This article was downloaded by: [Cornell University Library]On: 18 November 2014, At: 15:05Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Journal of Social Welfare and FamilyLawPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/rjsf20

The Ombudsmen of Northern Ireland,Scotland and WalesBy Richard KirkhamPublished online: 15 Aug 2006.

To cite this article: By Richard Kirkham (2005) The Ombudsmen of Northern Ireland, Scotland andWales, Journal of Social Welfare and Family Law, 27:1, 79-90, DOI: 10.1080/09649060500085768

To link to this article: http://dx.doi.org/10.1080/09649060500085768

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoeveror howsoever caused arising directly or indirectly in connection with, in relation to orarising out of the use of the Content.

This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

OMBUDSMAN SECTION

The Ombudsmen of Northern Ireland,Scotland and WalesBy Richard Kirkham

Introduction

In the past few editions, this section of the journal has mainly concentrated on the

three leading public sector ombudsmen in the UK: the Parliamentary Ombudsman,

the Health Services Ombudsman and the Local Government Ombudsmen, with the

emphasis being on the English branches of the latter two posts. In this edition, an

effort will be made to redress the balance by providing an overview of the

ombudsman sector in Northern Ireland, Scotland and Wales. However, the purpose

of this article is not only to describe the various ombudsmen available in the UK

outside of England. An additional aim is to discuss the very different approach

towards organising the ombudsmen sector that has been taken in those parts of the

UK with devolved governance. In particular, whereas in England there remain a

number of different specialised public sector ombudsmen, under devolution the

predominant trend has been towards integrating the work of these separate

ombudsmen within the one post. This arrangement has been considered before in

this journal as a possibility for public sector ombudsmen generally in the UK but, as

yet, has not been put into effect by the UK government. However, if reorganisation in

the devolved parts of the UK proves to be a success, then the pressure will be further

increased on the government to find Parliamentary time to reform the system in

England as well.

The Move Towards a Unified Ombudsman System

As with other areas of public sector activity, any description of the ombudsmen

sector has to deal with Northern Ireland, Scotland and Wales separately from the

remainder of the UK. The principal reason for this is the implicit constitutional

requirement to administer governance in these parts of the country in a manner

which reflects the particular needs, wishes and aspirations of the people that live

there. The debates surrounding the devolution agenda of the late 1990s are well

known. In essence, the strength of political conviction in Northern Ireland, Scotland

and Wales, in addition to their geographical and social distinctiveness, has

Journal of Social Welfare and Family LawVol. 27, No. 1, March 2005, pp. 79–90

ISSN 0964-9069 print/1469-9621 online # 2005 Taylor & Francis Group LtdDOI: 10.1080/09649060500085768

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

necessitated the development of separate governing institutions. The extent to which

separate arrangements are needed and the form that these take vary, but the basic

need for specific and separate governance remains. Unsurprisingly, these separate

arrangements have led to a corresponding institutional distinctiveness in the

ombudsman sector.

Area-specific ombudsmen were established in Northern Ireland, Scotland and

Wales long before devolution, but devolution has increased their profile and

workload. Of course, the Parliamentary Ombudsman retains an important role

throughout the UK and citizens in Northern Ireland, Scotland and Wales have exactly

the same rights of access to the office as their neighbours in England. However,

because so many of the political and administrative powers of central government

have been transferred to the devolved bodies, in practice, the likelihood of the

Northern Irish, the Scots and the Welsh taking their complaints to the Parliamentary

Ombudsman has diminished.

Devolution has also created the opportunity for a radical rethink of the

ombudsman structure. Indeed, this is one of the many benefits of devolution.

Across all branches of government, freed from the prevailing orthodoxy of Whitehall

and more in tune with local needs, the devolved bodies are in a strong position to re-

evaluate the efficacy of existing solutions and to experiment with new approaches to

governance which are potentially more appropriate. The manner in which the

devolved bodies have tackled the ombudsman sector provides an example of just such

a tailored approach to governance. In this regard, it is telling that all the devolved

bodies would appear to have chosen to pursue the same approach: to integrate the

work of the different local ombudsmen under the ambit of a single body.

