By David Czarnetzki

“To me, an ombudsman service should not have another ombudsman looking at what they are doing”.

Right now, you may be wondering where this quote came from.

On 16th November 2022, the result of a two-day Peer Review of the Parliamentary and Health Service Ombudsman was published. The chair of the review was Dr.Andreas Pottakis, Greek Ombudsman and President of the International Ombudsman Institute Europe. Also on the review team were:

Matanyahu Englman – State Comptroller and Ombudsman of Israel

Andrea Keeney – Chief Operating Officer of the Housing Ombudsman

Professor Robert Thomas – University of Manchester – report author.

Annex A point 9 (p33) of the review report covered opinions as to PHSO adherence to the Venice Principles.

After careful consideration, I have come to the view it is in the public interest to reproduce the text of email exchanges I had with Professor Thomas about the Ombudsman’s own adherence to the Principles.

David Czarnetzki to Professor Thomas 09:44 25th November 2022 

Dear Professor Thomas.

I have read the peer review recently published on the PHSO website and ask for your comments regarding the following.

Within Annex A (adherence to the Venice Principles), I note point 9 states:

“The Ombudsman shall not, during his or her term of office, engage in political, administrative or professional activities incompatible with his or her independence or impartiality”.

May I refer you to the third part of the evidence I submitted to the Public Administration and Constitutional Affairs Committee (PACAC) ahead of their annual scrutiny of the Ombudsman due to take place next Tuesday 29th November (2022).

In my evidence, I raise the Ombudsman taking a role as the Chair of Governors at Anglia Ruskin University (Peterborough). The evidence is supported by minutes of a PHSO Board meeting, contents of which are available on the PHSO website. I gave examples of how the independence of the Ombudsman could be perceived to be compromised by his university appointment.

I raise this with you because the peer review describes the Ombudsman as being fully consistent with the aims of point 9 and would like you to explain why the peer review considers this to be the case. At the very least the review should have amber or, dare I say, a red rating for the reasons I gave to PACAC.

Yours sincerely

David Czarnetzki

Professor Thomas to David Czarnetzki 09:20 28th November 2022

Dear David.

I think the legal position would broadly be as follows. The case-law says that the test for apparent bias is whether a fair minded and informed observer would perceive there to be a real possibility of bias. The leading case is the decision of the House of Lords in Porter v Magill (2002) 2 AC 357.  Whether or not the rule against bias has been breached is a matter to be determined on the facts of specific instances, not general circumstances or hypotheticals.

Hope this helps.

Best 

Robert

David Czarnetzki to Professor Thomas 10:12 28th November 2022

Thank you Robert.

Does this mean you feel Mr. Behrens appointment at Anglia Ruskin University is not in breach of the Venice Principles? As I have explained to the Public and Constitutional Affairs Committee, including by example, the Ombudsman could find his position compromised. Whilst such a situation is as present hypothetical, it could not be resolved by the Ombudsman recusing himself from an investigation into one of the organisations mentioned in my evidence because he is the final arbiter. I am a fair minded person and cannot see how a supposedly independent Ombudsman can take such an appointment whilst in post, whether remunerated or not. The position of Ombudsman is unique and this situation certainly is not a good look.

Can you also advise whether the Peer Review was aware that Mr. Behrens had taken the position at Anglia Ruskin University when the report was completed? I appreciate your initial response and look forward to your further reply.

Yours sincerely

David Czarnetzki

Professor Thomas to David Czarnetzki 10:43 1st December 2022

The law distinguishes between independence as a structural feature and impartiality as a person’s state of mind. I don’t think that the university appointment alone breaches independence. The Venice Principles cover things like appointment procedures and matters of structural independence. So, if the ombudsman spoke out in favour of one political party over another, then that would be a problem.

The link with the university is more like a connection which could potentially – in some circumstances, depending on their facts – affect the perception of the ombudsman’s impartiality, although there would be means of avoiding those types of problems in practice, e.g. by him having no involvement with that case and passing it to the deputy ombudsman.

Robert Thomas

David Czarnetzki to Professor Thomas 09:13 6th December 2022

Dear Professor Thomas

Thank you for your response. I must again ask whether any member of the Peer review members were aware of Mr. Behrens’s appointment as Chair of Anglia Ruskin University Board of Governors before making the conclusion at Annex A, Point 9? As you probably know, the Ombudsman is governed by the 1967 and 1993 legislation. His independence/impartiality allows him discretion as to whether a report concerning an investigation is laid before parliament or not. No one else in his organisation is permitted to make that decision and it cannot be passed to a deputy.

I think our exchanges make for an interesting article on the website PHSO The True Story. However, before composing it, I would just like you to give a straightforward answer to my question regarding the knowledge of the Peer Review members regarding the university appointment. I hope you will as failure to do so will lead people to draw their own conclusions.

Yours sincerely

David Czarnetzki

David Czarnetzki to Professor Thomas 09:32 9th January 2023

Dear Professor Thomas

I send again my email of 6th December to which I have not had the courtesy of your reply. May I again ask that you clarify whether the Peer Review group was aware of Mr. Behrens’s appointment to Anglia Ruskin University (Peterborough) before the report was compiled?

Yours sincerely

David Czarnetzki

Professor Thomas to David Czarnetzki 10:34 9th January 2023

I think you need to contact the chair of the peer review panel.

My observations

This exchange led me nowhere. It is a sad reflection of my education that I do not read, write or speak Greek and I do not feel it right or polite to make contact with the Greek Ombudsman in anything other than his national language. It also demonstrates how our elected politicians are answerable to us, yet it is suggested writing to a Greek Ombudsman, answerable to nobody in the UK, for clarification about a question relating to our own ombudsman is an appropriate way forward. 

Is it also a fact that the Greek Ombudsman lies outside of the jurisdiction of the Information Commissioner and, as such, would not legally be obliged to respond to any correspondence? The headquarters of the International Ombudsman Institute is based in Vienna, Austria.

PACAC held its latest scrutiny session of the Ombudsman on 14th November 2023. I was in the Thatcher Room at Portcullis House to witness the questioning of Mr. Behrens and his recently appointed CEO Rebecca Hilsenrath. Of particular interest was the Ombudsman’s responses to the questions of John McDonnell MP who accused him of ‘marking his own homework’. Take a few minutes to view the exchanges in the video clip below.

Peer reviews, particularly unaccountable international ones, are not the answer to the many issues surrounding the performance of PHSO. In his letter to the Secretary of State for Health dated 23rd August 2023 (here), the Ombudsman himself identifies the issue of a ‘crowded landscape’ regarding investigating complaints about the NHS. I can agree with his assessment of the issues but not his solutions. 

Finally, I can reveal the answer as to who made the quote reproduced at the beginning of this article. It was given in answer to a question by David Jones MP at the scrutiny hearing on 14th November.

Precisely Mr. Behrens. I couldn’t agree more. Your successor should scrap this Peer Review nonsense. Judge-led public inquiry needed.

Footnotes:

Professor Thomas was given the courtesy of advance notice of my intention to publish the emails forming part of this article

The full transcript and video of the PACAC hearing of 14th November 2023 can be found at these links. The hearing lasted 2 hours and 10 minutes