PART 5
THE SCOPE OF THE PROJECT
THE QUESTION FOR THE PROJECT
5.1 The big question that the substantive project we propose should consider is:
When and how should the individual be able to obtain redress against a public body that has acted wrongfully?
We propose that this question should provide the terms of reference of the project.
5.2 This formulation clearly hides a multitude of questions. Some we can answer now, others will have to be teased out as the project gets under way. To clarify what we mean by the terms in the question:
5.3 By “"when”", we mean “"what should the individual’'s substantive law rights to a remedy be?”"
5.4 By “"how”", we mean, “"what mechanisms should be available to the individual to receive redress?”" This includes both the procedures that should be available for the vindication of an individual’'s rights, and the methodologies that might be available – for instance, ombudsmen or mediation, as well as court procedures.
5.5 By “"redress”" we mean primarily the award of a monetary remedy. We do not envisage undertaking a detailed examination of other remedies, such as the orders available to the court on judicial review, or the internal structure of complaints systems, and proposing free-standing reforms to them. An understanding of the proper place of non-monetary remedies will, however, be central to the project. At the minimum, we will need to consider how the availability of non-monetary remedies should impact on the availability of monetary remedies. But further, we think it will be necessary to consider more widely the relationship between non-monetary remedies and the courts. This in turn may lead us to make recommendations in relation to non-court mechanisms. For example, if we were to conclude that the limits on the jurisdictions of the public sector ombudsmen impeded a more productive relationship with the courts, we would consider it right to make appropriate recommendations.
5.6 By “"wrongfully”", we mean a situation in which a public body has acted in a way that is unlawful in the public law sense; or one which makes it liable in tort. We do not envisage considering the substantive merits of the existing approach of the courts to public law unlawfulness. On the tort side, our point of departure will be the current general approach to negligence and the other relevant torts. But central to the project will be a consideration of how the rules that apply between private citizens might be modified in relation to Governmental activities when the defendant is the state.
STEPS TO ANSWERING THE QUESTION
5.7 Necessarily, with a project of the importance, difficulty and complexity of this one, the exact course it takes must be sensitive to the development of our thinking. In particular, we anticipate that comparative work, looking at both common law and civil jurisdictions, will be particularly significant in relation to this project. However, and preliminarily, we consider that the steps we should be taking towards answering the question posed by the question above are as follows.
What principles should inform the liability of the state?
5.8 This will involve us considering the following issues:
What is distinctive about the state as a party?
5.9 Seen from an individual victim’'s perspective, of course, in many situations, it would be very difficult to justify a difference of treatment where an injury had been caused by a state actor as opposed to a private actor – should it make any difference to a victim of a road accident that the driver at fault was a Government employee driving in the course of his performance of his job? That there are, however, differences between the state as a party and a private person as a party, seems evident. Reasons that have been advanced for this include the following::[1]
DIVERTING PUBLIC RESOURCES
5.10 The payment of compensation (and of costs) by the state diverts (scarce) public resources from its application to socially desirable ends. Of course, the very point of compensation is always to divert resources, from a wrong-doer to a victim. Where the state is the defendant, however, the resources are being diverted not from the gratification of the wrong-doers private interests, but from democratically endorsed expenditure in the public interest.
TECHNICALLY DIFFICULT DECISION MAKING
5.11 Public decision-making (at least in areas with a high policy content) is poly-centric and involves the balancing of difficult and often competing considerations. At one level, this argument is about the technical difficulties that reviewing such a decision-making process presents the courts. Courts do not necessarily see themselves as being well placed to assess decisions involving the weighing up of far-reaching economic or social policy matters. However, in other areas, the courts are not generally deterred from coming to a determination by the difficulty of a question. Is it really the case that there is something uniquely hard about the decisions public bodies must take? Perhaps this reason sometimes masks a rather different concern, with the constitutional propriety of the courts considering such questions (see below).
CONSTITUTIONALLY APPROPRIATE DECISION MAKING
5.12 In a democracy and under the rule of law, the courts should refrain from imposing their own views on those of the democratically accountable executive. It is not for the judges to substitute their assessment of far-reaching economic or social policy matters not because they are too difficult, but because it is the executive that has the democratic legitimacy to do so. While the legitimacy of the executive is powerfully circumscribed by the legislature, within its proper sphere, the executive is better equipped to answer certain questions than the courts, not because it has better research at its disposal, or more administrative know-how, but because those are the decisions it was elected to make..[2]
THE DANGER OF DEFENSIVE ADMINISTRATION
5.13 The imposition of liability, particularly for compensation, may make public bodies risk averse, and lead them to adopt administrative practices or policies that are not optimally in the public interest, but which are more likely to protect them from actions for compensation. There is, of course, a flip side to this argument – that liability encourages good administration.
5.14 The argument from defensive practice could apply to any (potential) litigation repeat-player. What makes it particularly acute in relation to public bodies, however, is that there are no competitive market pressures off-setting the negative pressure of litigation.
5.15 At heart, this is essentially an empirical question, and we would expect to engage with the existing empirical literature in this area before relying significantly on this argument one way or the other.
