Procedural fairness, accountability and the ombudsman

Main Outputs

The Ombudsman, Accountability and the Courts

The ombudsman institution has become one of the main providers of independent redress in the civil and administrative justice system, with a core role of handling complaints about maladministration, poor service or unfair treatment by service providers across large sections of the public and private sector. But, to what extent can we be confident that the ombudsman sector delivers fair and adequate justice? 

In a new report for the Nuffield Foundation, The Ombudsman, Accountability and the Courts, Richard Kirkham explores the accountability and regulatory structure that surrounds the ombudsman sector, with a particular focus on the role of the judiciary. The report finds that the court’s role in scrutinising the ombudsman sector is more impactful than is often understood. But the report also argues that the key to maintaining procedural fairness in the sector lies in extra-judicial accountability processes and legislative reform.

The report’s relevance is not just to those concerned with the ombudsman sector, but also current debates on the role of judicial review. The study provides empirical context for the work of the courts in judicial review, in a period when the role of the courts in judicial review is being reviewed by the Conservative Government and has been subject to much debate. The report will also be of interest to those looking to understand equivalent relationships between the courts and the various watchdogs and regulators that operate in the British constitutional set-up, including other specialised non-judicial dispute resolution mechanisms.

A Manifesto for Ombudsman Reform (with Chris Gill)

A Manifesto for Ombudsman Reform is a collection of essays providing targeted proposals for legislative reform in the ombudsman sector. The Manifesto provides detailed analysis of some of the main issues that will need to be considered in creating a new public service ombudsman (PSO). It argues that the current period offers a once in a generation opportunity to reshape the public service ombud sector in the UK around a coherent vision of administrative justice, one that enables the office to identify systemic maladministration and promote a more strategic oversight of public administration than is currently possible.  

For a full summary of the book see this blog post.

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Resources

Out of this project the author has developed a publicly accessible online database of ombudsman case law through which researchers and the general public can use to assist them in their research on the ombudsman. This database was built with the support of the Nuffield Foundation and is housed by the Ombudsman Association which is available here.

Project Outline

The lead investigator on this project is Richard Kirkham, who has previously been influential in raising awareness of the potential of ombudsman schemes to enhance administrative justice and shifting the policy debate in the direction of reform (see Transforming the role of ombudsmen in the UK).

In support of this ongoing project, Richard Kirkham was awarded a grant from the Nuffield Foundation (2017-21) aimed at understanding the impact of the different means employed to verify the quality of ombudsman determinations and address user concerns.

The objectives of the study are: (1) to map and then (2) analyse the processes in place, leading then to two further objectives, (3) to encourage reform in the sector and (4) to help build capacity for further oversight and research on the ombudsman.

The ongoing objective of the research is to understand and influence the design of ombudsman schemes in the UK.

The quality of justice provided in the ombudsman sector will always be a particular concern of users of the service, and all the more so in the public sector where the legal options for redress are often unrealistic or inaccessible. How do we know whether ombudsman schemes provide quality justice?

This question matters because the ombudsman sector has become a central component of the administrative justice system, with a significant and growing role and expanding remits and powers. This expanded role comes in light of restrictions on the availability of public funding to challenge decisions made by public bodies. As its significance increases, the ombudsman sector requires greater scrutiny to provide assurance of its adherence to appropriate standards of justice. Decision-making in this sector is not ordinarily subject to appeal mechanisms, but both judicial review and internal review are used by parties to challenge the quality of justice provided in decisions. Further assurance is provided in some schemes through the publication of decisions. As yet, no independent study has been conducted into the scrutiny of decision-making standards through challenges both internal and external. This project aims to examine three aspects of such scrutiny: legal challenges, internal review, and transparency in decision-making.