Not all the credit for this reform can be taken by the new devolved institutions,

since some of the groundwork for this development was undertaken by the Cabinet

Office in its review of the ombudsman sector a few years ago (Cabinet Office, 2000).

Nevertheless, since the devolved bodies have accepted control, the idea of a unified

ombudsman office has been taken on with gusto. The need for this reform derives

from the fact that, in classic British constitutional fashion, public sector ombudsmen

in the UK have evolved in a piecemeal manner, with each new ombudsman being

introduced with little consideration for the overall structure. Thus, there has never

been a concerted or principled effort on the part of government to coordinate the

work of the ombudsman sector within one coherent framework.

The resultant mix is based upon the three main public sector ombudsmen but, in

order to spread the coverage of the ombudsman sector to virtually all walks of public

life, a number of other function-specific ombudsmen have also been created, with the

devolved areas ordinarily being given corresponding ombudsmen to those created in

England. What we are left with is a diverse network of ombudsmen across the UK,

with little evidence of a coherent thread with which to link their work. Undoubtedly,

the different ombudsmen themselves put in much work to maintain a unified

approach across the sector and, indeed, this is a primary objective of the current

Parliamentary Ombudsman. Even so, despite this effort, without a formal institution

to oversee, coordinate or scrutinise the work of the ombudsman sector as a whole,

80 Ombudsman section

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

there remain concerns that the current structure is neither the most institutionally

efficient solution nor the easiest for the complainant to access or understand.

Furthermore, this overall design does not relate to the modern approach to

governance; within which, a leading mantra is joined-up government and the pursuit

of partnership solutions. Today, the likelihood is that, where things go wrong in the

provision of a service, it will no longer necessarily be the case that the fault concerned

can easily be put down to the activities of one branch of government. This possibility

could leave a complainant having to pursue a complaint that could potentially fall

within the remit of more than one specialised ombudsman, an unnecessarily

confusing situation.

In Whitehall and Westminster, these arguments have been formally accepted but

are unlikely to be acted upon in the immediate future. By contrast, in each of the

devolved areas significant progress has been made in the direction of rationalising the

ombudsman sector in favour of a more user-friendly framework.

Northern Ireland

Northern Ireland experienced devolution long before Scotland and Wales and, as a

result, was the first area to come into possession of its own ombudsmen. Two

ombudsmen were established in 1969: the Assembly Ombudsman for Northern

Ireland,1 which today has broad responsibility for dealing with complaints about the

exercise of governance by the Northern Ireland Assembly and its executive; and the

Northern Ireland Commissioner for Complaints, which deals with complaints about

local authorities and the health service in Northern Ireland.2 Although the

nomenclature of these two ombudsmen is different to that in the rest of the UK,

in many respects their overall jurisdiction is very similar.3 Importantly, the

Commissioner for Complaints (Amendment) (Northern Ireland) Order 1997

brought Northern Ireland into line with the rest of the UK by granting the

Commissioner the power to consider complaints about a broad range of health care

professionals. Furthermore, as with general trend in the UK, with the exception of

assessing the exercise of the clinical judgment of healthcare professionals, the role of

the ombudsmen in Northern Ireland is to look for maladministration that has led to

injustice or hardship to a complainant.

