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"Protecting Rights and Freedoms" (09.09.2004)

Address by Emily O'Reilly (Ombudsman of Ireland) at International Ombudsman Institute - VIIIth International Conference

Introduction

If we were fortunate enough to live in a Utopian society we would expect each individual to put the common good before his or her own personal interests. We would expect to find a perfect balance between the public interest and individual interests without the need for state intervention. Unfortunately, in the real world, these interests do not lie in perfect equilibrium. Hence the need for governments, parliaments, the courts (with appropriate separation of powers), domestic and international laws, police forces, defence forces, prisons, regulatory bodies and various types of watchdog. And, of course, subject to domestic constitutional provisions, ombudsmen have the important task of ensuring that these organs of the typical modern democratic state discharge their functions in a proper manner.

The Effects of Globalisation

Up to the early 1990s, most of the then existing ombudsman offices had little difficulty in discharging their respective remits by focusing on the internal legislative regime within their own countries. The more traditional ombudsman offices were focused in the main on the concept of ?maladministration? i.e. the extent to which the law of the land was implemented in a proper, fair, open and impartial manner. The newly emerging democracies bestowed on their ombudsmen a wider remit of investigating not only maladministration, but also human rights infringements - this wider remit, in many instances, was a recognition of the failure of the traditional judicial process to properly protect and enforce human rights protections within their countries.

Throughout the 1990s, new factors have emerged which have added increasing complexity to the work of ombudsmen and related institutions. Insofar as the protection of rights and freedoms is concerned the principal developments have been:

> The globalisation of commerce and, in particular, the privatisation of public utilities (e.g. telecommunications, electricity, water, etc. and, in many instances, their subsequent absorption into multinational corporations

> The globalisation of terrorism in the aftermath of the 11 September 2001 attacks in the United States of America and the implications for individual freedom and privacy and

> The effects of immigration and the extent to which immigrants, asylum seekers, refugees etc. are successfully integrated into the host country.

Privatisation

Public utilities were traditionally within the remit of the relevant public sector ombudsman but in the interests of making them more responsive to the demands of the market place and in order to down size public services, governments across the world have privatised many of these utilities. In order to ensure accountability, they are now generally within the remit of industry regulators. However, these regulators are principally concerned with issues of pricing and standards. Issues of consumer protection are dictated by the market rather than the concepts of fairness and equity - the traditional benchmarks used by an ombudsman in investigating complaints.

In some cases, specialist industry ombudsmen have been appointed but these are not always fully independent of the industry. In other cases the industry may remain within the jurisdiction of the relevant public sector ombudsman. But there can be difficulties for either an industry ombudsman or a public sector ombudsman in ensuring accountability of a privatised utility operating in a competitive market. And the corporate governance standards of multinational companies are normally formulated in the headquarter country and are not always in harmony with the social, economic, environmental and cultural norms of the countries in which they are located. These developments are posing new challenges for ombudsmen.

The implications of global terrorism

The September 11 attacks raise two important issues. First, there is the need for enhanced security measures which are placing new restrictions on individual freedom and privacy. Second, differences have emerged between the United States (US) and the European Union (EU) and its individual member states as to where the balance should lie between these competing needs.

Both of these issues are best exemplified in the agreement signed in May of this year between the US and the EU which allows for the transfer of 34 pieces of information about airline passengers to US authorities (e.g. names, contact numbers, bank and credit card number, home, e-mail addresses and other details which can be held for up to three and a half years). One month later, the President of the European Parliament referred the agreement to the European Court of Justice on the grounds that it inadequately reflects EU data protection legislation. The agreement was intended to modify the unilateral decision by US authorities to seek such passenger information. Most European airlines agreed to do so, under the threat of fines and the possible loss of landing rights.

The Parliament?s concern is that the lack of equivalent data protection and privacy rights in the US will allow such information to be given to private operators. The President of the European Parliament, Mr Pat Cox said there was a ?new kind of creeping extra-territoriality? behind the US policy which should be tested by the European Court. If the EU?s draft constitutional treaty is ratified the Parliament?s position in dealing with such issues will be strengthened.

