QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF PAULA GALLAGHER & MARY MCCARTHY)
|- and -
|BASILDON DISTRICT COUNCIL
Miss Galina Ward (instructed by Basildon District Council) for the Defendant
Mr Tony Child (instructed by Beachcroft LLP) for the Interested Party
Hearing dates: 28 October 2010
Crown Copyright ©
Mr Justice Kenneth Parker :
"It is an administrative failing in a case as sensitive as this for there to be no advice or record setting out the basis for the decision."
As to Article 8 ECHR she said:
"If the Council had given more considered attention to the principle of respect for private life enshrined in Article 8 it is likely that it would have reached a more proportionate decision that did not, for example, imperil the privacy of vulnerable children."
"The Council's decision to publish details of all of the travellers' medical and educational needs in the report amounts to maladministration. Much of the information in the report was exempt information that should only have been considered in closed session when the press and public are excluded. I am supported in this view by the findings of the Information Commissioner. He ruled that publication of sensitive personal data was likely to amount to a breach of the data protection principles…. My view is that the Council could have chosen to report the information to councillors in anonymised and summarised form or it could have treated it as exempt information and placed it in Part 2 of the meeting in order to prevent the widespread circulation and disclosure of detailed sensitive medical and educational information. It seems to me that this would have been a more proportionate way of handling the information, which would still have achieved the desired aim and which would have led to less interference with the Complainants' right to respect for their privacy. Accordingly, I conclude that the Council should have given more considered and conscious attention to the principle of respect for private life enshrined in Article 8…. This shortcoming also amounts to maladministration and contributed to the injustice suffered by the Complainants." (See paragraphs 51-52)
"All citizens in the Council's area, whether they are travellers or members of the settled community, need to be confident that the Council will respect their privacy and not disclose personal details of their health or children's educational needs…. When the Council is entrusted with information that includes the names and ages of young children and the schools they attend there is a self-evident need to handle it with extreme caution…the injustice suffered by the Complainants was….the sense of shock and outrage they felt when they first discovered that the information had been published." (See paragraph 53)
"The Council has agreed to send a letter of apology but it refused to accept my recommendation for compensation. I now urge the Council to reconsider its decision and accept my recommendation in full. I am an independent and impartial adjudicator and out of respect for my office I call on the Council to provide a fair and equitable remedy for these complaints." (See paragraph 54)
"There needed to be a good reason to not support the recommendations of the Ombudsman."
The decision itself, however, contained no reasons. On 15 September 2008 the Deputy Leader of the Defendant was reported in the local newspaper to the following effect:
"If people felt embarrassed or hurt the Council should apologise… What is done, is done. Today's compensation culture has gone too far."
"The Commission has published guidance on good practice on remedies that was sent to all councils. One of the general principles set out in the guidance is that a remedy should be appropriate and proportionate to the injustice. It should, as far as possible, put the complainant back in the position he would have been but for the maladministration. However, in many circumstances, this cannot be achieved because particular events have occurred and "the clock cannot be turned back". In such cases financial compensation may be the only available approach." (See paragraph 12)
"1. That the Council, having given due weight to the findings of the Ombudsman, do not agree with the Ombudsman that a monetary reward [sic] of any kind would be a fair and equitable remedy in this case because it would not undo the worry and anxiety caused and because the Council's mistake was rectified immediately and the repercussions feared by the Complainants did not materialise.
2. The Council requests the Chief Executive to send a further letter of apology to the families affected."
A revised letter of apology was sent by the Chief Executive of the Council on 13 July 2009. In July 2009 the LGO drafted a statement under Section 31(2D) of the Local Government Act 1974 ("the Act") but has decided not to publish that statement until the determination of these proceedings. The draft text of the statement is as follows:
"I accept that nothing can undo the worry and anxiety the Complainants have suffered. I also accept the Council took prompt action to remove the sensitive information from its website but it is for me to decide whether or not it is appropriate to recommend a payment of compensation. In these cases the compensation is intended to recognise the distress caused to the Complainants which the Chief Executive has now acknowledged they suffered and which is in accordance with the good practice guidance we have published…"
The Statutory Framework
i) The Complainant, if any;
ii) The person who referred the matter, if any;
iii) The authority concerned, and
iv) Any other authority or person who is alleged in the complaint or who otherwise appears to the local commissioner to have taken or authorised the action which is or would be the subject of the investigation.
i) A statement of reasons where an investigation is not opened or if discontinued or if a report is not issued following an investigation;
ii) A normal report;
iii) A further report if not satisfied with the reaction to the normal report, including recommendations;
iv) The publication of a statement in the local press concerning the LGO's investigation.
