In a pleasant Christmas
present for ombudsman watchers, the Cabinet Office has published a response
to its summer consultation
on proposals to reform and harmonise public service ombudsman provision in
(primarily) England. Although the response does not attempt any detail on the forthcoming
Bill that it plans to submit sometime midway through 2016, it does confirm that
the proposals remain on track and provides some clues as to the likely
framework of the reformed office. This post offers this ombudsman watcher’s first
reflections on the Cabinet Office’s plans.
Qualified
good news
The proposals to reform
the public ombudsman sector have already had an extended gestation period (see
the Gordon
Report that preceded the consultation). But an
administrative justice measure as important as this, particularly one that
requires legislation, only rarely gets to the top of the public
policy making pile. So credit to the Cabinet Office for its
current focussed effort, which contrasts with the reluctance to tackle the
issue for much of the previous twenty years and more.
As is evident from the
consultation responses received by the Government, there are tricky issues to
work through. Hence this reform should not be rushed, as it will probably be a
long time before another legislative slot will be made available to correct any
errors made this time around. However, the early signs are that the
Government’s apparent initial receptiveness to radical ideas have been watered
down by a pragmatic drive to put in place a more coherent and cost effective
model for a modern ombudsman scheme.
One
innovatory measure
Albeit in rather
non-specific language, the Response
gives the green light for the new Public Service Ombudsman (the PSO) ‘to
monitor and champion improvements in complaints handling’. This is one area
where the aspirations of the Government and advocates of enhanced
administrative justice should be most closely aligned. As became clear in the
Government’s response to the 2013-14
Public Administration Select Committee’s hearings into
complaints, a culture of inadequate public service complaint-handling is widely
perceived to exist and to be one of the barriers towards improvement in the
delivery of services. But what we do not know from the Response is whether the Government is willing to invest in a model
equivalent to the Scottish
Complaints Standards Authority (including extra
statutory powers), or whether it is content to leave it to the PSO to issue
guidance on good complaint-handling as is currently the case.
One thing the Cabinet
Office has committed to is creating a statutory duty for public service
providers to signpost complainants towards the PSO, a long overdue measure even
if it is already long established practice.
A
commitment to the international ombudsman model
Just as the EU
Directive on Alternative Dispute Resolution has committed the
Government to enshrine in law standard understandings of what independent ADR
entails, the Response offers
assurance to the ombudsman sector that it accepts the criteria that underpin
the sector’s claim to authority – namely: independence, fairness,
effectiveness, transparency and openness, and accountability. These are
principles that the Cabinet Office claims will inform the design of the PSO,
with the similarity with the membership
criteria of
the Ombudsman Association a deliberate choice.
But the detail of the
scheme could still be controversial, particularly given that there is no
mention in the Response as to how the
new PSO will be funded or of the standards that it will have to meet. Might,
for instance, the principles of the EU ADR Directive be mirrored in the new
Bill?
Improved
accountability … but with traps
The risk with any reform
is that well intentioned measures can lead to worse outcomes. The Response is clear that it ‘will create a
modern governance structure for the organisation’, presumably in order to
retain high standards and best promote quality decision-making. This must be
right. The governance arrangements of ombudsman schemes, as with other public
(and private) bodies, have come under scrutiny in recent years. While on paper
all ombudsman schemes can be subject to significant external scrutiny, the rate
at which such scrutiny has been exercised in the past has often been sporadic
and low impact, except when things have gone wrong. But as the ombudsman sector
becomes ever more the mainstream form of dispute resolution in many sectors, the
onus on it to accept the burden of doing more to demonstrate the integrity of
its product will surely increase.
The Response offers two solutions. One is to explore with Parliament
the potential for enhancing its oversight of the PSO, as compared with the
present arrangements. ‘This includes the possibility of a statutory body
comprised of Parliamentarians to oversee PSO’s budget, strategy and
performance.’ For this form of scrutiny there are models available from public
service audit schemes and in the devolved countries. This solution looks
attractive, but has two major drawbacks. First, it assumes that Parliament will
be willing to commit the necessary resources to the task, a consistent focus
that has rarely been present in the past. Second, by making a Parliamentary
select committee more evidently responsible for calling the ombudsman to
account, there is a risk that the traditionally supportive relationship that
the PHSO has enjoyed with its parent select committee would be broken. This
matters because although the work of the new PSO should be scrutinised, it
needs to be confident that Parliament will back it up in its occasional battles
with the Government.
Altering the structure of
the PSO’s relationship with Parliament might not be necessary though, if the
Government gets its second good governance measure right. Following increasing
best practice in the public sector (see also the consultation on the Independent
Police Complaints Commission), it intends to
establish ‘a statutory Chair and Board. The board will have corporate
responsibility for the operation of the PSO and will also be responsible for
ensuring the quality of the service it provides.’
