Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Dr Jason Varuhas on Judicial Capture of Political Accountability. The Project has invited commentators with a range of views to reply to the report. Some might be expected to be more sympathetic to the report and others much less so. The final reply is by Professor Christopher Forsyth from the University of Cambridge.

Reading Jason Varuhas’s paper has persuaded me that I have in the past taken too complacent a view about the two cases, Bradley and EMAG, on which this paper focuses.  Under the Parliamentary Commissioner Act 1967, the Parliamentary Commissioner for Administration (or Ombudsman) investigates complaints and then reports, in the first instance, to the MP who made the original complaint.  If maladministration is reported the Commissioner may recommend that amends are made (often through the payment of compensation). Naturally judicial review lies against the Commissioner to ensure that she remains within her powers granted by the 1967 Act. But given the broad and subjective nature of the Commissioner’s discretion to decide whether to investigate and her particular expertise at identifying maladministration, judicial intervention is relatively rare.

The novelty in Bradley and EMAG is the introduction of the idea that there might be judicial review of the Minister’s decision not to accept a recommendation made by the Commissioner.

The Court of Appeal held in Bradley that the Secretary of State could only reject the Ombudsman’s findings of fact “on cogent reasons”. This might be charitably taken – as it was originally by me – as simply imposing upon the Minister a wholesome discipline to ensure that he did not depart from the Commissioner’s findings without good reason. The Commissioner, after all, has access to all relevant files, the skill and experience to determine what happened and is given her task by Parliament. She is a Parliamentary Commissioner.  Her findings of fact are entitled to great respect and should not be lightly overturned.

So findings of fact could not be departed from without “cogent reasons”.

But, or so I thought, the Minister remained free to reject the Commissioner’s recommendations for political or pragmatic reasons.  The whole scheme of the 1967 Act makes it plain that what was envisaged was a non-legal and informal procedure in which remedies for maladministration would come about, in part, when the government recognised that the Commissioner’s report revealed that an error had been made and wished – as good governments ought to wish – to make amends. But also, in part, through the political pressure that will be brought to bear when the report is publicised.

Wade and Forsyth, Administrative Law, at p69, describe the position in these words:

“An ombudsman requires no legal powers except powers of inquiry. In particular, he is in no sense a court of appeal and he cannot alter or reverse any government decision. His effectiveness derives entirely from his power to focus public and parliamentary attention upon citizens’ grievances. But publicity based on impartial inquiry is a powerful lever. Where a complaint is found to be justified an ombudsman can often persuade a government department to modify a decision or pay compensation in cases where the complainant unaided would get no satisfaction. For the department knows that a public report will be made and that it will be unable to conceal the facts from Parliament and the press.”

That surely is what the 1967 Act envisaged as the modus operandi of the Commissioner. And the success of the Commissioner in great cases and in small in securing remedies for identified maladministration – without any assistance by the courts – should be celebrated.  (See Wade and Forsyth, 77-85 for examples of the Commissioner’s successes.)

To be sure it is the case that Ministers are sometimes reluctant to made amends for identified maladministration especially where the cost of the remedy will be significant. But the political pressure brought by the Commissioner’s report and attendant publicity is the process whereby that reluctance might be overcome. And the more individuals there are affected by the maladministration, the more MPs there will be with disgruntled constituents pressing for a remedy.

But as Jason Varuhas shows in this report, there is a growing tendency to reach for judicial review of the Minister if he does not accept the Commissioner’s recommendations for the making of amends. And this tendency is enhanced by the approach of the courts to the question of whether there are “cogent reasons” to depart from a finding of fact by the Commissioner. Varuhas shows in his discussion of Bradley (at 16-17) that the court uses “cogent reasons” and irrationality to review the Minister’s decision on its merits rather than its legality. He says “the Court was not here saying the Minister had taken leave of his senses. Rather the Court simply took a different view of things, not being convinced by the Minister’s reasoning, and finding the Ombudsman’s reasoning more convincing on balance.”

“The Court’s approach in EMAG was similar”  Varuhas continues (17-18) describing the process “[f]or each contested finding the Court set out the Ombudsman’s findings, the reasoning in support of those findings, the Minister’s basis for rejecting those findings, and the Minister’s supporting reasoning. The Court then proceeded to arbitrate between the competing views, as if it were resolving a dispute between the Minister and Ombudsman on its merits, ultimately determining the dispute by giving its own view on which reasoning it found most plausible.” The courts are using the concept of “cogent reasons” as a knife to prize open the forbidden merits.

If these charges are well founded – and those interested should read the detail in the report – the basic principles of judicial review are under attack. To be fair, the courts in these cases pay lip service to the preservation of traditional administrative law principles. But when the detailed reasoning is laid out in this report it seems to me that Dr Varuhas is right to be as critical as he is. He is right to argue that “political accountability mechanisms” such as the Commissioner’s reports have been “captured” by the judiciary. This is contrary to the intent of Parliament in the 1967 Act and contrary to the good functioning of our demos.

I was indeed too complacent in reading Bradley as simply imposing on the Minister a wholesome discipline in regard to departing from the Commissioner’s findings.  For this “discipline” has been used to transmute the Commissioner’s findings into a form of legal entitlement.

In one respect I am more optimistic than Varuhas.  The Supreme Court has not committed itself on this issue. And in JR55 (Northern Ireland) a unanimous Supreme Court approved (para 25) albeit obiter the orthodox approach to the influence of the Commissioner’s reports. As Varuhas remarks (p 50) a “re-examination of Bradley” is foreshadowed by JR55. The approach of Bradley and EMAG may well be overruled. If that happens this report will deserve much of the credit for showing where it went wrong.

Christopher Forsyth
University of Cambridge