Paul Davis to Ann Abraham (PHSO), 29th September 2008
Open letter to Ann Abraham, the Parliamentary and Health Service Ombudsman (29 September 2008)
From Paul Davies of Local Government Ombudsman Watch. His letter is a response to
'Good administration: why we need it more than ever,' Ann Abraham's Constitution Unit Public Seminar and Lecture on 17th June 2008.
Dear Ann,
I hope you won't mind my taking the cue from your advocacy of humane professionalism by addressing you in this familiar fashion. As you rightly say, "The tendency of all bureaucracy is ... towards dehumanisation, towards the mindless routinisation of tasks, so that their original purpose becomes obscure even to those who are charged with performing them." This quotation is taken from your recent speech given on 17th June 2008 to the Constitution Unit Public Seminar and Lecture.
There is no-one in the ranks of LGOWatch (an online forum devoted to critical scrutiny of the operations of the UK Ombudsmen) who would raise a question over the title of your lecture: "Good administration: why we need it more than ever." But there are many who would take issue with the approach to good administration advocated by you in this speech. You say the current practice of cataloguing and castigating bad practice is unsatisfactory: "the unfortunate and unintended side effect is to encourage a climate of evasion and defensiveness that in the long run is counter productive." But hasn't it always been the predictable reaction of delinquent and maladministrating officials to respond in such a way? The side effect you refer to may be unintended, but it is certainly not unanticipated, and should not surprise anyone (least of all such a knowledgeable and effective critic of maladministration as yourself) who has for any length of time been in the business of trying to uphold decent standards in public life.
Be that as it may, the preferred alternative approach suggested by you is "to turn the whole thing on its head and issue a summons to virtue, instead." It is puzzling to hear a Parliamentary Ombudsman who has so signally served the public interest by identifying official wrongdoing with such precision taking the view that maladministration is better tackled by exhortation than by homing in on the specific variations of bad practice that Crossman and others were at such pains to catalogue - such things as bias, neglect, inattention, delay, incompetence, ineptitude, perversity, arbitrariness and turpitude. Turpitude, admittedly, is a bit of a comical relic smelling of sulphur, but there is nothing comical about the other variants, which are chronic and serious impediments in the way of justice, as are broader perceptions of systemic dysfunctionality, bad legislation, administrative muddle and institutional fraud.
To elevate principles of good administration at the expense of relegating the lexicon of bad administration to the book stack is a luxury only to be afforded by those who have the standing and authority to access and implement effective remedy in the real world. You yourself, as Parliamentary Ombudsman, are in the fortunate position of having such authority; complainants are not. For all the rhetoric about openness and accountability, members of the public who complain of specific instances of local government maladministration are almost invariably ignored, marginalized and patronised by those in authority. Their very doggedness in drawing attention to important issues of public interest only serves to confirm their peripheral status; they are stigmatised as "unreasonably persistent complainants." It is not so much that the system is "in denial" - it refuses to accept that anything has been affirmed. By simply refusing to make eye contact with individual cases officialdom is able to persuade itself that public disaffection with the system is not as serious nor as widespread as it really is. Yet those in authority, such as the Justice minister Michael Wills, find themselves having to admit that in general terms there is a serious problem; that people are becoming disengaged from the democratic process. This is the often mentioned problem of the democratic deficit.
You express it very well when you say that ordinary people wonder whether they really count as individuals or are simply ciphers in some virtual reality game run from the basements of Whitehall. Members of LGOWatch would say that nowhere is the dehumanising tendency of the administrative state more evident than in the operations of the UK Ombudsman's office, which appears to have as its priority not the delivery of justice to individual complainants, nor the extirpation of maladministration from public life, but technocratic control - technocratic control, moreover, in the baleful sense of the management of complaints for the benefit of interests other than the public interest.
To develop and refine the analogy a little further, it would appear that professional people in government departments, quangos, regulatory bodies and associated charities - are themselves in a "virtual reality" situation every bit as much as the considerable number of ordinary people who feel that the system is letting them down - the hungry sheep (to use another metaphor) who look up and are not fed. Those who make careers out of serving the system are predisposed to take, if not the most flattering, then the least uncomplimentary view of it, in which the benefit of any doubt is given to those who would justify the administrative status quo rather than to those who by virtue of challenging it make it abundantly clear that they have no official standing whatsoever. Cogent and intelligent though such individuals may be, by criticising the system they acquire the status of intellectual renegades; the system is deaf what they have to say. As far as the system is concerned they become, in Orwellian terms, unpersons.
Nowhere is the unwarranted complacency of officialdom more evident than in a body to which you refer, the Law Commission, which recently published a consultation paper (no. 167) "Administrative Redress: Public Bodies and the Citizen." In section 3.62 of that paper it is stated that: "In dealing with complaints of maladministration the ombudsmen play a vital role in promoting good governance. In addition to resolving the individual complaint at hand, an ombudsman's report may illuminate systemic failings that caused the incidence of maladministration. In this way the ombudsman can provide valuable diagnostic and feedback functions which can lead to an improvement in service delivery." This is not how it is in the real world, where, far from invariably promoting good governance, the Local Government Ombudsman is on occasion spectacularly capable of promoting bad governance and rewarding maladministration and powerful vested interest.
In such circumstances ordinary citizens, denied the opportunity of further remonstration with an Ombudsman who declares himself "functus officio", and seeking to lay such matters before the Committee on Standards in Public Life, are met with the response that the discussion of individual cases is not within its remit. Is it surprising that the concerned citizen forms the impression that various arms of the bureaucracy (not to mention the press, the media and academia) are acting collectively and collusively to brush what would otherwise be recognised as substantial scandals under the carpet and keep them there? On the basis of fifteen years' experience of dealing with a recalcitrant Ombudsman system, and the recalcitrant officialdom with which it is associated, I would put it to you that the official perception of administrative redress in the context of public bodies and the citizen is way out of line with that of the ordinary people whose needs you very rightly seek to prioritise. I have referred indirectly to one particular bad case, but you have only to look at online discussion forums such as the Green Forum to see that there are dozens of articulate and public spirited individuals whose experiences with local authorities and the LGO have been entirely negative - and entirely at odds with the upbeat views expressed in the Law Commission's discussion paper.
For all these reasons I would respectfully suggest that the "summons to virtue" advocated by you - laudable though it is - is not going to do much, in itself, to remedy the current civic ills. If persuasive rhetoric on its own was capable of remedying the situation, it would have been long since remedied, given the large number of organisations currently in the rhetoric business. As you rightly say, "good administration is where empty rhetoric becomes hard reality." The immediate priority is, surely, to take robust action to correct the bad administration in which the UK seems to be awash. It goes without saying that where the Local Government Ombudsman makes a robust decision that secures justice for a complainant, and is clearly in the public interest, rogue Councils should not be allowed to flout that decision - as has recently occurred. I take the liberty of making this point to emphasise that complainants are not opposed to the office of LGO per se, but only when it consistently fails to reach those standards of effectiveness, serviceability and humane professionalism which you rightly insist upon in your speech.
I hope you will be able to give some consideration to the matters I have raised, and would be grateful if in the meantime you would be good enough to acknowledge receipt of this letter.
Yours sincerely,
Paul Davies