Foreword
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At a time when the public sector is in a seemingly permanent state of flux, the achievement by a statutory office of its 40th anniversary is notable indeed. To be able to record widespread recognition as part of the constitutional fabric is an additional pleasure. Yet this happy task falls to me as the 8th holder of this office, the first woman and the first appointment from outside the previously established nurseries of the Bar and Senior Civil Service.
I mention my ground-breaking credentials not from any misplaced sense of iconoclasm but as a sign of the way in which this now venerable institution has begun to embrace the modernising agenda that has swept through public life in the last decade and more. That process of modernisation promises in the case of the Parliamentary Ombudsman a regime ‘fit for purpose’ well into the 21st century. It is my privilege to oversee the first stage of implementation.
It is a pleasure too to introduce Richard Kirkham's 40th anniversary publication, The Parliamentary Ombudsman: Withstanding the test of time. As Richard's paper demonstrates, the life and times of the Parliamentary Ombudsman have not been without their challenges. Born of a political climate in the 1960s that placed the emphasis firmly on modernisation, this innovative statutory office brought to these shores an institution conceived on foreign soil, the product of a Scandinavian legal and administrative ethos unfamiliar to the common law and UK constitutional settlement. In ways somewhat reminiscent of the reception 30 years later of the Human Rights Act, detractors feared the consequential decline of nothing less than parliamentary democracy itself. Even the office's supporters lamented the tendentious legislative framework within which it would operate, its ‘botched’ fabric and ‘limping’ gait. The jibe of ‘Ombudsmouse’ still wounds 40 years later.
Yet readers of Richard Kirkham's fine survey will discover that much has been achieved since that somewhat precarious start. The Parliamentary Commissioner Act 1967, despite, or perhaps because of, its brevity, has withstood the test of time: the‘MP filter’ and the unenforceability of the Ombudsman's recommendations have not been so restrictive as to impede significantly the effectiveness of the office; and the central concept of ‘maladministration’ has proved over the years sufficiently malleable to allow the Ombudsman's role to adapt and grow. From its first major investigation, Sachsenhausenin 1967-8, when the Foreign Office was persuaded to reconsider its position on compensation payments, right through to my recent report on occupational pensions in 2005-06, when the Department for Work and Pensions was not quite so easily persuaded to provide a remedy for the complainants' loss of pension rights, the office of Parliamentary Ombudsman has shown itself a constitutional force to be reckoned with.
The particular service provided by the paper that follows is to help with the task of defining the nature of that ‘force’ as it has evolved over time. It is this perspective that makes the history of the office of more than antiquarian interest: just what the Parliamentary Ombudsman is, where her remit starts and ends, what her relationship with the courts and tribunals should be, are questions still very much with us.
Let me draw upon Richard Kirkham's paper to suggest some answers. The original purpose of providing an aid to Parliament in its constitutional scrutiny of the Executive has evolved alongside the increasing sophistication of administrative law in the intervening period. Whilst the office would not expressly espouse a role as ‘people's champion’ in emulation of some overseas models, it has certainly carved for itself a distinctive niche in the judicial landscape, as a source of dispute resolution, as a guardian of good public administration, and as a systematic check upon departmental effectiveness.
These three distinctive, but inter-related, roles define much of what the office is currently about and where its future challenges lie. The investigation and resolution of individual complaints remains the staple diet of the office's work, the evidential base against which patterns of good and bad practice can be mapped. To that task I increasingly bring the sort of ‘strategic’ approach expected of any modern Ombudsman system: early diagnosis; appropriate levels of response (not the‘ Rolls Royce approach’ for its own sake);the ability touse the intelligence yielded to aid future prevention as well as immediate cure. The Ombudsman is not a court or tribunal, certainly not a court or tribunal of the sort familiar to lawyers of a common law jurisdiction. Ombudsmen and courts are like chalk and cheese: superficially similar, but of very different texture and ingredients. Liberated from the burden of imposing enforceable remedies, with wide discretion, the Ombudsman is free to establish a very different relationship between the disputing parties, based upon trust and shared understandings, not formal compliance. It will remain the task of the office to uphold its distinctive tradition and practice whilst simultaneously forging stronger links with the rest of the system of administrative justice, including the courts and tribunals.
Central to that linkage is a shared understanding of respective roles in exercising good guardianship of public administration more generally. The Ombudsman has a special part to play. It is in recognition of that special role that I have embarked upon the creation of Principle so fGood Administrationto help shape consensus on what modern public service delivery should look like, to create expectations against which it can be judged (by my office and by others), and to act as a catalyst for reflection and future development. In the end, the task of delivering high quality public services rests with government departments themselves. My role is to facilitate that process, to enable the emergence of well-founded principles of behaviour and better delivery. It is by being if not quite a ‘champion of the people’ then at least a serious ally of the people that I can best exercise my function of ‘aid to Parliament’. The two go hand in hand, the one effortlessly enveloping the other.
It is here that the role of ‘systematic check’ is of particular value. Unlike the courts and tribunals, I am not constrained by the need to be concerned exclusively with the isolated or particular incident. Where clear justification arises, I can issue a special report to highlight systemic shortcomings, identify remedies and propose longer-term change. The authority of such reports comes from the quality of their findings and the compelling nature of their arguments. Once again, trust and shared understanding rather than formal compulsion are the essential conditions of success.
The paper quite rightly identifies various themes that recur down the decades: the need for more ‘joined-up’ complaints handling across the public sector; the need for the Ombudsman to demonstrate the impact of her work; and the question of how the office can be made properly accountable to Parliament. It is gratifying to read the conclusion that 'the Parliamentary Ombudsman has proved to be an effective addition to the system of administrative justice in the UK'. It is certainly the case, nevertheless, that a few touches of modernisation would still be very welcome: more clarity about the relationship between the Ombudsman and the courts and tribunals; more recognition that in a devolved environment there is even greater need for Ombudsmen in Scotland, Wales, England and Northern Ireland to work together from time to time in the best interests of complainants. It might even be about time we allowed citizens direct access to the Ombudsman. Just about everyone else in the world seems able to live with that idea. Yet direct access would not be warranted at just any price: the present relationship between the Ombudsman and Parliament is valuable and something to be conserved; to disturb that constructive relationship just for the sake of it would be an act of reckless folly.
On the underlying question of whether we need new substantive legislation, I remain unconvinced that we do. I do not, for example, see any genuine need for a power to make my recommendations enforceable. This is a system that relies on shared understandings and mutual trust. The courts are not the place to make the system work. There is, however, one important proviso. If government departments were ever regularly and systematically to reject the Ombudsman's findings, I have little doubt that the calls from the public, and indeed from Parliament, for enforceable recommendations would become too loud to resist. That would be a sad day, and a sign that the delicate balance achieved these past 40 years had been irrevocably damaged.
As Richard Kirkham's paper demonstrates, there is much in the present arrangements to celebrate and to nurture. The key is trust amongst the various constitutional players. With that trust, an active and positive Ombudsman can only be good for public administration and public services. Without it, we might just find ourselves stumbling into a crisis that nobody wants.
Ann Abraham
March 2007
