176 General Principles of Constitutional and Administrative Law

no self-interested rights, only obligations which it owes to the people

who have agreed to put it into office. However, in the context of

local government the courts have created a fiduciary duty in a narrower

sense based on the private law analogy of the trust between a local

authority and just one section of the people, namely local ratepayers or

taxpayers. Moreover the fiduciary duty is highly instrumental requiring

that an authority must act efficiently on business lines in the interests

of minimising the burden on the local taxpayer thus contradicting

the notion of democratic choice between competing social values.

Until the Local Government Act 1918, the local franchise was

dependent upon traditional property qualifications so that conflict

between different interest groups was less apparent than is the case

today. After the First World War, however, the fiduciary duty in favour

of local taxpayers was separated from any duties that might be owed

to the electorate or the wider community (see Roberts v. Hopwood

(1925): duty to pay employees the going rate rather than a living wage).

The cases seems to interpret the fiduciary principle in different ways.

In one sense supported by dicta in Prescott V. Birmingham Corporation

(1955), the principle requires an authority to allocate resources in a

non-discriminatory way that does not favour one group of benefici-

aries at the expense of another, except for limited charitable pur-

poses. In that case the court refused to permit a local authority to

provide free transport for old people, a decision that had to be reversed

by statute. If correct, this principle subverts any redistributive policies

other than those clearly authorised by statute. Another version, was

applied by Lord Diplock in Bromley LBC v. GLC where the House

of Lords refused to permit the local authority to subsidise London

Transport by raising local rates. His Lordship appeared to take the

View that the fiduciary duty implies that special weight must be given

to local taxpayers’ interests in the sense that the authority must act

thriftily and must not impose a disproportionate burden on the

taxpayer. Giving preference to social purposes without any direct

return to the taxpayer therefore becomes problematic. A third version

was applied by Lord Wilberforce and Lord Scarman (with whom Lord

Brandon agreed) in Bromley. According to this version the fiduciary

principle, although having the same substantive content as Lord Dip-

lock’s version, is merely part of the context in which a local government

statute should be interpreted. Lord Diplock’s version would presum-

ably apply unless positively excluded by statutory language (of what

strength is not clear), whereas Lords Wilberforce and Scarman’s

principle would be used as one among several indicators without carry-

ing any particular priority.

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Local Government

However, the fiduciary principle has never been the sole rationale

for a judicial decision and is therefore not strictly binding as precedent.

Indeed in Pickwell v. Camden LBC (1983), Forbes J undermined the

fiduciary principle by interpreting it as meaning only that the interests

of local taxpayers should be taken into account along with other inter-

ests in exercising power, but that the priority to be given to such

interests is a matter for the authority. This reflects the separation of

powers principle that the courts are not equipped to second-guess

government. Ormerod LJ went further holding that the fiduciary duty

meant only that powers must be used for lawfully authorised purposes.

It may therefore be that the fiduciary duty as such is redundant since it

appears to do no work that cannot be done by general judicial review

doctrines such as those of relevance and reasonableness (Chapter 16).

8.7 The Local Ombudsman

There are three Local Commissioners for Administration, one for each

of England, Scotland and Wales. They are responsible for investigat-

ing complaints by citizens against local authorities (Local Govern-

ment Act 1974 Part II). The Swedish term ‘ombudsman’, meaning

investigator, is usually used to describe this kind of official of which

there are many examples including the Parliamentary Commissioner

who investigates central government and some NDPDs. A distinc-

tive feature of the ombudsman institution compared with courts or

tribunals such as the Commission for Standards is that an ombudsman

usually has no enforcement powers but merely reports to the body to

which it is responsible although it can publicise its report. This is said

to make the ombudsman more effective as an informal investigator.

The local commissioners’ powers are limited to allegations of

‘maladministration’. Broadly speaking, maladministration concerns

the manner in which a decision is taken as opposed to the merits of the

decision itself so that the ombudsman cannot interfere merely because

she thinks a particular decision is wrong or undesirable (R. v. Local

Commissioner ex parte Bradford City Council (1979)). Maladministra-

tion for example includes ‘bias, neglect, inattention, delay, incompe-

tence, inaptitude, perversity, turpitude, arbitrariness and so-on’ (the

‘Crossman Catalogue’ (734 HC Deb. Col. 51 (1966)). The concept of

maladministration is therefore vague and open ended. It also may

overlap with legal wrongs although this does not require the ombuds-

man to apply the same criteria (R. v. Local Commissioner ex parte

Liverpool City Council (2001)).