Home > About us > History > Joint response
..by the Public Sector Ombudsmen in England to the Cabinet Office consultation paper
A New Commission
Which model?
Associates
Are the changes proposed sufficient?
The MP Filter
Jurisdiction and powers
Additional bodies
Specification of bodies within jurisdiction
Personnel matters
Contractual matters
Other matters
Accountability
Answerability to Parliament
Reporting
Performance targets
Complaints about local authorities
Appointments
Parliamentary involvement
Terms and conditions of service
Non-executive members
Names
1. This note sets out the joint response of the public sector ombudsmen in England (the Parliamentary Commissioner for Administration, the three Local Government Ombudsmen, and the Health Service Commissioner for England) to the consultation paper issued by the Cabinet Office in June.
(paragraphs 2.6 to 2.11)*
2. We welcomed the conclusions of the Cabinet Office Review published on 13 April and we welcome the issue of the consultation paper. Developments since we submitted our memorandum to Ministers on 28 October 1998, such as the proposals in the "Modernising Government" White Paper, legislative and other proposals to encourage collaboration between local authorities and NHS bodies, and the pilot studies for the proposed ONE service, have reinforced both the case and the need for action to modernise the public ombudsman service.
3. Our answer to the question "Should the public sector ombudsmen schemes in England be combined to form a Commission?" is therefore an unhesitating and emphatic Yes.
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4. We believe that a collegiate model is preferable to a model comprising one ombudsman and a number of deputies. We say that for the following main reasons.
a. If there were a single Chief Ombudsman there would be pressure for him or her to decide all important cases and issues. This would be likely to generate an unmanageable workload: the total number of complaints received by the existing schemes is of the order of 22,000 a year; and this number is much more likely to grow than to diminish.
b. There would be similar pressure for the Chief Ombudsman to undertake all major representational activities: that would add yet more to his or her workload.
c. Each of the sectors within jurisdiction (eg local government and the NHS) will reasonably expect to be able to discuss matters of particular concern to them with an Ombudsman who has a special interest in complaints about bodies in the sector.
d. It is desirable that the members of the Commission should between them have both a wide range of experience covering bodies within jurisdiction, and other relevant skills (such as a knowledge of administrative law).nbsp; It is the experience of the Commission for Local Administration in England that its work has positively benefitted because all the Commissioners are equal in status and in no way subordinate to one another.
5. Under the collegiate model that we envisage all the ombudsmen would be appointed on the same terms, and would have the same legal powers and jurisdiction. In practice, they would no doubt specialise, whether by reference to particular public services or geographical areas. However, specialisation should be left to the new Commission to decide, and should not be prescribed in the legislation: otherwise, the benefits of the "one stop shop" would be put at risk.
6. The ombudsmen would be either the only, or the only executive, members of the new Commission. However, the Commission would have a separate legal personality for such purposes as employing staff, concluding contracts, and accounting for the use of public funds, and - importantly - producing advice on good administrative practice. One of the ombudsmen would be appointed Chairman and Accounting Officer: other appointments, such as that of a Deputy Chairman, should be left to the Commission to decide. This model is well precedented and understood: it is essentially the model offered by the Commission for Local Administration in England. It provides both flexibility and cohesion.
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7. We entirely accept that it is desirable that the ombudsmen should be able to exchange information with their counterparts in Scotland, Wales, and Northern Ireland, the Information Commissioner, the Standards Board for Local Government in England, the Independent Housing Ombudsman, and any other similar institution. Indeed, we ourselves pressed for provision to this effect to be made in the Freedom of Information Bill. It might be convenient to take power to add further institutions by subordinate legislation.
8. However, we are doubtful about some of the other possibilities mooted in paragraph 7.3 of the Cabinet Office Review. It would not be acceptable for the ombudsmen to exercise the powers of, say, the Information Commissioner, or vice versa; and there should be no scope for confusion or argument about the evidential or legal basis on which the responsible institution is exercising its powers, as might happen if there were a single report covering matters within separate jurisdictions. A further point is that, for example, NHS bodies in Scotland are accountable to the Scottish Executive, and the Health Service Commissioner for Scotland is accountable to the Scottish Parliament, while NHS bodies in England are accountable to the Secretary of State for Health, and the new Commission will be accountable to the Westminster Parliament. A single report, by either the HSC for Scotland or a member of the new Commission dealing with both English and Scottish NHS bodies, would risk blurring those lines of accountability. The point is, of course, of general relevance.
