Electronic copy of Ann Abraham's paper : The Ombudsman and paths to justice

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Dear Parliamentary and Health Service Ombudsman,

A request is made under the FOIA for an electronic copy of Ann Abraham's paper: "The Ombudsman and "paths to justice": a just alternative or just an alternative?" On belief and understanding it is dated 2007 or early 2008.

Thank you in anticipation.

Yours faithfully,

E. Colville

foiofficer, Parliamentary and Health Service Ombudsman

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Ombudsman. This return e-mail shows that we have received your
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E. Colville left an annotation ()

Here are selected extracts from the Ombudsman's paper, "The ombudsman and "paths to justice" : a just alternative or just an alternative?" (2008):

Quote:

" At a recent ombudsman conference at Warwick University one of the guest speakers, the ombudsman for Austria, provoked a good deal of amusement by describing the success of a reality TV show called, "The Ombudsman: top stories, hot topics". Hard to believe, maybe, but this hugely popular programme draws its content from the human interest material that passes across the Austrian Ombudsman's desk every day of the week and regularly attracts an audience of up to a third of the population.

That the Austrian ombudsman struggled at first to understand his audience's reaction - at first disbelief, followed by some mirth - reflects in part, I suspect, the differences in outlook between our respective jurisdictions: in Austria (and much of Europe, for that matter), the ombudsman "idea" is so central in local and national administrative law that it is the obvious place to turn for a social snapshot or a good story; in the English-speaking and common law world, the idea of attracting a similarly appreciative audience is at present, well, probably laughable.

I am put in mind of a recent exchange, at a conference of European ombudsmen, with the Norwegian ombudsman, in which he gently chided the United Kingdom for allowing its judges to have the last word on whether an ombudsman has come to the right conlcusion. This he regards as a jurisprudential outrage. When asked whether in that case he considered the ombudsman to be "above" the law, he had no hesitation in replying: "What do you mean? The ombudsman is the law"

I do not intend going quite so far as that today, but I do want to stake a claim for the Parliamentary & Health Service Ombudsman (PHSO) - and for public sector ombudsmen more generally - as an integral part of the administrative justice "scene" in this country, in fact as a coherent "system of justice" in its own right. I want as well to identify some of the distinctive features of that "system", of the ombudsman approach, the things that make it significantly different from the continental common law way of going about things. This is justice, but not necessarily as we know it. In doing that, I want to suggest, however, that the ombudsman system, although different, is complementary to the courts and tribunals on the one hand and to negotiated forms of alternative dipsute resolution on the other; different from, yet receptive to elements of, both.

"[C]omplainants [coming to PHSO] include in large measure those most vulnerable and experiencing "justiciable events" that have the most direct bearing on their human rights and general well-being. As such, the PHSO...deserves serious consideration as a significant "path to justice".....But to what sort of justice might the ombudsman route be a "path" ? ... As we all know, after Lord Woolf's reforms, there is more than one way to skin the judicial cat, or to mix my metaphors, in a world of judicial "horses for courses" there is certainly more than one way (if I can put it this way) of being taken for a ride.

The ombudsman way is not that of the courts and tribunals.......

The [Regulatory Reform Order 2007] enables the PHSO "to appoint and pay a mediator or other appropriate person" to assist in the conduct of an investigation. There may well be cases where "mediation" is especially appropriate in enabling the parties to explore their differences with a trained facilitator, achieve insight and empowerment, and devise for themselves a way forward. The availability of mediation might also be of assistance to those engaged in judicial review proceedings and referral by the court to mediation in such circumstances would no doubt be appropriate. It should not be thought, however, that the ombudsman is itself an agent of mediation. Mediation is not a decision-making process. Crucially, it lacks the adjudicatory function that is exercised by an ombudsman. In that regard, the ombudsman shares an important judicial characteristic with the courts and tribunals. What distinguishes the ombudsman from the courts and tribunals is not, then, the lack of an adjudicatory function but rather the ability to adjudicate in a different way. As Bean J. noted [ R (on the application of Bradley) v. Secretary of State for Pensions [2007] EW/HC 242; [2007] Pens.L.P. 87] ... the ombudsman has "very wide discretion", "a public adversarial hearing is not the only fair way of finding facts", and it is not the way Parliament requires either of the Parliamentary or the Local Government Ombudsman".

