Gabriele Ganz Lecture - The Ombudsman and the Constitution

Lecture by Ann Abraham, Parliamentary and Health Service Ombudsman, entitled 'The Ombudsman and the Constitution'

Southampton University
22 October 2009

1. Introduction
2. International and domestic context
3. Judicial review and alternative dispute resolution
4. Ombudsman, the courts and Whitehall
5. Bindings findings: The occupational pensions judgment
6. A footnote to the occupational pensions case
7. Constitutional renewal
8. A ‘mandate of influence': The tax credits case
9. Current issues
10. Conclusion: The human factor

1. Introduction

It is a privilege to be invited to deliver this fourteenth Gabriele Ganz Lecture in the University of Southampton. I am conscious that I follow in a line of illustrious predecessors.

One of those predecessors is the South African Constitutional Court judge, Albie Sachs, who wrote recently, ‘I was 39 years old, quietly teaching law in exile at Southampton University, when I discovered I was a terrorist’.

As a resident of Hampshire I can’t say I had previously seen my ‘local’ university, let alone its law faculty, as a nursery for terrorists. But being sandwiched at my office in Millbank between MI5 and MI6 has its advantages, and I am assured that I am in safe hands here.

Of course, to be familiar with Albie Sachs is to know that he is among the most humane and inspirational commentators on what he has referred to as the ‘strange alchemy of life and law’, about as far removed from the stereotype of ‘terrorist’ as it is possible to be.

And his is the sort of inspiration that makes worthwhile the job of working within the justice system, makes the business of reconnecting law and life something much more than the dry and dusty application of abstract rules.

I am honoured to follow in his footsteps and at the same time to have the chance to celebrate Southampton Law School not so much as a nursery for terrorism but, as exemplified by both Albie Sachs and Gabriele Ganz, a centre for profound reflection on public and administrative law.

The allusion to Albie Sachs is not, in fact, merely ornamental. My subject tonight is the Ombudsman and the constitution. Neither of those institutions immediately fills a British audience with excitement. The Ombudsman role remains in this country somewhat obscure, essentially alien to these shores and perhaps even regarded as a little dull, albeit in a charmingly Scandinavian sort of way.

As for the constitution, we are still inclined to think we do not really have one, at least not one that is worth writing down. If we think about it at all, it is likely to be as something rather vague and insubstantial, consigned to rather large textbooks, probably written in the nineteenth century.

Even when we get a Supreme Court for the first time we are more inclined to ponder the postal address and the architecture rather than the constitutional ramifications.

Yet the example of South Africa, and of Albie Sachs’ role on the Constitutional Bench there, is ample reminder of what we take for granted, of the preciousness that should attach to constitutional issues, and of the vitality that resides in a democratic constitution properly understood and respected.

What I want to explore in this lecture are some of the ways in which the office of Parliamentary and Health Service Ombudsman might help us to reappraise constitutional issues and to make that reconnection between law and life that can otherwise prove so elusive.

I want in other words to respect the legacy of Gabriele Ganz by taking seriously the prospect that constitutional considerations matter, and by recognising that the Ombudsman institution is one of the places where that realisation can dawn most vividly.

2. International and domestic context

Let me start by trying to reinvest the Ombudsman institution with some of its elusive glamour or, more modestly, at least a semblance of contemporary relevance. Internationally, the ombudsman idea is more vibrant than ever, with Ombudsman institutions now present in every corner of the planet, frequently with the additional status of national human rights institution.

Earlier this year the Swedish Ombudsman celebrated its 200th anniversary and its establishment as the first national Ombudsman office in 1809. As with so many of its successor institutions, the origins of the Swedish office lay in political upheaval, in the emergence of a democratic state after a period of autocratic government.

Finland followed suit over a century later in 1919, but it was not until the mid-20th century that the core of the Swedish model was picked up and adapted in Denmark (1954), Norway and New Zealand (both in 1962) to meet the needs of the post-war welfare state. By now the Ombudsman had become a source of protection for the citizen not so much against the encroachments of an autocratic regime as against the potential mindlessness and inhumanity of an ever-growing bureaucracy which, however well intentioned, had the unhappy knack of getting things wrong.