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9. We regard the proposed changes (including changes in ways of working) as sufficient, in particular, to provide a "single door" for complainants.
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10. The PCA has publicly advocated abolition of the MP filter even if the Parliamentary Ombudsman scheme were to remain separate. He believes that it deters members of the public from using the services of his office. That belief is consistent with experience both abroad and at home: when the "councillor filter" was abolished in the local government scheme in 1988, complaints to the Local Government Ombudsmen rose by over three-quarters in the space of 2 years. He also considers that other aspects of the MP filter - in particular, the fact that the PCA is, in effect, serving two customers in the original complainant and the referring MP, and the heavy emphasis in the legislation on formal investigation, rather than resolution, of complaints - are a significant impediment to the adoption of better working methods.
11. It seems to us clear that it would not be possible (or desirable) to retain the MP filter under the proposed new arrangements. It obviously could not be extended to local government; and to impose different conditions on complaints against different types of body would perpetuate the difficulties which it is a prime aim of the proposed reforms to remove. However, we emphasise that this does not mean that we believe that the relationship between the new Commission and Parliament should be other than close. This is developed in more detail in paragraphs 20 and following below. Nor would abolition of the MP filter exclude the involvement of MPs in complaints put to the new Commission. Indeed, at present MPs frequently do refer complaints to the Local Government Ombudsmen and the HSC, even though there is no statutory requirement for complaints to be referred by them.
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12. The core function of the ombudsmen is, and should remain, the investigation and resolution of complaints from members of the public, or from organisations other than public authorities, that they have suffered because of the acts or omissions of bodies within their jurisdiction; and, if the complaint is justified, the securing of appropriate redress. As now, their jurisdiction should not extend to matters of general policy, or to the merits of discretionary decisions taken without maladministration. It seems to us that the formulation in section 3(1) of the Health Service Commissioners Act 1993 is appropriate.
13. Systemic investigations, the dissemination of advice on good practice, and the making of recommendations for improvements in the operation of public bodies add value to the work of the ombudsmen (and should remain within the scope of their powers); but they are not its main aim or justification.
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14. We strongly believe that if it is thought appropriate to bring additional bodies or services within the jurisdiction of a public ombudsman (as has been suggested, for example, in respect of education, higher education, and independent healthcare) that should be done by extending the jurisdiction of the members of the new Commission (and, if necessary, adding to their number), not by the creation of an additional, separate, public ombudsman scheme. Otherwise, the difficulties of the sort which were one of the main reasons behind the Review will be recreated.
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15. This issue has two aspects. Regarding the first (paragraphs 2.19 and 2.20) we believe that the approach in the Local Government Act 1974 and the Health Service Commissioners Act 1993 (generic definition) is much to be preferred to that in the Parliamentary Commissioner Act 1967 (individual listing). Experience has shown that the latter leads to an unwieldy list which is hard to keep up to date: those disadvantages would, of course, be even greater under a combined jurisdiction. We accept, however, that there will be a limited number of bodies whose status is debatable, or which do not come within the generic definitions, and will therefore need to be individually identified. The approach aded in the Freedom of Information Bill appears to deal with the issues successfully.
16. The second question, raised by implication in paragraph 2.22, is whether it is necessary to widen the specification so as to include, in particular, bodies from the private and voluntary sectors operating in partnership with one or more bodies within the ombudsmen's jurisdiction. Certainly it is important that any new legislation should ensure that the jurisdiction of the new Commission is wide enough to include such partnerships, or other arrangements, set up to improve the delivery of public services under the drive to modernise government. We would be very willing to advise on the implications of alternative formulations.
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17. We do not believe that personnel matters should be brought into jurisdiction. As a matter of principle, we see no reason why the employees of certain public bodies should have wider rights than those of other employees.
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18. Once a contract is in being, disputes relating to it should be resolved by arbitration or the courts. However, we do see a case for allowing the ombudsmen to investigate complaints about maladministration in the process leading up to the award of a contract. There is a legitimate public interest in this, since public money is involved; and although complainants may report any irregularity to the Audit Commission or the National Audit Office, this does not provide an avenue through which they can secure redress.
