The Ombudsman Enterprise and Administrative Justice

Trevor Buck, Richard Kirkham, Brian Thompson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317022411
• Edition: 1
• Topic: Jura
• Subtopic: Rechtswissenschaft

The statutory duty of public service ombudsmen (PSO) is to investigate claims of injustice caused by maladministration in the provision of public services. This book examines the modern role of the ombudsman within the overall emerging system of administrative justice and makes recommendations as to how PSO should optimize their potential within the wider administrative justice context. Recent developments are discussed and long standing questions that have yet to be adequately resolved in the ombudsman community are re-evaluated given broader changes in the administrative justice sector. The work balances theory and empirical research conducted in a number of common law countries. Although there has been much debate within the ombudsman community in recent years aimed at developing and improving the practice of ombudsmanry, this work represents a significant advance on current academic understanding of the discipline.

PART I
Theory and Context

Chapter 1
The Ombudsman Enterprise: An Introduction

The Ombudsman Enterprise

In a relatively short space of time the ombudsman1 has become one of the essential institutions that a constitution should possess. Few countries today operate without at least one ombudsman and the idea has also been experimented with at the global level within regional and international organizations (Reif 2004; French and Kirkham 2010). In some countries, such as the UK and Australia, the concept has been adopted wholeheartedly right across the public and private sector, with the result that for some forms of complaint the ombudsman has become the dispute resolution mechanism of first choice. This rapid evolution of the ombudsman enterprise means that the institution is deserving of reanalysis.

The use of the phrase ‘ombudsman enterprise’ in the title of our book is not accidental. Although the focus of this book is mainly the developing role and relationships of the UK ombudsman community, we also refer extensively to the ombudsmen bodies in other jurisdictions. According to the context of the discussion, therefore, the ‘ombudsman enterprise’ may refer to the UK situation or more broadly to the developing and active role of ombudsmen offices in other jurisdictions. In both cases, the word ‘enterprise’ reflects our general view that has arisen from this study – that the ombudsman community in the UK (and in some other jurisdictions) figures as a much more significant element in the delivery of public services and in our constitutional arrangements than has hitherto been recognized in academic literature. The word ‘enterprise’ has been used deliberatively to communicate this sense of a proactive approach adopted by ombudsman bodies, and that it is currently a ‘work under construction’.2 It is in this context that this book attempts to examine and analyse the ombudsman enterprise as constituted in the early twenty-first century.

Although this is a book about ombudsmen, it does not contain a detailed exposition of the various powers and remits of the various ombudsmen that exist in the UK or around the world.3 Such detailed information can be found elsewhere in a number of commendable texts (Gregory and Giddings 2000; Seneviratne 2002; Kucsko-Stadlmayer 2008). Instead, what this book attempts is an analysis of the technique of ombudsmanry and an evaluation of its potential for growth. The prime reference point is the UK public sector ombudsman community, with the term ‘ombudsman’ being used to describe fully independent institutions only.4 Yet the book is partially inspired and informed by developments in both the private sector and outside the UK, in particular in Australia, New Zealand and Ireland, where the ombudsmen operate within very similar legal systems to the UK (Thompson, Buck and Kirkham 2008). The hope is that because the book explores theory and methodology more than technical questions of jurisdiction, it should be useful to ombudsman communities around the world and across sectors.

An underlying argument of the book is that the ombudsman is now an established feature not just of systems of administrative and civil justice, but also of the constitution. In one respect, this is an uncontentious proposition. If the bigger constitutional picture is taken into account then the ombudsman is only one of a range of institutions that have been devised over the years to heighten the accountability of governments to their citizens and, latterly, private bodies to their customers. Where there is a difficulty, however, is in establishing the full strength of the ombudsman’s constitutional worth. This difficulty is perhaps more pronounced in the UK than elsewhere, as administrative lawyers generally have struggled to convince the legal community of the importance of their work. Fortunately we have moved on from the 1930s when Lord Hewart, the Lord Chief Justice of England, described administrative law as ‘continental jargon’ (Hewart 1937, 96). Until recently, however, the subject remained the poor relation of the common law system and it was left to a relatively small cohort of academics to investigate the merits of dispute resolution procedures outside the courts.

