Written evidence from Margaret Doyle and Nick O’Brien (HRO0009)

We are co-authors of the book Reimagining Administrative Justice: Human rights in small places (Palgrave, 2019). Each of us has written about and/or researched ombuds institutions and contributed chapters to the edited volume Research Handbook on the Ombudsman (Edward Elgar, 2018).

Margaret Doyle is a visiting Research Fellow at the University of Essex School of Law and an independent accredited mediator specialising in equalities and disabilities. She is a member of the Academic Panel of the Administrative Justice Council.

Nick O’Brien is an Honorary Research Fellow at the University of Liverpool School of Law and a judge on the SEND Tribunal and the Mental Health Review tribunal. He was also Legal Director at the Disability Rights Commission in 2000-2007.

All views expressed in this response are our own and do not represent the views of any organisation with which we are affiliated. We have endeavoured to address the first and second questions only: should there be a Human Rights Ombudsperson, and what powers they would need to provide an effective remedy.

Question 1

• 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 out of court?

Across the world ombuds have differing mandates, powers and responsibilities. Whereas in many countries the national ombud is also the national human rights institution (NHRI), in the UK ombuds are separate organisations from the NHRIs.[1]  However, alleged human rights violations already fall within the mandate of the public services ombuds in the UK, even without a specific mandate; ‘human rights work today sits at the centre of any ombudsman’s work as it pertains to all aspects of life’.[2]

We are pleased to see the use of a gender-neutral title for the proposed institution/office-holder.[3] However, we do not agree that a Human Rights Ombudsperson should be established in the UK. Our reasons are:

-          The UK already has an NHRI – the Equality and Human Rights Commission (EHRC), although as currently operating it requires change in order to be effective. As part of a network of accountability bodies, it plays a key role in assisting existing ombuds (as well as regulators and inspectorates) in giving force to human rights through their work.

-          We have national ombuds for each of the devolved nations, in Scotland, Wales, and Northern Ireland. Although we do not have a national ombud for England, we have an ombud for local government and social care in England. All of these are important in giving effect to social rights that come into play in the everyday interactions between public institutions and communities and the individuals within those communities. Devolution has offered opportunities to develop distinct initiatives, approaches and partnerships.[4] There is a risk that establishing a UK-wide ombud for human rights would undermine rather than reinforce these national ombud institutions.

-          We have a proliferation of ombuds in the UK. More consolidation is required, not more individual ombuds. The reforms proposed in the Draft Public Services Ombudsman Bill in 2016 would have brought useful consolidation to the landscape of public services ombuds but appear to have been kicked into the long grass. Establishing a new ombud would contribute to what is already a cluttered and confusing landscape.

-          Existing ombuds in the UK already have an important role in human rights complaints, although this is not explicit in their mandates. Ombuds in the UK have historically kept their distance from human rights, despite their key role in social rights (‘everyday rights’ involving housing, health, social security and welfare, and education, for example). The relegation of social rights to the margins, where they are seen as less powerful (because less ‘justiciable’), suggests that ombuds are already well placed to consider social rights complaints using their non-legalistic powers and techniques.

A policy paper[5] published in September 2016 by the International Ombudsman Institute suggests that ombuds’ role in identifying maladministration clearly includes the responsibility to assess decisions made by public bodies in relation to human rights:

‘…the role of an Ombudsman goes beyond legality and compliance. The Ombudsman is a promoter of human rights and good administration. In considering complaints the Ombudsman needs to be able to ask, was the outcome fair and was the outcome just? Often, Ombudsmen will look to ensure that decision makers used any discretion available to them appropriately. … They will regard any failure to take account of an individual’s human rights as maladministration.’

The European Ombudsman has explained why ombuds have a key role to play in human rights protection. The European Ombudsman does not receive many complaints involving human rights because the European Union institutions she investigates do not exercise the   ‘classic coercive powers of the State’[6]: ‘There are no Union prisons, for example. Nor are the EU institutions and bodies responsible for providing general public services such as education, health and welfare, though they do have certain responsibilities towards their staff in this regard.’ Nonetheless, she points out that complaints she receives do raise ‘a wide range of human rights issues, including age and race discrimination, the principle of presumption of innocence, the rights of children, and the rights to a fair procedure, freedom of speech of EU officials, privacy and health’.

