Absolute bar - Part I
This gives a general introduction to schedule 5 with an explanation of some difficulties of interpretation. It draws particular attention to difficulties of interpretation with paragraph 3 of schedule 5
Generally
Schedule 5 lists the matters which are specifically outside the jurisdiction of the Ombudsmen. There are, of course, other restrictions on jurisdiction, particularly in s26(6). The main items in schedule 5 are commencement of court proceedings; matters concerning the investigation and prevention of crime; specified contractual or other commercial transactions; personnel matters, and certain educational matters. Comments are made on most of the exclusions.
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The commencement or conduct of civil or criminal proceedings in any court of law
See examples
Court proceedings are excluded. But there is no prohibition of an investigation about whether, had there been no maladministration, court proceedings would have been needed. Moreover, there is nothing in the schedule to prevent an Ombudsman from considering maladministration alleged in relation to the commencement or conduct of proceedings by a council before an administrative tribunal. But s26(6) precludes an Ombudsman from acting as an alternative tribunal to decide the very issue which went to the tribunal.
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Action taken by or on behalf of any police authority in connection with the investigation or prevention of crime
See examples
Police authorities are within the scope of the Act. Their administrative actions are subject to investigation. But complaints against police officers themselves are subject to investigation by separate machinery and are excluded from jurisdiction.
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Contractual and commercial transactions
See examples
Paragraph 3(1) in the schedule now lists the contractual or commercial matters that are not subject to investigation. They are transactions relating to:
(a) the operation of public passenger transport;
(b) the carrying on of a dock or harbour undertaking;
(c) the provision of entertainment;
(d) the provision and operation of industrial establishments;
(e) the provision and operation of markets (but this is qualified by paragraph 4, under which transactions relating to licences for pitches in markets are in jurisdiction).
It must be assumed that any other contractual or commercial matters are subject to investigation. Paragraph 3(2) explicitly says transactions about land and moorings are in jurisdiction.
The amended Act no longer excludes complaints about the procurement of goods and services by authorities.
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Action taken in respect of appointments, removals, pay, discipline, superannuation or other personnel matters
See examples
This exclusion reflects the principle that the Ombudsmen are intended to deal only with relationships between government and the governed, and not with the action of local authorities as employers.
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Educational matters
See examples and Education matters in Part III.
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Date Updated: 29/06/10