By Nick O’Brien
In a recent article in the Journal of Social Welfare and Family Law (‘The ombudsman as democratic alternative: reading the EU Consumer ADR Directive in the light of the PASC reports’, 37 (2015) 274-282) I argued that ombuds – or at least those who still aspire to some sort of ‘public’ function – should not be seduced by the EU ADR Directive into a purely consumerist malaise.
It will be very tempting no doubt to position the ombuds institution as just another option that broadly fits the ADR bill and to see ‘dispute resolution’ as the end all and be all, with volume, speed and modest financial redress the sole markers of success.
That would be a pity. Negotiated justice is no doubt a viable and necessary alternative to adjudication by the courts in some situations. But it is not always the only, or even the most desirable, alternative. The ombuds institution sits somewhere between the two extremes of ADR and judicial decision-making. Unlike ADR entities, ombuds do actually make decisions; and unlike the courts, they normally do so by following a process that is relatively informal and inquisitorial.
At its best, the ombuds role is more than anything a democratic means of responding to citizen grievance. It does not assume that the only thing to do in the face of an individual dispute is resolve it as quickly as possible, if necessary by sweeping it under the carpet, so as to ensure a return to business as usual. Instead, the ombuds is equipped with the means to engage citizens in a deliberative process of adjudication that ultimately seeks to serve the longer-term common good rather than satisfy short-term individual demand. To that extent, an ombuds investigation and decision should always be a means to an end rather than an end in itself.
Of course, the consumerist approach appears to have the tide of history on its side and to be in keeping with the zeitgeist. But the cloak of modernity is in fact an illusion, a version of the emperor’s new clothes. Nearly everything we know about the way organisations function now tells us that they are ‘post-bureaucratic’ and ‘performance based’, exemplars of the new governance rather than the old command and control model.
Such characteristics have led to new forms of reflexive regulation, characterised by ‘soft law’ and deliberative or experimentalist adjudication rather than hard law and definitive non-revisable decision-making in a formal hearing context. To that extent the judicial approach is indeed under threat, but not the need for adjudication as such. The underlying jurisprudence of a durable, and democratic, alternative is rooted in legal pragmatism rather than any rival form of legal liberalism that privileges individual dispute resolution at the expense of richer public benefit.
The classical ombuds is, subject to some discrete but necessary reform, ideally suited to serve the needs of adjudication in this ‘new governance’ context. The reports of the Public Administration Select Committee on the PHSO in 2014 gently nudged the institution in that direction, with their emphasis on active participation and access, on the importance of disseminating decisions more widely so to as to embed principles as norms, and on the need for increased transparency about the way in which the ombuds fits into the ‘system’ in its entirety, conceived as a co-ordinated and coherent whole.
It would be unfortunate, and ironic, if in the short-sighted scramble to grab a piece of the ADR action, the ombuds community unwittingly hitched itself to a somewhat impoverished bandwagon which has already been overtaken by organisational design and regulatory theory, not least when the ombuds has the potential to constitute a richer, more truly democratic response to citizen grievance.
Nick O’Brien was Specialist Adviser to the Public Administration Select Committee 2013-2014.