Local Ombudsmen:
The Future

D. C. M. Yardley*

The latter part of the twentieth century has been a time of fairly rapid change and
reform of the English legal system. Courts have been abolished and replaced; new
courts or types of judge have been created; and legal process has in many respects
been overhauled and in some instances streamlined. Many aspects of the system
remain either clearly defective or at least questionable in quality, and none of us
can ever realistically expect to find that perfection will have been attained. Yet the
movement for reform is strong, and commands general adherence from all party
political quarters, so we can expect the momentum to continue. In this article it is
proposed to consider the prospects for reform and strengthening of the position
and work of the English Local Ombudsmen.

The movement for the creation of ombudsmen first came to prominence in the
United Kingdom as a result of the Crichel Down affair culminating in Sir Andrew
Clarke's report published in 1954.1 It gathered in strength steadily during the
succeeding decade, assisted in particular by the efforts of JUSTICE, the British
section of the International Commission of Jurists, who set up committees which
recommended the setting up of ombudsmen to deal with complaints against both
central government2 and local government3 authorities. The point had been
grasped that there was a gap in our administrative law. The courts provided
remedies of various kinds to redress illegality, and they had developed a
classification of such illegality by administrative authorities under the headings of
ultra vires, breach of natural justice and error of law. There had for years been a
volume of criticism based upon the antiquated character of the procedures
surrounding the provision for judicial review, a criticism which was not met until
the introduction of the modern Application for Judicial Review with effect from
1978,4 though even now there are doubts whether case-law since 1977 had
adequately reflected the high hopes raised by the new procedure.5 But what

•• Chairman of the Commission for Local Administration in England.
I. Report of the Public Inquiry ordered by the Minister of Agriculture into the disposal of land at Crichel

Down, Cmnd. 9176.
2. The Citizen and the Administration: The Redress of Grievances (1961).
3. The Citizen and his Council (1971).
4. 5.1. 1977 No. 1955; re-enacted with amendments by the Supreme Court Act 1981, s. 31.
5. See Yardley, Principles of Administrative Law 2nd ed. (1986), Ch. 5.

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Crichel Down had opened up for all to see was the prospect of administrative
authorities acting quite legally and yet unfairly or wrongly by ordinary standards of
public morality. For such behaviour the law offered no prospect of a right to any
redress, and it was for this lacuna that the model presented by the Scandinavian
office of Ombudsman offered the prospect of a substantial improvement in our
system.

It is well known that the first British Ombudsman, the Parliamentary
Commissioner for Administration, was set up for Great Britain by the
Parliamentary Commissioner Act 1967.6 The Parliamentary Commissioner for
Administration's jurisdiction covered complaints of injustice caused by the
maladministration of most of the various central government departments or
agencies, and his jurisdiction has been increased on a number of occasions in later
years by comparatively minor measures of either primary or secondary legislation.
The most important addition to his functions occurred at the time of the
reorganisation of the National Health Service when the original exemption from
the Parliamentary Commissioner for Administration's authority of the whole
hospital service was reversed by the creation of three separate Health Service
Commissioners, for England, Wales and Scotland,7 with the duty to investigate
any alleged failure in a service provided by a health authority, or any action taken
by or on behalf of such an authority, where there is a complaint of injustice in
consequence of maladministration. Although these Commissioners seem at first
sight to be different ombudsmen, all three offices have in practice always been held
by whoever is the current British Parliamentary Commissioner for Administration,
and so in reality (and with only minor procedural differences between the work of
the apparently separate Commissioners) the creation of these offices can be
considered as a method of extending the jurisdiction of the Parliamentary
Commissioner for Administration.

The extension of the ombudsman system from Great Britain to Northern
Ireland was achieved by the Parliamentary Commissioner Act (Northern Ireland)
1969 and the Commissioner for Complaints Act (Northern Ireland) 1969, both
passed by the old Stormont Parliament. The latter measure was the first Act within
the United Kingdom to extend an ombudsman jurisdiction to the workings oflocal
government, and it preceded related legislation for England, Wales and Scotland.
Nevertheless the Northern Ireland Commissioner for Complaints has a
jurisdiction extending beyond local government, because in that province there are
several important administrative functions entrusted to province-wide bodies
which in Great Britain are the concern of local government authorities. Thus his
remit covers such bodies as the Northern Ireland Housing Trust, the Northern
Ireland Fire Authority and the Northern Ireland Hospitals Authority, as well as

6. This was the second non-Scandinavian ombudsman office to be created. The first was in New
Zealand: Parliamentary Commissioner (Ombudsman) Act 1962.
7. By the National Health Service Reorganisation Act 1973 (for England and Wales), and the

National Health Service (Scotland) Act 1972.

