Ombudsman reform: some comments on the Public Administration Select Committee’s recent report

The Public Administration Select Committee (PASC) recently published its latest report on the Parliamentary and Health Service Ombudsman: Time for a People’s Ombudsman Service (HC 655 2013-14). Not for the first time, PASC calls for significant changes to the Ombudsman system—and, in doing so, echoes some of the recommendations made in 2011 by the Law Commission in its report on Public Services Ombudsmen (Law Com No 329). Here, I draw attention to, and briefly comment on, three aspects of the PASC’s latest recommendations.

(1)  Dropping the MP filter

Section 5(1) of the Parliamentary Commissioner Act 1967 requires complaints to the Parliamentary Ombudsman to be routed via Westminster MPs. (This requirement does not, however, apply to complaints to the Health Service Ombudsman.) On the face of it, the so-called MP filter is an anachronistic restriction on access to the Parliamentary Ombudsman—and, as the PASC report acknowledges, several reviews in recent years have called for its abolition. Indeed, PASC characterizes the filter in precisely such terms, once again calling for it to be scrapped:

Along with all other informed opinion, we can find no justification for restricting citizens’ direct access to the Parliamentary and Health Service Ombudsman for non- NHS complaints. It was intended that the “MP filter” should be abolished after the first five years of the Parliamentary Ombudsman. Citizens were given direct access for NHS related complaints for good reason. The continuing prohibition of direct access for all complaints is the denial of equal access to administrative justice and is an anachronism which is at odds with the expectations of today’s citizens. This defies all logic. It disempowers citizens, obstructs access to their rights, and deters people from making complaints.

The Committee is surely correct to suggest that the MP filter should be abolished—but it is nevertheless worth pausing to recall why it is presently in place. Part of the reason for its inclusion in the legislation in 1967 stemmed from fears that the Ombudsman would otherwise be overwhelmed by complaints. Yet it has long been clear that MPs are not generally effective gatekeepers: many pass on a very high proportion of, or all, complaints, including complaints that turn out to lack merit or to be outwith the Ombudsman’s jurisdiction.

However, a further reason for the MP filter is that it secures the relationship between the Ombudsman process and the wider system of parliamentary accountability: the Parliamentary Ombudsman was originally conceived not as a free-standing mechanism for the handling of individuals’ complaints about government, but as a system that would strengthen and complement Parliament’s capacity to hold government to account. Of course, the MP filter is not the only—and is likely not the best—way of maintaining and strengthening the relationship between these two interlocking accountability mechanisms; but if the MP filter is to go, then it will be important to think carefully about how that relationship can be preserved and improved.

It is not clear, however, that the role PASC currently plays—or the role it envisages for itself in its report—fully meets that need. Indeed, there is some evidence in the PASC report of muddled thinking about the relationships between the Ombudsman and (on the one hand) Parliament and (on the other hand) the executive. For example, the report says:

The Ombudsman should be seen as a People’s Ombudsman service as well as Parliament’s Ombudsman. We address how this is to be achieved later in the report … In our report, More Complaints Please!, we recommend that there should be a minister for government policy on complaints handling. In addition, we recommend that the minister also take responsibility for policy in relation to the Parliamentary and Health Service Ombudsman and that he or she should bring forward the new legislation required to enable citizens to have a simpler and more straightforward Ombudsman service that is responsive to citizens and their expectations.

This part of the report—and, in particular, the suggestion that a Government Minister should assume responsibility for the Ombudsman system—reveals a degree of ambivalence about the extent to which the Ombudsman ought to remain embedded within the parliamentary-accountability system

(2)  Own-initiative investigations

PASC also calls for the Ombudsman to be authorized to undertake own-initiative investigations: that is, to investigate in the absence of a complaint. As PASC notes in its report, the Parliamentary and Health Service Ombudsman is unusual in lacking such powers. There are certainly strong arguments in favour of introducing them, but, as with the proposal to abolish the MP filter, it is important to bear in mind what the deeper consequences might be—and what the underlying assumptions are about the Ombudsman’s role.