The situation is much improved today, not least because there is now an assigned Administrative Court in England and Wales, and few would doubt the constitutional importance of judicial review. Yet amongst legal scholars there remains some division in understanding and appreciation of the role of the ombudsman institution within the wider ‘administrative justice system’; the latter notion is itself a contested one (see Chapter 3). In much standard work on administrative law the predominant view of the ombudsman is that it represents an important variant form of dispute resolution. It is a lead example of what has become termed ‘alternative dispute resolution’ (ADR), which in essence means dispute resolution outside of the courts. In private law too the work of the ombudsman has belatedly begun to gain recognition (James 1997; Gilad 2008), although probably not as much as is merited by the sheer volume of work carried out by the ombudsmen concerned. In political science and public administration circles there has also been much good work done on the ombudsman (Drewry 1997; Gregory and Giddings 2002). The work of a range of ombudsman advocates in the past, therefore, has been successful in raising awareness to the extent that dispute resolution is no longer considered solely in terms of judicial redress.

Although the ombudsman institution has received greater recognition in academic texts in recent years, there is still a tendency for it to appear as a marginal topic and an overwhelming sense that the ombudsman remains an institution inferior to the courts (Abraham 2008c, 541). Others are much more sceptical of the effectiveness of the institution. From the original inception of the ombudsman onwards, there have always been some who have not accepted the notion that a body, largely without enforcement powers, can effectively promote justice. Sceptics within the academic and professional legal communities tend to view with suspicion the inquisitorial method of the ombudsman, placing much greater faith in the more traditional adversarial safeguards adopted through the courts. Today the most vocal critics are dissatisfied users of the ombudsman service who congregate on the internet in organized discussion forums,5 but in the past distinguished academics have also argued that the entire ombudsman enterprise is a distraction from where real reform should be introduced in the administrative justice system – the courts and the law (Mitchell 1965).

There are those, however, who have consistently presented a much more positive view of the institution. Thus the claim has been made separately that the ombudsman is ‘the jurisprudential development’ (Lewis 1993, 676) and ‘the most valuable institution from the viewpoint of both citizen and bureaucrat that has evolved during’ the twentieth century (Pearce 1993, 35). There have also been a considerable number of scholars who have devoted their energies to arguing the merits of the ombudsman institution (e.g. Caiden 1983; Rowat 1985). Others have chartered the extensive twentieth and twenty-first century move towards ever more sophisticated administrative justice systems composed of a variety of non-judicial modes of redress, including the ombudsman (e.g. Birkinshaw 2010; Mullen 2010). Meanwhile the ombudsmen themselves have worked hard to develop their own profile, as well as improve the ombudsman technique. Perhaps the best evidence of this process can be seen in the work of a series of regional and international ombudsman associations across the globe.6

In terms of the sheer number of ombudsman bodies now in operation and the workload that is currently undertaken by them, the argument appears to be moving in the direction of enhanced recognition for the institution. In the UK in 1993, when the British and Irish Ombudsman Association (BIOA) was first formed,7 there were 14 voting members, three of whom were local government ombudsmen (LGOs). There were also 14 associate members, a category which included complaint-handling schemes, and 19 ordinary members. By 2010 the number had risen to 32 voting members (representing 28 member schemes). There is now also a corporate associate membership divided into the following categories: consumer and professional organizations (3); complaint-handling bodies – large (17); complaint-handling bodies – medium (9); complaint-handling bodies – small (14). There is also an individual associate membership (51).8

The expansion of ombudsman institutions has occurred both in the public and private sectors. These are, respectively, those concerned with the administration of government and the delivery of public services funded by the taxpayer, and those operating in the goods and services economy and funded by industry stakeholders (Brooker 2008, 3). Although, as stated above, the focus of attention in this book is the public sector, we agree with other commentators that drawing a categorical distinction between public and private sector ombudsmen is not a helpful approach, and ombudsmen themselves (e.g. O’Donnell 2007) emphasize the features of their offices which are shared rather than those which differ.

It would be wrong to take too narrow a view of what constitutes the state. For example, the privatisation of a range of public utilities led to the establishment by Parliament of a range of regulatory bodies that may properly be regarded as emanations of the state. There are other regulatory bodies that have been established in such fields as charities, financial services or gambling to which the same applies. Furthermore, as more of central and local government business is privatised or contracted out to private agencies, a wider view must be taken of what constitutes administrative justice. (AJTC 2009, para. 14)

