Redress of grievances

NOTE: Redress of grievances refers to the legitimate expectation by a citizen in a democratic society that complaints against public officials will be considered fairly and impartially and that legal remedies for wrongs will be available where malpractice be revealed.

What is the role of the Ombudsman in the redressing of grievances?

The Ombudsman or Parliamentary Commissioner for Administration (PCA) was first appointed in 1967. It is the job of the PCA to investigate complaints of maladministration which occur in the departments of central bodies.

Members of the public cannot refer cases directly to the PCA. They must be passed on through an MP. Since 1988, however, the Local Government Ombudsman has been directly accessible to members of the public.

Once a complaint is received, it is acted upon only if there is no other way of dealing with it and if the complaint satisfies the provisions of the 1967 Act – which states that a person must have good reason to claim ‘to have sustained injustice as a consequence of maladministration’. Maladministration, however, is not defined in the Act.

Ombudsmen have wide powers. They can compel witnesses to attend private hearings and inspect relevant files and papers. After the investigation, a report is submitted to a House of Commons select committee and published. If maladministration has taken place, the Ombudsman recommends an appropriate remedy although the government department is not obliged to accept it. In most cases, an apology or financial compensation is offered but sometimes changes to administrative procedures are implemented.

CRITICISMS –

• Ombudsmen are underused: (i) complaints to the PCA have to be channelled through MPs, (ii) all complaints must be in writing and (iii) the system is not well publicised;
• there is a large number of rejected complaints as ombudsmen have to be satisfied that both maladministration and injustice have occurred before the investigation commences;
• ombudsmen cannot make inquiries themselves but rather most await complaints;
• most ombudsmen have civil service or local government backgrounds so there is a concern that their sympathies are with those being investigated;
• there is a long delay before a decision is reached (70 weeks on average); and
• ombudsmen do not have powers to enforce the recommendations in reports.

ADVANTAGES –

• Ombudsmen reach parts of the system other mechanisms do not reach and they cover a wide range of public bodies;
• they are cheap to use;
• there is no need for legal advice;
• the process is conciliatory not adversarial;
• recommendations are largely implemented; and
• the finding in one case may affect others.

What is the role of Parliament in the redressing of grievances?

Another possible defender of the rights of the citizen is Parliament. Constituents have a right to see their MP, either in Westminster or in the MP’s surgery in their constituency. MPs do not have extensive powers individually, but they do have some powers to protect people’s rights:

• MPs can write directly to a minister or a government department, agency and quango. It is expected that a MP’s complaint will be taken seriously and replied to. Many minor issues, such as the non-payment of money owed to citizens by the Inland Revenue, or disability pensions, are dealt with effectively as this level.
• They can question a minister orally at Question Time or put down a written question. The latter tends to be more effective, particularly in miscarriage of justice cases.
• They can raise the matter as an adjournment debate at the end of a parliamentary day. This tends to be most effective when dealing with issues affecting groups of constituents – consider, for example, the way in which MPs from rural constituencies used it to protect farmers in the foot-and-mouth crisis.
• They can refer a matter to the ombudsman or a parliamentary select committee. The ombudsman (the parliamentary commissioner for administration) does have some investigative powers.

  On the whole, however, the scope for MPs is fairly limited, unless they are part of a wider campaign. The example of Chris Mullin MP and the wrongful conviction of the Birmingham Six shows this.

  A MP also might not take on a case because:
  (1) it may not be important enough to raise;
  (2) MPs are very busy and might not have the time to take it on or pursue it with vigour;
  (3) party discipline is important and so they may be discouraged from raising embarrassing issues;
  (4) MPs have limited office, research and secretarial facilities; and
  (5) MPs vary in terms of interest and ability.

What is the role of the local councillor in the redressing of grievances?

Citizens who have a grievance that comes under the jurisdiction of the local council – in areas such as education, planning and housing – need to see their local councillor in the same way as they should see their MP on national matters. Local councillors have similar influence and there is also access to the local government ombudsman. Because of a lack of public awareness of what a council (or councillor) can and cannot do, limited use is made of them.

What is the role of the judiciary in the redressing of grievances?

• Courts of law are the principle defenders of citizens’ rights.
• A judge ruled that an operation to separate Siamese twins could go ahead, even though it would certainly lead to the death of one of them. The judge had to consider the rights and wishes of the parents, who opposed the operation, and the rights of the twin who might live, and the rights of the twin who would die.
• Judges had to decide whether farmers had the ‘right’ to resist Ministry of Agriculture officials coming on to their land to slaughter animals possibly infected with foot-and-mouth disease.
• There is always a concern that the process can be slow and very expensive, and this deters may individuals.

