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"Setting up an Ombudsman Institution or National Human Rights Institution" (12.04.2007)

Address by Emily O'Reilly, Ombudsman at 10th Round Table of European Ombudsmen and the Council of Europe Commissioner for Human Rights

Introduction

Thank you, Chairman, for that introduction and now that I have the floor, let me begin by congratulating Mr Kaminis and his Office on their 10th anniversary. Mr Kaminis and his predecessor, Professor Diamandouros - now, of course, the European Ombudsman - are old friends of my own Office. My Office is now over twice the age of the Greek Office but like any older sibling, I know that we were very happy to provide their staff with some practical assistance and training when they first joined the ombudsman family. Since then, the Greek Office has established itself as a very influential player in the ombudsman community, generally.

My thanks also go to the Council of Europe and the Commissioner for Human Rights for inviting me to participate in this important discussion about enhancing co-operation between the Commissioner and ombudsmen and national human rights institutions (NHRIs). It is an important debate and a timely one. I come from a corner of Europe where the European Convention on Human Rights (ECHR) only relatively recently has been incorporated into domestic legislation. The same is true of my nearest neighbours, although they at least got there some years before Ireland. My country has a Human Rights Commission (led by our Chairman, Dr Manning), Northern Ireland also has a Human Rights Commission and later this year, we will see the opening of the new Commission for Equality and Human Rights in Great Britain.

In parallel with these developments, the community of ombudsmen in the United Kingdom and Ireland has been asking some very serious questions about whether they ought to step forward to the human rights coal face. The enactment of specific human rights legislation in both jurisdictions has led to calls for the promotion of a human rights culture. What I mean by this is that firstly, human rights should become part of the process or "rules of the game" of government and political life and secondly, that human rights should become part of public consciousness. By contrast, British and Irish ombudsman legislation seems to be concerned with a narrower set of rules and focused more or procedural propriety (the avoidance of maladministration) as opposed to the protection of basic human rights.

I say that this seems to be the case, but, of course, every day, my colleagues and I grapple with complaints about social housing, health care, disability and social services which not only raise procedural issues about the basic entitlements of individuals to monetary grants and benefits, but also the most profound issues of human dignity and respect. An example is the investigation which my Office published some years ago about payment of financial subsidies to patients in private nursing homes. The investigation uncovered serious maladministration resulting in refunds in excess of €12million to patients and their families and more recently, further maladministration which has come to light will result in further repayments estimated at €1billion. The regulations underpinning the scheme have been amended but significantly, the Ombudsman's report generated a debate about the care of the elderly in Ireland - a debate which is still ongoing.

Despite this and some other once-off successes by my Office, Ireland has a long way to go in establishing a human rights culture. But we are not alone and I suspect my British colleagues would probably echo the same sentiment in relation to the impact of their human rights legislation. A recently published report "Power to the People?: Assessing Democracy in Ireland" draws attention to the high levels of poverty and inequality in the following terms:

".....while internationally committed to the provision of social and economic rights, the absence in Ireland of a human-rights orientation in the framing of, and access to, public services exacerbates the inequities which arise from income inequality, which is itself an outcome of political decisions that limit redistribution. Many politicians are wary of enforcing and protecting through law those rights to public services such as health, education, housing or disability services."

I think this comment graphically illustrates the challenge faced by my Office and indeed, by the Irish Human Rights Commission and other similar institutions. Human rights principles are a necessary part of good public service delivery and, in turn, ought to be within the field of vision of every ombudsman as he or she goes about the daily task of investigating complaints.

I hope it will now be clear from this preamble why I consider our discussions here in Athens to be both important and timely. Our discussions at home about where maladministration and human rights intersect complement the issues raised on the wider European stage by the Group of Wise Persons and Commissioner for Human Rights. But more of that later - now I want to turn to the subject matter of my presentation.

Setting up an Ombudsman Institution

My paper focuses on the setting up an ombudsman institution rather than a national human rights institution. As I said earlier, in Ireland we have both but I am hoping that in the discussion that will follow my paper we will have the opportunity to hear some comments from Dr Manning about his experiences of the Irish Human Rights Commission.

