Kirkham, R. and Stuhmcke, A. (2020) The common law theory and practice of the ombudsman/judiciary relationship. Common Law World Review, 49 (1). pp. 56-74. ISSN 1473-7795
Abstract
In both Australia and the United Kingdom, the ombudsman sector plays a specific role in the oversight of the administration of government, but there exists no clear overarching theoretical framework within which the institution is aligned with common law constitutionalism. An ombudsman’s functionality is secured by gaining legal authority from parliament and effective power through executive acquiescence, but simultaneously to function effectively it must maintain a degree of separation from the executive and parliament. This situation creates a regulatory gap which the courts fill by acting in a supervisory relationship over the ombudsman sector. In turn, this raises the danger that the legitimacy gained through judicial oversight results in a loss of flexibility and uniqueness in the ombudsman institution. Through an empirical study of the case law on the sector, this article confirms that the courts have shaped and legitimised the role of the ombudsman institution under the common law constitution. Yet this study also suggests that there is a risk that over-reliance upon the judiciary to perform a retrospective, reactive and intermittent control function can lead to an inappropriate imposition of judicial values on the ombudsman sector as well as the courts performing an unsuited regulatory role.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © 2020 The Authors. This is an author-produced version of a paper subsequently published in Common Law World Review. Uploaded in accordance with the publisher's self-archiving policy. Article available under the terms of the CC-BY-NC-ND licence (https://creativecommons.org/licenses/by-nc-nd/4.0/). |
Keywords: | ombudsman; common law theory; regulation; judicial review; accountability; courts; government |
Dates: |
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Institution: | The University of Sheffield |
Academic Units: | The University of Sheffield > Faculty of Social Sciences (Sheffield) > School of Law (Sheffield) |
Funding Information: | Funder Grant number Nuffield Foundation LAW/42770 |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 10 Mar 2020 08:58 |
Last Modified: | 06 May 2021 17:05 |
Status: | Published |
Publisher: | SAGE Publications |
Refereed: | Yes |
Identification Number: | 10.1177/1473779520904963 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:158237 |
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