Ombudsmen in the 21st century
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The PO has proved to be an effective addition to the system of administrative justice in the UK, but a number of challenges will face the PO through the 21st century and may lead to further amendments to the Office's powers.
The most important driving force behind any future developments will be the changing landscape of the administrative justice system. Since 1967, the PO has become increasingly surrounded by other public sector ombudsmen and a plethora of specialised complaints systems. The complexity and apparent incoherence of this network can cause problems. Given the myriad of potential crossovers between the different complaints mechanisms and the public authorities they are designed to investigate, to provide an effective service the Office cannot afford to operate in isolation. Even without organisational reform, the Office needs to continue its efforts to improve links with the remainder of the administrative justice system. In response to this growth in redress mechanisms, at some point in the future the government will have to visit this issue and attempt to provide a more holistic approach to managing and organising this sector. 105 Too often in the past the government has undertaken localised reviews of specific areas of the administrative justice system, with insufficient attention being paid to the implications for other branches of the sector. It may be that the current distribution of complaints bodies works and is appropriate. But there is a sense that it is excessively complex and largely unknown or misunderstood by the general public. As the senior figure head in the non-judicial and non-tribunal sector, the PO should be a prime mover in leading the debate in this area.
There are tentative signs that the need to renew civil justice in this country is on the government's agenda. 106 The Tribunals, Courts and Enforcement Bill could be part of the solution and will introduce a new Administrative Justice and Tribunals Council 107 to oversee the sector. The PO will sit on the new Council and its role will be to ‘keep the administrative justice system under review’ and ‘consider ways to make the system accessible, fair and efficient’. 108 But the extent to which this provision will empower the Council to commission research, undertake root and branch reviews, and make recommendations is as yet unclear. As with the 1967 Act and the PO, much will depend on the attitude and energy that the Council brings to its role.
If an overarching review of the administrative justice system in the UK were undertaken, it is highly likely that it would conclude that the distinct post of the PO should be retained. The PO's proven ability to take on politically sensitive issues of executive decision-making and its direct link to Parliament are essential facets of the Office that would be hard to improve upon. In any event, in the short to medium term, the position of the PO will remain. As long as this is the case, the continuing challenge for the PO will be the same as it has always been -to find the optimum way to perform its various roles, the priority of which were never confirmed in the 1967 Act. This means balancing the requirement to secure redress for complainants and the need to offer constructive advice on how best to achieve long-term administrative improvements. But the PO is also part of the overall accountability system and is attached to Parliament. This has proved a successful arrangement on a number of occasions in the history of the Office. The question is how far can this model go? One of the most important aspects of a healthy liberal democracy is the capacity to scrutinise the executive. In this respect, because of its rare powers of investigation and its reputation for independence, the PO is peculiarly well positioned to play a part in this process. This is particularly so in those disputes where there is uncertainty and disagreement about the factual element of the dispute. With these strengths, there are strong arguments for placing a greater emphasis on this aspect of the PO's work by empowering the Office to undertake own-initiative investigations. 109 The most commonly cited argument against such a power is that it would risk reducing the contact between the PO and complainants. But it could be created in such a way that emphasised that its purpose was to explore areas where maladministration likely to cause injustice might be occurring. A further argument against such a power is that it would expose the PO to investigating issues purely because they were in the media spotlight. But there are ways to filter the investigations taken on. The PASC has been talked of as one solution. Nor should the fear that the Office be swamped be taken as read. The European Ombudsman, for instance, already possesses such a power and undertakes only a handful of such investigations each year. 110
The proposal for own-initiative powers, however, is not an immediate likelihood. Were it to be introduced it should be done only after a much wider review of the administrative justice system, as referred to above. Perhaps a future Office may develop a more focussed role undertaking administrative audits than it does now, once it became clear that other redress mechanisms in the system were sufficiently capable of providing redress. On this topic, however, the current PO has suggested that existing government arrangements to consider redress are frequently inadequate and that there is an urgent need to return to the Citizens Charter agenda of the 1990s. 111
Of the PO's more immediate concerns, there is the Office's introduction of the Principles of Good Administration, which is the most forthright attempt yet to demystify the concept of maladministration. As the title suggests, the aim behind the Principles is also to promote good administrative practice within the public sector. Evidence of the long-term impact that the work of the PO can have on administrative practice is provided by the government's recent undertaking to revise its official guidance in Government Accounting which followed the PO's findings in the Trawlermen'sreport. 112 Similarly, to heighten the influence of the Principles, in the future there may be a case for it to be reflected in a Code issued by the Cabinet Office, or better still, a Parliamentary resolution.
A more important issue still than the definition of good administration is the recent series of disputes between the PO and the government, which have illustrated a weakness in British democracy and threaten to undermine the ombudsman scheme. While the PO can call upon the support of Parliament, the success of the Office is partially dependent on public authorities implementing its recommendations. Perhaps out of recognition that this relationship needed to be strengthened, in 2006 the Cabinet Secretary announced that a senior civil servant would take on the role of Permanent Secretary ‘Champion’ for PO issues, assisting the liaison between the Office and government departments. 113 At the same time, the PO has more than once suggested that the government should update its internal guidance on the PO, Ombudsman in your files. 114 It is to be hoped that such developments will encourage government departments and ministers to engage in a more constructive dialogue with the PO than that which occurred following the Occupational Pensions report. A return to the diplomatic approach adopted in previous disputes between the PO and the government would be preferable, 115 and would still enable the government to retain control of the form and amount of redress provided.
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