Written evidence from Public Law Project (PLP); UK Administrative Justice Institute (UKAJI) (HRO0007)

 

Public Law Project (PLP) is a national legal charity which works to promote access to justice, the rule of law and the accountability of public bodies through a combination of specialist legal casework, research, policy advocacy, training and events.[1]

The UK Administrative Justice Institute (UKAJI) is a research institute established in 2014 with funding from the Nuffield Foundation and is based at Essex Law School. UKAJI’s objective is to act as a forum where practitioners, academics and service users can work together towards the improvement of redress mechanisms.[2]

This is a joint submission from PLP and UKAJI written by Lee Marsons and will use the term “ombud”.[3]

 

Part I: The jurisdiction, powers and remedies available to a human rights ombud

Should there be a Human Rights Ombudsperson? If so, what powers and resources would the ombudsperson need to address the challenges people face in enforcing their rights outside of court?

What powers would the ombudsperson need to ensure they provide an effective remedy, as required by Article 13 of the European Convention on Human Rights, for individuals trying to enforce their rights?

The core role of a public service ombud is: (a) to investigate individual complaints and (b) improve public services by working to identify and reduce systemic problems.[4] Systemic problems will often best be investigated through so-called “own initiative powers, whereby the ombud can “investigate cases where [it] had evidence of injustice but no specific complaint”.[5] Increasingly, ombuds and related bodies also have the capacity to investigate “super-complaints”, whereby specified organisations can bring a complaint representing a common concern on behalf of others.[6]

Furthermore, the Council of Europe’s Venice Principles highlight that ombuds can alert parliamentarians and government to the ways that legislation pre- and post-enactment interferes with human rights, and can litigate in the courts to pursue strategically important test cases. The Venice Principles also note that ombuds can help foster a human rights culture within public bodies, including through supporting public bodies to create appropriate administrative structures and make initial decisions which respect human rights.[7]

Therefore, definitionally we understand a human rights ombud to be an institution which could: (a) investigate complaints from individuals or super-complaints from specified bodies about human rights issues and make recommendations for redress; (b) identify systemic human rights problems within the public sector, including through “own initiative powers”, and make recommendations for reform; (c) have a broader role in proactively supporting public bodies to protect human rights in their decisions, structures and systems; and (d) pursue strategic litigation where appropriate.

There is currently no UK-wide human rights ombud. The closest institution is the Equality and Human Rights Commission (EHRC), which operates in Great Britain with obligations including encouraging human rights good practice and encouraging public bodies to satisfy their legal duties under the Human Rights Act 1998 (s.9, Equality Act 2006). While it has a range of rights-focused powers, including to conduct “inquiries” which has been used to investigate systemic human rights problems (s.16),[8] it cannot investigate individual complaints or super-complaints. Even those bodies which can hear complaints have a geographically or sectorally limited jurisdiction. Existing ombuds also focus on whether legal standards such as “maladministration” have been violated, rather than proactively support public bodies to develop a systemic human rights culture. Further, the major ombud in England, the PHSO, has no “own initiative” powers to investigate systemic problems.

In principle, we could support the establishment of a human rights ombud. However, in the first instance we emphasise the importance of the JCHR considering what existing public bodies could be strengthened to enable greater ombud-like functions. Another public body without clear functional demarcation from others would add complexity and expense and risk unhelpful duplication and jurisdictional conflict.[9]

Specifically, we support the JCHR investigating how the following powers and functions could be granted either to a new human rights ombud or incorporated into the work of existing public bodies. Depending on their expertise, existing bodies could take on these functions generally or only in relation to their specific sectoral jurisdiction.

 

The capacity to investigate individual and super-complaints. It is important that investigations are not limited either to finding “violations” of human rights or “maladministration”. Violations can be dealt with by the judiciary through litigation and maladministration by existing powers.[10] Moreover, maladministration” focuses more on how decisions were made rather than core issues of quality, merits or consequences.[11] While process matters, an understanding of the real human rights implications of decisions or systems requires detailed, ground-level and systemic knowledge of how people are affected. Therefore, to add something to existing mechanisms, a human rights ombud should be focused on proactively supporting public bodies to exercise their powers, make decisions, arrange their structures and systems, and operate in a way that protects and promotes human rights to the greatest possible extent.

