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 – Discussion Paper: Monetary Remedies in Public Law March 2005 – Ninth Programme of Law Reform October 2006 –Scoping Paper: Remedies Against Public Bodies November 2007 –Draft Consultation Paper: Remedies Against Public Bodies, circulated to Government Contact Group July 2008 –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: Keith Vincent Public Law Team Law Commission Conquest House John Street Theobalds Road London By phone: By gsi.gov.uk Web: