Corruption can take many forms and in relation to the Ombudsman (PHSO) the corruption referred to is ‘systemic corruption of purpose’. A generic definition of an Ombudsman as supplied by Wiki: An ombudsman, ombudsperson, ombud, or public advocate is an official who is charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights. Yet here in the UK our Ombudsman does the very opposite and represents the interests of the state against the public. This article will provide evidence that from the very inception and throughout, various amendments the UK Ombudsman is corrupt by design.
Systemic corruption (or endemic corruption) is corruption which is primarily due to the weaknesses of an organization or process. It can be contrasted with individual officials or agents who act corruptly within the system.
Birth of the modern Ombudsman:
Sweden is the birthplace of the modern Ombudsman initiating their Parliamentary Ombudsman in 1809 “to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch.” No doubt many citizens needed such safeguarding in the UK at that time but it took the resignation of a Cabinet Minister in the Crichel Down Affair of 1954 to persuade the British Government to adopt the Ombudsman model. This scandal culminated in the first resignation of a Minister since 1917 and was marked by a very public scrutiny of a Minister carrying out his discretionary duties.
“In the history of modern parliament, the Crichel Down affair takes on momentous significance, and has been described as a ‘political bombshell’. The public inquiry into the Crichel Down events revealed a catalogue of ineptitude and maladministration and resulted directly in the resignation of the Secretary of State for Agriculture (Sir Thomas Dugdale), then a senior cabinet position, and was the first case of Ministerial resignation since 1917. Whilst the underlying case was, in the scale of things, trivial, involving the transfer of some seven hundred acres of mediocre agricultural land in Dorset, the ramifications for subsequent government procedure have been enormous, and it is regarded as one of the key events leading to the creation of the post of Ombudsman. Crichel Down was probably the first instance of close and very public scrutiny being directed at a Minister of the Crown in the execution of his duties.” Crichel Down affair
The motivation for the creation of a UK Parliamentary Ombudsman sprang from a desire to protect Ministers and not a desire to protect the public.
The fundamental flaws of the 1967 Parliamentary Commissioner Bill:
- A failure to include discretionary decisions made by Ministers or government departments for scrutiny by the Ombudsman or by other means.
- A failure to define ‘maladministration’ leaving it to the Ombudsman’s discretion on a case by case basis.
- A failure to provide direct access to the public forcing them to appeal through their MP who can decline their request.
- A failure to give the Ombudsman powers of coercion over public bodies.
- A failure to make the Ombudsman accountable except by judicial review, beyond the means of most citizens but within the means of public bodies with funded legal teams.
The Whyatt Report, The Citizen and the Administration: The redress of Grievances.’ (1961) written after the Crichel Down Affair, Whyatt quite rightly determined that much injustice was delivered to the citizen due to the inappropriate use of administrative discretion and that independent tribunal was necessary for public redress. Failure to act in a timely manner or failure to take the most appropriate action is often described in public inquiry reports as ‘missed opportunities’. These actions undoubtedly led to harm but often fail to be judged as maladministration. When policies and procedures are only guidelines, proving maladministration is extremely difficult. There is rarely a smoking gun, more often a trail of error and ineptitude. Providing the opportunity for citizens to seek redress for poor administrative decisions through independent tribunal was always more likely to provide redress than the cumbersome investigation process, yet this key aspect of the Whyatt report was never implemented.
The debate in the Lords in 1967 identified the difficulties with providing redress when there was no clarity over what constituted ‘maladministration’ and therefore within the remit of the Ombudsman and what would be determined as ‘discretionary decision making’ and consequently beyond scrutiny.
“But, my Lords, let us look for a moment at those Departments listed in Schedule 2 which do have a more direct and frequent impact on the lives of the general public. To what extent does the Bill provide a means of redress of grievance by the general public? It seems to me that it would depend very much on how we define and interpret the word “maladministration”. I think that the noble and learned Lord conceded that this was a point of difficulty. Certainly this was a point which gave rise to long debate in another place without, it seemed to me, anyone being very much wiser at the end of it. Speaking for myself, I should be immensely grateful if we could be given, first, a simple example of a grievance likely to be submitted by an individual for investigation by the Parliamentary Commissioner; secondly, an explanation as to in what respect the action complained of might be due to maladministration and, thirdly, even if it was due to maladministration, how it could be determined that this was not due to the exercise of a discretion vested in the department or authority”. I have taken those words, of course, from Clause 5(4) a subsection which, as the noble and learned Lord said, was inserted by the Government at a late stage in the passage of the Bill through another place, and which seems to me to give the Bureaucracy a loophole as large as the Round Tower of Windsor. If it is not the case, I, for one, should be most grateful to have it explained to me.”
Equally, Quintin Hogg leading for the Conservatives on the Ombudsman legislation of 1967 referred to it as a
“swiz”: “We on this side always knew that the whole thing was a swiz, but that was not spelt into the Bill. It did not
write down in so many words in a schedule, “this is a swiz”….The bill was always drafted to be a swiz, and now it is
spelt into the bill.”