Publications

Reports

R. Kirkham (2021) The Ombudsman Accountability and the Courts University of Sheffield/Nuffield Foundation

R. Kirkham (2021) Annex to The Ombudsman Accountability and the Courts University of Sheffield/Nuffield Foundation.

R. Kirkham and E. O’Loughlin (2020) A study into ombudsman judicial review Online appendix: Evidence of Results. (For the article ‘Judicial Review and the Ombud: A Systematic Analysis’ Public Law [2020] 679) (PDF)

R. Kirkham and J. Martin (2014) The creation of an English Public Services Ombudsman: mapping a way forward (available on the Democratic Audit website, 2014)

R. Thomas, R. Kirkham and J. Martin (2013) External Evaluation of the Local Government Ombudsman. Available on Local Government Ombudsman website.

R. Kirkham (2012) A Review of the Gibraltar Public Services Ombudsman (62 pages) available from the Gibraltar Public Services Ombudsman.

R. Kirkham (2006) The Parliamentary Ombudsman: Withstanding the test of time, in Fourth Report of the Parliamentary Commissioner for Administration, The Parliamentary Ombudsman: Withstanding the test of time, HC 421 (2006-07).

Blog Entries

C. Gill  and  R. Kirkham (2021) The future of ombud reform UKAJI blog, February 8, 2021.

R. Kirkham and C. Gill (2020) A Manifesto for Ombudsman Reform UKAJI blog, April 29, 2020.

N.Creutzfeldt and R. Kirkham (2019) Reform of the administrative justice system: a plea for change and a research agenda UKAJI blog, September 16, 2019.

R. Kirkham (2017) The Proactive Model of the Ombudsman: proposed reform in Wales (available on the Institute of Welsh Affairs blog, 'Click on Wales', 2 March 2017)

R. Kirkham and B Thompson (2017) An initial commentary on the draft public services ombuds bill (available on the UKAJI blog site, December 20 2016)

R. Kirkham, (2016) A reply to Judicial Capture of Political Accountability (available on the website of the Judicial Power Project)

R. Kirkham (2016) JR55: Five activist strategies a judge should avoid (available on the UK Constitutional Law Association website)

R. Kirkham (2016) Eight predictions for 2016: A view into the ombudsman world (available on the blog Thinking About Administrative Justice)

R. Kirkham (2015) More merger than radical reform: The Government’s response to its consultation on a new Public Services Ombudsman’ (available on the blog Ombudsman Association)

R. Kirkham (with Thompson T.) (2015) Judicial Neutering of the Powers of the Ombudsman (available on the UK Constitutional Law Association website)

R. Kirkham (2015) Mapping the new world of accredited ADR schemes (available on the UK Administrative Justice Institute website). 

R. Kirkham (2014) Analysis: Richard Kirkham on the Government’s plans for consumer ADR: Innovation or more of the same (available on the UK Administrative Justice Institute website, 26 November 2014)

R. Kirkham (2014) Lessons in watchdog design from Scotland and Wales (available on the Institute for Welsh Affairs website, 11 October 2014)

R. Kirkham (2014) Another false dawn, or the moment ADR becomes mainstream? U.K. Const. L. Blog (7th May 2014) (available on the UK Constitutional Law website)

R. Kirkham and J. Martin (2014) The creation of an English Public Services Ombudsman: mapping a way forward (available on the Democratic Audit website)

Books

R. Kirkham and C. Gill (Eds.) (2020) A Manifesto for Ombudsman Reform. Palgrave Macmillan. ISBN 9783030406110

M. Hertogh and R. Kirkham (eds) (2018) Research Handbook on the Ombudsman, Edward Elgar.

T. Buck, R. Kirkham & B. Thompson B (2011) The Ombudsman Enterprise and Administrative Justice. Routledge

Articles and Book Chapters

R. Kirkham and E. O’Loughlin, (2020) Judicial Review and Ombuds: A Systematic Analysis Public Law [2020] 679-700. View this article in WRRO.

R. Kirkham, & A. Stuhmcke (2020) The common law theory and practice of the ombudsman/judiciary relationship. Common Law World Review, vol. 49, no. 1, pp. 56-74. View this article.

