Richard Burton
The Humpty Dumpty
world of a Scottish
ombudsman

 The Scottish Review  

Consider the following scenario which may at first appear a fantasy but which, as will be revealed, is disturbingly close to what happens as part of Scottish administrative 'justice'.

The judge settled in his throne in the otherwise empty courtroom. The plaintiff, Alice, entered alone, awed that the judge so high above her had been appointed by the Red Queen herself. She presented her case and was dismissed to wait outside as the law required. The accused then entered, accompanied by his counsel, alleged accomplices and witnesses. The judge then summed up the plaintiff’s case as best he could. The accused responded with the help of his retinue, reassured by the plaintiff’s absence and the certainty that his words would not be on record. The judge deliberated on what he had heard and gave his verdict. He was happy that there could be no appeal except on the grounds of procedure, and he knew that to have been exactly as Parliament had decreed.

There would surely be a public outcry and media splash if this were a Scottish court and if Alice's case were sufficiently titillating. But what about investigations by the Scottish Public Services Ombudsman (SPSO), for which there are important parallels? The media are generally not interested, but I wrote about our ombudsman, Jim Martin, in SR last year (13 March). He represents the pinnacle of administrative justice in that he and his staff investigate complaints from individual members of the public against a variety of public service bodies. These 'bodies under jurisdiction' (BUJs or 'budgies') include local authorities, health boards, housing associations, the prison service, colleges and universities and the police complaints commissioner for Scotland.

A report by an independent body in 2012, commissioned by the ombudsman and based on complainant comments, included the following grumble, amongst others:

Being unable to access information supplied by the complained about organisation, was also an issue for some. This has left these people with the suspicion that the ruling on their complaint has been based on incomplete or inaccurate information.

The SPSO is still refusing to allow complainants to see correspondence between his office and the budgies that are complained about. However, experience tells us that SPSO investigators too often record evidence incorrectly, that budgies can be lyrebirds and that indisputable evidence can count for nothing. For the sake of justice all proceedings ought to be open to scrutiny, but ombudsman investigators do not agree, taking the following line in the Ombudsman Act of 2002 as justification:

  1. An investigation under section 2 must be conducted in private.

What does 'in private' mean here? 'The question is,' said Alice, 'whether you can make words mean different things'. However, in a looking-glass land of Humpty-Dumpty reasoning, there is no point in wondering whether the SPSO's interpretation of 'in private' was intended by Parliament, because the act permits the ombudsman to act on whim:

  1. In other respects the procedure for conducting the investigation is to be such as the Ombudsman thinks fit.

SPSO investigators have given other reasons for keeping the correspondence between themselves and BUJs under wraps, but I shall not try to explain these, for even the Rev Dodgson might have had trouble with the logic. Besides, having written the above I have just seen a completely different 'explanation', namely one given by Jim Martin himself. This was as a written response to a question put to him by a parliamentary committee on behalf of a member of the public. The latter committee, the local government and regeneration committee, has the task of quizzing him on his annual reports.

Question – Why is the SPSO reluctant to reveal to complainants the correspondence between investigators and BUJs?

Response – When we receive a request for information, it is our current practice to release everything we can that has not already been shared with the complainant as part of the investigation process. Sometimes, we hold information which we cannot release.

At first glance this may look like an answer, but there is no hint as to what kind of information cannot be released. I have no idea. Moreover, there is no clue to what it might be in a relevant document written by Jim Martin together with Richard Thomas and Richard Kirkham ('External Evaluation of the Local Government Ombudsman in England', April 2013). This includes the following statement that it is hard to dispute:

Informing both parties to an ombudsman investigation of the respective arguments ensures that both sides have had the opportunity to understand the viewpoint of the other. More importantly, this measure allows parties to rebut the arguments of the other side.

Just as words can mean different things, it is accepted wisdom that you can make statistics do so too. As an example, consider the results of a survey commissioned by the SPSO in 2010 and carried out using questionnaires. According to the results, 40% of respondents were dissatisfied with the SPSO's handling of their complaints and 50% were satisfied.

Some people see a 40% dissatisfaction rate as appalling, but Jim Martin emphasised the 50% (the glass half-full) and expressed contentment with these statistics to the local government and regeneration committee. This he did on the basis that they were comparable with those obtained for other ombudsmen. Maybe so, but this was before the dreadful performance of the English Local Government Ombudsman was revealed. Let us look, therefore, at satisfaction rates from other countries.

In the Australian and New Zealand Ombudsman Association there are six ombudsman offices which conduct consumer satisfaction surveys at frequent intervals. Recent results from these indicate that, on average, customer satisfaction with the overall handling of their disputes is around 86%. The satisfaction rate is even higher for the Gibraltar ombudsman. For him the last two surveys indicated satisfaction rates of 95-100%. The SPSO needs to pull his socks up.

In my earlier article I argued that the Scottish Parliament should, and legally could, institute external checks on the adequacy, effectiveness and justice of the SPSO's investigations. However, there is no indication that this is about to happen soon. Let us hope that a 'Hillsborough' or 'Mid-Staffordshire' is not needed to precipitate reform.

'It's too ridiculous!' cried Alice, getting quite out of patience.

Richard Burton is secretary of Accountability Scotland and is a physiologist who has widened his interest to include the pathology of public bodies