served a valuable role by shining an unusually bright light upon the darker recesses of the government machine. Inquiries that do this make a major contribution to accountability by equip­ping members of the public—as well as the commentariat—to reach informed opinions about the matter concerned and the conduct of those involved. Viewed in this way, one of the principal virtues of inquiries is that they augment the dem­ocratic process by making available the raw informational material upon which individuals are able to base judgements about those in positions of power. And although such information is still channelled to a significant extent through tradi­tional media—with the attendant possibility of distortion—widespread use of the internet now means that individuals are able, to an unprecedented extent, to access directly the material brought into the public domain by inquiries.^[847] But, having said all of this, most inquiries are called upon to do more than establish the facts, important though that is. This begs two obvious questions. What are the broader functions of inquiries? And are they functions that it is constitutionally and practically appropriate for judges to discharge?

The potential reasons for holding, and so the purposes of, inquiries are myriad;^[848] but, along with fact-finding, two are particularly significant. In the first place, an inquiry may be established with a view to ascribing responsibility by means of evalu­ating the conduct of relevant actors (whether institutional or individual). It may be thought that judges are ideally suited to performing this function, given their expe­rience of the ostensibly comparable exercise of determining legal liability. However, this argument in fact holds relatively little water. For one thing, conduct can be evaluated, and so responsibility ascribed, only with reference to particular stand­ards or criteria: and the criteria relevant to a public inquiry will inevitably be more diffuse, less objective and more contestable than those applicable to the determina­tion of legal liability. The tasks, which necessarily fall to the inquiry, of both deter­mining and applying those criteria are potentially controversial ones (creating the risk of judicial ‘politicization’) and ones, as Jowell has pointed out, to which judges are arguably not uniquely or even particularly well suited.^[849] For instance, whereas the Hutton Inquiry was widely praised for bringing to light a wide range of relevant facts that might otherwise have remained behind a veil of secrecy, it arguably came unstuck because of the way in which Lord Hutton went on to evaluate the conduct of the principal protagonists. It has been suggested that Hutton’s report reflected his ‘qualities as a judge, meticulous and superb in the analysis of details and evidence, but more evidently questionable on matters of wider judgment’.^[850] There is also a risk that determination of ‘liability’ may be accorded an unduly prominent place within a judicial inquiry: as Blom-Cooper puts it, ‘Blameworthiness on the part of individual actors in the public disaster or scandal under inquiry is often unnecessary and frequently distractive from the main thrust of any inquiry... Public inquiries are essentially creatures of public administration...’^[851]

On this analysis, reliance upon judge-led inquiries both presupposes and invites an unduly narrow conception of accountability which borrows too heavily from the model adopted by the judicial system. The ascription of ‘liability’ in judicial proceed­ings is explicitly purposeful, in that it results in concrete remedial consequences. Yet this phenomenon (rightly) has no precise analogue in the political realm that inquiries inhabit. Notions of fault, blame and responsibility are necessarily subtler in this sphere. Indeed, the inquiry panel’s views on such matters are simply that: views. As a result, the ascription-of-responsibility function potentially served by inquiries, while not unimportant, shades into—in some senses, exists in the shadow of—the broader transparency function addressed in the previous paragraph, which serves to equip the public, politicians, and the media to form their own views.

A similar point can be made in relation to the other main task that inquiries habitually perform—namely, the facilitation of lesson-learning by means of analys­ing the relevant issues and formulating proposals for reform in areas ranging from substantive policy and administrative practice to institutional design and interac­tion. Of course, situations arise in which judges are ideally suited to this task; but such situations are rare, and are inevitably confined to technical areas concerning such matters as the administration of justice.^[852] Outside of such circumstances, it is unclear in what sense judges are equipped to perform this function, save to the extent that they (like many others) are able to consider evidence and compet­ing arguments and to arrive at a (most likely highly contestable) view. Take, for instance, the Leveson Inquiry, which was required, inter alia, to make recommenda­tions about media regulation and the future conduct of relations between the press, on the one hand, and politicians and the police, on the other.^[853] This remit took the inquiry deep into the policy arena, and it is far from clear why a judge—whatever his capacity to inquire into and establish the causes of the phone hacking scandal that precipitated the inquiry—was an appropriate person to undertake such a task. Indeed, it is regarded as wholly improper for judges to undertake such assessment and formulation of policy when (for example) they decide judicial review cases, not least because they are institutionally ill-equipped to do so.

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The foregoing does not, however, reduce to the argument that judges should have no involvement in public inquiries. Rather, judges' involvement in inquiries should be confined to performing those functions that they are uniquely well placed to perform.^[854] One version of this argument consists in the view that judges should be involved only in inquiries that specifically call for their particular skill-set.^[855] The difficulty, however, is that this putative condition for legitimate judicial involve­ment may be fulfilled in circumstances that also disclose strong arguments against such involvement. A forensic approach (and one that is conducted in a transparently independent manner) to matters factual and evidential may be necessary, but as a precursor to very different tasks such as evaluating relevant actors' conduct by reference to soft, contestable criteria, and making detailed recommendations in specialized and esoteric areas.

