Administrative Redress Public Bodies and the Citizen A

Administrative Redress: Public Bodies and the Citizen A Consultation Paper Administrative Law Bar Association 27 July 2008

The essential question How can we create a clear, simple and just system of redress for individuals who have suffered loss as a result of seriously substandard administrative action?

Background • October 2004 – • March 2005 – • October 2006 – • November 2007 – • July 2008 – Discussion Paper: Monetary Remedies in Public Law Ninth Programme of Law Reform Scoping Paper: Remedies Against Public Bodies Draft Consultation Paper: Remedies Against Public Bodies, circulated to Government Contact Group Consultation Paper: Administrative Redress: Public Bodies and the Citizen

Overview of the current landscape • Four pillar of administrative redress: 1. Internal complains mechanisms 2. External mechanisms, such as tribunals 3. Public Sector Ombudsmen 4. Courts

Weaknesses in the current landscape • Ombudsman: – MP filter – Statutory bar • Public law: – Difficulty in obtaining a monetary remedy – Lack of a fit with EC law • Private law: – Difficulty in satisfying requirements for misfeasance in public office – Problems with breach of statutory duty in relation to public bodies – Problems in the way the tort of negligence has developed – Specific problem with the operation of the rule on joint and several liability in relation to public bodies

Preliminary conclusions on the state of the private law • The law has developed in a complicated manner • This has frequently led to protracted litigation • This serves neither the interests of public bodies or claimants

Some questions • What is “special” about public bodies? • Weaknesses in the Dicean model • Does the law already recognise that public bodies are “special”?

Possible options for reform • Proposed regime built around a requirement for “serious fault” • Public Law – Specific monetary remedy in judicial review • Private Law – Development of special regime for certain types of “truly public” activity – Pure economic loss

Elements of proposed scheme • For private law only – is the activity of the body “truly public”? • Justiciability • “Conferral of benefit” by legal regime • “Serious fault” in the action of the public body – action that falls far below that expected of a public body • Causation • Adjustment to rule on joint and several liability • Immunity – Parliament’s choice

Ombudsman reforms • Special stay in relation to ombudsmen • Power for ombudsmen to make a reference on a point of law to the courts • Reform of the statutory bar • Removal of the MP filter - or possible “dual” system

The Consultation • Consultation Paper published on 3 July 2008 • Consultation period ends on 7 November 2008

Contact details By post: By phone: By email: Web: Keith Vincent Public Law Team Law Commission Conquest House 37 -38 John Street Theobalds Road London 020 7453 1293 administrativeredress@lawcommission. gsi. gov. uk http: //www. lawcom. gov. uk