Boris Johnson and the politics of accountability

On the weekend of 15-17 September 2017 Boris Johnson, the UK's Foreign Secretary, became embroiled in a spat with the Chair of the UK Statistics Authority, Sir David Norgrove. The spat is the latest illustration of an ongoing fault-line at the heart of the UK Constitution about the nature of its checks and balances. Perhaps the part of the fault-line most frequently highlighted is disagreement as to the judiciary's proper remit, as for instance in the response in some quarters to the Administrative Court's ruling in Miller. As the 'Johnson affair' highlights, however, the fault-line has numerous other branches. This post examines the relevance of the claims and counter-claims deployed in the 'Johnson affair'.

The Johnson affair

On 15 September 2017, Boris Johnson, Foreign Secretary, wrote an article in the Daily Telegraph in which he stated that "once we have settled our accounts, we will take back control of roughly £350 million per week". Two days later, the Chair of the UK Statistics Authority sent a letter to Mr Johnson describing the use of this figure as "a clear misuse of official statistics". Mr Johnson responded with a letter to the Chair, accusing him of misrepresenting what he said and demanding a retraction.

On one level the affair may be viewed as of little consequence other than impinging on the reputations of two public figures, and creating short-term heat in political and media discourse. But the affair also illustrates two very different visions of constitutional accountability which have been exposed by Brexit.

At one of the spectrum, there are those that advocate the superiority of directly democratic routes to accountability, almost to the exclusion of other methods. According to this approach, free speech and political discourse are defended as the only fully legitimate sources of accountability. A free media, free and fair elections, and democratic chambers are accepted as constitutionally protected fora within which political battle is held. A limited model of the rule of law and the doctrine of ministerial responsibility are also accepted as necessary concessions to the need to prevent abuse of power, but otherwise strong government is legitimated by the transparency of the periodic electoral process and the powerful role of the opposition. By this approach, the role of other accountability institutions are either objected to or heavily circumscribed. In the Johnson affair, therefore, the work of the Authority has been critiqued, and the Chair's intervention taken as an example of an inappropriate intervention by an unelected institution into a highly political matter.

At the other end of the spectrum, accountability in the modern state is seen as a much more complex animal. For instance, James Madison in the Federalist papers (1788) once said:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Madison's is a thesis warning of the dangers of unchecked executive power. Part of his solution was the distribution of political powers across different layers of government (what we would refer to as devolution), but public lawyers also spend much of their time debating what his form of reasoning means for the role of the judiciary. The range of auxiliary precautions that might be put in place, however, goes well beyond the judicial - as the 'Johnson affair' highlights. When these auxiliary precautions are ignored or resisted by politicians then there is a risk that the constitution's political and administrative culture of good governance is undermined.    

The UK Statistics Authority as an example of unelected accountability

The UK Statistics Authority was established under the Statistics and Registration Service Act 2007. According to its own website, the "authority is an independent statutory body. It operates at arm’s length from government as a non-ministerial department and reports directly to the UK Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly." The Authority is, therefore, a classic example of an unelected accountability institution, with a basic rationale to secure trust in government. 

The Authority is part of an extended network of unelected accountability in the UK. Take for instance the role of audit. A bespoke public official has been charged with auditing government expenditure since at least 1314, a role today enshrined in the National Audit Act 1983 and the independent offices of the Comptroller and Auditor General and the National Audit Office. Without the input of the AG and the NAO, the Government's version of its accounts on income and expenditure would go under-scrutinised. Plausibly a combination of free speech, Parliamentary debate and the role of the political opposition would prevent the Government from presenting inaccurate accounts, but this raw version of monetary accountability has long since been rejected. Reasons for this rejection include:

• the powerful Machiavellian incentives for Governments to massage financial information for electoral gain;    
• the lack of resources within Parliament to perform the function of scrutinising highly technical matters such as financial accounting;
• the inefficiency and impracticability of dedicating Parliamentary resources to investigating financial trails of accountability;
• the benefits to all sides of neutralising a potential area of permanent political discord;
• the benefits in terms of good decision-making of being able to rely on objectively agreed financial information;
• the enhanced public trust that follows from the objective confirmation of financial information.

Many, if not all, of these reasons attach to the role of the UK Statistics Authority.

When is institutional independence necessary?

A key feature of institutional accountability is the perceived capacity of autonomous institutions to safeguard the conditions of trust which are necessary to enable the ordinary political process to operate effectively. There may be something special about financial audit that justifies it being removed from the realms of political accountability, but the technique of taking the political out of the direct control of decision-making is a common feature of the modern state. Which raises the question of when this form of institutional design is necessary?