Inquiries can—and should—supply a form of accountability that differs fundamentally from that which the legal system provides by means, inter alia, of judicial review. Accountability in the present sense calls for evaluation (of past events) and prescription (for the future) by reference not to legal standards, but with regard to a range of more diffuse bureaucratic, financial, institutional, moral and political criteria. It would be unduly dogmatic to oppose judges' involvement in the fact-finding phase of inquiries, but their involvement should be confined to that phase. This is, as the foregoing discussion suggests, an argument based partly upon technical considerations about the extent of judges' skills. But it also forms part of a wider argument about where constitutional responsibility ought to lie for providing the type of accountability that inquiries are capable of furnishing—an argument which, if accepted, would necessarily constrain, but not eviscerate, the role of judges in this sphere.

The present situation is that the executive branch, on occasions, chooses (whether freely or under irresistible political pressure) to establish inquiries into controversies caused by the conduct of one of its constituent parts, and drafts in the judiciary to run such inquiries even though they involve tasks well beyond that branch's practical competence and constitutional remit. Such arrangements illustrate, in microcosm, many regrettable truths about the British constitution, including executive hegemony, the marginalization of Parliament, and undue veneration of the judicial model of accountability as a result, in part, of the judiciary’s unique status, under the UK’s quasi-separation of powers, as an independent counterweight to the legislative-executive apparatus.

One solution, as the PASC has recognised, would be for Parliament to assume a greater role in this area.^[856] At present, an inquiry under the Inquiries Act 2005 can be triggered only by the administrative branch (albeit that Parliament can, of course, bring pressure to bear), which means, inter alia, that the executive determines whether an inquiry takes place at all,^[857] and, if so, what its terms of reference are^[858] and who chairs it.^[859] The implications of such executive control are arguably apparent from the way in which the terms of reference of the initial Iraq-related inquiries^[860] were constrained, with the ‘full’ inquiry—the Chilcot Inquiry—conceded only once the main protagonists had left, or were destined shortly to leave, the political limelight. Of course, the fact that the government has established an inquiry on terms of its choosing does not prevent Select Committees from conducting their own investi­gations on their own terms. The difficulty, however, as noted above, is that such committees generally lack the institutional capacity to conduct detailed investigations of the type typically undertaken by government-established public inquiries.

Against this background, the PASC proposed the creation of ‘parliamentary commissions of inquiry’, using the relationship between the National Audit Office and the Public Accounts Committee as a model. Under the PASC’s proposal, Select Committees would be able to establish ‘commissions of inquiry’ ‘in order to estab­lish factual information on complex subjects which would otherwise occupy too much committee time’.^[861] It would then be for the Select Committee to examine the commission’s findings and report to the House. Presumably, that examination process would involve the evaluation of the evidence as found by the commission and, where appropriate, the determination of responsibility and the making of pro­posals in the interests of lesson-learning.

Although the PASC did not discuss the possibility, there is no good reason why external commissions should not consist of or be led by a judge in circumstances where judicial expertise is relevant. Such a model would inherently limit judges’ roles within the wider inquiry process, harnessing their skills where relevant while acknowledging that inquiries supply (or ought to supply) a form of accountability that is fundamentally different from that which the judicial model is capable of providing. It would also better reflect underlying separation of powers concerns, according to which ultimate constitutional responsibility for holding the executive to account by reference to non-legal accountability criteria should rest not with judges running government-initiated inquiries, but with Parliament.

There is no immediate prospect of the PASC's proposals being adopted. But something of the PASC model is discernible in the Parliamentary Commission on Banking Standards, which was established in July 2012 in the wake of the scandal concerning the fixing of Libor (the rate at which leading banks can obtain unsecured funding in the London interbank market). The Commission is technically just an ad hoc joint committee of the House of Commons and the House of Lords. Unusually, however, it has ‘the power to invite specialist advisers appointed by the Commission (including counsel appointed as specialist advis­ers) to examine witnesses'.^[862] It has also established several ‘panels' to examine particular issues.^[863] However, the Leader of the House of Commons said that he did not anticipate that this would ‘become the modus operandi of other Select Committees'—something that other MPs lamented. John Mann MP, for instance, argued that if these powers were ‘good enough for this new Commission, they should be made available to any Select Committee looking at any issue'.^[864] This point notwithstanding, the Commission on Banking Standards is a rare (in this sphere) example of institutional innovation. If, in due course, it is deemed to have been a success, it may come to be regarded as the basis for an alternative inquiry model, thereby diminishing the kneejerk tendency to insist upon a judge-led inquiry whenever a crisis erupts.^[865]

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