In the UK, it was the notorious Crichel Down affair of 1954 that gave impetus to the need to examine administrative justice more closely and eventually led to the calls from the campaigning body, Justice, for a national UK Ombudsman. It was under the Wilson government in the 1960s that the legislation which established what we now call the Parliamentary Ombudsman finally made it to the statute book as the Parliamentary Commissioner Act 1967.

Of course not everyone was overjoyed at the prospect. Lord Hailsham (or Quentin Hogg as he then was) characteristically foresaw the end of parliamentary democracy, whilst Jeremy Thorpe feared the Ombudsman would become a ‘dustbin’ for all the crankiest complaints in town.

As a sop to MPs and their customary role as constituency advocates, the new law required that any complaint had to be made to the Ombudsman through an MP, albeit not necessarily the complainant’s own. Despite the initial proposals that this obstacle to citizen access would be temporary, and despite recurrent murmurings ever since, the so-called MP filter remains in place to this day, a feature practically unique on the entire world-Ombudsman stage.

3. Judicial review and alternative dispute resolution

In 1967 it could scarcely have been anticipated that there would be in the decades ahead the sort of explosion of judicial review that gave birth to administrative law proper in the UK during the 1970s. In the wake of that explosion, it was not always clear where the boundary lay between the Ombudsman and the courts.

Only last year the Law Commission published a consultation paper that tried to soften some of the rough edges in what is still an evolving ‘administrative justice system’. At the same time, the creation of the Administrative Justice and Tribunals Council in November 2007 holds out the prospect for the first time of an integrated ‘system’ comprising administrative court, Ombudsmen, tribunals and alternative dispute resolution processes.

In the meantime the Ombudsman institution itself was increasingly positioned as a form of Alternative Dispute Resolution (ADR), especially when the Woolf reforms of the 1990s made ADR all the rage, at least in the minds of legal policy makers.

People spoke of the ‘proliferation’ of the Ombudsman institution, as the private sector sought to keep pace with the public sector by creating Ombudsmen for just about everything from banks to building societies, insurance firms to estate agents, furniture removals to funeral directors.

As public servants were starting to become accustomed to the possibility of judicial review and the phenomenon of the ‘judge over your shoulder’, there then emerged the complementary figure of what some referred to rather inelegantly as ‘the ombudsman in your drawers’.

4. Ombudsman, the courts and Whitehall

Let me say something about Ombudsmen, the courts and Whitehall before moving on to broader political and constitutional considerations. The first thing to say is that it is frequently hard to avoid the conclusion that a fair few judges, like far too many civil servants, have scarcely heard of the Ombudsman and those who have heard of it have little understanding of what it is all about.

The tendency has been for the Ombudsman to emerge in court judgements and Whitehall policy papers as a pale imitation of the real thing - the real thing in the eyes of most judges of course being the full judicial process, preferably with all the paraphernalia that goes with it (or ‘tosh’ as the American jurist Lon Fuller put it in the 1960s).

If the post-Woolf generation of judges marks the turning of a new page, it is a page that is turning rather slowly. The idea that there might be a distinctive Ombudsman system of justice, dedicated not just to individual need but to broader public benefit, comprised of a distinctively flexible and non-legalistic set of tools, and a range of remedies that, although unenforceable, nevertheless ‘give force to’ coherent principle rather than binding rule, appears to be a bridge too far for some.

The former Pensions Ombudsman, Julian Farrand, once remarked that the relationship between the courts and Ombudsmen was a bit like that between chalk and cheese: superficially similar, yet fundamentally different in taste and texture. I do sometimes wonder whether some in high places have become just a little too fond of the Stilton to be able to tell the difference.

From the constitutional point of view, this apparent neglect, or at least indifference, is important, not simply because it contributes to the daily spectacle of litigants pursuing expensive and time-consuming public law claims that could be dealt with more quickly and at little or no cost by an Ombudsman, but because it fails to give due weight to the constitutional considerations. The Ombudsman is not merely an adjunct to the judiciary, a sort of second-class tier of the judicial process. On the contrary, the Ombudsman is a creature different from the courts in kind, not just degree.

