Ombudsman and Government in ‘a new era of responsibility’

Speech by Ann Abraham, at the ‘Lessons in Government’ Series: Brasenose Lecture

12 February 2009

I am delighted to have this opportunity to address you here at Brasenose College in the year of its 500th anniversary and so contribute in a small way to its celebrations. As I will explain, the office of Parliamentary Ombudsman cannot claim to go back quite that far. In fact, the office celebrated its 40th anniversary in 2007. But that’s quite a milestone in its own way, and one of the chief things I want to convey to you this evening is that the Ombudsman is very much an established part of our constitutional arrangements, both an important resource for individual citizens with disputes to resolve and, just as importantly, a source of wider public benefit. As a result, it’s an office that deserves to be better known and, as I hope to show, that has untapped potential for contributing to what looks set to become a new political and economic era.

But I also want to bring to my remarks something of the international context within which the Ombudsman operates. The role of Ombudsman is, of course, of Scandinavian origin, and in many parts of the world it is an office of huge political significance. Now, I am not advocating an overtly political role here but I will suggest that international comparators do help identify the larger constitutional role that I have mentioned and should encourage us to be bold in setting out the sort of horizons against which a national ombudsman institution should operate. As I hope to demonstrate, the work of the Ombudsman is inevitably and closely implicated in some of the critical debates we have day-to-day about our shared public life, debates about the character of a modern democracy, about the place of individual rights, and about the way we resolve disputes and deliver justice.

In the international ombudsman world, 2009 does as it happens mark a significant milestone: it is exactly two hundred years since the Swedes established the first national ombudsman institution anywhere in the world. That Swedish innovation of 1809 was part of a constitutional settlement, in which the office of ombudsman found a central place in the new machinery of Swedish government after a period of absolute monarchy. That new ombudsman role was in other words part of a more democratic, constitutionally based form of government, a sign of more direct citizen engagement and of governmental accountability.

It was not until after the Second World War that the original Swedish initiative took significant root elsewhere. By then, it was the new challenge of moulding public administration to the needs of the welfare state that prompted the emergence of ombudsman institutions in Denmark and New Zealand and in the UK too. That post-war embedding of the ombudsman institution was followed by a third wave from the 1970s onwards, often, as in the original Swedish example, after periods of autocratic government: the creation, for example, of the ‘defensor del pueblo’ offices in Spain, Portugal and throughout Latin America on the overthrow of fascist dictatorships, of the role of Public Protector as part of the post-apartheid constitution in South Africa, and of the human rights ombudsmen who have proliferated in eastern Europe since the decline of the Soviet bloc.

What these various phases of development have in common is something that reflects the original Scandinavian aspiration. The concept of ‘ombudsman’ carries with it something of the weight of ‘people’s representative’, of the idea that the ombudsman stands in for the ordinary citizen and probes the inner working of the state bureaucracy with that quotidian perspective in mind. If the mark of an established state machine is its increasing immersion in arcane over-specialisation, it is the task of an ombudsman to redress the balance in favour of the ordinary, the routine and the more distinctively ‘human’ dimension. And that is all the more so, when the immediate impetus for creating an ombudsman office is major political change and the desire to reverse a pattern of autocracy, whether of a Scandinavian monarch, a fascist dictatorship or a soviet collective. At its root, there is something quintessentially democratic about the institution of ombudsman.

That democratic ethos has recently found eloquent EU-wide expression in the agreed statement of the European Network of Ombudsmen. This was an attempt to capture in a few deft brushstrokes the defining characteristics of the ombudsman institution and to do so in a way that places the ombudsman in its true European cultural context. Alongside a commitment to values such as equality of access, transparency, courtesy and respect, fairness and consistency, impartiality and effectiveness the agreed statement demonstrated a broader alignment with the basic principles upon which the European Union is founded: liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. On this account, the national ombudsman institution in any European state is not marginal to the central project of establishing, even beyond the purely economic sphere, trans-national values and aspirations. Instead the ombudsman is positioned as one of the primary bearers of that cultural heritage, a central institution for the preservation and promotion of fundamental ideals.