Because of differences in culture, history and approach, each ombudsman is, in a sense, unique. There are wide variations in the jurisdictions of individual Ombudsmen even among those in Western and Northern Europe. Some, for example, cover the defence forces, the police, the prisons and even the courts. There are differences in their respective relationships with Parliament or Parliamentary Committees and with the Courts and of course in their approach generally to their work.

But the overriding imperative is that each national ombudsman begins by positioning himself or herself amid the historical, cultural, social and economic conditions prevailing in his or her country. Today, I hope to share with you the experience of my own Office as it has, over the last 23 years, moved from relatively humble beginnings to becoming a significant force for change in the manner in which the administration goes about its business. The development by my Office and by my predecessors over that period, of principles of good administration, of what constitutes redress, and the circumstances in which redress should be made, has fed into the wider administrative culture in Ireland and become accepted at least as a norm that should be aimed for, if not yet fully achieved.

In my country, as in many others, there is both a political and cultural acceptance of that role as appropriate and proper. But that acceptance is not something that happens as soon as the first ombudsman of a country or a region turns the key in his or her new office door. It is something that can take a long time to achieve in practice as I know that some of the newer ombudsman offices are only too well aware.

Legitimacy and the Ombudsman

None of our offices exist in a vacuum or could survive in a vacuum. We may be independent but we succeed fundamentally only if there is a wide cultural, and, yes, political support for what we do. That is not to say that a government or a public body would necessarily agree with or even like our decisions, but they do accept that the office has legitimacy, and not just directly from the actual law, but legitimacy in the eyes of the people. But legitimacy in the eyes of the public isn't enough either. We also need de facto legitimacy in the eyes of the administration. And we gain it by the manner in which we go about our business when dealing with complaints, fairly, impartially, setting out our case not just backed by the so called moral authority of the ombudsman, but also with sound empirical evidence that the case we present on behalf of a complainant, is not just good but irrefutable.

In one sense we try and emulate in our work, what most people would want from the larger administration or Government. People want a public administration in which they have confidence because they know that, by and large, it is honest, it is fair, it is responsive to them and inclusive of them, it is efficient and gives value for money, it is effective in that it produces results or outcomes which increase the welfare of the community as a whole, economically, socially and environmentally.

This confidence, which is an essential ingredient of a properly working democracy, can be secured only if public administration is open, transparent and accountable and if there are effective mechanisms in place to ensure this. In many countries, the most important mechanisms have been, and will continue to be, Parliament and the courts. Added to these is the mechanism of public scrutiny in which the media play a vital role.

In addition, in very many countries new independent institutions have been created operating, in a manner of speaking, in the twilight zone between Parliament and the courts. In Ireland, the Comptroller and Auditor General has been there since the beginning of the State to help the Parliament in its efforts to ensure that public resources are used correctly, properly, efficiently and effectively. This office has been joined since 1984 by the Ombudsman, since 1989 by the Data Protection Commissioner, since 1995 by the Public Offices Commission (now the Standards in Public Office Commission) and since 1998, by the Information Commissioner under the Freedom of Information Act, 1997. All these offices enjoy considerable powers both to investigate and to secure remedies. And, of course, we also have the Referendum Commission - an independent body which conducts public information campaigns on Government proposals to amend the Irish Constitution. And, in a sense, each one of these organisations buttress the work of the others through a constant feeding into the consciousness of the public administration of the principles of good administration, underpinned, as I have said by the principles of openness, transparency and above all, fairness.

In our own role, as Ombudsmen, our bread and butter work is of course securing redress for individual complainants. However, we must remember that the reason why an ombudsman tries to secure appropriate redress is not only to satisfy aggrieved complainants but, in the longer term, to improve the administrative accountability of government and the extent to which it treats its people fairly.

As I have said, my Office's primary role is to examine complaints in a fair and impartial manner. But our interest does not stop there. We expect public bodies to take on board the lessons to be learned from their past mistakes so as to ensure that similar complaints do not arise in the future. Thus, we see our role in examining complaints as leading to continuous improvement in the overall quality of public administration. In this respect we differ from the courts. The courts will grant relief or redress but, unlike an ombudsman, rarely if ever, focus on securing systemic improvements in the quality of public services. Let me give you a few examples of what my Office has achieved in that regard.

