Written evidence from Trevor Mayes (HSO01)
Public Administration and Constitutional Affairs Committee
Parliamentary and Health Service Ombudsman scrutiny 2022-23 inquiry
Introduction
This is about the structural breach of the PHSO regarding Article 6(1) and Section 6 of the Human Rights Act 1998 (HRA). It applies where there is a reciprocal regulatory relationship between the PHSO and other organisations when to right to a ‘fair hearing’ must be met.
Loss of Independence and the appearance of independence
“it is of vital importance that judges are seen to be both independent and impartial. Justice must not only be done – it must be seen to be done. It was for this reason that the House of Lords in the Pinochet case in 1999 held that a decision it had given had to be set aside and the appeal before it would be heard again by a panel of different Law Lords.”
“It had come to light after the original decision that one of the Law Lords might have given an appearance that he was not independent and impartial because of a connection with a campaigning organisation which was involved in the case.”
“In those circumstances, and even though there was no suggestion that the Law Lord was not in fact independent or impartial, the decision could not stand. Justice demanded that the appeal be heard again before a panel of Law Lords who appeared to be independent and impartial to reasonable well-informed observers.” The Courts and Tribunal Service.
The duty to ensure a ‘fair hearing’ in each individual case
The European Court of Human Rights - Guide on Article 6(1) Civil Limb states: “322 Role of the national authorities: the Court has always said that the national authorities must ensure in each individual case that the requirements of a “fair hearing” within the meaning of the Convention are met (Dombo Beheer B.V. v. the Netherlands, 1993, § 33 in fine).”
‘Institutional Gaslighting’
The above statements are a reality check, they put into context what follows. It's what happens when those who are charged to serve us use psychological violence in a strategy known as ‘Gaslighting’ to defend the institution at the expense of our rights. [1]
PACAC the submission of evidence and the failure of scrutiny
The PACAC in the submission of evidence states:
“Please note, when submitting evidence, that PACAC cannot investigate or report on individual cases during the scrutiny process; the questions to the Ombudsman and subsequent report will cover general working practices of the organisation and its performance only.”
“As such, the Committee will be unable to accept written evidence that goes beyond the confines of the inquiry laid out above, or which is judged to contain allegations against named individuals or bodies related to individual cases.”
This statement conceals incidents when our rights under the European Convention on Human Rights (ECHR) are not being met in each ‘individual case’ and our right to report it and name those responsible.
However, the PACAC plays a similar game to the PHSO as proceedings in Parliament are exempt from Section 6 of the HRA. Therefore, it appears that standing orders do not come under the same scrutiny as legislation that would require a declaration of incompatibility with the ECHR.
The unexplained refusal of the PACAC to inquire into the breach of the HRA that was included in my submission for 2021/22 and exclusion in the annual report is deeply disturbing.
All individual cases where the requirements of the ECHR are not being met must be scrutinised and reported with details of how these matters are going to be resolved. The refusal to do so has created a vacuum that has been filled by the PHSO who now determines my rights under Article 6(1) of the HRA as the democratic process has been allowed to break down.
The PHSO acts as a judge in its own cause
In my ‘individual case’ it is the refusal to comply with my right to a ‘fair hearing’ under the HRA/ECHR, [Subordinate regulator A] failed to act fairly against its regulatory master the PHSO. Subsequently, the PHSO acting as a ‘judge in its own cause’ decided that [subordinate regulator A] was perfectly reasonable in not acting itself. This blatant bias is not tolerated in domestic law or the European Court of Human Rights and any decisions made in these circumstances are unlawful and invalid.
Domestic law on bias
According to the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties [2000] IRLR 96), there are three types of bias two of which apply:
As it applies to the PHSO as regulatory master: “Bias giving rise to automatic disqualification, where the judicial decision maker is shown to have an interest in the outcome of the case, or where the outcome of the case could, realistically affect their interest (and is hence a ‘Judge in his own cause’).”
As it applies to regulatory subordinates: “Real danger or possibility of bias, arising either from the relationship between the judicial decision maker and a party or witness, or from the conduct of the hearing. The test is objective, would a reasonable independent observer, in full possession of the facts, consider that there was a real possibility of bias, arising either from the relationship between the Judge or member and a party or witness, or the conduct of the hearing?
The Guide on Article 6(1) Civil Limb states: “274. Where a tribunal’s members include a person, who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person’s independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society (Sramek v. Austria).”
Under Administrative Law it passes the test for apparent bias in Porter v Magill [2002] 2 AC 357 and developed to be as follows. “Would the fair-minded and informed observer conclude that there was a real possibility of bias.”
