Administrative Justice: Proposal for the Parliamentary Commissioner Act 2010 - Essay Example

Administrative Justice Proposal for the Parliamentary Commissioner Act The Parliamentary Commissioner Act of 1967 has suffered from various loopholes mainly with respect to the manner of filing complaints to the Commissioner. Necessary amendments are also not made to the Act from the time it has been adopted. “The parliamentary Commissioner Act has not yet succeeded in establishing himself in the public mind as the defender of “the little man, the ordinary humble citizen” as a grievous man or citizen’s protector. One reason for this is surely that before a complaint can be considered by the commissioner, it has to survive what he has called an assault course of ten tests, specified in the Parliamentary Commissioner Act 1967.” (Foulkes 1971). The Parliamentary Commissioner Act was authorized to deal with matters of mal-administration. But the Act failed even to provide a definition for the term mal-administration. It has also been said under the Parliamentary Commissioner Act of 1967 that the complaints have to be made through a Member of the Parliament. In most of the cases, the Member of Parliament himself tries to solve the dispute and does not send it to the Parliamentary Commissioner. This restriction is illogical and it cannot be seen to it that that the grievances of the citizens would be served without bias in such circumstances. The trust and confidence of the people cannot be gained when there is such a limitation in any legislation. “It is sometimes further argued that if the PCA appears too demanding and, a fortiori, if he were afforded coercive powers, he might exacerbate the very problems he is expected to solve. Administrators may be reluctant to take bold decisions for fear of the consequences; ‘defensive administration’ might be undertaken: time-wasting procedures designed not to further administrative efficiency but to deflect criticism.” (Fenwick & Philipson 2003, p. 240). According to this Act, the Ombudsman looks into complaints in which that information illegally suspended by the government authorities, but no lawful solution has been offered to them in the cases of breach of the Code by the authorities. This Act has not given much wider powers to the Ombudsman when compared to other nations but it has been argued that the act implied gives various powers. “Under s 5(1) of the Parliamentary Commissioner Act of 1967, the Ombudsman can take up a complaint only if the citizen has suffered injustice as a result of maladministration; both maladministration and injustice must be shown and there must be a casual link between them.” (Fenwick 2002, p.376). In various other nations the legislations giving powers to the ombudsman, provides elaborate powers when compared to the Parliamentary Commissioner Act of 1967. The Act does not also provide for the ways and methods in which the redressal would be carried out with respect to the complaints filed under this Act. “Although most ombudsman investigations focus on administrative procedures, this does not mean that ombudsmen cannot investigate the merits of decisions of public authorities. The 1967 Act left a degree of flexibility on the issue. Section 12(3) prevents the PO from questioning ‘the merits of a decision taken without maladministration’ (added emphasis). This implies that where a decision is taken with maladministration then the PO can legally consider the merits of the decision”. (The parliamentary commissioner act: an evaluation, 2007). But the Ombudsman has the authority to ask for the production of certain evidences which are essential for the conducting of investigation in certain cases which they feel appropriate. The Ombudsman is also subject to judicial review but the judiciary does not interfere much with the activities of the Ombudsman because it has been conferred with certain powers under the Parliamentary Commissioner Act. “Although maladministration is not defined in the Parliamentary Commissioner Act 1967, it has been taken to refer to an error in the way a decision was reached, rather than an error in the actual decision itself. Indeed s12 (3) of the Parliamentary Commissioner Act from questioning the merits of particular decisions taken without maladministration”. (Slapper & Kelly 2006, p. 161). According to the Parliamentary Commissioner Act of 1967, the Ombudsman was restricted from trying cases related to State security, civil services and certain other offences. “The function of the Commissioner (or the P.C.A) is to investigate alleged cases of injustice “in consequence of maladministration” caused to a member of the public by government departments or certain authorities closely linked to the central government.” (Williams 1967). It is the Commissioner who has to lay down various guidelines in order to determine whether in a particular case there has been injustice or mal-administration. He has to do this based on his previous experiences and logic. But this provision gives the Parliamentary Commissioner, wide discretion which has to be undertaken cautiously by him. The role assigned to the Ombudsman should have been better but this Act gives no powers to the Ombudsman to investigate directly any case which arises under this Act. As per section 5(2) of the Act, the Parliamentary Commissioner has no liberty to investigate certain matters in the following circumstances. They are- “a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majestys prerogative, b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law:” (LeSueur et al. 1999, P.213). But in certain exceptional circumstances, the commissioner may carry out the inquiry if he feels that the other remedies available to the aggrieved person cannot provide him the required remedy. But in reality it has been found that the Parliamentary Commissioner rejects most