However, and perhaps unsurprisingly given the very different nature of the

political and social environment within Northern Ireland to that in the rest of the

UK, there are some very interesting features to the Northern Irish system, worthy of

note as they are unique in the British ombudsmen system. For instance, one aspect of

the work of both of the ombudsmen in Northern Ireland that is different to others in

the UK is their power to investigate complaints about personnel matters. In Northern

Ireland, employment discrimination has been a very big issue for many years and in

response to this problem there has been established a number of different bodies

whose purpose is to provide redress in the employment field. Thus, as well as the

ombudsmen, an individual who feels discriminated against on an employment issue

Journal of Social Welfare and Family Law 81

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

can complain to the Equality Commission and/or the Office of the Industrial

Tribunal and Fair Employment Tribunal. Given the importance of the issue, it is

extremely encouraging that neither of the ombudsmen in Northern Ireland received a

complaint about religious discrimination during 2003/04 (Northern Ireland

Ombudsman, 2004, pp. 18 & 72). Indeed, this is an issue that rarely crops up now

in the ombudsman’s investigations, a factor which has led some to conclude that the

time may have come to remove this particular responsibility from their remit

(Seneviratne, 2002a, p. 245). However, there may be a reluctance to take such a step

as personnel matters more generally continue to represent a significant proportion of

the work of the ombudsmen in Northern Ireland (Northern Ireland Ombudsman,

2004).

Another difference in the Northern Irish system, one possibly created for similar

reasons, is the facility for the Commissioner for Complaints to investigate contractual

and commercial matters. Ordinarily this is one area that is excluded from the

jurisdiction of the ombudsman, but in Northern Ireland it is an important part of the

Commissioner’s role – albeit one that holders of the office have chosen to give a

narrow interpretation (Seneviratne, 2002a, p. 245).

Perhaps the most radical feature of the Northern Irish system is the explicit role of

the courts in the resolution of ombudsman disputes. In all UK ombudsman systems,

both parties have the right to challenge an aspect of the ombudsman’s work by way of

judicial review. However, unlike anywhere else in the UK, in Northern Ireland the

role of the court has been enhanced, as there is a facility for the county court to

uphold a report of the Commissioner for Complaints and to order a suitable remedy

(Commissioner for Complaints Act (Northern Ireland) 1969, s.7). Such an event

would most likely occur following the application of a complainant where the

public authority concerned had refused to accept the recommendations of the

Commissioner. The power to turn to the courts is seen by some as the best answer to

the problem of enforcement that all ombudsmen have to tackle. Over the years this

problem has been most evident in the local government sector, where there has been

a long tradition across the UK of stubborn local authorities refusing to provide

redress as recommended by the ombudsman. Fortunately, if recent ombudsman

reports are anything to go by, the occasions when the public authority and the

ombudsman fail to agree on the final resolution of the investigation are relatively

small. Nevertheless, there is a lot to be said for bolstering the system through a reserve

option to bring in the courts where the ombudsman fails, through consultation, to

secure effective redress. In contemporary Northern Ireland the power of the courts

is rarely called upon, but it could be argued that this demonstrates the effective-

ness of the power. In other words, because public authorities are aware that they

may be taken to court, they are more willing to accept the recommendations of

the ombudsman than they might otherwise be. Against this argument, the more

prevalent viewpoint in the ombudsman sector is that the overall ethos should be to

create a working relationship with public authorities based upon trust and that an

enforcement procedure which allows for legal dispute could have a detrimental effect

on that relationship.

82 Ombudsman section

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

There is no evidence that the power of the courts to order remedies following a

report of the Commissioner for Complaints has caused any undue problems as yet,

but the existence of this power has created a strange anomaly in the powers of the two

ombudsmen in Northern Ireland. In any event, whether this particular power is

retained by the Commissioner for Complaints in the medium to long term is no

longer certain, as the functions and powers of the ombudsmen in Northern Ireland

are currently being considered afresh by Northern Ireland’s Executive. In 2003, the

Office of the First and Deputy First Ministers commissioned a wide-ranging review of

the ombudsman sector in Northern Ireland and a public consultation process is due

to follow once the conclusions of that review have been fully digested (Doherty,

2004). It is more than likely that one of the main outcomes of this process will be a

new ombudsman act for Northern Ireland. Included in that act will almost certainly

be legislative recognition of the long-existing practice in Northern Ireland of

employing the same person to perform the functions of both of Northern Ireland’s

major public sector ombudsmen. This practice has meant that the ombudsman in

Northern Ireland has for a long time adopted the popular title of ‘Northern Ireland

Ombudsman’ to describe the two posts. One of the key benefits of formally

integrating the two posts would be that such a move would iron-out the legislative

differences between them and, in so doing, remove any residuary confusion that

might be caused by their dual existence. In this respect, one option that would appear

to be under consideration would be to harmonise the method of enforcement in the

Northern Irish system, as discussed above. If this were to happen, then the likelihood

is that the final sanction will not be a court order but, instead, an ombudsman report

to the Northern Ireland Assembly (Doherty, 2004).

