In a Policy Exchange report released today I examine the increasing capture of political accountability mechanisms by courts.

Institutions such as the Parliamentary Ombudsman are intended to operate in the political sphere, securing government accountability through political process. They are intended to be separate and distinct from courts and legal processes, and much of the value such institutions add to the British constitution lies in their distinctive nature.

Traditionally courts have been sensitive to the distinctiveness of such mechanisms and the dangers of impinging upon matters which properly lie in the sphere of politics, and have adopted a restrained approach in judicial review proceedings concerning institutions such as the Ombudsman. However, in recent years, consonant with more general trends in judicial review, courts have evinced an increased willingness to intervene in the operation of political accountability processes.

This trend give rises to a number of serious concerns. Such interventions undermine Parliament’s intent in enacting schemes of political accountability. Courts, through their interventions, have overreached into the domain of ordinary politics. By doing so they have on the one hand undermined their own legitimacy and on the other supplanted the role of political institutions and placed political discourse in a legal straitjacket. While often motivated by a concern to enhance political accountability mechanisms, these ill-advised interventions have only undermined the proper functioning of such schemes.

This report focuses upon developments in judicial review of the Ombudsman process, and demonstrates that these developments are emblematic of wider, troubling trends across judicial review.

Ombudsman investigations have increasingly wound up in court, with judicial scrutiny and intervention spreading to all facets of the Ombudsman process. For example, strikingly aggressive judicial approaches have been taken to review of procedures adopted by the Ombudsman as well as the substantive findings and recommendations in Ombudsman reports.

The newest and most radical turn in the case law, on which the paper focuses, is that courts have extended the scope of review beyond the Ombudsman’s reports and procedures, to encompass the political aftermath of Ombudsman investigations. Courts have asserted jurisdiction to review Ministerial rejections of findings of maladministration made by the Ombudsman. And they have adopted an exceptionally intrusive approach to review of the substance of such responses. That is, courts have intervened merely on the basis that the court disagrees with or is not itself convinced by the Minister’s reasons for rejecting the Ombudsman’s findings.

This new twist in the case law gives rise to serious concerns.

First, these developments undermine the intention behind creation of the Ombudsman scheme. The scheme was intended to better enable Parliament to hold the government to account. Yet the courts, by asserting jurisdiction to adjudicate upon the convincingness of Ministerial responses to Ombudsman findings, supplant Parliament’s central role in the process and thereby completely undermine the political scheme of accountability established by the relevant legislation. Under the statutory scheme it is for Parliament to scrutinise governmental responses, not courts.

Second, increased judicial intervention leads to accountability ‘overkill’. Where it has disputed major Ombudsman reports government has faced searching political scrutiny (e.g. by what is now known as the House of Commons Public Administration and Constitutional Affairs Select Committee) which has generally resulted in provision of redress for those who have suffered maladministration. Given that the political process is effective in holding government to account litigation is unnecessary and wasteful.

Third, not only is judicial review unnecessary and wasteful but it undermines the intended operation of the Ombudsman process. Increased recourse to lengthy litigation adds costs, delay, formality and an adversarial process to a mechanism that is intended to be quick, inexpensive, informal, investigatory and distinct and separate from courts and legal process.

Fourth, litigation or the threat of litigation undermines and impoverishes the parliamentary-political discourse that Ombudsman reports are intended to foster.

Fifth, increased judicial intervention in the Ombudsman process undermines the status of the Ombudsman and his or her reports.

These latest developments in judicial review of the Ombudsman process ought to be overruled by the Supreme Court at the next opportunity.

The Ombudsman cases are examples of a wider phenomenon of judicial capture of political accountability mechanisms. Other examples include judicial review in the context of public inquiries and in relation to the public interest veto under freedom of information laws. Across these contexts we find courts reaching deep into the realm of politics, and undermining statutory schemes for political accountability.

Expansion of judicial review beyond its proper bounds is not limited to review of political accountability mechanisms. The cases considered in this report are part of a far wider trend in which courts are disposed to intervene more readily in the substance of government decision-making, and dictate what count as good or bad reasons for executive action. Judicially-articulated substantive values are becoming the focus of exercise of public power rather than public goals set by Parliament. In consequence the dividing lines between the responsibilities of courts and government, and the provinces of law and politics are increasingly difficult to identify. The result of these developments is that judicial review is being plunged into a legitimacy crisis.

Dr Jason N. E. Varuhas
Associate Professor, University of Melbourne