Before turning to the situation in the UK, let me mention just one other piece of even broader international context, this time from beyond the shores of Europe. However splendid and noteworthy the Brasenose 500th anniversary celebrations and the 200th Swedish Ombudsman birthday prove to be, we will all surely remember 2009 as the year in which Barack Obama became the President of the United States of America.

I dare say we all want a slice of the Obama magic and to claim him as our own in some way. Now, it is true that I have not so far heard him utter the word ‘ombudsman’ and so to that extent I can see you are going to be hard to convince that Obama, no matter what else he might be, is in fact a natural, born-again, ally of the ombudsman ideal around the world. But let me try.

Already, in his inaugural speech and in his early White House manoeuvres it is surely clear that Obama sees as part of his mission the restoration of confidence in government, the re-establishment of the bond of trust between people and President, and the return of principle to public life. When he speaks so eloquently of a ‘new era of responsibility’, of the ‘price and promise of citizenship’ and of the need for transparency in government, he gives notice, I suggest, of his realization that great things start in small places, in the daily and reciprocal encounter between citizen and state, and in the habitual pursuit of good administration as part and parcel of a fruitful national life that depends on responsible government as well as on responsible citizenship. When he does that, he touches on values that must be close to any ombudsman’s heart and that have in fact animated the spread of the ombudsman institution since its inauguration in Sweden all those years ago.

And let’s not forget the strain of pragmatism too, not to everyone’s taste perhaps, but a necessary ingredient of effective ombudsman activity. ‘The question we ask today is not whether our government is too big or small, but whether it works’ – Obama’s words, not mine. Yet it is my question too, and that of any other national ombudsman. Does government work? Does it do what it says on the tin? Does it make for a solution or merely contribute to the problem? In short, is its public administration any good, a source of benefit to individual and public alike, or rather an obstacle to the good life for all? These are ombudsmen questions plain and simple, and if they are Obama’s questions too, they point to the potentially central role of the ombudsman institution in any modern democratic state.

I want therefore in this lecture to tease out something of that democratic character of the ombudsman institution by turning attention a little closer to home and by considering the current role of the UK Parliamentary Ombudsman, or the Parliamentary Commissioner for Administration, to give it its statutory title. (It is a role, incidentally, that is combined, and has been for some years, with that of Health Service Ombudsman, whose remit extends just to England and not to the other parts of the UK, which have their own devolved health institutions.) And in doing that I want to offer a glimpse, a series of snapshots, of our UK political culture as illustrated by some of the encounters that I have had as an officer of Parliament with those other key constitutional players, the executive and the judiciary, during my period of office.

So, what are we to make of the role of UK Parliamentary Ombudsman? For a start, how many outside university law and politics departments (or even inside them, for that matter) have even heard of it? A colleague of mine had a sobering experience at a recent conference when he found himself sitting next to an east European ombudsman, a seasoned political campaigner and professor of political theory at a major university. On being introduced, he was quick to express his astonishment that there was such a thing as the UK Parliamentary Ombudsman. ‘I have read all your English detective stories – your Agatha Christie and PD James – and not once do I see any reference to ‘the Ombudsman’. Miss Marple, yes, but the Ombudsman, no!’.

This clearly Anglophile observer of the UK cultural scene could be forgiven for not having noticed the really quite well developed existence of the ombudsman institution in this part of the world. His oversight no doubt in part reflects a number of false assumptions about the British (or certainly the English) way of doing things, not least the sense that in a common law world there is unlikely to be much place for an essentially inquisitorial role such as that of ombudsman, apparently so much at odds with the adversarial foundations of the common law mentality: that sort of thing can be left instead to the detectives.

But it reflects reality too. Compare the situation with that in a country like Austria. A couple of years ago the Austrian Ombudsman addressed the biennial conference of the British and Irish Ombudsman Association. Nobody was quite sure whether he was joking (he wasn’t) when he described a weekly Saturday-night TV programme showcasing the work of his office, a sort of ombudsman-watch magazine filling the slot reserved here for X-Factor or Strictly Come Dancing. The fact is that the role of ombudsman here still has a slightly obscure image, reflecting no doubt the sense that it is an alien intrusion into our otherwise happily insular legal and administrative machinery, a bit like that other apparently alien intrusion, human rights, about which I will have more to say later. The chances of any UK ombudsman becoming the material for a prime-time TV show are remote indeed.

