An open letter to Bernard Jenkin MP, Chair of PACAC

Dear Mr. Jenkin,

This week (19.11.16) I attended your keynote speech to the Institute for Government regarding Civil Service reform, or as it turned out, the failure of Civil Service reform.  You made a number of interesting points which are relevant to the reform of any public organisation, such as the Parliamentary and Health Service Ombudsman (PHSO), whose own reform is long overdue.  For those unable to attend the meeting it can be viewed in full here:

Bernard Jenkin – Keynote Speech

You gave something of a historical review of Civil Service reform and outlined the more recent attempts by your own committee before concluding that,  “reform is not something you can do to an organisation from the outside.”   If this is the case then reform relies upon dysfunctional bodies having the insight to identify and modify their own weaknesses.   In the case of PHSO their five-year change programme under the leadership of Dame Julie Mellor has been a spectacular failure.   phso-can-a-dysfunctional-organisation-reform-itself/    As you aptly pointed out, reform depends on effective leadership but you also stated that leadership is the last to admit the failings of the organisation.  Without external involvement, the organisation will writhe through years of sorry decline as the good staff leave and those who remain can find no outlet to voice their concerns.  PACAC, your committee, are the only parliamentary body who can oversee the Ombudsman, but with your hands-off approach, this organisation has been allowed to limp from one failure to another delivering scandalously poor investigation reports to the public.

 

pacac-scrutiny-cartoon-2

 

At the heart of the problem and the elephant in the room, is the fact that protection of Civil Servants and Crown Servants offers protection to the Ministers, to government and to everyone else who might be held to account for poor decision making and basically corrupt behaviour.   Parliamentarians choose the leaders of these organisations who are all clones of previous leaders.  So we have an endless loop where only the names change, but the process stays the same.  Has civil service reform failed due to the lack of genuine impetus to reform this body from those with the power to do so?  We have had reform of the benefits system, which was imposed from the outside and behaviour was modified through punitive sanctions.  Equally, government have achieved reform of the NHS through the imposure of new legislation and new work contracts.  These two events did not take years of delicate negotiation to modify internal cultures and just goes to show what can be achieved in a relatively short time when those in power can see the benefits of the reform.

External public accountability, if consistently applied, can alter behaviour.  Substantial compensation payouts would sharpen the focus of organisations controlling tight budgets while public reports of upheld complaints would make it clear to all parties what went wrong and why.  Yet years of light-touch, self-regulation backed up by regulatory bodies who are devoid of effective enforcement powers have allowed public servants to act with impunity.  As you say, we may have moved from the ‘age of deference’ to the ‘age of reference’ however, parliamentary and public bodies use every trick in the book to keep the truth under wraps and deny justice to the public.

Reform of the Civil Service, reform of the Ombudsman and reform of parliament itself will continue to revolve like the ‘cracked record’ you mentioned because the present system suits those who are on the inside and they care not for those who are on the outside.

If reform requires internal change then you need to appoint change makers;  people who think outside the box, do not bow to the establishment and have the courage to take risks.  You have the opportunity afforded to you by the early resignation of Dame Julie Mellor, the Ombudsman to make such an appointment for the PHSO.  Will you take this opportunity to deliver a change leader, to ensure there is improved accountability across public services or will you select another safe pair of hands?

Actions speak louder than words Mr. Jenkin.

Yours sincerely,

 

 

Della Reynolds

PHSO pressure group

 

 

 

 

 

 

How do you solve a problem like Dame Mellor?

With the release of the Sir Alex Allan’s  independent review into Issues concerning PHSO we now have a greater understanding of why Ombudsman Dame Julie Mellor decided in July 2016 to resign her post following the earlier resignation of her deputy  Mr. Mick Martin in March.  The current legislation provides the Ombudsman with omnipotent powers.  The Office is independent of government, so beyond the scrutiny of ministers, MPs or civil servants, the Ombudsman handles all complaints about its own service, the wide legal discretion ‘to act as she sees fit’ prevents uphold at judicial review and the ‘secrecy’ of the investigation process leaves it shrouded in mystery.  The Ombudsman can choose to leave office early, but can only be removed by agreement from both Houses of Parliament.  The independence of the Ombudsman allows parliamentarians to walk away from public body scandals with clean hands as they can’t interfere with the decisions of the Ombudsman.  A neat arrangement until it is clear that someone in parliament needs to take control.

There are two things you need in an Ombudsman.  The first is a safe pair of hands, someone who knows the unwritten rules of the establishment.  The second is a friendly persona, a smiling face to give confidence to the public that the Ombudsman really cares about them.  When Ann Abraham stepped down from the Ombudsman hot seat in 2011 following difficult questions over Mid Staffordshire  and the failure of PHSO to investigate a single complaint during the time of the Francis review,  Dame Julie Mellor appeared to be the perfect candidate.  She had 30 years experience of public service, had turned around the failing Equal Opportunities Commission (EOC) and in her pre-appointment interview stressed her ability to appeal directly to the public.

To give one example, I think where the role of the Ombudsman is talked about could be shifted. For example, I used to do lots of breakfast TV, sitting on the sofa, because you reach a much wider audience that way. That is the kind of thing that I think  we could do.  Q22 Appointment hearing – oral evidence

And so the decision was made, Dame Julie Mellor DBE stepped in to lead PHSO through a five-year change programme in January 2012 and everyone went home happy.

Strategy and Staff

It took until November 2012 for PHSO, under Ms Mellor’s leadership, to launch its new strategic plan – to investigate up to 10x more cases than previously under a scheme entitled ‘more investigations for more people’.  The number of cases investigated was to rise from approximately 400 per year to 4,000 per year and all without increasing staff or resources.

The strategy was launched in  April 2013 and despite being over a year in the planning there had been little consideration regarding how to deliver significantly larger numbers of quality investigations.  Like a factory producing faulty widgets the decision was made to produce 10x more faulty widgets before turning attention to improving quality.  Staff newly reassigned as ‘investigators’ were given no additional training but told to utilise ‘peer support’ while senior management benefitted from a significant bolstering of staff and £120,000 kitty for management training.   money_spent_on_training_front_line_staff FOI

Unsurprisingly, by December 2013 the staff were unhappy.  The PCS Union submitted a scathing account of the strategy changes to the Public Administration Select Committee, who had so recently selected Dame Julie to be the new Ombudsman.