A controversial example is monetary policy. Under the Bank of England Act 1998 an independent body, the Bank’s Monetary Policy Committee, sets the Bank's interest rates with significant ramifications for the country's economic policies. In the performance of this duty, however, the Committee works towards Government set targets and, as well as being publicly accountable for its decision-making, the Bank has to write a letter to the Chancellor should those targets not be met.

With the Bank of England's current remit, many of the same rationales for independence apply as for other unelected institutions, although here the concern is less with the need for accountability and more with a distrust of the Government's capacity to undertake long-term decision-making when the temptation is to play to short-term electoral advantage.

Tellingly, there is less agreement as to the advantages of placing monetary policy outside the direct influence of politicians than there is for the role of audit, as several Brexit-related attacks on the input of the Governor of the Bank of England highlighted. But precisely because the Bank of England example is controversial, it highlights three importance aspects of the role of unelected accountability:  

1. For various reasons, unelected accountability is often created by Parliament - namely the directly elected branch of the constitution. This design legitimises the unelected branch, but also entails that Parliament can alter (or remove) the remit of unelected accountability institutions at any time.
2. Unelected accountability is itself accountable for its input and performance.
3. Due to the nature of this ongoing scrutiny, there is no such thing as full independence, as an unelected accountability institution will always experience a range of soft and discrete pressures (eg budget cuts, threats of reappointment) to alter its practices in line with Executive policies.

In short, the answer to the question of when unelected accountability is necessary is itself a deeply political question over which the Parliament has ultimate control.

The Johnson affair and the politics of accountability

The 'Johnson affair' illustrates the contours long which debates about the extent and design of the unelected accountability sector are fought. 

Along much the same logic as other unelected institutions, the UK Statistics Authority was established with "a statutory objective of promoting and safeguarding the production and publication of official statistics that ‘serve the public good’." Its very existence serves to undermine the claims of those that believe that the UK Constitution is best understood as very raw form of political constitution, in which only political debate matters. 

But does the 'Johnson affair' provide sustenance to the argument that unelected accountability undermines democracy and that the role of unelected accountability should be reduced?

There are several standard arguments used to critique unelected accountability. 

Unelected institutions are undemocratic

The first is simply that unelected institutions are undemocratic, in that they remove power illegitimately from the democratic branch. Such an argument is hard to sustain, however, in circumstances where it is the choice of the elected branch itself to establish an unelected institution, as is the case with the UK Statistics Authority. Such arguments become weaker still where unelected institutions have not been subsequently abolished by later Parliaments who might not have the same political incentives to support their operation. Here it is telling that new Governments have often been known to start office with a fanfare intention of creating a 'bonfire of quangos' but later to backtrack when they realise the benefits of such institutions, and the bad look it creates to be reducing opportunities for accountability or individual justice.

Unelected institutions get involved in political matters

A further objection against unelected institutions is that they may have a role to play in dealing with narrow 'technical' matters, but they are inappropriate for dealing with 'political' issues. The difficulty with maintaining such a distinction is illustrated by the work of the Authority.  

Although the 2007 Act does not clearly describe the situation which occurred in the 'Johnson affair', it does provide plenty of scope for the Authority acting in the way it did. The Authority has as an objective the oversight of the production and use of Government statistics. Under s.6, statistics are defined as including "statistics produced by a government department ... or ... any other person acting on behalf of the crown" (s.6(a)). Nothing here suggests that there are certain circumstances, which we might label 'political', when the Authority should not intervene. Indeed, two possibilities follow form the Act which justify the Authority's intervention in the 'Johnson affair':

• It is arguable that in writing the article Mr Johnson was purporting to refer to the Government's official statistics on the UK's contributions to the EU. Indeed, given the long history of the £350 million claim and its misrepresentation of 'gross and net contributions' of the UK Government to the EU, it is barely sustainable to argue that Mr Johnson was not trying to use officially sourced figures in this instance.  
• In producing figures in the article Mr Johnson was writing as a member of the Cabinet and was hence covered by the Act, notwithstanding that he did not appear to be speaking for the Government in writing the piece. Whilst the convention on collective responsibility can be strained, there seems no good reason to suppose that a senior figure such as the Foreign Secretary should be able to step outside of their ministerial duties to reproduce inaccurate data.

Unelected institutions tend to overreach their powers? 

The fear of the unelected over time stretching their powers beyond that lawfully mandated to block the legitimate exercise of executive power is a familiar refrain of those that argue for elected accountability only. Did the Authority in the Johnson affair exhibit such a tendency? 