No doubt that insularity explains the rather contorted way in which the role of Parliamentary Ombudsman found its way into legislative reality in the 1960s. As I have already mentioned, the correct title is in fact Parliamentary Commissioner for Administration, not Ombudsman at all. The Parliamentary Commissioner Act 1967, the product of the Wilson Labour Government, scrupulously avoided using the word ‘ombudsman’, despite the fact that everyone knew that’s what it meant. Modelled especially on the New Zealand Ombudsman, the PCA had about it the classic ingredients of the ombudsman role: independence from those investigated, inquisitorial powers, the ability to make recommendations but not binding findings, and an ethos that was far removed from the formality and adversarial approach of the conventional court system.

The preceding White Paper had given notice of the underlying policy objective: nothing less than the business of ‘humanising’ the state bureaucracy, smoothing the rough edges of the burgeoning administrative machinery that had accompanied the emergence of the welfare state since the end of the Second World War. Richard Crossman, for the Government, announced the arrival of a new instrument of parliamentary democracy: the PCA was after all granted ‘officer of the House’ status. Quintin Hogg, the future Lord Hailsham, on the other hand, heralded the end of parliamentary democracy, a favourite sound of alarm for just about every proposed constitutional reform before or since. Jeremy Thorpe, leader of the Liberal Party, perhaps struck a more realistic, albeit false, note when he expressed the fear that the PCA would simply end up as the repository for all the ‘dustbin cases’ (as he put it) that regularly cross the desks of constituency MPs.

Ironically, it was the perceived attachment of MPs to just those consistency cases that led to one of the characteristically British compromise arrangements for the new ombudsman institution. Although the whole point of an ombudsman is to ensure citizen access, to give the ordinary user of public services a voice, the 1967 legislation required, almost uniquely, that complaints to the Ombudsman could not come directly from the individual citizen. Instead they had to be filtered by an MP (not necessarily the complainant’s own MP, mind you – just any MP would do) who would present the complaint to the Ombudsman on the citizen’s behalf. And that incidentally remains the position, notwithstanding the recommendation made by Justice in 1967, and apparently accepted in principle by government, that this MP filter arrangement should last for a trial period of just a few years.

So we have a national ombudsman institution in this country of 40-year pedigree (and, let’s not forget, that’s a good few years longer than Brasenose has been admitting women to study here), yet it is an ombudsman institution that has about it some typically British signs of compromise, a touch of the eccentric, and a relatively reserved demeanour, at least when set against some of the international comparators. Is this, then, an institution that can in fact provide us with any really meaningful ‘lessons in government’? Is it sufficiently central to our shared public life that it can claim to be more than the repository that Jeremy Thorpe feared it would become? In short, is the Ombudsman in this country a serious constitutional player? Or to put it another way, what on earth am I doing here?

Well, you will not be surprised to hear that I want to answer ‘yes’ to those first three questions, and to say that I have a very good reason for being here. It seems to me in fact that the Ombudsman, as an officer of Parliament but operationally independent of it, has a uniquely privileged relationship with the other two key constitutional forces, the executive and the judiciary. Of course, the executive (to which I will turn shortly) is the chief object in the firing line: the core role is after all the investigation of complaints of maladministration against central government. But the relationship between Ombudsman and the law can be a delicate one also.

One of my Scandinavian colleagues enjoys teasing me about my susceptibility to judicial review, something apparently unthinkable in his part of the world. When asked whether in that case the Ombudsman in Norway is above the law, his simple reply is that in Norway ‘the Ombudsman is the law’.

