How the Tories keep our Parliamentary Ombudsman powerless – while telling the rest of the world they back the highest standards

Rob Behrens Parliamentary Ombudsman

A high powered peer review of the Parliamentary Ombudsman has exposed the hypocrisy and double standards of the present UK government towards people having the right to redress from bad and unfair public and NHS treatment.

The report released from an international panel of Ombudsmen , an academic and a UK housing ombudsman concludes with a polite but damning assessment of the failure of the government to keep its word to strengthen the Ombudsman’s powers. Members of the panel included both the Greek and Israeli Ombudsmen and a respected academic, Professor Robert Thomas, Professor of Public Law, University of Manchester.

The UK is a member of the Council of Europe Venice Commission which lays down what are known as the ” Venice Principles” – an international standard to guarantee the independence of the Ombudsman and the human rights of people to have direct access to the Ombudsman to make complaints about their treatment by public services.

The UK then co-sponsored a UN resolution incorporating these standards for the entire world – telling every country that Britain was in the lead on this issue.

But then under successive Tory governments of Boris Johnson, Elizabeth Truss and Rishi Sunak nothing has not only been done but ministers have taken active steps to thwart reform.

The most obvious example is Michael Gove, who used his power in the Cabinet Office, to block any bill-even a draft bill- coming before Parliament to the despair of the Commons Public Administration and Constitutional Affairs Committee (Pacac) which under a Tory MP wanted this to happen.

The situation is remarkably similar to the government’s attitude towards the UN Convention on the elimination of all discrimination against women and girls (CEDAW) which Margaret Thatcher ratified in 1986 and had still not been properly implemented 40 years on . This is now the subject of a review from the convention in Geneva which criticises the UK for not implementing it properly and is demanding answers.

The conclusions of the peer review couldn’t be clearer:

Professor Rob Thomas Pic credit: Administrative Justice Council

“The ‘Venice Principles’ lay down a set of international standards and principles on the protection and promotion of Ombudsman institutions. These have been accepted by the UK, as a member of the Venice Commission of the Council of Europe in 2019. They were also adopted by the UN in a motion co-sponsored by the UK Government in 2020.

” In several respects, PHSO’s legal framework complies with the ‘Venice Principles’, but not in other respects. PHSO’s statutory framework is now out of date and widely seen as being unnecessarily restrictive. PHSO is also out of line with other UK Ombudsman offices, which possess powers that PHSO does not.
“This means that citizens in some parts of the UK do not have the same rights as others. We are aware that reform of the Ombudsman is a long standing and unresolved issue, although it has become an increasingly urgent matter which makes the work of PHSO more difficult. PHSO is doing everything it can reasonably do to make the argument for reform. What is required is action from the UK Government and Parliament. Any reform must maintain PHSO’s direct reporting line into Parliament to preserve its absolute independence from Government.

Andreas Pottakis, Greek Ombudsman and President the International Ombudsman Institute -Europe

The report backs this up with a traffic light (red, amber, green) system of points where it measures the consistency and performance of the Ombudsman with the Venice principles.. Nearly all the red and amber points are caused by the failure of the government to legislate to strengthen the Ombudsman.

The government does not meet the principle that “Any individual or legal person, including NGOs, shall have the right to free, unhindered and free of charge access to the Ombudsman, and to file a complaint.” Instead a complaint has to be filtered by an MP or in the case of the NHS there has to be a “safe space” for administrators to look at the complaint before the Ombudsman can act.

There is no legal provision to protect whistleblowers who contact him. He, unlike his Welsh, Scottish and Northern Ireland Ombudsmen cannot initiate investigations. It is not clear whether he has full powers to force people to respond to him and certainly his recommendations don’t have to be followed by the government if he finds maladministration. There is not proper protection for his position by law and even the recruitment of a successor is limited, so not all people can apply.