 The strategic shift towards investigating more cases was, therefore, welcomed by our members. But from the outset they questioned how, with a reduced budget, decreasing staff numbers, and the hugely increased work load resulting from the proposed tenfold increase in investigations (4,000 instead of 400)- the Office could possibly cope. It was feared that a massive backlog of cases would build up, and so it has proved.

Short of the Treasury coming up with more funding, or the Ombudsman pruning its well-staffed external facing departments, or cutting back on other less essential budget heads- including the £430,000 set aside for consultants in 2014/15 and the controversial £120,000 ‘Board Development Budget’ – all of which, at present, seem unlikely, the solution is not immediately obvious.

written-evidence/public-administration-committee

In 2013/14 the staff turnover rate was 21.3% and despite efforts from Dame Julie to ‘turn this around’ by 2014/15 they continued at 21.7%, much higher than expected for a public body.  staff_turnover_at_phso FOI

The staff survey of 2013 reflected the impact of the new Ombudsman since her arrival in January 2012 and on all measures of satisfaction there had been a steep decline.

PHSO staff survey graph

 Only 19% of staff expressed confidence in the leadership of PHSO 

in 2013 and by 2015 this had fallen to just 11%. 

Dame Julie Mellor clearly did not engage the staff with her strategy of setting targets to crank up the number of investigations in a ‘never mind the quality, feel the width’ manner and by March 2016, disheartened by the empty rhetoric coming from the top, they took the unprecedented step to deliver a vote of no confidence in senior staff. phso-staff-vote-no-confidence-in-leadership

Finance

With ‘people skills’ well under par let us turn to control of the purse strings.  Dame Julie Mellor is the Accounting Officer for PHSO with ultimate responsibility for the distribution of a near on £40 million annual budget.  In times of austerity it is important that PHSO delivers value for money and if possible a surplus back to the Treasury.  By increasing the number of investigations the Ombudsman was able to reduce the high headline figure of £88,000 per investigation, but at the same time there was an increase in other costs such as external affairs and strategy which rose by 24%.  Q90 Oral Evidence to PACAC  With a plan to investigate 10x more cases the imperative must be on bolstering the front line staff yet investment was at board and management level during the Dame Julie’s tenure.  We learn from Sir Alex Allan Report  [71]  that Dame Julie strengthened her immediate office staff by appointing a new principal private secretary supported by an assistant private secretary and a diary secretary while the number of full-time equivalent staff had fallen leading to a backlog of 1,222 cases for assessment.  Oral Evidence to PACAC [Q40]

In September 2014 the National Audit Office (NAO) reported on a procurement investigation regarding the employment of Rosemary Jackson Consulting to carry out ‘Governance Development Coaching’ for PHSO on a three-year contract worth over £50,000.  rosemary_jackson_consulting FOI  Rosemary Jackson was an ex-colleague of Dame Julie’s and the questions raised following this procurement triggered an investigation by the NAO.   The NAO decided, on balance, that there was no evidence of a conflict of interest but concluded that;

The Ombudsman felt it essential to take a strong personal interest in the procurements, drawing on her business experience to identify potential suppliers. Although no conflicts existed, prior relationships gave rise to potential conflicts of interest which were not well managed. In the absence of firm procedures, ad-hoc arrangements for managing interests were often made, but these were rarely proportionate to the risk that procurements might be seen to be unduly influenced. As a result the perception of risk remained; it was only through doing this work that we were able to satisfy ourselves that the risk had not materialised.

Had she been found guilty of arranging lucrative contracts for her friends the integrity of the office would have been severely jeopardised.  Steps were immediately put in place to ensure no further oversights occurred.  Then  in 2014/15 the accounts were qualified by the NAO due to ‘lack of management oversight’ which resulted in funds being overdrawn by £275,000.  Due to a combination of losing all senior staff in the finance department, flawed information reaching the audit committee and the board, PHSO failed to draw down sufficient funds to cover their costs.  It is interesting to note that the flawed information was not checked by the Ombudsman personally although as Accounting Officer she had ultimate responsibility.  But once the oversight was highlighted by the NAO Dame Julie Mellor took immediate steps to tighten all financial processes.

The steps that I have taken are that we now have a monthly rolling cash flow, forecast and monitoring, and I have a monthly assurance meeting with the Executive, which now includes updating me on exactly what the cash flow forecast is for that month and to the end of the year. We are putting in place a set of financial management arrangements in terms of process maps, procedure guidance for staff, and the way in which we will audit whether they are being followed. We have put in some new software that will give better information to our finance team so that they have to spend less time on manual spreadsheets and more on what are the implications of the data. Finally, I have asked our executive director of finance, who is new to the organisation, who joined just as we were closing the accounts, what more we can learn from other Departments that have had their accounts qualified for similar reasons about failing to monitor their supply estimates.  phso-annual-review/oral/2016 [Q2]

With these robust measures in place, it is somewhat surprising to find that in September 2016 the Health Service Journal once again reported that PHSO failed to follow its own procurement guidance in awarding a £100,000 contract to Baxter Storey to run an on-site cafe for staff.  HSJ Sept 2016

I would appear that Dame Julie is very good at retrospective learning.  Very good at describing the plans she will put in place to ensure the same mistakes are never repeated and yet somehow, like groundhog day, PHSO has staggered from one crisis to another under her stewardship.