That would be a hard claim to make in the UK. In fact, I would not want to make it. I prefer to think of ombudsman practice as constituting a quite distinctive system of justice, separate from the courts, governed by its own principles of good administration, principles for remedy and principles of good complaint handling, and operating according to a set of practices and procedures that are distinctly more accommodating of difference and individual circumstance than those of the civil courts. Unlike my Norwegian colleague, I want to assert that the Ombudsman is very much not ‘the law’ but something rather subtler and, in the field of administrative justice, potentially more effective.

It is, nevertheless, the executive that feels the pinch of the Ombudsman’s reports and the bite of any recommendations. That bite can prove quite painful. Take the recent report I issued that found that Jobcentre Plus took inadequate steps to advise widowers of their new entitlements to widowed parent’s allowance following a change in the law in April 2001. There was clear guidance on the steps that should have been taken going back to 1979. Sadly, Jobcentre Plus proved itself a stranger to that guidance, with the result that the widower in question had missed out on benefits to the tune of nearly £35,000. In a case like that, it is not just a question of recovering redress for the individual concerned, although I am pleased to say that, no doubt through clenched teeth, Jobcentre Plus did agree to hand over the loot. Just as important is the business of ensuring future prevention.

That can often prove more difficult since it requires a change of heart and the expenditure of energy, neither quality being characteristic of some of the darker corners of government. In this instance, Jobcentre Plus looks set to come up with the goods but that is not always the case. It nevertheless remains one of the primary tasks of the Ombudsman to shine a light from time to time into just those shadowy recesses, to gauge the reaction on startled bureaucratic faces, and to set in train a process of future illumination that can extend from the mere changing of the administrative light bulb to full-scale organisational rewiring.

Now, although the relationship between Ombudsman and executive has for the most part been remarkably cordial (some might say too cordial) over the course of the last 40 years, the potential flashpoints go right the way back to the beginning. In the late 1960s the Sachsenhausen case involving the Foreign Office’s inept handling of a compensation scheme for suffering caused by Nazi persecution caught the headlines; in the mid-70s it was the Court Line fiasco concerning the collapse of a tour operator with the loss of tens of thousands of holidays that took centre stage; and in the early 1990s the Channel Tunnel Rail Link case centred on the inability of Kent householders to sell their properties because of the way the Department of Transport handled the project.

In my own time, three recent cases in particular illustrate the theme of instructively strained relationships with the Executive: Tax Credits, Occupational Pensions, and Equitable Life. I would like to talk in some detail about the occupational-pensions case, since this was a case that led to a Court of Appeal judgement that looks set to define the relationship between the Ombudsman and the Executive for the foreseeable future. But the other two examples – Tax Credits and Equitable Life – are also noteworthy in their different ways.

First of all, tax credits. In June 2005 I completed a special report into the by then not so new system for operating tax credits. You might recall this was a policy change designed to offer a measure of income protection to some of the worst off: low-income earners, especially those with children. Drawing directly on the experience of the individual complaints referred to me, I was able to identify 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 its most vulnerable users, frequently leading to debt recovery action by the Government to retrieve overpayments caused by the malfunctioning of its own reforms and, ironically, throwing 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 complaints referred to my Office), I made twelve detailed recommendations aimed at improving the administration of the system in the round. I also felt 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, I was able to draw 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’.

Since tax credits were one of the jewels in the crown of the New Labour government’s tax reforms, it is not entirely surprising that the government was far from enthusiastic about fully embracing the spirit of my recommendations. Instead a certain amount of tinkering has ensued (including some much-needed improvement of the Revenue’s own in-house complaints handling) that leaves the original system largely in place, albeit with some of the rougher administrative edges a little smoothed. One way or another, the number of complaints to the Ombudsman is significantly down, and the instances of identified maladministration reduced too. And that, I’m pleased to say, is progress.

My report on Equitable Life has been in the news rather more recently. It was published in July 2008 after a four-year investigation. Aside from the various specific complaints that I upheld, the key finding was that the relevant public bodies (which included the former DTI, the Government’s Actuary Department, and the Financial Services Authority) had ‘failed for considerably longer than a decade properly to exercise their regulatory functions in respect of Equitable Life’. This ‘serial regulatory failure’ had in my view caused demonstrable injustice, which it was incumbent upon the Government to remedy. I therefore recommended that the Government should establish and fund an independent compensation scheme, notwithstanding the inevitable burden on the public purse.

