Talk of reform and renewal of the public service ombudsman sector has a long history (eg see our work), but across the UK it would seem that we have at last reached a significant tipping point from which the British version could mature into a more rationalised and powerful agent of administrative justice.
26
March 2015 finally saw the publication of the Gordon
review
of public services ombudsmen, which was commissioned by the Cabinet
Office in response to the 2014 Public Administration Select
Committee (PASC)
inquiry into the same topic. On the same day, the Cabinet
Office launched a consultation
on proposals for merging several ombudsman schemes in England. This process
follows on from the ongoing Welsh
Assembly inquiry into renewing the powers of the Public
Services Ombudsman for Wales, a scheme usually considered the most modern in
the UK. In Northern Ireland, a Bill
to update the office’s powers has nearly been drafted and awaits an Assembly
slot. Scotland has arguably had its innovatory renewal moment in the Public Services
Reform (Scotland) Act 2010, although here too further reform is
being mooted.
This
blog outlines the key themes that cover these developments. Many of the reforms
being canvassed have widespread support, but significant unresolved
issues remain. We also note the key role played by both devolution and parliamentary
committees in pushing ombudsman reform up the agenda of governments.
Agreed
areas of reform
Integration
It
is now almost universally recognised that as public services are increasingly
delivered in an integrated fashion bridging previously understood
sector-specific boundaries, so the jurisdiction of ombudsman schemes must reflect
that trend (eg Kirkham
and Martin). In Northern Ireland and England, reforms to address
this challenge would entail merger of different ombudsman schemes. But the
Welsh proposal goes further in exploring the potential for an incremental
expansion into the private sector, through granting the Ombudsman a limited
power to receive complaints about private health service providers, even where
public money is not involved. This latter development raises multiple issues,
but may be a harbinger of the future for the ‘public’ services ombudsman model.
Improved
access
The
time to bury the MP and MLA filters for the Parliamentary and Northern
Ireland Ombudsman schemes has surely come. Even the House of Commons seems to agree:
The continuing prohibition of direct access for all complaints is the
denial of equal access to administrative justice and is an anachronism which is
at odds with the expectations of today’s citizens. This defies all logic. It
disempowers citizens, obstructs access to their rights, and deters people from
making complaints. (para 55).
More
importantly, there is recognition in all three reform initiatives of the need to
informalise further the process for submitting complaints, to allow the
ombudsman more flexibility and to take advantage of internet technology.
Likewise, the proposals aspire to enhance the clarity of the complaints options
available to the complainant by rationalising the complaints map and better
advertising the central role of the ombudsman within the administrative justice
system.
Enhanced
powers
To
use the Parliamentary
Ombudsman’s words, in the English proposals the
emphasis has been placed upon introducing ‘a range of investigative tools and
triggers’ rather than specifically own-initiative powers. Does this mean that
the Cabinet Office remains nervous about own-initiative powers or does it imply
that the aim is to encourage ombudsman intervention from a number of
directions, including the referral of complaints and administrative concerns by
public bodies to the ombudsman? Either way, the core argument that an effective
ombudsman needs to be capable of being more proactive appears finally to have
been won. In both Wales and Northern Ireland, attention has been focussed on appropriately
controlling the Ombudsman’s use of own-initiative powers.
A
promoter of good complaint-handling
The
major advance of the Public Services
Reform (Scotland) Act 2010 was to give the ombudsman the role
of promoting standards in public service complaint-handling. This idea has been
enthusiastically jumped upon in Wales and now it would seem a key part of the
English reform project, with various accompanying proposals for public bodies
to be made responsible for reporting the incidence and form of local
complaints. A niche quasi-regulatory role for the ombudsman is emerging.
Challenges
still to be addressed
Whilst
a consensus appears to be developing around some of the key reform proposals,
other issues still require resolution. In this respect it is noticeable that
the Cabinet Office’s Consultation paper does not seek views on some important
matters of principle, including points of constitutional significance, which
are included in the Gordon Review. Here we focus only on the implications for
the devolution settlement, but issues of the ombudsman’s relationship with the
courts and its governance and accountability arrangements will also need to be
worked through before the reform process is complete.
Dealing
with devolution
The
Consultation Paper does not clearly address how to cope with the Parliamentary
Ombudsman’s jurisdiction and its relationship to the asymmetric devolution
settlements. But the impression given in
the consultation is that the proposed unified service would handle all
complaints from England, plus reserved services. i.e. those not devolved
to Scotland, Wales and Northern Ireland.
There is
also some ambiguity about how Gordon deals with the issue. At one point he
outlines his understanding of the three national Ombudsmen’s views, which is to
have two separate schemes: one for England and one for the UK, with identical
but separate powers and accountability arrangements reflecting the
constitutional settlements. This seems to suggest four national Ombudsmen and
one UK or ‘federal’ scheme.
But
Gordon also presents statistics that complaints from Scotland, Wales and
Northern Ireland in 2012-13 constituted a very small proportion of the PHSO’s
workload, raising the question as to whether at this scale there is
justification for a discrete UK ombudsman scheme.
This is a thorny question. The previous attempt at
unifying the Ombudsmen in the public sector in England did not happen mainly
because it was felt inappropriate for a body dealing mostly with England also
to have responsibilities in the rest of the UK. A federal solution would be logical,
except we do not have a federation and the workload of a ‘federal’ ombudsman
would be quite small. As an alternative, we might rely on four different
ombudsmen to investigate reserved matters depending on the residence of the
complainant, but this solution could lead to inconsistency in resolution.
Given the flux in devolution policy after the
Scottish independence referendum and the likely changes in the parties’
composition in Parliament after the election, it is perhaps not surprising that
the issue is not raised in the consultation paper or that the Gordon report was
rather opaque in identifying a way forward. But this is a big issue that will
have to be addressed before any meaningful reform can be implemented.
Conclusion
The
degree of work that the Cabinet Office and select committees across the UK have
expended on considering the need for reform of the public services ombudsman
sector offers hope that the respective layers of government have finally
decided to give priority to rationalising and modernising the complaints branch
of the administrative justice system. The unfortunate regularity with which public
service providers have been found to have failed to learn from systemic
malpractice in recent years (eg see the March 2015 Kirkup
report into an NHS trust in Morecambe Bay), may partly
explain why governments are now looking for concrete solutions in the sector. As
this blog points out, however, it is not a done deal.
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