Book review: Ombudsmen at the Crossroads

By Rob Behrens

Nick O’Brien and Mary Seneviratne, two distinguished scholars of the ombudsman world, have combined to write a pulsating, learned, short, account of the Legal Services Ombudsman (LSO), which had jurisdiction over legal services between 1991 and 2010. Their historical account is compelling, and emphatically “Whig” in conception so that the progressives win in the end and the reactionaries are at least impeccable in their private lives.

While the LSO was swept away following the Legal Services Act of 2007, it is rendered here as an exemplar of adjudication and deliberative democracy. In this project, the preferred outcome is not just ‘closure’ for the parties themselves but the ‘enrichment of public interaction’ and the creation of shared values by an iterative process of reasoning and counter-argument. In this particular domain the dialogue took place with the representative bodies of solicitors and barristers. The whole engagement  is lauded as an alternative to a system of consumerist dispute resolution and negotiated justice.

There is something of Rodrigo Diaz de Vivar, El Cid, the medieval Castilian military and political leader in all of this. Legend has it that after El Cid died, he was strapped onto his horse and ridden into battle at the head of his troops. The enemy were so afraid of his reputation that they ran away, and victory was achieved. In a vibrant conclusion, O’Brien and Seneviratne posit the now defunct Legal Service Ombudsman as the embryonic model of a ‘third way’ between formal court adjudication and negotiated justice by means of alternate dispute resolution. This is thoughtful and ingenious, placing new relevance on largely forgotten history and putting into context the record (unexamined in this study) of the successor body, the Legal Ombudsman, which now operates in the wake of the demise of the LSO.

I need to declare an interest in reviewing this book. I was Complaints Commissioner to the Bar Standards Board in England and Wales between 2006 and 2008 and had a number of engagements with the third LSO, the excellent Zahida Manzoor (now Baroness Manzoor). There is a brief, uncontentious, reference to this in Chapter 6. I was also a member of the Bar Standard Board after the Clementi reforms had kicked in and got to know the idiosyncrasies of the Bar Council that Legal Services Ombudsmen (and others) had to contend with. O’Brien and Seneviratne are perceptive in bringing out the contrast between a Bar Council prone at the time to quixotic rhetoric but astute in enabling reform, and the Law Society and its adjuncts better then at talking the talk than delivering effective complaints handling reform. The combination of these two dispositions made Clementi’s proposals, including the introduction of a Legal Services Board and a unified Legal Ombudsman, look less portentous than they were to prove.

If there is a mild criticism of this excellent book, it is that, rigorous and evidence-based as it is, it is too short. There are 103 pages of text, and whilst brevity has its merits, in this case it has been produced (I suggest) by narrowing the scope to a review of LSO archives. This removes from consideration how bodies under jurisdiction, stakeholders and service users experienced LSO interventions. This is a critical component in assessing whether or not the LSO constituted an embryonic form of what the authors call ‘ombudsprudence’. And it robs the narrative of a vital account of the multiplicity of considerations that the bodies under jurisdiction juggled with in coming to accommodations with the LSO.

In my experience, and with no criticism of the incumbent at the time, the interventions of the LSO were rare, and the LSO ventured from her ‘eyrie in the hills’ (Manchester) all too infrequently. The book does not consider public perception of the LSO (probably because the institution was hardly well known) and since this is a key ingredient of public trust, there is an important strand missing. As a result the ‘deliberative democracy’ described takes on a somewhat elitist flavour, and there is something of the account being what G.M. Young called ‘the conversation of the people who counted’.

Leaving this small criticism aside, this is a well-crafted book and  essential reading for anyone interested in contributing to the debate about how the ombudsman institution should evolve. While dealing with somewhat arcane Anglo-Saxon jurisdictions the text has relevance for colleagues in (for example) North America and continental Europe where too often mediation and ‘negotiated  justice’ under conditions of complete privacy are the default options.

Nick O’Brien and Mary Seneviratne, Ombudsmen at the Crossroads. The Legal Services Ombudsman, Dispute Resolution and Democratic Accountability, Palgrave Macmillan, London, 2017.

About the author:

Rob Behrens is Parliamentary and Health Service Ombudsman.