The judicial role in the constitution

The role of the courts in any constitutional set up is controversial. The strongest role for the court is one of the ultimate interpreter of the constitution, a role which for instance was famously adopted in the USA by the Supreme Court in Marsbury v Madison. Other courts have inferred the equivalent authority, as with the ECJ in the case of Costa v ENEL, in its authority over interpreting the Treaty of the EU. Of the many factors that led to the result of the referendum on membership of the EU, resistance to this judicial claim of authority was one element.

An introduction to the Political Constitution

This post introduces the concept of the political constitution in the UK context and references some of the key material for more detailed reading.

Some implications of Brexit for the constitution

Brexit is a landmark, and dramatic, event in British constitutional history. Countless words have already been penned on the subject, but much more will follow over the weeks, months and years to come because whatever happens next the long term impact of the 2016 referendum is profound for our understandings of how the UK Constitution operates. Without touching too much on the merits of Brexit, this post introduces some of the key constitutional issues that have been thrown up in light of Brexit, using hyperlinks to direct students to some of the leading contributions over the Summer of 2016.

Article 50 and the European Union Act 2011: Why Parliamentary Consent Is Still Necessary

Written with T.T.Arvind and L.Stirton. Originally posted on the UK Constitution Law Association website.

Since the referendum, there has been a lively debate about the process for invoking Article 50 of the Lisbon Treaty. Can Article 50 be invoked by the Prerogative, as Mark Elliott and Kenneth Armstrong have suggested? Will it require Parliamentary consent, as Nick Barber, Tom Hickman and Jeff King, Scott Styles, and Ewan Smith have argued? Will Parliamentary scrutiny suffice, as Adam Tucker suggests?

This post argues that the exercise of the prerogative without Parliamentary consent – as the Government appears increasingly set to do – runs the risk of triggering a full-blown constitutional crisis. This makes it imperative, both as a matter of constitutional law and established constitutional practice, that parliamentary consent is obtained before the process is invoked.

A PUBLIC SERVICE OMBUDSMAN: Consultation

This response contributed to a consultation process by the Cabinet Office on proposals for introducing a new Public Ombudsman Scheme. The response to the consultation (December 2015) can be found here.


 

Some introductory comments

1. I am an academic researcher working at the University of Sheffield with a long-standing interest in the field of administrative justice. As well as writing extensively on the ombudsman enterprise, I was a member of an independent evaluation panel for the Local Government Ombudsman in England in 2013 (External Evaluation of the LGO). In 2007 I was employed by the Parliamentary Ombudsman’s office to write a Parliamentary Paper on the scheme’s 40^th Anniversary, “The Parliamentary Ombudsman: Withstanding the test of time (Fourth Report of the Parliamentary Commissioner for Administration, HC 421 (2006-07)). In that report, amongst other things, I noted that there were strong arguments for merging aspects of the office with other ombudsman schemes.     

INQUIRY ON THE PUBLIC SERVICE OMBUDSMAN FOR WALES

This response contributed to a consultation process by the Finance Committee of the Assembly for Wales on the powers of the Pubic Services Ombudsman for Wales. The response to the consultation (May 2015) can be found here.

Some introductory comments

1. As well as writing extensively on the Ombudsman, I was a member of an independent evaluation panel for the Local Government Ombudsman in England in 2013 (External Evaluation of the LGO).

2. The administrative justice system, and indeed the civil justice system, in Wales and the UK is an evolving network of processes and institutions. It is also one in which less and less reliance can be placed on the courts and the structures and processes that support them to deliver universal ‘justice’.

3. Ombudsman schemes, and ADR more generally, have been exposed to criticism, and some aspects of that criticism are justified. But, the potential benefits of this model of dispute resolution are significant and, as the EU Directive on ADR emphasises, the trend towards ADR looks set to continue.

4. The ombudsman enterprise remains relatively young and the processes employed are still being refined. In particular, there is still work to do to raise the profile and robustness of ombudsman schemes.

5. Finally, the landscape within which the ombudsman operates is changing rapidly due to developments in information technology, the merging of the public and private sectors and the pressures of austerity politics.

6. With all these factors in mind, this review and set of proposals is a model of good practice in helping to strengthen the potential of the ombudsman to both resolve complaints and increase administrative justice.

Response to Consultation on the Draft Public Services Ombudsman (Wales) Bill

This response contributed to a consultation process by the Finance Committee of the Assembly for Wales. The response to the consultation (March 2016) can be found here.

 

Introduction

I am an academic who has researched and written on the ombudsman institution for over ten years. In the past I have acted as a consultant for the Parliamentary Ombudsman in the drafting of the Parliamentary Paper Withstanding the Test of Time, HC421 (2006/07) and as a member of the team that wrote An External Evaluation of the Local Government Ombudsman (2013: LGO Website).

General

Does the Bill improve the effectiveness of the role of the Ombudsman?

1.1 Yes. The draft Bill: (i) smooths out the process for submitting complaints and (ii) upgrades the ombudsman scheme by creating some new powers (eg own-initiative investigation, standards authority, and limited jurisdiction over private health care providers).

1.2 This upgrade is the direction of travel that all ombudsman schemes need to take if they are to become an accountability institution more capable of contributing proactively towards the improvement of public service delivery for the benefit of the user. Complaint-handling requires a multi-layered initiative, with the ombudsman at the top of the system dealing with the most intransigent and complex disputes, testing to see that complaints intelligence is properly recorded and assimilated, and providing expert advice as and where appropriate.

1.3 Without more intelligent tools to work with, an ombudsman scheme’s broader contribution will likely be sporadic and reactive, with the associated risk that gaps are left in the oversight of good complaint handling and systemic learning from complaints.