A Scandinavian colleague likes to tease me about my susceptibility to judicial review. When in reply I ask if he, then, is simply above the law, he replies without hesitation, ‘My dear Ann, I am the law’.

For my part, I have no aspirations to be ‘the law’ at all. The Ombudsman is not the law, neither in its judicial nor its legislative guise but something quite different and altogether less magisterial (and frequently more useful, but that’s another story to which I will return). It is that difference that needs emphasis, not any superficial similarity.

5. Bindings findings: The occupational pensions judgment

That is not to say, however, that the judiciary does not from time to time prove itself a good – if possibly unwitting - ally of the Ombudsman institution in its entanglement with the executive.

Entanglements with the executive are of course endemic to the Ombudsman’s role. In the late 1960s it was the Sachsenhausen case involving the Foreign Office handling of a compensation scheme for suffering caused by Nazi persecution; in the mid-1970s the Court Line case concerning the collapse of a company with the loss of tens of thousands of holidays; and in the mid 1990s the Channel Tunnel Rail Link case which centred on the inability of Kent householders to sell their properties because of the way the Department of Transport handled the project.

The pattern of occasional conflict when the going gets tough is well established, not surprisingly since it is in these cases that the Ombudsman function bites sharpest.

A particularly revealing recent example of both the intransigence of the executive and the relatively benign intervention of the higher courts is a case about occupational pensions arising from an Ombudsman’s report published in March 2006.

Put very simply, the case, as widely reported in the press, arose from the loss by more than 125,000 people of all or part of investments made in final salary schemes. I reported that the government’s own maladministration was a significant contributory factor to the context in which those losses incurred.

In short, a range of Government bodies had told people that their pensions were safe whatever happened to their employer, when this was far from the case.

I recommended that the Government consider doing the decent thing by itself paying, or at least arranging for the payment of, meaningful compensation, not just for the financial losses suffered by individuals but for their sense of outrage, their distress, anxiety and uncertainty.
 
The Government in no uncertain terms made it clear that it would not do so. Instead, it effectively rubbished my findings, preferring to stick to its original assessment and washing its hands of any blame. What it seemed to be saying was that the Ombudsman was simply an optional source of advice whose findings could be weighed up on a ‘take it or leave it’ basis.

When the High Court quashed the Government’s rejection of my central finding, the Government in turn refused to let matters rest and appealed to the Court of Appeal. The case was heard in July 2007 and judgment was given in February 2008. The principal issues at stake were the questions of whether my findings were binding on the Secretary of State, and whether the Secretary of State had acted rationally in rejecting my report.

The judgment (in what I will describe in shorthand as the Bradley case) ran to 146 paragraphs, but the short answer to the first question was ‘no’, the Secretary of State is not bound by my findings and is entitled to reject a finding of maladministration and prefer his or her own view, but (and this is a crucial caveat) only if there are what the judges described as ‘cogent reasons’ for rejecting that finding (which on the facts of this case the Court found wanting in respect of my principal finding). The Government cannot in other words simply assert its right to differ and at a stroke cast aside my conclusions.

As Lord Justice Wall put it, ‘It is not enough for a Minister who decides to reject the Ombudsman’s finding of maladministration simply to assert that he had a choice; he must have a reason for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act’.

Now, although the Government still sought leave (unsuccessfully) to appeal yet again, my view is that the Court of Appeal’s decision establishes a helpful framework for situating the constitutional role of the Ombudsman. I say that because at the core of the judgment was what I take to be a deep respect not just for the plight of the aggrieved individuals involved, but for the institution of Parliamentary democracy itself.

What was at stake here was the ability of the Ombudsman to discharge its key role of alerting Parliament to an injustice that has occurred through maladministration. Indeed, the Court urged me to pursue vigorously before Parliament any cases where remedies have not been provided.