Sir Alex Allan’s report

Finally, in February 2016 there came a crisis too many.  The Health Service Journal reported that the Deputy Ombudsman, Mick Martin had been named in an Employment Tribunal as complicit in a cover-up whilst at Derbyshire Healthcare Foundation Trust.   Dame Julie Mellor had been provided with evidence taken directly from the Employment Tribunal report by Helen Marks in July 2015.  On receipt of this information Dame Julie had an off the record, 1 -1  meeting with Mr. Martin where she accepted his account without reading the tribunal documentation. A short letter of acknowledgement was sent to Helen Marks who had questioned whether Mr. Martin passed the fit and proper person test. deputy-ombudsman-complicit-in-cover-up

 In August 2015 Dame Julie Mellor was again informed of the tribunal findings by Monitor, but failed to take any action and failed to inform the board.  HSJ Sir Alex Allan summary  It was only when the story was released by the Health Service Journal in February 2016 that any action was taken.  This led to the resignation of Mr. Martin and shortly after the resignation of the ombudsman herself.

The question this raises is why did the Ombudsman act in such a cavalier manner when provided with correspondence that her Deputy Ombudsman had been found guilty of conspiracy to cover up a sexual harassment complaint?   There is a clue in  Sir Allan’s Report [45]  where it is stated that;

She explained to me that at the time the letter from Mrs Marks had been received, PHSO had a process for dealing with correspondence alleging cover-up or collusion by staff in relation to casework. Given the nature of PHSO’s work, such correspondence was received every week. There was a standard procedure for referring this correspondence for fact-checking and advice, and she had learnt to suspend judgement while the allegations were looked into.

Although qualified by the judgement ‘given the nature of PHSO’s work’ this statement reveals a fundamental truth about PHSO which deserves further analysis.  Namely, that the Ombudsman receives correspondence on a weekly basis that PHSO staff have been involved with cover-up or collusion.  If PHSO staff are carrying out independent and unbiased investigations, then why such a high level of correspondence alleging cover-up and collusion?  The ‘standard procedure’ referred to here is not explored further by Sir Allan, but fundamentally it involves taking the allegations of wrong-doing to the accused staff member who denies everything, then sending a short acknowledgement to the complainant or no acknowledgement at all on the basis that  ‘no further correspondence required’.  No evidence is reviewed and no internal investigation takes place.  In this respect, the behaviour of the Ombudsman regarding Mick Martin followed standard procedure to the letter.  When you are totally in control of handling complaints about yourself you can devise any system you like. PHSO state in their annual report that they have an error rate of 0.2%; a figure which represents their accepted error rate and not the high number of errors reported to them on a weekly basis.

If Orwell is right and ‘absolute power corrupts absolutely’ then the new Public Service Ombudsman must be accountable to parliament and the public.  As Dame Julie Mellor herself might say, ‘… as soon as we realised there was a problem with accountability we took steps to ensure it would never happen again.’

So Bernard Jenkin, Chair of PACAC, when you are ready to break your silence on this issue can you please inform the public of what steps you are taking to ensure that the new Ombudsman is held to account by parliament on behalf of the long-suffering public.

The Democracy Game

If you have read my post on the-state-of-the-nation-part-one and the-state-of-the-nation-part-two then you will be up to speed with the idea that ‘democracy’ is the greatest con-trick of our time.  The promise is that we, the people, hand over our right to make decisions to elected representatives and in return we get protection from the state from both external enemies and the abuse of government power.  It is called a democracy because we can choose our representatives and in theory at least, can vote them out every five years if they don’t represent the wishes of the people.  The reality is that the representatives chosen have a first loyalty to their party and will vote in accordance with the dictates of the party whip (if they want to keep their job).  If you vote them out of office the party simply put up another clone to take their place and the show goes on.  The party whip is a key player who’s task it is to keep very tight control over the other team members and those who don’t follow the rules soon feel the backlash of negative media attention and worse.  (Jeremy Corbyn)

The object of the game is to have total control and no accountability.  Now some would say that was a dictatorship, not a democracy, so the rules require a public display of  lip service to democratic principles whilst active players attempt to take one more step towards absolute power.

An important element is to select players who understand the rules; principally the rule that protecting the established order is paramount. Boat rockers are not welcome in our ‘democratic’ power circles.  Finding a safe pair of hands means identifying those who can keep a secret, deliver unpopular policy and most importantly maintain the confidence of the public that this is all done for the very best of reasons.  If you prove yourself to be a convincing player you are given a gong in recognition of your ‘service to the public’.  How ironic.

With the selection process for top jobs being of paramount importance, it is interesting to note that the Grimstone Review of Public Appointments has slipped quietly through the house whilst the protagonists take everyone’s eye off the ball with a bit of public jibbing at Prime Minister’s question time.   Non-Departmental Public Bodies (NDPB) have a key role to play in delivering policy to the public and in holding those in authority to account.  They include inspectorates, regulators, advisory committees  etc. They are arms length from government ministers which gives them an air of independence (democratic brownie point) but arms length doesn’t prevent Ministers from pulling the strings and the most important is that of choosing the CEO who sets the agenda for the whole organisation.  If you want absolute power and no accountability then it is important that those who hold the democratically required role of ‘regulator’ share your understanding of what is required of them.

In 1995 Lord Nolan established a Commissioner for Public Appointments and a Code of Practice to regulate the system which had at the heart the Nolan Principles.   This was as a result of concerns that political appointments were being made without ‘due process’.  Due process is the euphemism used to describe a power grab which needs to pass the democratic lip-service rule.  It has to be seen to be fair even though it is blatantly unfair to anyone who scratches the surface.  So to protect Ministers from negative fall-out, a system of due process is put in place to ensure that when things go wrong no-one is held to account. Was due process carried out? – tick, then all was done correctly.

Due process can become a bit tiresome though and when re-labelled ‘bureaucracy’ it is open to attack from those who feel complacent enough to lay down their democratic shield.  And so it was in 2015 that the government asked Sir Gerry Grimstone to review the appointment process and no doubt gave him a bit of a lead on what they were looking for.

