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Ombudsman reform proposals
Page 508: In 2016, the government published a draft bill for consultation, which would have replaced the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman with a single Public Service Ombudsman, and would have abolished the MP filter. But the bill would not have authorized the Public Service Ombudsman to conduct investigations on its own initiative, and would not have made its recommendations legally binding. The bill was never introduced in Parliament. If it were enacted, would it be an improvement?
- The MP filter was introduced when the Parliamentary Ombudsman was established in 1967 as a way of validating and enhancing the traditional role of MPs as investigators of the grievances that their constituents had with central government administration. Is there still value in that aspect of the ombudsman scheme today?
- The Parliamentary Ombudsman and the Local Government Ombudsman made a joint reply to the draft bill. They recommended that the bill should give statutory force to the requirement from Bradley v Work and Pensions Secretary [2008] EWCA Civ 36 that it should only be lawful for a government department to refuse to comply with PSO recommendations if there are cogent reasons for doing so. They also recommended new powers to require local authorities to respond to recommendations, but did not recommend that their reports should be binding. They welcomed the proposed power for the PSO to widen an investigation, but they recommended that the PSO should have the power to launch an investigation on its own initiative without having received a complaint, on the ground that it would allow the PSO to respond to problems affecting vulnerable and marginalised people who are not able to complain.
- It may seem surprising that the ombudsmen do not want their reports to be binding. But making the reports binding would undoubtedly mean further judicial control of their decisions since, in that case, the judges would be more concerned to allow claims against ombudsman reports.
- On whether the ombudsmen should be able to investigate administration on their own initiative, see 13.10.
The Parliamentary Ombudsman and Parliament
Page 511: Since it is impossible to investigate maladministration without criticizing government policy, does the work of the Parliamentary Ombudsman clash with the political responsibility of the House of Commons?
- The Ombudsman is meant to enhance Parliament’s scrutiny of the executive, rather than to clash with it. The ways in which the Government conducts administration are of course matters of policy for which it is accountable to Members of Parliament; the fact that the Ombudsman can investigate the conduct of administration does not conflict with their role.
- The Ombudsman would be clashing with the role of the House of Commons if she went outside her remit to pass judgments on questions of policy that do not involve maladministration.