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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Balchin & Anor, R (on the application of) v Parliamentary Commissioner For Administration [1996] EWHC Admin 152 (25th October, 1996) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1996/152.html Cite as: [1996] EG 166, [1998] 1 PLR 1, [1996] EWHC 152 (Admin), [1996] EWHC Admin 152, [1997] COD 146, [1997] JPL 917 |
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1. Mr
and Mrs Balchin
ask in these
proceedings
for the quashing of an adverse
decision of the
Parliamentary
Commissioner
for
Administration
(the
Parliamentary
Ombudsman) on their complaint of maladministration, and for its
remission
for
proper
consideration. Their complaint has been that the
Secretary of State for Transport was guilty of maladministration in confirming
Road
Orders without seeking an assurance from Norfolk County Council that the
Balchins
would be given adequate compensation for the effect of the
road
on
their home. The essence of the critique of the
Commissioner's
report
advanced
before me by Mr Charles George QC is that it has failed to engage with a key
issue
revealed
by the investigation and capable of founding a finding of
maladministration, has
posed
the wrong question in coming to a conclusion as to
whether there was maladministration, and has
reached
a conclusion which is
unsustainable in the face of the facts found by the
Commissioner
himself.
2. Since,
for reasons
to which I will come, everything turns upon the content of the
Commissioner's
report,
it is appropriate to set it out in full. To do so will
also
relieve
me of the need to set out the history, apart from one or two
further
particulars,
for the history is admirably summarised in the
report.
5. I
have highlighted in bold type those passages
to which
particular
attention
needs to be directed in order to consider Mr George's critique. It is also
relevant
to set out two
paragraphs
of the letter of 16th July 1992 from the
chief
executive
of Norfolk County Council to the Minister for
Roads
and Traffic
at the Department of Transport, to which the
Commissioner
refers
in
paragraph
16 of his decision:
6. Having
said that, I therefore consider the request
that the County Council
".....consider sympathetically....." the impact on Swan's Harbour and Cooper
Beech Cottage to be misleading and out of
place
in such a decision letter. The
County Council does not have legal duties to buy up houses on a "sympathy"
basis even it if may have the
power.
|I do not wish to sound harsh or
bureaucratic but local government is frequently told to act within its
powers
and to curtail unnecessary
expenditure
and it has, as a corporate legal body,
to act within those
powers.
Like Government we face legal challenge in the
Courts, or challenge from our internal or
external
auditors if we do not.'
7. Nobody
disputes that Mr and Mrs Balchin
have been innocent
victims
of the
road
scheme.
For
reasons
to which the
Commissioner
refers
in
paragraphs
8 and 9 of his
report,
Mr
Balchin
has been
ruined.
To the irony that it was only the
severance of their
property
in 1984 from a larger
parcel
which
was
purchased
for the
road
scheme that left the
Balchins
without compensation there
has now been added the final blow: the
road
scheme has been abandoned with the
revocation
by Norfolk County Council of
planning
consent for it.
8. The
Parliamentary
Commissioner
for
Administration
9. The
powers
and functions of the
Commissioner
are established by the
Parliamentary
Commissioner
Act 1967. They are subject to the supervisory jurisdiction of
this court, notwithstanding that the
Commissioner,
who occupies a unique
constitutional
place,
is answerable to
Parliament
(
R
v
Parliamentary
Commissioner
for
Administration
ex
parte
Dyer
[1994] 1 WLR 621 DC). His functions are essentially those described in section
5(1) of the 1967 Act:
10. Between
the two sub-sections are set out various
exclusions
not material to the
present
case.
11. The
Commissioner
is
required
by section 10 to
report
back to the MP through whom
the complaint has come and to the material department or authority. In
addition, by 10(3):
12. The
provision
added to section 12 (the interpretation section) by sub-section (3) -
'it is hereby declared that nothing in this Act authorises or
requires
the
Commissioner
to question the merits of a decision taken without
maladministration by a Government department or other authority in the
exercise
of a discretion
vested
in that department or authority' - is a
recital
of the
obvious,
explained
by the footnote in de Smith (op cit infra, citing in turn
the Crossman Diaries) that it was inserted at the insistence of the Treasury.
13. The
meaning of maladministration, both in this Act and in the Local Government Act
1974 (which set up the parallel
Local
Commissioner)
has been considered by the
Court of Appeal in
R
v
Local
Commissioner
for
Administration
for the North and East area of England,
ex
parte
Bradford Metropolitan City Council
[1979]
QB 287. Both the Court of Appeal (Sir David Cairns dubitante) and the
textbooks on
public
law have drawn upon the 'Crossman catalogue' offered to
Parliament
during the
passage
of the 1967 Act by the then Lord
President
of the
Council. It is accordingly accepted that maladministration includes bias,
neglect, inattention, delay, incompetence, inaptitude
[1],
perversity,
turpitude and arbitrariness in
reaching
a decision or
exercising
a
discretion, but that it has nothing to do with the intrinsic merits of the
decision itself: see
R
v
Commissioner
for Local
Administration
ex
parte
Eastleigh Borough Council
[1988] QB 853, 863.