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19. Whether there should be any substantial addition to the matters that can be investigated by the ombudsmen is a matter for Government and Parliament. There are, however, a number of detailed points where we believe that the existing legislation should be clarified. We are submitting a separate note on these and some other technical matters.
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(paragraphs 2.24 to 2.27)
20. To set our answers to the questions in this section (and to those posed in paragraphs 2.28 to 2.33) in context, we should like to make some general comments.
a. The new Commission will belong constitutionally with the legislature.
b. It should therefore not be accountable to the executive. On the contrary, it must be, and be seen to be, independent of the executive.
c. However, as a public body, publicly financed, it must be publicly accountable. That accountability should lie to Parliament and be as clear as possible.
21. These considerations suggest that there could be advantage in setting up a statutory House of Commons Commission, analogous to that established under the National Audit Act 1983 in respect of the National Audit Office. There are, indeed, obvious similarities in the constitutional position of the NAO and the new Commission. It would be possible to involve such a House of Commons Commission in, for example, decisions on funding, appointments, and reporting.
22. Decisions on the constitutional status and the funding of the new Commission may have implications for the employment status of the Commission's staff. It is important that representatives of the staff of the existing ombudsman schemes should be consulted before any such decisions are taken.
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23. The new Commission should in its entirety be directly answerable to Parliament.
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24. The proposed reporting arrangements appear sufficient; and we see no need for detailed statutory requirements regarding the content of annual reports.
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25. It would not be acceptable for the new Commission to be required to agree its performance targets with Government: that would clearly undermine its independence. It would, however, be reasonable to require the Commission to consult the suggested House of Commons Commission in setting its targets.
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26. We consider it important to recognise that local government is directly elected and that individual councils should not, therefore, be summoned to account by Parliament. But we do not see this as presenting an obstacle to the Commission being answerable to Parliament so long as the Ombudsmen were not subject to direction by Parliament in the conduct of an investigation of the actions of a local authority or in reaching a view on what would be a satisfactory remedy for a council to provide in any particular case; and so long as Parliament bound itself not to question the administrative actions of individual councils but rather to focus on the effectiveness of the Ombudsmen in dealing with complaints about local government and on general lessons for public administration.
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(paragraphs 2.28 to 2.33)
27. The ombudsmen should continue to be appointed by The Queen.
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28. Although this is essentially a policy matter, we believe that there would be advantage in the involvement of Parliament in the appointment process. The suggestion of a House of Commons Commission (paragraph 21 above) would provide one, though far from the only, possible way of achieving this.
29. For the reasons advanced in paragraphs 4 and 5 above we consider that all the ombudsmen should be appointed in the same way and have the same legal powers and jurisdiction. Any process of consultation required by statute would therefore presumably have to extend not only to local authorities but also to other interests within jurisdiction, such as the professions employed in the NHS. That seems likely to be unnecessarily cumbersome. We suggest that the scope of consultation should be left to Government and Parliament to decide in relation to individual appointments.
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30. In general, there seems to be no pressing need for radical changes in the existing terms and conditions of the ombudsmen. In more detail, we suggest the following.
- The provisions for removal from office should be as they are now for the PCA.
- We suggest that the existing salary links between the Ombudsmen and the judiciary should be formalised; any subsequent changes in those links should require express Parliamentary approval.
- We see no especial need to change the existing provisions regarding retirement. If change is thought to be necessary, we suggest that the term of office should be of 10 years, or until age 65, whichever is the shorter. A reasonably long term of office is desirable in order to safeguard independence. For the same reason, there should be no possibility of reappointment.
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31. If non-executive appointments are made, the following points should be safeguarded.
a. The role of the non-executives would not be to call the Ombudsmen to account: that role is for Parliament.
b. The non-executives should not be appointed, or expected to act, as the representatives of any sectional interest.
c. The non-executives must not be involved in the conduct of investigations or decisions on individual cases.
32. Parliamentary involvement in any appointment process seems desirable: there should be no grounds for alleging that the non-executive members are Government nominees who will "keep the ombudsmen in check". We assume that the term of office of non-executive members would be of the order of 3 to 5 years.
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33. We do not regard ourselves as experts in this field. The only suggestions that we wish to make are:
- that the ombudsmen should be called just that;
- that the words "ombudsmen" and "public" should appear in the title of the new Commission.
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