At the same time, it made clear that, subject only to the basic lawfulness of the Ombudsman’s acts and those of the Government in responding, the provision of remedy then rests ultimately with Parliament itself.

At the centre of this litigation therefore lies the much-contested boundary between judicial and political authority. As I have already indicated, for a whole variety of reasons, the role of Ombudsman has in recent years been viewed primarily in its relationship to the judiciary, to the way in which it supplements the work carried out by the courts. The Ombudsman is in that case assessed against the supposed norm of judicial action.

What the occupational pensions case does very well in my view is remind us of the other half of the equation, the non-judicial, constitutional role of the Ombudsman, which stretches beyond the plight of the individual to encompass much broader notions of public benefit.

6. A footnote to the occupational pensions case

As a footnote (although possibly in due course a fairly long one) to the occupational pensions case, I should like to draw your attention to the even more recent judgment of the Administrative Court in the Equitable Life case, a judgment delivered only last week.

As widely reported, I had made a number of findings of maladministration against the Government in connection with the collapse of Equitable Life, some of which it refused to accept. The Administrative Court scrupulously applied the test in the Bradley judgment, noting [at paragraph 66] that a public body can ‘only reject the findings of the Ombudsman for “cogent” reasons, that is for reasons other than merely a preference of its own view…What is required…is a careful examination of the facts of the individual case – with the focus resting upon the decision to reject the findings of the Ombudsman, rather than the Ombudsman’s findings themselves’.

On the facts in this particular case, the Court found that in several instances the Government lacked precisely the sort of ‘cogent reasons’ that would in principle have justified its rejection of my findings and had instead simply substituted its own judgment for mine without any rational justification. The Court therefore quashed the Government’s rejection of my findings in those instances.

In other words, the Court demonstrated in practical terms how the role of the Ombudsman carries weight, not just in terms of delivering redress as an alternative to the courts but in terms of holding the Executive to account with findings that it cannot casually brush aside as though a trivial irritation.

The Ombudsman acts as an officer of Parliament in discharging that investigative function and her findings express the gravity that such a constitutional role entails, attuned as much to the broader public benefit as to the specific entitlement of individual aggrieved citizens.

7. Constitutional renewal

So let me turn now to some of that constitutional context and that broader notion of public benefit. It is hardly an overstatement to say that we have been witnessing in the last twelve years what might be described as something of a constitutional revolution. In the name of modernisation, we can list the Human Rights Act, the creation of a Ministry of Justice, the reform of the judicial appointments process, the revitalisation of the House of Lords, the establishment of devolved government and even more recently of the Supreme Court.

This programme of reform has prompted one commentator, Vernon Bogdanor, to speak of a change from parliamentary democracy to popular democracy. 

To put it another way, the way of Albie Sachs in fact, we might also speak of a movement from a ‘culture of authority and submission to the law, to one of justification and rights under the law’.
This I take it is what the ‘entitlement’ and ‘empowerment’ agendas are all about, the attempt to reconnect people and politics in the broadest sense of the word, to make good the democratic deficit and to find in the reciprocity of rights and responsibilities the possibility of a meaningful common life, based on shared values and principles.

Now of course that is a large ambition; some might say too large. When Lord Lester resigned during the summer from his role as constitutional adviser to Jack Straw he made clear his disillusionment with the government’s commitment to real delivery on this mandate; and it is certainly true that the Prime Minister’s Governance of Britain green paper appears to have run into the sand, or at least into a worldwide economic recession and all that goes with it.

Yet even within our existing institutional structures there is, I believe, room for making more of our ability to deliver a sense of empowerment and to embrace a culture of entitlement.

I see the work of Parliamentary and Health Service Ombudsman as standing firmly within such a project. Whether it be in cases about the iniquities endured by disabled people in accessing health care, about the frustrations entailed by daily encounters with the benefits service, the heavy-handedness of HM Revenue & Customs, or the sheer incompetence of the hapless former Child Support Agency, the task of an Ombudsman is to stand alongside the aggrieved citizen and assist Parliament in holding to account the executive in carrying out its administrative functions.