My Office also has had some success in influencing Government policy in relation to the modernisation of the public service and, in particular, the improvement in the quality of services delivered to the public. All public authorities are now required to have internal complaints systems. In addition, as a result of guidance published by my Office on redress for maladministration, I am helping a high level group of public servants to devise recommendations for Government on how to empower public authorities to grant redress "when things go wrong" without the need to refer the matter to my office.

Nowadays many of the issues described above, which my predecessors fought hard to resolve, are taken for granted within the system generally - the principle that a complainant should be put back in the position they would have been in, had the administration not done what it did now seems obvious. But it wasn't always obvious and it has taken a lot of time and patience not just on behalf of my own Office but on the part of other domestic and European institutions to get the principle to stick. And at this point I would like to elaborate on what is meant nowadays by administrative accountability.

Administrative Accountability

I define administrative accountability as the process of ensuring that public service activities and, in particular, the exercise of decision-making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner consistent with fairness and good administrative practice.

In short, and speaking of the Irish context, the Ombudsman decides whether or not public bodies are guilty of maladministration. Just as financial auditors examine the activities of the public service against certain financial principles and criteria, the Ombudsman examines their activities against the background of what are commonly referred to as the principles of good administration.

My Office set out these principles in order to guide public bodies in their dealings with the public. These principles assert, for example, that:

• powers must only be used for the specific purpose for which they are given;
• powers must be applied with objectivity and impartiality - factors not relevant to the particular case must be disregarded;
• unfair discrimination must be avoided - like cases must be treated in like manner.

The Office also set out a list of rights which people should be able to invoke in their dealings with public bodies. These include: the right to be heard, the right to receive sufficient information, and the right to be given reasons for decisions that affect one. These themes were developed further in "The Ombudsman's Guide to Standards of Best Practice for Public Servants". This Guide includes a set of standards under the separate headings of dealing with people "properly", "fairly", "openly" and "impartially". The guide takes account of developments such as freedom of information, ethics and electoral legislation, the principles of quality customer service and the provision of redress. The Office has also published a Guide to Internal Complaints Systems and a guidance note on the provision of redress entitled "Redress - Getting it wrong and putting it right".

Fair Treatment

The Ombudsman's role is not simply a question of ensuring a better quality service to customers or clients. While obviously having a shared interest with public bodies in ensuring better service, the Ombudsman's interest goes deeper than that. If any section of the community feels that the system treats it unfairly, and that there is no accessible avenue of redress, then that confidence in public administration so essential to democracy will be missing. Greater efficiency and cost-effectiveness are, of course, key elements which the public service must pursue but it must never be forgotten that, unlike his or her counterpart in the private sector, the user of public services seldom has a choice of an alternative competitive supplier. Fair treatment is vital and must not be lost sight of when efficiency measures are being introduced. In addition, the pressures on individual public servants arising from greater commercialisation and greater personal accountability for performance must not lead to any diminution of public service values.

In trying to ensure that public servants are held accountable for their administrative decisions, the Ombudsman acts at a number of levels. At one level accountability for individual decisions is achieved by the examination and investigation of individual complaints and the provision of redress where justified. Since the Irish Office was established, over 70,000 complaints have been handled and in approximately 40% of cases some form of redress has been achieved. Examination of individual complaints often leads to the identification of systemic defects in procedures, approach or even attitudes and at this level valuable feedback can be given to the bodies within the Ombudsman's remit. Procedures and systems can then be improved in order to ensure that particular complaints do no recur.

The Educative Role of the Ombudsman

It will be clear from the preceding paragraphs that an ombudsman should not confine himself or herself solely to the investigation of complaints. The long-term objective should be to improve overall standards of public administration. And one of the important ways of doing this is through adopting an educative role and by issuing guidance for public servants on how to deal with their clients, how to handle complaints and how to make appropriate redress when things go wrong.

Guidance of this type helps to create a positive relationship between the ombudsman and public bodies and counterbalances the negative feelings which can arise when public bodies are defending their decisions when responding to complaints which are under investigation by the ombudsman. The educative role helps to diminish adversarial attitudes and casts the ombudsman in the role of a "critical friend". Ultimately, the fostering of positive working relationships with public bodies promotes confidence in the ombudsman and helps to secure compliance with his or her recommendations.

