Ombudsman issues to consider
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- The organisation of the English public sector ombudsmen
- How much of an impact does the PO really have?
- How accountable is the PO?
Here is not the place to undertake a detailed analysis of the work of the Office over the past forty years or the input of the different post-holders, 83 but a few themes will be explored as they relate to the key criticisms that have been levelled at the PO in the past and present.
The organisation of the English public sector ombudsmen
Just a few years ago the talk in the ombudsman sector was all about reorganisation. In 2000 a Cabinet Office paper proposed the establishment of an integrated ombudsman's office for England. This plan would have pooled together the work of the Health Service Ombudsman for England and the Local Government Ombudsmen for England, as well as the PO with its pan-UK jurisdiction. 84 The idea appeared to have the backing of the government, but contained a number of unresolved questions. 85 In particular, the proposals never got to grips with the implications for citizens living in Scotland, Northern Ireland and Wales. Under the proposals, these citizens would have been required to complain to an ‘English’ ombudsman in those areas of executive activity affecting them that were still controlled by the UK government.
For the moment, the integration agenda in England appears to have been dropped, and alternative means are now being pursued to address some of the weaknesses in the ombudsman set-up identified in the original proposals. A key area of concern for the ombudsmen has been their ability to provide a coherent service in an age of complex governance. The issue is that the increased use of the partnership approach to governance has meant that some complaints involve more than one public body, and that often those bodies belong to the jurisdiction of different ombudsmen. Where this situation occurs, complainants have to make separate complaints and when the relevant ombudsmen investigate, by law, they are generally prevented from conducting joint investigations or issuing joint reports. The solution currently before Parliament in the Regulatory Reform Order 2007 is to relax the powers o fthe PO, the English Health Service Ombudsman and the English Local Government Ombudsmen to facilitate joint working, 86 and this approach should secure positive results. However, not only is the Order less complete than the original integration plans and some potential problems will remain, 87 it does not address the crossovers between the work of the PO and other public services ombudsmen.
Another weakness that inspired the integration plans was the apparent under-use of the ombudsmen. The objective was to simplify the point of public access to the ombudsman system. At present, this area of the administrative justice system is complicated by the existence of a number of subject-specific complaints mechanisms, each with a completely separate point of entry for the complainant. By establishing a ‘one-stop shop’ it was hoped that the process of complaint could be made easier and a platform provided from which the ombudsmen themselves could better advertise their services and raise public awareness. In other words, there would be a move towards the user-friendly citizen-orientated complaints service that many argued should have been at the heart of the original proposals for the PO in the 1960s. A ‘super-ombudsman’ could perhaps even operate as the focal point of the entire alternative redress network with enhanced responsibilities for auditing ‘lower-tier’ redress mechanisms. 88
With the introduction of integrated ombudsmen in Wales 89 and Scotland 90 to join the defacto integrated Northern Ireland Ombudsman, 91 it now looks unlikely that the PO will be merged with any other ombudsmen. 92 A more realistic merger would involve the English Health Service Ombudsman and the English Local Government Ombudsmen, possibly together with the Housing Ombudsman Service. 93 This solution would secure many of the advantages originally mooted by the Cabinet Office report, particularly if it were possible to bring the new ombudsman within the direct overview of Parliament. This latter move, however, would mean having to overcome the traditional local government objection to complaints against local authorities being open to potential scrutiny by Parliament.
How much of an impact does the PO really have?
The question of how to raise the profile of the PO has been a recurring issue. In this respect, the Office has not been idle in recent years and a concerted effort has been made to modernise its working practice in favour of the complainant. Being customer-orientated has not always been one of the PO's strengths, 94 hence it is to be applauded that the Office has made recent efforts to refocus on the needs of the complainant and to involve the complainant more in the investigative process than previously. 95 The simplest way, however, to improve the connection between the PO and the public would be to remove the MP filter, if ever Parliamentary time could be found to enact such a simple measure.
One method of making the post better known is to submit subject-specific reports to Parliament to conclude an investigation with significant public interest. Such reports tend to attract wide public attention, but the downside to this approach is that there is bad publicity to be gained where a government department refuses to comply with the PO's recommendations. In this context, the biggest challenge yet to the authority of the PO is the stance the Department of Work and Pensions has taken towards to the PO's Occupational Pensions report, a report which did receive headline media attention. Although it is still possible that the government will provide an effective remedy in response to the report, 96 already there has been comment from a number of quarters about the ineffectiveness of the ombudsman. 97 If this set of events occurs too often, the danger is that complainants will lose trust in the ombudsman, with a possible increase in judicial review applications the result.