 

The capacity to investigate systemic human rights challenges. The issues raised in complaints are often not limited to one person. The problem of delay in processing asylum applications, for example, is in reality a multi-year problem across the whole asylum system, rather than an individual dispute between the Home Office and the asylum seeker.[12]

Moreover, as the Scottish Public Services Ombudsman has put it:

The most vulnerable in society are often the most dependent on public services and that dependence can make then reluctant to complain. There is fear of upsetting an organisation who may have real power over your life. Complaints processes, however designed, can feel like an additional hurdle for someone who may have multiple interactions with public bodies. The ability of an Ombudsman to step in when there is evidence that there may be real problems affecting a groupis an important part of the key role of an Ombudsman – ensuring fairness in the relationship between the citizen and the state.[13]

It is, therefore, essential that a human rights ombud or other body exercising these functions is able to investigate broader systemic problems. The Public Services Ombudsman for Wales has devised two means to deal with this called “extended investigation” and “wider investigation”. The former is when an existing individual complaint is extended to include investigation of systemic problems and the latter is a proactive investigation of a systemic problem without an existing complaint (“own initiative powers”).[14] The PHSO in England is ripe for “own initiative” powers and, indeed, this has been a consistent criticism of the PHSO framework.[15]

Furthermore, it is critical that following any findings and recommendations, the ombud is able to support the public body to learn from mistakes and improve. The ombud should not be viewed primarily as an institution of punitive sanctions, but one that supports “organisational learning”.[16]

 

A power to require disclosure and a duty of cooperation. In light of the difficulties that an individual may face obtaining information from a public body, a human rights ombud will need robust investigative powers. This should include a power to require disclosure and cooperation. As is normal for an ombud, the human rights ombud should possess a power to require public bodies to provide information relevant to their investigation and this should exclude privileges that public bodies may be able to claim in ordinary legal proceedings.[17]

Similarly, it is important that there is a duty of good faith cooperation with the ombud. We might look to the Domestic Abuse Act 2021, where section 15 imposes a duty to co-operate with the Domestic Abuse Commissioner. Specifically, this provision empowers the Commissioner to “request a specified public authority to co-operate with the Commissioner in any wayconsider[ed] necessary for the purposes of the Commissioner’s functions” and requires those public authorities “so far as reasonably practicable [to] comply with a request made to it”. Both a power to require disclosure and a duty of cooperation should be carefully considered.

 

The power to pursue litigation on behalf of victims of human rights interferences. Section 7 of the HRA limits the ability to pursue a human rights challenge in court to a “victim” of a human rights interference. Therefore, a court challenge using the HRA cannot be brought in the public interest, even when there is a serious issue of principle or practice in dispute. For example, in R (Reprieve, David Davis and Dan Jarvis) v Prime Minister, the Administrative Court determined that the claimants had no standing to bring a case related to unlawful rendition because none had been victims of rendition themselves.[18] As such, to ensure that the ombud is able to pursue litigation, it should be recognised as a “victim” for section 7 purposes.[19]

 

The power to make discretionary recommendations about individual and systemic concerns. Ordinarily the remedies granted by an ombud are not legally binding. They are advisory recommendations.

A human rights ombud should have the ability to make recommendations for redress that appear to it fair and proportionate, both in individual complaints and systemic investigations. This might include an apology, withdrawal of a decision, re-making a decision with modifications, financial compensation, or a combination of each.

It is also crucial that the ombud’s powers are not limited to making punitive recommendations. Given its task to proactively support systemic change, a valuable remedial recommendation will often be that, for example, a public body should develop a new human rights training programme alongside the ombud, or change its processes for initial decision-making to ensure that they generate greater respect for human rights.

As Laffranque (2020) has summarised the Article 13 jurisprudence related to ombuds, a complaint to an ombud usually does not constitute an effective remedy since ombuds do not have the power to impose legally binding decisions on public bodies.[20]

However, we would not support making a human rights ombud’s recommendations legally binding for three reasons. First, compliance with ombuds’ recommendations is already very high. In the case of financial remedies recommended by the PHSO between 2018 and 2021, for example, there was only one case where the public body did not comply.[21]

Second, an important benefit of non-binding recommendations is that, because public bodies know that they retain control of their decisions and policies, they are more likely to participate in good faith and constructively with investigations. When the human rights ombud’s task would be proactively supporting the advancement of a human rights culture rather than existing largely to issue punitive sanctions, this is even more important.