of the complaints for any of the above said reasons and this has caused dissatisfaction to a large number of individuals who file the complaints as per this Act. “Where the Parliamentary Commissioner considers that he has been obstructed or in any way prevented from carrying out an investigation he can apply to the High Court which can deal with any such difficulty as a contempt of court. In the course of an investigation the Parliamentary commissioner may permit a person concerned in that investigation to be legally represented while, in addition, an investigation may sometimes comprise a more formal hearing”. (Hawake & Parpworth 1996, p.267). Since there are no well defined procedures which the Parliamentary Commissioner has to follow according to the act, he has a wide range of discretion with regard to the procedure to be followed in each case. In many cases, he does only a formal hearing. The public sector - Scottish Public Services Ombudsman: The Scottish Public Services Ombudsman Act 2002 constructs provision meant for the engagement of the Scottish Public Services Ombudsman and is capable of at least three deputy manager Ombudsmen. “The SPSO Act provides that a person whose term in office expires is eligible for reappointment and that the SPCB will set the Ombudsman and deputies’ terms and conditions of appointment.” (Drake, E., et al., 2006, p.2). The Scottish Public Services Ombudsman is the last phase for grievances regarding society offering community services in Scotland. The public sector - Scottish Public Services Ombudsman copes with various grievances in relation to various ruling body like the worldwide services of Health, housing organization, the administration of Scottish and its groups and divisions, institution and university and the majority of Scottish organizations. The main objective of the act is not only to offer justice for the human being but in addition that Act is also capable to allocate knowledge from the each of the work so that it will help to develop the delivery of judgment of Scotland public services. “The Scottish Public Services Ombudsman (the Ombudsman) considers complaints from members of the public claiming that they have sustained injustice or hardship in consequence of maladministration or service failure. The powers and responsibilities of the Ombudsman are set out in the Scottish Public Services Ombudsman Act 2002”. (Scottish public services ombudsman, 2008). There is a broad variety of Ombudsman plans in the United Kingdom. Moreover, plans which take action similar to ombudsmen is capable of examining grievances on the subject of businesses, service contributors and administration authority. Ombudsman is a human being who has the capacity to perform as the mediator among association and any of the inside and outside constituency. “The Ombudsman is always mindful of the fact that the highest authority on the meaning and interpretation of Community law is the Court of Justice. Furthermore, in accordance with Article 195 of the EC Treaty the Ombudsman cannot conduct inquiries where the alleged facts are or have been the subject of legal proceedings”. (Ombudsman’s annual report for 1999 (Extract), n.d. p. 159). The main purposes of the Act consists of the following: Handle unsettled grievances. Enhance public alertness of the function of the SPSO Act. Encourage high-quality managerial practices. Contribute to the development good of public services practices. But in certain cases the complaints are not handled by the SPSO Act. Such as, if the complaint is in excess of 12 months because the aggrieved individual found out regarding the subject, there is a right of petition all the way through panels or the courts. The powers of the Commissioner & how they might be defective / improved: The commissioner is in charge for suggesting legislation, executing decisions and maintenance union agreement. The provision does not approve the Commissioner to manage the taxation rule’s incompatibly with their function or entity. They hold up the standard that the Commissioner should take and manage every Act to provide effect to its objective. It is also very much apparent that the authorities of broad management consist and expand the exact authorities agreed to the Commissioner by the particular Act. This will be demonstrated by declarations as follows, “In Industrial Equity Limited and Another v. Deputy Commissioner of Taxation and Others (1990) 170 CLR 649, the applicants submitted that section 263 of the ITAA 1936 conferred power on the Commissioner only ‘for any of the purposes of this Act and that the conduct of a random tax audit was not a ‘purpose’ within the meaning of section 263. It was also submitted that the ITAA 1936 did not vest any power of audit in the Commissioner and that audit activity was foreign to the process of assessment”. (Quigley 2009). In order to exercise the power awarded on Commissioner, he should bring together a variety of responsibilities and powers. For instance, one responsibility is to gather the income correctly payable under the rule. The magistrates have explained the duties of the Commissioner’s as follows: To make sure that the exact quantity of levy is paid, not more or less than that. To gather levy in accordance by means of an accurate evaluation, to be exact, to gather the accurate quantity of levy, not more or less. If an evaluation is extreme it would be inappropriate for the Commissioner to search for to gather levy payable. But they should be acted in accordance’s with the natural righteousness and ultra virus. “The special report was laid before Parliament under sec 10(3) of the Parliamentary Commissioner Act 1967 and is noteworthy among ombudsman report because in completing her legislation the Parliamentary ombudsman had to addressed a number of legally uncertain features of an ombudsman power.” (Kirkham 