This post gives an overview of a recent study of ‘ombuds watchers’ and their online criticism of the public service ombud schemes, including the PHSO, LGO and SPSO. The researchers, Chris Gill (University of Glasgow) and Naomi Creutzfeldt (University of Westminster), have published a paper about the research: ‘The ‘Ombuds Watchers’: Collective Dissent and Legal Protest Among Users of Public Services Ombuds’, Social & Legal Studies 2017: 1-22; available here.
In an innovative study, Gill and Creutzfeldt have applied a legal consciousness approach to analysing users’ perceptions of ombuds reflected in the websites of ‘ombuds watchers’ – online critics of public service ombud schemes. These are described as ‘highly atypical’ citizens, who have not only been dissatisfied with their experience of redress but have engaged in public protest. This sheds further light on recent research on users’ expectations of ombuds (Creutzfeldt 2015) and the gap between their expectations and experiences. The authors note that this study should be considered in the wider context of justice policy and redress design.
How people understand and use the law
The study is situated within the legal consciousness scholarship and, particularly, withina recent strand which has explored legal protest (Marc Hertogh) and collective dissent (Simon Halliday and Bronwen Morgan). Legal consciousness explores the way people understand and use the law (both official ‘state’ law and other norms of ‘living’ law) and legal institutions. The authors explain that a legal consciousness perspective adopts a holistic emphasis on the strategies, resources, and schemas which people draw on to make sense of their experiences of the justice system. This is the first attempt to apply it to people’s perceptions of the ombud institution. It is also an attempt to go beyond procedural justice theory, which ‘ends its analysis after considering whether features of process have affected users’ acceptance of outcomes’, to explore what people do when they don’t accept the outcome. Importantly, the study is particularly interested in the collective aspect of the ombuds watchers’ protests – the fact that they are not only individually dissatisfied, but form groups to pursue change in what they perceive to be the broader public interest.
The ombuds watchers’ key criticisms
The empirical aspect of the study involved analysis of data from three websites of online critic groups and from two meetings held with ‘watcher’ representatives. In total, 538 pages of online content and field notes were analysed. The report gives a flavour of the language used by online critics to describe their experiences of the ombud: ‘a maze of processes’, ‘a surreal . . . banging-your-head-against-brick-wall experience’, ‘a dustbin for complaints’. The authors emphasise that they are not attempting to determine whether people’s understanding is correct or whether the watchers’ criticisms are valid. Instead, they seek to understand the experiences of ‘ordinary people’ who have used ombuds and been dissatisfied, subsequently forming campaigning groups:
‘While the ombuds watchers represent only a small group, who take the unusual step of protesting about their experiences of seeking redress, the case study has shown how the schema of dissenting collectivism can help to elucidate and situate the way in which these individuals think about law and justice.’
Lack of impartiality (the ombud siding with the public body), lack of transparency (private deliberations) and lack of robust inquiry are the key criticisms identified. Watchers refer to lack of opportunities for face-to-face interaction, interviews, fieldwork; they suggest that the paper-based approach is inevitably weighted against the citizen, as control of official records are in the hands of the public body. Ombuds are experienced as emotionally and professionally attached to public bodies and their staff rather than to citizens. The form of expectations management used by ombuds is seen as patronising and concerned more with KPI issues (speed, cost, politeness) than with questions of justice. The ombud is seen as a ‘pseudo-system of administrative justice’.
‘Overall, negative experiences of complaining are described as ‘demoralizing’ and disruptive of citizens’ orientations to the state-sponsored system of justice represented by ombuds. Complaint experiences are the crucible in which faith transforms into disillusionment, dissent, and protest. Underlying this are interactions of powerlessness and resistance … .’
Legalists or loyalists?
Public service ombuds are non-judicial institutions but they are quasi-legal in that they are statutory bodies with defined legal jurisdictions and powers and routinely apply the law in their work. They are a means (sometimes the only means) of obtaining redress in cases of public body maladministration. Perceptions of ombuds are therefore influenced by users’ basic orientation to the law – are they ‘legalists’ or ‘loyalists’, identifying with the law, or ‘cynics’ or ‘outsiders’, alienated from the law? Gill and Creutzfeldt draw on established frameworks for identifying people’s relationship to the law and adapt them to the context of ombuds users. The study suggests that people see ombuds as part of a legal and political system that is ‘corrupt by design’. Disillusionment with the ombud is therefore part of a larger disillusionment with the political and legal system.
Yet what the study reveals is a complex response to the experience of feeling let down by ‘the system’. For example, a core of legal ‘loyalists’ – those who recognise the legitimacy of the law and legal institutions but may feel alienated from it – exists among these online critics despite their disillusionment. These ‘watchers’ clearly see ombuds as legal institutions whose existence is sanctioned by the state. The clash of their expectations of a state-sanctioned body and their lived experience of the ombud produces a sort of ‘shell shock’ that would be unlikely in a legal cynic. The result is a form of powerlessness that mixes calls for action with despondency. It also leads to a very vocal questioning of the legitimacy of the ombud institution.
The ombuds watchers’ ideas for reform
This feeds into the two visions for a reformed system put forward by ombuds watcher groups. The first of these is a citizen-centred, humane, local system whose human face counters the alienating and faceless bureaucracies of public bodies, working with a presumption of honesty in complainants and treating them as partners in improving public services. In contrast, the second vision for reform identified by the authors is markedly court-like, with formal legal procedures the benchmark against which ombuds should be judged: a right of appeal, legally qualified decision-makers, hearings, legally binding decisions and enforcement powers. In this second vision, ombuds will only ever be second rate when measured against the formal legal system.
Gill and Creutzfeldt identify that critics move between the various ‘loyalist’, ‘legalist’, ‘cynic’ and ‘outsider’ profiles in advancing their criticism and reform proposals. In collective dissent (such as through campaigning groups organised on the internet) they mimic many of the bureaucratic values they criticise but do so in a ‘gaming’ approach – essentially using established and lawful rules and procedures (such as Freedom of Information requests) to disrupt and counter what they see as propaganda issued by ombud schemes. The online nature of the collective dissent is seen by ombuds watchers as giving a voice to users who would not otherwise be heard and is key in addressing the inherent power imbalance between individuals, on the one hand, and ombuds and public bodies on the other.
Future research needs
Gill and Creutzfedlt helpfully set out ideas for future research – for example, applying legal consciousness to a wider population of ombuds users, including those who were satisfied with their experiences. Another suggestion is to ‘seek to make connections between data suggesting unmet expectations on the part of citizens and current policy developments, both in relation to ombuds and the wider justice system’. There is scope to look further at the gap between expectations and experiences and add to what we know about what people want from redress systems in order to inform design decisions that are truly ‘user focused’.
Chris Gill and Naomi Creutzfeldt, ‘The ‘Ombuds Watchers’: Collective Dissent and Legal Protest Among Users of Public Services Ombuds’, Social & Legal Studies 2017: 1-22.