Recommendations or Binding Decisions?

One of the characteristics that defines an ombudsman - in particular, a national ombudsman or one whose jurisdiction covers the public sector - is the power to make recommendations as opposed to binding decisions.

It is true that some specialist ombudsmen, for example those whose jurisdiction extends to a particular industry - insurance or banking - do make binding decisions. But this is usually on the basis that the members of the particular industry voluntarily subscribe to the ombudsman's jurisdiction and in that context, agree to be bound by the ombudsman's decisions. And usually the industry ombudsman's decision-making powers are well defined and limited. For example, there may be upper limits on the amount of financial compensation that he or she can award in any particular case or he or she may be precluded from proposing systemic changes to a particular scheme or programme.

For the purposes of this paper, my comments about the recommendatory powers of the ombudsman relate solely to the national or public sector ombudsman.

I said that the power to make recommendations is one of the characteristics that defines an ombudsman. Indeed, an ombudsman who has the power to make binding decisions is arguably not an ombudsman but more in the nature of an administrative tribunal or a court. And we must remember that if an ombudsman were to make binding decisions, then the fundamental principles of administrative law require that there be an avenue of appeal against the ombudsman's decision. And if there is an appeal (other than an application for judicial review of the ombudsman's decisions) then the ombudsman is no longer the avenue of last resort - this too, is a fundamental characteristic of an ombudsman. Also, there is no doubt that if the ombudsman were to have the power to make binding decisions his or her office would become very legalistic in its approach and would lose the informality and user friendliness which define an ombudsman's approach to the examination of complaints.

I have no doubt that, if the Irish Ombudsman's Office had been given the power to make binding decisions, we would have found ourselves, especially in the early days, faced with many legal challenges. Instead we are able to recommend remedies which would not have been given by a court and to hold bodies administratively liable even where there is no legal duty of care or statutory liability. Another aspect, often overlooked, is that the majority of legal claims taken to Court in Ireland are settled out of court without any admission of fault or explanation. There is no assurance to the complainant that any action has been taken to prevent recurrence of the adverse action although this is often a matter of great concern to complainants. Many of the Irish Ombudsman's recommendations are aimed at improving procedures and systems for the future.

And yet, in my experience, if an ombudsman experiences difficulty in having a recommendation implemented, there are immediate calls for a review of his or her powers and demands to make the recommendations binding. For the reasons outlined above, it is important that such demands are strongly resisted.

Clearly, an ombudsman must have some additional powers available to him or her if a public authority decides to reject a recommendation. Usually, the ombudsman has the power to make a special report to Parliament. He or she can also publicise the fact that the recommendation has been rejected and can highlight the rejection in the Annual Report. Some ombudsmen (for example, the local government ombudsmen in England) have the power to compel a public body to publish in the local newspapers its decision to reject the ombudsman's recommendation. And indeed, the ombudsman can also publish details of the public body's rejection in the media and compel the body to pay the cost of doing so.

The above powers highlight the importance of parliamentary support and public support in securing implementation of the ombudsman's recommendations. I now deal with each of these two issues in more detail.

Parliamentary Support for the Ombudsman's Recommendations

The ombudsman's relationship with Parliament is crucial. Without it, the ombudsman cannot hope to succeed in carrying out his or her functions effectively. Similarly, if Parliament does not enjoy the support of the ombudsman or if Parliament has lost trust and confidence in the ombudsman then Parliament's effectiveness is reduced in its task of holding government and its institutions accountable for their actions.

And so it is that in order to support both institutions - the ombudsman and parliament - the ombudsman has a reporting relationship with Parliament. The strength of this reporting relationship will vary from country to country. In some countries the relationship is reasonably general in nature. The ombudsman is obliged to submit the annual report and any"systemic"special reports to Parliament and any other report - for example, a report relating to the rejection of a recommendation by a public body. Parliament will debate these reports and take such action as it deems appropriate.

