Dyer

R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621

Case report (vLex)

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Parties and outcome

Claimant

Monica Dyer

Defendant

Parliamentary Commissioner for Administration

Outcome

The Commissioner won: Dyer’s application for judicial review was dismissed.

Citations in this work

Cited by

• Balchin (No 1)

  Paragraph 9

  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: 'Subject to the provisions of this section, the Commissioner may investigate any action taken by or on behalf of a government department or other authority to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where (a) a written complaint is duly made to a member of the House of Commons by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken; and (b) the complaint is referred to the Commissioner, with the consent of the person who made it, by a member of that House with a request to conduct an investigation thereon.' By section 5(5): 'In determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Act shall be determined by the Commissioner.'

• Balchin (No 2)

  I have had regard to the warning as to the limited scope for interference by the courts in these cases given by the divisional court in R. v. Parliamentary Commissioner, ex parte Dyer [1994] 1 W.L.R. 621 .

• Cavanagh

  Paragraph 18

  18. We consider that our characterisation of the statutory powers and discretions is in line with what was said by this court in R v Parliamentary Comr for Administration, Ex p Dyer [1994] 1 WLR 621 , 626 e — g . For the commissioner, Nathalie Lieven seeks to add to it what Sedley J said in R v Parliamentary Comr for Administration, Ex p Balchin [1998] 1 PLR 1 , 15-that the Parliamentary Commissioner: “As an investigator… is not limited to the strict terms of the issue posed by the complaint.” This was said in relation to a factor (the intransigent attitude of a county council to the payment of compensation) which was directly raised by the complaint against central government over which alone the Parliamentary Commissioner had jurisdiction, and the factuality of which had been established by him. The point being made was that it was not necessary for him to have jurisdiction to inquire into the county council's behaviour in order to take it into account. In so far as the dictum may be thought to go any wider, it should be regarded as going no further than what is said in the previous paragraph of this judgment. It has also to be read in the light of what Auld J said in R v Northern and Yorkshire Regional Health Authority, Ex p Trivedi [1995] 1 WLR 961 , 971, albeit about a more confrontational disciplinary process: “The fact that the process is investigative and inquisitorial, rather than a form of litigation between the parties… does not mean that the medical service committee or the authority is entitled to investigate and make findings on matters not the subject of complaint.” The report

• Morris (2014)

  Paragraph 35

  35. This judicial review challenge raises what I would choose to call a refined Wednesbury issue. I put the matter in those terms because the courts have consistently recognised that the defendant's investigatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on the application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made ‘strikingly clear’ by the legislature. That is a reference to the provision which is now in section 3(5) that the Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense … ” I endorse that approach, and in so far as there is any difference of substance or emphasis between Collins J and Mitting J, I prefer the reasoning of Jeremiah .

• Kirkham & Allt (2016)
• Newman

  Paragraph 44

  44. In R (Morris) v The Health Service Commissioner [2014] EWHC 4363 (Admin), Jay J said [paragraph 35]: “… the courts have consistently recognised that the defendant’s invest igatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on th e application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court, made it clear that the width of the discretion was, as he put it, made “strikingly clear” by the legislation. That is a reference to the provision which is now in section 3(5) (sic) that th e Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional grounds of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense….”

• Miller

  Paragraph 41

  41. The courts have emphasised the wide discretion which the ombudsman has over her investigative procedures. For example, Simon Brown LJ held in R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 at 626 that: "[t]he intended width of these discretions is made strikingly clear by the legislature" As the ombudsman notes, that case concerned the materially identical provisions in the Parliamentary Commissioner Act 1967.

• Morris (2019)

  Paragraph 29

  29. In R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, Simon Brown LJ, giving the judgment of the Divisional Court, in respect of materially identical provisions in the Parliamentary Commissioner Act, rejected the submission that the Commissioner’s decisions fell “wholly outside the purview of judicial review” (at 625F) or that the scope of judicial review was not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity (at 625G – 626E). He went on to say, at 626E - G: “….despite my rejection of both Mr Richards’ submissions on the question of jurisdiction, it does not follow that this court will be readily persuaded to interfere with the exercise of the Commissioner’s discretion. Quite the contrary. The intended width of these discretions is made strikingly clear by the legislature: under section 5(5), when determining whether to initiate, continue or discont inue an investigation, the Commissioner shall act in accordance with his own discretion;” under section 7(2), “the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case.” Bearing in mind too that the exercise of these pa rticular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conven tional ground of Wednesbury unreasonableness ... Recognising this, indeed, one may pause to wonder whether in reality the end result is much different from that arrived at by the House of Lords in the two cases referred to, where the decisions in question were held “not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity.” True, in the present cases “manifest absurdity” does not have to be shown; but inevitably it will be almost as hard to demonstr ate that the Commissioner has exercised one or other of his discretions unreasonably in the public law sense.”

  Paragraph 34

  34. In R (Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J. held (at [30]) that: “The law, as set out by both th e Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made “strik ingly clear” by the legislature…. Although I will not go so far as Mitting J appears to have done in R (on the application of Me ncap) v The Parliamentary and Health Service Ombudsman [2011 ] EWHC 3551 in indicating that there is unfettered discretion, nonetheless it is perfectly clear that such fetters as there are exceedingly loosely applied.

• Kirkham & O’Loughlin (2020)
• Craig (9th edn)