14. Mr
George and Mr Elvin, whose collective experience
in this field is considerable,
did not differ from my
proposition
in argument that so far as a court of
judicial
review
is concerned the question is not how maladministration should
be defined but only whether the
Commissioner's
decision is within the
range
of
meaning which the English language and the statutory
purpose
together make
possible.
For the
rest,
the question whether any given set of facts amounts to
maladministration - or by
parity
of
reasoning,
to injustice - is for the
Commissioner
alone.
15. Less
judicial attention has been devoted so far to the meaning of 'injustice' in the
legislation, but de Smith, Woolf and Jowell,
Judicial
Review
of
Administrative
Action
(5th edition) write at
paragraph
1-102:
16. It
follows that the defence familiar in legal proceedings,
that because the
outcome would have been the same in any event there has been no
redressible
wrong, does not
run
in an investigation by the
Commissioner.
17. In
addition, the Commissioner
is an investigative officer, not an adjudicative
tribunal. As the Divisional Court held in
ex
parte
Dyer
(ante), section 5(5) of the 1967 Act gives him a wide area of choice as to the
manner in which he investigates. But this discretion, too, will be constrained
by the limits set by
public
law.
18. The
Planning
Framework
19. There
are powers
of compensation for depreciation caused by the use of
public
works
under the Land Compensation Act 1973,
Part
I, but it is common ground that
they were of no assistance in the
present
case since claims are deferred until
a year after the highway is first opened to traffic.
20. The
relevant
provisions,
which are more
extensive
than those summarised in
paragraph
3 of the
Commissioner's
decision, are to be found in section 246 of
the Highways Act 1980 as amended by (inter alia) section 62 of the
Planning
and
Compensation Act 1991:
21. A
significant depreciation of value
comes within the
expression
'seriously
affected' in section 246(2A) (
R
v
Secretary of State for Transport,
ex
parte
Owen
[1995] 2 EGLR 213, CA).
22. The
definitions of 'qualifying interest' and 'blighted land' which follow apply, it
is agreed, to the Balchins
and to Swan's Harbour
respectively.
It was
sub-section (2A) which was added and came into effect between the Inspector's
report
and the Secretary of State's confirmation of his
recommendation.
The
new
provision
was accompanied by a circular, 15/91, from the Department of the
Environment, which in an annex on the 1991 Act said:
23. The
Department of Transport itself in January 1992 issued a press
notice drawing
attention to the enacted
power
and signalling central government's own
intention to use it to alleviate hardship caused by trunk
road
schemes.
24. The
challenge to the Commissioner
26. The
first and third of these challenges, in my judgment, cannot succeed. It is not
in my view
a fair
reading
of the decision to take the second sentence of
paragraph
26 ('However there is no evidence that [the want of
redress]
is due
to a failure by the Department to meet their legal obligations') and treat it
as
exhaustive
of the tests applied by the
Commissioner.
The whole of his
findings, from
paragraph
22 onward, have to be taken together, and these
include a consideration of far more than the legal obligations of the
Department. In
particular
they include the question, to which I shall come
separately, of the
possible
linking of confirmation by the Secretary of State
to a decision by the county council on compensation, which
raised
both legal
and
extra-legal
issues.
27. Nor
do I consider that the challenge to the tenability of the conclusions in the
light of the evidence and findings can succeed. Mr George does not have to
demonstrate, as respondents
sometimes suggest is the case, a decision so
bizarre that its author must be
regarded
as temporarily unhinged. What the not
very
apposite term 'irrationality' generally means in this branch of the law is
a decision which does not add up - in which, in other words, there is a error
of
reasoning
which
robs
the decision of logic. The
present
decision is not in
this class. The facts set out in the
Commissioner's
report
are logically
capable of sustaining his findings and hence his conclusion. The
real
issue is
thus Mr George's second one, to which I now turn.
28. The
Commissioner's
decision
29. Mr
George's argument depends upon passages
which I have highlighted in
paragraphs
9, 18, 19, 23 and 25 of the
Commissioner's
report.
In brief, the
Commissioner
has concluded
30. I
accept Mr Elvin's submission that it would have been - or more accurately that
the Commissioner
was entitled to accept the Department's
view
that it would
have been - an unacceptable use of the Secretary of State's
powers
to make his
confirmation conditional on the county council's deciding to
exercise
its
discretionary
power
of
purchase
in a
particular
way, whether the condition was
explicit
or only hinted at. But Mr George
points
to other
possibilities
open
to but not considered by the Department. Of those which do not involve some
element of conditionality, the most straightforward was to draw the county
council's attention in clear terms to its new
power
under s.246(2A) and to the
Department of the Environment's advice about the use of the
power.