Under s.10 of the 2007 Act, the Authority is under a duty to produce a Code of Practice for Statistics. In turn, the Code of Practice and its stipulations are referred to as relevant to Ministers at para. 8.15 of the Ministerial Code.

The current version of the Code reproduces an extract from the seven principles of public life, as once voted upon by Parliament and which remain a component of the Ministerial Code. The Code of Practice for Statistics states:

In relation to statistical work, these [principles] are interpreted as follows.
• Integrity – putting the public interest above organisational, political or personal interests.
• Honesty – being truthful and open about the statistics and their interpretation.
• Objectivity – using scientific methods to collect statistics and basing statistical advice on rigorous analysis of the evidence.
• Impartiality – acting solely according to the merits of the statistical evidence, serving equally well all aspects of the public interest.

A later section of the Code states the duties of public bodies in relation to statistics as including:

Ensure that government statements issued alongside official statistics, and referring to, or based upon, them: ... (c.) meet basic professional standards (for example, statistics should be cited accurately, ...) (para.9)

The Code of Practice, therefore, outlines a number of grounds upon which the Authority could conclude that Mr Johnson had inaccurately used the £350 million claim, notwithstanding the fact that the way in which he used the information was undoubtedly political. There is no solid ground to find this an illegitimate instance of overreach.

Unelected institutions should err on the side of caution 

Given the broad and uncertain nature of the issues that they are charged to deal with, unelected institutions tend to be given very broad discretionary powers. An argument may be raised that in response, bodies such as the Authority should err on the side of caution to avoid being dragged into the political domain.

There is no specific power covering the scenario in the 'Johnson affair', but under s.26 of the 2007 Act the Authority's "Board may do anything which it thinks necessary or expedient for the purpose of, or in connection with, the exercise of its functions." Further, s.8 states that 

(1) The Board is to monitor the production and publication of official statistics.
(2) The Board may report any concerns it has about—
(a) the quality of any official statistics,
(b) good practice in relation to any official statistics, or
(c) the comprehensiveness of any official statistics, to the person responsible for those statistics.
(3 ) The Board may publish its findings or any report under this section.

There is plenty of scope, therefore, for interpreting that it is within the Authority's legal competence to intervene in instances where official statistics are used in a manner it deems inappropriate. How it should be exercised is one about which there will inevitably be disagreement. With considerable sophistry, Johnson (and his supporters) later argued that his words should have been interpreted more generously. This is arguable, but the stance of the Authority on the issue was not new, as the previous Chair of the Authority had in May 2016 written a letter outlining his unease with Vote Leave's use of the £350 million claim. It would have been inconsistent, therefore, not to have commented on this occasion.

Unelected institutions fail when they decide matters inconsistently (and can be biased)

A linked argument against unelected institutions is that they offer an inconsistent form of decision-making which undermines their very claim to objectivity. Worse still, their appointment process and past allegiance can expose them to criticisms of bias.

In the 'Johnson affair' it has been suggested that the Authority has been selective in its intervention - in other words, by intervening in this instance the Authority opens itself up to future criticism every time that it chooses not to intervene when a slightly dubious claim of official statistics is made.   

This must be conceded as a risk, but any such accusation is only as strong as the evidence that supports it. In this instance, the website of the Authority is full of examples where the Authority has offered an opinion in a manner and form not too dissimilar than in the 'Johnson affair'. A full analysis of the website might reveal an anomaly in the 'Johnson affair', but even that would need to be weighed against the fact that the Authority had already pronounced its view on the £350 million claim and the seniority of the Member of government involved.

Unelected institutions are ineffective

A general brick thrown at unelected institutions are that they are ineffective. For instance, it may be that Mr Johnson preserves his position as Foreign Secretary even though the Authority concluded that he had misled the public. To conclude that the Authority has therefore had no effect, however, is to misunderstand the nature of the impact of unelected institutions. Evaluation in this area is notoriously difficult, but the influence of bodies such as the UK Statistics Authority is often more subtle than the win/lose outcomes of the courtroom. For instance, a tangible result of the Authority's intervention in the 'Johnson affair' is that the problematic of the £350 million claim has once again been highlighted, and both Johnson and his supporters have in their responses been required to highlight the  nuanced (some would say tortuously so) way in which any claim of such money has to be made if the statistical facts are to be adhered to. A further claim, albeit immeasurable, in favour of the Authority is that such interventions discourage the inaccurate use of government statistics by members of the government. 