Venice Principles give Ombudsman right to recommend changes to the law

The Venice Principles give him the right ” to have the power to present, in public, recommendations to Parliament or the Executive, including to amend legislation or to adopt new legislation” and this is definitely not allowed in England – otherwise he could go further on the case of the 50swomen who lost their pensions for up to six years.

Now you might think the Ombudsman would make a great deal out of this report to press the government to expand his powers or show up ministers for failing to keep their obligations to an international agreement they signed.

But the heading on his website is “World’s first official international ombudsman review finds UK service is robust and good value “. Yes the report does make good points about improvements in the running of the Ombudsman’s |Office but its fundamental objection is given muted coverage – buried down in the copy.

Further down the press release Rob Behrens, the Parliamentary Ombudsman, says: “The peer review rightly says that the UK is out-of-step with other modern Ombudsman services in terms of our statutory framework. Without powers of own initiative, I am hamstrung from investigating many systemic issues that no one is looking at. Legislative reform of the UK Ombudsman service would mean fewer barriers to justice and more opportunities to prevent injustice happening in the future.”

I think a more gutsy Ombudsman would fight his corner better -particularly as this government is on the back foot when it comes to defending decent public services and upholding standards in public life.

A more cynical explanation is that the government don’t want the public to have greater rights to complain as they are fearful of more bad administration and scandals coming to light But they want the rest of the world to think Britain is a beacon of good government in this area -knowing this is a lie.

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Andreas I. Pottakis

15 thoughts on “How the Tories keep our Parliamentary Ombudsman powerless – while telling the rest of the world they back the highest standards

  1. This Conservative Government is so crooked and dishonest it makes me shameful to be British! What chance will the 1950’s ladies have for fairness, retribution and compensation. No fairness whatsoever 😡

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  2. Once again an excellent exposure of the realities of UK institutions set-up to act as independent checks and balances on power failing to do their jobs, and in the most cynical of ways. Over the years I have occasionally resorted to various Ombudsmen on behalf of others and myself. Each time there is a pattern where first they don’t want to accept the complaint and have to be persuaded to do so. That is hardly a good or fair start. Then I find they are quick to accept “evidence” from the authority at fault, even though on the balance of probabilities, it is their word against mine. In two cases, that has been sufficient for them to refuse to accept the case to examine. The most bizarre is when the authority claimed that I should first have exercised a right of appeal to go to a “Social Entitlement Chamber”. The first I had even heard of such a body let alone a right to appeal there was when the Ombudsman ruled that he would not take my case because of my failure to go there. Now my complaint was more about the way the authority made, communicated and imposed decisions arbitrarily. Ironically not much later an independent review commissioned because of the dysfunctional way the authority had been led made very similar findings. I have no doubt that had authority been Labour-run not by Conservatives, it would have been subject to similar measures as taken against Liverpool. Once respect is lost it is very hard to regain it.

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  3. The UK Government wants noone looking behind its ears, so just putting it out there saying they’re the Gold Standard when they are anything but is great to be called-out! Thank you David for another great report.

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  4. The Ombudsman is due to face his annual scrutiny by the Public Administration and Constitutional Affairs Committee (PACAC) at 10.00am on Tuesday 29th November at the House of Commons. The closing date for submissions was 4th November and I confess to have personally made a submission regarding the Ombudsman’s lack of efficiency and effectiveness.

    My attention was drawn to submission number PHSO029 regarding hospital car parking charges for someone who volunteered time at their local hospital. The matter found its way to the Ombudsman and currently seems to be on its fourth review.

    This Ombudsman service is not fit for purpose. Health Service investigations must be placed under one overarching roof and not continue to be spread across the wide array of organisations as it currently is.

    I invite your followers to read the evidence submitted to PACAC. The website “PHSO the true story” will enlighten your followers further.

    Thank you for coming back to this issue David

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  5. “Any reform must maintain PHSO’s direct reporting line into Parliament to preserve its absolute independence from Government.”

    Is this the line that is switched on once a year for the annual PACAC ‘scrutiny’?