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local authorities. In Great Britain, on the other hand, the division of labour
between the ombudsman dealing with central government functions and those
dealing with local government is much more clear-cut. The Local Ombudsmen
for England and Wales were set up by the same Act in 1974,8 and the Local
Ombudsman for Scotland in 1975.9 There are minor differences between them as
to jurisdiction, funding etc., but in most respects they have identical powers and
functions. Each of them has been concerned to improve the service provided, and
with varying results, but the remainder of this article will be concerned only with
the prospects for development as they relate to the English Local Ombudsmen.

lt is not intended to list here the details of the jurisdiction and procedures of the
Local Ombudsmen, but Part III of the Local Government Act 1974 provides for
the setting up of the Commission for Local Administration in England, consisting
of an unspecified number of Local Commissioners, popularly known as Local
Ombudsmen, together with the Parliamentary Commissioner for Administration
for Great Britain, and that one of the Local Ombudsmen shall be appointed as
Chairman of the Commission. The Local Ombudsmen have the duty to
investigate complaints of injustice suffered in consequence of maladministration in
connection with the execution of administrative functions performed by a local
authority, police authority, water authority or any joint board of local authorities.
There are a number of exclusions from their jurisdiction, such as the investigation
of crime, discipline in schools, matters affecting all or most of the inhabitants of an
authority's area, matters relating to the pay and conditions of service of local
government officers, and matters in respect of which the complainant has a right of
recourse to a tribunal, a Minister or a court, unless the Ombudsman considers that
it is unreasonable that he should pursue such a remedy. A complaint must be in
writing, must usually be made within twelve months of the matter complained
about, and must normally be referred to the Ombudsman by a member of the
authority concerned with the consent of the complainant, though this latter
requirement may be dispensed with if the Ombudsman is satisfied that such a
member has been asked to refer the complaint and has failed to do so.

lt has been consistently argued by the Commission since its early days that a
complainant ought to have the alternative of direct access to a Local Ombudsman,
but the Secretary of State has never agreed to amending legislation designed to
effect this, mainly because of the view of the Representative Body (mentioned
below) that such a change might weaken the relationship of the ward councillor
with his constituents. In 1984, however, a compromise was achieved with the
agreement of the Secretary of State and of the Representative Body which did not
require legislation. Under this any complaint received direct is no longer returned
to the complainant, as it was before, but instead is sent to the Civic Head of the
authority complained about (Chairman, Mayor or Lord Mayor), asking him to

8. Local Government Act 1974.
9. Local Government (Scodand) Act 1975.

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effect a local settlement if possible, and if he cannot do so to refer the complaint
formally to the Local Ombudsman; and the complainant is informed that this is
being done. Thereafter any local settlement or reference by the Civic Head brings
the case into line with the normal practice where a complaint has initially been
properly referred, while any failure to settle it or to refer it enables the Local
Ombudsman to exercise his discretion to take it on anyway on the basis that a
member has failed to refer it.

The result of any investigation must be reported to the complainant, to the
authority concerned and to the member of the authority who may have referred the
complaint. The authority must then make the report available for public
inspection. Where the Local Ombudsman has concluded that injustice has been
caused as a result of maladministration, the report must be considered by the
authority, which must then tell the Ombudsman what action it proposes to take in
consequence of it. If the Local Ombudsman is not satisfied with such action he
may make a further report, but he has no other formal means of insisting upon
compliance with his findings.

