The ‘Ombuds Watchers’
| Author | Chris Gill,Naomi Creutzfeldt |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/0964663917721313 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2018, Vol. 27(3) 367–388
The ‘Ombuds Watchers’:
ª The Author(s) 2017
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Collective Dissent and Legal sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663917721313
Protest Among Users of
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Public Services Ombuds
Chris Gill
University of Glasgow, UK
Naomi Creutzfeldt
University of Westminster, UK
Abstract
This article examines the phenomenon of the ‘ombuds watchers’. These are groups of
dissatisfied users of public service ombuds schemes who engage in legal protest against
the current system of redress for citizen-state complaints. Through the lens of legal
consciousness scholarship we propose a framework that conceptualizes the collectivized
protest of the ombuds watchers. Based on an empirical dataset, our analysis shows that
the ombuds watchers meet each of the defining characteristics of dissenting collectivism
and demonstrates the existence of forms of legal consciousness which present
‘opportunities to build alternative imaginaries and institutions’. Our case study provides
an insight into the potential for dissenting collectives to challenge the hegemonic
structures of state law, while at the same time emphasising the continuing power of legal
ideology in shaping popular understandings of justice. The article also suggests a pathway
for future empirical research into user experiences of justice systems.
Keywords
Collective dissent, legal consciousness, legal protest, user experiences of justice systems
Corresponding author:
Chris Gill, Room 532, Stair Building, 5-9 The Square, University of Glasgow, Glasgow G12 8QQ.
Email: chris.gill@glasgow.ac.uk
368
Social & Legal Studies 27(3)
Introduction
This article contributes to legal consciousness scholarship by developing and applying
an integrated legal consciousness framework to the activities of groups of dissatisfied
users of public service ombuds, whom we call ‘ombuds watchers’.1 These groups cam-
paign to reform the UK’s ombuds system and are part of an emerging phenomenon
which has been called ‘legal protest’ (Hertogh, 2011). The ombuds watcher phenomenon
is particularly interesting for legal consciousness researchers, because it provides an
example of ‘dissenting collectivism’ (Halliday and Morgan, 2013), a recently identified
extension to Ewick and Silbey’s (1998) classic ‘before the law’, ‘with the law’, and
‘against the law’ legal consciousness schema. Here, dissent from legal systems involves
not only individual disaffection but the collectivization of dissent and the undertaking of
group protests. Previous legal consciousness scholarship has examined these kind of
protests in the context of environmental activism (Fritzvold, 2009; Halliday and Morgan,
2013) and family and criminal justice (Hertogh, 2011). For the first time, this article
explores collective protests in relation to ombuds.
The article argues that legal consciousness provides an appropriate theoretical lens for
studying user experiences of ombuds processes and a useful framework for understand-
ing the ways in which people make sense of experiences, construct ideas about justice,
and make decisions about what action to take in response to dissatisfaction. While
procedural justice theory (Lind and Tyler, 1988) is the dominant paradigm within which
user experiences of dispute processes have been studied, this article argues that legal
consciousness perspectives offer complementary avenues for research by adopting a
holistic emphasis on the strategies, resources, and schemas which people draw on to
make sense of their experiences of the justice system.2 While the application of legal
consciousness to an informal system of justice, such as ombuds, may be controversial,
this is justified as a result of the semi-legal character of ombuds (as statutory, state-
provided means of redress against government) and of the pluralistic emphasis in legal
consciousness literature on constructions of law and justice outwith the context of formal
state law (Hertogh, 2004).
In addition, as will be demonstrated in the article’s analysis of the ombuds watchers,
citizens’ ideas about ombuds are influenced in part by legal ideologies, so that legal
consciousness provides an important framework for understanding user experiences in
this context. This approach is also particularly relevant to an investigation of the ombuds
watchers, since it places emphasis on understanding what people do in response to
disillusionment with law and the strategies of mobilization and protest they adopt as a
result (Hertogh, 2011). The ombuds watcher phenomenon, therefore, provides a unique
opportunity to study groups of citizens who have progressed from mobilization through
to protest in the course of making complaints and to contribute to the legal consciousness
scholarship’s interest in the way ordinary people ‘ . . . engage, avoid, or resist the law and
legal meanings’ (Ewick and Silbey, 1998: 35).