Since then the Public Administration Select Committee and the European Parliament have lent their support to my recommendations, yet the Government continues to prevaricate. In its response of 15 January 2009, it accepted only part of my findings but apologised for the maladministration that it admitted had occurred. What it would not accept was that it was responsible for the injustice that had arisen or that it should make amends by establishing a compensation scheme. Instead, it appointed a former Court of Appeal judge, Sir John Chadwick, to advise on how the blame should be apportioned and in effect on who should carry the can. Needless to say, this is not quite what I had in mind, nor by the looks of it is it quite what Parliament envisages to be the best way forward. It remains to be seen how things will turn out, but renewed calls for parliamentary debate on the issues and a further round of evidence taking by the Select Committee remain distinct possibilities.

Let me now turn to the report that I published in March 2006 entitled Trusting in the pensions promise: government bodies and the security of final salary occupational pensions. Put very simply, the case arose from the loss by more than 125,000 pensioners of all or part of investments made in final salary schemes. I found that the government’s own maladministration was a significant contributory factor, not least because the official information produced about the security of final salary schemes was sometimes inaccurate, often incomplete and therefore potentially misleading. I recommended that the government make amends. The government in no uncertain terms made it clear that it would not do so. Moreover, it effectively scoffed at 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 an optional source of advice whose findings could be weighed up on a ‘take it or leave it’ basis. The Secretary of State’s view of maladministration was, in other words, to have equal weight to that of the Ombudsman, leaving the executive in effect as judge in its own cause.

After much to-ing and fro-ing, the case ended up before the Court of Appeal in July 2007. Judgment was handed down 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 ran to 146 paragraphs, but the short answer to the first question was ‘no’, the Secretary of State is indeed 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 rational grounds for reaching that different view (which on the facts the Court found wanting). In other words, the government cannot simply assert its right to differ and cast aside the carefully constructed findings of an Ombudsman report. As one of the Lords Justice 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 viable framework for the future relationship between the Ombudsman, Parliament and the executive, and that it does so in a way that properly observes the constitutional role of the Ombudsman in holding the executive to account. I say that because at the heart 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 Parliament to ensure that the Ombudsman, its servant (not the executive’s), was free to discharge its key role of alerting it to an injustice that has occurred through maladministration. Indeed, the Court urged me to pursue vigorously before Parliament any such cases where remedies have not been provided.

These three instances of ombudsman intervention – tax credits, Equitable Life, and occupational pensions – show the ombudsman operating at a high level, taking on the executive in its discharge of key social functions, financial regulation and welfare provision. All three had in common a failure to go beyond good intentions, to deliver tangible benefit where it was intended and to put well-meaning principle into humane practice. The result is of course profound disillusionment with government not just on the part of those individuals directly concerned but of all those innocent bystanders who observe from afar and wonder, ‘Who’s next?’.

That reaction is even more vividly apparent in the cases that are referred to me in my role as Health Service Ombudsman. In health and social care there is no temporary hiding place, no refuge in obfuscation or prevarication. The results of a bad day at the office quickly become all too obvious.

Take an example that I have described in more detail in a recently published selection of healthcare cases. Mrs M was advised to have a bilateral mastectomy. When she discussed the operation with the Breast Care Nurse, Mrs M made it clear that the position and cosmetic appearance of the scarring were important considerations in whether she would have the operation or not. When the Consultant Surgeon gave Mrs M a consent form to sign, she hesitated and did not sign the form immediately. She did eventually sign, however, and the operation went ahead.

When the bandages were removed, Mrs M was horrified to discover that, rather than two scars below the breast line, as she had expected, she had been left with what looked like a single horizontal scar across her chest wall, above her breast line. Mrs M complained about the appropriateness of the surgery and consent procedure in relation to the nature and extent of the scarring. She made it clear that she did so, not to get compensation, but recognition that the operation performed was not the one she had consented to.