This model already exists
for private sector ombudsman schemes but is not uncontroversial. Who will select
the members of the Board? Are some appointments to be prescribed stakeholder
appointments? Is the Chair really to be a statutory appointment? Is the Chair
an additional post to the statutory ombudsman? Who will appoint, and sack, the
Ombudsman?
This latter point is
perhaps the most important, as the classic standard of the international
ombudsman community is that the ombudsman should be accountable for the
performance of the office but should only be removed on a few narrow grounds.
Any other situation creates the space for subtle political interference with
the running of the office. Given the sometimes difficult issues of public
administration that the PSO will have to deal with, this is a real concern.
Issues
left for the PSO to resolve
The Report has decided, wisely in the view of this author, to leave a
number of issues firmly in the discretion of the new PSO. The PSO will come
with a statutory title, but how it brands itself in the future it has left for
the new scheme to decide. The PSO will also have a prescribed jurisdiction, but
will retain the discretion to organise its own office as needs require and
change over time.
One issue that the
Cabinet Office appears to have ducked is the devolution dilemma, which was one
of the key reasons why previous efforts at harmonising ombudsman schemes
failed.
‘[T]he new PSO will cover UK reserved
matters as well as those public services delivered solely in England. As such
it will mirror the accountability of UK reserved matters to the Westminster
Parliament, relinquishing jurisdiction over those if and when they transfer to
the devolved administrations.’
How the PSO deals with
this hospital pass will be one of its first major challenges and the reaction
of the devolved nations will be interesting. The new office will be
predominantly an English Ombudsman – but will still be responsible for dealing
with a small number of complaints from non-English constituents about reserved
matters. At the very least, this double role should encourage the PSO not to
include ‘England’ as part of its new brand name.
Another issue not dealt
with for now is the outdated MP filter. As the new office will receive numerous
complaints about health, local government and social care for which direct
access to the ombudsman is currently made available, any retention of the
filter would require Parliament to come up with a confusing statutory formulae
for explaining when and when not the filter applied. Presumably, the Cabinet
Office are politely leaving it to Parliamentarians to figure this out for
themselves.
The
radical vision is kicked into touch
Two significant
possibilities for reform are more or less ruled out by the Response.
‘[W]e will … work to create a single
service which will encompass the existing jurisdictions of PHSO and LGO only in
the first instance with a framework that allows others to join over time.’
One radical option was to
move firmly towards a single public services ombudsman, one that might enjoy
significant advantages in terms of scale. With scale might come an enhanced
opportunity to connect with the public and the capacity to set up regional
branches that could more easily interact with local branches of public service
provision, as indeed is advocated in the consultation for the IPCC
reforms.
But any such grand vision
is absent, with the initial plan to include the Housing Ombudsman in the new
scheme firmly ruled out in the Response.
What we have instead is effectively a merger of two offices, possibly a
centrally located one, although one would hope with only a small base in
London. This merger will succeed in addressing the most problematic areas of
existing overlapping responsibilities – namely health and social care. But with
the Government’s
implementation of the EU Directive on ADR also
supportive of the multiple ombudsman model, it would seem that for the next
generation at least the goal of simplifying the sector has lost out in favour
of specialisation.
The second radical option
was for the ombudsman to be encouraged to become more of a preventive mechanism
than a reactive complaint-handler. But the Response
firmly rules out providing the PSO with an own-initiative power of
investigation because ‘there is a risk that the introduction of such powers
could detract from PSO’s role in putting things right for the individual
citizen’ and create ‘further confusion in an already complex landscape’ of
regulators. Such risks do not seem to have prevented the Northern
Ireland and Welsh
Assemblies from pushing ahead with the proposal to give devolved
ombudsman schemes enhanced powers, or led to equivalent powers being removed from
ombudsman schemes in much of the rest of the world. It is also out of line with
the Home
Office’s moves to expand the investigatory capacity of the
IPCC.
Instead, the Response claims that the PSO will have
wide powers ‘to carry out its work effectively and efficiently’ but what it
proposes is in the main the confirmation of best practice that is already available
in one or both of the schemes to be merged.
Conclusion
The work of the Cabinet
Office on establishing a new PSO is a good thing, it is a sensible reform that
should have been introduced years ago. But the proposals the Cabinet Office are
putting together could have been much better. And perhaps they still will be,
the December paper is only a response to a consultation after all. Perhaps the
Bill will mirror in detail the proposed amendments for the Public Service
Ombudsman for Wales and the new legislation in Northern Ireland in copying the
Complaints Standards Authority model in Scotland. Surely the MP filter is now
untenable and perhaps the new governance arrangements the Response refers to will be embedded in a way that does not threaten
the independence of the ombudsman. Perhaps too it is not too late to find a
formulae that separates out complaints from non-English constituents from a
jurisdiction which is otherwise an English ombudsman scheme in all but name.
Overall, however, this looks
like a pragmatic merger of two/three ombudsman schemes with a bit of
modernisation thrown in, rather than a bold attempt to reinvigorate the
ombudsman model.
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