The 1974 Act provides that the Commission for Local Administration should
periodically review its legislative framework as laid down by the Act, and report its
findings or recommendations to the Secretary of State for the Environment, and
this would seem to be the mechanism which Parliament intended to enable
reforms or adjustments to be set in motion. Unhappily experience has shown it to
have worked out less effectively than might have been expected. In the dozen or so
years since it was set up the Commission has submitted three such reviews to the
Secretary of State, in 1978, 1980 and 1984, making in all a substantial number of
recommendations designed to strengthen the effectiveness of its work. It has been
unfortunate in the first place that the Commission has usually had to wait a
considerable period of time before the Secretary of State's response has been
forthcoming. The longest period was the three and a half years it took to receive
the response to the 1980 review, and the response to the 1984 review took some 13
months to appear. But secondly, and more crucially, the responses have tended for
the most part either to be negative or else to accept the main thrust of certain
recommendations without thereafter making any provision for ensuring their
implementation.) 0

A number of the matters dealt with in the periodical reviews by the Commission
have been concerned with details, and there may be little point in further
ventilating them here. But it has been the belief of the Commission that a credible
Local Ombudsman system should have a jurisdiction covering all aspects of local
government unless there is some very good reason why an exception should be
made. Accordingly it has been disappointing to find that successive Secretaries of

10. See also recommendations made in a later report byJUSTICE, The Local Ombudsmen:A Review oj
the First Five Years (1980); and Yardley, "Local Ombudsmen in England: Recent Trends and
Developments", [1983] Public Law 522.

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State have rejected recommendations to extend the jurisdiction of the Commission
for Local Administration to cover parish and town councils (the only local
authorities exempted under the Act), disciplinary matters within schools,
personnel matters, and commercial and contractual matters (most of which, other
than transactions relating to the acquisition or disposal of land, are currently
exempted). The Secretary of State has also not agreed to the suggestion that Local
Ombudsmen should be able to initiate investigations themselves, and he has
steadfastly set himself against the repeated recommendation that a complainant
should be permitted to register his complaint direct, if he so wishes, rather than
through a member of the authority complained about. It should not be thought,
however, that he has been stubborn or quixotic in these decisions, for on each of
these matters he has reflected the views of the Representative Body, set up by
section 24 of the Act, which has a limited role for purposes of consultation, but
which is clearly labelled in the Act as representing the English authorities under
the jurisdiction of the Local Ombudsmen. Granted the statutory position of the
Representative Body, it is not surprising that the Secretary of State must pay
special heed to its views put forward as "representation".

Yet there have over the years been a number of recommendations by the
Commission for reform which htroe been accepted by the Secretary of State, and
which still await implementation. In response to the 1978 review, for example, it
was agreed that authorities should be required to consider a Local Ombudsman's
further report on an investigation in the same way as a first report. Again, in
response to the 1980 review, it was agreed to repeal the provision excluding from
jurisdiction the investigation of action taken by an authority in connection with the
investigation or prevention of crime, and also to extend jurisdiction to cover the
housing functions of New Town bodies and the development control functions of
Urban Development Corporations. 11 A very few changes have been
implemented, 12 but the only one of substance was in the end achieved by means of
a private member's bill introduced into the House of Lords by Baroness Faithful!.
This became the Local Government Act 1978, and it gives authorities the power to
incur expenditure lawfully to remedy injustices found by Local Ombudsmen to
have been caused by maladministration. Ironically the reform was quite
unconnected with any review of the Act made by the Commission. It remains the
case that successive Secretaries of State have stated their intentions to introduce
legislation amending the provisions relating to the Commission for Local
Administration, but in the main have failed to carry out these intentions.

It is not all that surprising that the Department of the Environment, with its
multifarious and often politically highlighted responsibilities, should consider

11. Subsequently reiterated in Cmnd. 9563 (1985). Under the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1985, tenants of the Scottish Special Housing Association now have the
right to complain to the Scottish Local Ombudsman, and they may do so direct.
12. See, e.g., the Local Government, Planning and Land Act 1980, s. 184.

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matters concerning the Commission of less urgency than some others. But in the
mid-1980s there has been interest in the work of the Local Ombudsmen from two
other significant quarters. In 1984 the House of Commons Select Committee on
the Parliamentary Commissioner for Administration became concerned about the
fact that in a small number of instances authorities have not accepted or fully
implemented the reports of Local Ombudsmen. Strictly speaking the Select
Committee has no direct jurisdiction over the work of Local Ombudsmen, but its
terms of reference include not only the work of the Parliamentary Commissioner
for Administration and Health Service Commissioners but also a general oversight
of matters which are concerned with furthering the ombudsman principle, and it
was on this score that the Committee decided to make some inquiries on the issue.
Secondly in 1985 the Committee of Inquiry into the Conduct of Local Authority
Business, chaired by Mr David Widdicombe, QC, and set up by the Secretary of
State for the Environment, expressed a more general interest in the work of Local
Ombudsmen and its possible expansion. Much of the evidence given by the
Commission to these bodies was in similar vein to that provided by other United
Kingdom ombudsmen, and in the event the written evidence submitted was
followed by oral evidence to the Select Committee by the writer on 15 May 1984,13
and to the Widdicombe Committee by all the Local Ombudsmen from England,
Scotland and Wales on 25 November 1985, the latter evidence being in private.

