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.
