Memorandum by Ann Abraham, Parliamentary
and Health Service Ombudsman (GBI 07)
INTRODUCTION
1. This note is my response to the Public
Administration Select Committee's issues and questions paper on
the use of investigatory inquiries by Government.
2. I have not attempted to respond to every
question posed in the Committee's paper, as many of them deal
with matters on which I do not feel it would be appropriate to
comment. I have instead focused my response on setting out some
general reflections on the use of investigatory inquiries, which
have been informed by the experience of my Office.
BACKGROUND
3. The Committee knows that my role as Parliamentary
and Health Service Ombudsman is defined in statute, specifically
by the Parliamentary Commissioner Act 1967 and by the Health Service
Commissioners Act 1993, both as amended.
4. That role is to investigate individual
complaints that maladministration by a central government body
has caused an unremedied injustice or that failure in a service
funded by the NHS has caused hardship or injustice to the person
making the complaint.
5. The core function of my Office is thus
an investigatory one—with the aim of resolving complaints—and
it is with this in mind that I make the following observations.
THE PURPOSE
OF INVESTIGATORY
INQUIRIES
6. It is perhaps a particularly appropriate
time to consider the role of inquiries established by Government
to investigate specific, controversial events giving rise to public
concern. There has been much public debate about the role of inquiries
following the recent publication of a number of inquiry reports,
ranging from Hutton (into the circumstances surrounding the death
of Dr David Kelly) to Penrose (into the circumstances surrounding
the closure to new business of Equitable Life).
7. What these inquiries share—as the
Shipman Inquiry, the Climbié Inquiry and all the other
investigatory inquiries of recent years do—is an origin
in a set of circumstances, first, where it appears that a system
of oversight, regulation, accountability or duty of care has failed
to deliver what was expected of it and, secondly, where there
is no agreement as to the cause or causes of that failure.
8. However, the use of investigatory inquiries
is only one possible mechanism in such circumstances. Other alternatives
include:
— recourse to the relevant Ombudsman
where the events in question have caused an injustice or hardship
to individuals or groups of individuals and where an independent
and balanced account of what went wrong is required;
— resorting to the courts where there
is no prospect of the parties accepting anything other than binding
decisions about liability made as a result of an adversarial process;
— consideration by Parliament—through
the Select Committee system—of the relevant events, especially
where policy decisions by Government are central to the events
in question, as part of its role of scrutinising the Executive
and of holding those in public office to account; and
— referral of the matters to a judicial
inquiry or statutory tribunal.
9. The circumstances of each failure will
determine which of the above mechanisms is the most appropriate.
The decision to use a particular mechanism should therefore be
made with due regard to those circumstances; those making such
decisions should be accountable to Parliament for their decision,
the reasons for which should be made clear at the outset.
ENSURING EFFECTIVE
RESOLUTION
10. Whichever method of investigating and
resolving the issues is chosen, the experience my Office has had
of conducting investigations has demonstrated to me the importance
of ensuring that each mechanism is fit for purpose.
11. The principles that underpin fitness
for purpose are:
— that those conducting the investigation
or inquiry should be appropriately chosen and wholly independent
from those under investigation: confidence in the robustness of
the inquiry will only be achieved where all the parties believe
that the person or persons undertaking the inquiry are suitably
competent and that the process will be fair and balanced; and
— there should be clarity of purpose:
the terms of reference of each inquiry or investigation should
be clearly set out when it is established and should, at the very
minimum, provide the means to achieve three aims:
1. the relevant events and actions should
be established on a factual basis;
2. who or what caused the adverse outcome
should be determined—while identifying where hindsight has
informed this judgment—and appropriate redress identified
for any individuals or groups of individuals who have suffered
as a result; and
3. lessons for the future, in terms of law,
policy, practice and behaviour, should be identified and recommended
in such a way that they can be implemented and can add value;
— the particular mechanism chosen should
be the most appropriate in the circumstances of each case and
the form of the inquiry or investigation should follow this: whether
it should be held in public or in private, for example, or whether
it should adopt an inquisitorial or adversarial approach should
be informed by the context of the relevant events; and
— the inquiry should be provided with
the necessary resources to enable it to fulfil its mandate in
a timely and effective manner, with access to appropriate levels
of funding, staff, professional advice and powers to obtain information,
evidence or papers.
CONCLUSION
12. Ensuring that inquiries and other means
of explaining events and of resolving complaints, claims, and
disputes are fit for purpose is critical to their success and
public confidence in them. I do not think that, as question 16
of the paper asks, the answer to doubts about the independence
or fitness for purpose of a number of recent inquiries is to extend
my powers. My powers are directed at a specific role: to investigate
individual complaints.
13. Ombudsmen are, of course, a very effective
means of resolving individual complaints. However, there are other
circumstances where, although a full, independent investigation
is necessary or desirable—such as issues concerning the
effectiveness of Government policy or whether the law has been
properly observed—there are more appropriate mechanisms
to achieve this.
14. I hope that the Committee finds these
observations helpful.
April 2004
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