Conclusions

The 'Johnson affair' may have only had political relevance for one weekend, but it is much more typical of the day-day activity of the UK Constitution than is often realised. The arguments about the role of the UK Statistics Authority are also ones that are becoming increasingly familiar in British political debate.  In this period of political and constitutional turbulence, we can anticipate more barbed attacks on the constitutional architecture, but should also embrace the legitimate challenges that they raise for defenders of the 'checks and balances' model of the constitution.  

Whether the activity of unelected accountability institutions is effective or not; or whether they are a good use of public money; or whether they perform a role better left to the raw political discourse of the Parliamentary chamber, the press and social media - are all questions that should be regularly asked. In a robust Parliamentary constitution they are also ones that should be resolved through standard accountability channels, in particular through the oversight of Parliamentary select committees. 

An introduction to the political constitution

This post introduces the concept of the political constitution in the UK context and references some of the key material for more detailed reading.

Some implications of Brexit for the Constitution

Brexit is a landmark, and dramatic, event in British constitutional history. Countless words have already been penned on the subject, but much more will follow over the weeks, months and years to come because whatever happens next the long term impact of the 2016 referendum is profound for our understandings of how the UK Constitution operates. Without touching too much on the merits of Brexit, this post introduces some of the key constitutional issues that have been thrown up in light of Brexit, using hyperlinks to direct students to some of the leading contributions over the Summer of 2016.

Current UK debates on the role of the public services ombudsman

This following teaching post provides an outline of the current state of debate on the ombudsman. The links lead you to relevant primary sources and other blogs and relevant academic papers on the ombudsman.

The position of the ombudsman in the constitution is wrapped up in (i) a larger philosophical debate about the role of accountability institutions in a 'political constitution' (a debate that Brexit adds impetus to) and (ii) a more niche debate about the optimum design of administrative justice. This post concentrates on the latter debate but begins with a few words on the former.

The Ombudsman and the constitution

In Australia, a stream of thought has developed that certain accountability institutions (or watchdogs) should be viewed as quasi-permanent features of the constitutional order. Such institutions might include bodies such as auditors, electoral commissions, monitors of fraud and the ombudsman. Some have argued that such bodies should be viewed as forming a particular branch of the constitution - sometimes labelled the 'Integrity Branch'. [For further discussion see Spigleman, J. ‘The Integrity branch of government’ Australian Law Journal, Vol. 78, No. 11, p. 724, 2004; Field, C. ‘The Integrity branch of government’ Lecture to La Trobe University.]

This idealised account of the positioning of the ombudsman is not universally accepted, see C. Gill, ‘The evolving role of the ombudsman: a conceptual and constitutional analysis of the "Scottish solution" to administrative justice’. Public Law (2014) 662-681. An alternative approach, and one that better reflects the highly flexible nature of the UK's 'political constitution', is one that views the role of the ombudsman as part of ongoing disagreement as to the optimum institutional design of the constitution. [For further discussion see J. Olsen, ‘Democratic Order, Autonomy, and Accountability’ Governance, vol.28(4) (2015) 425-440]. In other words, the role of the ombudsman is one that has to be fought for and defended through political debate, experimentation and the provision of evidence.

The Ombudsman and administrative justice system

There is no right to administrative justice in the UK and with first the abolition of the Administrative Justice and Tribunals Council and then even its weaker successor, the Administrative Justice Forum, the idea of a 'system' of administrative justice in the UK is more relevant in the abstract than in organisational terms. No one body in the UK's public administration has a responsibility of designing, or overseeing the design of, the system as a whole.

[See Richard Kirkham (2010) ‘Quangos, coalition government and the ombudsmen’, Journal of Social Welfare and Family Law, 32:4, 411-421; Chris Skelcher, 'Reforming the oversight of administrative justice 2010-2014: does the UK need a new Leggatt Report?' Public Law [2015] 215-224; A. Abraham, (2012) ‘Making Sense of the Muddle: The Ombudsman and Administrative Justice, 2002-2011’, Journal of Social Welfare and Family Law 2012(1).]

The concept of administrative justice is a contested subject in itself, and this disagreement is reflected in debates about the optimum role of the ombudsman. These debates have largely revolved around its capacity to perform three intertwined functions of value to the administrative justice system [see R. Snell, (2007), ‘Australian Ombudsman – A continual work in progress’, in Groves, M. and Lee, H. P. (eds.) (2007), Australian Administrative Law, (Cambridge: Cambridge University Press), pp. 100-115].

