Researching Ombudsmen Mary Seneviratne
The growth of ombudsmen schemes in the public and private sectors in the United Kingdom has been a feature of modern life. First appearing in Sweden 200 years ago, ombudsmen were unheard of outside Scandinavia until 50 years ago, since when they have proliferated all over the world.1 In the UK, schemes originated in the public sector, with the establishment of the Parliamentary Ombudsman in 1967.2 Since then, ombudsmen for local government3 and the health service4 have been introduced, together with systems for investigating police complaints,5 and the prisons and probation service.6 In the 1980s and early 1990s, the ombudsman concept was adopted by the private sector,7 mostly on a voluntary basis,8 covering a variety of industries. A more recent development is the ‘nationalisation’9 of the private sector schemes operating in financial services, which have been integrated to produce the statutory Financial Ombudsman Service.10 There are now few non-statutory ombudsmen schemes remaining in the UK, although there has recently been established an ombudsman for telecommunications,11 and there are proposals for an ombudsman scheme for dealing with the removals industry.
The title of ‘ombudsman’ is not strictly defined, and, moreover, definitions are not easy, as there are ‘significantly different interpretations of what exactly the Ombudsman’s functions are in the world community’.12 In general, ombudsmen are independent persons, who receive complaints, investigate them, directing or recommending a remedy where the complaint is justified. They are complaint-handlers, providing an impartial, accessible, informal, speedy and cheap way of resolving complaints. However, this simple definition masks the fact that ombudsmen world-wide have a variety of remits and functions. In the UK, the focus of the public sector ombudsmen is on maladministration, whereas in some countries, the emphasis is on human rights. In the private sector, the ombudsmen are not limited to maladministration, and their remits cover issues that could be the subject of litigation.
Moreover, those bodies that perform ombudsman functions are not always called ‘ombudsmen’. Indeed, in the UK, the statutory term for the public sector ombudsmen has traditionally been ‘commissioner’,13 although they are commonly and semi-officially referred to as ‘ombudsmen’. In the world community, sometimes these offices are called ‘ombudsmen’, sometimes ‘commissioners’, sometimes ‘defenders’ or ‘protectors’. It is therefore clear that researching ombudsmen is not confined to those bodies bearing that title.
A. WHY STUDY OMBUDSMEN?
Ombudsmen present a fascinating area of study for socio-legal researchers. As indicated, ombudsmen are independent persons, who receive complaints, investigate them, directing or recommending a remedy where the complaint is justified. They are thus an important mechanism for redressing grievances against both public bodies and private sector industries, providing alternative dispute resolution mechanisms14 to the courts, and thus access to justice. Empirical research into the work of ombudsmen provides an opportunity to evaluate their role, not only in their ability to solve disputes, but also in relation to their impact on system reform. They can thus be studied in relation to legal procedure, legal institutions, dispute resolution, regulation, access to justice and human rights.
One of the reasons for the development of ombudsmen in the private sector was dissatisfaction with the courts as a means of ensuring redress for consumers in dispute with large organisations. In terms of procedure, ombudsmen provide ‘soft’ or informal mechanisms of dispute resolution.15 They are an easily accessible, low-cost alternative to the courts.16 The methods that they use are inquisitorial rather than adversarial, and many ombudsmen make decisions based on written representations rather than oral hearings. They are ‘a form of privatisation of dispute resolution’,17 providing consumer redress mechanisms, and thus playing a significant role in the civil justice system. It is thus important to evaluate them to ensure that they are able to provide similar guarantees of justice as the courts. The study of ombudsmen can therefore compare and contrast the procedural aspects of this remedy with those of the courts, and evaluate the claims ombudsmen make for their procedures.
In the public sector, where they originated, ombudsmen were not intended to provide an alternative dispute resolution mechanism to the courts. They were established to deal with grievances where no remedy was available in court, because the matter was not justiciable, as no legal right was infringed. The Parliamentary Ombudsman was originally established as an adjunct to Parliament, and thus part of the political and administrative regimes. The remit of the public sector ombudsmen is essentially to provide remedies for maladministration, rather than to adjudicate legal claims or appeals against the merits of discretionary decisions. Ombudsmen thus provide an interesting area of study in terms of their constitutional role and significance, and in relation to the other mechanisms that exist for resolving disputes with, and checking the abuse of power of, public bodies. The study of complaints is an accepted part of social science, and important in its own right, but, as well as examining how complaints mechanisms are working, such studies provide a ‘useful point of entry for researchers and policy makers to monitor some aspects of the general functioning of public administration vis-a-vis the public’.18
The interface of ombudsmen with the courts also provides an interesting area of study for socio-legal scholars. Despite the view that the ‘more that is done to enhance access to the courts, the less the public will be interested in wasting time in … alternative dispute resolution processes’,19 there is no sign that the ombudsman remedy is on the decline. On the contrary, ombudsman schemes ‘continue to evolve and flourish’,20 offering a flexible mechanism for dispute resolution. ‘Access’21 is not the only problem with the court process, and it may be that the ombudsman remedy is more appropriate for some types of dispute. Rather than the courts and ombudsmen being seen as rivals, they should perhaps be seen as partners in the system for resolving disputes. Ombudsmen should thus be studied in order to explain their place in the civil justice and administrative justice systems, and to suggest means of making these systems more coherent.