Our focus, then, is on understanding the experiences of ordinary people who have
used ombuds, become dissatisfied, and proceeded to form groups engaged in cam-
paigning activities. Here, we follow existing legal consciousness scholarship in seek-
ing to understand the way certain groups understand legal institutions, rather than in
Gill and Creutzfeldt
369
providing normative evaluations of these understandings. The purpose of legal con-
sciousness scholarship is not to determine whether ordinary people’s understandings of
law are objectively ‘correct’ but to explore how people feel about, think about, and use,
legal ideas. The article will not sit in judgment and assess whether the ombuds watch-
ers’ various criticisms of the UK’s ombuds system are valid. Instead, the article will
limit itself to exploring the role of legal consciousness in relation to the ombuds
watchers’ activism and to understand how they see the world. This ‘bottom-up’
approach, concerned only with understanding how lay people perceive the law and
legal institutions, fits squarely within the legal consciousness tradition. Fritzvold
(2009), for example, does not evaluate whether environmental activists are justified
in protesting and Hertogh (2011) does not provide a normative commentary on the
protests he examines in the context of family and criminal justice. In a similar vein, this
article is limited to exploring how the ombuds watchers make sense of their interac-
tions with the ombuds system.
However, in adopting this bottom-up perspective, we do not dismiss the value of
exploring the policy implications that arise from any divergence between what the
watchers subjectively expect from ombuds and what the ombuds system is objectively
designed to provide. Especially when considered in light of other data suggesting high
levels of user dissatisfaction with public services ombuds (Creutzfeldt, 2015), the
ombuds watchers’ protests may well highlight important gaps between expectation and
reality in terms of citizens’ experiences of using ombuds. Such dissatisfaction is impor-
tant to assess in terms of what it means for justice policy, particularly in the context of a
broader justice system in which greater emphasis is being placed on informal processes
(Ministry of Justice, 2016). The tension between what citizens may want in terms of
redress and the mechanisms which are available to them has previously been the subject
of critical academic commentary, with the system for citizens’ redress assessed as failing
to meet citizens’ needs (Dunleavy et al., 2010). While the ombuds watchers’ protests
may well provide a novel and helpful insight into matters of redress design (Le Sueur,
2012), the focus of the present article is limited to the theoretical conceptualization of the
ombuds watchers’ protests in terms of legal consciousness scholarship.3
The article has three ambitions. The first is to analyze existing legal consciousness
literature with a view to synthesizing key elements and setting out an integrated frame-
work for use in empirical scholarship. The second involves providing an empirical
analysis of the ombuds watchers’ campaigns, which is framed as a case study of the
legal consciousness schema described by Halliday and Morgan (2013) as ‘dissenting
collectivism’. The article’s third ambition is to draw attention to the phenomenon of
‘legal protest’ (Hertogh, 2011), whereby aspects of the justice system become subject to
public campaigning. Hertogh (ibid.: 31) has called for attention to be paid to the ‘anon-
ymous people’ who have ‘lost confidence in the law’ and to ‘consider critics of the
justice system as real persons with genuine concerns about the administration of justice’.
The present article is a response to this call.
The article is in five parts. Part I contextualizes the UK’s ombuds system and the
ombuds watchers’ campaigns. Part II analyses the legal consciousness literature. Part III
applies legal consciousness approaches to the study of ombuds. Part IV describes the
methodology. Part V presents the empirical analysis.
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Social & Legal Studies 27(3)
Part I: UK Ombuds and Ombuds Watchers
Ombuds in the United Kingdom
Ombuds deal with complaints from citizens about the provision of public services (Buck
et al., 2011; Seneviratne, 2002). One of the aims of an ombuds is to even out the power
imbalance between the individual and the state by providing an avenue for redress. This
aim is reflected in the way ombuds have developed around the world, although there is
diversity in how ombuds have evolved in different jurisdictions (Reif, 2004). In the
United...
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