"There is the suggestion that the Council should issue a statement disputing the right of the Ombudsman to make his findings and that this would provide the Council with an adequate remedy. Such an action would wholly undermine the system of Ombudsman's reports and would, in effect, provide for an appeal to the media against his findings. The parliamentary intention was that reports by Ombudsmen should be loyally accepted by the local authorities concerned. This is clear from Section 30, subsection 4 and subsection 5 which require the local authority to make the report available for inspection by the public and to advertise this fact, from Section 31(1) which requires the local authority to notify the Ombudsman of the action which it has taken and proposes to take in the light of his report and from Section 31(2) which entitles the Ombudsman to make a further report if the local authority's response is not satisfactory."
"There was no general rule that findings of fact made in the course of a statutory investigation could only be impugned on the grounds that they were irrational; that findings of maladministration made by the Parliamentary Commissioner for Administration following an investigation under Section 5(1) of the Parliamentary Commissioner Act 1967 were not binding on the relevant minister, and nothing in that Act required the minister to obtain relief by way of judicial review before rejecting them or precluded him, when he was called to account before either House, from explaining as part of his justification for deciding to provide no remedy in respect of the complaint, his reasons for rejecting such findings; and that, therefore, where the minister had been the subject of a finding of maladministration he was entitled to reject it in favour of his own view, provided that his decision to do so was not irrational, having regard to the legislative intention underlying the 1967 Act that those bodies for whose actions there was a minister capable of being called to account by Parliament were to be subject to investigation by the Commissioner."
"The question is not whether the Defendant himself considers that there was maladministration but whether in the circumstances his rejection of the Ombudsman's findings to this effect is based on cogent reasons."
"40. There is nothing in those passages – or elsewhere in the White Paper – which suggests that, in introducing legislation for the appointment of a Parliamentary Commissioner, the Government intended that ministers (or the complainant) should be bound by findings in any report which the commissioner might think it appropriate to make. The purpose for which the legislation was introduced was to give Members of Parliament – in particular, members of the House of Commons – access to the services of an independent and authoritative investigator as "a better instrument which they can use to protect the citizen". But, the protection was to be afforded through "existing constitutional arrangements". Those existing arrangements are identified in para 4 of the White Paper: they include the procedures of parliamentary questions, adjournment debates and debates on supply, correspondence with ministers, and the ability to bring citizens' grievances, great or small, to Parliament, "where ministers individually and Her Majesty's Government collectively are accountable."
"63. As I have said, it seems to me that, once it is accepted (it must be) that the legislative intention which underlies the 1967 Act was that the bodies which were to be subject to investigation by the Parliamentary Commissioner were bodies for whose actions there was a minister capable of being called to account in Parliament, it is impossible to avoid the conclusion that Parliament did not intend to preclude that minister from giving a full and frank account to Parliament of the reasons which had led to the decision to provide no remedy for the complaint; including (if it were the case) the government's reasons for rejecting the commissioner's finding of maladministration. But, in a case where the body is one in respect of which there is no minister capable of being called to account in Parliament, there is no basis for that conclusion: indeed the conclusion would be meaningless. With respect to the judge's view, it seems to me that logic leads to an expectation that there will be a distinction between cases in which effect is to be given to the legislative intention underlying the 1967 Act and cases in which that legislative intention has no application. Further, it may be said that the distinction accords with constitutional principal: the courts must recognise and be sensitive to the principle of mutual respect explained by Donaldson MR in R v Her Majesty's Treasury Ex P Smedley  QB 657 6 66D:
"It…behoves the court to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament, or so far as this can be avoided, even appearing to do so."
"137. Ex p Eastleigh Borough Council was, of course, a case brought under a different statute, the Local Government Act 1974. Quite apart from the different statutory provisions, however, what strikes me as a broader consideration is the clear difference between the remedies provided by the two statutes. Thus under the 1967 Act, a minister who rejects the ombudsman's findings of maladministration will have to defend him or herself in Parliament, and will be subject to parliamentary control. The ultimate remedy for aggrieved citizens such as the complainants in the instant case, whose complaints to their Members of Parliament have led to the ombudsman's report, will – ultimately – be through political action rather than judicial intervention.