In conclusion, ombudsmen are of interest to socio-legal researchers because, although concerned with conflict resolution, and despite the fact that many ombudsmen are lawyers,22 ‘the law and ombudsman practice are far from the same’.23 Despite their rapid rise in number over the past 50 years, there is still widespread ignorance and confusion about their work, confusion that is exacerbated by the fact that no two ombudsman schemes are the same. They can be usefully studied by those interested in accountability mechanisms,24 regulatory systems, human rights and civil procedures.
B. HOW TO STUDY OMBUDSMEN
Researching ombudsmen can take a number of forms. Ombudsmen can be studied as individual schemes,25 or as part of a total system for dispute resolution, with their place at the apex of that system.26 Individual schemes can be compared and contrasted with other mechanisms for dealing with similar complaints, or with similar schemes in different jurisdictions.27 Ombudsmen can be studied in order to describe their work, and evaluate their effectiveness as alternative mechanisms to the traditional methods for resolving disputes. They can be studied in order to find the range of types of ombudsmen available, in order to produce taxonomies, although there are problems of classification, because of the wide range of remits and functions of ombudsmen world-wide. In the UK for example, they have been classified into public and private, although these categories are becoming blurred with the advent of statutory ombudsmen, which may or may not be publicly funded, and which have jurisdiction over private sector organisations and private individuals.28 The modern ombudsman concept fulfils a variety of roles, as it has been adapted to suit local conditions, with varying operating methods and objectives. Classifications are also difficult because not all those who fit the definition of an ‘ombudsman’ are called one.29
Moreover, there are difficulties with conducting evaluations of ombudsmen schemes. One problem is that individual schemes may be found to be effective, but the complaints system in which they operate may not. For example, evaluations of ombudsman schemes for legal services have found that they are effective in terms of certain criteria, but that the professional bodies’ systems for dealing with complaints are not.30 As ombudsmen are used as a last resort, there is then some query as to whether it can be said that the ombudsman system is really effective. It is also difficult to make comparisons across jurisdictions, as much depends on the extent to which procedures exist for the resolution of disputes before a complaint is made to an ombudsman. Another issue is the question of against what criteria the evaluation will be made. Evaluation research has been described as in essence ‘the analysis of a set of activities to test whether they contribute effectively toward the pursuit of some goal or goals’.31 However, unlike some evaluation research, the goals of ombudsmen can be vague, making it difficult to specify criteria to evaluate their effectiveness.
The goals of ombudsmen have been said to include: righting individual wrongs; making bureaucracy more human; lessening popular alienation from government; preventing abuses by acting as a bureaucratic watchdog; vindicating civil servants when they are unjustly accused; introducing administrative reforms.32 Some of these goals are more amenable to measurement. It will be very difficult, for example, to measure the goal of delivering justice for citizens of public services. Even when the researcher decides on certain measures, for example the independence or accessibility of an ombudsman system, it has to be acknowledged that there are no objective measures of such criteria. These have to be constructed. In addition, ombudsman schemes may have been established with one set of goals, but these may have changed over time because of the changing context in which the scheme operates.33
My work on ombudsmen is conducted within the context of public law, and involves two levels of inquiry. At the institutional level, the concern is whether the structure of a scheme guarantees that the minimum conditions for an adjudicative body are ensured. Thus the scheme will be examined to evaluate its independence and jurisdictional coverage. The other level of inquiry concerns the internal effectiveness of the scheme as a grievance handling mechanism. This involves an examination of its independence, fairness, openness, and accessibility. In the studies that I have conducted, individual schemes are evaluated according to the criteria established by the British and Irish Ombudsman Association.34 These criteria, aimed at ensuring that schemes are effective, are as follows: independence, adequate powers of investigation and wide jurisdictional coverage, effective remedies, accessibility.
Independence is, of course, a crucial factor for ombudsmen. An ombudsman scheme must offer impartial investigation of grievances, and an ombudsman must be independent of the executive and any partisan influence. The independence of a scheme can be tested in a number of ways. For example, the jurisdiction, powers and method of appointment of an ombudsman ought to be a matter of public knowledge, and these aspects of the system can be evaluated. Research will reveal whether those appointing the ombudsmen are independent of those who will be subject to investigation, and whether the appointment can be subject to premature termination in the absence of incapacity, misconduct or other good cause. Statistical information can be gathered to ascertain whether the office is adequately staffed and financed.
Research will reveal whether the powers of investigation of the ombudsman are adequate, in order for the system to be effective, and whether the jurisdictional coverage of the scheme is sufficiently wide. Ideally, in the public sector, there should be an ombudsman to cover all types of administrative agencies and all levels of government. The powers of the ombudsman must be sufficient to ensure the production of relevant information and documents to enable thorough examination of the complaint. Effective remedies must be available where the complaint is upheld. Where decisions are not legally binding, there should be a reasonable expectation that there will be compliance.35