To start with a positive and quite possibly a headline grabber, Sir Gerry recommended that there should be a renewed focus on ethnic, gender and social diversity. He also recommended changes to the role of the Commissioner, removing many of his or her formal powers within the public appointments process (for example removing the power to appoint independent assessors to an interview panel). Sir Gerry recommended that these checks and balances be replaced by the appointments process being made more transparent, with the Commissioner being transformed into a commentator on the Government’s probity in following this process.  PACAC Report

A commentator indeed.  A bearer of bad news is not welcome in the corridors of power.  Who would take on that task with any intention of doing the role honest service?  There can only be one motive behind the removal of ‘independent assessors’ on an interview panel.  Why waste time with awkward questions when the matter has been previously settled in the Members Bar?

The fact that the Government so willing accepted the proposals of Sir Gerry greatly concerned Bernard Jenkin, Chair of PACAC who warned;

We have received evidence of widespread disquiet about Sir Gerry’s proposals. Although the Government has adopted them, it should think again. The Commissioner’s powers should be restored in order to safeguard public trust and confidence in the system. Furthermore the Government should clarify the role of pre-appointment hearings, including implementing the recommendations made by the Liaison Committee in 2011, and considering how scrutiny could be further improved in the future. Effective scrutiny both within the Government (through the Commissioner for Public Appointments) and in Parliament is vital to ensure that public trust and confidence in public appointments remains high and also that appointments are truly being made on merit.  PACAC report

Bernard is trying to warn the government that removal of ‘due process’ leaves them all in the firing line should an appointment become controversial.  It is not clear whether Mr. Jenkin believes that ‘public trust and confidence in public appointments is high’ but it is clear that he knows enough about the democracy game to warn others that you must have such window dressing if you are to maintain the illusion of democracy.

You must never let the veil slip. 

There is evidence to the effect that the Commissioner for Public Appointments was merely a ceremonial role in any event, in the statement given to the Grimstone Review by Sir David Normington, the Commissioner since 2011.

Whilst Sir David’s reforms have had an impact, in his evidence to the Grimstone review, he said that they had had less impact than he had initially hoped. Sir David said:

It has, however, been a slow process getting Departments to use their new discretions. Few put real effort into attracting a more diverse field preferring to depend on conventional advertising or headhunters. The selection process is often left in the hands of sponsor teams, which have no experience of recruitment and/or with junior officials whose responsibility for appointments is one of many. Some Departments have found it convenient to stick to the prescription of the previous Code as a comfort blanket; some have continued to use their previous list of assessors as independent members, rather than using the requirement to engage an independent member to bring wider perspective and challenge to the Department. This has also coincided with a period of retrenchment in the resources available in Departments for public appointments. A number of central units in Departments, which had real expertise in public appointments and which I had hoped would drive the change, have been abolished.15  PACAC report

Note the fact that those who had ‘real expertise in public appointments’ were abolished and you can see the game in action.  Where Sir David went wrong was in taking his role seriously and inadvertently rocking the boat.

Sir David said that he was preparing a new code for public appointments, when the Grimstone review was announced, which would have helped deal with some of these issues.

So that was the end of him.

One reason why Bernard Jenkin is so anxious over the move away from the Commissioner is because without this buffer issues concerning inappropriate selection could come back to parliamentarians, who are, after all, the ones responsible.  That would never do as he could find his head on the block.  As Chair of PACAC it is Mr. Jenkin’s role to choose the Parliamentary and Health Service Ombudsman.  In 2011 he and the committee chose Dame Julie Mellor to run the Orwellian Ministry of Truth where all the evidence against public bodies is distorted, denied and destroyed leaving all parties unaccountable.  This position requires a key player as the whole system could be exposed by a ‘do-gooder’.  Unfortunately, although Dame Julie could keep a secret and no doubt has many which would lift the lid off government, and she can deliver unpopular decisions with the sweetest of smiles and not a hint of remorse, she failed to maintain public confidence that it was all done for the best of reasons.  Service users in the form of the PHSO the facts Pressure Group,  James Titcombe who lost his baby son at Morecambe Bay and the Patients Association have all had a hand in removing the mask of ‘independent, impartial and robust’ from anything connected with the Ombudsman’s work.    what-people-say-about-phso

So time for her to go.

It’s not easy getting rid of an Ombudsman mid-term.  They can hardly abolish the post, which is a favourite ploy and it would cause a stink to get both Houses to debate a vote of no confidence in a key figure.  Far too many awkward questions.  Fortunately,  Dame Julie Mellor chose to resign over a mistake made by her in omitting to take action following correspondence from Mrs Helen Marks concerning the judgement of an Employment Tribunal which confirmed that the Deputy Ombudsman, Mick Martin was complicit in a cover-up concerning sexual harassment. deputy-ombudsman-complicit-in-cover-up   According to the Health Service Journal

A reply to Ms Mark’s letter from Dame Julie said she “noted” the comments made but gave no indication of any further action and Mr Martin continued to make decisions on casework about NHS complaints.

 The reason she made such a ‘mistake’ is obvious to any complainant who has had their own evidence duly ignored in the same fashion.  The reality is that Mrs. Helen Marks could do nothing but complain again.  The Ombudsman is protected from accountability by a ‘special cloak’ of parliamentary privilege and in return she protects all of them.

The letters between the two parties show something of the game in action.  Both written on the 4th July it is clear that they formalise what has been a previous agreement.  Dame Julie Mellor admits to one error of judgement and in return, Bernard Jenkin expresses regret at her noble decision to hold herself to account.  The reality is that Dame Julie has lurched from one crisis to another since her appointment as Ombudsman in 2012 with high staff turnover and a union vote of no confidence in March 2016, it was not just the service users who were making their dissatisfaction known.  hsj-calls-for-resignation-of-phso-leadership

Thousands of citizens have approached Dame Julie Mellor for independent review of the hardship and injustice suffered at the hands of public bodies.  Thousands have been let down by the Ombudsman’s office ignoring the most blatant evidence of wrong-doing and she will not be held to account. No doubt after some gardening leave she will be duly rewarded for her loyalty to the establishment with another post away from the limelight.  A new broom, same as the old broom, will take office and the mounting pressure for reform will dissipate in the hiatus of change.  Mr. Jenkin talks of new legislation to deliver Ombudsman reform, but this legislation was not included in the last Queen’s speech and is unlikely to see the light of day since the Brexit vote threw parliament into a spin.