What do citizens want from the state?
5.16 Clearly, sometimes individuals are indifferent to the nature of the state as a defendant, and simply want to be appropriately compensated for a loss they have suffered. But it would seem that at other times, other remedies or actions by the state are desired. We deal with these possibilities in Part 4 above.
5.17 The substantive project will consider how the availability of other remedies should impact on rights to compensation through the courts, and the relationship between remedial mechanisms. If, for instance, the bar to the jurisdiction of the ombudsmen where legal action was possible were to be removed, might it be appropriate to allow the ombudsman to refer a legal question that arose in an investigation to the court? Might the court be empowered to refer a case to the ombudsman, either to allow the ombudsman to use his or her investigative procedure, or alternatively, to issue a report which would encapsulate the appropriate remedies?
What should be the relationship between public law and private law?
A separate sphere?
5.18 The project will need to at least ask the question: is the state so different as a party in whatever capacity that it should inhabit a completely separate legal sphere? The lessons from the French and other continental experiences will be particularly useful in this respect.
Drawing the line
5.19 However, it may very well be that we would conclude that the general law should apply to the state, but subject to special rules in particular circumstances. If that were to be the case, how would it be possible to draw a line between the state qua state, and the state qua employer, the state qua landlord, or occupier of land or whatever.
5.20 In our discussion of negligence above, we expressed some scepticism about drawing such a line. .[3] But if a clear line cannot be drawn, is it possible to construct procedures that allow courts to determine limits on a context-specific basis? Would such an approach undermine legal certainty for both litigant citizen and defendant state, or should it be seen as playing to the strengths of a common law system? What other basis might there be for delimiting state liability?
What should substantive remedial rights be?
5.21 Answering this question, of course, crucially depends on the development of thinking on the issues set out above. Should we seek to develop a new state liability cause of action, designed to provide compensation against the state, where appropriate, but only where appropriate, and on a principled measure? Should such a cause of action be designed to replace negligence and the other torts, or to supplement them? What should its relationship be to the judicial review remedies (should it be seen as a public law remedy or a private law matter, or some sort of hybrid)? Or should any new compensatory remedy merely seek to fill gaps left by the current law?
5.22 In considering these questions, we may be led to take views on such questions as:
5.23 The relevance of fault and seriousness of breach. .[4] At the moment, there are disparate fault elements in negligence and the intentional torts, and in the European Union jurisprudence. As a matter of principle, should fault matter in the relations between citizen and state? Or should the role ascribed traditionally to fault be replaced by seriousness of breach? What role should seriousness of breach play, if any?
5.24 The relevance of nature of loss: Are the traditional rules in relation to the nature of loss in tort appropriate in the context of state liability?
5.25 The relevance of nature of decision: Is the kind of decision making likely to be relevant to the availability of a remedy (or is its relevance confined to marking out the scope of special rules for state liability, whatever these are to be)?
5.26 Joint liability: The state is an easy target for litigation, because it does not go bankrupt or disappear. Is the principle that where there is more than one wrong-doer, each should be liable for all of the victim’'s losses always appropriate in relation to state liability? This issue may be particularly acute where the public body has failed to adequately regulate or supervise the conduct of others.
5.27 Failures to supervise: How far should the state be liable at all for the actions of second actors, where the state has some supervisory or regulatory role in relation to their activities?
5.28 Omissions: Do the rules limiting liability for omissions make sense in the context of state liability?
5.29 Quantum: are full damages the most appropriate measure, or should consideration be given to a different method of quantifying compensation against public bodies?
THE WAY FORWARD
5.30 This scoping paper sets out how we intend to progress on the substantive law reform project.
5.31 Our aim now is to publish a consultation paper before the end of 2007, setting out our provisional proposals for reform. Following consultation, we would expect to publish a final report, with, if appropriate, a draft bill, in the summer of 2009.
5.32 Consultation is always of great importance in the law reform process. We will need, as always, to engage with the full range of professional legal opinion, legal academics and potential litigants and their representatives.
5.33 Unusually, Government itself, and other public bodies such as local authorities, regulators, police forces and so on, will be a primary focus for consultation in this project. The effect of liability and litigation, and of whatever proposals we make, on good administration and the effective delivery of public services will obviously be a key issue. We will consider how best we can establish appropriate mechanisms to ensure that we are exposed to the full range of views and insights from public bodies, as well as others concerned.
5.34 As we said in the introduction to this report, this is not a consultation document. However, we would be very grateful if potential consultees reading this paper would make themselves known to us so that we can contact them in due course.
5.35 It will be particularly important in this project for us to clearly understand the resource implications, and their impact on the public, of what we may wish to propose. The Law Commission recognises in general the importance of economic analysis of the effects of law reform proposals, where appropriate. We consider that this will be a particularly important feature of this project. It will be of central importance that we develop proposals that can be clearly demonstrated to deliver real public benefit. We will be exploring ways to ensure that we can gain access to the necessary economic and statistical resources to undertake appropriate cost/benefit analyses.
