Liverpool
R (Liverpool City Council) v Local Government Ombudsman [2000] EWCA Civ 54
Parties and outcome
- Claimant
- Liverpool City Council (appellant)
- Defendant
- Local Commissioner for Local Government for the North and North East of England
- Outcome
- The Commissioner won: the Council’s appeal against the refusal of judicial review was dismissed.
Citations in this work
Bradford
3. Maladministration is not defined by statute. Lord Denning MR adopted (see R -v- Local Commissioner for Administration for the North and North East Area of England ex parte Bradford Metropolitan City Council [1979] 1 QB 287 at 311H) a passage from the 4th Edition of Professor Wade's book on Administrative Law: "It will cover `bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on'. It `would be a long and interesting list', clearly open- ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself. It follows that `discretionary decision, properly exercised which the complainant dislikes but cannot fault the manner in which it was taken, is excluded': see Hansard, 734 HC Deb, col. 51. In other words, if there is no maladministration, the ombudsman may not question any decision taken by the authorities. He must not go into the merits of it or intimate any view as to whether it was right or wrong. This is explicitly declared in section 34(3) of the Act of 1974. He can inquire whether there was maladministration or not. If he finds none, he must go no further. If he finds it, he can go on and inquire whether any person has suffered injustice thereby."
Gough
12. Miss Patterson's elaborate attack on the test of when an interest should be disclosed founds on the case of R -v- Gough [1993] AC 646. In Gough, in the context of the examination of a juror's conduct in a criminal case, the Court was presented with two conflicting lines of authority. The finding in Gough is analysed in a decision of this Court presided over by the Lord Chief Justice (Locabail (UK) Limited -v- Bayfield Properties Limited (17th November 1999). For present purposes it is simply necessary to say that the two competing tests were whether there was "... a reasonable apprehension or suspicion of bias" or "... a real danger or possibility of bias". The former test accords with the Code (and was clearly the test used by the Commissioner). The latter test is the one approved by their Lordships in Gough, and is now binding on all subordinate courts. It is not disputed that the more stringent test (ie, that with the lower threshold for disclosure) is the test to be found in the Code.
Pinochet (No 2)
14. We note from R -v- Bow Street Magistrates, ex parte Pinochet (No 2) [1999] 2 WLR 272 and Locabail (UK) Limited (above) that the Gough formulation of the test has not been accepted in a number of common law jurisdictions and that there has been debate in those authorities as to whether the semantic difference between those two tests is likely to make any (and if so what) difference in practice. Thus Lord Hope in ex parte Pinochet at page 290: "Although the tests are described differently, their application by the appellate courts in each country is likely in practice to reach results which are so similar as to be indistinguishable."
Croydon
43. Nevertheless, the skeleton argument submitted on behalf of the Council identifies, as one of the issues which are said to arise on this appeal: "Issue 3. The learned judge erred in holding, contrary to the authority of R v Commissioner for Local Administration, ex p Croydon L.B.C. [1989] 1 All ER 1033, that the Respondent could have regard to the likely success of an application for judicial review in determining whether to exercise her discretion to investigate or continue to investigate a complaint and/or in determining whether there was an alternative remedy available to the local residents making the complaint to the Respondent."
Bradford
47. In my view the answer to that criticism is that already given by Lord Justice Henry. Although there is a substantial element of overlap between maladministration and unlawful conduct in the context of local government, the concepts are not synonymous. There will be cases of maladministration which do not involve unlawful conduct. As Lord Denning, Master of the Rolls, observed in R v Local Commissioner for Administration for the North and North East Area of England, ex parte Bradford Metropolitan City Council [1979] 1 QB 287, at page 311H - quoting from the debate on the Bill which was enacted as the Parliamentary Commissioner Act 1967 - "It [maladministration] will cover `bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on.' It `would be a long and interesting list' clearly open-ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself." So there is no reason in principle why the considerations which determine whether there has been maladministration should, necessarily, be the same as those which determine whether there has been unlawful conduct. The Commissioner's power is to investigate and report on maladministration; not to determine whether conduct has been unlawful. So there is no reason why, when exercising the power to investigate and report, (which has been conferred on him by the 1974 Act) he should, necessarily, be constrained by the legal principles which would be applicable if he were carrying out the different task (for which he has no mandate) of determining whether conduct has been unlawful.
Gough
54. Ms Patterson submitted that that test is more stringent than the test of apparent bias now applied in the courts. She referred us to R v Gough [1993] AC 646. The distinction, as Lord Justice Henry has pointed out in his judgment, is between "a reasonable apprehension or suspicion of bias" and "a real danger or possibility of bias"; although it is pertinent to keep in mind the observation of Lord Hope of Craighead in R v Bow Street Magistrates, ex parte Pinochet (No 2) [1999] 2 WLR 272, at page 290, that the application of either test to particular facts is likely to produce the same result.
Pinochet (No 2)
54. Ms Patterson submitted that that test is more stringent than the test of apparent bias now applied in the courts. She referred us to R v Gough [1993] AC 646. The distinction, as Lord Justice Henry has pointed out in his judgment, is between "a reasonable apprehension or suspicion of bias" and "a real danger or possibility of bias"; although it is pertinent to keep in mind the observation of Lord Hope of Craighead in R v Bow Street Magistrates, ex parte Pinochet (No 2) [1999] 2 WLR 272, at page 290, that the application of either test to particular facts is likely to produce the same result.