The Ombudsman's Mechanism as a Mechanism of Redress and Parliamentary Tool of Accountability

‘The Parliamentary Commissioner for Administration’s (PCA) function is redress of individual grievance. Attempting to combine this role with being a Parliamentary tool of accountability only dilutes the PCA’s effectiveness.  These are contradictory functions and compromise the Ombudsman’s ability to perform either task effectively’.

Evaluate the above statement in relation to the effectiveness of the PCA as a mechanism of administrative redress.

‘It's not the size of the dog in the fight, it's the size of the fight in the dog’ – Mark Twain

The PCA^[1]’s functions of not only being a mechanism for administrative redress but also of embodying a parliamentary tool of accountability are not contradictory functions but are rather more intertwined and complimentary to each other than suggested.

The Ombudsman’s main function to investigate allegations of maladministration can prove to be problematic as this term ‘maladministration’ has no statutory definition despite various attempts having been made to provide a definition^[2]. This leads to minimal transparency and clarity. In spite of this, openness is a main aim of the PCA system and according to Lord Denning, leaving this term broadly open to interpretation allows for elasticity and flexibility to further develop this term providing unfettered discretion to treat cases on an individual basis based on its own merits^[3]. Anna Abraham made a point that a shared understanding of good and bad administration is needed for maximum efficiency and coherence and this is hard to achieve when ‘maladministration’ has no solid definition^[4]. 

This may be why in many cases, a particular government department responds by disagreeing with findings of maladministration. In Barlow Clowes^[5], the Ombudsman found injustice and maladministration but the minster rejected these findings. Clearly, there was a difference of opinion on ‘maladministration’ considering the Ombudsman found more counts of maladministration than those investigating before him.

However, this makes the Ombudsman more effective due to its wide investigative and discretionary powers. In Barlow’s^[6], much of the arguments raised against them were due to the investigatory methods used. The Ombudsman was able to conduct a thorough investigation and was criticised for stepping outside its jurisdiction. Regardless, this shows the strength of the Ombudsman in being able to attain a higher level of access to sensitive information than MPs and courts because public interest immunity does not apply to them^[7].

Linda Reif^[8] notes that the Ombudsman operates in a similar manner to courts in its ability to compel evidence but unlike courts, the Ombudsman’s decision is not legally enforceable and neither is it capable of setting precedent. This was the issue in Bradley^[9]. The Ombudsman’s findings of maladministration in this case were initially rejected as were the various recommendations made for the Government to consider on the basis that the Ombudsman had no jurisdiction to question the content of statute law. Nonetheless, the Ombudsman’s impact in this case was important as the Government still responded by conducting reviews and bringing about significant improvements after the Court had upheld there was no justification to rationally disagree with the Ombudsman^[10]. The Ombudsman’s conclusions may not be enforceable but she still holds power to influence the outcome of cases.

Moreover, Kirkham^[11] made the point that ombudsmen did not desire to dispute the restrictions on their enforceability as it would be an ‘overkill’ to introduce a power of compulsion against government bodies and might ‘jeapordise’ a cooperative relationship. Although the Ombudsman’s inability to force a remedy is a limitation on its powers, the ability to maintain positive relationships is what makes her role more effective as she can cause Parliament to create pressure on the Government to respond positively to their findings. The PASC commented that it would be damaging for courts to keep rejecting the Ombudsman’s findings of maladministration^[12] and that it is ‘imperative’ to accept and respect its findings^[13].

This highlights how the PCA’s functions of individual redress comes hand in hand with then also becoming a tool of accountability. As Harlow and Rawlings emphasised, the Ombudsman is both a firewatcher and a firefighter^[14]. She can identify the scope for improvement in administrative practices by identifying cases by area of complaints and even record reasons for complaints in order to better services e.g. the 2015 annual report^[15] showed that 25% of the complaints upheld were complained of due to delays. This further emphasises the ombudsmen’s ‘de facto’ preventing role^[16] as the existence of the PCA office itself acts as a deterrent to engaging in maladministration considering there is a mechanism that will bring complaints against it and hold it accountable. In Mrs W x Border Force^[17], the claimant received compensation and the Home Office also reviewed the ombudsman’s guidance on complaints handling to improve the manner in which it investigates.

However, the Ombudsman’s powers do not include the ability to take the initiative to conduct their own investigations without a complaint being referred first. This undermines the alleged ‘watchdog’ role of preventing maladministration. Leyland and Anthony^[18] suggest that the ombudsman should be given the additional role of looking out for maladministration. Mary Seneviratne^[19] noted that unlike other arrangements around the world, the UK ombudsman system does not have this investigative power. The UK system is also made up of separate schemes unlike other jurisdictions^[20] whereas perhaps it should be unified to increase clarity and prevent confusion in order to make the ombudsman more accessible.  

As for the Ombudsman’s jurisdiction, it has been criticised for being limited due to certain exclusions^[21]. However, the 2015^[22] report emphasises that this issue is under reform and a lowered threshold now exists to allow the Ombudsman to investigate more cases. In 2012-13, there were 2879 complaints compared to the 1466 complaints in 2015-2016 that were labelled as being out of jurisdiction^[23]. Moreover, the 2016 report shows that complaints about organisations that can’t be investigated has fallen by 24% indicating an increase in the ombudsman’s remits^[24].