Third, the human rights ombud would have significant access to information within public bodies and possess a very broad investigatory remit. This is part of its point: to exceed existing functions. Given the depth of such investigations, the consequences of an ombud’s recommendations could have a significant impact on the public body. The public body would be best placed to manage that process of change without the fear of compulsion, working alongside the ombud.[22]

 

 

 

 

 

Part II: The interaction between a human rights ombud and other human rights bodies

How would the Human Rights Ombudsperson interact with existing mechanisms such as ombudspersons and Commissioners, including in the devolved nations?

How would the Human Rights Ombudsperson interact with other bodies tasked with upholding human rights, including the Equality and Human Rights Commission?

As emphasised in Part I, it is important not to establish new public bodies without a demonstrable need for them. Therefore, our preference remains exploring how existing bodies could be strengthened, particularly with the functions outlined in Part I.

Indeed, if established, the human rights ombud should not have an exclusive or sole jurisdiction over human rights investigations. This would risk placing an excessive and disproportionate investigatory burden on the ombud, which it may not have adequate funding, staffing, knowledge or resources to satisfy. Total unification of human rights investigations could further discourage beneficial investigatory collaborations between the ombud and existing specialist public bodies. Unification could also lead to a loss of specialist knowledge in the sector given that there is no guarantee that existing experts within other public bodies will want to transfer to the human rights ombud.

Moreover, it may sometimes be preferable for an existing public body to carry out the investigation rather than the human rights ombud. The existing body will have developed specialist expertise over time and this could prove critical for a pragmatic and nuanced application of human rights standards in an investigation. This would also help the findings of the investigation be taken seriously in the sector, increasing the chances of good faith compliance. Total unification could also discourage existing public bodies from making use of human rights frameworks, given the risk of a successful legal challenge for acting outside of their jurisdiction.

Moreover, if the new ombud is created, there will inevitably be a need to regulate these relationships. The way that these bodies “interact” will cover a very wide range of activities, including: agreeing to carry out a joint investigation; sharing data and information for the purposes of an investigation; one body agreeing not to investigate while another does; sharing staff for the purposes of an investigation; engaging in joint training events or developing joint training programmes; and drafting joint submissions to a parliamentary committee on the human rights implications of particular measures.

It is impossible to provide a comprehensive answer on how all these interactions could or should be regulated. However, for operational matters one increasingly important way is through Memoranda of Understanding (MoU). There is, for example, an MoU between the PHSO and the Healthcare Safety Investigation Branch (HSIB), setting out how they will cooperate during investigations.[23] These decisions could also be governed by mutually agreed codes of practice, manuals, and guidance. Whatever the method, it is important that these documents are made publicly transparent so far as possible to ensure that interested parties can assess the implications.

Another option would be to enable collaborative working expressly by statute. Collaborative working between the PHSO and LGSCO, for example, is enabled but not required through section 11ZAA of the Parliamentary Commissioners Act 1967 and 33ZA of the Local Government Act 1974. Under these provisions, these organisations have established a “Joint Working Team”.[24] The relevant public bodies would not need to wait and simply react to situations where joint working may be appropriate either. They could proactively plan such joint working through identifying “Common Joint Working Topics”, where they can reasonably anticipate overlaps in jurisdiction.[25]

Further, it is important to underline the research role implicit in these ombud-functions. To determine what human rights best practice is and how public bodies can best be supported to implement it, requires both domestic and international research cooperation with others, including public bodies, universities, think-tanks, and charities.

 

Part III: Thinking beyond a human rights ombud

Are there other steps which should be taken alongside introducing a Human Rights Ombudsperson to ensure people can effectively enforce their rights outside of court?

In Part III, we will focus on three principal matters. These are the need to: (a) take additional steps to improve the quality of initial decisions by public bodies; (b) reform administrative review processes within public bodies; and (c) provide greater public funding for early legal advice. Each of these options will help ensure that subsequent challenges to public decisions, whether by courts, ombuds or anyone else, are less necessary.

