Book review: Research Handbook on the Ombudsman (Hertogh & Kirkham, 2018).

Research Handbook on The Ombudsman, Marc Hertogh and Richard Kirkham (eds) (Elgar 2018) ISBN 978 1 78643 124 0 (cased) 978 1 78643 125 7 (eBook), pp 536 plus i-xiii.

By Maurice Sunkin (University of Essex)

This volume is one of a series of research handbooks that seeks to provide state – of – the art analysis of areas of research that sit at the intersection of law and political science. In meeting this aim the volume provides an exceptionally valuable resource to all (academics or others) who have interests in ombuds. (Note that in this review I adopt the terminology suggested by Bondy and Doyle in their chapter 26 in the volume unless the context demands otherwise: ombud is used instead of ombudsman and ombuds instead of ombudsmen.)

The editors explain that while ombudsmania took hold in the second half of the twentieth century when the ‘ombudsman’ “was sold globally as an institutional solution capable of delivering a multitude of different accountability functions” (p 3) there remains “an immaturity in research on the ombudsman”. This volume is a response to this: it aims “to give a comprehensive and state-of-the-art overview of current ombudsman research and to provide a springboard for future studies” (p 508).

The editors succeed in this aim by bringing together chapters written by many of the leading experts from around the world. These chapters explain the nature, the work of, and the challenges faced by, a wide range of ombuds systems. They also offer authoritative insights into research and research needs. The result is a volume that is an exceptionally valuable source of both institutional knowledge about different ombuds systems and the current state of research.

This is a substantial volume and this brief review can only give a sense of the quality of the work. In addition to the editors’ excellent opening and concluding chapters there are twenty-five chapters organised in five parts. Part 1, ‘The fundamentals of the Ombudsman’, has three chapters, Sabine Carl presents an historical backdrop discussing the history and evolution of the ombud’s model. Nick O’Brien considers ombuds and public authorities and presents what he describes as a ‘modest proposal’ that in fact calls for a profound reassessment of the relationship between ombuds and public authorities. This he argues, requires re-positioning of ombuds as central to the social justice landscape rather relegating ombuds “to a marginal and legalistic role within the administrative justice system”(p48). The third chapter in Part I, by Christopher Hodges, provides an overview of private sector ombuds particularly in the context of consumer protection.

Part II concerns the evolution of the ombudsman. Its nine chapters show the breadth and diversity of ombuds, the range of issues with which they are concerned and how they have been, and are, evolving across very different jurisdictional contexts. Carol Harlow’s chapter, ‘Ombudsman ‘hunting lions’ or ‘swatting flies’ ’ draws on UK experience to “plea for a new and more rational look at the function  of ombudsmen” arguing for extending the ombud’s role beyond complaints handling to a new supervisory role (as has occurred in Scotland) that includes investigating complaints but also enables ‘own initiative’ investigations, a theme that is taken up by several other contributors.  There follows chapters which together give a sense of the diverse contexts in which ombuds are developing: on the politics of the ombuds in Hong Kong (by Johannes Chan and Vivian Wong); on the ombuds and the rule of law which also draws heavily on the experience of Hong Kong (by Benny Y.T. Tai); on the European Ombudsman and its relationship  with the Court of Justice of the European Union (by Milan Remac);  on the rule of law in the European Union and the ombudsman, judge and auditor (by Alex Brenninkmeijer and Emma van Gelder); on ‘ombudspersons’ in developing countries concentrating on Indonesia (by Adriaan Bedner); on the transposition of the ombud model to the human rights model and its role as a ‘policy entrepreneur’, drawing primarily on Latin American experience (by Carlos Alza Barco); on the ombud in Africa (by Victor O. Ayeni); and on how ombuds institutions work to strengthen gender equality, promote women’s rights and access to justice to justice (by Linda C. Reif).

Part III, ‘Evaluation of the Ombudsman’, has seven chapters.  Here there are chapters that present and discuss some of the key areas that have been the focus of empirical research.  Bernard Hubeau considers the profile of complainants and how to overcome what is referred to as the ‘Matthew effect’. This term, Hubeau explains, comes from the Gospel of Matthew: “For whosoever hath, to him shall be given…but whosever hath not, from him shall be taken away… ”. The key point being that while ombuds are intended to be open to all in practice they tend to be used by those who are already well resourced and supported rather than by the most vulnerable and most needy. The chapter highlights the gaps in data on complainants, provides a valuable survey of existing research, calls for more to be done to improve access to ombuds, and for better data on complainants as well as the need to monitor accessability.

