The operation of the MP filter for complaining to the Parliamentary and Health Service Ombudsman

Robert Thomas is a Professor of Public Law the University of Manchester

One of the oldest issues with the Parliamentary and Health Service Ombudsman (PHSO) is the MP filter. People who want to complain to the PHSO about a government department or other public body must have their complaint referred to the ombudsman by an MP. The MP filter does not apply in relation to health complaints. There is no equivalent filter concerning complaints against local government or devolved governments in Wales, Scotland and Northern Ireland. The MP filter only applies to complaints to the PHSO against UK central government.

There has been plenty of discussion about the MP filter. Many – including the PHSO and the former Public Administration Select Committee  – would like to see the MP filter removed. The traditional rationale for the MP filter is that it enables MPs to discharge their constitutional role of holding government to account and to maintain the link between complaints (typically constituents), the MP and parliamentary scrutiny of government, as represented by ministers in the House of Commons.

On the other hand, it has been argued that the MP filter limits access to the ombudsman. Some people may be put off by the need to approach their MP. There is substance to this concern. It is certainly the case that people affected by the Windrush scandal were dissuaded from complaining to the PHSO because of the need to go through their MP. This was because this did not trust their MP given that the hostile environment policies had been approved and enacted by Parliament.

Another concern is that some MPs may not forward legitimate complaints to the ombuds. The knowledge and awareness of MPs about the role and function of the ombudsman may well be – and in fact is – variable. The MP filter also introduces a political dimension to accessing an important redress mechanism. After all, it would be considered to be wholly inappropriate if someone wanting to appeal to a tribunal against a government decision or to seek judicial review was required to their have case referred to the tribunal or court by an MP. Any such requirement would be rejected out of hand on the ground that it would amount to a gross political interference with judicial independence and the judicial process.

The PHSO is not a court or tribunal, although it is, of course, an important redress institution. Indeed, the PHSO is the only independent redress institution that can investigate faulty governmental decisions and actions (and inactions). One of the principal rationales for ombudsmen is that public bodies can act within the law, yet still engage in faulty administration and poor public service which neither courts nor tribunals can correct.

The debate over the MP filter is then long established. However, what has been almost entirely lacking from the debate has been data concerning how the MP filter operates in practice. Good policy-making is evidence-based. In pursuit of this, the purpose of this contribution is to present recent data about the operation of the MP filter and discuss its implications. The data was released by the PHSO in response to various FOI requests and it covers the years 2016-22.

We can start with figure 1. This displays the total number of complaints referred by MPs to the PHSO over the years 2016-22.

On average, some 2,248 complaints were referred by MPs during these years. There are obviously some fluctuations from one year to the next and the impact of the pandemic in 2020/21 is evident. However, it needs to be borne in the complaints in figure 1 comprise all of all the complaints concerning central government that get to the PHSO. The number of complaints referred to the PHSO will only amount to a small proportion of the grievances than arise. People must normally seek redress through the public body’s own complaint procedures. In some contexts, such as benefits for instance, there is a second-tier complaints-handler. These “pre-MP filter filters” will inevitably mean that many complaints fall out of the process.

For instance, many millions of people interact with the benefits system, one of the largest administrative systems in the UK. It is also known that many people have grievances about the Department for Work and Pensions (DWP). However, the ombudsman receives relatively few benefit complaints when placed against the size and scale of the benefit system. The relatively low number of such complaints is partly explained by the various filters that apply. A person needs to exhaust the DWP’s internal complaints process, then go to the Independent Case Examiner (the second-tier complaint-handler) and then for an MP to refer the matter to the PHSO.

What then is the breakdown of the complaints referred to the PHSO by individual MPs? How many complaints do MPs pass onto the ombudsman? Figure 2 shows the total number of complaints referred by MPs over the years 2016-22.

Some 399 MPs referred no complaints to the PHSO whereas 647 MPs each referred one complaint and 656 MPs referred two complaints (a total of 1,312 complaints). Some 616 MPs each referred three complaints – a total of 1,848 complaints – and 487 MPs referred four complaints (a total of 1,948 complaints) and so on. As is apparent, the number of complaints referred declines. At the right end of the figure, there was one MP who referred 128 complaints (and these were all referred in the same parliamentary session.