The review of the Northern Ireland ombudsman sector has also raised two

other significant issues, one controversial and the other hopefully less so. The

uncontroversial reform, that surely must be included, relates to the manner in which

complainants have to submit a complaint. At present, because the Assembly

Ombudsman for Northern Ireland is the second-oldest public sector ombudsman in

the UK, inclusive within its founding legislation is the requirement that complaints to

that ombudsman must be sponsored by a Member of the Legislative Assembly. This

was the favoured approach when public sector ombudsmen were first introduced,

since it respected the role of politicians as constituency representatives. Most

ombudsmen observers today take a dim view of this requirement and it is to be hoped

that this anachronism, which remains in the statute book for both the Assembly

Ombudsman for Northern Ireland and the UK Parliamentary Ombudsman, will soon

be removed.

The more controversial reform proposal that is apparently being considered would

allow for the Northern Ireland Ombudsman to initiate an investigation of his own

volition, even if he has not received a specific complaint. Such a power has been

advocated for years by some academics, on the basis that it would be in the public

interest for an ombudsman to enter into a more general investigation if he becomes

aware of possible systemic defects in the administration of a public service. Indeed, it

is entirely plausible to envisage a situation in which individuals are unaware of the

Journal of Social Welfare and Family Law 83

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

inadequate service that they are receiving and are therefore unlikely to make a

complaint. In such circumstances, if the ombudsman is aware of the possibility of

maladministration there would appear to be little justice in denying the ombudsman

the opportunity to investigate. The contrary argument is that granting ombudsmen

wide powers to initiate investigations could distract them from their primary

function of providing redress and would trespass upon existing audit schemes. A

further danger is that, if they possessed such powers, ombudsmen would be more

exposed to media or political pressure aimed at encouraging them to intervene in the

administration of government (Doherty, 2004). It seems unlikely that the Northern

Ireland Assembly will take such a bold step, since it would represent a significant

move away from the established ombudsman orthodoxy in the UK; although,

interestingly, one of the very few ombudsmen in the UK to possess such powers at

present is the Northern Ireland Police Ombudsman (Police (Northern Ireland) Act

1998, s.55(6)).

Scotland

The present reorganisation of the ombudsman sector in Scotland is well ahead of that

in Northern Ireland, with an integrated ombudsman having already been created.

As with Northern Ireland, when the Scottish Parliament was first sworn in it

inherited an ombudsman system based on specialised ombudsmen services.

Following devolution, this meant that there were three main public sector

ombudsman schemes to manage: the Commissioner for Local Administration

in Scotland, the Health Service Ombudsman for Scotland and the Scottish

Parliamentary Commissioner. Again, as with Northern Ireland, in terms of overall

coverage this meant that the opportunities to access an ombudsman were very similar

in Scotland to those in other parts of the UK. However, here too arguments were

soon being put forward that a more coherent way to organise the ombudsman sector

would be to integrate the work of the different ombudsmen within the one office (see

Seneviratne, 2002b).

