Introduction
The parliamentary and health service ombudsman holds two ombudsman offices, one being the health service ombudsman and the other being the parliamentary ombudsman. The post of the parliamentary service was established through the Parliamentary Commissioner Act of 1967.[1] The role of the office holder was to investigate complaints made by citizens with regard to maladministration by public officials. The Health Service Ombudsman was established later on through the 1973 NHS Reorganization Act as a result of the increased concerns about the effectiveness of the minister of health to adequately address all health related grievances brought before it by members of the public.[2] The office of the health service ombudsman has undergone a couple of modifications through different acts, including the 1993 the Health Service Commissioners Act, Parliamentary and Health Service Commissioners Act 1987 and the 1996 amendment of the Health Service Commissioner Act. The Health Service Commissioner (Amendment) Act 1996 gave the parliamentary and health service ombudsman a broader jurisdiction over all matters related to the National Health Service care and treatment.[3]
The parliamentary and health service ombudsman plays a dual role, which mainly involves looking into cases of maladministration by public entities, agencies and departments including the National Health Service.[4] Maladministration refers to a public entity’s failure to act fairly or properly in its delivery of services to members of the public. It also refers to the provision of poor services and failure to correct such mistakes by a public office. Maladministration often causes members of the public to suffer injustice. The parliamentary and health service ombudsman has the mandate to investigate such complaints, thus plays an important role in the delivery of administrative justice.[5] However, the role of the parliamentary and health service ombudsman in the provision of administrative justice is undermined by a number of factors which have led to increased calls for reforms. Different reform suggestions have been put forward, one of them being dropping of the MP filter. This paper argues that dropping of the MP filter would go a great way in serving the interest of administrative justice.
Role of the parliamentary and health service ombudsman
As pointed out in the introduction, the main role of the parliamentary and health service ombudsman is to investigate cases brought before it and which concern maladministration by certain public bodies and government departments. According to the Leader of House of Commons during the establishment of the office of the parliamentary ombudsman in 1967, Richard Crossman, maladministration involved neglect, delay bias, inattention, inaptitude and incompetence on the part of a government department or public body.[6] Additionally, Crossman points out that such qualities, on the part of government departments, led to making of discretionary decisions that members of the public disliked but could not fault due to exclusion by the legislation.[7] The parliamentary ombudsman was thus established as a way through which the public could air its grievances about the quality of services provided by government departments and certain public entities. Apart from the government departments in the UK, other entities that are under the jurisdiction of the parliamentary and health service ombudsman are non-departmental public bodies as listed in the first schedule of the Parliamentary and Health Service Commissioners Act 1987.[8] The parliamentary and health service ombudsman also has the mandate to look into actions taken on behalf of those authorities outlined in the first schedule of the Parliamentary and Health Service Commissioners Act 1987. However, the Ombudsman has no jurisdiction over parties that are operating in contracts with the central government.[9]
There are other entities that the Parliamentary and Health Service Ombudsman cannot investigate. These entities include political parties, the police, the media, members of parliament and telecommunications. Other services not under the jurisdiction of the Parliamentary and Health Service Ombudsman include social care, privately funded healthcare, postal services, financial services as well as consumer-related issues.[10]Whether the ombudsman will investigate a complaint also depends on the period that has elapsed since the complainant got wind of the problem.[11] For periods of more than a year, the ombudsman does not carry out an investigation, meaning that any grievances must be reported as soon as the complainant detects a problem. Before considering making an investigation into the grievances, a complainant raised, the Parliamentary and Health Service Ombudsman also requires the complainant first to report the grievances to the concerned public entity or department.[12] This is aimed at allowing the officials of the concerned entity to look into the said grievances before being taken by an independent office that is the ombudsman.