The report alludes to the distinction drawn in Mary Seneviratne’s Ombudsmen: Public Services and Administrative Justice (CUP 2002) between the “control” and “redress” conceptions of ombudsmanry, the latter relating to micro-level complaints handling, the former to macro-level systemic oversight. These two conceptions are not mutually exclusive, and can be mutually reinforcing, experience of individual service failures enabling informed diagnoses of systemic malaise. There is, however, an absence in PASC’s report of a clear vision about where the emphasis should lie as between the control and redress functions, and as to how those two functions ought to relate to one another. Intelligent and measured reform will require greater thought to be given to this matter.

(3)  A single public services ombudsman for England

In contrast to other parts of the UK, in which “one-stop shop” arrangements have been introduced through the medium of integrated public service ombudsmen, England retains several separate public service ombudsmen schemes relating to general public administration and the National Health Service, local government and social housing. The introduction of a single public service ombudsman for England has been on the agenda for some time, having been proposed in the Collcutt Review (Review of the Public Sector Ombudsmen in England: A Report by the Cabinet Office (London 2000)).

Collcutt concluded that “the present fragmented structure of public sector ombudsmen and complaints systems [is not] able to meet the challenge of handling complaints which cross boundaries”. It saw the solution to this problem in the adoption of a single ombudsman institution with a collegiate structure, allowing cases to be taken on by the best-qualified individual ombudsman, but without subject-based limits as to jurisdiction. These suggestions were met with enthusiasm on the part of the PASC, and the government indicated an intention to bring forward legislation to implement Collcutt’s main recommendations. Over a decade later, however, little progress has been made.

The arguments in favour of a single ombudsman scheme for England remain very strong. However, as I argued in “Asymmetric Devolution and Ombudsman Reform in England” [2006] Public Law 84, implementing such a proposal is problematic from a technical perspective. While acknowledging that the Parliamentary Ombudsman has “jurisdiction not only in England but also on reserved matters throughout the United Kingdom and … [is] answerable to the British Parliament”, the Collcutt Report did not explore the significance of this. Instead, it simply recommended that the Parliamentary Ombudsman should be joined with the English Local Government and English Health Service Ombudsmen to form a new, integrated English ombudsman service. The difficulty is that that service would have incorporated the existing jurisdiction of the Parliamentary Ombudsman, including jurisdiction over non-devolved matters in relation to other parts of the UK. As a result, Collcutt’s English ombudsman service would have investigated complaints pertaining to the exercise of non-devolved functions by UK authorities in relation to Scotland, Northern Ireland and Wales. Yet such arrangements would not make sense in an era of devolved governance. Allowing UK authorities (including ombudsmen) to act in relation to non-devolved matters in Scotland, Wales and Northern Ireland is one thing, but conferring such power on English bodies is a different proposition entirely.

In its recent report, PASC recognizes these difficulties, and recommends a two-ombudsman model that is broadly in line with the proposals made in my 2006 Public Law paper:

We recommend that the Government bring forward, and consult on, proposals to deliver an effective ombudsman service for UK non-devolved matters—in addition to that of a single public services ombudsman for England—in order to optimise an ombudsman service for the UK citizen in respect of those functions. This could be provided, for example, either as a single ombudsman with a dual role as UK and England Ombudsman, or the UK and England ombudsman services could each have separate legal personality.

This sensitivity to the devolution implications of ombudsman reform is to be welcomed, not least in the light of the curious insensitivity to such concerns evidenced in the Collcutt Report. However, the way forward is unlikely to be simple, for reasons I explored in my paper:

[Because] the United Kingdom [is] not being organised along classically federal lines, there is no universally-applicable constitutional separation of functions  between the different tiers of government. As a result, whether something counts as a ‘central’ matter (for which UK institutions are responsible) or a ‘local’ matter (for which ‘local’ institutions are responsible) cannot be answered abstractly: those two concepts have meaning only within the context of the particular – and significantly different – devolution schemes. For example, what constitutes a devolved matter in Scotland may well not be a devolved matter in Wales. When this inherent feature of asymmetric devolution is combined with the absence of any devolution settlement in relation to England, it seems that the concepts of ‘local’ and central matters are inapplicable vis-à-vis England, which, in turn, would constitute a serious obstacle to the demarcation of the respective jurisdictions of an integrated English ombudsman and the Parliamentary Ombudsman.

None of this should be taken to be an insuperable obstacle to the sort of reforms that PASC contemplates—but much technical work would need to be done in order to work out the relationship between the respective powers of the English and the UK ombudsmen. Detailed suggestions about how that might be done are contained in my paper, the full text of which is available here.

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