Following extensive consultation, the outcome was the Scottish Public Services

Ombudsman Act 2002 and the creation of a new integrated ombudsman post in

Scotland. The detail of the post will not be covered here, since it was extensively

discussed in an earlier edition of this journal (ibid). However, three key features of

the Scottish arrangement will be noted. The first relates to the debate already

mentioned about when and where the ombudsman can initiate an investigation. In

introducing the Scottish Public Services Ombudsman Act 2002, the Scottish

Parliament was faced with an unprecedented opportunity to rethink this issue but

decided to retain the standard rule that a complaint must have been made first. It did,

though, add a degree of flexibility to the system in section 9 of the Act, by providing

for a complaint to be made by a public authority4 on behalf of an aggrieved

individual. This would seem to entail, therefore, that concerned public authorities

could invite the Scottish Public Services Ombudsman into their authority to conduct

an investigation, even where there has been no complaint made by an individual

84 Ombudsman section

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

member of the public. Whether or not this proves to be a useful provision remains to

be seen. Although this does not give the Scottish Public Services Ombudsman a

general power to initiate investigations, it is a step forward.

Another feature of the Scottish system worth picking up on here is that the work

of the integrated ombudsmen need not be limited to the traditional big three

ombudsmen areas: central government, local government and the health service. The

Scottish approach has involved extending the remit of the Scottish Public Services

Ombudsman to areas of governance that are dealt with separately from the main

public sector ombudsmen in England. This has meant, for instance, that the Housing

Association Ombudsman and certain aspects of the work of the Mental Health

Commission have been brought under the responsibility of the Scottish Public

Services Ombudsman.

Finally, in order to tackle the potential for public authorities failing to provide

adequate remedies following a report of the Scottish Public Services Ombudsman, the

Ombudsman is entitled to submit a special report to the Scottish Parliament

regardless of which body the complaint was made against (Scottish Public Services

Ombudsman Act 2002, s.16). Although this method of enforcement is not as strong

as a court order, with the Parliamentary Ombudsman and the Health Services

Ombudsman the existence of this power has, in the past, proved very successful in

pressurising unwilling public authorities to accept the recommendations of the

ombudsman. There seems no reason to suppose that this will not prove to be the case

in Scotland as well.

Wales

As with Scotland and Northern Ireland, in Wales, ever since the devolution of some

powers to the National Assembly, there has been a move towards integrating the

ombudsmen system under the authority of one office. Throughout what has been a

lengthy consultation process on this issue there has been general agreement as to the

merits of such a move, both within Wales and in Westminster. Initial support for the

idea came from the National Assembly Advisory Group in 1998 and was eventually

acted upon in March 2001 by the then Secretary of State for Wales and the

Assembly’s First Minister when they launched a review of public sector ombudsmen

services in Wales. This resulted in two consultation papers issued jointly by the Wales

Office and the Welsh Assembly Government, the first in December 2002,

Ombudsmen’s Services In Wales: Time for Change?, and the second in October

2003, A Public Sector Ombudsmen for Wales: Powers and Jurisdiction.

Compared to Scotland, progress towards converting the integrated model into

reality has been slower, something largely accounted for by the relative lack of

legislative powers possessed by the National Assembly for Wales as compared to the

institutions in Scotland and Northern Ireland. As is well known, the National

Assembly only has the power to pass secondary legislation in those areas where such

power has been specifically conferred on it in an Act of Parliament. Accordingly,

because all of the Acts establishing the current public sector ombudsmen in Wales

Journal of Social Welfare and Family Law 85

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

were passed in Westminster, any reform of the Welsh system also has to be passed in

Westminster. In turn, this has meant that the National Assembly has had to wait

patiently until Parliamentary time could be found to introduce a new Act to provide

the necessary legal framework for the reconstruction of the ombudsman system in

Wales. That Parliamentary time has now been found, with the recent introduction of

the Public Services Ombudsman (Wales) Bill to the House of Lords.5

The successful passage of this Bill is partly dependent upon the timing of the

forthcoming general election, but, if passed, it will establish the office of the Public

Services Ombudsman for Wales6 (PSOW) and will, at the same time, have the effect

of abolishing a whole series of existing offices. Thus, there will no longer be a

Welsh Administration Ombudsman, a Health Service Commissioner for Wales, a

Commission for Local Administration in Wales, an office of the Local Commissioner

for Wales, or a Social Housing Ombudsman for Wales. All of those matters that are

currently investigated by the aforementioned ombudsmen/commissioners in Wales

will become the sole responsibility of the one ombudsman. Together with the health

and local government sectors, this will mean that just about all government that is

exercised on a Welsh basis and comes under the direct or indirect oversight of the

National Assembly will come within the jurisdiction of the PSOW.