What is the role of the European Court of Justice in the redressing of grievances?

• The European Court of Justice, which sits in Luxembourg, is made up of 25 Judges, one from each member state, and eight Advocates General, who are responsible for presenting, with complete impartiality and independence, an ‘opinion’ in the cases assigned to them.
• The role of the court is to interpret European Law and make decisions which are then binding on member states. It rules on interpretation and application of EU law and can also resolve disputes between member states. A wide range of matters can be brought before the Court (including actions for failure to fulfil obligations, actions for annulment of measures, actions for failure to act, appeals and reviews).
• Due to an increasing workload, the Single European Act set up a Court of First Instance. The creation of the Court of First Instance instituted a judicial system based on two levels of jurisdiction: all cases heard at first instance by the Court of First Instance may be subject to a right of appeal to the Court of Justice on points of law only.
• On 2 November 2004 the Council adopted a decision establishing the European Union Civil Service Tribunal. This new specialised tribunal, composed of seven judges, will hear and determine at first instance disputes involving the European civil service. Its decisions will be subject to a right of appeal before the Court of First Instance on points of law only. Decisions given by the Court of First Instance in this area may exceptionally be subject to review by the Court of Justice. The European Union Civil Service Tribunal should be able to assume its functions some time in 2005.

What is the role of the European Court of Human Rights in the redressing of grievances?

• The European Court of Human Rights is an international court based in Strasbourg. It consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms – currently 45. The Court’s judges sit in their individual capacity and do not represent any State. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers from all the member States (who are also known as legal secretaries). They are entirely independent of their country of origin and do not represent either applicants or States.
• The Court applies the European Convention on Human Rights. Its task is to ensure that States respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as “applications”) lodged by individuals or, sometimes, by States. Where it finds that a member State has violated one or more of these rights and guarantees, the Court delivers a judgment. Judgments are binding: the countries concerned are under an obligation to comply with them.
• Appeals to the court can only be made if people feel that their rights under the European Convention on Human Rights have been violated. Firstly, the appellant must have exhausted all the procedures for justice in his or her own country and, secondly, they must go to court via the Commission on Human Rights.
• The Commission on Human Rights decides whether the case is admissible and, if it is, tries to achieve an agreed settlement before referring it to court.
• It was partly because of concerns at the number of times that the British government had been judged to have been in breach of the European Convention on Human Rights that the Human Rights Act 1998 was passed. The Act incorporated the European Convention on Human Rights into UK law. It is now no longer necessary to apply to the European Court of Human Rights to enforce the rights provided in the convention.

What is the role of the civil courts in the redressing of grievances?

• County Courts –> High Court (Queen’s Bench, Family, Chancery) –> Court of Appeal (Civil Division)
• County Courts deal with relatively minor civil actions and, therefore, the majority of civil actions.
• The Queen’s Bench is responsible for reviewing administrative decisions made by public bodies such as local authorities, government departments and health authorities.
• The Family Division adjudicates on all maters relating to the family and the legal side of people’s personal relations.
• The Chancery Division is responsible for considering issues involving taxation and wills.
• The Court of Appeal is responsible for adjudicating when the High Court gives permission for a case to go to appeal or when those in dispute successfully request such a right from the Appeal Court itself. The Master of Rolls presides over this court. Judgements are then made by the Lord Justices of Appeal, of which there are about 36. They do not hear from witnesses except in exceptional circumstances and the three judges who preside over each appeal make their decision on the basis of documents and the arguments of barristers. Their interpretations of law set precedents which the lower courts must follow.

What is the role of the House of Lords in the redressing of grievances?