    I think this statement fails to take account of the Ombudsman in practice. ‘Absolute independence’ – a high-minded principle similar to that contained in the Stalin Constitution of 1936. Let’s talk about everything except the devastating impact the Ombudsman has on the lives of countless complainants, as widely reported on social media. Just watch Rob Behrens spring to life and own the room at the mere mention of ‘the Venice Principles’. As for a more practical question concerning why, for example, only 35 recommendations of compensation were made in respect of over 7,000 complaints received in 2021/22 (UK Government departments and other public organisations) – it won’t be asked.

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  6. It’s not that the Ombudsman is powerless, it’s that he chooses not to use the limited powers that he already has.

    For example, he only investigates about 5% of Parliamentary complaints, while his predecessor investigated as many as 64%. More information can be found on the PHSOthetruestory website.

    https://phsothetruestory.com/2022/11/18/time-for-the-annual-accountability-farce/

    The MPs who are members of PACAC will be aware that of the 40 or so complaints they submitted on behalf of their constituents last year, only perhaps 2 would have been investigated and perhaps one upheld. No wonder he wants to get rid of the MP filter and operate completely in the shadows.

    The idea that the MP filter is an obstacle to the public is in any case laughable when the complaints process is so complex that it requires a high level of intelligence and skill to have any hope of navigating successfully through all the pitfalls of the process to a conclusion.

    This evidence from an MP’s caseworker submitted to the PACAC scrutiny gives an idea of how poor the service offered to the public and to MPs is.

    https://committees.parliament.uk/writtenevidence/113337/pdf/

    In fact it can be seen from the written evidence to PACAC that the complainants are scathing in their assessment of the PHSO while the public bodies are appreciative.

    The evidence from HMRC states about the PHSO “…when clarity has been sought the PHSO have been quick to respond and reassure”.

    https://committees.parliament.uk/writtenevidence/113378/pdf/

    By contrast MPs and complainants may be kept waiting months for a response if any response is forthcoming at all.

    All in all this peer review is comparable to a modified version of an old adage in which one surgeon congratulates another surgeon on the success of his operation while the patient lies dead on the table.

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  7. The number of NHS complaints fully upheld by the Ombudsman is very small too.

    The NHS received 225,570 written complaints in 2021/22:

    ‘The total number of all reported written complaints in 2021-22 was 225,570.
    This was equivalent to 398.9 complaints per 100,000 head of population.
    The proportion of complaints being fully upheld are 32.8% for primary care and 26.8% for HCHS.’

    https://digital.nhs.uk/data-and-information/publications/statistical/data-on-written-complaints-in-the-nhs/2021-22

    The PHSO received 27,885 NHS complaints in 2021/22. Of these, 63 were fully upheld and 307 partly upheld:

    https://www.ombudsman.org.uk/publications/complaints-parliamentary-and-health-service-ombudsman-2021-22

    If the MP filter is removed for administrative complaints, will this be the PHSO filter that will replace it? And what does partly upheld mean – a delay in telling the complainant there was no case to answer?

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  8. Nicholas Wheatley wrote:

    ‘The MPs who are members of PACAC will be aware that of the 40 or so complaints they submitted on behalf of their constituents last year, only perhaps 2 would have been investigated and perhaps one upheld.’

    Don’t you mean 4 and not forty?

    ‘Annex B – Referrals by MPs to PHSO, 2020-21 

    In total 2,653 complaints were referred to PHSO by MPs during 2020-21. 
    Just under three quarters of MPs (73%/473) referred five or fewer complaints to PHSO during 2020-21 (including MPs who did not refer any complaints to PHSO). Just under a quarter of MPs (22%/144) referred between 6 and 10 complaints. 
    71 MPs did not refer a single complaint.’

    To view Annex B see comment of 20 November here:

    https://phsothetruestory.com/2022/11/18/time-for-the-annual-accountability-farce/

    2021/22 financial Remedy recommendations for parliamentary complaints – 35.