As so often, my investigation uncovered a situation that was not simply black and white but very much a perplexing shade of grey. There was no doubt that the operation was in fact entirely appropriate and that the consent procedure was in many respects acceptable too. To that extent, on the technicalities, everything was order. However, we also discovered that there was no review of the consent at the time of the admission, immediately before the operation. It was clear enough that, in the light of the information given to Mrs M, she might quite reasonably have expected two separate scars running across the lower to middle part of her chest. In other words, there were, overall, sufficiently serious shortcomings in the consent process to undermine its validity, even though at first glance everything looked to be in order.

As a result, the Trust apologised to Mrs M and in addition gave an assurance that lessons had been learnt from her complaint, and offered an explanation of the changes made to prevent the failures being repeated. That reassurance about future practice was just as important as the concession to Mrs M herself. The system that had let her down had about it the veneer of care and coherence, yet it had resulted in what Mrs M not surprisingly regarded as a violation not just of her rights but of her person, in an intimate and permanent way. No one individual member of staff had neglected Ms M’s care or deliberately messed things up. But professional adherence to ‘the system’ had somehow left Mrs M bereft. Just like the innocent victims of tax credits, Equitable Life and occupational pensions, ‘the system’ had let Mrs M down when she most needed it. Instead of being the central character in her own story she had been relegated to part of the crowd. What the ombudsman intervention achieved in her case, as in the tax credit, Equitable Life and occupational pension cases, was to restore her to centre stage, give her a voice and put a name to the anonymous system that had otherwise escaped the identity parade.

So what, finally, does the work of the Ombudsman yield in the way of ‘lessons in government’, what might it tell us in quite general terms about the sort of political culture we currently enjoy or perhaps fail to enjoy quite as much as we would like? I want, by way of conclusion, to consider that question under three related aspects: first of all, our democratic practice; secondly our attitude towards human rights; and thirdly our administration of justice.

As I explained earlier, the original impetus for the creation of the Ombudsman came from the recognition that enlarged machinery for administering the post-war welfare state brought with it new risks and new obligations. If the relationship of trust between citizen and government were to be maintained in this new era, there needed to be more accountability on the part of the executive, now entrusted with so much closer involvement in the daily life of citizens.

Forty years later, Gordon Brown’s Governance of Britain Green Paper in July 2007 was an acceptance that the compact between citizen and state stands in need of refreshment. One feature of that reinvigoration needs to be a recognition that for most people it is the daily round of engagement with the benefits system and the Revenue, with GPs and hospitals, care homes and immigration authorities that offers the best, and frequently only, glimpse of the state in action, of the quality of the relationship between government and governed, state and citizen.

Any democracy that aspires towards genuine empowerment and popular participation must take seriously the routine banality of most citizenship experience and invest it with the qualities of dignity and respect that might restore a sense of worth to those who depend upon public services for their daily existence. Too often I hear the refrain ‘It’s just not worth complaining’, the implication being that no one is really listening and that the bureaucratic juggernaut just keeps on rolling. It is, I suspect, only a short step from ‘It’s not worth complaining’ to ‘It’s not worth voting’ and ‘Politicians - they’re all the same’.

The ‘democratic deficit’, of which we hear so much, needs, I suspect, to find a remedy close to the grassroots, in some basic principles of good administration. And that is why I have over the last year or two published just such a set of Principles, alongside similar guidance about good complaints handling and effective remedy. But I still need convincing that enough people out there in government are really listening. If they are not, I suspect it will not be long before we see the consequences in mounting citizen disaffection, especially in an economic climate that already threatens the values of good governance as well as individual dignity.

Human rights should be a source of democratic revival. It is striking that in the emergent democracies of Eastern Europe and South Africa, for example, an enthusiastic and explicit reception of human rights principles has been taken as a sign of genuine democratic commitment. In South Africa in particular we have the model of a constitutional settlement that not only recognises a civil rights mandate but extends to active protection of positive socio-economic rights, whilst at the same time recognising as fundamental on the face of the Constitution the right to good administration.