Immigration and Integration

Immigration is now the number one public policy issue in most countries in the EU. From an ombudsman?s perspective, it raises two issues. First, the extent to which governments have devised immigration policies which are fair and reasonable and the extent to which these policies are implemented in a proper manner that is consistent with principles of good administration. Understandably, governments are looking more closely at their policies in this area in the light of international security threats. Also, measures are being devised to counter international trade in people trafficking which has led to exploitation and tragic loss of life. The second issue is the extent to which those immigrants who are legally resident in the host country are entitled to public services such as health, education and housing etc.

Some EU countries operate two tier systems whereby immigrants have lesser entitlements to state benefits. Others do not discriminate between nationals and non-nationals. Others still, are relatively homogeneous with low levels of net immigration. Some commentators have raised concerns about the capacity of governments to accommodate diversity on the scale which we are now witnessing. (Goodhart, 2004). They make the point that diversity is placing new demands on the welfare systems of those countries that have been to the forefront in embracing immigration. In addition to the obvious problems caused by a rationing of scarce resources surveys have shown that indigenous populations often resent the fact that benefits and entitlements are allocated equally among all applicants regardless of origin. In other words, the concept of fairness may, in fact, be far more complex than simply ensuring equal treatment for all. The issues raised by immigration have obvious implications for ombudsmen and related institutions.

New Challenges for Ombudsmen

The common factor underpinning these three issues is globalisation. Freedom of movement (illegally or legally) is now possible on a scale which never could have been envisaged even fifteen years ago. It has the potential to offer unparalleled economic and social benefits. But it also carries significant threats which have already prompted many governments to move to curb individual rights and freedoms. It has also opened up differences in the approaches adopted by the US and the EU, in particular.

The remit of the ombudsman, and the public sector ombudsman, in particular, traditionally has been shaped by the domestic legislative environment which he or she inhabits. And even those ombudsmen who are concerned solely with maladministration see themselves as ?pushing out the boundaries? by demanding increasingly higher standards of administration from the public authorities which they supervise. But are we witnessing new pressures from external sources which have the capacity to limit the protections traditionally offered by ombudsmen to their clients? Is a new world order of shared values beginning to emerge which is inferior to those already existing in many countries? And if this is the case, what is the ombudsman?s reaction to these developments?

This paper explores these issues in some detail. In particular, it looks to international human rights law and encourages all ombudsmen to have regard to it in addition to relevant domestic law when examining complaints. And in view of the fact that international norms are, by definition, based on a wider community of interests, the paper suggests that ombudsmen should use these norms to form a more expansive view of what is fair and reasonable in any particular case.

At this point I would like to pay tribute to the excellent work already done by Linda Reif of the University of Alberta in exploring these concepts (Reif, 1999). I have found her pioneering work in this area of great assistance in developing the theme of this paper.

This broader approach to examining complaints, it is suggested, may be of assistance in dealing with issues relevant to the new international security requirements and issues relating to immigration. Difficulties arising in relation to privatisation are, essentially, issues of consumer protection and are outside the scope of this paper.

Addressing the Challenges

In attempting to answer these questions the first point to recognise is that there are variations in the capacity of different ombudsmen to address these issues. As I said earlier, some are concerned solely with maladministration and injustice or adverse effect within the confines of domestic legislation, rules, schemes or programmes. Others have a wider role in commenting on and recommending improvements in existing legislation which in the ombudsman?s opinion, operates unfairly. Others still, have the power to test the constitutionality of proposed legislation. And, particularly in the newly emerging democracies, ombudsmen have power similar to or overlapping with the courts and specific remits in relation to protection of human rights.

A Hierarchy of Rights

The second point to consider in addressing these challenges is the broad background of rights against which any complaint to an ombudsman potentially might be analysed.

The so-called first generation rights are civil and political rights. These rights are normally enforceable through the courts but not exclusively so. Second generation rights are social, economic and cultural rights. Because they are resource intensive, there are limits on the extent to which these rights may be enforced through the courts or through other appellate systems and governments across the world differ in the degree to which they facilitate enforceability of these rights. Thirdly, there is the area of administrative justice - the area in which the traditional ombudsman operates.