• The House of Lords is the highest court of appeal in the UK. Each appeal, of which there are around 1,500 a year, is normally heard by five Law Lords.
• Cases which reach the House of Lords are heard by the Law Lords or Lords of Appeal in Ordinary as they are properly known. The Law Lords consist of senior judges made life peers and salaried with a duty to sit on the appeals committees of the House of Lords.
• Normally two Scottish members are included and current and past Lord Chancellors may sit in judgement in the House of Lords.
• The Law Lords only accept cases referred to them by the Court of Appeal. They sit in judgement in a House of Lords committee room and deliver their decision not as a judgement, but after a vote on whether the appeal should be accepted or dismissed.
• The main controversies concerning the House of Lords are: (1) the unrepresentative social and gender characteristics of its membership; (2) the way in which its membership is appointed; (3) its antiquated image; and (4) the contravention of the principle of the separation of powers.
• On 12 June 2003, the Labour government announced a radical proposal to abolish the judicial role of the House of Lords and to replace it with a Supreme Court, broadly independent of the Lords. It would initially be made up of 12 Law Lords but the number good increase. These proposals were embodied in a Constitutional Reform Bill introduced by the government in the House of Lords in February 2004. It also proposed the abolition of the post of Lord Chancellor, whose political functions would be transferred to a Minister for Constitutional Affairs and legal responsibilities to the Lord Chief Justice. A Supreme Court would have a more modern image and remove problems with the separation of powers.
• What is the role of judicial review in the redressing of grievances?
• British courts are responsible for interpreting the precise meaning of an Act of Parliament and also for reviewing the actions of public agents to find out whether their actions are ‘ultra vires’ (beyond their powers). The government can be brought to court on the same grounds as an ordinary person or organisation.
• Judicial review is a direct challenge to the lawfulness of the government’s action and clearly involves the courts in judgements which have political fall-out. The political views of the judges may have a bearing on whether the review should be granted and what verdict is delivered.
• For a judicial review to take place, the aggrieved individual or organisation must apply for a judicial review at the High Court. The right to a judicial review is not automatic and only when leave to proceed has been granted can a case be heard in front of two or three judges in the Divisional Court of the Queen’s Bench Division.
• There are three grounds for being granted leave to proceed: (1) ultra vires – a judicial review is granted if it seems that there is sufficient evidence to suggest that a public authority may have exceeded its statutory power; (2) procedural impropriety – a judicial review is granted if there appears to have been procedural impropriety (where actions taken by a public body have contravened ‘natural justice’ – i.e. are not fair and free from bias); and (3) an action was ‘irrational’ – a judicial review is allowed if it appears that a public body has acted ‘irrationally’ (in a highly ‘unreasonable’ way). These three grounds give judges a great deal of discretion.
• There are five possible remedies available if the judges find against the public agent: (1) the court can quash decisions made by public agents who have been acting outside their lawful jurisdiction; (2) a tribunal can be prevented from considering matters outside its authority; (3) a public body can be compelled to perform a specified function by law; (4) any public body can be ordered not to carry out or to stop carrying out an action which the court decides is unlawful; and (5) the judges can choose to clarify the legal position in a particular case.
• Citizens using judicial review to redress grievances face a number of problems: (1) access to the system is limited; (2) only 1/3 of actions reach a final hearing; (3) some judges are more likely to grant leave for cases than others; (4) only 1/6 cases results in a ruling against the public agent; (5) the growing number of cases means there is an increasing willingness on the part of the judiciary to intervene in the day-to-day business of the government; (6) judges are unelected and come from an elite social background – it is questioned whether they should be responsible for scrutinising and ruling upon the legality of actions of elected governments and local authorities; and (7) judges, regardless of their background, have been accused of being insufficiently trained to take legal decisions in a highly politicised environment.
• The process of judicial review involves judges in decisions of a political nature. The greater use of judicial review may be evidence that people are making greater use of the legal remedies available to them when they feel that their rights are being infringed or it may be that there has been a growth of the abuse of rights by public bodies.

What is the role of the Criminal Cases Review Commission in the redressing of grievances?

• In October 1989, the Court of Appeal overturned the convictions of the ‘Guildford Four’. These convictions were overturned on the grounds that the evidence against them had been based on police lies and false confessions. This led to a steady stream of overturning conviction and shook the public’s faith in the judicial system.
• Until 1997, it was the responsibility of the Home Office to decide whether cases should go back to the Court of Appeal but, since March 1997, the CCRC has taken over this responsibility. It is based in Birmingham. To have a case heard by the CCRC, the appeals procedure must have been exhausted and it is necessary to present new evidence which was not available at the time of the trial or was not disclosed to the defence.
• By March 2004, there had been 6,647 applications to the CCRC. Of these, 6,017 had been completed and 178 had been heard by the Court of Appeal. Of the cases heard, 121 original judgements were quashed, 55 were upheld and 2 were reserved.
•  It is difficult to get a case through the CCRC to the Court of Appeal but, once this hurdle is overcome, the chances of securing a reversal of the original judgement are quite good.

What is the role of the media in the redressing of grievances?

Sympathetic and widespread coverage by the media can also help to defend citizens’ rights. Two good examples in 2000 were sympathetic media coverage of the campaign to increase old age pensions and of the fuel tax protest, which arguably played an important role in changing government policy.

What is the role of pressure groups in the redressing of grievances?

These are playing an increasing role in enabling individuals or groups of citizens to gain redress of grievances or uphold their rights. There are many examples, ranging from those who form a pressure group to stop a motorway crossing their land (e.g. the building of the M40 north of Oxford) to the group of concerned and distressed parents in the Bristol area who felt that their babies had died unnecessarily through bungled heart surgery. The latter managed to get a public inquiry, compensation and the dismissal of the surgeons involved.