With the human rights manual for complaints handlers produced jointly by the Northern Ireland Human Rights Commission and Northern Ireland Ombudsman[7], public services ombuds in the UK have been exploring ways in which to strengthen their role in human rights protection. The manual ‘undertakes to make human rights principle the stuff of daily engagement so that it can inform the work of ombuds and other complaints-handlers … . [It] draws upon the so-called FREDA principles (Freedom, Respect, Equality, Dignity, and Autonomy) to apply international and domestic human rights instruments to … situations that confront ombuds staff every day.’[8] Practical guidance for ombuds on taking a human rights approach in their work is also set out by the EHRC.[9]

There is still some lack of clarity here about the ombuds’ role in relation to human rights issues. For public services ombuds, it is not always clear to what extent the concept of maladministration allows ombuds to go beyond criticising procedural failures. Many UK ombuds, but particularly the public services ones, have been trying to find a workaround, a solution to the limitations in their powers (where their powers are limited) that will allow them to assess the fairness of decisions and actions of public bodies in terms of equality and human rights. All ombuds, even those without a specific remit to do so, ‘can strive to maximize … rights protection through the mandates and powers that they have been granted, primarily investigations, inspections and the entirety of their operating practices. While classical ombudsmen may be limited in the degree to which they can use international human rights law in their work, they can still rely on domestic law and general fairness provisions’ to protect and uphold equality and human rights.’[10]

The approach taken in the UK has varied.[11] Failure to take account of human rights in procedures or decision-making is likely to be considered maladministration, as demonstrated by case examples of a number of UK ombuds, including in local and central government but also financial services and higher education. An ombud could consider it maladministration if there is evidence of a lack of policies in place for considering equality legislation or unfair procedures under the Human Rights Act 1998. Most also take the view, however, that if large compensation is sought for alleged breach of statutory duty, the courts may be a more appropriate route.

For example, in a 2021 investigation report on a complaint about adult social care, the Local Government and Social Care Ombudsman (LGSCO) made explicit reference to human rights in both its conclusions and its recommendations: ‘Because of the Council’s delay Mr D remained away from his home without the Council establishing and recording a good reason. Mr D had a right under Article 8 to respect for his family life and home, and to enjoy his existing home peacefully. The Council did not consider Mr D’s Article 8 right and whether it was necessary and proportionate for him to be away from his home. This was fault.’ It recommended that the Council give relevant staff training on applying the Human Rights Act 1998 to adult social care cases to ensure that staff are aware when the Articles of the Act might be engaged and what is required of them to ensure individuals’ rights are not unlawfully interfered with. It also recommended that the Council documents any consideration it has to the Human Rights Act 1998 in individual cases.[12]

A Human Rights Ombud’s remit would presumably include both public services/public authorities and private businesses (insofar as they are subject to human rights obligations). Understanding of human rights principles differs between the public and private sectors, and any ombud overseeing both (as the Local Government and Social Care Ombudsman in England does, as private social-care providers are within its jurisdiction) would need to address these disparities in understanding, language, and acceptance of remedies. The average financial remedies awarded by services in consumer and utility sectors are generally low, suggesting that these services, when upholding complaints, are primarily identifying ‘customer service failures ‘rather than failures to comply with human rights principles and legislation.

Dealing with complaints (whether individual or collective) is only one part of the ombud’s role. Arguably more valuable is the influence the ombud has over procedure and practice, policy-making, and decisionmaking within the bodies in its jurisdiction. One aspect in which ombuds (particularly the public-services ombuds) contribute to giving effect to human rights is the production of thematic reports that consider systemic concerns about human rights issues arising in complaints. An example is the 2009 Six Lives report produced jointly by the Health Service Ombudsman and the Local Government Ombudsman, responding to complaints brought by the charity Mencap on behalf of the families of six people with learning disabilities who died in NHS or local authority care between 2003 and 2005.[13] These reports are helpful to potential complainants to illustrate how the ombud approaches particularly issues, and they serve a role in preventing disputes. The Prisons and Probation Ombudsman (PPO), for example, has produced a number of ‘Learning Lessons’ reports, based on investigations of complaints, that explore particular rights-based issues, such as prisoners with dementia and deaths of Travellers and of prisoners with mental health problems. In a systemic report on older prisoners, the PPO emphasised the need to make appropriate adjustments and provide palliative care within prisons. Although these examples are not explicitly identified as human rights issues, other complaints, for example about freedom to practise religion and compliance with religious diets, are identified explicitly as human rights complaints.[14]

Question 2

• 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?

If a Human Rights Ombudsperson were to be established, it is important for it to have:

-          own-initiative powers in order to investigate complaints and systemic issues without having a complaint made to them (the national ombuds of Northern Ireland and Wales are currently the only UK ombud institutions with this power);

-          the ability to deploy a range of inquisitorial, investigative, and deliberative processes including investigation and mediation;

-          the power to require cooperation from bodies in jurisdiction;

-          the power to scrutinise legislation with human rights implications (a power held by the Quebec Ombudsman[15]).

Any shift away from ombud as inquisitorial investigator and authoritative decision-maker has particular ramifications for those seeking redress for human rights complaints. As ombuds adopt informal mechanisms to resolving complaints, for example, and publish fewer decided outcomes, the opportunity to identify systemic issues, and to make recommendations with wider impact beyond the individual complainant, may be lost.[16] Any use of mediation or ‘informal resolution’ approaches would need to be adapted to be appropriate for a human rights context. For example, the confidentiality that prevents any reporting of mediated outcomes by ombuds should be avoided.

