Ombudsmen as Courts

The non-judicial character of ombudsmen is viewed as their greatest asset, offering a more accessible, informal and flexible channel than courts for expressing grievances. Yet the Pensions Ombudsman has objected vigorously to its characterisation in the Chancery Division as ‘not a court’, pointing to a range of judicial qualities with which it has been statutorily invested. This raises the broader question of whether ombudsmen can be courts; a rarely considered characterisation. It is argued in this article that, although some ombudsmen exhibit judicial or quasi-judicial attributes, they are categorically distinct from courts and should remain so. Parliament must be astute not to invest ombudsmen with too many judicial qualities, lest the boundary between exercising judicial functions and exercising the judicial power of the state is crossed. This article also gives cause to reflect more broadly on the fundamental and distinctive nature of courts, tribunals and ombudsmen.