......[A]nd I want as well to pose some questions that flow from these observations: if the ombudsman system is complementary to the rest of the administrative justice system, to what extent do the other parts (the courts and tribunals, for example) repay the compliment by recognising it as such; and if this really is a system of justice, where in the Ministry of Justice is the overview of that part of this justice system and the ownership of developments in ombudsman policy to be found?

The future of administrative justice

I have argued that ombudsmen deserve to be seen as a system of justice in their own right, albeit one that is different from, but complimentary to, the courts and tribunals. Where then does that ombudsman system sit in relation to the rest of the administrative justice system? Let me anwer that question by looking briefly at three disctinct but related issues: standard setting in the public sector, human rights and the reform of public services; and the vexed question of public law remedies.

First of all, then, standard-setting. Ombudsmen are not regulators and should not aspire to be so. They should though be seen as the potential setters and promoters of principles of good practice rather than the mere enforcer of established rules, an active agency in shaping the future behaviour of organsisations rather than the passive adjudicator of individual disputes.

A case in point is my own office's recent publication of its Principles of Good Administration which are an attempt to be open and clear with both complainants and public bodies about the sorts of behaviour we expect when public bodies deliver public servicrs, and the tests my office applies in deciding whether maladministration and service failure have occurred. By approaching this issue positively, we have in a sense turned the traditional ombudsman preoccupation with maladministration on its head; instead of looking retrospectively for instances of bad administration and performance we are looking prospectively and supportively for good things, for prevention and not just remedial cure.

Secondly, there is the issue of human rights and the reform of public services. Although the passing of the Human Rights Act is a triumph of human rights principles, it also makes them easy pray to the "crisis of legalism" and all that goes with it ("red tape", "compensation culture", etc.) Where can we look for the remedy?

....[T]he judgement of Lord Woolf and his fellow Court of Appral judges a couple of years ago in the case of Anufrijeva highlighted the possibilities for extra legal adjudication on human rights issues by ombudsmen, and in doing so demonstrated how disproportionately expensive the pursuit of maladministration complaints in the courts can be, and academic commentators have also noted the potentail attraction of Alternative Dispute Resolution, including ombudsmen, for the resolution of human rights disputes.

After all, in many jurisdictions oversight of equality and human rights legislation already rests in the first instance in the hands of an ombudsman, and on a visit to the UK in 2005 the European Ombudsman highlighted the need for greater co-operation between ombudsmen in safeguarding the rights of citizens and takinf a "pro-active" role in promoting the rule of law and respect for human rights."

Even more recently, in Athens in April 2007, the Council of Europe invited its commissioner for Human Rights, Thomas Hammerberg, to seek greater co-operation between his office, national ombudsman institutions and national Human Rights institutions, partly as a response to a backlog of 90,000 cases which currently chokes the European Court of Human Rights in Strasbourg, but partly too in recognition of the need to "repatriate" human rights at the national and grass-roots level, to take human rights out of the courtroom and into the administrative bloodstream and popular consciousness.

This is a challenge that public sector ombudsmen already meet, albeit not always in explicit "human rights" terms......

And thirdly, there is the matter of public law remedies, currently under consideration by the Law Commission. My office is also consulting on a set of principles to govern the provision of remedy by the ombudsman. Within my own practice there already exists the notion of "corrective justice", of repairing damage and if necessary providing compensation not just for financial loss but for "softer" disadvantage, such as injuiry to feelings. Within the administrative justice system more widely, that underlying principle has been slow to gain universal recognition and it may indeed be true that in public law disputes its application is more complicated than in a private law dispute between individuals. Nevertheless, the current differences in approach to what might in essence be very similar causes of dispute cry out for some form of rationalisation, in recognition of the need to ensure that disputes find their way to the forum that is most likely to deliver the right level of adjudication; the right remedy and the best prospects of future prevention.

And that, in short is an argument for integrating the ombudsman system of justice more consciously and deliberatively than at present into the wider administrative justice system. There is little sign that any effective mechanisms currently exist for ensuring that courts and tribunals refer suitable cases to the ombudsmen, although ombudsmen very often have it in their remit to direct complainant's to the courts and tribunals if competence lies in that direction.