31. This
the Commissioner
in
paragraph
25 implicitly accepts. He also
rejects
the
Department's
excuse
that it judged such advice to be inappropriate. He finds
the truth to be that the
existence
of the
power
was simply overlooked. But he
then notes what happened when the
Balchins'
bank did
exactly
what the
Department had failed to do and drew Norfolk's attention to its new
power:
the
county council treated
rejection
as a foregone conclusion in the light of its
earlier
refusal
to
exercise
a
related
but different
power.
This, the
Commissioner
infers, would have been the inevitable outcome had the Department
drawn the county council's attention to the new
power.
32. This
is not an inference which, speaking for myself, I find convincing. Although
the Commissioner
has no jurisdiction in
relation
to local government, Norfolk's
response
was on the face of it highly questionable. Although the county
council was duly served it has understandably taken no
part
in these
proceedings,
and I hesitate to criticise it in its absence; but the
intransigence of its stance towards the
Balchins
will have been as apparent to
the
Commissioner
as it is to this court. In 1990, when it first declined to
acquire Swan's Harbour, the
Planning
and Transportation Committee must have
been considering the
power
contained in s.246(1). When at the end of 1992 the
Balchins'
bank finally drew the council's attention to its new s.246(2A)
power,
the council appears to have given no consideration to its
exercise;
instead it
seems to have treated the question as having been effectively foreclosed by its
decision not to
purchase
in 1990. Yet the question in 1992
revolved
around a
new
power
which the council had never entertained; and the decision in 1990,
assuming it now had any bearing (which I doubt) had been based upon a
reason
which, if it were admissible, would justify all
public
bodies in
refusing
ever
to
exercise
a discretion to make a
payment
for fear that other applicants would
want to be similarly treated - a textbook
example
of a fettered discretion. In
any case the Inspector had singled out Swan's Harbour as one of two
properties
facing a '
particularly
adverse effect' from the
planned
road.
33. Further,
the Department of Transport is not a high street bank, and the effect of a
reminder
from it of the council's legal functions (for every
power
implies a
duty to consider its
exercise)
and of the DoE's advisory circular is hardly to
be
put
on a
par
with an inquiry from a concerned creditor. It would in my
view
have been open to the
Commissioner
to conclude that Norfolk's 'No' was in the
circumstances not an acceptable answer and that the Department of Transport,
had it given any attention to S.246(A) and to Norfolk's attitude to it in the
Balchins'
case, might well have been able at least to
prompt
the council to
give
proper
consideration to the
exercise
of its new
power
- with what
result,
of course, nobody could now say.
34. The
Commissioner
has chosen not to go down this
road.
He has
regarded
it as
blocked by Norfolk's negative stance and has consequently not
reached
the
question, which would have been at large before him, whether the Department's
omission amounted to maladministration and, if so, whether the
Balchins
had
suffered injustice in consequence. Is his decision based on a
reviewable
error?
35. If
there is such an error, I accept Mr George's submission that it does not have
to be classified as one of law or of fact (the latter too being reviewable
if
crucial to the decision: see
R
v
London
Residuary
Body,
ex
parte
ILEA
(3rd July 1987, transcript
pp.3
- 6, DC)) and that the
relevant
test here is
whether a consideration has been omitted which, had account been taken of it,
might have caused the decision-maker to
reach
a different conclusion (see
Bolton
Metropolitan Borough Council
v
Secretary of State for the Environment
(1991) 61
P&CR
343, 353,
per
Glidewell LJ). To this must of course be
added the condition that the consideration is one to which the law
requires
the
decision-maker to have
regard.
In the
present
case the latter condition is met
by the simple fact that the consideration which I have
posed
is squarely
presented
by the
very
facts established by the
Commissioner's
own thorough
investigation. As an investigator he is not limited to the strict terms of
the issue
posed
by the complaint.
36. The
question then is whether he has overlooked this aspect of the case. If he has
not done so, the fact that his view
of its significance differs from mine (as I
do not conceal that it does) is of no legal consequence and his decision will
be unimpeachable.
38. The
reasoning
starts from the fallback submission of the Department that even if
they had thought about s.246(2A) and - by implication - drawn it to Norfolk's
attention, Norfolk would have
persisted
in its negative attitude. This, the
Commissioner
says, 'I do not question', meaning that he either adopts this
view
or at least is not
prepared
to differ from it.