Mediation can, however, play an important role in human rights disputes. The British Institute of Human Rights (BIHR), in calling for the mainstreaming of mediation in human rights complaints[17], noted the limited remedies available through the courts:

‘Not all complaints about the acts or omissions of public authorities under the Human Rights Act involve public interest issues, require a legal precedent or concern the establishment of a fundamental right. The Act has raised expectations for the public that are unlikely to be met in the courtroom. For example, a court could decide whether a pupil permanently excluded from school has been denied the right to education. But it cannot negotiate the arrangements that will resolve the dispute.’

Nor can the courts deal effectively with allegations of ill treatment in residential homes. In extreme cases, the courts could decide that such treatment was degrading and in breach of Article 3 of the ECHR and impose the appropriate penalties and remedies, but the courts could not engage with the relevant authority on how such treatment would be avoided in the future. In less extreme cases, where the treatment is clearly degrading by public standards but falls short of the high threshold the courts will use, mediation could play a vital role in negotiating good practice, where the courts would fail to deliver any change.’

The BIHR advocated a rights-based mediation approach in human rights complaints and an ‘enlightened approach’ to encouraging public authorities to reach consensus on issues of human rights. This sits well with the terrain in which ombuds operate.

The ombud should have wide-ranging powers of ‘technique’ in how it investigates complaints, combined with the power and resources to work with other bodies and actors including NGOs and journalists; to investigate collective grievance through own-initiative investigations and super-complaints; and to publish its decisions and thematic reports into systemic failures. It also requires the power and resources to follow up on its recommendations through soft enforcement. Although most ombud recommendations are complied with,[18] the ability of the ombud to make the most of its authority of persuasion and influence is currently limited not by lack of specific powers but by resource constraints.

We do not agree that any Human Rights Ombud should have powers to enforce their decisions. Ombud decisions would not be equivalent to a court’s determinations of a breach of the Human Rights Act, but this is not necessary for effectively giving force to those rights. If such enforcement powers were granted to ombuds, their decisions could then be considered determinations of civil rights, and this could potentially remove many of the advantages of the current ombuds approach: ‘Such a development would almost certainly force the Office to reconsider its working practices. This could mean the increased use of formal hearings and more frequent legal representation. If this were the case, then the whole ethos and rationale of the ombudsman institution would be severely challenged and it is possible that many of the benefits would be lost.’[19]

The idea that the realisation of rights (both individual and collective rights) takes place only via enforcement has been discussed as a ‘pathology of legalism’; an alternative to this legalistic approach is the proposal for a demosprudential ombud.[20] In the UK, there is precedence for a demosprudential approach that combines activism with the invocation of human rights; several examples relating to investigations of maladministration in health and social care demonstrate the value of ombuds adopting human rights language without having the power to make a formal determination of human rights liability or the power to enforce its recommendations. ‘By interpreting bureaucratic failure in human rights terms, the ombud is able to draw out more vividly the human cost and so reflect something of the subjective force that infused the complaint.’[21]

Unanswered questions:

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

Conclusion

For the reasons set out above, we do not agree with the proposal to establish a Human Rights Ombudsperson for the UK.

An alternative approach to providing more effective access to remedy for human rights complaints is to increase the understanding of existing ombuds about their role in giving force to human rights through their investigative work, feedback and oversight. This should be combined with ombuds adopting a demosprudential approach and demosprudential techniques.[22]

In addition, working with the Ombudsman Association and its members, as well as ‘core participants’ such as public authorities, MPs and local government councillors, NGOs and complainant representatives, training and other resources could be developed for staff in ombuds services and in the bodies in jurisdiction as well as for those assisting complainants.[23] Ombuds should be encouraged to highlight human rights aspects in complaints, even when complainants have not specifically referred to human rights. Ombuds should also be encouraged to identify, in recorded statistics, the numbers of such cases they have handled and their outcomes.

There is a parallel role for the ombuds in giving force to rights under the Equality Act 2010. Many of the issues that arise in the proposal to establish a Human Rights Ombudsperson also arose in the inquiry into the proposal to establish a Disability Rights Ombud 12 years ago. The House of Lords Select Committee on the Equality Act 2010 and Disability asked for views on this proposal; the responses were mixed, with some NGOs and advocacy bodies supporting the idea and other commentators, including academics and ombuds, raising concern – for example, ‘it is important to remember there are a whole plethora of public and private ombudsmen—that the landscape is already quite cluttered … The challenge is to make sure that the existing ombudsmen more self-consciously use the powers they already have to embed equality and human rights in what they do.’[24]

The Committee called for strengthening the mandate of ombuds and working closely with ombuds to ensure equality issues are addressed. A similar approach should be taken with regard to human rights.

Margaret Doyle

Nick O’Brien

23/06/2022