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?

The merits of unelected accountability

This post introduces the concept of accountability as an important constitutional goal and sets up some of the key materials on the topic for more detailed reading. The post summarises some of the key arguments for non-majoritarian forms of accountability ie accountability outside the democratic process.

An initial commentary on the draft public services ombudsman bill

This post first appeared on the UKAJI blog site, December 20 2016, co-authored with Brian Thompson


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 ombudsman 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 ombudsman 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 existing ombudsman schemes, but it is also due to the long-standing need to address the various weaknesses in the institutional design of the current ombudsman network in (predominantly) England and the rising accountability expectations that surround the operation of ombudsman 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 with in 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 is described in some detail in Schedule 2 and includes 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 Ombudsman and the Board, in particular its Chair who is to be appointed in much the same way as the Ombudsman (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 ombudsman 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 ombudsman 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 complaint to an ombudsman (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 ombudsman has finally been granted for all public service complaints within jurisdiction in the UK (cl.5). 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 ombudsman, 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 ombudsman 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 ombudsman 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.

There is also an important clarification of the loosely specified current practice that the PSO can investigate independent providers, including ‘any service which it was, at the relevant time, the authority’s function to provide’ (cl.6(2)(c)). The importance of capturing independent health and social care providers is captured specifically in cl.6(2)).

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 ombudsman investigation since the first UK ombudsman 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 Ombudsman 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 ombudsman 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 ombudsman 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 ombudsman 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 ombudsman 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 maybe that the existing legal authority of ombudsman findings varies depending on the scheme involved, with a weaker test applying to the PO 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 ombudsman schemes where there is jurisdictional overlap, an arrangement that has become a common and necessary feature of ombudsman 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 ombudsman will the office be able to reply 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 asistance 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?

The judicial role in the constitution

The role of the courts in any constitutional set up is controversial. The strongest role for the court is one of the ultimate interpreter of the constitution, a role which for instance was famously adopted in the USA by the Supreme Court in Marsbury v Madison. Other courts have inferred the equivalent authority, as with the ECJ in the case of Costa v ENEL, in its authority over interpreting the Treaty of the EU. Of the many factors that led to the result of the referendum on membership of the EU, resistance to this judicial claim of authority was one element.

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.