• 'Fire-fighters': Ombuds are most familiar as complaint-handlers, facilitating the ability of individuals to raise the ‘fire alarm’ when things go wrong and to achieve 'justice'.
• 'Fire-watchers': Ombuds are also deployed as a form of ‘police patrol’, with an aspiration to improve administrative practice on the basis of the knowledge derived from their investigations. This function contributes to the control of administration and helps to resolve ongoing ‘fires’ in administrative practice before they become seriously problematic.
• 'Fire-prevention': Finally, ombuds have come to be seen as ‘standard setters’ for good administrative practice, sometimes with a duty to set standards on good complaint-handling and promoting awareness of whistle-blowers.

For a further discussion, see Harlow, C. (1978), ‘Ombudsmen in Search of a Role’, Modern Law Review, 41:4, 446-454; Stumhcke, "The Evolution of the Classical Ombudsman: A View from the Antipodes" (2012) 2(1) International Journal of Public Law and Policy 83; T. Buck, R. Kirkham and B. Thompson, The Ombudsman Enterprise and Administrative Justice, Ashgate, Surrey, 2011, ch.2.

UK debates about the role of the ombudsman

The above debates in the UK have crystallised around two distinct trends in the design of ombudsman institutions. To understand the debate it needs to be realised that in the UK the ombudsman sector has evolved in a thoroughly ad hoc fashion, with new functionally bespoke, and sometimes territorially restricted, schemes being introduced in response to events sporadically over a period of time. The underlying pressures for fresh reform and innovation are ongoing and in recent years have led to calls for a more rational and integrated ombudsman sector being introduced (see Kirkham R & Martin J (2014) Designing an English Public Services Ombudsman. Journal of Social Welfare and Family Law, 36(3), 330-348. View this article in WRRO). In response, four separate reforming items of legislation concerning public services ombudsman schemes in the UK have either already been introduced, or are proposed (eg see Scotland, Wales and draft Bill) and Northern Ireland).

The debates crystallise around two distinct visions for the ombudsman model in the UK, albeit visions with different subsets. The first vision sees the ombudsman primarily as a complaints handler and a provider of justice. This vision is one that has been pushed by some users of ombudsman services (eg PHSO Facts) who argue for a complaint-handling scheme with stronger powers to investigate and enforce decisions. In response to such pressures, in recent times the Parliamentary and Health Service Ombudsman has increased the numbers of complaints handled. The Government too would seem to support this core role of the ombudsman. In its proposals to create a new integrated public services ombudsman (PSO) for (predominantly) England, the Cabinet Office rejects the idea of providing the new PSO with expanded powers to interrogate and promote public administration (see the Consultation Response and the draft Bill).

Several commentators though have critiqued this approach (see Kirkham, McBurnie, O'Brien). Why?

One fear is that this model encourages a 'consumer-focussed' form of dispute resolution, dubbed as a 'Complaints r'us' vision, in which all that matters is getting a resolution rather than securing justice and learning in the public interest. This focus leads to the taking of short cuts in dispute resolution, with multiple decisions made at the pre-investigation stage, as the only viable way to manage the numbers of complaints.

Another fear of focussing too much on complaint handling is that it undermines the wider potential of the ombudsman office to promote good administration. To achieve this goal a different approach is required, and ideally new powers.

It is in this vein that a second vision of the role of the ombudsman can be seen in the development of the ombudsman in the devolved nations (see Kirkham) and indeed has been argued for in several official reports preceding the draft Bill for the PSO (PASC 2014).

Conclusion

The future direction of the ombudsman in the UK is uncertain. There is some evidence to suggest that the UK is an anomaly in the world in practising a relatively conservative model of the ombudsman. However, given current austerity pressures on the public sector, it may be that even if an ombudsman were to be given wide powers beyond complaint-handling (as it has in Northern Ireland), then it may not have the budgetary capacity to implement those powers in full. The next few years in ombudsman practice in the UK will provide a fascinating experiment of the capacity of the ombudsman.

The Proactive Model of the Ombudsman: proposed reform in Wales

This blog first appeared on the Institute of Welsh Affairs blog, 'Click on Wales', 2 March 2017


Building on former innovations in Scotland and Northern Ireland, a Public Services Ombudsman (Wales) Bill has been drafted with the intention of modernising the ombudsman scheme in Wales in order to make it a fitter and more flexible agent in the administrative justice system. This post makes the claim that the legislative model being recommended for Wales offers the most advanced variant yet of what is termed here ‘the proactive’ model of ombudsman. This model compares starkly with the recently published Whitehall proposals for a merged and largely ‘English’ public service ombudsman scheme based on a more traditional ‘complaint-handling’ model.