That holding to account is, necessarily in the case of an Ombudsman, something other than mere submission of the public administration to the authority of the law. The Ombudsman’s ways are by comparison with the courts informal and flexible. Almost invariably they lead to findings that are not binding. An Ombudsman deals for the most part in principles not rules. To that extent, the Ombudsman’s remit is what some have called a ‘mandate of influence’ rather than the ‘mandate of sanction’ exercised by the courts.

8. A ‘mandate of influence': The tax credits case

A recent example suggests how this mandate of influence and the associated process of visible deliberation can work in a constitutional setting and contribute to the public benefit. In June 2005 I completed a special report into the UK Government’s much-heralded new tax credits system. That report focused in particular on the social group intended to benefit from the reform: low-income families with children.

Drawing directly on the experience of the individual complaints referred to me, I identified an underlying pattern of dissatisfaction that stemmed to a large extent from the Government having adopted a ‘one size fits all’ system, a system designed to require minimum human intervention and relying instead on IT. In short, I found that this ‘blanket’ approach took no account of the very different circumstances and needs within the target group.

The result was that the new system often had harsh and unintended consequences for the most vulnerable users of the system, frequently leading to debt recovery action by the Government to retrieve overpayments caused by the malfunctioning of its own reforms and, irony of ironies, casting into debt those most in need of financial support and intended to benefit from the reform in the first place.

On top of investigating individual complaints (which at one stage accounted for a quarter of all the complaints to the Parliamentary Ombudsman), I made twelve detailed recommendations aimed at improving the administration of the system in its entirety.

But I did not stop there: instead, I was compelled to ask the bigger policy question of whether a financial support system that included a degree of inbuilt financial insecurity could ever in practice meet the needs of very low-income families and earners.

Two years later, in a second follow-up report published in October 2007, I drew attention to the impact of that financial insecurity on that especially vulnerable client group and to how it was leading to confusion and hardship, and in some cases even to a desire to opt out of the tax credits system altogether. The picture that emerged was one of a tax credit system that, even when working as intended, ran counter to the key policy objectives of helping tackle child poverty and of encouraging more people to work by ‘making work pay’.

As I said at the time, the design of the tax credit system is, in the end, a matter for Government, not for me. It is, however, very much the role of the Ombudsman, as the purveyor of public benefit, to draw to the attention of Parliament the operational shortcomings of policy implementation by the executive and to invite further reflection on the empirical evidence disclosed by individual complaints.

It is in this way that the ombudsman process contributes through its ‘mandate of influence’ to what I regard as an exercise in deliberative democracy, to a dialogue between citizen and state that is mediated and even facilitated by the Ombudsman, not so much as advocate of the citizen but as advocate of the principles of accountability, transparency and proportionality, the sort of guiding principles in other words that informed the Principles of Good Administration published by my office in 2007 and which I am working to see adopted throughout Whitehall and beyond.

The exercise of the role I have been describing, somewhere in the hinterland between legislature, executive and judicature, might leave the Ombudsman floating above the ordinary administrative landscape as some sort of alien life form or UFO. The failure of judges and civil servants to place the Ombudsman in its proper constitutional habitat then becomes explicable. It is not a matter of wilful neglect so much as a failure to recognise this particular life form for what it truly is.

This mis-recognition has led some academic observers (and I am thinking here of legal academics in this country such as Brian Thompson, Richard Kirkham and Trevor Buck) to speak of the ombudsman as forming a central pillar of a fourth, previously unidentified ‘integrity’ branch of the constitution. Unknown to earlier constitutional analysts, this integrity branch of the constitution is seen to comprise all those regulators, auditors, monitors and complaint handlers, who exercise a critical function within the machinery of constitutional checks and balances but without quite fitting into any of the conventional pigeonholes.

Although gaining currency in the pages of the Harvard Law Review in the 1990s, the integrity branch is a creature most frequently encountered these days on the plains and coastal regions of Australia, its visitations to earth recorded from time to time in the Australian Law Journal. I would not be surprised, or indeed dismayed, if it were to surface more often now in the northern hemisphere as well.

