Richard Kirkham compares the reform of the Public Services Ombudsman in Wales with measures in England. This blog post first appeared on the Institute of Welsh Affairs blog, ‘Click on Wales‘, on 2 March 2017.
By Richard Kirkham
Building on former innovations in Scotland and Northern Ireland, a Public Services Ombudsman (Wales) Bill has been drafted with the intention of modernising the ombudsman scheme in Wales in order to make it a fitter and more flexible agent in the administrative justice system. This post makes the claim that the legislative model being recommended for Wales offers the most advanced variant yet of what is termed here ‘the proactive’ model of ombudsman. This model compares starkly with the recently published Whitehall proposals for a merged and largely ‘English’ public service ombudsman scheme based on a more traditional ‘complaint-handling’ model.
Two qualifications are made however. First, there is a considerable gap between designing ombudsman schemes and their implementation. If and when the Bill is enacted, there should be an onus on the Welsh Ombudsman to supply evidence that the extra powers can be used to deliver discernible gains in administrative justice terms. Indeed, a positive element in the draft Bill is the requirement for its review after a five-year period, with discretion for further reviews thereafter (cl.72). Second, a review of ombudsman design elsewhere reveals that there are other ideas not currently developed in the Welsh model, which suggests that there are viable alternative innovatory directions in which the ombudsman enterprise could still travel in Wales to make it an even more proactive administrative justice body.
Expanding the toolkit
The claim that the draft Welsh Bill provides for a proactive model of the ombudsman is largely due to the expanded tools made available to the office to facilitate the improvement of public service delivery through offering systemic learning from complaints (the Ombudsman’s jurisdiction would also be enlarged to cover some private healthcare complaints (see Part 4)). One proposed addition to the toolkit is the power of own-initiative inquiry (cl.4), a standard tool provided for elsewhere in the world but until the 2016 Northern Ireland Ombudsman legislation resisted in the UK. For instance, of 20 public service ombudsman schemes operating in Australia, Canada, Ireland and New Zealand, only one does not possess the own-initiative power (Yukon). Similar observations have been made in Europe and Asia. The benefit of the power is that it enables the commencement of an investigation without waiting for a complaint to come in, thus speeding up the office’s capacity to uncover administrative wrongdoing, allowing for investigations to be broadened into systemic instances of maladministration, and offering administrative justice to those users who are less likely to complain (see this report for a good summary of the experience of the power elsewhere).
Another proposed addition to the toolkit is to establish the Ombudsman office as a complaints standards authority (cl.34-40), accompanied by a range of fresh powers to perform the role. Whereas the own-initiative power has been transposed from abroad, the complaints standard authority model is a genuinely British innovation developed first in Scotland and then copied to Northern Ireland, with even the more traditional ‘English’ draft Bill paying lip service to the idea albeit in a limited fashion (cl.27). The idea behind the innovation is that as an expert in complaint-handling, the ombudsman should become a promoter and, up to a point, a regulator of good complaint-handling practice in other public bodies. This is important because in practice most complaints are dealt with by service providers and are better dealt with there.
This combination of new powers will provide the Welsh Ombudsman with significant potential reach. Elsewhere in the world, however, legislation also creates other routes for the triggering of investigations. The power for public bodies to refer a complaint onwards to the Ombudsman is built into the Welsh Bill (cl.3(3)(b)), but clauses could also be included that empower the Assembly (eg Ombudsperson Act (British Columbia), s.10(3)) or the Executive (eg Ombudsman Act (New Zealand), s.13(5)) to request the ombudsman commence a particular investigation. More proactively still, the South Australian legislation empowers the Ombudsman to ‘conduct a review of the administrative practices and procedures of’ a public agency within jurisdiction (Ombudsman Act (South Australia) s.14A).
Securing institutional autonomy
There is much commonality in the basic institutional features that are incorporated into ombudsman legislation and unsurprisingly the Wales Bill is well within recommended practice in terms of appointment processes, dismissal and terms of employment, with importantly the Assembly operating as the guarantor of the ombudsman’s autonomy.
One area where the Bill is relatively quiet is in terms of its accountability, as is a common feature with ombudsman legislation elsewhere. This could become important in the future, as there is a concern that with expanded powers an ombudsman office might be encouraged to veer too far away from its core complaint-handling remit. The budgetary constraints on ombudsman schemes make it unlikely that this will occur, but there is a strong argument that strengthened scrutiny arrangements are required to maintain the confidence of key stakeholders.