Simply changing the Ombudsman without improving the processes, investigation methods and most importantly accountability, will deliver nothing to those who suffer injustice.

When you understand that the democracy game is one of absolute power with no accountability you realise why none of the regulatory bodies can deliver to the public.  To put an honest Ombudsman at the apex of regulation would be political madness.  In my six year fight for justice many people have told me that ‘you can’t beat the system’ but I wasn’t trying to beat the system, I was naively trying to use the system I was entitled to as part of my stake in the democratic process.   However, as I put a stick further into the  murky water of regulation so more and more dirt came to the surface and with it the stench of corruption.  Six years, or sixty years the fake system could not deliver justice.

The democracy game has only one winner.

 

  

 

 

 

 

The state of the nation (part two)

Political Power and Democracy

Since the canny Barons first managed to wrest the power of divine rule from royalty they have been perfecting the art of maintaining it for themselves.  After eight hundred years the political elite are masters at creating the illusion of democracy whilst following their own self-serving agenda.  Once every five years we are provided with our democratic right to vote.  We may get to do the voting, but ‘they’ get to do the choosing and that is where the real power lies.

Our two-party system pretty much locks everyone else out of the game. state-of-the-nation-part-one so if you want a seat in the House then you have to convince one of the party machines that you are ‘one of them’.   The inherent bias towards choosing those who best reflect ourselves leads to the well-founded accusation of ‘male, pale and stale’. (Of 650 MPs, 458 are male, 191 are female and just 41 from ethnic minorities) house-of-commons  Of course, democracy gives us the right to vote them out, but only by voting in another party clone produced by the same biased selection process.

Democracy is the only system that persists in asking the powers that be whether they are the powers that ought to be.  ~Sydney J. Harris

The winning party then sets about delivering their policies which will affect each and every one of us, no matter how we voted. In order to distance themselves from the delivery and inevitable comeback of these policy decisions, government sets up arms-length, independent bodies and quangos to stand at the chalk face of democracy.  Independent from government these bodies are not held to account by parliament in any direct manner, but are largely held to account by each other, wearing kid gloves.  These bodies include all the regulators, Ombudsmen and a whole host of advisory quangos.  A veritable galaxy of tax-funded organisations spinning round the mother planet to protect our democracy.  Providing the citizen with recourse to justice is a corner stone of democracy, so surely worth every penny.  However, should you find yourself in the unfortunate position of calling upon the State’s protection you will find that it is just a mirage of rhetoric and fancy websites which fails to deliver justice, remedy or even plain common sense.

For decades successive governments have favoured ‘light touch’ regulation, which is fundamentally self-regulation or no regulation at all.   In the private sector this has allowed the bankers to gamble with public money, for energy companies to form unofficial cartels and most recently for entrepreneurs like Sir Philip Green to loot the coffers of BHS and walk away with billions in the bank and a black hole where the pension fund should be.  Turns out that all that messy ‘red tape’ was actually there to protect people.  In the public sector light touch regulation has led to national scandals such as that of over 1,000 avoidable deaths at Mid Staffs Hospital, child grooming in the care system, devastating flooding in areas left vulnerable due to inappropriate agricultural  practice and a whole host of other scandals yet to make the headlines.

Light touch regulation effectively allows public bodies to investigate themselves and it should be no surprise that they tend to interpret the evidence in a partisan manner.  With a nod towards fair play these bodies provide a review process if you are unhappy with the quality of their investigation and in due course a colleague will confirm that the internal review upholds the first decision.  Democracy provides for a complaint process and political control ensures its ineffectiveness by selecting the CEO’s and ensuring they are unaccountable to the public.

In 1967 the government of the day set up the Ombudsman to be the final arbitrator for public service complaints and to protect the citizen from the abuse of power.   The Ombudsman is chosen by the Queen as a crown servant, though in reality is selected by political appointment.  The Ombudsman is currently known as the Parliamentary Ombudsman which tends to give the game away, but in a proposed reform the new body will sport the moniker ‘The Public Service Ombudsman’ to reflect the government’s  intention to ‘better to serve the public’Ombudsman-reform   A cynic might suggest that this title is in the same vein as ‘work sets you free’ or Orwell’s Ministry of Truth where the facts were altered to suit the political mood of the moment Nineteen_Eighty-Four and that the new Ombudsman will continue to work as an Orwellian ‘Memory Hole’ where all the facts are distorted before ultimate destruction using their 12 month retention policy.  Memory_hole

There is no doubt that previous performance lends credence to the suggestion that the Ombudsman is merely the government’s clean-up system.  Taking in damning evidence, delivering out whitewashed reports which vindicate everyone.  The Ombudsman failed to raise the alert over Mid Staffs as they did not investigate a single case presented to them in the time span of the Francis Inquiry.  Don’t look and you don’t find.  (The two cases in this data were presented outside the investigation time span Mid Staffs data)  The Ombudsman failed to protect mothers and babies at Morecambe Bay, delaying an investigation into poor midwifery standards until forced to take action by the publicity engendered by James_Titcombe   More recently in the Southern Health Scandal where an NHS England report exposed the fact that fewer than 1% of unexpected deaths of learning disabled people were investigated by the Trust, the Ombudsman failed once again to raise the alarm.  During the time of the NHS England inquiry the Ombudsman investigated 9% of the complaints submitted and upheld only 3% of them.   Southern Health – PHSO data  No sign here of the long-standing, systemic weaknesses which led to the death of Connor Sparrowhawk and others CQC criticise Southern Health.

As we look towards the creation of the new, ‘public-centered’ Ombudsman it is important to know who is doing the choosing.   Presently the Cabinet Office has sole responsibility for drafting the legislation which will hold itself and all government departments to account.  This conflict of interests would have to be countered by close scrutiny and amendments as it passed through the House.   Except that the scrutiny committee can be controlled by the government through the Party Whips and the timing of debates is totally under their control as is the possibility of adding a number of ‘get out of jail free’ clauses at the last moment when attention is elsewhere.  Surely not Minister.  Oh yes Minister!

