A manifesto for legislative reform of the ombudsman sector
By Richard Kirkham
The 2016 draft Public Services Ombudsman Bill looks destined to become the latest failed attempt to reform the ombudsman sector but this post argues that now is nevertheless a good moment to prepare for a stronger and more long-term revision of the ombudsman’s powers. At some point, the legislative gridlock created by Brexit will break and a new government looking for policies to distinguish itself from its immediate predecessors might be willing to consider more radical reform measures. During this window of opportunity, politicians might become attracted to ideas previously side-lined as too complicated to implement, too risky or simply contradictory to the interests of public administration. Reform of the ombudsman sector, a measure which may even be cost-neutral in implementation, might fit the bill.
In this spirit of optimism, this post outlines a Manifesto for Ombudsman Reform based upon a roundtable discussion at the University of Sheffield in January 2019. A cross-section of stakeholders to the ombudsman community participated in the event, but the views in this post are the author’s alone (a summary of events will be cross-linked here at a later date).
- We need to do better than the 2016 draft Public Services Ombudsman Bill
The 2016 draft Bill was a significant step forward in the debate on ombudsman reform. What it achieved was formal recognition of the merits of the proposal by the Cabinet Office, Parliamentary select committees, the relevant ombudsman offices and, implicitly, wider impacted branches of public administration. This achievement should not be under-estimated.
The draft bill, however, has been widely criticised as insufficiently ambitious (see Kirkham and Thompson, O’Brien, McBurnie and Reynolds), and as with former proposals in the sector the initiative has been neutralised by subsequent events. However, the pressure for reform is unlikely to go away and is supported by so many of the key stakeholders in the sector that change now seems inevitable once Parliamentary politics returns to its normal state of affairs.
The question that will return is whether the reform, when it arrives, will be incremental or systematic in nature.
Two stories from the UK legislature during March symbolise the options available. In Wales, the highly integrated Public Services Ombudsman for Wales (PSOW) received a systematic upgrade in its legislative design through the successful passage of the Public Services Ombudsman (Wales) Act 2019. The reforms now provide the PSOW with one of the most wide-ranging selection of powers in the ombudsman world.
Meanwhile, in Westminster where incrementalism has ruled for years, both the current Local Government and Social Care Ombudsman (LGSCO) and the Parliamentary and Health Services Ombudsman (LGSCO) attended scrutiny hearings, and both bemoaned the continued delay in reforming the sector. According to the LGSCO, the consequence of this approach was that it felt like his office were sometimes ‘trying to put a sticking plaster on a broken leg.’ Whilst the Public Administration and Constitutional Affairs Committee concluded ‘that momentum on improving local NHS complaints handling has “fizzled out”’ – inferring that the PHSO’s lacked sufficient powers to drive forward improvements.
- When the right moment arrives the reform needs to be radical
There is a long history of proposals for administrative justice reform being pushed to the back of the legislative queue, or dealt with by way of incremental adjustment rather than systematic redesign. But radical administrative justice reform does occasionally occur, albeit often it requires the assistance of significant temporary shifts in the cultural and political dynamic. For instance, the Tribunals and Inquiries Act 1958 and the Parliamentary Commissioner Act 1967 were both beneficiaries of a brief post-war consensus that the options to pursue redress against the state were insufficient. Likewise, the Human Rights Act 1998 and the Freedom of Information Act 2000 delivered the commitments of the Labour party made during 18 long years out of power, a period when it became too well aware of the dangers of executive power. The import of such moments in time is that politicians briefly become more open to persuasion of the merits of pre-prepared systematic solutions that work to restrict the freedom of public administration, even if that goes against the usual incentives to maximise executive power.
It is by no means guaranteed Brexit will create such a space but if it does then the opportunity needs to be maximised. Past experience suggests it will be a long time before another such moment comes around.
- The public service ombudsman should provide a universal service
As a general rule, all public services should be overseen by a single ombudsman to avoid complexity from the perspective of the citizen, with a strong justification required for the exceptions. The exclusion from the LGSCO’s remit of complaints about admission to academy schools, for instance, defies clear rationale. For other services, however, such as the remit to investigate clinical failure, there may be a difficult argument to be had as to whether the service requires a bespoke ombudsman scheme given its complex and controversial nature. There may even be an argument that an alternative form of dispute resolution model would be preferable – but the universality of the right to administrative justice should remain.
- An ombudsman should be a driver of administrative justice standards not just a complaint handler
The ombudsman needs to become the embedded conscience of the administrative justice system, and to achieve this status it needs to be viewed by all as much more than a complaint-handler.
The demand for an ombudsman to focus on the provision of an complaint-handling service is strong, as evidenced in part by the sometimes highly critical activism of online campaigners. This demand, however, ordinarily comes coupled with expectations as to process, quality and outcome that are difficult to satisfy. The concern is that in playing to these expectations ombuds take a consumerist turn to become first and foremost mass complaint-handlers. Given its inevitable limitations in terms of resources, by this vision the office risks becoming pigeon-holed as efficient deliverers of justice. This perception in turn has the effect of raising expectations amongst the aggrieved, elongating the complaints process, and focusing the energy of ombuds on a narrow body of complaints and complainants.
Complaint-handling is difficult and vital work, but so too is promoting institutional learning within public administration and reaching out to those communities of citizens that barely appear on the complaints register. To facilitate these goals the primary duty of the ombudsman should be to the public interest. This vision requires a more flexible ombudsman model.
- An ombudsman service needs to be sufficiently empowered and flexible
A flexible ombudsman service requires a large toolkit, with the office free to adjust its priorities and innovate as future circumstance require. A flexible ombudsman service would have the power of own-initiative investigation, powers to oversee and provide guidance on lower-level complaint-handling, powers to refer legal matters to court, and would be able to follow-up matters of administrative concern raised by other branches of the administrative justice system. The risks of over-regulation of the public sector, together with an apparent fear that an ombudsman will go rogue if given too much power, has traditionally inhibited the legislative design of ombuds founded on Westminster legislation. We should be less concerned about these risks however, and concentrate more effort on the means by which over-active and under-performing ombuds can be called to account.
- Strong accountability needs to be embedded in an ombudsman scheme
The oversight of an ombudsman must occur through a variety of routes and these should be detailed, albeit in non-prescriptive form, within legislation. A novel aspect of the draft Bill was that it provided for a standing Board to oversee the ombudsman on a more regular (and arguably more knowledgeable) basis than a Parliamentary select committee. The draft Bill also established various reporting duties linked to key aspects of the ombudsman’s operation (eg turnover of complaints), and tightened up some outdated features of the ombudsman process. The legislation could go further though, to require the ombudsman to provide guidance and report on a whole series of aspects of its operation. There should be a duty on an ombudsman to provide for the internal review of its decision-making and an obligation to consult regularly with key stakeholders, and even engage those stakeholders in external scrutiny. Processes of independent audit (including of final decisions) should be planned for, in part through the peer review offered by the wider ombudsman community (eg the Ombudsman Association). Subject to necessary exceptions for reasons of confidentiality, decisions on individual complaints should be published as a matter of course. The role of judicial review should remain a powerful source of detail to refine identified shortcomings in the procedural fairness of the decision-making processes of the ombudsman.
- Evidencing impact on stakeholders, especially citizens
Finally, included in the overall architecture of ombudsman legislation there should be specific duties to engage with stakeholders and report on the office’s impact. The office should be challenged to evidence its capacity to assist all sections of society and incorporate the views of users and investigated bodies into the design of its decision-making processes and setting of standards.
Richard Kirkham is a senior lecturer at the University of Sheffield specialising in administrative justice and the work of ombuds.