Two qualifications are made however. First, there is a considerable gap between designing ombudsman schemes and their implementation. If and when the Bill is enacted, there should be an onus on the Welsh Ombudsman to supply evidence that the extra powers can be used to deliver discernible gains in administrative justice terms. Indeed, a positive element in the draft Bill is the requirement for its review after a five-year period, with discretion for further reviews thereafter (cl.72). Second, a review of ombudsman design elsewhere reveals that there are other ideas not currently developed in the Welsh model, which suggests that there are viable alternative innovatory directions in which the ombudsman enterprise could still travel in Wales to make it an even more proactive administrative justice body.

An initial commentary on the draft public services ombuds bill

By Richard Kirkham and Brian Thompson
 
This  post first appeared on the UKAJI blog site, December 20 2016


The long awaited draft Bill on a Public Service Ombudsman (PSO) has been published by the Cabinet Office. The Bill implies that the intention is for the Act to be passed in 2017 (cl.33(5)), but the lengthy history of this proposal is such that we should remain sceptical as to its likely implementation date. Overall, the Bill represents a significant advance on the present but it is nevertheless a conservative model of the ombud enterprise when compared to its counterparts in the UK (eg see the Public Service Ombudsman Act (Northern Ireland) 2016) and elsewhere. As highlighted in an earlier post, the Government has not provided the ombud with full powers to seek out systemic maladministration or to drive better complaint-handling within public services.

Debates as to the merits of the Bill we will leave to a later discussion, but in this post we focus on selected aspects of the Bill which represent an advance on its predecessors.
Enhanced expectations of accountability

The template of the original Parliamentary Commissioners Act 1967 for many years withstood the test of time by virtue of its brevity (14 pages) and the flexible discretion it granted the Ombudsman. The draft Bill, by contrast, is three times as long (42 pages) and is significantly more prescriptive as to the use of the office’s discretionary powers. The explanation for this development lies in part in the need to bring together three (and potentially four) existing ombud schemes, but it is also due to the long-standing need to address the various weaknesses in the institutional design of the current ombuds network in (predominantly) England and the rising accountability expectations that surround the operation of ombud schemes in the 21st century. Users, in particular, are increasingly vocal in demanding high service standards. The response to these pressures in each of the most recent ombudsman statutes in the devolved nations has been longer and more detailed foundational statutes (eg see Scotland (40 pages), Wales (62 pages) and Northern Ireland (60 pages)), and in the case of the PSO Bill a heightened emphasis on performance standards. The Bill, for instance, requires the PSO to issue a statement to the complainant if their matter is not completed within 12 months of receipt (cl.14(9)).

In the PSO Bill, the starkest example of a trend towards legislative rigour can be found in its provisions for accountability. The new PSO will now be subject to a triple layer of formal external accountability. First, it will continue to be subject to judicial and National Audit Office oversight, plus other legal requirements such as under the Freedom of Information Act. Second, Parliamentary scrutiny will remain, albeit intriguingly through the Public Accounts Commission rather than a specialised select committee on public administration, as is currently the case. Further, the nature of this accountability relationship is no longer left to the full discretion of the PSO and Parliament to establish over time, because the Bill creates a third layer of accountability – a ‘Board of the Public Service Ombudsman’ whose ‘principal duty is to provide staff and other resources’ (cl.3(2)).

The fashion towards corporate governance models within the public sector has been growing, with this Bill bearing some similarities with the Budget Responsibility and National Audit Act 2011 in its introduction of a permanently established Board to oversee a constitutional watchdog. The Board’s constitution and role are described in some detail in Schedule 2 and include a duty to ‘monitor the carrying out of the Ombudsman’s functions … with particular reference to the quality and efficiency of the service provided by the Ombudsman and the desirability of securing improvements in that service’ (Schedule 2, para. 23(1)). In turn, the Board must report to Parliament, including the submission of a triennial review (para.24(4)) and ‘a code of practice dealing with the relationship between the Ombudsman and the Board’ (Schedule 3, para.1(1)). Additionally, the Bill is much more prescriptive than earlier legislation on the information that must be supplied in the Annual Report of the office.

There is a debate to be had as to whether this structure of corporate governance is proportional for a body the size of the PSO, and concerns will be raised as to the clash of responsibility between Ombud and the Board, in particular its Chair, who is to be appointed in much the same way as the Ombud (Schedule 2, Part 2). If this Bill is passed, however, its contribution to resolving the ‘who guards the guardians’ question is likely to be its major legacy.