Apart from the evidence directed towards the desirability of making the Local
Ombudsman system more comprehensive, special attention was given to what has
in general parlance been called "enforcement". The Commission made it clear
that it has never favoured any reform which would enable it directly to enforce
Local Ombudsmen's recommendations, which are extra-judicial and ought not to
be considered as binding enforceable judgments. Nevertheless the credibility of
the system is harmed if it is seen that authorities may ignore Local Ombudsmen's
reports with impunity if they so choose. It was the clear intention of Parliament in
1974 that the Act should provide for a means of impartial arbitration, and that it
should be effective. The Parliamentary Commissioner for Administration and
Health Service Commissioner has no problem on this score because he has the
Select Committee to support him, and may, if necessary, make a report direct to
Parliament, where MPs would be likely to make a sufficient fuss to ensure that
recalcitrant departments or civil servants comply. Many ombudsmen in other
countries report direct to their Parliaments, and some even address their
Parliaments orally. Only the British Local Ombudsmen are without such support
and must rely upon their own powers of persuasion with authorities where
difficulties arise. Accordingly the view put by the English, Welsh and Scottish
Local Ombudsmen to the Select Committee and to the Widdicombe Committee
has been that the best solution would be for all authorities always to agree to accept

13. Select Committee on the Parliamentary Commissioner for Administration, Session 1983-84,
Minutes of Evidence.

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and implement Local Ombudsmen's reports, however much they may sometimes
dislike them: this is a course which has been urged upon the local authorities by
their own associations. But, failing such an achievement, they have urged the
importation into Great Britain of a provision in the Commissioner for Complaints
Act (Northern Ireland) 1969, section 7. Uniquely among the provisions for
ombudsmen in the United Kingdom or elsewhere, a report of the Northern
Ireland Commissioner for Complaints may be used, at the instance of the
complainant, as the basis for a claim in the county court for damages or any other
suitable remedy. There is thus little point for an authority in the province to refuse
to comply with the terms of a report by the Ombudsman because to do so would be
likely to result in a court order which, in practice, has normally been identical to
the recommendation in the report.

The Reports of both the Select Committeel4 and the Widdicombe Committee1S

were published in the summer of 1986. That of the Select Committee is of course
concerned with the single issue of "enforcement". The Report is unanimous in its
condemnation of those authorities which may from time to time refuse to accept or
to implement the recommendations made in the report issued after an
investigation by a Local Ombudsman, and reflects the belief of both Local
Ombudsmen and the Representative Body that it is really incumbent on the
authorities, in the interests of the good name of local government, that they put
their own house in order in this respect. But the Select Committee feels that the
time has not yet come for the importation into Great Britain of the provision for
possible court enforcement existing in Northern Ireland, especially since
ombudsmen commonly recommend a higher standard of behaviour than would
satisfy mere legal requirements, and thus are in effect requiring moral, rather than
legal, duties to be carried out. The Select Committee leaves it open for this
development in the future if what they prefer now proves to be ineffective, but for
the present they recommend that the House of Commons extend their own remit
to enable them to call upon members and officers of recalcitrant local authorities
to appear before the Select Committee to be questioned. It remains to be seen
whether the House of Commons accepts and implements this recommendation,
and if so whether it does prove effective. One can envisage possible confrontation
on a centraVlocal government basis, and all Local Ombudsmen still prefer their
own chosen solution. But we shall be only too pleased if the Select Committee
Report in the end is shown to have done the trick.

The Report of the Widdicombe Committee, however, not only covers a much
wider field, but is far more radical in approach, and may well have stolen the Select
Committee's thunder. The Widdicombe Report makes many recommendations
about the whole conduct of local authority business which are outside the scope of

14. Local GllVernment Cases: EnfOrcement of Remedies, 15 July 1986 (Third Report from the Seleet
Committee on the Parliamentary Commissioner for Administration, Session 1985-86), H.C. 448.
15. The Condua of Local Authority Business, 19 June 1986.

