By Richard Kirkham, University of Sheffield, and Brian Thompson, University of Liverpool
Talk of reform and renewal of the public service ombudsman sector has a long history (eg see our work), but across the UK it would seem that we have at last reached a significant tipping point from which the British version could mature into a more rationalised and powerful agent of administrative justice.
26 March 2015 finally saw the publication of the Gordon review of public services ombudsmen, which was commissioned by the Cabinet Office in response to the 2014 Public Administration Select Committee (PASC) inquiry into the same topic. On the same day, the Cabinet Office launched a consultation on proposals for merging several ombudsman schemes in England. This process follows on from the ongoing Welsh Assembly inquiry into renewing the powers of the Public Services Ombudsman for Wales, a scheme usually considered the most modern in the UK. In Northern Ireland, a Bill to update the office’s powers has nearly been drafted and awaits an Assembly slot. Scotland has arguably had its innovatory renewal moment in the Public Services Reform (Scotland) Act 2010, although here too further reform is being mooted.
This blog outlines the key themes that cover these developments. Many of the reforms being canvassed have widespread support, but significant unresolved issues remain. We also note the key role played by both devolution and parliamentary committees in pushing ombudsman reform up the agenda of governments.
Agreed areas of reform
It is now almost universally recognised that as public services are increasingly delivered in an integrated fashion bridging previously understood sector-specific boundaries, so the jurisdiction of ombudsman schemes must reflect that trend (eg Kirkham and Martin). In Northern Ireland and England, reforms to address this challenge would entail merger of different ombudsman schemes. But the Welsh proposal goes further in exploring the potential for an incremental expansion into the private sector, through granting the Ombudsman a limited power to receive complaints about private health service providers, even where public money is not involved. This latter development raises multiple issues, but may be a harbinger of the future for the ‘public’ services ombudsman model.
The time to bury the MP and MLA filters for the Parliamentary and Northern Ireland Ombudsman schemes has surely come. Even the House of Commons seems to agree:
“The continuing prohibition of direct access for all complaints is the denial of equal access to administrative justice and is an anachronism which is at odds with the expectations of today’s citizens. This defies all logic. It disempowers citizens, obstructs access to their rights, and deters people from making complaints.” (para 55)
More importantly, there is recognition in all three reform initiatives of the need to informalise further the process for submitting complaints, to allow the ombudsman more flexibility and to take advantage of internet technology. Likewise, the proposals aspire to enhance the clarity of the complaints options available to the complainant by rationalising the complaints map and better advertising the central role of the ombudsman within the administrative justice system.
To use the Parliamentary Ombudsman’s words, in the English proposals the emphasis has been placed upon introducing ‘a range of investigative tools and triggers’ rather than specifically own-initiative powers. Does this mean that the Cabinet Office remains nervous about own-initiative powers or does it imply that the aim is to encourage ombudsman intervention from a number of directions, including the referral of complaints and administrative concerns by public bodies to the ombudsman? Either way, the core argument that an effective ombudsman needs to be capable of being more proactive appears finally to have been won. In both Wales and Northern Ireland, attention has been focussed on appropriately controlling the Ombudsman’s use of own-initiative powers.
A promoter of good complaint-handling
The major advance of the Public Services Reform (Scotland) Act 2010 was to give the ombudsman the role of promoting standards in public service complaint-handling. This idea has been enthusiastically jumped upon in Wales and now it would seem a key part of the English reform project, with various accompanying proposals for public bodies to be made responsible for reporting the incidence and form of local complaints. A niche quasi-regulatory role for the ombudsman is emerging.
Challenges still to be addressed
Whilst a consensus appears to be developing around some of the key reform proposals, other issues still require resolution. In this respect it is noticeable that the Cabinet Office’s consultation paper does not seek views on some important matters of principle, including points of constitutional significance, which are included in the Gordon Review. Here we focus only on the implications for the devolution settlement, but issues of the ombudsman’s relationship with the courts and its governance and accountability arrangements will also need to be worked through before the reform process is complete.
Dealing with devolution
The consultation paper does not clearly address how to cope with the Parliamentary Ombudsman’s jurisdiction and its relationship to the asymmetric devolution settlements. But the impression given in the consultation is that the proposed unified service would handle all complaints from England, plus reserved services. i.e. those not devolved to Scotland, Wales and Northern Ireland.
There is also some ambiguity about how Gordon deals with the issue. At one point he outlines his understanding of the three national Ombudsmen’s views, which is to have two separate schemes: one for England and one for the UK, with identical but separate powers and accountability arrangements reflecting the constitutional settlements. This seems to suggest four national Ombudsmen and one UK or ‘federal’ scheme.
But Gordon also presents statistics that complaints from Scotland, Wales and Northern Ireland in 2012-13 constituted a very small proportion of the PHSO’s workload, raising the question as to whether at this scale there is justification for a discrete UK ombudsman scheme.
This is a thorny question. The previous attempt at unifying the Ombudsmen in the public sector in England did not happen mainly because it was felt inappropriate for a body dealing mostly with England also to have responsibilities in the rest of the UK. A federal solution would be logical, except we do not have a federation and the workload of a ‘federal’ ombudsman would be quite small. As an alternative, we might rely on four different ombudsmen to investigate reserved matters depending on the residence of the complainant, but this solution could lead to inconsistency in resolution.
Given the flux in devolution policy after the Scottish independence referendum and the likely changes in the parties’ composition in Parliament after the election, it is perhaps not surprising that the issue is not raised in the consultation paper or that the Gordon report was rather opaque in identifying a way forward. But this is a big issue that will have to be addressed before any meaningful reform can be implemented.
The degree of work that the Cabinet Office and select committees across the UK have expended on considering the need for reform of the public services ombudsman sector offers hope that the respective layers of government have finally decided to give priority to rationalising and modernising the complaints branch of the administrative justice system. The unfortunate regularity with which public service providers have been found to have failed to learn from systemic malpractice in recent years (eg see the March 2015 Kirkup report into an NHS trust in Morecambe Bay) may partly explain why governments are now looking for concrete solutions in the sector. As this blog points out, however, it is not a done deal.