Essentially, with legislation under the control of the elected government and the judiciary chosen by political appointment, it’s game, set and match to the political elite. But this is how our democracy works.  We get to choose them once every five years and they get to choose everyone and everything else on our behalf.  That’s the deal.  This wouldn’t be a problem except for the democractic deficit which lurks on the wings of the political stage totally unacknowledged by government and media alike.

When a party can take power with just 36% of the vote it can hardly be said that it is a government ‘of the people, by the people and for the people’.   With more than half of the parliamentary seats being ‘safe’ a vote for any other candidate is just a waste of effort.  This leads to voter apathy and a further entrenchment of the status quo.   democratic-deficit-in-the-uk  Your MP, despite their election promises, will vote according to the dictates of the Party Whip.  How is this democratic?  Lobbyists, who largely fund the party machines, still have undue influence over politicians and all done in secret when MPs do not have to reveal meetings recorded in their diaries.  whitehalls-secrets-to-be-revealed

E-petitions allow those who still believe in democracy to call for reform, but even with 100,000 signatures the Backbench Select Committee has the final say on whether to hold a debate in the house or not.  It is no surprise that there was not a parliamentary debate on the petition calling for a snap general election due to the revelation of David Cameron’s connection with tax avoidance in the Panama Papers. cameron-tax-haven-parliament  The point is, if we really live in a democracy should the voice of 163,275 people be so easily dismissed?  In 2013 over 300,000 people signed a petition to stop the proposed badger cull.  petitions/badger cull  An unprecedented number and due to a successful publicity campaign spearheaded by Brian May two debates were held in the House on this issue.  The campaigners won the first free vote, but lost the second when a three line whip was applied.  In any event, such a vote is not binding and the government can go ahead with whatever plan they have, simply shrugging off the will of the people.   This is our democracy in action.

So as the EU debate repeatedly calls for us to ‘take back control’ citizens should be asking, to what purpose?  The present government has a neo-liberal ideology which favours free market capitalism and helps to put more money into private hands by shrinking the size of the state.  Austerity has led to a prolonged public sector pay freeze, cuts to essential public services and reduced pensions.  The proposed move towards removing the UK from the Universal Human Rights Act will allow the government to control the human rights of UK citizens, for good or for ill and Brexit will cut the ties with European Directives which provide rights for workers.  No doubt even more of the cumbersome ‘red tape’ will be in the firing line.

The next big debate should be on parliamentary reform.  Long overdue and unlikely to be granted by any government in power.  Our paper-thin democracy is a sham and we the people should be the ones looking to  ‘take back control’.   Citizen power comes from uniting with a single voice in numbers which cannot be ignored, but for generations we have been fooled into fighting each other along the well-drawn lines of class, creed and colour.  The EU debate has been a classic example.  We fight each other, they rule with impunity.  That’s the state of the nation.

 

 

 

 

 

The state of the nation (part one)

There is a lot of talk of ‘sovereignty’ in the E.U. debate.  Of leaving the E.U. in order to regain our sovereignty – defined by the Oxford dictionary as ‘supreme power or authority’.  It might be worth thinking for a moment as to how this supreme power may be used should we break free of the unelected Eurocrats who are said to be running our country like a puppet state.

Let’s start with democracy.  We have essentially a two party, first past the post electoral system.  In the 2015 General Election UKIP received 3.9M votes (12.7% of the share) but only one seat in the house.   We have a majority conservative government on 36.8% of the vote.  Under proportional representation (used for EU elections) UKIP would have secured 83 seats making them the third biggest party ahead of the Lib Dems and SNP.  election-2015-proportional representation  Would  a strengthening of sovereignty deliver electoral reform?  You only have to ask yourself whether the winning party would ever change the odds.   Throw into the mix that in at least 24 constituencies there are investigations into electoral fraud regarding breaches in spending limits by the conservative party Guardian 13.5.16 that the increased use of postal votes is wide open to corruption beware the banana republic postal ballot and the suggestion that Rupert Murdoch may be in charge of digital voting in the UK for 2020 and you start to wonder whether a government elected under these circumstances should be given ‘supreme power’ over all the poor saps who didn’t vote for them.

Administrative justice is the cornerstone of democracy, using tribunals, ombudsmen and courts to give the citizen redress for the misuse of government power.  It affects every aspect of the citizen’s contact with the state including health care, pensions, workers rights, child support, education and complaint handling across all government departments, yet administrative justice is continually treated with disdain by one government after another.  Created and modified in a piecemeal manner the system struggles to gain any cohesion or consistency.  In at attempt to make the process fair, accessible and efficient the Administrative Justice and Tribunal Council (AJTC) was formed in 2007 as the only body with oversight of the whole process.  Able to work with all stakeholders they soon produced ‘general principles’ and started to share ‘good practice’ in a series of reports. These put pressure on Government for wholesale reform and the acknowledgement that poor decision making and poor complaint handling was wasting money and damaging lives.  By 2011 an inquiry was underway to close the AJTC down as part of the cost-cutting austerity measures.  Because we live in a democracy there was a public consultation and a number of experts duly submitted their written and verbal evidence to parliament all in favour of keeping AJTC open and active.  public-administration/written-evidence-OAJ

The suggestion was that the Ministry of Justice (MoJ) could easily fulfil the role of AJTC and effectively monitor its own performance.   An advisory council of sixteen experienced justice experts would be replaced by one or two newly appointed MoJ officials.  Dr Jeff King from University College London drew the committee’s attention to a letter sent to Government on 4th October 2010 and signed by the most senior professors of public law in the country all in favour of keeping AJTC open and active.  Although the submission from the MoJ states that,

 “The Department does, and will continue to take account of the views of service users.  It will consult widely with experts, including those who represent users, as part of the policy formulation process.”  