Naomi Creutzfeldt and Ben Bradford explore how complainants experience ombuds and whether expectations of the process vary across jurisdictions depending on factors such as differing legal cultures. Like Hubeau they highlight the limitations of existing data. Recognising the challenges of drawing comparisons across different ombuds systems and across jurisdictions they concentrate on a single context, namely financial services, to compare how people in the UK and Germany experience use of the financial service ombuds. From their work in this context they are able to identify implications for ombuds in other sectors, including for public sector ombuds and argue that being sensitive to (and having more information on) users’ needs and experience is “likely to improve user experience and overall perceptions of the service”.

Chris Gill’s excellent chapter, ‘What can government learn from the ombudsman?’ examines the normative and theoretical debates around whether ombuds should, can and do influence government. The issues are explored by contrasting two case studies focusing on  the Scottish Public Services Ombudsman and the Ontario Ombudsman. The Chapter also includes a survey of empirical studies of government responses to ombuds. These,  Gill says, “provide some support for those who emphasize the ombudsman’s theoretical assets in helping government to learn.”(p314). However Gill goes on to stress the limited nature of the current empirical work and the need for caution in drawing any firm conclusions: “the current position”, he says, “remains one of significant empirical ignorance (p315). He rightly argues that ombuds should evaluate on an on-going basis the effects of their interventions and for more empirical work, including on whether learning actually takes place.

While Gill looks generally at learning and impact in Chapter 18 Yvonne can der Vlugt looks specifically at the impact of the National Ombudsman of the Netherlands on police conduct. She explains her qualitative research approach and, while recognising the limitations of such an approach when seeking to draw general lessons across different systems, argues that despite the challenges general lessons can be drawn.

The prize for the most unexpected opening paragraph must go to Mathhew Groves who starts his chapter on Ombudsmen and Prisons, by telling readers that he spent most of the first four years of his life in prison: an experience he seems to have enjoyed:“Everyone was friendly and seemed very happy. I also had a choice of food at lunchtime. School, by contrast, was a terrible place.”  The chapter goes on to provide an insightful and wide ranging account of the literature and thinking around the work of ombudsman in relation to prisons.

Endorsement of own-initiative investigations is to found in Chapter 19 by Laura Diez. This reports on field work on 11 ombuds, chosen in order to achieve a representative cross section of own initiative powers. The key question addressed is whether own-initiative powers are being used when they are most appropriate, namely where they allow: general matters to be investigated that would not necessarily be raised by individual complaints; ombuds to deal with matters that would not be raised by individual complainants; ombuds to investigate matters affecting those  who for a variety of reasons would not use ombuds, “such as vulnerable groups including minors, undocumented immigrants and those from the most economically disadvantaged sectors”. Based on existing research Diez concludes that the answer can only be in the “affirmative” thus showing the importance and value of own initiative power. That chapter is complemented by the following valuable chapter written by officials in the National Ombudsman of the Netherlands which provides an extremely value well informed explanation of that ombudsman’s approach to own-initiative investigations.

Part IV is titled ‘Ombudsman office and Profession’. The unifying theme here is a focus on the organisations themselves. It includes Chapter 21, by Julia Dahlvik and Axel Pohn-Weidinger that draws on ethnographic research within the Austrian Ombudsman Board to explore the role of the institution’s own administrative staff: those who work on the front line of the institution – the workers at the front desk in the AOB building and the secretaries who support the ombuds.

It also includes Chapter 24, in which Rob Behrens sets out the principles that should inform the UK public sector ombuds. Here Behrens identifies the “need to restore user and stakeholder trust”. There are, he argues, four key elements to this: first, the importance of perceived honesty and independence; second,  the need to demonstrate competence; third, the need to be able to both hold government to account and also to be able to “work with them in partnership to promote better practice; and fourth, the need to promote what he calls active trust or trustworthiness: “[N]othing will work where ombudsmen fail to show respect for service users”.

I mentioned earlier the chapter by Bondy and Doyle (Chapter 26) that addresses the importance of names and terminology, arguing for the adoption of the gender neutral terms ombud and ombuds. One of the complaints some will have about this volume is that the editors could have been more insistent that authors adopt more consistently gender neutral terminology. Having said this one can sympathise with the editors of a volume of this scale and scope that includes coverage of ombuds institutions that are so variously known.

Part V, contains a single chapter by the editors that sets out an agenda for future research.

Aside from terminology, there are very few other gripes. This is a big (and heavy) volume, but one can hardly complain about that given the wealth of the coverage. The organisational structure works but in places is strained. For instance, the only chapter explicitly concerned with evaluation, is Anita Stuhmcke’s excellent chapter (Chapter 22), which is not to be found in part 111 but in part IV. Also, in some of the chapters one senses that some clarity  might have been lost in translation. However, these are small matters given the scale and ambition of the project.

Overall, this is a great resource that will be of considerable value to anyone working on ombuds anywhere in the world. The editors and the authors are to be congratulated and thanked. They have produced an excellent platform for future research on ombuds.

Maurice Sunkin

Professor of Public Law and Socio-Legal Studies, University of Essex