The Parliamentary and Health Service Ombudsman is empowered to summon both persons and paper. This simply means that the ombudsman has the right to access information and summon witnesses in the course of an investigation.[13] Following an investigation, the ombudsman powers are limited to making recommendations. In case the findings of the ombudsman are against a government department or public entity and in favour of the persons that raised the grievances, the ombudsman has no power to award compensation or alter the decision made by the said department. Instead, the ombudsman is only allowed to suggest an appropriate remedy.[14] Abraham points out that not all poor services or maladministration causes hardship or injustice to the members of the public and that in cases where hardship or injustice occurs, the public body has to ensure that the complainant’s position is restored back to the position they would have been had the maladministration not occurred.[15] According to Abraham, the public entity has to compensate the complainant if it is impossible to restore the complainant’s back to where the maladministration would have been had the maladministration not occurred.[16]
For injustices that the ombudsman sees are unlikely to be remedied, the Parliamentary Commissioner Act 1967 allows the ombudsman to present a special report to the parliament.[17] Since the establishment of the Parliamentary and Health Service Ombudsman, only seven special reports have been presented to the parliament.[18] For any report, the ombudsman presents before the parliament, The Public Administration and Constitutional Affairs Committee follows up and may hold hearings to determine whether the recommendations made by the ombudsman should be accepted or rejected. For most of the reports tabled before the parliament, the government has gone ahead to accept some of the recommendations made by the ombudsman.[19] [20]
The decisions made by the Ombudsman are final, meaning that there is no right of appeal against the recommendations.[21] However, the public is allowed to present their complaints about the recommendations to the ombudsman. Despite being mandated to monitor the ombudsman’s work, the Public Administration and Constitutional Affairs Select Committee does not take into consideration individual cases. This means that the committee does not have any influence on the recommendations the Ombudsman makes. However, the decisions that the ombudsman makes are subject to judicial review. This is the only way that the decision made by the parliamentary ombudsman can be overturned as in the 1994 ex p Dyer judicial review case.[22] Under this judicial review case, the argument that the parliamentary ombudsman was not subject to review by the courts and was only under parliament’s control was rejected. Three more reviews on the Parliamentary and Health Service Ombudsman were reported between 1994 and 2002.[23]
The need for reforms and the MP filter
Given the role of the Parliamentary and Health Service Ombudsman and the limited nature of the powers bestowed upon the office, a number of criticism and concerns have been raised over the year. This has led to increased calls for reforms in the Parliamentary and Health Service Ombudsman. One such concern is with regard to the many complaints that the ombudsman office has thrown out for being inappropriate for investigation.[24] According to concerned parties, this might be an indicator of the confusion that exists with regard to the role and remit of the office. Concerns have also been raised with regard to the number of findings that government departments have rejected as well as the accessibility of the ombudsman services due to the MP filter.[25] Apart from that, the current statutory bar restricts the ombudsman from looking into cases where the persons presenting a complaint have recourse to the courts. All the above issues have emerged as barriers for the Parliamentary and Health Service Ombudsman to contribute positively to administrative justice.
