The Forthcoming Bill on a new Public Sector Ombudsman

Presentation to MPs at a meeting organised by PHSO Pressure Group and the Patients Association, 23 February, 2016

 

I was recently invited to talk at an event aimed at making MPs aware that the Cabinet Office is planning to submit legislation to reform the ombudsman sector. This is the edited version of my talk: see also my earlier blog on the topic.  

If I may start with a brief summary of my approach to this topic. I have never been a user of ombudsman services, and am much more knowledgeable of the dynamics of the sector from the perspective of the ombudsman schemes themselves than I am from the complainant. I should also declare several interests, including that I have on a couple of occasions worked with two out of the three ombudsman offices that the Government is currently proposing to merge. Most recently in a three man team that reviewed the Local Government Ombudsman scheme in 2013. Amongst other things – that report recommended an overhaul of the corporate governance arrangements for the LGO and tentatively alluded to the idea that a restructuring of the ombudsman sector was necessary.

My general standpoint is that they are potentially a strong part of the solution to administrative justice. In amongst my previous work I have regularly argued that the ombudsman sector needs to be upgraded. The current proposed legislation for a Public Sector Ombudsman scheme purports to do that.

I think that this proposed legislation is definitely a step in the right direction. And I know a lot of people have put a lot of effort into getting it this near to realisation. Potentially it may lay the foundations for an ombudsman scheme that can be built up in the future – but as the proposal currently stands I suspect that, unless Parliament intervenes, in 10 years time I will be writing exactly the same things about the need for upgrading in the ombudsman sector as I have already written.

I would like to focus on three themes.  These are first, that if there have been failings in the administrative justice system in recent years, frankly Whitehall and Parliament need to take their fair share of responsibility. Second, I would like to highlight two areas where genuinely reforming legislation could make a real difference in terms of creating an ombudsman scheme for the future that might give it more bite. Third, I would like to commend the Government for including – or at least it looks like it will include – provisions relating to the ongoing scrutiny of the new Public Service Ombudsman. But, simultaneously I am hoping that when MPs scrutinise the legislation it will pay careful attention to a series of crucial design features of the new arrangements. 

 

Eight predictions for 2016: A view into the ombudsman world

For  a variety of reasons, in the UK the ombudsman model of dispute resolution has become an increasingly mainstream provider of civil and administrative justice. The most recent set of pressures in this direction have come from the Government's drive to pursue low-cost and user-focussed solutions to various governance problems. Partial evidence for the added focus on ombudsman schemes can be found in the number of developments taking place in the field. This post takes a look at the important events that we can already be confident of occurring in 2016, and makes a few tentative predictions.

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.