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this article. But by way of provisions for safeguards against abuse it also
recommends some new powers for the Audit Commission,16 greater accessibility
of judicial review,17 and a considerable increase in the jurisdiction, and
strengthening of the powers, of the Local Ombudsmen.]8 For the first time we
have an independent report by a body set up specially by the Secretary of State
himself which has not only endorsed virtually all the suggestions for reform of the
arrangements for Local Ombudsmen which the ombudsmen have themselves
urged, but has even gone a step further in recommending a substantial increase in
jurisdiction which the ombudsmen have not themselves voluntarily suggested.

In brief the Widdicombe Committee has recommended six main reforms
concerning the Local Ombudsmen. These are:

1. The removal of all the restrictions upon their jurisdiction which the
Local Ombudsmen have already urged; and the speedy implementation
of any earlier recommendations which have been accepted by the
Secretary of State.

2. That Local Ombudsmen should have the power to investigate
individual cases on their own initiative.

3. That Local Ombudsmen should be able to receive complaints direct
from members of the public, even though the Committee recognises
that the procedural device adopted in 1984 has at least effected an
improvement.

4. The abolition of the Representative Body, and provision for funding the
Local Ombudsmen from central government funds, rather than from
local government as at present.

S. That there should be a new statutory right for complainants to apply to
the county court for a remedy in cases where the Local Ombudsman
has found maladministration leading to injustice and the complainant is
dissatisfied with the remedy offered by the local authority, as in
Northern Ireland.

6. That there should be a new statutory power of assistance for individuals
wishing to challenge a decision by their local authority in the courts in
cases where there are implications for an authority's services at large or
for the conduct of its business generally, or where there are important
issues of principle on which clarification of the law is desirable, or
where there is evidence of persistent breaches of the law; and this new
power to provide assistance should be vested in the Local Ombudsmen.

The English Local Ombudsmen have consistently pressed for I, 2, 3 and 5
above, and it will be seen that recommendation 5 is not only in line with our own
views, but also more bold than the solution proposed by the Select Committee.

16. Paragraphs 9.46 - 9.59.
17. Paragraphs 9.85, 9.95 and 9.99.
18. Paragraphs 9.64 - 9.82.

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Recommendations 4 and 6 are not the ideas of the Local Ombudsmen, but they
welcome them as being in keeping with the general furtherance of their work. The
idea behind recommendation 6 is that the Local Ombudsman should become in a
sense a citizen's defender, yet if implemented it would not compromise the
essentially impartial character of the ombudsman office because the Local
Ombudsman would not be expected to do any more than decide that any
individual case is suitable for a hearing by way of judicial review: he would not in
any sense prejudge the case. It is not without interest that a fairly similar suggested
reform has been made by Lord Justice Woolf in the second Harry Street
Lecture,19 though he does not suggest that the function be given to Local
Ombudsmen.

The Secretary of State has now embarked upon a comprehensive round of
consultations about all the proposals in the Widdicombe Report, and early
legislation on those concerning Local Ombudsmen cannot be expected. But all
Local Ombudsmen do now have some real hope that their office will be
strengthened in the foreseeable future, and that an era of progress towards more
adequate provision for extra-judicial justice is around the comer. If the Secretary
of State needs any further incentive to act to implement the proposals he may
perhaps be influenced by a Resolution adopted by the Committee of Ministers of
the Council of Europe on 23 September 198520 that member states should
consider extending and strengthening the powers of the Ombudsman so as to
encourage the effective observance of human rights and fundamental freedoms in
the functioning of the administration. Just as the Franks Committee Report of
195721 proved to be the watershed between the earlier rather haphazard and
mistrusted system of administrative tribunals and their present systematic and
generally respected arrangements, so in a few years' time the trigger for a more
satisfactory system of Local Ombudsmen may be seen to have been the work of the
Widdicombe Committee.

19. "Public Law - Private Law: Why the Divide? A Personal View", [1986] Public Law 220.
20. Recommendation No.8 (85) 13.
21. Report of/he Committee on Adminis/ra/ive Tribunals and Enquiries, Cmnd. 218.

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