The government paid no attention to the debate in the Lords and in fact set up the office of the Parliamentary Commissioner before the debate took place. Maladministration has never been defined and can be anything the Ombudsman considers it to be, offering no consistency or predictability. Discretionary decisions are still beyond the remit of the Ombudsman and it is for the Ombudsman to decide which evidence falls under such heading allowing the Ombudsman to ‘cherrypick’ the evidence. The MP filter has not been removed giving Parliament continued control over access to the Ombudsman for Parliamentary complaints.
There has been a failure of parliament over 50 years to reform the Ombudsman which was originally considered to be something of an ‘experiment’.
Despite much discussion on the subject successive governments have failed to reform the Ombudsman and tackle the fundamental flaws in legislation which prevent citizens from achieving redress. A sad history of words without deeds on Ombudsman reform can be found here
Lord Lester, in one such debate (January 2000) put forward the notion that, “Of course it is convenient for Ministers to have a rusty machine that takes a long time and does not deal very effectively with citizens’ complaints.” hansard
Despite much debate on the inability of the Ombudsman to serve the public those in power have consistently failed to reform this body knowing that the inefficiency of the system serves to protect them.
Recent draft proposals for reform serve to further disable the Ombudsman from upholding complaints.
In 2017 the Cabinet Office finally released a draft proposal for reform of the Ombudsman. A detailed assessment of this proposal can be read here
It is clear from this proposal that parliament has no intention of removing any of the barriers to justice and in fact, clause 8 effectively nullifies the Ombudsman’s investigative process by negating any requirement on public bodies to act on the findings of an Ombudsman’s report.
- (8) designated authority must have regard to any recommendations contained in a statement under subsection (1)(c) in respect of the authority (but is not required by virtue of anything in this Act to give effect to any such recommendations). (p16)
Although the Cabinet Office drew on a report entitled ‘Better to serve the Public’ the proposal ensured that the public would continue to be stymied by allowing the continuation of the following flaws in the legislation.
- The Ombudsman must determine harm caused by maladministration when there is no definition of either term and the Ombudsman has the discretionary powers to decide that the harm would have occurred in any event, leading to no uphold.
- The Ombudsman investigates in secret resulting in neither party being able to influence the outcome by challenging false evidence or assumptions.
- The Ombudsman is under no obligation to apply statutory regulations but can decide which regulations to apply on a case by case basis without challenge.
- The Ombudsman can determine which parts of a complaint to investigate and which to ‘scope out’ of the investigation without challenge from the complainant.
- The Ombudsman can continue with an investigation even when the complainant loses confidence and withdraws from the process. This can produce a flawed report which effectively prevents the complainant taking legal action.
- The Ombudsman can only investigate the complaint when the designated authority has had a ‘reasonable opportunity’ to carry out an internal investigation and respond. The ‘reasonable opportunity’ is not time-bounded and can continue for years wearing down the ability of the complainant to pursue the case. It gives the authority under investigation every opportunity to review the evidence and gather legal advice before the ‘independent’ Ombudsman investigation takes place. Evidence can and has been removed, destroyed or altered.
“In no other area is one party allowed to have complete control over evidence that might prove the complainant’s allegation while the other party has to beg for access to information.” control of the evidence – Telegraph article 2013.
- There is no requirement of the Ombudsman to hold evidence for longer than 12 months. Evidence is then destroyed making it impossible to detect repeated patterns of offence.
- All complaints about the Ombudsman are handled internally by the Ombudsman themselves. No external scrutiny.
- The governance structure allows for political appointments to the board such as Sir Alex Allan who is simultaneously an advisor to Ministers creating a conflict of interests for the ‘independent’ Ombudsman just-how-independent-from-government-is-phso
- There is ‘free-flow’ of personnel from government departments into management positions at the Ombudsman’s office. Amanda Campbell moved from the Home Office to become CEO in 2016 and in 2017 Rob Behrens moved from OIA (technically a charity which monitors complaints about higher education) to become the new Ombudsman.
- The Ombudsman can decide the level of transparency resulting in an end to external reviews.
- The board has no powers of control over the operation of the Ombudsman.
- PACAC is unable to examine individual complaints on behalf of parliament resulting in no oversight of the investigation process
If you want to see the PHSO process at work then read this evidence from 2010 which sets out exactly how they go about it. Written Evidence to HSC 2010
Returning to our definition it can be seen that the Ombudsman has conflicting incentives as it is funded by parliament, with key appointments through parliamentary bodies and meets regularly with government departments such as the Cabinet Office and Department of Health. It also has no powers of coercion over the public body ‘stakeholders’ so must negotiate with them for compliance. ombudsman-to-public-bodies-please-do-as-i-say The Ombudsman has significant discretionary powers which make legal challenge virtually impossible for members of the public. The Ombudsman is the only body who can investigate parliamentary and health complaints giving it monopolistic powers. There is a significant lack of transparency with secret investigations, no external review of the investigation processes or outcomes by PACAC or any other body. There is a culture of impunity as it is impossible for a member of the public to hold the Ombudsman to account either by direct complaint, appeal to parliament or appeal to the criminal justice system. The Ombudsman meets virtually all of the factors for systemic corruption.
This systemic corruption of purpose is a national disgrace and should cause a public outcry but the situation is unlikely to alter while those in power are protected and many others exist to fill the void and by default benefit from the failure of the Ombudsman and the public complaint system as a whole to deliver justice.