You will search in vain too for a branch of government that sees its job to undertake the task of rationalisation. Even within the new Ministry of Justice, where such a remit might be thought to reside, I see little appetitie fo the task of imposing some sort of order upon the growth of the ombudsman sector. That ombudsman schemes will continue to multiply seems inevitable. Without strategic direction, and a coherent framework for the development of new ombudsman schemes, that growth will surely undermine the sort of potential outlined in this paper for ombudsmen to play an active part in the delivery of appropriate dispute resolution and indeed of justice. Even worse, it will very likely lead to the need for fundmental surgery of the sort dealt recently to the tribunal world. A "Leggat review of ombudsmen" cannot be that far away.

It is not too late ti avoid that prospect. But the first step will be for government, and others, to recognise the part that ombudsemn can, and already do, play as a system of justice in their own right. That does not require a prime time TV slot, but it does require greater understanding of the ombudsman landscape and a recognition that ombudsmen in this country have come of age"

Unquote

It's not such a bad or "laughable" idea at all that the publicly-funded BBC should host a "prime time TV slot" to shine a light on what the PHSO gets up to. Why not? is what actual and potential users of the service are more likely to ask?

D. Speers left an annotation ()

Impressive vannotation Elaine! Thanks you for info!
Dee x

[Name Removed] (Account suspended) left an annotation ()

Thank you Elaine. Very enlightening.

Interesting that she argues for increased powers.. For the Ombudsman.

But doesn't see the need for the most vulnerable to be involved with the office - via TV shows, in a medium that can be understood by the greater public.

The Ombudsman wants to judge, but not be judged, or criticised by the paying public in return.

There is a patrician thread of arrogance that runs through the ethos this office - which causes all the problems in its relationship with the public.

E. Colville left an annotation ()

Couldn't agree more ....thank you for putting feelings into words Jt
"The Ombudsman wants to judge, but not be judged, or criticised by the paying public in return."

E. Colville left an annotation ()

Sorry its D. Speers here not E.Colville as previous annotation suggests!

E. Colville left an annotation ()

Dee,

No problem. I wonder how you managed to leave two annotations under my account name though?

Reponse to request received this morning at 10:05 via WDTK, but strangely isn't yet showing on-line. Here are the details:

You have a new response to the Freedom of Information request
'Legal Adviser Job Description July 2014' that you made to
Parliamentary and Health Service Ombudsman.

To view the response, click on the link below.

https://www.whatdotheyknow.com/request/l...

When you get there, please update the status to say if the response
contains any useful information.

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you, the original requester, to evaluate them.

-- the WhatDoTheyKnow team

Here's a linked pdf copy also:
https://www.whatdotheyknow.com/request/2...

foiofficer, Parliamentary and Health Service Ombudsman

Dear E. Colville

 

Your information request (FDC-198539)

 

I am writing further to your email of 10 August 2014, in which you have
asked for a copy of a paper written by Ann Abraham, ‘The Ombudsman and
“paths to justice”: a just alternative or just an alternative?’

 

As you may be aware, the exemption at section 21 of the Freedom of
Information Act 2000 enables public authorities to refuse requests where
the information requested is reasonably accessible by other means.

 

The article you have requested is available in the Spring 2008 edition of
Public Law.  This is available as a free sample on the publisher’s website
at the following link:

[1]www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=469 

 

I hope that this information is helpful.

 

Yours sincerely

 

 

Aimee Gasston

Freedom of Information / Data Protection Officer

Parliamentary and Health Service Ombudsman

W: [2]www.ombudsman.org.uk

 

Please email the FOI/DP team at: [3][email address]

 

 

 

From: E. Colville [mailto:[FOI #224268 email]]
Sent: 10 August 2014 15:39
To: foiofficer
Subject: Freedom of Information request - Electronic copy of Ann Abraham's
paper : The Ombudsman and paths to justice

 

Dear Parliamentary and Health Service Ombudsman,

A request is made under the FOIA for an electronic copy of Ann Abraham's
paper: "The Ombudsman and "paths to justice": a just alternative or just
an alternative?" On belief and understanding it is dated 2007 or early
2008.

Thank you in anticipation.

Yours faithfully,

E. Colville

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R Tozer left an annotation ()

Article not found at the link given.

E. Colville left an annotation ()

D.Speers here....I have let WDTK know about this mix up and I am trying to get it sorted.