On (a), the quality of initial decisions by public bodies is variable. In its final annual report, the Administrative Justice and Tribunals Council (AJTC) challenged the Government and Parliament to recognise the scale of poor decision making and invited the Government to consider carefully the effect of recurrent poor decision-making in some departments.[26] While in recent history there has been a focus on “getting it right first time”,[27] this agenda has stalled as a political priority.

In a report funded by the ESRC, Thomas and Tomlinson (2016) advocate the following options which are worth consideration:

 

On (b), administrative review is now the predominant public law dispute resolution mechanism and its reform should be a priority.[29] Thomas and Tomlinson advocate the following reforms:

 

On (c), in light of the complexity of some applications for public services, such as health-related welfare benefits,[31] and some administrative reviews, public funding should be an option to support early legal advice on making some applications for public services and making representations during some administrative reviews. The government itself has recognised the importance of early legal advice and has initiated the “Early Legal Advice Pilot Scheme”, which funds up to three hours of early legal advice for some civil claims unrelated to litigation, including housing, debt, and welfare benefits.[32]

The Pilot is based on the premise that “early legal advice relating to housing, debt and welfare matters minimises negative housing-related outcomes (e.g. loss of home) and results in measurable downstream savings across government.”[33] This Pilot should be expanded to support early legal advice for individuals across a greater number of complex public service applications and during the process of administrative review.

 

 


[1] https://publiclawproject.org.uk/

[2] ukaji.org 

[3] Varda Bondy and Margaret Doyle, ‘What’s in a name? A discussion paper on ombud terminology’ in Marc Hertogh and Richard Kirkham (eds), Research Handbook on the Ombudsman (Edward Elgar 2018) Chapter 26.

[4] Public Administration and Constitutional Affairs Committee, ‘PHSO Annual Scrutiny 2017-18: Towards a Modern and Effective Ombudsman’. Available at: https://publications.parliament.uk/pa/cm201719/cmselect/cmpubadm/1855/185507.htm (accessed 17 June 2022) para. 42.

[5] ibid, para. 46-48.

[6] See, for example, section 29A-B of the Police Reform Act 2002 and section 234C of the Financial Services and Markets Act 2000.

[7] Council of Europe, Venice Commission, ‘Ombudsman Institutions’. Available at: https://www.venice.coe.int/WebForms/pages/?p=02_Ombudsmen&lang=EN (accessed 17 June 2022).

[8] See, for example, the EHRC’s inquiry into discrimination in the legal aid system: https://www.equalityhumanrights.com/en/our-work/news/discrimination-going-unchallenged-legal-aid-system (accessed 17 June 2022).

[9] On options for ombud reform, see for example: Chris Gill and Richard Kirkham, ‘The future of ombud reform’ (UKAJI, 8 February 2021). Available at https://ukaji.org/2021/02/08/the-future-of-ombud-reform/ (accessed 21 June 2022). On options for reform of Commissioners, see for example: Pamela Cox, Ruth Lamont and Maurice Sunkin, ‘Constitutional powers of the Victims’ Commissioner for England and Wales’ (2020). Available at http://repository.essex.ac.uk/29280/ (accessed 21 June 2022).

[10] The EHRC has set out guidance explaining how ombuds can take a human rights approach to “maladministration”: https://www.equalityhumanrights.com/en/advice-and-guidance-human-rights-multipage-guide/human-rights-based-approach-ombudsman-schemes (accessed 22 June 2022).

[11] R (Rapp) v Parliamentary and Health Service Ombudsman [2018] EWHC 1344 (Admin) at [37].

[12] https://freemovement.org.uk/briefing-the-sorry-state-of-the-uk-asylum-system/

[13] http://www.niassembly.gov.uk/globalassets/documents/ad-hoc-nipso/submissions/30.scottish-ombudsman.pdf

[14] https://www.ombudsman.wales/own-initiative-investigations/

[15] Chris Gill and Richard Kirkham, ‘The future of ombud reform’ (UKAJI, 8 February 2021). Available at https://ukaji.org/2021/02/08/the-future-of-ombud-reform/ (accessed 21 June 2022).