Article 6(1) of the Human Rights Act 1998 derogated by the PHSO
I have taken issue with the PHSO over its refusal to recuse itself in deciding a matter concerning [Subordinate regulator A]. To force a response, I threatened legal action using their Milbank Tower address which is used in referrals by all regulators. It was only after I wrote to the International Ombudsman Institute (IOI) who passed the message on did I get a response. The PHSO obviously concluded [Subordinate regulator A] was perfectly reasonable for it not to act against itself.
The PHSO considers that acting as a ‘judge in its own cause’ is lawful because they have carried out their ‘statutory duty’ which they will vigorously defend in the courts with the use of public funds. However, under domestic law acting as a ‘judge in their own cause’ is a statement of fact that demands automatic recusal. The PHSO failed to address the issue of Schedule 2 of the Parliamentary Commissioner Act 1967 being amenable to Judicial Review and amended by the Privy Council.
The PHSO undermines the Rule of Law
The PHSO has acted beyond its remit by claiming that its investigative powers mean my rights are no longer decisive. Fortunately, they still apply if anyone is investigated by the police.
It is Parliament, not the PHSO that makes laws on this issue. Moreover, apart from human rights, the PHSO also undermines the Rule of Law and Public Trust regarding the right to a fair hearing under Article 6.
The Guide on Article 6 of the European Convention on Human Rights Right to a fair trial (civil limb) states:
“45. The Court has emphasised that any exclusion of the application of Article 6 has to be compatible with the rule of law. For this to be the case, it must be based on an instrument of general application and not a provision directed at a specific individual (Grzęda v. Poland [GC], 2022, § 296, §§ 299-300, and Baka v. Hungary [GC], 2016, § 117).”
The remedy to the PHSO violating the HRA and Rule of Law
Section 6 of the Human Rights Act 1998 states:
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently;
Subsection 2(a) of the is not absolute; the power of investigation applies to those listed in Schedule 2 Parliamentary Commissioner Act 1967 which is secondary legislation. It is amenable to judicial review and can be struck out. Therefore, the PHSO ‘should’ have acted differently by pointing out to parliament that this was a structural breach of the HRA.
I state ‘should’ not ‘could’ because “national authorities must ensure in each individual case that the requirements of a “fair hearing” within the meaning of the Convention are met”, and the PHSO is a national authority.
Moreover, a remedy would not entail parliament repealing the Act, it could have been easily done by a meeting of the Privy Council as Section 4(2) states:
“[His] Majesty may by Order in Council amend Schedule 2 to this Act by the alteration of any entry or note, the removal of any entry or note or the insertion of any additional entry or note.”
The PHSO acted contrary to its public claims of defending our rights because it has something to hide. Recusal would also mean the appointment of an independent arbiter resulting in the disclosure of serious gross misconduct and maladministration.
The Venice Principles have been contravened
The Venice Principles which set out standards for the Ombudsman have been contravened and ignored as follows:
“1. Ombudsman Institutions have an important role to play in strengthening democracy, the rule of law, good administration and the protection and promotion of human rights and fundamental freedoms”
“9. The Ombudsman shall not, during his or her term of office, engage in political, administrative or professional activities incompatible with his or her independence or impartiality. The Ombudsman and his or her staff shall be bound by self-regulatory codes of ethics.”
“12. The mandate of the Ombudsman shall cover prevention and correction of maladministration, and the protection and promotion of human rights and fundamental freedoms.”
[Subordinate regulator A] supports this arrangement with the PHSO
I have challenged [Subordinate regulator A] listed under Schedule 2 of the Parliamentary Commissioner Act 1967 as it refused to recuse itself from a complaint concerning its regulatory master the PHSO. It obviously decided that the PHSO had done nothing wrong and therefore, would not be taking any action.
I challenged the legal basis of this decision and [Subordinate regulator A] supported its regulatory master the PHSO acting as a ‘judge in its own cause’ claiming that the PHSO is the correct body to handle complaints in any aspect of the way a complaint has been handled is the PHSO. This includes the way in which [Subordinate regulator A] handles complaints against the PHSO. ‘Justice must be seen to be done’ and it looks like there is a joint enterprise to avoid accountability.
Along with unjustified threats to scare me off, this was confirmed by the head of the legal department refusing to accept that Schedule 2 is secondary legislation and therefore amenable to judicial review. The reason this regulator supports this arrangement is immunity from accountability for its actions which includes serious maladministration and gross misconduct.
The PHSO subverting our rights and the democratic process
Instead of seeking a remedy the above chose to subvert our rights. The PHSO posted a blog entitled ‘Why we don’t need a separate Human Rights Ombudsperson’. That’s because they would come under investigation and so they can continue with an arrangement whereby it decides on its own abuses of human rights as a ‘judge in its own cause’.