N Creutzfeldt and R Kirkham, Understanding how and when change occurs in the administrative justice system: the ombudsman/tribunal partnership as a catalyst for reform? Journal of Social Welfare and Family Law 2020, 42(2), 253-273.

R. Kirkham. (2020) Strengthening Procedural Fairness and Transparency Through Legislation. In: Kirkham, R. and Gill, C. (eds.) A Manifesto for Ombudsman Reform. (Palgrave Macmillan, 2020), 127-142.

R. Kirkham and C. Gill. (2020) Five Principles for a New Public Services Ombudsman. In: Kirkham, R. and Gill, C. (eds.) A Manifesto for Ombudsman Reform. (Palgrave Macmillan, 2020), 127-142.

R. Kirkham and C. Gill. (2020) Introduction. In: Kirkham, R. and Gill, C. (eds.) A Manifesto for Ombudsman Reform. (Palgrave Macmillan, 2020), 1-11.

R. Kirkham and E. O’Loughlin, A Content Analysis of Judicial Decision-Making in N. Creutzfeldt, M. Mason and K. McConnachie (eds) Routledge Handbook on Socio-Legal Theory and Method (Routledge, 2019)

R. Kirkham (2018) Judicial review, litigation effects and the ombudsman. Journal of Social Welfare and Family Law, 40:1, 110-125.

R. Kirkham (2017) JR55, judicial strategy and the limits of textual reasoning. Public Law (1), 46-62. View this article in WRRO

M. Hertogh and R. Kirkham (2018). An Agenda for Future Ombudsman Research: Towards a General "Ombuds-Science" in M. Hertogh and R. Kirkham (eds) The Research Handbook on Ombudsman, (Edward Elgar: Cheltenham, 2018), 508-515.

M. Hertogh and R. Kirkham (2018). The Ombudsman and Administrative Justice: from promise to performance in M. Hertogh and R. Kirkham (eds) The Research Handbook on Ombudsman, (Edward Elgar: Cheltenham, 2018), pp 1-15.

R. Kirkham (2016), The consumer ombudsman model and the ADR Directive: Lessons from the UK. In P. Cortes (Ed.), The New Regulatory Framework for Consumer Dispute Resolution. Oxford: Oxford University Press. View this article in WRRO.

R. Kirkham and A. Allt (2016)  Making Sense of the Case Law on the Ombudsman 38 JSWFL 211. View this article in WRRO

R. Kirkham (2016) A 2020 vision for the ombudsman sector. Journal of Social Welfare and Family Law, 38 (1). pp. 103-114. View this article in WRRO

C. Behan & R. Kirkham (2016) Monitoring, Inspection and Complaints Adjudication in Prison: The Limits of Prison Accountability Frameworks. The Howard Journal of Crime and Justice, 55(4), 432-454. View this article in WRRO

R. Kirkham & P. Wells (2014) Evolving Standards in the Ombudsman Sector. Journal of Social Welfare and Family Law(2), 190-207. View this article in WRRO

R. Kirkham & J Martin (2014) Designing an English Public Services Ombudsman. Journal of Social Welfare and Family Law, 36(3), 330-348. View this article in WRRO

R Kirkham (2011) Implementing the Recommendations of the Ombudsman … again. Journal of Social Welfare and Family Law (1), 71-83.

T. Buck, R. Kirkham & B. Thompson (2011) Time for a ‘Leggatt’ style review of the ombudsman system. Public Law, 20-29.

R Kirkham, T. Buck & B. Thompson (2009) Putting the Ombudsman into Constitutional Context. Parliamentary Affairs, 62(4), 600-617.

R Kirkham (2008) Explaining the lack of enforcement power possessed by the ombudsman. Journal of Social Welfare and Family Law (3), 253-263.

R Kirkham (2008) When Putting Things Right Goes Wrong: Enforcing the Recommendations of the Ombudsman. Public Law, 510-530.

R Kirkham (2006) Challenging the authority of the Ombudsman: The Parliamentary Ombudsman’s special report on wartime detainees. Modern Law Review, 792-818.