This brings us to the most important factor in the success of the PO – the Office's relationship with the government. Up to a point, the government could reduce the effectiveness of the ombudsman scheme through a concerted campaign of non-compliance. It is, therefore, worrying that in recent years the government has initially responded in an unhelpful and negative manner to several high profile PO reports. 98 The PASC has described this series of events as unprecedented. 99
Unfortunate as the government's attitude sometimes is towards the PO, the authority of the PO cannot be accurately assessed by the Office's ability to secure immediate redress. A trawl through PO cases of past and present reveals that in the more controversial cases, redress can take some time to secure. Ultimately though, the PO's record is strong, with redress being secured on almost every occasion, not just for the individual complainants but for significant numbers of people also affected by the uncovered maladministration. 100 This is testament to the strength of PO reports and the work of Parliament in persuading the government to devise workable solutions to the problems identified by the PO.
In any event, the impact of an ombudsman cannot be measured purely in terms of the provision of redress. While the PO was designed as a redress mechanism, from the outset the intention was also to create an institution that would support Parliament in calling the government to account. In this regard, the PO's work has always been successful in uncovering and making available information about the actions of the public authorities within its jurisdiction, to a degree that would not have occurred had the Office not existed.
Taken together, therefore, the achievements of the PO have been considerable. Moreover, one of the reasons why the PO has, on occasion, come into conflict with government departments has been because the Office has been prepared to take on investigations in politically sensitive areas and has not allowed the cost implications of its findings to deter it. In other words, the fact that the Office has been called upon to do battle with government on more than one occasion in recent years is arguably evidence that the PO is doing her job well.
How accountable is the PO?
The 1967 Act is commendably short. Although it contains some specific limitations on the Office's ability to operate, the key to its continued functionality is the degree to which it places faith on the decision-making capacity of the PO. But, as already noted, this strength exposes the Office to criticism that no-one really knows how it operates. It also places an enormous emphasis on the ability and character of the incumbent PO to produce results. Given the trust that has to be placed in the PO, to demonstrate that public expectations are being met the Office requires a mechanism by which it can be scrutinised and called to account.
In the past, this function was on occasion performed by the Cabinet Office in its ad hoc reviews of the PO. An additional form of accountability is provided by the courts through judicial review, but is rare. More constructively, the current PO has established an advisory board ‘[t]o enhance the governance of the Office, improve the transparency with which it operates and bolster the independence of the role’ that the PO performs. 101 However, as useful as this board may be to the PO in providing advice and a forum for raising difficult questions, only two external members attend the board and it has no remit to report publicly.
The real key to the accountability of the Office, and one of the strengths to the current PO design, is the role of Parliament. Accountability issues were not dealt with directly within the 1967 Act itself, but a Parliamentary select committee was established shortly after the Act was passed to oversee the PO's work and receive reports. 102 The arrangement has worked particularly well in giving support to the PO's findings, with the aforementioned examples of section 10(3) reports being the best evidence of the relationship in operation. In addition, the relevant select committee has almost always scrutinised the work of the PO on an annual basis and undertaken a number of more targeted reviews of specific aspects of the PO's work. The result of these reviews has often been a constructive dialogue with the PO and the government, with many an attempt made to secure improvements in the Office and legislative change. The select committee's recommendations have not always been accepted, 103 but where reviews have taken place they have added to the perception that the PO is an important part of the administrative justice network that has an aura of fairness, competence and impartiality.
If the PO is to preserve its current position, and indeed grow and become an even more effective institution, it is important that this link is retained and built upon. Furthermore, given the politically sensitive nature of some of the issues that the PO is called upon to tackle, the PO as presently established is probably not capable of successfully operating without such Parliamentary support. In this respect a cautionary note should be made about Parliament's current capacity to scrutinise the PO. In 1997 the decision was made to restructure the select committee system. The result was that, whereas formerly there had been a dedicated select committee to the PO, there is now the PASC which possesses a remit much wider than just the PO. In terms of the support that the PASC has provided the PO, its performance has so far been exemplary. This was demonstrated twice in the 2005-06 Parliamentary session in its thorough review of two highly contentious section 10(3) reports. There must, though, be some question marks about the ability of the PASC to perform the regular scrutiny function that its predecessor took so seriously. Each and every year since 1997 the PO has been invited along to give evidence, but on only two occasions during that period has the PASC found the time to conduct a more in-depth study of the work of the Office. 104 The difficulty here is that were there to be any developing deficiencies within the operation of the Office, it is unclear at what stage the overworked PASC would pick them up.