Limited moves towards raising complaints standards

The major innovation in the ombuds sector in recent times has been the introduction of a complaint standards role for the Scottish Public Services Ombudsman in the Public Services Reform (Scotland) Act 2010. That Act grants the ombud a number of powers to promote good complaint handling amongst service providers. The Bill, by contrast, only requires the PSO to ‘provide information, advice and training’ (cl.27). This is a step forward in terms of existing law on the PHSO, and mirrors the work already undertaken by the Local Government Ombudsman (LGO), one of the schemes being integrated into the new PSO. Other than the requirement of public authorities to ‘have regard to applicable information’ (cl.27(4)), however, there are not the powers in the Bill to demand information from public authorities or to publicise failings that are to be found in the Scottish model (and replicated in Northern Ireland and proposed in Wales). The Bill does make it a legal duty for authorities to inform users of their right to complain to an ombud (cl.28), although it does not make it a legal duty of those same authorities to consider complaints, as in the proposed Welsh Ombudsman bill (cl.34(2)).

The MP filter goes

Although MPs can still refer complaints on to the PSO, direct access for complainants to an ombud has finally been granted for all public-service complaints within jurisdiction in the UK (cl.5). This reform follows a long debate about the importance of the MP filter to Parliamentarians and the potential for the PSO to be swamped by complaints (eg see this PASC report, Time for a People’s Ombudsman Service, ch.4).

Further, enhanced flexibility on receipt of complaints is allowed in terms of form (ie cl.4 it is no longer necessary for complaints to be made in writing), and the facilitation of the referral of complaints from public authorities to the ombud, as already allowed for in the LGO scheme (Local Government Act 1974 s.26C), is translated across to all bodies under the jurisdiction of the PSO (cl.18).

Investigation

The Bill largely follows existing legislative arrangements in conferring powers of investigation on the PSO but tweaks the powers in certain key respects. For instance, cl.4(6) allows for the re-opening or investigating afresh a complaint. This new provision could be a response to the situation that has arisen in cases such as Cavanagh, Miller and JR55, in which midway through an investigation the ombud has expanded the focus of the inquiry beyond the grounds of the original complaint due to discoveries made during the initial investigation. To avoid the questions of legality that have arisen in these cases, the cl.4(6) process outlines one way to proceed, and builds in fairness by requiring consultation with the relevant parties (cl.4(7)).

Alternatively, the Bill provides the PSO with another means to extend investigations beyond the initial complaint, a route that may be of particular use where there is evidence of systemic maladministration impacting a number of potential complainants. There has always been an element of sleight of hand in the means that ombud schemes, particularly the PHSO, have previously entered into systemic investigations, especially large-scale ones such as Equitable Life. Cl.13 confirms the legality of this practice by providing for the widening of an investigation after the complaint has been submitted (currently the LGO can rely on a similar clause, Local Government Act 1974, s.26D). Certain conditions have to be met to allow for the widening of the investigation, including that the ‘additional matter relates to facts which are the same, or substantially the same, as the facts to which the matter alleged in the complaint relates’ (cl.13(2)). For reasons of fairness we would recommend that the clause be amended to specify a duty of consultation as with cl.4(7).

As with UK practice generally, the grounds of investigation are not described in detail but are now universally held to include ‘failures in service’ and ‘failures to provide a service’, in addition to maladministration (cl.6(1)). This brings the current Parliamentary Ombudsman jurisdiction into line with the LGO and Health Service Ombudsman.

The criteria by which the PSO can investigate independent providers is rephrased under the Bill, with the investigation of independent health and social care providers dealt with specifically in cl.6(2). Other contracted-out services, however, are dealt with as including ‘any service which it was, at the relevant time, the authority’s function to provide’ (cl.6(2)(c)). This provision may need tightening further to avoid private bodies attempting to wriggle out of the PSO’s jurisdiction.

Another common area of confusion in past case law, the overlap of responsibility between different dispute resolution providers, is subtly shifted towards the PSO in the Bill. Cl.7 largely mirrors existing provisions, but the PSO is allowed to commence an investigation even if an alternative remedy has been pursued (cl.7(2)) and even if it has not been completed (cl.7(3)).

Recognition of the growth of a highly flexible model of investigation since the first UK ombuds legislation in 1967 is provided for in cl.10, with the PSO instructed to consider the procedure ‘best suited to enabling the complaint to be dealt with as fairly, quickly, efficiently and cost effectively as possible’ (cl.10(5)). In turn, a responsibility is placed upon the Ombud herself to publish a statement ‘setting out, in general terms, the procedures that the Ombudsman expects to follow in carrying out investigations’. This move towards both flexibility and transparency is a sensible and appropriate way forward and goes some ways towards recognising the concerns that have been expressed in recent years that the deformalisation of the ombuds process might lead to opaque justice.