Following PHSO evidence to [Parliamentary Committee Z], this arrangement has been endorsed and they encouraged the UK government to put it into law. Two letters of complaint to [Parliamentary Committee Z] were ignored. [Government Department Y] has officially sanctioned this arrangement, and to save money considers that an independent arbiter would not be proportionate, ignoring the need for a declaration of incompatibility with the ECHR in the legislative process. Furthermore, an independent arbiter would cause us confusion concerning our rights.
[Subordinate regulator A] has by omission misled two parliamentary committees on this issue, public claims on supporting our rights are not matched in practice whereby they are the problem, not the solution. Their actions have been concealed by a minister who misled parliament and two government departments, one of which is regulated by the PHSO.
Subordinate regulator B failed to act against the PHSO and Subordinate regulator A
I complained to Subordinate regulator B about the PHSO and the structural breach of the HRA in its regulatory relationship with Subordinate regulator A, and in response, they failed to act. I subsequently complained directly to the head of this agency and was again ignored. However, I can complain to the PHSO if I think they have a case to answer for maladministration. In which case, the PHSO is going to exercise its ‘statutory duty’ to act as a ‘judge in its own cause’ and decide that [Subordinate regulator B] was perfectly reasonable in not acting against itself.
However, [Subordinate regulator B] is accredited by a global organisation that is thankfully outside of UK jurisdiction. Under the constitution of this organisation if the Chairperson is informed that the grounds for accreditation have changed then they can order their status to be reconsidered, so I have informed them of the situation described above. To be accepted into this organisation [Subordinate regulator B] must demonstrate the following.
Their status is upheld in law and practice, but the statements by their regulatory master the PHSO concerning their ‘statutory duty’ to act as a judge in its own cause contradicts this requirement. Furthermore, this arrangement is fully supported by [Government Department Y] which plans to put it into law.
[Subordinate regulator B] must be independent; however, its independence has been compromised by the relationship with its regulatory master the PHSO.
There must be adequate funding for it to function, this has been compromised by [Government Department Y] who has officially sanctioned the above arrangement, and considers that an independent arbiter would not be proportionate. In effect, the UK government does not consider it worth spending money on an independent arbiter to replace the PHSO so that it can be regulated by [Subordinate regulator A] without bias, fear, or favour in keeping with the ECHR.
Failure to comply with these requirements could lead to the accreditation of [Subordinate regulator B] being suspended or declined putting it on a par with some other countries I could mention.
The remedy to ensure ECHR compliance
The solution is simple, the PHSO must comply with the ruling by the European Court of Human Rights that my ‘individual’ right to a ‘fair hearing’ according to the ECHR must be met. This requires the government to remove a group of departments from Schedule 2 of the Parliamentary Commissioner Act 1967 via the Privy Council.
The PHSO has betrayed public trust and there are no guarantees that I will get a fair hearing nor can the Ombudsman be instructed by anyone. Therefore, given their conduct, the Ombudsman should be removed from office by due process via the Privy Council and another Ombudsman appointed who will uphold our rights and introduce a self-regulatory code of ethics.
The same should apply to the head of Subordinate regulators A and B.
An independent arbiter must be appointed to adjudicate on a small number of organisations that also regulate the PHSO. This is also necessary to comply with the Venice Principles and put the Ombudsman on a firm legal foundation to uphold and not abuse our rights as follows:
“2. The Ombudsman Institution, including its mandate, shall be based on a firm legal foundation, preferably at constitutional level, while its characteristics and functions may be further elaborated at the statutory level.”
Value for money
The failure of the PHSO and two regulators to comply with their brief breaches of ‘Managing Public Money’ instructions. Furthermore, the proposed Ombudsman reform of officially making it a ‘judge in its own cause’ is untenable and therefore this debacle does not represent value for money.
Parliamentary Inquiry
To comply with the requirements of ‘independence’ the PACAC should recuse itself and a Parliamentary Inquiry should take over to investigate this matter.
[1] “Institutional Gaslighting: When a group of respected people within an institution are posed as investigating on the victim’s behalf, but in actuality act to belittle or deny the reality of the harm committed in order to protect the institution’s reputation, the institution can cause the victim to question their own perceptions of reality, feelings, instincts, and even sanity. When an authority figure incites self-doubt in the victim, they are employing a tactic of emotional abuse referred to as “gaslighting, a term coined in reference to domestic abuse.” Perpetrators, whether they are individuals or institutions, use “gaslighting” to get what they want, typically “without ever taking responsibility for their actions or even their precipitating desires.” When an institution gaslights a victim in order to protect its own reputation, the institutional betrayal silences, invalidates, and harms recent survivors in their most vulnerable states.” The Urban Dictionary.
October 2023