    (That”s one recommendation for every 19 MPst)

    https://www.whatdotheyknow.com/request/889879/response/2118492/attach/3/FOI%2000000286.pdf?cookie_passthrough=1

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  9. I thought I would sum up the total complaints made by all the Committee members which came to about 40. The chances of any one MP having a complaint investigated is so low. It’s like a cut price lottery.

    Amazing stats on NHS complaints. It’s difficult to believe that there were 225,570 written complaints about the NHS or that so many were upheld. Especially when most people’s experience of NHS complaints handling is deny, delay, deflect!

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  10. I hadn’t even heard of ‘Council of Europe Venice Commission’….and the Ombudsman clearly isn’t going to do anything that risks themselves getting kicked off the gravy train….must have wasted many thousands of hours of my life over the years filling in their forms etc.- just a complete waste of time! That in itself is just another form of oppression.

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  11. The NHS stats provide valuable context for the Ombudsman’s tiny uphold rate.

    I now understand your analysis. I mistook the ‘they’ to mean all MPs and not just those on the committee. In fact, the average for committee members is likely to be higher than 4. The Chair received 20 in 2021/22:

    https://www.whatdotheyknow.com/request/mp_referrals_for_the_year_202122#comment-107032

    I think the idea to remove the MP filter only became a burning issue after the embarrassing MP referral figures became publicly available when obtained through FOI.

    Here is the initial PHSO response to a request made for the 2016/17 MP referral figures:

    ‘I can confirm the Parliamentary and Health Service Ombudsman does hold the information you have requested, however it is exempt from disclosure under sections 40(2) and 44(1)(a) of the Freedom of Information Act 2000.

    I am aware, that we have in the past released data for previous years, this was because we considered that complainants and details of individuals complaints could not be identified from the information.’

    https://www.whatdotheyknow.com/request/mp_referrals_for_the_year_201617?utm_campaign=alaveteli-experiments-87&utm_content=sidebar_similar_requests&utm_medium=link&utm_source=whatdotheyknow

    I don’t think MPs want us to know that the Ombudsman recommends compensation only once for every 19 MPs.

    The average size of electorate in a constituency in England is 73,000:

    https://www.parliament.uk/about/how/elections-and-voting/constituencies/

    18.6 X 73,000 = 1,358,000 = 1 compensation recommendation

    (and 71 MPs didn’t refer a single complaint in 2021/22!)

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  12. Scottish Legal News:

    ‘The ombudsman [Legal] has the second-worst record of all ombudsman services on the reviews website TrustPilot. Of its 185 reviews it has 178 with one star. It is only bested in being the worst service by the Parliamentary and Health Service Ombudsman.’

    https://www.scottishlegal.com/articles/england-legal-ombudsman-rubbished-by-public-as-wait-times-reach-two-years

    The Legal Ombudsman has had some more reviews added to the figure of 185 (all bad), but the PHSO is still in the lead by a country mile:

    https://uk.trustpilot.com/review/www.ombudsman.org.uk

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  13. PACAC Scrutiny 29/11/22

    Things turned rough when Lloyd Russell-Moyle challenged Rob Behrens on the Venice Principles (10:31):

    https://parliamentlive.tv/event/index/47759858-a10e-4bca-9e73-2d5edacbab99

    Referring to the sixth Principle:

    ‘6. The Ombudsman shall be elected or appointed according to procedures strengthening to the highest possible extent the authority, impartiality, independence and legitimacy of the Institution.

    The Ombudsman shall preferably be elected by Parliament by an appropriate qualified majority.’

    https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)005-e

    he asked: ‘Are you elected by two-thirds of Parliament?, adding that many things violate the Venice Principles.

    Immediately shouts of ‘Order! Order!’ could be heard. Another member was immediately hooked-in to ask a question and a blood-bath was averted.

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  14. Pingback: Parliamentary Ombudsman’s plea to MPs to summon the DWP and the Environment Agency for failing to compensate people | Westminster Confidential

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