APPEAL AND REVIEW
What provision, if any, should the legislation make about review? What provision should be made about appeal? To what new bodies should the powers of the Ombudsmen extend? To what new bodies should the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 extend?
What provision, if any, should the legislation make about review?
153 The right to seek review exists under the common law. It does not depend on statute, but its scope in particular cases is very much determined by the legislation and the issues to which it gives rise. Aspects of that have already been touched on in the discussion of public power (paras 58-64) and of regulations (paras 114-129). The greater the width of the power, the more subjective it is, the wider the purposes or the criteria (even more if they are not stated) to which the decision-maker is to have regard, the smaller the extent of review.
154 The legislature might also limit review, or attempt to, by so-called privative or ouster clauses. Section 27(2) of the Bill of Rights confirms that such provisions should not be included except in the most unusual cases. To the extent that such provisions have effect, they remove part of the power of the courts to enter the legal area as essentially determined by Parliament, an exclusion that is difficult to justify in principle. As the Public and Administrative Law Reform Committee stated in its sixth report (1973), in the absence of a right of appeal, a proper distribution of functions between court and government agency should be based on their comparative expertise. The court should be concerned with questions of law and procedure, the government agency with matters of discretion and policy. The agency should not be able to violate the law with impunity.
155 To be distinguished from regular privative clauses are sections which delay access to the courts until a particular remedy (usually an appeal to a tribunal) is first exhausted. Such a clause might be able to be justified since it appropriately gives preference to the expert tribunal and it does not completely prevent access to the courts.
What provision should be made about appeal?
156 The legislative decision about conferring a right of appeal should be based on the matters considered earlier relating to the allocation of original decision-making power and especially the nature of the rights and interests involved (paras 65-83). The greater the individual impact of a decision directly affecting important rights, interests or legitimate expectations of that individual, the stronger the case for a right of appeal. So s 25(h) of the Bill of Rights Act states as a minimum standard of criminal procedure the right of a person convicted of an offence to appeal according to law to a higher court against conviction, sentence or both.
157 The Committee in its report on Administrative Tribunals concluded that in general there should be one right of appeal (as of right) against the final decisions of tribunals making decisions at first instance. Rights of appeal are accorded on the basis that the appeal decision is likely to be a better one; that error will from time to time be corrected; and that as a consequence the cost and delay of the further process can be justified. But there may be good reasons to deny or, more commonly, to narrow a right of appeal. Denial of a right of appeal might be justified by the relative lack of importance of the matters and the related costs of appeal, by the need for early finality, or by the high quality and expertise of the body making the original decision. The final factor is in general an argument for providing a limited right of appeal, for instance on law alone, rather than for denying any appeal. There is moreover the consideration that the common law review powers are likely to extend in practice to errors of law made by tribunals. The review powers do however fall short of appeal powers - not reaching the merits including questions of fact and discretion.
158 The choice of the appellate body - a further tribunal or a Court (the District Courts, High Court, with or without expert members and assessors) - should be made according to the nature and importance of the issues involved. In the case of an appeal to the courts, whether the appeal is general or limited to points of law should depend on the matters discussed in paras 65-84 above: the relative expertise of the original and appellate bodies, the procedure that each follows and the nature of the issues which arise for determination. There should also in general be provision for an appeal to the Court of Appeal, but only with the leave of that Court and on the basis that the case presents questions of law of public importance. These matters are more fully discussed in the Committee's report on Administrative Tribunals 1989 paras 56-70 and the Law Commission report on The Structure of the Courts (1989) ch VI.
159 If there is to be an appeal or a question of law, the Public and Administrative Law Reform Committee in its 16th report (1982) proposed the detail of the procedure for settling the question of law for decision.
To what bodies should the powers of the Ombudsmen extend?
160 As a general principle, the Ombudsmen should have jurisdiction over departments and other organisations that make decisions relating to matters of central or local government administration and which affect members of the public. If a new body being set up by or under statute is to come within their jurisdiction, a consequential amendment will be required to the First Schedule to the Ombudsmen Act 1975. As indicated in the Cabinet Office forms set out in Appendix A, there should be consultation with the Office of the Ombudsmen about these matters and the question of any change in existing coverage of the Ombudsmen Act and those Acts considered in the following section.
161 Whenever a new organisation is created, it is necessary to determine whether or not the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 should apply to it. In some cases the 1982 Act will apply since the body is subject to the Ombudsmen Act. The basic criterion formulated by the Danks Committee that proposed Official Information Act 1982 is that bodies carrying out a government or public function should be subject to the Act. The criterion is now to be understood more broadly given the Amendment Act of 1987 and the Local Government Official Information and Meetings Act 1987. To a large extent the application of the legislation will depend on the relationship between the organisation and central government. The following factors are relevant:
- The organisation's dependence on central government funding.
- The obligation of the organisation to consult with the Minister on particular matters, respond to ministerial directions, or obtain ministerial approval.
- The existence of ministerial control over appointments in contrast to, for example, elected membership representing relevant interest groups.
- The existence of any government controls on finance, for example, by the Audit Office.
- The public purpose of the organisation.
As already noted (para 96), the State-Owned Enterprises (Ombudsmen Act 1975 and Official Information Act 1982) Select Committee recently recommended that the state owned enterprises should remain subject to those two statutes. The Government has accepted that recommendation and related legislation has been prepared.
162 The above set of four questions about control is incomplete. As well, attention is often to be given to the potential role of the Controller and Auditor-General and, in the local government and related areas, to the Local Authorities Loans Act 1956, Local Authorities (Members' Interests) Act 1968, and Local Elections and Polls Act 1976.