Does kindness have the potential to shape how the state and public services treat individuals, and how individuals experience public services? Research by Carnegie UK Trust argues that it not only has the potential to do so, but it must. The implications for administrative justice could be significant, but there are obstacles to overcome – not least the sense that kindness is an unaffordable luxury in times of austerity.
Country music often gets a bad rap as sentimental and depressing. What isn’t usually recognised is that the best of country music evokes a deep emotional attachment wrapped in disappointment and loosely threaded with optimism. It is the Nashville version of the current zeitgeist pleading for a reshaping of the relationship between citizen and state, a radical reimagining that places responsiveness, empathy, and social rights at the very heart of administrative justice.
Empathy and responsiveness have long been at the heart of mediation practice, but now this plea is being made powerfully also among ombuds and the wider administrative justice world as a necessary response to a distinct lack of empathy in the way citizens experience the state. At the Ombudsman Association conference in Belfast in May 2019, Jennifer Wallace from Carnegie UK Trust reported on an investigation carried out by Carnegie Fellow Julia Unwin into kindness in public policy. The report, Kindness, emotions and human relationships: The blind spot in public policy, argues for new thinking about why kindness matters and why we need to address the cynicism that is one of the typical responses to a call for emotions and relationships to play a prominent role in public policy. Building kindness into the citizen-state relationship, and addressing unkind systems, is a radical act, not a sentimental tug on the heartstrings.
The kindness that Unwin’s report explores incorporates emotions, relational care and attention to the way people feel about public services. It builds solidarity, fostering mutuality. It is radical, disruptive, messy. It is not about pity, about fostering a reduced demand for state services, or about ‘random acts of quixotic generosity’.
The urgency of kindness in public policy
Unwin identifies three key drivers in public policy that make the role of kindness an urgent and important matter: austerity is one, exerting pressures on those delivering public services. The other two are related to technology – tech to manage information (eg big data) and tech for managing communication (eg social media). One of her conclusions is that artificial intelligence (AI), as it continues to be rolled out across the public sector in decision-making, will be ‘deeply damaging’ if not met with a prioritisation of emotional intelligence.
There is a need to be bilingual, Unwin writes – to speak both the ‘rational’ language of policy (fair, transparent, evidence-based, systematic) and the ‘relational’ language of emotion (responsive, human, personalised). (At the conference, Wallace gave the example of ‘social capital’ versus ‘friends’ as an illustration of the divide between the lexicons.) Each of these languages on its own has a ‘shadow side’: ‘rational’ language, on the one hand, can prioritise predictability and the use of transactional measures to demonstrate impact and value for money (eg the 10-minute visit from the carer); ‘relational’ language can foster abuse and unfairness when access and ‘voice’ are not uniformly distributed (eg the loudest and most vitriolic Twitter user).
Pressures on kindness include an audit culture of measurability and an emphasis on professionalism. In administrative justice, the predominance of values of efficiency, effectiveness and value for money reflects rational language at the expense of relational language. In the ombuds world, also, these values hold dangerous sway, as does the move towards professionalisation. Introducing the language of emotion and relationships would be a welcome move if it makes the work of case handlers more meaningful and the experience of state decision-making more humane – for example, by allowing case handlers and frontline officials greater autonomy to be authentic in their exchanges with members of the public, by not speaking to a script, and by rewarding emotional intelligence rather than privileging efficiency, as current management models do.
Unwin points out that we often assume that kindness can’t be measured, when instead we choose not to measure it. But there is an inevitable tension between fairness and kindness, a challenge in administrative justice if a shift towards responsive kindness prioritises the individual (and her rights and feelings) over the collective public interest in fairness. That perception of fairness, however – of fairness as a fundamental value of administrative justice – implies there is a shared understanding of what fairness is and a misunderstanding of the ways it can foster inequalities. As Unwin writes, ‘To imply that consistency guarantees the fairest response ignores … the massive inequalities of voice and agency’.
Challenging the grip of austerity
The implications for administrative justice of a ‘kindness drive’ could be significant, but there are obstacles to overcome – not least the sense that kindness is an unaffordable luxury in times of austerity. But austerity’s grip should not remain unchallenged, and powerful arguments have been made (by UN rapporteurs past and present) that austerity is a political choice, not a necessity, and that by embedding social rights into accountability mechanisms, including ombuds, we might repair the social contract that a decade of austerity has broken.
Unwin argues that what’s needed is a shift in power that will lead to an increase in trust in government and institutions. Such a shift arises from a new social contract, one that recognises both individual capabilities and interests as well as those that are shared and that invests in human relationships rather than key performance measures. In this, Unwin shares a vision set out starkly by Philip Alston, UN Special Rapporteur on extreme poverty and human rights, in his report to the UN on poverty in the UK. Alston notes that ‘much of the glue that has held British society together since the Second World War has been deliberately removed and replaced with a harsh and uncaring ethos’ as successive governments have pursued the ideological agenda of austerity. In the face of the erosion of the post-war social contract in Britain, there are elements of optimism, particularly in the way kindness is incorporated into legislation by devolved administrations in the UK trying to mitigate the worst impacts of austerity.