It is important to note that maladministration can encompass human rights issues although it is not always seen in these terms by public servants or, indeed, by ombudsmen and their staff. Ombudsman offices are often not accustomed to analysing complaints from this wider perspective and, indeed, staff may lack the knowledge and expertise to do so. But ombudsmen and their staff do need to recognise that if the first and second generation rights are not properly or adequately protected there may be difficulties for them in ensuring that their traditional preserve - sound and fair administration - operates in a proper manner. In essence, this means that ombudsmen should take the broadest possible view of their role and see it as encompassing two principle aims viz., promoting respect for human dignity an protecting individuals who are dependent on public authorities.

It is also the case that an ombudsman?s remit may not specifically provide that he or she is obliged to examine complaints from a human rights perspective but it is rarely the case that the office is specifically precluded from doing so. But if an ombudsman is to adopt the wider approach there are certain conditions which must be met and these are discussed later.

Many of the complaints of maladministration which are dealt with by a classical ombudsman may have human rights aspects to them. For example, my Office investigated several complaints relating to the failure of the health authorities to pay subventions that the residents of nursing homes were legally entitled to receive. Although the complaints were presented as examples of maladministration they raised important human rights issues about the care of the elderly. Regrettably, the public authorities were unaware of this dimension of the complaints until it was brought to their attention by my Office. My predecessor, Kevin Murphy commented as follows in his investigation report:

"With the passing of the Human Right Commission Act, 2000 and the intention that the European Convention on Human Rights will become part of Irish law, it is clear that international human rights instruments will increasingly represent a significant influence in the State's approach to service provision. This is likely to be particularly so in the case of entitlements for groups such as children, the disabled, the homeless, travellers and other minority groups, the elderly, immigrants and persons in custody and detention. A human rights approach may not, in fact, be all that different to what our Constitution already provides; but it may well be the catalyst to unlocking what is already contained in the Constitution. This approach will pose fresh challenges for our institutions of government.....(They) will have to develop an awareness of the relevance of human rights protection not only to existing international instruments but also to domestic law and, indeed, to administrative schemes and programmes which are not part of domestic law". (Office of the Ombudsman, 2001).

The Courts, Human Rights Commissions and the Ombudsman

Before exploring further the ombudsman?s capacity to have regard to international human rights norms it is worth asking whether he or she has a role to play in this area or whether indeed, this approach should be left to the courts (domestic and international) or, if one exists, the human rights commission of the country in question.

In general terms, the courts are concerned with legality and will base their decisions on the written law. The ombudsman, too, has regard to legality but also to fairness and reasonableness as derived from principles of good administration. To illustrate what this means in practice, many of you will be aware that my Office published a guide to standards of best practice for public servants. The guide advises public servants, in their dealings with the public, to operate in an proper, fair, open and impartial manner and gives examples of best practice which achieves these aims.

The courts are concentrated on achieving redress for the plaintiff and are generally unconcerned about improving systems and procedures. By contrast, the latter area is of major concern to the ombudsman.

Human Rights Commissions (HRCs) cover the public and private sectors and have a strong advocacy and promotional role as well as an investigatory role. However, where a complaint is made to a HRC about a matter which is within the jurisdiction of another investigatory body (e.g. the ombudsman), it is usual to refer it to that office for investigation.

Some HRCs have complained about inadequate state funding and clearly this can have implications for their effectiveness. For example, the Council of Europe Commissioner for Human Rights, Mr Alvaro Gil-Robles, commenting on the Northern Ireland Human Rights Commission, stated in Opinion 2/2002 of November 2002:

?The (Northern Ireland Human Rights) Commission noted that it had not been as effective as it might have been because of the lack of resources available to it and listed in its report a number of activities that had therefore been curtailed. The Commission?s current ordinary budget barely covers basic staffing and accommodation costs, leaving little for its actual activities. The Commission is consequently obliged to submit additional bids during the budget year for further resources in order to carry out specific tasks related to its mandate. Under this system the Secretary of State for Northern Ireland, to whom such bids are made, is unduly able to influence the autonomy, and hence the independence, of the Commission. A clear statement on the need for sufficient resources and on the principle of financial autonomy would address these concerns?.

Coincidentally, the Human Rights Commission of the Republic of Ireland which, in common with the Northern Ireland HRC, was established under the Good Friday Agreement of 1998, has also complained about inadequate funding (Human Rights Commission, 2003).

