The Legality of Walking Away from Public Service Ombudsman Reports: The United Kingdom's Experience

Public sector integrity bodies, such as ombudsmen, have progressively become a core element of Australian administrative law. Despite carrying out inquisitorial functions to identify the root causes of defective public administration, there have been debates on whether the government is, or should be, legally bound by ombudsmen’s findings and recommendations. In the Bradley litigation, for example, the United Kingdom’s Court of Appeal held that relevant investigated agencies cannot reject an Ombudsman’s findings without cogent reasons. Subsequent decisions in the United Kingdom have largely echoed the principle laid down by Bradley. Due to limited judicial guidance in Australia, this article analyses Bradley and relevant precedents from the United Kingdom, including recent developments, and then discusses legal implications for Australia. This article also revisits the parameters of ombudsmen’s functions and makes recommendations for potential reform to the Commonwealth Ombudsman legislation to provide greater clarity on how government departments and public authorities should respond to, and collaborate with, Ombudsman investigatory processes. It is suggested here that the Ombudsman procedure assumes a joint public responsibility to ensure access to the administration of justice: the executive arm of government, with decision-making responsibility, verifies the Ombudsman’s findings, which with its investigatory powers diagnoses the cause of alleged maladministration.