The Managerial Ombudsman
| DOI | http://doi.org/10.1111/1468-2230.12523 |
| Published date | 01 July 2020 |
| Author | Chris Gill,Tom Mullen,Nial Vivian |
| Date | 01 July 2020 |
bs_bs_banner
Modern Law Review
DOI: 10.1111/1468-2230.12523
The Managerial Ombudsman
Chris Gill, Tom Mullen and Nial Vivian∗
This article identifies a major development in the role and practice of the ombudsman. It
argues that the New Public Management practices that have transformed public administration
in the last 30 years have led to a more managerial approach to the ombudsman’s work. The
article’s argument is developed through analysis of an empirical case study of the Scottish
Public Services Ombudsman, which illustrates how the aims and techniques of managerialism
have been deployed in the ombudsman context. The article evaluates the significance of these
developments for the ombudsman institution and for the wider justice system. It examines
the risks and opportunities inherent in this turn to manager ialism and whether it represents a
departure from the ombudsman’s mission or a necessary adaptation to a changed world of public
administration. In identifying the rise of the ‘managerial ombudsman’, the article provides a
new framework for conceptualising developments in the modern ombudsman institution.
INTRODUCTION
Ombudsman offices are independent bodies that investigate complaints from
citizens about government administration and provide additional remedies to
those traditionally available in courts. Having been developed in Scandinavia in
the 19th century, the ombudsman institution began to spread around with the
world in the mid-20th century and is now a feature of citizens’ redress in most
jurisdictions. The first UK ombudsman was created in 1967 and was intended
primarily as an aid to parliamentar ians in their traditional role of redressing
their constituents’ grievances. This function was reflected in the ombudsman’s
modus operandi, which focused on formal complaint investigations, reporting
outcomes to parliament and making non-binding recommendations designed
to have political rather than legal effects. This approach, described as the ‘officer
of Parliament’ model,1began to come under pressure, as volumes of complaints
increased and as new ombudsman offices were set up, in areas like health and lo-
cal government, without a distinct parliamentary link. Increasingly, having been
first thought of as an elite remedy, a ‘cutting edge’ for the prime benefit of MPs,2
∗Chris Gill is Lecturer in Law,University of Glasgow; TomMullen is Professor of Law, University of
Glasgow and Nial Vivianis an independent researcher.The author s wouldlike to thank Carol Harlow,
Christopher Hodges, Nick O’Brien, Gavin McBurnie and Br ian Thompson for their comments on
an earlier draft of this article.
1 C. Harlow, ‘Ombudsmen: hunting lions or swatting flies’ in M. Hertogh and R. Kirkham,
Research Handbook in the Ombudsman (Cheltenham: Edward Elgar, 2018). The references to
small claims court and inspector general approaches below are also discussed by Harlow.
2 G. Drewry and C.Harlow, ‘A ‘cutting edge’? The Parliamentary Commissioner and MPs’ (1990)
53 Modern Law Review 6.
C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited. (2020) 83(4) MLR 797–830
The Managerial Ombudsman
UK ombudsman offices adopted a role more akin to a small claims court, pro-
viding mass redress of public service complaints. Despite the focus of ombuds-
man statutes remaining on formal investigations and reports, ombudsman offices
responded to their growing workloadsby using less for mal methods and seeking
increasingly to resolve complaints without formal reporting to parliament. At
the same time – despite not having a clear statutory remit to do so – UK om-
budsman offices have moved towards the so-called ‘inspector general’ model,
through the investigation of groups of ‘big cases’ and the issuing of good practice
guidance seeking to achieve a broader systemic impact on public administra-
tion. The results of these developments have been something of a hotchpotch,
with a lack of clarity over what function the UK’s ombudsman offices are and
should be, fulfilling, and the means they should employ for doing so.
It is in this context that this article argues that, in the last 30 years, a
distinctive model of ombudsman practice has developed. Recalling Resnik’s
identification of the ‘managerial judge’,3the article argues that an important
ombudsman model in the UK is now that of the ‘managerial ombudsman’.4
Indeed, the article contends that understanding the current approach to the
ombudsman institution in the UK as a response to – and a part of – the
post-1990s managerialisation of public services provides a fresh and insightful
means of conceptualising the modern ombudsman institution. An outline of
the managerial ombudsman may be briefly stated. It involves, first, the adoption
of managerialist language to describe the role of the ombudsman and its rela-
tionship to public administration. Second, it recasts the aims of the ombudsman
as being to provide satisfaction to ‘consumers’ of public services and emphasises
its role in supporting public managers to improve services. Third, it internalises
techniques of modern managerialism in its own organisation, for example,
using Key Performance Indicators, targets, customer satisfaction surveys, and
other approaches emphasising efficiency in providing an ombudsman ‘service’.