Some ombudsman offices, notably in South American and Eastern Europe combine the functions of a HRC. Other countries which have not had a stable democracy and rule of law have given their ombudsmen a specific role in the protection of human rights. A number of countries have an ombudsman for children or a commissioner for children to address specific human rights concerns insofar as they relate to children.

It will be clear from the above that despite the excellent work done by formal judicial systems and HRCs in the protection of human rights, there are opportunities for ombudsmen to complement the work of these agencies and thus render more complete, the protection afforded to individuals against infringements.

Domestic Law and/or International Human Rights Law?

If when investigating complaints, an ombudsman is to have regard to international human rights law, there are certain conditions which must be satisfied.

First, there is the question of whether international law is part of domestic law within the state or whether there are arrangements in place to incorporate it by means of domestic statute. In some countries the constitution provides for the domestic application of international treaty obligations whereas in others, these obligations do not automatically become part of the domestic legal system. Instead, a separate statute is required to act as the legal source of rights within the state.

Second, there is the question of whether the ombudsman has an express human rights mandate or whether he or she is limited to investigating administrative actions. Even if the ombudsman does not have a specific human rights mandate he or she is not precluded from calling upon such norms provided, of course, the state, either automatically, or by domestic legislation has given effect to international obligations. But even if the state has not given effect domestically to international obligations, the ombudsman can still use these norms as a guide to a more informed view of what constitutes fairness and equity. These approaches are discussed in more detail in the final section of this paper.

Commentators are divided on the question of whether it is at all appropriate for an ombudsman to have regard to international norms. Some have taken the view that domestic law is the principal support for the ombudsman with international standards being, at most, of indirect relevance (Burdekin).The Danish Parliamentary Ombudsman, Hans Gammeltoft-Hansen takes a different view:

?Since the Ombudsman, from a general point of view, is always concerned with the protection of the individual citizen against some part of the apparatus of the state, it is quite obvious and adequate that the Ombudsman could make use of human rights standards binding the Danish state - and in many respects elaborated by the human rights organs (especially, of course, the organs connected to the European Convention of Human Rights) through the so-called dynamic interpretation?.

The former National Ombudsman of the Netherlands, Dr Martin Oosting, takes a similar view and the work of his Office in the human rights area is described later in this paper.

Also, in newly developing countries there may be a need to look to international norms and this is already recognised in some African states.

But global security and global immigration issues are forcing governments to enter into international co-operation arrangements to deal with these new pressures. There are concerns about the degree to which parliaments and the public generally are informed about what may be agreed in their name and the extent to which individual freedom may be compromised in the interests of world-wide security.

In this rapidly changing environment international human rights treaties and conventions - precisely because of their international status - have a new relevance in safeguarding existing rights and where relevant, should be taken into account by ombudsmen in their examination of complaints.

Some Examples of the Threats to Individual Rights and Freedoms

Security and Human Rights

In the aftermath of the September 11 atrocities the US and the EU initiated discussions in relation to the introduction of a wide range of security measures to combat terrorism. It is not the function of this paper to evaluate the merits of these measures or in any sense to question their necessity. Rather the purpose is to show how, in the light of these unprecedented events, the measures may impact on individual rights and freedoms.

The first three agreements negotiated between the US and the EU were the Europol-USA Agreement, EU-USA Judicial Co-operation Agreement and the agreement between the European Commission and the US Department of Homeland Security in relation to Passenger Names Records. The latter agreement was described in some detail in the opening paragraphs of this paper. There was criticism at the time of the culture of secrecy and the resistance to parliamentary scrutiny which surrounded the negotiations. An agreement on the exchange of police data was concluded in November 2002. Because of pre-existing EU directives, the agreement raised data protection difficulties on the EU side but not on the US side which has a less structured approach to data protection.

Negotiations on an agreement on extradition and other issues commenced in April 2002. Paul Gillespie, Foreign Editor of the Irish Times comments as follows:

?The negotiations continued in secret over the next year, with the draft text of the agreements remaining confidential. Notwithstanding the conviction of governments that such secrecy prevented political interference from slowing co-operation, it led to a strong reaction from several national parliaments, notably in the House of Lords in Britain, which refused to accept government arguments that fighting terrorism must take priority over open democratic scrutiny of the agreements?.