As well as creating an integrated ombudsman for Wales, the Bill is particularly

interesting since it represents the first opportunity that Parliament has had for some

years to take a fresh look at the legislative framework within which the ombudsmen

operate. There have been amendments to ombudsmen legislation before, but

such amendments have always been tagged on to other legislation in a largely

opportunistic fashion. The Bill itself is not overly radical and, as with its Scottish

equivalent, retains most of the main features of existing ombudsman legislation. Even

so, in some respects it does a good job of reflecting changing practice within the

ombudsman sector.

Like the Scottish Act, the Welsh version sticks rigidly to the formula of using

‘maladministration’ as the key issue that the PSOW will be looking at. This means

that no attempt has been made to extend the authority of the PSOW into any area

that may involve a consideration of the merits of an authority’s decision (c.11). The

one exception to this rule that now seems to have been accepted across all the UK is

in the assessment of the clinical judgment of healthcare professionals. The PSOW will

also possess the duty to investigate an alleged breach of a local authority’s code of

conduct by an elected member or a local government employee. That the Bill does

not seek to move away from the ‘maladministration’ formula is hardly surprising,

since such a move could potentially have far reaching consequences for all UK

ombudsmen and would require a more wide-ranging review than that which was

undertaken before this Bill. However, it is perhaps slightly disappointing that the

opportunity has not been taken to clarify the legal definition of maladministration,

save for confirming that the failure of a public authority to perform a service or a

failure in a service that is provided by a public authority, are issues that the PSOW

can lawfully investigate (c.7(1)).7

86 Ombudsman section

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

In other respects the Bill has moved away to some degree from its predecessors.

Fortunately, no one seriously considered including any requirement to submit a

complaint through a political representative. Also dropped is the old-fashioned

reference to the post of ‘commissioner’. This is clearly right, as for many years now

the title ‘ombudsman’ has become both the favoured term of the practitioners

themselves and a widely understood institution amongst the public (Select

Committee on the Parliamentary Commissioner for Administration, 1993–94).

Interestingly, another step away from the original ombudsman Acts is the move

within the Bill to appoint the PSOW for a fixed term, rather than, as previously has

been the case, offer security of tenure during good behaviour and health and whilst

the postholder has not yet reached the age of 65. This is a more important

development than might at first sight appear and reflects similar debates in relation to

Crown Servants such as the Parliamentary Commissioner for Standards. The

argument for security of tenure, as opposed to a fixed-term contact, is that it offers

the ombudsman enhanced confidence that his independence will be respected by the

public authorities that he is investigating. This must surely be a key attribute of any

ombudsman.8 By contrast, fixed-term appointments weaken the position of the

ombudsman, particularly where the bodies that he is investigating might have a

strong say on his potential reappointment. Against these arguments is the desire to

reserve some power to call the ombudsman to account should he fail to perform to

expected standards. There is also the suggestion that changing ombudsman on a

regular basis facilitates the injection of new ideas into the organisation (Seneviratne,

2003, p. 660). The balance between these competing benefits that has been drawn in

the Bill is to establish the period of tenure as ten years. In practice, few postholders

would seem likely to want to occupy the position for a period exceeding that and,

hence, the move away from full security of tenure is probably not that serious.

However, as of writing, this issue is to be debated in Parliament, with some members

pushing for the period to be reduced to five years (as is currently the case in

Scotland). In the opinion of this author, that would be a mistake.