Legislative recognition of social rights should be a part of this reimagining of the citizen-state relationship, Alston argues, echoing a call made by Paul Hunt, Chief Human Rights Commissioner, New Zealand and formerly UN Special Rapporteur on the Right to Health, for a sectoral approach to embedding social rights. In a recent Political Quarterly article, Hunt suggests that a realistic approach is to engage with the everyday places of housing, schools, hospitals and ‘to clothe each explicit social right with sectoral law, policy and practice’ – embedding, for example, the right to adequate housing into legislation and in statutory guidance, developed through a bottom-up and participatory process, and in policy-making, inspection and adjudication (which would include the practices of ombuds). This sectoral approach could be reinforced by recasting accountability as a loosely linked network of sectoral institutions that together work to monitor, review and take remedial action on social rights.
Walking the line
Amid the pessimism, there is inspiration to be found for ombuds, mediators and others involved in addressing citizen grievance. There is also inspiration for researchers who are interested in exploring the role of emotions in the delivery of public services, in state administration, and in the mechanisms for holding the administration to account. It isn’t a path of sunshine and rainbows, and it has its dark side, but we could perhaps channel our inner Johnny Cash to walk the emotionally intelligent line between optimism and despair:
Well, there’s things that never will be right I know
And things need changin’ everywhere you go
But ’til we start to make a move to make a few things right
You’ll never see me wear a suit of white
Ah, I’d love to wear a rainbow every day
And tell the world that everything’s okay
But I’ll try to carry off a little darkness on my back
Till things are brighter, I’m the Man In Black
Earlier this month the Independent Police Complaints Commission (IPCC) published guidance on handling complaints about discrimination. The guidance follows a number of critical reports by the IPCC, which found significant failings in the way police forces carried out such investigations and engaged with complainants. It raises an interesting question: To what extent do ombuds and other complaint handlers hold bodies they investigate to account for discriminatory behavior and decision-making?
Fairness is a key concept of the ombuds approach: both fairness of decision-making and fairness of the processes used to handle citizen-consumer ocmplaints. Yet ombuds schemes and other complaint handling bodies in the UK have generally been reluctant to tread into the territory of naming discrimination and human rights breaches in findings on complaints. Part of the reluctance is the concern that any determination of a breach of equalities and human rights legislation must be made by a court. Breaches of human rights can, however, inform findings of maladministration, but as noted by Buck et al in The Ombudsman Enterprise, this innovative use of the law has its dangers, not least the risk of judicial review.
Promoting and protecting human rights is the primary function of National Human Rights Institutions (NHRIs), some of whom also have complaint handling roles. A current study of the role of NHRIs in dealing with human rights complaints is exploring how that complaint-handling role fits with the wider strategic function, and to what extent informal processes such as mediation are being used for these. (We were interested to note that the researchers are finding, as we did, that certain ADR and informal processes are ‘amorphous and difficult to isolate’ and that shared meanings and forms of, for example, mediation appear not to exist.) In some countries, the NHRI is also an ombud, but in the UK ombuds are separate organisations; the Council of Europe uses the term ‘national human rights structures’ to refer to those commissions, ombuds and police complaints mechanisms that have a human rights mandate but are not the accredited NHRI.
Last year the Equalities and Human Rights Commission published a guide to human rights in action. The section of the report on regulators, Inspectorates and ombuds (RIOs) includes several case studies, from the Parliamentary and Health Service Ombudsman, the Prisons and Probation Ombudsman and the IPCC, illustrating the use of the human rights framework in complaints handling and investigation.
Among those ombuds who have been proactive in identifying these issues in complaints is the Parliamentary and Health Service Ombudsman (PHSO), which has published a number of reports highlighting the human rights and discrimination elements of many complaints, particularly about vulnerable people in care or hospital (for example, this one on disability discrimination). The former Parliamentary and Health Service Ombudsman has stated that ‘the Ombudsman’s approach includes an overall concept of fairness, a fundamental commitment to the humanity of individuals and their right to equality in treatment and outcomes. Issues of discrimination and equalities underlie many of the complaints which come to the Ombudsman…’.
The PHSO makes clear in its general standards for determining complaints that it will expect a public body to comply with the equalities and human right legislation and will hold them to account:
‘It is not the role of the Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached: those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations….
If the public body is unable to demonstrate that it has had regard for, and taken account of, human rights, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.’
The Northern Ireland Ombudsman has been in the forefront if this work and has worked closely with the NI EHCR to develop a manual and training for complaint handlers to help them identify human rights issues in complaints they receive.
The UK Financial Ombudsman Service has published briefings on the need for businesses to comply with the Equality Act, such as this one. One of the issues is, as FOS points out, ‘consumers rarely articulate their complaint as “discrimination” – or invoke the Equality Act. More often than not, they’re simply frustrated at being unable to access the services they want or need to – and feel that the business’s processes are unnecessarily inflexible and impersonal.’
‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’ Nick O’Brien
An optimistic view is that ombudsmen in the UK will ‘increasingly contribute to wards the resolution of human rights issues in public administration, both in conducting investigatory work and in the office’s relations with other bodies’ (Buck et al, The Ombudsman Enterprise, 2011). Nick O’Brien, a human rights specialist and ombuds-watcher, has noted the increased consumerism plaguing ombuds schemes and argues that ombuds can mark themselves out among complaint-handling bodies by having a focus on discrimination and human rights issues: ‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’
How far do complaint handlers go in identifying discrimination or human rights as issues in complaints? How do ombuds and complaint handlers use the legal framework for discrimination and human rights in their casework and findings? Perhaps these questions need further research.