The requirement for complaints to the Parliamentary Ombudsman to be made through the Westminster MPs is contained in the Parliamentary Commissioner Act 1967.[26] This requirement is what has come to be known as the MP filter, and was adopted during the process of incorporating the Scandinavian concept ombudsman into the UK governance framework. The MP filter only applies to complaints made to the parliamentary ombudsman, but not the health service ombudsman. Concerns have been raised over the role that the MP filter plays in reducing the number of complaints that reach the Parliamentary Ombudsman. Some of these complaints may be very genuine and once they fail to reach the Parliamentary Ombudsman, serious concerns raised by the complainants may never be addressed; an event that undermines the delivery of administrative justice. Elliot points out that the MP filter restricts the access to the parliamentary ombudsman, a fact that has also been acknowledged by the Public Administration Select Committee (PASC).[27]
Despite the increased calls for reforms with regard to direct access to the Parliamentary and Health Service Ombudsman for now-NHS complaints, various factions have come out in full support of the MP filter. The strongest supporters of the MP filter have been the members of parliament themselves who argue that allowing the public to have direct access to the Parliamentary Ombudsman will be in direct conflict with the constitutional role the MPs play. They argue that the MP filter allows them to be aware of the issues and concerns raised by their constituents, and that direct access would make it difficult for the members of parliament to strengthen their relationship with the constituents. Apart from that, it has been argued that removing the filter would undermine the parliament’s ability to hold the government accountable for the quality of service it provides. Additionally, those opposed to the removal of the filter have pointed out that it would lead to many irrelevant complaints being received by the parliamentary ombudsman. However, the fact remains that the MP filter does discourage a sizeable number of the citizens from filing their complaints and is thus a barrier to the delivery of administrative justice
How dropping of the MP filter would best serve the interests of administrative justice
Administrative justice in the UK has grown in terms of importance over the past years as indicated by the number of administrative justice hearings recorded in the recent past. In 2010 alone, the number of administrative justice hearings in England and Wales alone was more than 650,000, compared to 200,000 criminal justice hearings and 63,000 civil justice hearings.[28] This is a clear indicator that more people are in need of administrative justice, hence the need to increase access to various administrative justice tools which also includes the parliamentary ombudsman services. Administrative justice is an issue of great importance to every citizen since the government and its departments regulate many crucial aspects of a citizen’s everyday life. The decisions and actions taken by the government and its departments have a direct impact on the lives of citizens and their families.[29] As part of the justice system, administrative justice is concerned with addressing the disputes between the citizens and the state.
Over the years, ombudsmen have gained widespread recognition as being an important part of the landscape that makes administrative justice. Despite the decisions that the ombudsmen make, though not being binding, the government usually complies with most of the recommendations they make, making them an important channel through which citizens can seek administrative justice. As such, instruments that prevent citizens from directly accessing ombudsmen services, such as the MP filter in the case of parliamentary ombudsmen, can be described as being barriers to administrative justice. Abolishment of such barriers would increase access to administrative justice. It is for this reason that we argue that the removal of the MP filter would best serve the interests of administrative justice.
Various reviews published in the past as well as the recent PASC report acknowledge the fact the MP filter has prevented many complaints from reaching the parliamentary ombudsman, and have called for the removal of the filter.[30] According to the PASC report, there is no rational justification for denying citizens direct access to parliamentary ombudsman. The report goes further to highlight that it was initially desired for the filter to be removed five years after the establishment of the parliamentary ombudsman, a fate that is yet to be accomplished.[31] Restricting direct access to the parliamentary ombudsman is akin to denying people direct access to administrative justice. According to the PASC report, the MP filter “disempowers citizens, obstructs access to their rights, and deters people from making complaints.”[32] As such, dropping the filter would best serve the interest of administrative justice by allowing citizens direct access to their rights and encourage them to file complaints for appropriate measures to be taken.
Conclusion
Over the years, ombudsmen have gained widespread recognition as being an important part of the landscape that makes administrative justice. Despite the decisions that ombudsmen make, though not being binding, the government usually complies with most of the recommendations they make, making them an important channel through which citizens can seek administrative justice. The parliamentary and health service ombudsman is concerned with cases of maladministration by public entities, agencies and departments, including the National Health Service, and is thus an important channel through which citizens can seek administrative justice. Administrative justice in the UK has grown in terms of importance as indicated by the many administrative justice cases and trials conducted over the past few years. Various reviews published in the past as well as the recent PASC report acknowledge the fact the MP filter has prevented many complaints from reaching the parliamentary ombudsman, and have called for the removal of the filter. There is no rational justification for denying citizens direct access to parliamentary ombudsman. Restricting direct access to the parliamentary ombudsman is akin to denying people direct access to administrative justice. As such, dropping the filter would best serve the interest of administrative justice by allowing citizens direct access to their rights and encourage them to file complaints for appropriate measures to be taken.