2006). Compare between accesses to justice by using Judicial Review as an alternative to ombudsman: “An ombudsman is a person who has been appointed to look into complaints about an organization. Using an ombudsman is a way of trying to resolve a complaint without going to court.” (Civil rights – In England, 2010). Public part workers have a lawful responsibility to obey with the universal necessities of the rule, in addition to the exact legislation directed by their action. A significant lawful obligation applying to the majority judgments that straightly influence the human rights and welfares of individuals or association are that it must made on the basis of the natural fairness. The service of the Ombudsman takes care of grievances from customer’s almost all the monetary matters. “Ombudsman schemes exist to deal with complaints from ordinary citizens about certain public bodies or private sector services. The majority of recognized Ombudsman schemes are set up by statute. Others are voluntary non-statutory schemes set up on the initiative of the service sectors concerned.” (Alternative dispute resolution – England and Wales, 2006). A judicial review has explained the civil right for decision maker to build occasion- limited money provision to applicants as a substitute to pleasing grievances to the Monetary Service provided by the Ombudsman. “Most administrative decisions that affect individuals and organizations are made by primary decision makers—front-line administrators in government agencies. Only aminority of these decisions are reviewed by internal review officers, ombudsmen, Courts or tribunals. The quality of administrative justice experienced by the public depends largely on primary decision makers ‘getting it right’.” (Decision making: Natural justice, 2007, p.v). In order to make fair decision the makers must be aware of the law as well as the administrative frame in which the judgment must be constructive. Following guidelines must be kept it in mind at the time of making fair decision. Those are discussed below: Decision making on the basis of natural fairness. Decision building offers an overview of the lawful necessities for legal judgment making. Decision building must be taken into due consideration of the evidence, detail and finding of the case. Decision maker must provide the causes for making the fair decision. Case laws: Parliamentary Commissioner Act 1967- “An Act to make provision for the appointment and functions of a Parliamentary Commissioner for the investigation of administrative action taken on behalf of the Crown, and for purposes connected therewith”. (Parliamentary commissioner act 1967, 1967). R v Parliamentary Commissioner for Administration, Ex Parte Dyer [1994] 1 WLR 621-v in this particular case a grievance is required for the legal evaluation of PO (parliamentary o) dismissal to regenerate an examination. The capacity and end result of which the grievances were disappointed with. “Whilst the Court accepted that the Ombudsman was subject to judicial review, it indicated that the courts would not readily be convinced to interfere with the Ombudsman’s broad discretion and Simon Brown LJ indicated that it would be very difficult to mount an effective attack on unreasonableness grounds. The Ombudsman was entitled to limit the scope of his investigation, and fairness did not require the complainant to be shown the draft report. Once the report was submitted to the relevant MP and department, the Ombudsman would be unable to re-open his investigation without another MP referral”. (Ombudsmen and other investigators, 2010). Ex Parte Dyer [1994] 1 WLR 621-In this case: Parliamentary Commissioners decisions are reviewable, but range of the discretion given to him by the Act is very wide, and his decisions will only rarely be susceptible to review. He is answerable to Parliament. Parliamentary commission Act of 1967.” (Administrative – 1993, 2009). In the case of Channel Tunnel Rail: “Friend the Secretary of State for transport on 1 November, the government concluded that they had to continue to resist the Parliamentary Commissioner’s finding of maladministration in this case, and that any new principle of administration implied in the Committees Report was unacceptable.” (Pollard, Parpworth & Hughes 2007, p.436). In this particular case, the government was ready to think about as to whether a policy has to be made to apply the Committee’s recommendations or a remedy has to be provided to the persons who are distressed seriously by comprehensive impair from the channel tunnel rail link. Conclusion: Though the Act of 1967 has been accepted as a redresser of the grievances of common man against the arbitrariness of the administration, there are several defects within this Act. The power given to the Ombudsman has been restricted in this Act. Therefore the defects in the method of complaining like MP filter have to be removed and a better legislation be provided to the citizens. Reference List Administrative – 1993, 2009. [Online] Swarb.co.uk. Available at: http://www.swarb.co.uk/lisc/Admin19931993.php [Accessed 30 April 2010]. Alternative dispute resolution – England and Wales, 2006. [Online] European Judicial Network. Available at: http://ec.europa.eu/civiljustice/adr/adr_eng_en.htm [Accessed 30 April 2010]. Civil rights – In England, 2010. [Online] Advice Guide. Available at: http://www.adviceguide.org.uk/index/your_rights/civil_rights/how_to_use_an_ombudsman.htm [Accessed 30 April 2010]. Decision making: Natural justice, 2007. [Online] Best-Practice Guide, p.v. Available at: http://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(756EDFD270AD704EF00C15CF396D6111)~ARC+Best+Practice+Guide+2+Natural+Justice.pdf/$file/ARC+Best+Practice+Guide+2+Natural+Justice.pdf [Accessed 30 April 2010]. Drake, E., et al., 2006. 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