All the ‘experts’ were ignored and the AJTC duly closed down in 2013.  ajtc.justice.gov.uk

The submission from the Public and Commercial Services Union (PCS) made the comment that,  “It is also notable that the AJTC is shortly to publish a report that will challenge the government to recognise the scale of unnecessary cost generated by its own actions.  The report will be critical of complex and badly drafted laws in some areas of administrative justice without strategic action to improve it.”   Telling truth to power is inevitably a short-lived career, just ask Natasha Devon the axed Mental Health Champion.  theguardian/mental-health-champion

Although we have a public consultation process the Government of the day are not required to take any notice of a single suggestion, no matter how ‘expert’ that opinion may be.

Public consultation is the fine veneer which separates our democracy from dictatorship.

A great many people will have signed a petition in their local pharmacy to prevent the Government from reducing funding for this vital service.  Hoorah for democracy!  Once you have over 100,000 signatures (pretty sure in this case) then you are given a parliamentary debate and quite possibly a vote in the house.  Before you get too excited you need to know that our democracy does not stretch to making the vote binding and at the end of the day, despite all the hard work of unpaid campaigners the Government can do exactly what the Government wants to do.

Our present Government wants to shrink the size of the state and under the guise of austerity they have cut benefits for the disabled and vulnerable, cut legal aid, introduced charges for tribunals, increased the use of food banks, increased child poverty, attempted to turn all schools into academies, under-funded the NHS to near breaking point, tried to impose a contract on Junior doctors, refused to give Junior doctors protection for whistleblowing and want to introduce a British Bill of Human Rights removing us from the Universal Bill of Human Rights.

If this Government and all future Governments are handed ‘supreme power’ following our exit from the EU is there any evidence that ‘sovereignty’ would improve our everyday experience of democracy or simply make it even easier for them to run a dictatorship of decision making with nothing more than lip-service to public opinion?

Be careful what you wish for. 

 

 

 

 

Hillsborough truth – what next?

Tuesday 26th April 2016 was an historic day for justice.  As we watched the Hillsborough families join arms outside the court after a 27 year battle for the truth to be acknowledged, we witnessed a rare event.  Justice delivered to the little guy, the one with no voice, the public.

Now the untangling of the web of deceit begins and our politicians put on their faces of mock horror at the level of corruption shown by South Yorkshire Police.  Mock horror that those in authority could conspire, collude, and distort the course of justice through 27 years of inquests and investigations.  As the web unfolds the best thing to do is point the finger at someone else.  The narrative will be that in this instance a unique combination of undue influences came together to deny justice, but the truth is that Hillsborough represents ‘business as usual’ as the establishment swings neatly into self-preservation mode.   The number of British citizens who have been delivered the same injustice, the same vilification and the same official denial would fill the Hillsborough stadium many, many times over.  The statement that it should never happen again are hollow words.  It has happened again, and is still happening right now, this very day and tomorrow and the next.  It is how the system works.

It did not surprise me that ‘near misses’ of catastrophe at Hillsborough had been ignored by those in authority.  In 1981 thirty-eight fans were injured in a crush.  Tottenham fans were blamed for arriving late.  Sounds familiar.  In 1987 one Leeds fan told of a bad crush in the Leppings Lane pens, he reported to authorities (and the Minister) that the crowd was so tightly packed he was ‘unable to clap his hands’.   In 1988 Liverpool fans and police gave accounts of crushing in the Leppings Lane pens during the FA semi-final.  Sheffield Wednesday denied knowledge of any ‘crowd related concerns’.  Here are the usual ‘missed opportunities’ and as a consequence in 1989 ninety-six lives were lost and many more suffered bereavement and injustice.  Hillsborough – 5 key mistakes

As criminal charges follow the ruling of ‘unlawful killing’ will a few sacrificial lambs be sent to the slaughter or will we get to the very heart of the establishment cover-up?  On Question Time yesterday, Andy Burnham spoke these words;  Question Time 28.4.16 (30 mins in)

“There is an elite in politics, in the police, in the legal system, in the media too, that colludes together to exercise power over ordinary people – that’s the story of Hillsborough”

He added that there needed to be a fundamental rebalance of the system to give ordinary people the ability to get truth and justice when they need it.

So who will deliver the fundamental rebalance of the system?

In this regard, we continually look to the system to reform itself and are continually surprised by its failure to do so.  The single golden thread which holds the whole thing together is ‘political appointment’.  All the key posts for accountability are political appointments.  A safe pair of hands.   admit-only-what-is-harmless

Citizens with NHS complaints should be looking at a brighter horizon.  The new Healthcare Safety Investigation Branch (HSIB) will soon be investigating serious medical incidents in forensic detail to discover what went wrong and how to put it right.  Equally, within the next parliament, legislation will be drawn up for a new Public Service Ombudsman (PSO) with a vision of ‘better serving the public’.   Is this a case of the establishment putting its house in order following the scandals of Mid Staffordshire, Morecambe Bay and now Southern Health?  Or is it an opportunity to step away from the stench of scandal with the creation of shiny new bodies, untarnished by cover-up? To determine whether these bodies will be any more effective than the last we need to look at the small print.

The HSIB directive states:  HSIB_directions

3.(1) The Investigation Branch must comprise— (a) a Chief Investigator, to be appointed by the Authority subject to the approval of the Secretary of State and who may only be dismissed with the approval of the Secretary of State;

10 (3) The Authority must ensure that each annual report is published after it has been provided to the Secretary of State

The Chief Investigator of HSIB, the one who sets the culture for the whole organisation, is a political appointment.  Not only that, but the annual reports produced by this new ‘independent’ body can only be published after they have been provided to the Secretary of State.  This may be innocent protocol, or maybe not.

Although HSIB has been designed to have the patient at the heart of the process, in line with current NHS mantra, this tiny clause providing ‘discretion’ is effectively a ‘get out of jail free’ card for the organisation should they wish to conduct their investigation without the scrutiny of the complainant.  Note the key words ‘appropriateness’ and ‘reasonable’ and think how you would argue against this clause if the matter came to court.

