More merger than radical reform: The Government’s response to its Consultation on a new Public Services Ombudsman

The following post first appeared on the website of the Ombudsman Association, 22nd December 2015.

 

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.

Judicial Neutering of the Powers of the Ombudsman

The following blog was written in partnership with Brian Thompson, University of Liverpool, and was published on the website of the UK Constitutional Law Association on 10 November 2015


Conventional legal understandings of the powers of public service ombudsman schemes rest on the twin principles that they (a) have significant discretion with which to implement their powers and (b) have to operate fair processes, albeit not necessarily processes which meet the form and standards of the courtroom. One ongoing legal case in the health sector is challenging these central premises and is set to become the first ombudsman case to reach the Supreme Court. This blog highlights the inherent risks to the ombudsman model if the applicant’s arguments in that case are upheld.

Mapping the new world of accredited ADR schemes

The following blog first appeared on the UKAJI website on 19 October 2015. 

The ADR Directive is now fully operational in the UK. As of 1 October 2015, traders are required to notify their consumers as to their opportunities to pursue ADR and whether the trader chooses, or is bound, to adopt an accredited ADR process when complaints are received.  The focus of this blog is on the early results of the new regulatory arrangement put in place by the Directive, with a view to raising some likely issues of concern for the future.

Although the ADR Directive is primarily a consumer law issue, the overlaps in this area with administrative justice concerns are multiple, especially where ombudsman schemes are concerned (eg see Walter Merricks). Not only does the work of several accredited ADR schemes cover services which would once have been considered as essential public services, but some of the ombudsman schemes affected by the Directive are subject to judicial review. Moreover, in the medium term, the Department for Business, Innovation and Skills’ (Bis) approach to encouraging the sector will likely have an influence on the Government’s parallel efforts to upgrade the role of ADR in the traditional public sector. 

Not there yet, but some ombudsman reform buses have come into sight

The following blog was written in partnership with Brian Thompson, University of Liverpool, and was published on the website of the UK Administrative Justice Institute on 30 March, 2015.

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. 

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.