9. Current issues

I would like to draw attention to four concrete issues that have current purchase and that I consider relevant to the task of affirming the distinctive place of the Ombudsman in the constitutional landscape.  My shopping list, or if you prefer, my manifesto, for the safeguarding, strengthening and development of the Ombudsman institution.

First, I enthusiastically encourage the Public Administration Select Committee to maintain and develop its strong and vital interest in the work of the Parliamentary Ombudsman, both as a primary conduit between my office and the legislature, and as an effective instrument for ensuring that the messages that emerge from the Ombudsman find their way to the floor of the House and so into the political lifeblood of our democracy.

Between 1967 and 1997, there was in fact a separate Select Committee devoted entirely to the Ombudsman. We have come a long way since that Committee was first chaired by Sir Hugh Munro-Lucas-Tooth between 1967 and 1971.

Under Dr Tony Wright’s more recent and exemplary stewardship the Public Administration Select Committee, despite its broader remit, has retained a vital and supportive interest in the work of the Ombudsman. It is of critical importance to the constitutional role of the Ombudsman that this remains the case under his successors.

The second issue is the MP filter, to which I referred earlier. I suggest that the Government should accept the recommendations of successive Parliamentary Committees and more recently of the Law Commission that the MP filter should now be removed. This need not, indeed must not, in any way detract from the central relationship between my office and Parliament but it will, I believe, signal the importance of direct citizen access for any modern Ombudsman institution, both as an instrument of transparent accountability and as a sign of commitment to equal and unfettered entitlement.

Thirdly, I consider that the idea of including a right to administrative justice in a new Bill of Rights, canvassed in the Ministry of Justice’s recent Rights and Responsibilities Green Paper, is a good one. In keeping with the South African theme developed at the start of this lecture, we might look no further than the South African constitution for a possible model of such a right, and to the sort of role enjoyed there by the Public Protector and the Public Service Commission as a means of giving force to such a right.

Closer to home, we have in my own Principles of Good Administration and the guidance on Good Administrative Behaviour published by the European Ombudsman in 2001 as a source of more detail on what such a right might entail. And from my privileged position as an ex officio member of the Administrative Justice and Tribunals Council, I know that the Council is currently considering its own set of similar principles for application to the wider landscape of administrative justice.
All of these initiatives set out to do no more than give coherent shape and standing to the citizen expectations and entitlement that already exist. It is hardly a recipe for social unrest, whatever the scaremongers might say.

Fourthly, and finally, I believe we should put into practice the lessons for regulators and complaint handlers set out by the Equality and Human Rights Commission in its recent human rights inquiry chaired by Dame Nuala O’Loan, the former Police Ombudsman for Northern Ireland.

Those of us in the regulatory business, or indeed the ‘integrity branch’ of the constitution, should, in my view, embrace the recommendation that we play our full part in mainstreaming human rights principles, including the principle of equality, not just within our own organisations but within the organisations we oversee in our different but complementary ways.

10. Conclusion: The human factor

I am conscious of course that the sort of changes I am referring to can seem all too remote from the very immediate human situations that give rise to serious citizen grievance. It is that sense of distance that can all too easily consign constitutional issues to the margins of public debate and rob them of any urgency.
Yet the ability of citizens to gain easy access to the complaint system, to know that the Ombudsman’s values are complementary too, and indeed an aspect of, the broader human rights values that increasingly underpin public service reform, and to be confident that Parliament itself remains a credible forum for deliberation of the issues raised, is critical to the viability of the Ombudsman institution.

In 1967, when the office was created, the talk in government was of the need to ‘humanise’ the bureaucracy, to soften the rough edges of the encounter between citizen and state. So let me conclude with a very human story by way of illustration. 

It is a story about a young man named Martin Ryan. In 2005 Martin Ryan had a stroke. He was just 43 years old. Naturally this came as a shock to his friends and family. Although he had a severe learning disability and had lived much of his life in a residential care home, he was always thought of as a strong, charming and energetic man.