On other issues, the Bill clears up some aspects of ombudsman practice that are

currently uncertain in law. For instance, in clause 3 specific reference is made to the

powers of the PSOW to pursue a complaint ‘in addition to or instead of conducting

an investigation’ (c.3(2)). This power reflects the increasing practice of ombudsmen

to look for speedier and more satisfactory ways of resolving complaints. It is not

always necessary to undertake full-blown investigations with all the paperwork,

disruption and manpower that these involve and, if passed, this clause will grant the

PSOW the requisite flexibility to choose the most appropriate method of pursuing a

complaint. There will, however, be an obligation on the PSOW to give reasons in

writing where he decides not to investigate a complaint (c.12). Again, this mirrors the

best practice of most public sector ombudsmen today but, with the exception of the

Scottish Public Services Ombudsman, had not previously been provided for in

legislation.

One aspect of the Bill that will, hopefully, be clarified further is whether or not the

new scheme is going to follow the Scottish model in allowing for a more flexible

Journal of Social Welfare and Family Law 87

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

approach to making a complaint. The predominant method under Scottish

legislation still involves a written application, but there is now facility for the

Ombudsman to receive complaints over the Internet or, if she deems it appropriate,

orally (Scottish Public Services Ombudsman Act 2002, s.12(3)). This issue is left

open-ended in the Welsh Bill (e.g., Public Services Ombudsman (Wales) Bill c.2(4)).

On another point, though, the Welsh Bill is clear. Thus, although public authorities

will be able to pass on complaints to the PSOW, unlike the Scottish system, this will

only be possible where the public authority has first received a complaint itself (c.6).

Hence, any prospect of ombudsman-initiated investigations has been completely

squashed in the Welsh model.

As for the issue of enforcing the reports of the PSOW, the Bill, strangely, does not

follow the Scottish example and provide for direct reporting to the National

Assembly for all ombudsman cases. For Wales, this power will only become effective

where the complaint is against the National Assembly itself and not, it would appear,

where the complaint is against a health authority or a local government authority.

This is disappointing and will mean that in these areas the PSOW will not be able to

call upon the moral and political support of the National Assembly and will have to

rely instead upon public pressure alone to enforce his recommendations, as is the

current position with the Local Government Ombudsmen in England and Wales.

This is surely a missed opportunity. The mere fact that at present the track record of

the Welsh Ombudsmen is extremely good, in terms of seeing their recommendations

acted upon, certainly does not mean that problems will not occur in the future.

Nevertheless, there is much in the Bill to commend and one could even go as far as

to suggest that the manner in which the Bill has been introduced is a credit to the

devolution process. This is particularly so since in the future the National Assembly

will possess sufficient powers to not only oversee the work of the PSOW but will, also,

no longer have to wait for Parliamentary approval to amend its founding legislation

should it become necessary. This is the case because added legislative powers will be

devolved to the National Assembly under the Public Services Ombudsman for Wales

Act when it is eventually passed and comes into effect.9

Until that time, an interim arrangement has been introduced to facilitate the early

introduction of an integrated ombudsmen system in Wales. In essence, this has

meant that one person has been appointed to the three pre-existing ombudsman

posts in Wales – the Welsh Administration Ombudsman, the Health Service

Ombudsman for Wales and the Local Government Ombudsman for Wales. To keep

within the law, as an interim measure, the Regulatory Reform (Local Commissioner

for Wales) Order 200410 had to be passed to allow the same person to simultaneously

hold the three existing offices in Wales.11 However, the end result is that Mr Adam

Peat is now known as the Public Services Ombudsman for Wales, albeit that this

remains a non-statutory title until the new legislation comes into effect. This means

that for the citizens of Wales the complaints procedure is already relatively clear in

terms of procedure. All that remains is for the new Bill to be passed to tidy up the

arrangement and to clarify and update the legal powers that the Public Services

Ombudsman for Wales possesses.