39. Whether
the Commissioner's
conclusion ('I have not found the complaint against the
Department of Transport to be made out')
reflects
a finding that there was
therefore no maladministration or no injustice, one cannot know - although it
is likely to be the latter, given his findings of fact. But one does know from
paragraph
26 that he has consciously omitted, in
reaching
his conclusion, to
evaluate the
role
and impact of Norfolk County Council's stance:
40. I
have hesitated long before concluding that, notwithstanding the very
wide area
of judgment and discretion given to the
Commissioner
by the Act, he has been
led by a scrupulous
regard
for his jurisdictional
remit,
excluding
as it does
local government, into a failure to consider the
relevant
fact of Norfolk's
attitude - not with a
view
to deciding whether it was unlawful or even (to use
his own neologism) maladminstrative but in order to decide, as his own findings
made it necessary for him to do, whether the Department of Transport ought in
response
to have drawn the council's attention to its new
power
to acquire
blighted
property
and
perhaps
also to its obligation to consider
exercising
it.
In other words, once Norfolk's apparent disregard of its obligations was
established by him, the
Commissioner
could not
properly
avoid the question
whether correct advice with the imprimatur of central government might have
made a difference.
41. Whether
the Department's undoubted failure to tender such advice amounted to
maladministration and whether, if it did, it caused injustice to the Balchins
remains
entirely a question for the
Commissioner.
My decision is limited to
holding that in declining to consider the ostensible
propriety
of Norfolk
County Council's negative attitude to its compensatory
powers
and its
amenability to correction by the Department, the
Commissioner
omitted a
potentially
decisive element from his consideration of whether the Department
of Transport had caused injustice to the
Balchins
by maladministration in its
dealings with the county council.
42. Counsel
agreed at the conclusion of argument that this judgment should be handed down
in writing, including any proposed
consequential orders, with liberty to apply
within 14 days if different orders are sought.
43. I
do not consider that certiorari is necessary if the Commissioner
will undertake
to
reconsider
his decision in the light of this judgment. If, however, it is
considered that he is functus officio, certiorari must go, with the
result
that
the complaint will
remain
to be entertained; mandamus will then be unnecessary.
45. The
Commissioner
may, if he seeks it, have leave to appeal.
46. MR
JUSTICE SEDLEY: For reasons
which have been set out in writing, communicated to
the
parties
and which are now available for the
Press
and the
public,
this
application for judicial
review
succeeds.
47.
Mr Payton,
you are here for the Applicant?
48. MR
JUSTICE SEDLEY: The Respondent
is not
represented
today.
49. MR
PAYTON:
What I am about to tell your Lordship I left in the form a message for
my learned friend, Mr Elvin, last evening. He has not been able to speak to me
direct and I gather that he is otherwise engaged today, but I do not think
there is a great
problem.
I have left with the learned Associate a copy of a
letter written by the Treasury Solicitor and it
relates
to the last
paragraph
of
page
24 of your Lordship's judgment.
50. MR
JUSTICE SEDLEY: Let me just read
out the communication for the
record.
The
Treasury Solicitor writes to those instructing you that the
Parliamentary
Commissioner
has written to her as follows:
52. MR
PAYTON:
My Lord, that arose because of matters that came up after the
investigation but, without trespassing on matters of
privilege,
I can tell your
Lordship that Mr Michael Lord, MP, did invite the Ombudsman to
reconsider.
53. MR
JUSTICE SEDLEY: Mr Payton,
I am sorry. I thought you were going tell me that
Mr Elvin had communicated to you that he was content with one outcome
rather
than another today. He obviously has not done so. I am certainly not going to
traverse this ground in his absence.
54.
The idea of handing down judgments like this is, in principle,
to avoid
unnecessary costs of attendance. The only
purpose
of attendance today in this
case would have been for Mr Elvin, who is the only
person
not here, to tell me
whether his client would consent to
reconsider
the case or whether, being
functus
officio
,
he considers that he has no
power
to do so without an Order of
certiorari.
56. MR
JUSTICE SEDLEY: If the Commissioner
considers that he is able to undertake to
reconsider,
are you content with the undertaking? Do you
press
for
certiorari
in those circumstances?
57. MR
PAYTON:
No, my Lord, subject to seeing the terms.
58. MR
JUSTICE SEDLEY: In that case it seems to me that the proper
course is for me to
say that
certiorari
will go unless within 14 days the
Commissioner,
on consideration, feels it
appropriate to offer an undertaking to
reconsider
the case.
59. MR
PAYTON:
My Lord, that is most helpful.
60. MR
JUSTICE SEDLEY: If such an undertaking is communicated to this court and to
those instructing you, providing
it satisfactory to them, then I shall make no
Order.
61. MR
PAYTON:
We shall lodge your note of concern.
62. MR
PAYTON:
I do not apply. Your Lordship has given leave to appeal if
requested?
63. MR
JUSTICE SEDLEY: Yes, very
well. In that case the
Commissioner
must also,
within the same 14 days, communicate to the Crown Office whether he does seek
leave to appeal. If he does, the outcome is already
provided
for.
64. MR
PAYTON:
I am grateful to your Lordship.