The expansion of private sector ombudsmen9 in the past 30 years10 has not, however, been uniform. Many markets attracting a high volume of complaints are not covered by an ombudsman scheme, for example, in house-building, home improvements, electrical appliances and second-hand cars (Doyle et al 2004). Nevertheless it is now recognized that within the genus of ombudsmen there are a variety of species ranging from the classic, statutory, public sector ombudsmen to non-statutory private ombudsmen, and ‘[b]etween the two ends of the spectrum there is a range of bodies dealing in different ways with complaints and disputes, either between citizen and state or between firms and individuals’ (AJTC 2009, 16). Public law scholarship has also had to recognize that the traditional private/public divide is far less of a binary opposition than it used to be (Wade and Forsyth 2009, 566-81; Harlow and Rawlings 2009, 18-22). Moreover, including such private sector institutions within the landscape of administrative justice allows for a useful cross-fertilization of lessons from each sector to the other (Mullen 2009, para. 2.8). Consequently, in this book there are some references to the private sector ombudsmen, some of which, such as the Financial Ombudsman Service (FOS), regard themselves as part of the administrative justice system. In 2009-10, the FOS received 925,095 initial enquiries, resulting in 163,012 new cases, i.e. a caseload volume that is at least comparable to some of the regular work of the county courts (FOS 2010, 3).11 In the administrative justice sector as well the impact of the ombudsmen is significant. Although the bulk of citizen complaints are processed by the Tribunals Service, the combined workload of the four leading ombudsmen in England and Wales – Parliamentary Ombudsman (PO), Health Services Ombudsman (HSO), Local Government Ombudsman (LGO) and Housing Ombudsman (HO) – amounted to at least three times the number of judicial review applications for permission in 2008-09.12

Numbers alone, of course, cannot tell the whole story, but a similar pattern emerges from elsewhere in the world. In Australia, as in the UK, by far the largest contributor to the provision of administrative justice is the tribunal system. However, due to the wider remits often given to the ombudsmen there, the difference between the workload of the ombudsmen and the courts is even starker than in the UK. Meanwhile, the International Ombudsman Institute (IOI) currently records that ombudsmen operate in approximately 120 countries, with the growth in ombudsmen increasing exponentially over the last 50 years, and the last two decades in particular.13 One leading authority on the ombudsman institution has written of the global take-up of the ombudsman idea:

In every continent and from all shades of political opinion there are calls for an increasingly prominent role for the ombudsman and for it to be established where it does not yet exist. Both developed and developing countries have embraced the concept regardless of varying levels of socio-economic developments. (Ayeni 2000, 6)

Evidently, this growing faith in the utility of the institution of the ombudsman can be interpreted in a number of different ways. One factor behind this trend has been the move to cheaper forms of dispute resolution than the traditional court format, loaded as it is with procedural rigidity and expensive lawyers. Yet although cost-effectiveness, expedition and accessibility have been factors in the adoption of alternative redress schemes, it should not be concluded that the ombudsman institution is a form of ‘cheap justice’. In many instances the claim can be made that the ombudsman can and does provide better justice than other more formal dispute resolution fora. Moreover, as was heralded in a recent UK government White Paper, the idea of ‘Proportionate Dispute Resolution’ (PDR), or ‘fitting the forum to the fuss’,14 is a legitimate goal to pursue. In the public law context, there is also an underlying suspicion that the inquisitorial and principled methodology of the ombudsman is actually much better suited to adjudicating on disputes in the complex world of administration than the individualistic adversarial rights-based focus of the courts and the law (Verkuil 1975).

Whatever the true driving force behind the development of ombudsman regimes, the sheer scale of the impact of the ombudsman institution around the world rests uncomfortably with the relative neglect of the institution in mainstream legal and constitutional writing to date. Some ombudsman scholars, however, have long observed a general international acceptance of the role of ombudsmen in securing good governance (Reif 2004). The establishment of good governance clearly requires the adoption and balance of a range of institutions; the ombudsman model is often utilized because it is sufficiently flexible to find an appropriate location within the desired institutional matrix. The review of complaints about the quality of administrative practice represents the core of the ombudsman model, but in many countries the ombudsman has a much wider mandate, such as considering freedom of information disputes and corruption complaints. Even in the area of human rights, traditionally seen in many countries as a paradigm case for court-based adjudication, there are calls for the ombudsman to play a bigger part (O’Reilly 2007) – a call which reflects developments already taking place elsew...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Abbreviations
• Foreword
• Preface
• PART I THEORY AND CONTEXT
• PART II THE OMBUDSMAN TECHNIQUE
• PART III SETTING IT RIGHT
• PART IV CONCLUSION
• Appendices
• Bibliography
• Index