This book seeks to persuade policymakers and legislators of the need for legislative reform to a number of the public service ombudsman (PSO) offices operating in the UK and to evidence the ways in which that reforming legislation should be designed. In pursuing this goal, this book represents a response to a challenge laid down by the Parliamentary and Health Service Ombudsman, Rob Behrens, at a JUSTICE event in February 2018. It was too easy, he said, to blame the legislative logjam caused by Brexit for the failure of the government to implement its 2016 proposal for a new integrated PSO office. The failure had also been caused by the lack of hard evidence to support the need for reform.
In response to this challenge, this book lays out a manifesto for the future that we hope will influence the legislative debate around ombudsman reform and inform academic and policy debates about the future of the institution in the UK. Although containing a clear policy goal, all the chapters of the book are derived and based upon leading research on the ombudsman sector both in the UK and elsewhere. As such, it will appeal to policymakers, practitioners, and academics.
The book offers a guide to the main issues that will need to be considered in developing legislative reforms of the ombudsman sector in the UK. Most of the chapters in the book were first presented at a roundtable event on ombudsman legislative reform held in Sheffield in January 2019, attended by six of the then PSO office-holders in the UK, and a cross-section of academics and stakeholders to the sector. We are extremely thankful to the Nuffield Foundation for funding the event under a research grant held by Richard Kirkham (2017).
In this introductory chapter, we set the scene for the current debates on proposals for a new integrated PSO office and outline the chapters in the book.
Arguments for Legislative Reform
Since first appearing in Britain with the establishment of the Parliamentary Commissioner for Administration (Parliamentary Commissioner Act 1967), PSOs have become an important component in the country’s grievance handling machinery. Their introduction formed part of a wider post-war shift towards offering citizens greater protection in their dealings with the state and a means of challenging failures in public service delivery. The perceived need for this shift recognised the value of administrative justice to individual citizens and the collective demos and sought to address declining levels of trust in public administration (Whyatt 1961; Gregory and Giddings 2002: 33–124).
The development of the PSO model within the justice system represented an implicit acceptance that neither the court nor the tribunal system was alone capable of bearing the burden of delivering administrative justice. However, since its establishment, it has become clear that the significance of the PSO role goes wider than individual grievance handling: periodically acting as a powerful voice for citizen and service user concerns, forcing the government to give enhanced credence to demands for good administration and in multiple instances bringing about the redress of systemic maladministration (see Gregory and Giddings 2002).
The strength of these claims to need and impact is such that the PSO has become an integral part of the UK’s constitutional order (Abraham 2008). Nevertheless, the time has come for an upgrade to its legislative design to equip it to meet the challenges of twenty-first century governance. The original model for the PSO implemented in the 1967 Act was a limited measure, which carefully calibrated a novel foreign transplant onto the UK’s existing Parliamentary and common law constitution. However, it has long been recognised that the model needs upgrading (Kirkham 2007) and for England at least any formal statutory adaptation so far attempted has been minimal. As Jim Martin makes clear in his challenging foreword to this book, the need for reform in England is urgent and requires bold new ideas to be considered. With the administrative justice system in a state of flux and facing fresh challenges, including technological changes, austerity, and rapidly evolving citizen expectations, now is an opportune time for reform and this collection provides a detailed outline of the issues that will need to be addressed in completing this project.
There are four basic drivers for PSO reform (Kirkham and Martin 2014). First, there is a ‘tidying-up’ rationale. PSO legislation has become outdated in ways that either prevent the development and modernisation of the sector or force it to pursue ‘work-around’ solutions that can be costly and dysfunctional. Second, since 1967, multiple sector-specific individual PSO offices have been created but the resultant network does not always match the manner in which public services are delivered today (Gordon 2013: paras. 25–38). This mismatch means that individual PSO offices sometimes struggle to resolve complaints by themselves, leading to complicated joint investigations with other offices. Simultaneously, individual complainants are confronted by a barely comprehensible choice of options by which to pursue their grievance (Public Administration Select Committe (PASC) 2007–2008). Third, there is a broader concern that the wider administrative justice system needs to be better equipped to promote better decision-making within the government, as well as providing individual remedies. PSOs can only ever be a part of the answer here, but a lack of necessary powers places limitations on the institution’s current ability to act as a catalyst for improvements in public administration. Fourth, it is argued by some that the current ombudsman system is not delivering for either individual service users or the public service providers under the jurisdiction of PSO (e.g. Doyle and O’Brien 2019; Reynolds 2017). As a result, the PSO design needs to be radically reshaped to secure better outcomes, with a number of alternative solutions proposed.
Notwithstanding the acceptance by key stakeholders of the need for change (e.g. see Cabinet Office 2000; Law Commission 2011; PASC 2013–2014; Gordon 2014: 12–14), the dominant response of the government and Parliament has been to tinker incrementally with the design of the institution by tagging-on extra provisions to existing offices rather than pursue the wide-ranging reforms that are required to achieve real change (e.g. Local Government and Public Involvement Act 2007: ss.168–182; Health Act 2009: s.35, sch.5). Likewise, calls for the expansion in the coverage of the PSO have generally been responded to by introducing new bespoke offices (e.g. in local government, health, prisons, and education) rather than establishing a more powerful integrated office, resulting in eight separate PSOs in England alone (see Chap. 4). In terms of full-scale reform, a 2000 Cabinet Office report proposed a merged ‘Parliamentary’ PSO for the UK (Cabinet Office 2000: 5–6), but this move ultimately resulted only in a minor measure being applied (Regulatory Reform (Collaboration etc. Between Ombudsmen) Order 2007) which facilitates joint investigations between different offices but adds little else to the office’s powers.
Thus, for at least two decades now, there has been widespread agreement that the ombudsman sector in England is in need of a significant shake-up, but there has also been an accompanying unwillingness on the part of government to prioritise that reform in a full scale legislative package. There may have been good reasons for this preference for incremental adjustment over radical reform, as change always carries the potential for unforeseen consequences. The limitations imposed...