88 Ombudsman section

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

Conclusion

It is still too early to make too many judgments as to the effectiveness of the reforms

that are currently being introduced in Northern Ireland, Scotland and Wales. Not all

the potential proposals for reform have been taken on board and it is a slight concern

that none of the devolved assemblies has deemed it necessary to back up the work of

the ombudsman with a designated select committee, as is the case with work of the

Select Committee on Public Administration in Westminster. However, what is

impressive is the energy that has gone into building the new arrangements, which has

left the overriding perception that the devolved institutions are taking, and will

continue to take, the ombudsman sector very seriously. Whether or not these

reforms, and, in particular, the trend towards integrated ombudsman posts, has any

impact on the English ombudsmen remains to be seen. Obviously, given the size of

the workload undertaken by the English ombudsmen when compared to those in

Northern Ireland, Scotland and Wales, there may be very good reasons why a

different organisational solution should be adopted in England. There also remains

the question of what to do with the Parliamentary Ombudsman. However, it would

seem probable that, sooner or later, the UK government will have to respond to the

example of the devolved institutions and further update the existing ombudsmen

system. Indeed, one of the more recent government reviews in this area has again

recommended the removal of existing ‘overlaps between the work of the ombuds-

men’ (Cabinet Office, 2004, p. 26).

Acknowledgement

I am grateful to Rhoda James for her helpful comments on an earlier draft of this

piece.

Notes

[1] Established under the Parliamentary Commissioner Act (Northern Ireland) 1969. The original

name for this office was the Northern Ireland Parliamentary Commissioner.

[2] Established by the Commissioner for Complaints (Northern Ireland) Act 1969.

[3] Unlike the remainder of the UK, there is no facility in Northern Ireland for a public sector

ombudsman to consider complaints about Housing Associations (Seneviratne, 2002a, p. 243).

[4] Under the Scottish Public Services Ombudsman Act 2002, the public authorities covered by

the Act are listed.

[5] The Bill received its second reading on 16th December 2004.

[6] Or, in Welsh, Ombwdsmon Gwasanaethau Cyhoeddus Cymru.

[7] This mirrors the powers granted to the Scottish Public Sector Ombudsman (Scottish Public

Sector Ombudsman Act 2002, s.5(3)(b)) and to the Health Service Ombudsman (National

Health Service Reorganisation Act 1973, s.34(3)).

[8] See, for instance, the British and Irish Ombudsman Association criteria for recognising an

ombudsman as a legitimate member (BIOA, 2005, rule 2).

[9] For instance, see clauses 10(2), 27(2) and 42 of the Public Services Ombudsman (Wales) Bill.

[10] Made under the Regulatory Reform Act 2001.

[11] This had been previously impossible due to the Local Government Act 1974.

Journal of Social Welfare and Family Law 89

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14

References

Cabinet Office (2000) Review of the Public Sector Ombudsmen in England, by P. Colcutt & M.Hourihan, Cabinet Office Publications, London.

Cabinet Office (2004) Better Regulation Task Force: Better Routes to Redress, Cabinet OfficePublications, London.

Doherty, B. (2004) ‘Review of the functions and powers of the Northern Ireland Ombudsman’, inThe Ombudsman, August 2004.

Northern Ireland Ombudsman (2004) Annual Report 2003–04 (HC 659), The Stationery Office,London.

Select Committee on the Parliamentary Commissioner for Administration (1993–94) The Powers,Work and Jurisdiction of the Ombudsman, First Report of the Select Committee on the PCA,HC 33-1.

Seneviratne, M. (2002a) Ombudsmen: Public Services and Administrative Justice, Butterworths,London.

Seneviratne, M. (2002b) ‘ ‘‘Joining up’’ the Scottish Ombudsmen’ (2002) Journal of Social Welfareand Family Law, vol. 24, p. 89.

Seneviratne, M. (2003) ‘Time for change for the ombudsmen in Wales’ [2003], Public Law 656.

90 Ombudsman section

Dow

nloa

ded

by [

Cor

nell

Uni

vers

ity L

ibra

ry]

at 1

5:05

18

Nov

embe

r 20

14