Administrative Law - Research Paper Example

Topic: Ombudsman and Human Rights Act 1998 English: UK Your August 14, 2008 Answer Ombudsman, independent investigators of citizen’s grievances against the administration, completing the role of the courts, have become established feature of English administrative law inspired by its existence in the Scandinavian countries, the original blueprint for the British. Two incidents in particular, contributed to the creation of the office of the Parliamentary commissioner for Administration. First was the notorious ‘Crichel Down Affair’ and second was drown up in 1961, by the committee of JUSTICE, the British section of the International Commission of jurists, headed Sir John Whyatt. By s1 of the 1967 Act he is appointed by the Queen on the advice of the PM and holds office until the age of 65. Advantages: In order to judge the effectiveness of the ombudsmen, the objective behind its establishment must be observed. Especially in relation to JR, the procedural requirements of public law element, leave, locus standi, time limits and grounds often deny speedy redress to the applicant. Matters such as delay, incompetence, stupidity, loss of documents, rudeness etc cannot be the subject to the JR. But, these fall within PCA’s jurisdiction. The expenses of a complaint to the PCA for the complainant are the price of the postage stamp. On the other hand, courts are too formal and litigation is much more expensive. The PCA’s work has a ‘ripple’ effect on other cases against which complaints have not been registered. Disadvantage: the MPs check the legitimacy of complaints and it is called MP Filter. If a MP is the main culprit, claimants never get redress. In this sense MP enjoy more power. At the same time each year lots of letter of complain arises which not possible to review for an ombudsman. The most important factor to mention is the ombudsman will not investigate complaints where an alternate remedy exists. Ombudsmans powers of investigation are limited, for example-maladministration. Argument for abolition of ombudsmen: The abolition of Ombudsmen is depends on whether they can provide adequate remedies to the complainants. So criticism needs to be considering here. It has no legal power except power of inquiry. It cannot alter or reverse any government decision. If the authority on question refuses to go by the instructions of the Ombudsman, formally they can do nothing more than a special report to the Parliament s 10 (4). Remedy might not have been so fast, effective or wide ranging. Argument against the abolition of ombudsmen: 1) The relevant department knows that it will not be possible to conceal the facts from the Parliament and press. 2) The Annual Report shows that Ombudsman has been able to compel departments to pay financial remedies. 3) The PCA has had an impact on certain more High profile cases such as ‘Sachsendhausen’ case where the PCA found maladministration in distributing compensation. A recent example is the ‘Barlow Clowes Affair’. Recommendation: The select committee published a report in 1994, which identified workable reforms that would improve the effectiveness of the PCA. The SC recommended that- Procedure: Though the ‘MP filter’ has been subject to criticism, the current system should be retained. The investigation by the PCA as satisfactory & thus proposed no major reforms. Jurisdiction: The 1967 Act should be amended to provide that the PCA could investigate all complaints other than those relating to matters specifically excluded. However, the govt. rejected this proposal. Publicity: PCA’s activities should be given more publicity and suggested that this can be done by circulation of an informal newsletter containing details of the PCA’s activities. Operation: appointment should be by the crown or an address at the House of Commons. However MPs have some great advantages as redressers of grievances. Their services are free and easily accessible; many MPs take great pains to advertise their surgery times and other means of contract in the local media. Most are assiduous in taking up grievances, and often the mere fact of receiving a letter from an MP, rather than from an ordinary citizen, will induce the authority to give a favorable response. Further, the Mp’s services are equally useful whether the constituent is asking for the correction of an error or the more favorable exercise of discretion, where no legal redress would be available. The hopes of those initially advocated the introduction of a British Ombudsman may not have been entirely fulfilled, but the PCA has become one of the essential parts of the machinery for redressing the grievances of individual. However, some time as a grievance person the Parliamentary Ombudsman enjoys many advantages over MPs. Answer 2: The Human Rights Act 1998 came into force on October, 2000 band made it far easier