This brings me to the substantial point in this case. Has there been a sufficient claim of maladministration such as to justify investigation by the commissioner? The governing words of each statute are the same. There must be a written complaint made by or on behalf of a member of the public ‘who claims to have suffered injustice in consequence of maladministration.’

But Parliament did not define ‘maladministration.’ It deliberately left it to the ombudsman himself to interpret the word as best he could: and to do it by building up a body of case law on the subject. Now the Parliamentary ombudsman, Sir Edward Compton, has acknowledged openly that he himself gained assistance by looking at the debates in Parliament on the subject. He looked at Hansard and, in particular, at a list of instances of maladministration given by Mr. Crossman, the Lord President of the Council. It is called the ‘Crossman Catalogue’: and is used by the ombudsman and his advisers as a guide to the interpretation of the word. Now the question at once arises: Are we the judges to look at Hansard when we have the self-same task? When we have ourselves to interpret the word ‘maladministration.’ The construction of that word is beyond doubt a question of law. According to the recent pronouncement of the House of Lords in Davis v Johnson [1978] 2 WLR 553, we ought to regard Hansard as a closed book to which we as judges must not refer at all, not even as an aid to the construction of statutes.

By good fortune, however, we have been given a way of overcoming that obstacle. For the ombudsman himself in a public address to the Society of Public Teachers of Law quoted the relevant passages of Hansard (734 HC Deb, col. 51 (October 18, 1966)) as part of his address: and Professor Wade has quoted the very words in his latest book on Administrative Law, 4th edn (1977), p82 and we have not yet been told that we may not look at the writings of the teachers of law. Lord Simonds was as strict upon these matters as any judge ever has been but he confessed his indebtedness to their writings, even very recent ones: see Jacobs v London County Council [1950] AC 361, 374. So have other great judges. I hope therefore that our teachers will go on quoting Hansard so that a judge may in this way have the same help as others have in interpreting a statute.

So this is the guide suggested to the meaning of the word ‘maladministration.’ It will cover ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on.’ It ’would be a long and interesting list,’ clearly open-ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself. It follows that ‘discretionary decision, properly exercised, which the complainant dislikes but cannot fault the manner in which it was taken, is excluded’: see Hansard, 734 HC Deb, col 51.

In other words, if there is no maladministration, the ombudsman may not question any decision taken by the authorities. He must not go into the merits of it or intimate any view as to whether it was right or wrong. This is explicitly declared in section 34 (3) of the Act of 1974. He can inquire whether there was maladministration or not. If he finds none, he must go no further. If he finds it, he can go on and inquire whether any person has suffered injustice thereby.