Fourth, it is influenced by complaint handling in the private sector, including
an emphasis on ‘informal resolution’, rather than the traditional approach of
conducting public accountability investigations.5Lastly, the major emphasis of
the managerial ombudsman rests on the idea of learning from complaints, with
this agenda seen as a way of carving out a legitimate ‘domain’6for ombudsman
offices within a reformed public administration.
The article advances its argument in two ways. The next part provides the-
oretical context and aims to demonstrate the influence of consumerist and
managerial agendas in the development of the UK’s complaint handling and
ombudsman systems. The following part then describes a small-scale empirical
case study, which illustrates how the managerial ombudsman model is currently
3 J. Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374.
4 This ar ticle is concerned with the ombudsman institution in the UK. At the same time, the
argument is likely to be of interest in other jurisdictions where there have been large-scale
managerial reforms of public administration and where managerialism becomes a more important
feature in the design and operation of justice systems.
5 J. Gulland, ‘Taking complaints seriously: the role of informality in complaints about public
services’ (2011) 10 Social Policy and Society 4.
6 S. Gilad, ‘Exchange without capture: The UK financial ombudsman service’s struggle for ac-
cepted domain’ (2008) 86 Public Administration 4.
798 C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited.
(2020) 83(4) MLR 797–830
Chris Gill et al.
being developed in the UK. The case study considers developments in the role
of the Scottish Public Services Ombudsman. Briefly, this involves an enhanced
role in setting and monitoring standards for complaint handling, simplifying
complaint procedures, and supporting the development of good practice in
complaint handling. The article argues that this represents a significant exten-
sion to the managerial ombudsman model, particularly in relation, first, to the
way that the ombudsman’s mission has shifted further towards a managerial
concern with organisational learning, and second, the novel methodologies
(such as performance indicators, benchmarking and consultancy) which have
been developed to support the ombudsman’s expanded mission. This case study,
it will be argued, is significant in the UK given the development of similar ap-
proaches in the devolved jurisdictions of Wales and Northern Ireland. It is also
significant internationally, because it allows for the identification of a distinct
model of ombudsman practice and novel methodologies. Drawing on docu-
mentary analysis and qualitative interviews, the case study provides insights into
the development, risks and opportunities of the managerial ombudsman model.
The article is not restricted to conceptualising the development of the ‘man-
agerial ombudsman’, but also provides a critical evaluation, which is both
philosophical and practical. The philosophical discussion draws on critiques of
consumerism and private sector practice in public services and raises questions
about the appropriateness of the ombudsman’s co-option of managerial values
and techniques. Is the managerial ombudsman a reductive and debased version
of the ombudsman’s original mission? Or does it represent a pragmatic and
powerful adaptation to a changed world of public administration? The prac-
tical critique relates to the pitfalls of adopting managerialist language, goals
and methodologies. Can ombudsman offices ‘satisfy’ consumers of public ser-
vices in the way their private sector counterparts might? And can ombudsman
offices really deliver on the potential for complaints to lead to better public
services? The particular focus of the article, here, is on the opportunities and
challenges of the growing emphasis on learning from complaints. The article
argues that the opportunity of this learning agenda is to provide an escape from
the traditional tension haunting the ombudsman’s role, between retrospective
accountability and prospective regulation.7The main risks involve the danger
of the ombudsman becoming too proactively drawn into public service im-
provement and the well-known challenges that stand in the way of learning in
public services.8
The article ends by reflecting on the significance of the case study and
the managerial ombudsman approach. Globally, the major story of the om-
budsman’s development has been a growing emphasis on human rights, good
governance and the rule of law,9which stands quite apart from the managerial
focus the article identifies in the UK. Here, the article explores whether the
7 G. Smith, ‘Citizen oversightof independent police ser vices: Bifurcatedaccountability, regulation
creep, and lesson learning’ (2009) 3 Regulation & Governance 4.
8 C. Gill, ‘What can government learn from the ombudsman?’ in Hertogh and Kirkham (eds), n
1above.
9L.Reif,The Ombudsman, Good Governance, and the International Human Rights System (Leiden:
Martinus Nijhoff Publishers, 2004).
C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited.
(2020) 83(4) MLR 797–830 799
To continue reading
Request your trial