New Clause 5
Tribunals, Courts and Enforcement Bill [Lords]
12:45 pm
Vera Baird (Parliamentary Under-Secretary, Department for Constitutional Affairs; Redcar, Labour)
The new clause would give the ombudsman the discretion to investigate cases in which court proceedings had been started. I am sympathetic to it, but I do not think that we can take it forward now. The hon. Gentleman is absolutely right that the law has developed significantly since 1967, when the ombudsman legislation was passed. Much of what was then maladministration and thus without legal remedy is now potentially a legal failure and subject to judicial review. Judicial review is subject to tight time limits; complainants who think that they have that remedy have to move quickly to claim it. The ombudsman has discretion to pursue cases that have a legal remedy but no proceedings, but the courts have ruled—inevitably, given the 1967 Act—that there is no discretion if proceedings have been started, even if the action is effectively moribund. Those cases, which are better dealt with by the ombudsman, are obstructed by that mechanism.
The hon. Gentleman rightly rehearsed the history of the matter, and more detail could indeed be sketched in, if time allowed. We considered an identical proposal made by his noble Friend Lord Newton, which was that we could make changes now, so that people were not inconvenienced and cases did not run the risk of injustice because of the 1967 legislation. My noble Friend Baroness Ashton indicated that she would consider the issue further. She held some round table discussions, in which it was agreed that there were complex issues that would have to be resolved before we could go forward. They arise particularly in judicial review cases; they need to be dealt with quickly, for the sake of both complainants and public authorities, so that they know what they need to do to continue administration. Judicial review has tight time limits, so we have to get the balance right between those who have a genuine grievance and those who are looking for a reason to prevent the legitimate outcome of the decision from being put into effect.
The Law Commission is undertaking work on remedies in public law. That includes the relationship between the courts and the ombudsman. Bearing in mind the wealth of difficulties that arose when my noble Friend, with the best intentions, tried to resolve the issue sufficiently quickly to put something in the Bill, we think that the better course is to let the Law Commission take its customary mature, rounded view and bring forward a report in due course. Its expertise and independence will allow the best balance of conclusions to be reached. For those reasons, my noble Friend did not return to the issue in the other place after she had indicated that she would try her best. We do not feel that we are in a position to accept the new clause at present, but work is ongoing in this area and the Government are well apprised of the mischief that the hon. Gentleman so pertinently pointed out.