to enforce the European Convention on Human Rights in British courts. It has been observed that the HRA is one of the most revolutionary pieces of legislation to be passed in the UK, to rank alongside the Bill of Rights, the Acts of Union and the European Communities Act 1972. Before this Act, in the late nineteenth-century professor A. V. Dicey stated that Britain had a tradition of civil liberties. Before attempt to discuss the statement it is necessary to consider the provision of section 4 of the HRA 1998. Declarations of incompatibility are regulated under s.4, which provides that, if a Court is satisfied that a provision of primary or subordinate legislation is incompatible with one or more Convention Rights, it may make a declaration of incompatibility. The Courts with jurisdiction to make declaration of incompatibility are the HL, the Judicial Committee of the Privy Council, the Courts-Martial Appeal Court. Section 4(6), however, contains a vital limitation, in that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in question, and is not binding on the parties to the proceedings in which it is made. As is evident from s.4, it is only the superior courts which have jurisdiction to make declaration of incompatibility and further, a declaration of incompatibility, as emphasized in sub-section 6 (a) and (b), the declaration will no effect on the validity of the primary legislation in question, nor will the declaration affect the legal position of the parties to the litigation. However, where the courts find a violation of a convention right, it has the power under section 8 to grant a remedy to the victim. The power to amend the law has thereby been preserved for parliament, although a fast track legislative procedure will be employed to facilitate rapid parliamentary action in relation to the declaration. So where the superior courts are unable to interpret statues in a manner which makes them compatible with Convention rights, a declaration of incompatibility may be issued. A declaration of incompatibility was made by the CA in R (H) v Mental Health Review tribunal, North and East London Region and Another1 where the issue was Article 5 of the Convention, which guarantees the right to detention. The applicant was detained under s.73 of the Mental Health Act 1983 which provides that in order to satisfy a mental health review tribunal that he was entitled to discharge; the burden of proof fell on the restricted person to show that he was no longer suffering from mental disorder warranting detention. Section 73 could not be given the interpretation which was compatible with the Convention. In Wilson v First County Trust Ltd (No 2) (2001), the CA made a declaration of incompatibility under s.4(2) in relation to s.127(3) of the Consumer Credit Act 1974. The exclusion of any remedy engaged not only Article 6 but also Article 1 of the first protocol, which requires a balance to be struck between the rights of an individual to enjoy possessions and the public and general interest. The inflexible prohibition is unnecessary and disproportionate. In contrast the HL made a declaration of incompatibility in R (Anderson) v Home Secretary2 and said that the Home Secretary could not decide the minimum period that a murderer must stay in prison. This was not fair trial under Article 6, because a trial should not be conducted by a judge, not a politician. The government and parliament have decided upon satisfactory legislation to implement this judgement in the CJA 2003. In only three years, the Courts have decided hundreds of cases that refer to the Convention, but this has not changed English law as much as might be expected. Most judges, particularly in the higher courts have taken a cautious approach. This was recognized by the HL in Bellinger V Bellinger3 where their Lordships refused to recognize the marriage of a male to female transsexual to a man. They were aware that, unlike parliament, they are not elected and may not represent the democratic wishes of the country. Besides they are not yet used to deciding so many cases dealing with complicated political, social and moral issues and prefer to leave it to the politicians in parliament. The courts have been rather cautious in their application of the convention. However, judges are reluctant to interfere with laws enacted by a democratically elected parliament. Bibliography: Michaelt, M, (2004), Administrative Law, 4th edition, Old Bailey Press, ISBN: 1 85836 485 X Craig, P.P. (2003), Administrative Law, 5th edition, London: Sweet and Maxwell Hilaire B. (2007), Constitutional and Administrative Law, 5th edition, Cavindish Publishing Limited Leyland, P., (2007), Module Booklet of Administrative Law, Edition 2007-2008, London Metropolitan University, London, Leyland, P. & Anthony, G., (2005), Textbook on Administrative Law, 5th edition, Oxford University Press. Read More