6 (5) In this paragraph— (a) at sub-paragraphs (2)(a)(i) and (d) and (4)(b), subject to any lawful requirement to the contrary, the Chief Investigator has discretion to decide about the appropriateness of involving members of the family of a patient, or a patient’s representative, but so far as reasonable must seek to reflect the wishes of the patient and the patient’s representative;

The new Ombudsman will be appointed by the Crown.  Effectively, the interplay between crown and state is merely sleight of hand to distance politicians from key appointments.  It has been suggested by Robert Gordon CB that accountability for the Ombudsman should be strengthened by the addition of a statutory board with a non-executive Chair to give independent oversight.  Robert_Gordon_Review

“I am clear that the PSO should be established as a corporate entity, with a statutory Board. There should be a clear division of responsibility between such a Board with a non-executive Chair, responsible for the overall strategy and effective operation of the organisation, against agreed strategies, plans and performance targets and the office holder (the Chief Ombudsman) invested with statutory powers of investigation.”   (106 Gordon review)

“I am clear also that the position of Chair should be a Crown appointment, with the approval of Parliament, and that non-executive members of such a Board should be appointed by Parliament. “  (107 Gordon review)

A politically appointed Ombudsman given oversight by a politically appointed board.  What could possibly go wrong?

The fundamental rebalance of the system will only come when it is demanded by the public.  The Hillsborough families had three things in their favour.

  • They acted as a group and they stuck together.
  • They didn’t give up.
  • Along the way, they found professionals willing to give them the help they needed. 

We must build on the justice delivered at Hillsborough.  It is time for the little guy to be heard.

 

 

Admit only what is harmless – complaint handling mantra.

On radio 4 this week it was revealed that Kim Philby, notorious traitor,  advised Soviet spies;

If confronted, never, ever confess.  “So my advice to you is to tell all your agents that they are never to confess.  If they are confronted with a photograph of themselves with a Soviet contact or a German contact – it’s a fake.  If they confront you with a report in your own handwriting – it’s a forgery.  Just deny everything.  Only admit what is harmless.  Admit anything you safely can, but deny that essential link with any foreign intelligence service, and you’re alright.”  The Philby Tape Radio 4

I guess that’s what you learn with an Oxbridge education.  In my humble comprehensive school we were taught to always tell the truth, to treat others as you wish to be treated and to trust in authority.  Consequently, when I complained to those in authority I expected them to deal with the evidence of wrong doing with robust integrity.  More fool me.

When public bodies mess up, the backlash should be felt in parliament where the poor decisions, lack of funding or ambiguous regulations were decided in the first place.  Rather than take the flak directly, parliament elects ‘arms length bodies’ to act independently as ‘regulators’ and ‘watchdogs’.  Bodies such as the Parliamentary and Health Service Ombudsman.  They are supposedly independent of politicians, but it is politicians who appoint them (under the guise of the Crown).

Philby was asked by the Soviet spies how he managed to get away with his treachery for so long.  His answer is quite revealing.

“There were many people in SIS who were involved in my recruitment into SIS and my promotion in SIS. Who had worked with me in SIS and given me a lot of information in SIS.  Those people would be very, very anxious personally to see me made innocent, including the Chief of the whole organisation who made me Head of his counter espionage department.”  The Philby Tape Radio 4

So politicians appoint a ‘safe pair of hands’, one of their own who knows that the primary objective is ‘never confess’ and at all costs they must protect those above.  In return they are given the protection of the state and if the seat becomes a little too hot then the revolving door of appointments allows the pressure to be released and normal service to be resumed.

On 29th March,  the Ombudsman, Dame Julie Mellor,  released a blog post reassuring all comers that they could be ‘confident in our service’  confident-in-our-service  Spinning a tale of ‘external reviewers’ she gives the impression that all decisions are thoroughly checked by individuals independent of the service for their accuracy and sound decision making.

We have external reviewers to assess whether our decisions are sound and are the only ombudsman service to use this external mechanism.

Turns out that in 2014/15 there were only 4 external reviewers who handled just 13% of complaints about decisions and all complaints about PHSO staff were handled internally.  FOI – internal_and_external_case_reviewers  Smoke and mirrors.

There is also news here of the new Service Charter, a set of promises to reassure the public that cases are handled with robust consistency.

…the Charter is built on the principles of fair and transparent decision-making and the need to treat customers with courtesy and respect.

The only problem here is that there is no mechanism within the Charter to hold the Ombudsman to account if the delivery falls somewhat short of the promise, which it will under the present regime.

This FOI request confirms that in the business year 2015/16 PHSO  received 1,969 requests for a review from dissatisfied complainants.  That’s 38 requests a week and this figure excludes complaints made about PHSO service delivery.  FOI – number_of_current_cases review  Given that in 2014/15 PHSO reported on 4,159 cases – 1,969 review requests would give a dissatisfaction rate of 47%.  So what happened to all that external quality assurance?

Dame Julie’s glowing summary of robust case handling was released just a few days after the staff at PHSO took a vote of no confidence in senior management Times article – vote of no confidence and two days before the Deputy Ombudman, Mick Martin resigned due to being found complicit in a cover up.  Independent article – Mick Martin resigns.

Deny everything – never confess.

The truth is that only those who have no knowledge of the Ombudsman would have cause to be ‘confident’ in their service.  NHS staff, the Patients Association, complainants, the Health Select Committee and the Public Administration and Constitutional Affairs committee have all expressed the most severe doubts.   The Ombudsman herself should have resigned some time ago, but those who have to oust her are the very same as those who selected her.  They suffer the same dilemma as Philby’s boss.  Better to hang on and save face than do the right thing by the public.

So it is with great concern to see that the Chief Investigator role for the new ‘independent’ Healthcare Safety Investigation Branch  (HSIB) is to be appointed according to the approval of the Secretary of State for Health.

a Chief Investigator, to be appointed by the Authority subject to the approval of the Secretary of State and who may only be dismissed with the approval of the Secretary of State;  HSIB_directions

Another ‘safe pair of hands’ who will no doubt be schooled in the ‘never confess’ philosophy and so the game goes on….