138. In making these observations, I have not lost sight of the fact that the decision of the minister/Secretary of State to reject the parliamentary ombudsman's findings of maladministration is itself, capable of being judicially reviewed on conventional public law grounds. However, in this context, the remedy – if the application for judicial review is successful – is procedural rather than substantive. The decision is quashed as unlawful, and the minister must think again. The limitations on judicial review as a remedy do not need to be spelled out.
139. In cases involving the local government ombudsman ("LGO"), the citizen who has invoked his assistance has – in law – no substantive remedy against the local authority concerned if that authority rejects the LGO's conclusion. It is true that the citizen could apply for judicial review of the local authority's decision not to implement the LGO's findings, but the system, as I understand it, depends upon the convention that local authorities will be bound by the findings of the LGO. It must follow inexorably that if a local authority wishes to avoid findings of maladministration made by a LGO, it must apply for judicial review to quash the decision."
"65. Discussion: In considering the application of Bradley to the facts of the present case, we agree with Mr. Lewis that the subject-matter of the challenges falls into three distinct categories:
i) First, the Government's rejection of the Ombudsman's findings (of maladministration or injustice, as the case may be).
ii) Secondly, the challenge to the Government's rejection of the Ombudsman's recommendation of a compensation scheme.
iii) Thirdly, the challenge to the Chadwick Terms of Reference, concerning the Government's proposal for ex gratia payments.
66. As we see it, it is only in respect of (i), the actual findings of the Ombudsman, that the Bradley approach is directly applicable. Although not bound by them, the public body can only reject the findings of the Ombudsman for "cogent" reasons, that is for reasons other than merely a preference for its own view. That is not a precise test, but it would be wrong in our view for us at this level to attempt a further definition of the "cogent" reasons test or to suppose that there is some exhaustive list of such reasons. What is required instead is a careful examination of the facts of the individual case – with the focus resting upon the decision to reject the findings of the Ombudsman, rather than the Ombudsman's findings themselves.
67. Particular factors weighing against rejection in the present case are the complex nature of the Ombudsman's investigation, together with the fact that her findings were made after taking detailed expert advice, including actuarial advice; and the fact that the public bodies involved in the Ombudsman's investigation had extensive opportunities to make representations. On the other hand, where it can be demonstrated that the Ombudsman has gone wrong in fact or in law, or where the Government has carried out further work not done by the Ombudsman, the case for rejection may be easier to justify.
68. As for (ii), the Government's rejection of the Ombudsman's recommendation for a compensation scheme, it was not and could not have been submitted that the recommendation was binding on the Government. There was no serious dispute that in this context the legal test is the conventional one of irrationality or Wednesbury unreasonableness. Further, as the context necessarily entails a consideration of the allocation of resources from the public purse, the Court would be likely to proceed with caution before intervening: see, De Smith's Judicial Review (6th ed.), at para. 11- 014."
Submissions of the Parties on the First Issue
"6.91 The statutory regimes which underpin the actions of the ombudsmen are similar in one particular way. They rely on publicity, whether in Parliament, the National Assembly for Wales or local press, as the primary mechanism with which to encourage the implementation of reports. Within the bare statutory schemes, the final weapon available to any of the ombudsmen is not a binding order or a declaration that the public authority had acted in an illegal manner. Rather, it is the placement of their findings and recommendations in the public sphere. In some cases, the statute requires the authority to publish this. In others, there is a power to place a report before an elected body – either the Houses of Parliament or the National Assembly of Wales.
6.92 The current state of case law in Bradley and Equitable Members Action Group follows this basic principle and effectively leaves courts outside any debate on the merits of recommendations of the Parliamentary Commissioner. In relation to findings, the Government should only reject the Parliamentary Commissioner's findings when it gives "cogent reasons" for doing so.
6.93 The position, following ex parte Eastleigh and Bradley, in relation to the Local Government Ombudsman is very different. Here the findings of the Local Government Ombudsman are effectively binding unless successfully challenged by way of judicial review.
6.94 The implementation of any recommendation would almost always have an effect on the distribution of public resources. The proper place for such discussions is not in a court or similar body, which would be the ultimate effect of giving them a binding quality. To make recommendations binding would change the nature of the relationship between ombudsmen and those they oversee, removing the proper discussion and the collaborative approach that the original drafters saw as part of the ombudsman process – as we set out in Part 2.
6.95 Therefore, in relation to recommendations, we think that the approach adopted by the courts in relation to the Parliamentary Commissioner is broadly correct. We provisionally conclude that the proper approach to recommendations is as part of the political process."
The Second Issue: Was the Rejection of the Recommendation Unlawful?