The agreement was concluded in June 2003 and supplements existing bilateral arrangements between the US and individual EU member states. In signing the agreement both sides emphasised the need to fight terrorism and organised crime and the mutual trust and common values shared by the EU and the US.

The negotiation of these agreements illustrate the challenges now faced by governments in trying to strike a balance between concerns about security and protection of human rights. Specifically, in the US - EU context, it brings into focus two differing ideologies - the US which sees the measures as necessary to combat the ?war on terrorism? and the EU approach which probably because of its experience in this area, is aimed at understanding the root causes of terrorism and within that context to concentrate on fine tuning existing legal frameworks.

Clearly, concern about these issues among the EU citizenry runs very deep. In the recent elections to the European Parliament, governments which supported the US position on the war in Iraq fared badly. Madrid was the target of a terrorist attack on 11 March 2004 and the outgoing Spanish government was defeated in a general election because of its support for the US position on the war in Iraq.

Further evidence of EU public opinion comes from a Eurobarometer survey conducted in the 15 EU member states in August 2003. It shows a negative evaluation of the role of the US in relation to the following issues:

• growth of the world economy,
• fight against poverty in the world,
• protection of the environment and
• peace in the world.

In relation to the fight against terrorism, the US received a positive evaluation of just six percentage points. However, there were wide variations among individual member states ranging from a positive rating of 34 points to a negative rating of 64 points.

Immigration

In recent years immigration has been a priority public policy issue in most EU member states. Since the September 11 atrocities it has been given a new impetus because of the potential threats it poses to international security. And international trade in people trafficking is also a major concern.

I am one of the very few - if not the only - National Ombudsman in the world whose remit specifically excludes me from investigating complaints relating to asylum and naturalisation. Accordingly, I am somewhat at a disadvantage in describing my country?s experience in this area from an ombudsman?s perspective.

However, I would like to comment on the Referendum on citizenship which was held in Ireland in June of this year. I am an ex officio member of the Referendum Commission - an independent body which conducts a public information campaign and encourages the electorate to vote.

As a result of the Good Friday Agreement of 1998, the Irish Constitution was amended and gave a constitutional right to everyone born in the island of Ireland to be a citizen of Ireland. The Irish Government became concerned that this right was being abused and that it had given rise to an increase in ?citizenship tourism?. It claimed that non-national women, in the late stages of pregnancy, were arriving in Ireland and having their babies in Irish maternity hospitals for the sole purpose of securing for their child the right to Irish citizenship (and, in turn, EU citizenship, where appropriate).

The Government proposed to change the Constitution so that people born in the island of Ireland would no longer have a constitutional right to be Irish citizens, unless, at the time of their birth, one of their parents is an Irish citizen or is entitled to be an Irish citizen. It also proposed that the Oireachtas (Parliament) would pass legislation which would govern how other people born in Ireland might become Irish citizens.

The Referendum was carried by a large majority. (80% voted in favour). Some opponents of the proposal argued that it would create a two-tier society i.e. those who, by virtue of holding citizenship would be entitled to additional rights and benefits and those who, although living and working in Ireland, would be denied similar rights by virtue of not being citizens. Other commentators expressed disquiet that the large majority in favour of the restrictions on citizenship was influenced by a wider view that there were insufficient controls on the number of non-nationals entering Ireland rather than by the technical merits of the Government?s citizenship proposal.

This, in turn, raises wider questions - and not just in Ireland - about the capacity of governments to successfully integrate non-nationals and to allocate to them health, education, housing and other benefits on a fair and equitable basis. For example, according to a recent Mori poll, 56 per cent of people now believe there are too many immigrants in Britain. And yet, only nine per cent of British residents are from ethnic minorities whereas the corresponding figure for the US is 30 per cent.

By contrast, the Nordic countries are among the most socially and ethnically homogeneous states but they also have the most highly developed welfare policies. The US has a highly diversified society but is characterised as having a weak welfare state. Some commentators have argued that there is a direct link between the degree of diversity in a state and the strength of its welfare system not only because of the resources required to implement effective integration policies but also because of the degree to which the indigenous population is prepared to tolerate the extension of benefits to non-nationals in an increasingly diverse society (Goodhart, 2004).

