The Government’s plans for consumer ADR: Innovation or more of the same

The following blog first appeared on the website of the UK Administrative Justice Institute on 26 November, 2014.


The Department for Business, Innovation and Skills (BIS) has issued its response on its consultation on proposals for upgrading the provision of alternative dispute resolution for consumers. The proposals were triggered by the EU Consumer ADR Directive, but at the same time map conveniently onto the Government's current civil justice agenda of moving dispute resolution away from the courtroom. It is the parallels of this agenda with developments in the administrative justice system (AJS) which are the focus of this blog.

Lessons in watchdog design from Scotland and Wales

This blog was originally posted on the website of the IWA on 11 October 2014.

Richard Kirkham compares the role of commissioners in Scotland and Wales. 

 

How much autonomy does a watchdog require in order to perform its function effectively? One product of the space created for fresh thinking by devolution has been the evolution of two distinct models with which to answer this question, both of which offer greater clarity than to be found in the old British constitution model.

Famously, James Madison stated that for a liberal society to flourish auxiliary precautions were needed to cover for the risks of democracy. His solution to this dilemma is one that still dominates: namely the separation of powers between the executive, the courts and the legislature. But over 200 years later, many constitutional orders around the world have taken this basic understanding and refined it considerably. The tripartite core still provides the dominating foundation, but a range of specialist institutions have been introduced to add a layer of objective scrutiny to the system. Constitutional watchdogs such as the auditor-general, ombudsman, electoral commissions, and the standards and information commissioners are now ever present and gaining sufficient longevity to suggest permanence. For most, a role and function exists that has risen above politics.

Such arguments are widely understood, but the Westminster settlement has resisted formalising the status of watchdogs. By contrast, in newer constitutions watchdogs are written into the constitution itself whilst in parliamentary democracies such as Australia and New Zealand, solutions have been devised to reflect the reliance placed upon watchdogs. It is in this respect that devolution in the UK provides an interesting insight into the future.

The creation of an English Public Services Ombudsman: mapping a way forward

This blog originally appeared on the website of Democratic Audit on  20 June 2014 and was written in partnership with Jane Martin.

 
Strong democracies should be backed up by robust accountability frameworks, an aspect of which includes redress mechanisms. In a new report published by Democratic Audit, Richard Kirkham and Jane Martin, the Local Government Ombudsman, explores the current debates surrounding the proposal to integrate the ombudsman community in England. In this extract from the report they consider why the consensus in support of this proposal has not yet produced agreement on the way forward.
 
Read our new report into the creation of a single Public Services Ombudsman for England

It is now widely understood that the austerity drive of the Coalition Government has triggered a distinctive shift in the model of public service provision in England. A significant aspect of this shift is the hastening of a drift towards consumer democracy which, amongst other impacts, has forced the ombudsman world to reconsider the strength of the redress service that it provides. This reflective process has led to the reappearance of the long-standing proposal to harmonise existing ombudsman schemes into an integrated Public Services Ombudsman (PSO) for England.

At its strongest, the proposal to form an English PSO entails the harmonisation of multiple schemes, plus the reconsideration of the office’s powers. Given the potential scale of the project and its need for new legislation, the formation of an English PSO should be considered a major exercise in reform. By contrast, minimalist approaches to ombudsman reform reduce the chances of meaningful reform being implemented and run the risk of the ombudsman system being restructured in a manner insufficiently robust or flexible enough to meet the challenges of the future.

But major reforms require a high degree of political will to secure implementation and are hampered by the lack of a clear process in the administrative justice system as to how such projects should be conducted. In response to this dilemma this paper highlights both the reasons why major reform in the ombudsman sector is necessary, and the different perspectives on administrative justice that should be accounted for within that reform process. As well as outlining the key features that should be included in a 21st century ombudsman scheme, we conclude the paper by drawing together some principles which should inform the creation of an integrated ombudsman scheme. So long as sufficient political capital in the project can be secured, combined these principles have the potential to align the capacity of the ombudsman system with the public service model that has evolved in modern England and in so doing allow it to contribute fully to the promotion of administrative justice.

Another False Dawn or the Moment ADR Becomes Mainstream

This blog was originally posted on the website of the UK Constitutional Law Association on 7 May 2014

The ombudsman enterprise in the UK is in a state of flux. The last two years have witnessed a series of events that could revolutionise the architecture and impact of the sector. Alternatively, in a year or so time we could be talking about another missed opportunity in ombudsman reform.

 

The big events that have briefly brought complaints systems to the fore of public policy include the widely reported outrage at the Mid-Staffordshire NHS Foundation Trust, which the 2013 Francis report found occurred in part because of a culture in the NHS of failing to take complaints seriously. Picking up on this theme, the Clwyd/Hart Report into NHS complaint-handling followed by the Public Administration Select Committee’s (PASC) twin inquiries into complaints and Parliament’s Ombudsman Service, critiqued the complaints branch of the administrative justice system, highlighting concerns about the poor service received by the user and insufficient learning from complaints. Meanwhile, the EU Directive on Alternative Dispute Resolution was passed in 2013 and is currently being consulted on by the Department of Business, Innovation and Skills. This Directive looks set to overhaul complaint-handling in the private sector by requiring the Government to ensure that an ADR scheme is available in all contractual disputes between a consumer and a business (although neither consumer nor business will be obliged to use the service).

This blog will not explore in detail any of these developments, but will highlight the current potential for the ombudsman/ADR sector to be redesigned to enhance its impact in the justice system and the constitution.