When he was admitted to hospital Martin Ryan was placed on a busy general ward. The relevant NHS guidelines required that stroke patients should be admitted under a specialist team for acute care and rehabilitation.

It was Martin Ryan’s misfortune that at the time of his admission the hospital services in question were fragmented and fell short of NHS expectations: there was simply no special team of experts that could identify and meet Martin Ryan’s basic needs.

Nevertheless, the hospital did at least recognise the need for speech and language therapy assessments and these revealed that Martin Ryan would need alternative means of feeding, such as by tube through his nose or abdominal wall.

For reasons best known to themselves, the medics did not make a decision on alternative means of feeding until Martin Ryan had been in hospital for 18 days. Shortly afterwards, Martin Ryan became too ill to undergo the procedure for inserting the tube.

He died 26 days after admission, without having had any nutrition throughout his entire time in hospital.

Now this is a sad story. It is also in many ways a tragic story, in that Martin Ryan’s death seems to have been so unnecessary: with the proper specialist input at the right time he might well have been all right.

But it is also an infuriating story: we hear so much about the money poured into the NHS, so much about the Department of Health vision for health and well being, so much about patient entitlement and quality of service.

Yet all that counts for nothing in the face of an avoidable death, and all the more so of an avoidable death preceded by near starvation.

In the end, the question has to be asked, ‘How on earth can anyone, let alone someone who is severely disabled, spend 26 days in hospital without food or drink, and then just die?’

Of course, Martin Ryan’s family demanded answers. They could no doubt have brought court proceedings; they could have written to their MP; they could have contacted the press. They may in fact have done some or all those things. What they also did was approach Mencap, who in turn referred the case to my office. It was one of six similar complaints about the deaths of individuals with learning disabilities in NHS care between 2003 and 2005.

I investigated the complaints in my capacity as Health Service Ombudsman. The principle of holding the executive to account applies to that role just as much as to my direct Parliamentary role. Here we had a public authority simply failing to live up to the expectations that citizens had quite reasonably come to entertain.

I did not uphold each and every one of the complaints made to me about Martin Ryan and the five other people who died, although I did uphold many.

I don’t doubt that the families wanted even more than I could give. But what I was able to offer, apart from financial compensation and recommendations for future systemic improvement both within the relevant hospitals and at national level as well, was an open and comprehensive review of the relevant guidance and evidence, of the different points of view expressed by all the chief protagonists, and of what I, a non-medic, found to be the common sense rights and wrongs of the situation. It was my aim to complete that task in a way that engaged as far as possible and throughout the entirety of my investigation with all those involved.

In an ideal world that investigation would have been completed in rather less than the two years it eventually took and the answers to the questions asked would in some instances have been easier to reach.

But I am satisfied all the same that the discharge of the Ombudsman function in such circumstances, and in countless other investigations that effectively put a public authority on the spot, is an effective holding to account of the executive, an invaluable, albeit open-ended, contribution to the invariably continuing public debate about the merits of a particular case.

Just as importantly it is a distinctive contribution to informed deliberation about the merits of executive policy and practice in areas of acute concern to all citizens and indeed to all users of public services, whatever their status. 
The precise constitutional pigeonhole for this function may remain unidentified for some time, although the notion of a fourth ‘integrity’ branch has its attractions. Nevertheless, what I am entirely clear about is that, however defined in constitutional terms, the role of Parliamentary and Health Service Ombudsman occupies a distinctive niche within the administrative justice landscape, a niche which amounts to much more than just another form of alternative dispute resolution, let alone a second-class judicial process.

That distinctiveness, I suggest, resides in part in transgressing established boundaries, in making connections between policy and practice, people and politics, principle and performance. It is also, I would suggest, a function at the interface of life and law, of citizenship and the constitution, precisely, in other words, where the peculiar alchemy referred to by Albie Sachs is practised.

It is, I trust you will agree, a topic worthy of this series of lectures, worthy of those who have gone before me, and, more particularly, worthy of the exponent of public law whose name this series commemorates.

Ann Abraham
October 2009