Many as an advantage to the system see the informal and flexible rules underlying the procedure. The flexibility is reflected in the fact that the Ombudsman is not barred by time limits and therefore may provide a remedy in instances that cannot be considered by a court. On the other hand, the informality in investigation may be more effective at times in discovering the truth than the adversarial system in the courts. The Ombudsman being independent and impartial where as an MP may become biased due to political allegiance.
However, there are a number of limitations on the powers of the PCA, which may not seem inherent but are thought to weaken his efficacy. Certain matters, set out in Schedule 3 to the Act, are excluded from investigation. These include extradition and fugitive offenders, the investigation of crime by or on behalf of the Home Office, security of the States, action in matters relating to contractual or commercial activities, court proceedings and personnal matters of armed forces, teachers, the Civil Service or police. The government has always resisted the extension of the Ombudsman system into these areas. Furthermore, Schedule 2 does not include public corporations, tribunals, the Criminal Injuries Compensation Board or, crucially, the police.
A further important limitation, the system of making the complaint through a Member of Parliament, has been much criticised: it is thought that this ‘screening’ of complaints does not serve the best interests of complainant. This is where direct access to the ombudsman is denied and the MP is made to be the middleman. The involvement of MPs in the process may mean an inadequate working system since MPs do not possess the power to investigate in great detail as to scrutinise the matter at hand to its depths.
Another problem that is seen within the role of PCA is also due to the lack of power to award remedy. However, the fact that the PCA operates informally and privately has been thought to enhance his powers of persuasion. A good example is that of the Ostler case (1977), where the Department of Environment was persuaded to introduce new procedures in order to prevent a repetition of the situation which led to Ostler’s complaint. Thus, the apparent weakness in the PCA’s powers may underlie one of his main strengths.
Also in the Channel Tunnel Rail Link, the relevant department did eventually agree to award some ex gratia compensation to some affected, though without admitting any fault. It could be argued that the PCA has gone too far in the directing government departments to settle down in relation to the detriment citizens who have been maltreated.
The Barlow Clowes affair (1988) is another good example of a case where compensation, although previously denied, was made only because the Parliamentary Commissioner had recommended so. The case concerned the collapse of a group of companies, which caused significant losses to shareholders. The Department of Trade and Industry (responsible for licensing such investment companies) was found to be involved in maladministration, including errors, lack of information, etc. all of which resulted in injustice.
It should be remembered that in some respects, certain Ombudsmen might be more effective than others in comparison with other available remedies. It should also be noted that the public has direct access to Health Service Commissioners, the Local Commissioners (since 1978), and the European Community Ombudsman.
Although, as a system, the Ombudsman suffers from a number of drawbacks- no direct access (with the exceptions); the concept of maladministration being relatively narrow and being linked to injustice suffered as a result of a decision; a significant number of matters fall outside his jurisdiction- a survey by the Select Committee shows that the advantages of retaining the filter system outweigh the disadvantages.
It may, therefore, be concluded that Ombudsman makes a significant contribution to the task of ensuring that government decision-making is conducted in defensible ways and produces defensible results.