At the heart of Europe too, not just on its eastern periphery, the European Ombudsman, Nikiforos Diamandouros, and the Council of Europe Human Rights Commissioner, Thomas Hammarberg, have repeatedly reaffirmed the central place of human rights values in the European project, as well as in the role of national ombudsman institutions. It is perhaps telling that Mr Hammarberg now routinely speaks of ‘national human rights structures’, comprising not just national human rights institutions, such as the Equality and Human Rights Commission in Britain, but national ombudsmen too.

Even closer to home, in Northern Ireland, we have witnessed a revival of interest and understanding of human rights as part of the healing process after decades of trauma and disengagement. Yet elsewhere in the UK we remain blocked in our response, too inclined to associate human rights with crime and security rather than dignity and ordinary decency.

That is perhaps why the cases I see suggest that public authorities struggle to see the relevance of human rights to their daily work. On the one hand they will admit to almost anything – wholly unprofessional conduct, inadequate service delivery, you name it - rather than an infringement of human rights, no doubt advised by their lawyers that any other course might land them in the dock at Strasbourg, or more likely the front pages of the tabloid press. On the other hand, they will happily pay lip service to human rights, and rest content with the inclusion of some flowery phrases in a dusty policy position, long since superseded by other priorities on the ground. Human rights as a real source of positive value in an otherwise process-driven public service remain, I fear, one of the great lost opportunities.

And finally there is the fragmentation of our administrative justice machinery. Administrative justice was slow to get going in this country. It is only since the 1970s that the remedy of judicial review has taken off, bringing with it the unfortunate side effect that legal redress is seen as the dominant remedial instrument, even though the vast majority of administrative practice is better dealt with elsewhere.

The creation two years ago of a new Administrative Justice and Tribunals Council signals a fresh opportunity to create an integrated system that gives proper weight not just to the courts but to tribunals, ombudsmen and first-instance decision makers too. At last, the idea of an administrative justice ‘system’ appears to be taken seriously, even if the first consequence of the arrival of the new Council is to draw attention to the fact that at present no such ‘system’ (in any meaningful sense of the word) currently exists.

The recent Law Commission consultation on public law remedy is also a welcome opportunity to consider how the current disintegrated system can be reformed. The need is clear enough: to provide effective dispute resolution to aggrieved citizens yet at the same time to identify patterns of failure and opportunities for systemic improvement. It is in this latter regard that ombudsmen are especially well placed to take up the challenge. Less shackled than other parts of the justice system by a constraining common-law mentality, the ombudsman is relatively free to roam, to take an inquisitorial approach, to remain flexible and responsive, with an eye to the bigger picture and to the bigger ambition of bringing about coherent, systematic change.

And so as we stand on the threshold of what may well prove an unprecedented challenge to our post-war political and economic assumptions, ‘change’ in the way we view public services and public administration, in the way we conceive of our shared democratic practice, our espousal of individual rights and our administrative justice system may yet be forced upon us at a pace and with an urgency not of our choosing. If we find ourselves unprepared, we will have no one but ourselves to blame, since the writing has been on the wall for many years. In our eagerness to enjoy the good times, we have been slow to sanitize our public life and set it upon a firm foundation of sustainable values instead of ephemeral, ‘here today, gone tomorrow’, fads and fashions.

The lessons in government yielded by the work of the Ombudsman are not hard to learn but they are perhaps hard to put into practice. As we heard last month from the steps of the Capitol, there is no longer any hiding place. We do indeed face a new ‘era of responsibility’ in which the stakes are nothing less than the ‘price and promise of citizenship’. That ‘promise’ of a reinvigorated democracy based on rights and the rule of law remains as inviting as ever. But perhaps more pressing than ever too is the reciprocal price that we must collectively pay to ensure a system of public service and administration that can live up to the promise.

I can tell you now that I am ready for the challenge - if you are. Perhaps the most clichéd but still most vital ‘lesson in government’ is that democracy, like football, Facebook and X-Factor, really is ‘all about people’. The ombudsman institution, from its Swedish origins to its current worldwide presence, is a reminder of that. We would all - not least those in the somewhat tarnished corridors of power - do well to remember it.

Ann Abraham
12 February 2009