What is clear from Figure 2 is the significant variation in the number of complaints referred between different MPs. It is important to bear in mind that the ombuds cannot open an investigation into a complaint against central government unless the matter has been referred to the PHSO by an MP.

Figure 3 displays the same data but in percentages of the complaints referred by MPs.

So, just over 10 per cent of MPs referred no complaints; almost 17 per cent referred one complaint and two complaints; almost 18 per cent of MPs referred three complaints and 12.5 per cent of MPs referred four complaints.

We can also breakdown the 10 per cent of MPs who referred no complaints at all for each year. Figure 4 shows both the number and percentage of MPs that did not refer any complaints to the PHSO over the years 2016-22.

The table below presents the same data.

What is notable here is that in four years of the six years for which we have data, the percentage of MPs who referred no complaints to the PHSO exceeded 10 per cent of all MPs in the House of Commons. It is a consistent trend in the data that a significant proportion of MPs do not refer complaints to the PHSO. These are not the same 10 per cent of MPs from one year to the next. Nonetheless, this is a sizeable proportion of MPs elected to the House of Commons.

What are the implications of this data? It is also important to recall that the justification for having the MP filter is that it enables MPs to perform their constitutional function of scrutinising central government and holding it to account. However, if around 10 per cent of MPs do not refer any complaints to the ombudsman, then it is really questionable whether the MP filter is fit for purpose. This view is reinforced by the significant variation in the number of complaints referred by MPs.

The data does not tell us why a significant proportion of MPs do not any refer complaints or why some MPs refer one complaint whereas other MPs refer more complaints. It does not tell us about the regional variation or types of complaints or demographic factors involved. More work would be required to explore these issues.

However, the variations are striking and unsettling. This seems to be a major contradiction at the centre of how the MP filter actually works in practice. Many MPs do not refer any complaints at all and many only refer a small number of complaints. In light of this, it is difficult to see how MPs use the filter effectively to hold government to account.

Of course, complaints are only one means of holding government to account. Nonetheless, it stretches credibility to suppose that people in the constituencies of those 10 per cent of MPs who do not refer complaints do not experience the same type of faulty administration and poor public services in their interactions with central government and related public bodies which would justify a complaint to the ombudsman. After all, everyone resident in the UK is affected, in some way, by the decisions and actions of central government. Further, the data demonstrates that many other MPs do indeed refer a fair number of complaints to the PHSO. There is a substantial and undesirable degree of inconsistency in how the MP filter works in practice.

The explanation for this inconsistency is very likely to be that some MPs just do not refer complaints and that other MPs only refer a small number of complaints.  It is inherent in the nature of the MP filter that its operation is ad hoc. This seems like a plausible theory. If so, then the MP filter will mean that people with legitimate grievances do not get their complaints passed on to the PHSO. Overall, the data tends to undermine the rationale for the MP filter and provides evidence to support its abolition.

Matters become somewhat more concerning if we bear in mind that there are no formal criteria by which MPs decide whether or not to refer complaints to the ombudsman. This seems completely out of step with contemporary standards and expectations of administration and public decision-making.

When public bodies take decisions, there are, almost always, criteria laid down in legislation, regulations, or policy guidance, which decision-makers must consider. By contrast, there is no such guidance for MPs when deciding whether to refer a person’s complaint to the PHSO. The MP filter is very much based upon the assumption that MPs are honourable members of Parliament who can be trusted to exercise their own best judgement as to what is appropriate in the circumstances. However, this type of approach of relying upon the good sense of the individual MP is now entirely out of date. It is also a recipe for ad hoc and inconsistent discretion.

There certainly are many MPs who make good use of the ombudsman. However, there are a significant number of MPs who do not refer complaints. There are also likely to be many people who are put off from pursuing their complaint because they do not want to contact and engage with an MP.

In conclusion, there is good reason for the significant concern about the operation of the MP filter in practice. The MP filter should be removed – or replaced by a twin-track approach through complaints can be referred by MPs and people can also lodge their complaints directly with the ombudsman. In 2016, the Government accepted the need to remove the MP filter. However, that was in 2016 and nothing happened. The Government’s Bill did not proceed. The above data concerns what has happened and not happened in the years after 2016. Clearly, the problems with the MP filter have continued. What is required is reform of the PHSO in order to improve and widen the ability of people to access it directly and without the requirement that complaints be referred by an MP.