THE COURTS’ RELATIONSHIP - PowerPoint Presentation

Slide1

THE COURTS’ RELATIONSHIP

TO

THE OMBUDSMEN

–

SUPERVISOR AND PARTNER?

Brian ThompsonSlide2

Outline

Introduction

Partners

Policy Rationale for Ombudsmen

Financial RedressConcluding Thoughts

2Slide3

Introduction

Derived and developed from article

JR55 v Northern Ireland Commissioner for Complaints

[2014] NICA 14

50 free

eprints of article athttp://www.tandfonline.com/eprint/JQhQy25RKQsbdmpMcv79/full

3Slide4

Shameless Plug

4Slide5

Relationships

Complainants

Aiding navigation, promoting access & understanding

The Administrative Justice System

The 4 Partners

Integrity Institutions

Auditors, Regulators, Inspectors

The Constitutional Order

Government, Parliament, the

C

ourts

5Slide6

Partners

System

Remit and Scope

Approach

6Slide7

‘the overall system by which decisions of an administrative or executive nature are made in elation to particular persons including:

the procedures for making such decisions

the law under which such decisions are madethe systems for resolving disputes and airing grievances in relation to such decisions’

Tribunals, Courts and Enforcement Act 2007, Schedule 7, para

. 13(4)

The AJ System

7Slide8

The AJ System’s Aims

Getting it Right First Time

Effective Redress

Learning from Mistakes

Administrative Justice in Scotland - The Way Forward,

AJSG (June 2009)

8Slide9

Further definition of AJ System

all initial decision-making by public bodies impacting on citizens –

this will

include the relevant statutory regimes and the procedures used to

make such

decisions (‘getting it right’);all redress mechanisms available in relation to the initial

decision-making (‘

putting it right’);

the network of governance and accountability

relation-ships surrounding the

public bodies tasked with decision-making impacting upon citizens

and those

tasked with providing remedies (‘setting it right

’). BKT p.57

9Slide10

The 4

Pillars

Partners of AJ

Internal Complaints

Tribunals and Inquiries

OmbudsmenCourtsLaw Commission CP 187 (2008)

Administrative Redress: Public Bodies and the Citizen,

p.6

10Slide11

C

omparison

Bodies within remit- similar coverage

Nature of claim- service (and/)or legality

Objectives

CostRemedies - Ombudsman has wider range But recommendations with ‘political enforcement’ county court action if N. Ireland local council

11Slide12

The ‘sweeping-up’ Partner

Judicial Review is last resort

Ombudsmen ‘barred’ if an alternative remedy

But proviso if alternative is not ‘reasonable’

Law Commission proposal to reform, thus complaint acceptable unless Ombudsman decides it is not appropriate; should publish guidance

Law Commission LC 329 (2011) Public Services Ombudsmen

,

paras. 3.23-3.49

12Slide13

Two-Way Traffic Proposals

Origin, Lord

W

oolf’s (1990) Hamlyn Lectures

Stay and referral by court to ombudsman

Ombudsman can refer a question of law Each will decide if they accept such referrals Law Commission LC 329 (2011)

Public Services Ombudsmen

,

paras. 3.50-88; 4.69-95

13Slide14

Partners: cooperative approach

Generally ombudsmen may be said to achieve goals through partnership see

Hertogh’s

dichotomy ‘coercive control’- courts and

‘co-operative control’ –ombudsmen M. Hertogh

‘Coercion, cooperation and control: understanding the policy impact of administrative courts and the Netherlands’

(2001)

Law and Policy

23: 1, 47-67

14Slide15

Partners

‘[T]he

ombudsman [can] take a more expansive adjudicative perspective …

look to

the underlying causes of citizen grievance and, over time, and by way of a cumulative and iterative process … make recommendations that will remedy

not just

the plight of the individual complainant but others already, or yet to be,

in the

same or similar situation

.’

N. O’Brien ‘Ombudsmen and social rights adjudication’, [2009]

Public Law

466, at

470)

15Slide16

Partners: Recap & Metaphors

AJ System user chooses on appropriateness

Ombudsman overlaps due to the proviso

Ombudsman is ‘the buckle in the belt of redress’ BKT p 192

Emergency services ‘Each

is absolutely vital – but not necessarily in the same situation. Morgan LCJ (2010)

‘The

ombudsman and the judge: Redressing grievance and holding to

account’.

16Slide17

Policy

In

JR55 t

he NICA majority did not refer to policy

But the minority and High

Court judge didOn the clinical judgment jurisdiction we haveAtwood v Health Service Commissioner

[2008] EWHC 2315 (Admin)

was cited and it was accepted that the

Bolam

test was not applicable

Lord Reed says the Supreme Court welcomes interveners, whose submissions can

change the consideration of issues from that in lower courts

17Slide18

Financial Redress

The majority construed the 1996 NI Order to preclude the power to make financial redress

The 1996 Orders followed the 1969 NI statutes and the PCA 1967 in not specifying financial redress

PHSO make reference to guidance on financi

a

l redress in Mr & Mrs M (HC 132 of 2013-14) Law Commission proposes ombudsmen should publish more -guidance, digests on their work plus reports

, (can fit

open justice

with confidentiality)

18Slide19

Concluding Thoughts

Ombudsmen not well known or understood

Healthcare cases rising

Concern and criticism from Patients, MPS/MDU

Educate and Inform Partners

Review policy and guidance on financial redressMore openness with more publications

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