JR55: Five activist strategies a judge should avoid

The following blog was published on the website of the UK Constitutional Law Association on 30 May 2016

The ruling of the Supreme Court in JR55 raises a host of issues which deserve a much fuller analysis than can be developed in this post. The best reading of the case is that its impact is largely isolated to the Northern Ireland Commissioner for Complaints scheme involved, an ombudsman scheme which closed on 1^st April as a result of the Public Services Ombudsman Act (Northern Ireland) 2016. In the words of Lord Sumption who gave the only judgment:

The various [ombudsman] enactments have a strong family resemblance. But some of them have distinctive features which mean that considerable caution is required before principles derived from one legislative scheme can be read across to another. [para.1]

However, the judgment leaves some rich pickings for those who might want to reopen points of law that had previously been thought settled.

Administrative Justice at the SLSA 2016

This blog first appeared on the UKAJI website, 12 April 2016

The Administrative Justice stream at the Socio-Legal Studies Association conference has become one of the few forums within the academic sector within which research on administrative justice matters is showcased and debated on an annual basis. This year the conference was held at Lancaster University and four sessions were devoted to the administrative justice stream and another four sessions on Social Security, one paper of which by Michael Adler has been published on the UKAJI website. 

The Administrative Justice Sessions included papers on the tribunal system by:

• Grainne Mckeever, ‘Modelling legal participation: from tribunals to courts’; and
•  Jackie Gulland, ‘ ‘She is not able to write and does not know what to do’: appellant knowledge and representation in early twentieth century appeals about national health insurance’.

Papers relating to the role of the courts in administrative justice by:

• John McGarry, ‘Genuiness as an Element of Sufficient Interest’;
• Harriet Samuels, ‘Public Interest Litigation and the Role of Civil Society’; and
• Maria Smirnova, ‘New Administrative Litigation Code of the Russian Federation: Empowering Citizens to Bring the State to Court’.

Papers on the ombudsman by:

• Naomi Creutzfeldt and Christian Gill, ‘The Ombudsman Watchers: Understanding the Critics of the Ombudsman System’;
• Stephen Daly, ‘Oversight of HMRC soft-law: lessons from the Ombudsman?’; and
• Richard Kirkham, ‘The impact of judicial review on the work of the ombudsman’.

Plus a series of additional papers which highlighted the wide terrain of the administrative system and the influence of administrative decision-making on public life.

• Richard Craven, ‘PFI procurement: a case study of public authority compliance’;
• Florence Anaedozie, ‘Combating Grand Corruption in Nigeria from the Lens of the Administration of Criminal Justice Act 2015: Progression or Retrogression?’;
• Edward Kirton-Darling, ‘Death, Decision making and the Work Capability Assessment’; and
• Robyn Holder and Kathleen Daly, ‘Money: exploring the meaning of financial assistance for survivors of sexual victimisation’.

Finally, Maurice Sunkin from UKAJI updated the group on the progress being made at UKAJI in promoting research on administrative justice.

The administrative justice stream at the SLSA is an excellent opportunity to bring together current researchers in the field, share ideas and offer critical reflection on ongoing projects. In recent years, papers from the stream have also been published in the Ombudsman, Tribunals and Administrative Justice section of the Journal of Social Welfare and Family Law. Next year’s conference will be held at Newcastle University, 5–7 April 2017.  We welcome submissions or proposals for topic specific sessions. The call for papers usually comes out in the autumn.   

Richard Kirkham and Naomi Creutzfeldt

 

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.