Memorandum by the Parliamentary Secretary to the Cabinet Office (OM 1)
THE ROLE OF PUBLIC SECTOR OMBUDSMEN
1. This Memorandum provides information on the Government's plans for taking forward its commitment to create a new independent body to carry out the functions currently discharged by the Parliamentary Commission for Administration (PCA), the Health Service Commissioner (HSC) and the Commission for Local Administration (CLA). I gave that commitment to the House by way of a written answer on 20 July 2001.
2. The answer in question set out the Government's response to the main recommendations of the Review of Public Sector Ombudsmen in England (the "Collcutt Review"). The Government undertook to develop proposals for the precise powers and accountability of the new body, the extent of its jurisdiction by comparison with that of existing ombudsmen, and to publish those proposals in due course.
3. The Government is currently engaged in dialogue with all key stakeholders on how best to develop those proposals, and hopes to publish its conclusions shortly. This Memorandum, as well as setting out the broader context within which this work is being done, also highlights some of the key issues upon which the Government is having detailed discussions with interested parties.
Wider public service reform
4. The Government's commitment to reform was spelt out clearly by the Prime Minister as recently as October of 2001, when he emphasised that the basic aim of change would be focused upon ensuring that the customer is always put first. He set out four key principles underpinning the Governments overall strategy:
establishing a national framework of standards and accountability;
developing power to front-line professionals, in order to stimulate diversity and innovation;
providing better and more flexible rewards and conditions of service for front line staff; and
providing more choice to consumers of public services, and alternative forms of provision where standards were not being met.
5. An important element in protecting consumer interests is provision of adequate forms of redress when things go wrong. This is one of the underlying principles which guides the work of the PCA, HSC, CLA and all the other complaints handling bodies which currently exist.
6. However, the manner in which the various Ombudsmen carry out their functions is heavily constrained by the legislation under which they operate, and there is a clear sense that the law in many instances is not helping Ombudsmen to develop new ways of working which are driven by customer need.
7. The Government believes that the thrust of any new legislation governing Ombudsmen functions in England will need to be constructed in a manner which places the primary emphasis on the successful resolution of complaints, rather than formal investigation and reporting, and that the new body should be encouraged to find less formal ways of settling cases quickly, and be able to make more use of techniques like mediation and conciliation where appropriate. This is very much in line with the Government's wish to develop an approach to public sector service delivery based upon pragmatism and the delivery of improved outcomes, such as that which has characterised its policies on best value in local government and elsewhere.
8. However, affording greater flexibility in working practice to the new body will have implications for other agencies operating in the field. For example, the legislation under which the CLA currently operates precludes him from acting until the local authority has had a reasonable opportunity to resolve the complaint; that governing the work of the HSC requires that the internal complaints procedure of the body under investigation be exhausted before an investigation takes place. Moving away from clear lines of demarcation between internal complaints handling processes and external scrutiny will require careful thought, particularly as there will be a continuing need to encourage public bodies to respond swiftly and effectively to complaints in the first place.
9. In considering the case for change, the Government also needs to give careful thought to the likely impact upon quasi-independent complaints examiners within Government Departments, such as the Adjudicator, the Prisons Ombudsman, and the Independent Case Examiner. These bodies, which act as an extra check against maladministration by the Departments concerned, play a valuable role in improving the manner in which complaints by the public are handled; the Government is determined to ensure that their expertise and commitment, and their ability to act independently, is fully utilised in any new system. Traditionally, these bodies have acted as an extra means by which complaints can be dealt with without recourse to a formal investigation by the Ombudsman, and again, affording greater flexibility to the Ombudsman to become involved much earlier in complaints handling may require the development of a new working relationship between the two.
10. The precise nature of new relationships of this kind will be determined in consultation with key parties.
Meeting the needs of the customer
11. A great deal of work remains to be done on matters of detail before the precise nature of the new body and its role can be determined, and legislation introduced. But its effectiveness will ultimately be measured in terms of how it is perceived by the complainants themselves.
12. Critics of the current system point, quite rightly, to the fragmented nature of it. Different bodies, operating under very different and often restrictive legislation, combined with a proliferation of internal and quasi-independent complaints bodies operating under a variety of reporting and accountability arrangements, are confusing for those who work in the field. They are still more confusing for the ordinary member of the public.
13. Most people who complain about public bodies do not necessarily do so in an attempt to make financial gain. Quite often they are motivated by a simple sense of injustice at not having had fair consideration; in other cases, they are more altruistic still, and complain out of a desire to protect others from injustice or the risk of hardship. The majority of public servants working in this area realise this, and do their best to make the system work. But the uncomfortable fact remains that too many members of the public who complain about public bodies emerge from the experience confused about where responsibility lies, are often exhausted by the length of the processes involved, and more cynical about public service provision than they were to begin with.
14. Our eventual decisions on the shape of the new body therefore must take account of a number of key questions:
will it make it easy to understand how to complain?
is it easy to know who to complain to?
do people understand what they are able to complain about?
and will they be able to know how long they will wait for resolution?
15. The new body therefore needs to have a very clear remit; to be able to resolve complaints by formal as well as by other means; and to have a sufficiently wide jurisdiction such that it will be possible to draw in other bodies where it is sensible to do so. It must also be capable of being held accountable to Parliament.
Making the change
16. Most key players in the complaints handling field agree that the case for bringing together the Ombudsman bodies is a very strong one. It is sensible in terms of operational efficiencybut more fundamentally, is also at the heart of the Government's vision for public sector reform.
17. However, it will not be possible to create the kind of flexible, dynamic and customer focused body of the kind described above without primary legislation. It might be possible to make some of the changes needed by regulatory change, but the fundamental shift required to put all the bodies on a common statutory footing and remove the main procedural constraints to flexible working can only be achieved via an Act of Parliament.
18. It is not possible to anticipate with any certainty when Parliamentary time might be made available for legislation of this kind. However, in the meantime, the Government intends to move as swiftly as possible to resolve outstanding policy issues with interested parties. We will do so by fulfilling the undertaking which I gave to Parliament to bring forward detailed proposals for the powers and accountability of the new body for consultation shortly, which will provide a firm platform for the development of detailed legislative proposals as soon as the Parliamentary timetable allows.