One scrutiny solution is included in the Whitehall Bill which builds in a ‘Board of the Public Service Ombudsman’ whose ‘principal duty is to provide staff and other resources’ (cl.3(2)), but also to monitor the delivery of suitable quality services by the office. The fashion towards corporate governance models within the public sector has been growing and can be seen in the Public Audit (Wales) Act 2013but the model has not been copied in the Welsh Ombudsman Bill. A key reason for this might be the disproportionate costs of imposing such a solution on a relatively small public body. Some detailed accounting requirements are included (Sched 1, cls.14-20) but otherwise the effectiveness of formal accountability will be reliant upon the willingness of the Assembly to continue to engage on a regular basis, probably through the continued interest of the Finance Committee. Nevertheless, the merits of some form of ongoing oversight of the office to supplement the relatively infrequent interventions of the Assembly should not be dismissed. An additional option may be for the ombudsman office to choose to link up informally with parallel watchdogs, such as the four leading Welsh Commissioners, to scrutinise each other’s operations.
Transparency through guidance
An interesting device that appears in the Bill is the duty placed on the Ombudsman to provide further detail on the manner in which his powers are exercised through the publication of guidance. This is not a technique deployed in most other ombudsman legislation (although see Public Services Ombudsman Act (Northern Ireland) 2016, s.8 and 9) but is one well-suited to the task of providing transparency in decision-making. Thus, in an attempt to address the concerns that may exist around the office’s discretionary powers, the Ombudsman is required to establish and publish ‘criteria to be used in determining whether to commence an’ own-initiative investigation, including evidential requirements (cl.5). This placement of responsibility on the office to think through the appropriate circumstances for launching own-initiative investigations is a more sensible approach than the Assembly attempting to impose comparatively ill-informed statutory requirements. Not only will the Ombudsman have to justify his later decisions through the criteria, both politically and possibly legally, those criteria themselves can be subjected to scrutiny and refinement.
Similarly, the Bill at cl.8(2) requires the Ombudsman to publish guidance on the process for submitting complaints, although here the legislation also provides some detail on what should be in the guidance. The benefit though of guidance is not just that it establishes standards that must be met, but it is one of transparency for the complainant which may assist in managing expectations, as well as recognising the concerns that have been expressed in recent years that the deformalisation of the ombudsman process might lead to opaque justice. This is an idea picked up in the Whitehall PSO Bill which requires the Ombudsman to publish a statement ‘setting out, in general terms, the procedures that the Ombudsman expects to follow in carrying out investigations’. This latter proposal is one that should be copied into the Welsh Bill. Other areas of the ombudsman’s work could also be covered through the device of guidance, such as the publication of procedures by which ombudsman decisions can be challenged.
Clarifying uncertain points of law
One area where ombudsman legislation needs to keep pace is where uncertain points of law have caused problems in the courts. This is more the case with the English based ombudsman schemes where the legislation has become significantly aged, than with Wales with its more recent 2005 legislation. For instance, it is important that the draft Bill reconfirms that compensation can be paid by public authorities following an ombudsman investigation (cl.41), as the absence of such a clause made it easier for the Supreme Court to quash an ombudsman’s decision in case of JR55.
Inevitably, however, there will in the future be fresh uncertainty raised about various points of law which arise during an ombudsman investigation. To cater for this eventuality, it might it be useful to add to the ombudsman’s toolkit a reserve power to refer points of law to the courts, as is the case with half of the public service ombudsman schemes in Australia, Canada, Ireland and New Zealand (eg Ombudsman Act (Ireland) s.8A).
One legal uncertainty which it would be better to remove before this Bill is finalised is cl.24. This provision copies the unimplemented s.20 of the current legislation, which provides for a highly unusual process of allowing the Ombudsman to apply to the High Court for a certificate to be issued if a public authority ‘has wilfully disregarded the Ombudsman’s report without lawful excuse.’ There is no evidence that this provision is necessary and it is unclear what its impact might be on ombudsman practice.
Final thoughts: advertising the office to the people
The draft Welsh Bill is a good one and should assist the Ombudsman in becoming the centrepiece of the Welsh administrative justice system. Yet in the pursuit of promoting administrative justice, the institution in most places has struggled to gain a strong public profile. Legislation can only be a partial part of the solution to this challenge, but it can at least help boost the brand and status of the office. One common observation is that the office’s rather clumsy title does not help convey a message of purpose and, frustratingly for some, is not gender neutral. Other options do exist, as with, the ‘public protector’ (Quebec), ‘citizens representative’ (Newfoundland), or ‘Ombudsperson’ (British Columbia), but in the UK and Wales the dominant UK brand, the ‘public sector ombudsman’, has become entrenched.
An alternative approach though could be adopted in legislation, through the outlining of a strong commitment to administrative justice. This commitment is currently lost in the draft Bill which states coldly:
An Act of the National Assembly for Wales to make provision about the office of the Public Services Ombudsman for Wales; to make provision about the functions of the Public Services Ombudsman for Wales; to make provision about compensation; and for connected purposes (Preamble)
This is the British legislative way, but why not a bold statement of purpose and potential as with the following example from Australia:
The objects of this Act are—
(a) to give people a timely, effective, independent and just way of having administrative actions of agencies investigated; and
(b) to improve the quality of decision-making and administrative practice in agencies (Queensland Act 2001 s.5).