[16] Robert Thomas and Joe Tomlinson, Current issues in administrative justice: Examining administrative review, better initial decisions, and tribunal reform’ (ESRC, November 2016). Available at https://drive.google.com/file/d/0B9hEf7Oxz59QR2toVWEwQkhVcEk/view?resourcekey=0-NnozV3n-31-B5W_ZJ3Re7g (accessed 21 June 2022).

[17] Section 19 of the Public Services Ombudsman (Wales) Act 2019 is a useful illustration.

[18] [2020] EWHC 1695 (Admin).

[19] A comparative provision could be section 30 of the Equality Act 2006, which in effect means that the EHRC does not need to prove that it is a victim for section 7 HRA purposes as the provision grants it the right to institute, or intervene in, proceedings related to its human rights functions.

[20] Julia Laffranque, ‘The Ombudsman in the Eyes of the European Court of Human Rights’ (2020) 29 Juridica International 95-107. Available at https://juridicainternational.eu/article_full.php?uri=2020_29_the_ombudsman_in_the_eyes_of_the_european_court_of_human_rights_ (accessed 16 June 2022).

[21] Robert Thomas, ‘Financial Remedy Recommendations made by the Parliamentary and Health Service Ombudsman’ (UKAJI, 16 November 2021). Available at: https://ukaji.org/2021/11/16/financial-remedy-recommendations-made-by-the-parliamentary-and-health-service-ombudsman/ (accessed 26 May 2022).

[22] All three reasons are drawn from this report but made in a different context: Richard Kirkham, The Parliamentary Ombudsman: Withstanding the Test of Time (Fourth Report, Session 2006-7 (HC 421, March 2007), p.13.

[23] A Memorandum of Understanding Between the Parliamentary and Health Service Ombudsman (PHSO) and the Healthcare Safety Investigation Branch (HSIB) Describing the Framework for Our Working Relationship. Available at: https://hsib-kqcco125-media.s3.amazonaws.com/assets/documents/hsib_mou_phso_uVd8lwX.pdf (accessed 17 June 2022).

[24] https://www.lgo.org.uk/make-a-complaint/fact-sheets/social-care/factsheet-for-nhs-organisations-about-the-joint-working-team (accessed 17 June 2022).

[25] https://www.lgo.org.uk/information-centre/staff-guidance/joint-working-manual?chapter=3# (accessed 17 June 2022).

[26] Administrative Justice and Tribunals Council, Annual Report 2011-12. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243433/9789999120975.pdf (accessed 17 June 2022) p.27.

[27] See, for example, NHS Providers “Getting it Right First Time” Programme, February 2018: https://nhsproviders.org/media/4365/girft-final-pdf.pdf (accessed 17 June 2022).

[28] Robert Thomas and Joe Tomlinson, ‘Current issues in administrative justice: Examining administrative review, better initial decisions, and tribunal reform’ (November 2016, ESRC). Available at: https://drive.google.com/file/d/0B9hEf7Oxz59QR2toVWEwQkhVcEk/view?resourcekey=0-NnozV3n-31-B5W_ZJ3Re7g  (accessed 17 June 2022) pp.8-13.

[29] Robert Thomas and Joe Tomlinson, ‘A Different Tale of Judicial Power: Administrative Review as a Problematic Response to the Judicialisation of Tribunals’ (2019) 3 Public Law 537-562.

[30] Robert Thomas and Joe Tomlinson, ‘Current issues in administrative justice: Examining administrative review, better initial decisions, and tribunal reform’ (November 2016, ESRC). Available at: https://drive.google.com/file/d/0B9hEf7Oxz59QR2toVWEwQkhVcEk/view?resourcekey=0-NnozV3n-31-B5W_ZJ3Re7g (accessed 17 June 2022) pp.16-19.

[31] This was highlighted as an important factor in the Work and Pensions Committee’s oral evidence on health-related benefits in May 2022: https://committees.parliament.uk/oralevidence/10207/pdf/ (accessed 16 June 2022).

[32] https://www.legislation.gov.uk/uksi/2022/397/contents/made

[33] Chris Minnoch, ‘Early Legal Advice Pilot: missing the point? (Legal Action Group, April 2022). Available at: https://www.lag.org.uk/article/212590/early-legal-advice-pilot--missing-the-point- (accessed 17 June 2022).