Remedies

The Bill says nothing about the nature of the remedies that the PSO can recommend. Under the old model of ombuds legislation this was the norm but, following the Supreme Court case of JR55 (for a commentary see here and here), this is an omission that needs rectification. JR55 concerned the legality of a Northern Irish Ombudsman’s recommendation of financial compensation, with the court ruling that he had no lawful power to make such a recommendation. The ruling is ambiguous at various key points and the relevant scheme has been abolished, but the reasoning in the judgment suggests that it would be wiser for the legislature to clarify in advance the nature of permissible remedies, particularly in the field of health complaints. The danger of not making this point explicit is that any later attempt to make a financial recommendation will be challenged in the courts.
Statements

As with most recent ombuds legislation, the Bill allows for a number of reporting requirements for the new PSO. Mirroring the practice that has evolved at the LGO, the PSO is required to produce a written statement whenever she decides (i) not to investigate; (ii) to discontinue investigation; or (iii) completes an investigation, including reasons. For the first time in UK ombuds legislation, the language of findings and recommendations is used to describe how completed reports should be presented, aping current practice and the ruling in Bradley. The ruling in that case is also confirmed, insofar as recommendations must be considered but not necessarily implemented (s.14(8)). However, the Bill is silent on the interpretation of law, confirmed in Gallagher, that the findings of the LGO are binding on an investigated authority. The reasons for this may be that the existing legal authority of ombuds findings varies depending on the scheme involved, with a weaker test applying to the PSO than the LGO. If and when this new Bill is enacted we can anticipate a fresh round of litigation revisiting this legal question unless the Bill is amended to clarify the point.

The PSO will have the power to issue a follow-up special statement when she is of the view that an identified injustice or hardship has not been remedied (cl.15), and this special statement may be further submitted to Parliament or to an elected local authority (cl.15(5)). This process mirrors current arrangements, but highlights another point, that at present the Bill does not contain a general requirement on authorities to notify the PSO when and how they have implemented the office’s recommendations. Although cl.15(2) provides for the PSO requesting such information under their discretion where recommendations are not implemented, this reporting duty should be a fundamental obligation on investigated authorities always – and further an overall performance statistic that should be reported on by the PSO on a regular basis as evidence of the effectiveness of the office. This oversight should be addressed when the Bill enters Parliament.

Additionally, under cl.16 the PSO will have the power to publish other reports which, as currently, will presumably capture broader lessons and insights from its investigatory work which are of public interest.

Devolution questions

There is no specific reference in the Bill to the status of the existing Parliamentary Ombudsman’s jurisdiction over complaints against Whitehall-based bodies by constituents residing in Northern Ireland, Scotland and Wales, but all such complaints will be dealt with by the PSO provided they come within the office’s jurisdiction. An element of leeway is contained within cl.19, which allows for the PSO to enter into joint investigations with the devolved ombud schemes where there is jurisdictional overlap, an arrangement that has become a common and necessary feature of ombuds legislation.

Conclusion

Constitutionally, like its predecessors the PSO will remain an important independent watchdog, but will have considerably less autonomy due to the imposition of the Board. Also, one feature of the PSO’s future relationship is unclear: in those rare instances when the government resists the recommendations of the ombud, will the office be able to rely upon the support of Parliament as in years past? With the role of the relatively low-profile Public Accounts Commission so clearly defined as one of calling the PSO to account, it is unlikely it will switch to a support role when needed, and the PSO will have to look for assistance from a relevant subject committee and/or maintain a relationship with the Public Administration and Constitutional Affairs Committee.

Some residual uncertainty is inevitable and there is much to commend in the Bill. It serves as a template that could be expanded upon through the integration of other areas of public service, with provision already made for the transfer of social housing complaints at a later stage (cl.26), albeit that proposal is currently resisted in the housing sector. It may be that in the current context of austerity politics it is not realistic to load the new PSO with too many duties for lack of the realistic means to fulfil them. Nevertheless, the Bill is a classic product of Whitehall pragmatism and lacks a strong vision.

Compare, for instance, c.1(2) of the Bill:

‘The Ombudsman’s role is to investigate, on behalf of Parliament, complaints made by … members of the public ….’

With the Ombudsman Act (Queensland) 2001 s.5:

‘The objects of this Act are—

(a) to give people a timely, effective, independent and just way of having administrative actions of agencies investigated; and

(b) to improve the quality of decision-making and administrative practice in agencies.’

Why is it that we cannot make such a bold commitment to administrative justice?