Murray, R (on the application of) v Parliamentary Commissioner for Administration

The Parliamentary Commissioner may investigate only complaints referred by a Member of Parliament. The statutory referral requirement is part of the scheme established by the Parliamentary Commissioner Act 1967, and the court will not compel the Commissioner to invite or require an MP to make a referral. Investigation may also be barred where the complainant has or had a court remedy, subject to the statutory exception. A complaint made outside the prescribed twelve-month period requires special circumstances before it may be entertained. In reviewing the Commissioner’s discretionary decision, the court asks whether it was irrational, unreasonable or improper. Evidence of maladministration alone is insufficient where there is no reasonable prospect of a worthwhile remedy, particularly where the complaint is pursued to obtain collateral observations about an earlier grievance.

The applicant had pursued a series of complaints concerning the former English Industrial Estates Corporation, the Department of Trade and Industry, the Ombudsman and the Legal Aid Board. Burton J refused renewed applications for permission to apply for judicial review concerning the Ombudsman’s refusal to investigate two complaints.

The fifth claim challenged the Ombudsman’s failure to act on correspondence concerning costs and alleged conduct by the Treasury Solicitor. The fourth claim concerned alleged delay and maladministration by the Legal Aid Board in dealing with legal aid for earlier judicial review proceedings. The central issues were whether the Ombudsman had jurisdiction or a duty to investigate, and whether his discretionary decisions were unlawful.

1. The fifth claim. The application concerning the Ombudsman’s failure to respond to the applicant’s correspondence was unsustainable. Under section 5(1) of the Parliamentary Commissioner Act 1967, the Ombudsman may investigate only complaints referred by a Member of Parliament. The requirement operates as part of the statutory scheme, under which MPs filter complaints before referral. It would therefore be inappropriate to require the Ombudsman to invite or compel an MP to submit a complaint.
2. The fourth claim. The court assumed that there was some evidence of maladministration by the Legal Aid Board or Legal Services Commission. That did not require an investigation. The Ombudsman was entitled to consider that the substance of the applicant’s underlying complaint was subject to the statutory bar in section 5(2)(b), because the applicant had or had had a remedy by proceedings in a court. The Ombudsman was also entitled to rely on the twelve-month limitation in section 6(3). The applicant had known of the relevant matters for substantially longer than twelve months and had shown no special circumstances making it proper to waive the time bar.
3. The Ombudsman’s stated concern that an investigation might not produce a worthwhile remedy was rational and relevant. The applicant’s apparent purpose was to obtain collateral criticism of the Department of Trade and Industry and reopen an earlier grievance. That did not amount to a special circumstance. The destruction of some Legal Aid Board records weakened the potential for a conclusive investigation, although the court considered that reason less substantial than the others.
4. Burton J had made some observations which were inaccurate or based on assumptions about the earlier proceedings, but those matters did not affect the substance of his decision. There was no evidence of bias, irrationality, unreasonableness or impropriety. The linked renewed applications were refused.

• Court of Appeal (Civil Division): refused the linked renewed applications for permission to apply for judicial review.
• High Court, Queen’s Bench Division: Burton J refused permission on 17 June 2002.