Clearly, these issues will pose new challenges for the new EU as an entity of 25 member states and indeed for each of the constituent states which, as members of the Union will become more attractive hosts to immigrants from third countries. There will be new challenges for ombudsmen too, in investigating complaints. The traditional approaches to the concepts of fairness and equity may work very well in a relatively homogeneous society but there may be different perceptions about these issues among indigenous populations in an increasingly diverse society. In this more complex environment, ombudsmen may find it useful to be guided by international human rights norms rather than solely by the tenets of domestic legislation.

The Ombudsman and Human Rights Complaints

A number of ombudsman offices have regard, to a greater or lesser extent, to international human rights law in their investigation of complaints. Among these are some of the offices in Latin America and in the African states. Of the more well established offices, the National Ombudsman of the Netherlands has developed a structured approach particularly in relation to the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The Dutch Office has jurisdiction over the police and there are several documented examples of instances where it has looked to human rights law in relation to this area and, indeed, to other areas of its brief. It should also be noted that the ombudsman legislation allows that office to have regard to international human rights obligations when investigating complaints.

Among the issues reviewed by the Dutch Office in the light of international human rights law are the deprivation of liberty, inviolability of the person (use of handcuffs, body and clothing searches, use of force), protection of privacy (the release of information to third parties, the right to respect for the home, the operation of the security and intelligence services), the presumption of innocence, treatment in police cells, the principle of equality and the ban on discrimination, admission of immigrants, voting rights, the right to demonstrate, the privacy of correspondence and the right to ownership of property.

In this regard the Dutch Office is a particularly good example of an ombudman?s office which uses international human rights law both imaginatively and effectively.

The Application of International Human Rights Law - the Way Forward

In countries which have become bound by international human rights law it is necessary to determine whether it is considered to be part of domestic law. It may be that the international law is automatically part of domestic law or that this is effected through the passage of domestic enabling legislation. If either is the case the ombudsman can then rely on the domestic legal framework in investigating complaints and in making recommendations. He or she can adopt this approach whether or not the office has a specific remit to investigate human rights issues.

The former National Ombudsman of the Netherlands, Dr Martin Oosting, commented that these international obligations can also be used to support more fundamental legal principles such as the obligation that government action should respect human dignity:

?viewed in this way, there are certain situations for which the conventions (the International Covenant on Civil and Political Rights and the European Convention on Human Rights) codify fundamental principles which, as general legal principles, have a broader scope than the particular situations to which the conventions relate. The relevant provisions of the conventions are an elaboration of these principles and are, therefore, also a striking confirmation of the latter. Their special significance lies in the fact that they embody legal norms for situations in which human freedom, especially in relation to the state, is involved in a manner which has a fundamental bearing on the quality of life?.

In the case of countries where international obligations are not part of domestic law and have not been enacted into domestic law, the ombudsman may be able to rely on the international obligations as an interpretative guide to existing domestic human rights law. Alternatively, he or she may be able to point to the gap between the international obligations of the state and the existing domestic legislation and illustrate how this has operated to the detriment of an individual complainant.

Finally, regardless of whether the state has formal international obligations or whether an existing international obligation forms part of domestic legislation, the ombudsman may find it helpful to use international human rights norms as an informal source of principles of fairness and equity. The benefit of this approach is that it allows the ombudsman to take a more expansive view of what is fair and reasonable even though the particular action which is the subject of a complaint may not, in fact, contravene domestic law. And, by definition, international norms reflect a wider community of views as to what constitutes humane and fair conduct.

Many ombudsmen are already legally empowered to proceed in the manner outlined above. Indeed, the Ombudsman of Norway was recently granted an express human rights mandate. For those who are not, I hope that the issues I have raised will provide a basis for reflection on the relevance and effectiveness of their remits in a rapidly changing world order. And for those who feel constrained to operate solely by reference to the domestic legal environment I would exhort them to take a more expansive view of their jurisdiction along the lines which I have outlined in the previous paragraph. It seems to me that this approach is one which is open to all ombudsmen, regardless of the legal environment in which they operate. I strongly encourage them to make it part of their investigation tool-kit. And insofar as my colleague ombudsmen in Europe are concerned, there may be scope to explore these ideas further in our two yearly round table meetings with the organs of the Council of Europe.

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