By Dr Nick O’Brien
In December 2016, the Cabinet Office published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman to create a new organisation with strengthened governance and accountability for complaints about public services in England. This review explores what research has been carried out on public-sector ombuds in the UK. It has been commissioned by the UK Administrative Justice Institute to identify what we know and don’t know about this important strand of administrative justice in order to inform current consideration of the draft Bill. Here we publish the introduction to the review; the full review is available below.
Issues: What do we need to know?
The Public Services Ombudsman (PSO) Bill 2016 aims to re-design the system of redress provided by public-sector ombuds in England. Research on the design of redress systems in general for public bodies (Bondy and Le Sueur 2012), and more specifically for the public-sector ombuds in England (Kirkham and Martin 2014), yields from the draft PSO Bill the following key issues, in summary:
- Will the PSO be able to offer effective pathways and remedies for addressing grievances (e.g. public awareness; direct, flexible and integrated access; integrated and comprehensive scope and coverage; appropriate investigative and resolution technique; enforceable and appropriate remedy)?
- Will the PSO be able to contribute sufficiently to improvement in public services (e.g. own-initiative investigation; systemic recommendation; ‘complaints design authority’ remit; effective part of integrated democratic-scrutiny system)?
- Will the PSO be able to act in accordance with appropriate norms, including constitutional and human rights norms (e.g. human rights mandate; ECHR Art 6 compliance; constitutional mandate)?
- Will the PSO be sufficiently accountable, without compromise of its independence and ‘personal mandate’ (e.g. to a unified Board; to Parliament; to users)?
- Will the PSO offer value for money (e.g. cost; impact)?
Summary of conclusions
- Public-sector ombuds in England play a modest role in individual dispute resolution.
- Given the structure of the administrative justice and relevant ‘regulatory’ system as a whole, it is unlikely that re-design of the ombuds will in itself remedy such marginalisation.
- The migration of emphasis towards systemic remedy and broader public benefit is therefore understandable and justifiable.
- Current impact and value for money in any event remain difficult to gauge.
- However, the lack of a full suite of appropriate powers and ‘norms’ seriously diminishes the prospect of future strategic impact in this regard.
- The relatively thin empirical and comparative evidential foundation for future policy development currently diminishes the prospect of effective reform or even successful re-imagination within existing legislative limits.
- Features specific to the ombud sector make such research difficult and unattractive to undertake, especially in respect of primary sources, such as ombud case files.
- Nevertheless, existing gaps should be remedied as far as possible in respect of: knowledge about public awareness; complainant profile; the role of the ombud in ‘the system’ as a whole; real cost and impact; the exercise of the ombud ‘technique’; what works well in other comparable jurisdictions; and the engagement of public authorities and of the legislature with the ombud.
The full review is available here and below.
About the author:
Nick O’Brien is Honorary Research Fellow, Liverpool University, and the co-author, with Mary Seneviratne, of Ombudsmen at the Crossroads (Palgrave McMillan, 2017).