Some countries require the ombudsman to report to a specific parliamentary committee and designate the ombudsman as an officer of Parliament. If the ombudsman is experiencing difficulty in getting co-operation from public bodies or if they have rejected the ombudsman's recommendations, the chief executives of the bodies in question can be summoned to appear before the committee. The committee, having heard their evidence, can invite the ombudsman to comment and, in this manner, help to improve the level of co-operation received by the ombudsman. Similarly, the committee can hold the ombudsman to account and can ensure that the resources available to the ombudsman are used in an efficient and effective manner. This latter point assumes even greater importance where Parliament has the power to determine the budget for the ombudsman's office.

It is also worth noting that while Parliament as an institution may be very supportive of the ombudsman, individual parliamentarians may take a different view. Some parliamentarians may be jealous of the ombudsman's extensive powers and resources and his or her ability to secure redress in individual cases which may be way beyond what an individual parliamentarian could hope to achieve for any of his or her constituents. Others take a more pragmatic view and are happy to refer their constituents to the ombudsman or indeed to contact the ombudsman on their behalf and in this manner act as the "representative" of the complainant. And it is worth noting that a member of the public cannot complain to either the Parliamentary Ombudsman for the United Kingdom or, in the case of France, to the Médiateur de la République, unless a public representative has sponsored their complaint.

Trust and Confidence in the Ombudsman

I mentioned earlier that it was important that parliamentarians had trust and confidence in the ombudsman. He or she must manage resources with efficiency and effectiveness and must be seen - not just by Parliamentarians, but also by government, the media and the public - to be impartial and independent in carrying out his or her functions. Most of all, he or she must be effective in securing fairness as an outcome to complaints coming within his or her remit. And it is the latter objective that is the most demanding to achieve. An ombudsman whose every recommendation is rejected is unlikely to win anybody's confidence. But equally, an ombudsman who never has a recommendation rejected may be open to question on the grounds of being "too soft" on the administration. An ombudsman who succeeds in having the vast majority of his or her recommendations accepted will have secured the trust and confidence of public bodies and the public generally. Those recommendations that are rejected will demonstrate his or her determination and courage to push out the boundaries of what constitutes fair or sound administration.

Public support for the Ombudsman's Recommendations

The four key factors which the public demand from their ombudsman are independence, accessibility, fairness in dealing with their complaints and effectiveness in securing appropriate redress. An ombudsman who makes it easy for people to complain and who helps them to formulate their case, while, of course, remaining impartial, will secure public support for his or her office in times of difficulty - for example, when the ombudsman makes a special report to Parliament on foot of a public body having rejected his or her recommendations on a particular complaint. In that eventuality, the importance of public support cannot be over-estimated.

The Ombudsman Act, 1980 confers considerable powers on the Irish Ombudsman to examine and investigate the actions of public bodies. It also allows the Ombudsman to conduct her investigations in whatever manner she "considers appropriate in all the circumstances of the case" and subject only to the requirements of constitutional justice. Equally, where the Ombudsman considers that a person has been adversely affected by an action, the Act allows quite a degree of latitude as to the remedy which the Ombudsman may recommend. It is the hallmark of ombudsman offices internationally that they operate flexibly and informally within a range of working methods, and with a range of possible remedies. The Ombudsman Act, 1980 enables the Irish Office to operate in this manner and allows for evolution and development in line with best international ombudsman practice.

Accordingly, our Office does not consider complaints solely on the basis of whatever the two sides put forward. Such an approach will not necessarily result in outcomes which are fair. Because of the unequal positions of the two sides, viz. usually an individual against a large public service body, the complainant is not always able to present the best possible case. For this reason, our staff will generally make the benefit of their own expertise and knowledge available so that complainants can better describe the adverse effect on them and the alleged shortcomings in the public body's decision making process.

To this extent the Office acts, in a sense, on behalf of the complainant in presenting or articulating the perceived maladministration by the public body. However, we have to be entirely objective as regards the ultimate outcome of the complaint. It is not our role to make representations on behalf of complainants but rather to assess whether the public body has acted properly, fairly and impartially in the particular case. I believe it is reasonable, in effect, to discriminate in favour of the complainant in terms of ensuring that the best case is made while at the same time remaining objective in terms of the ultimate outcome. This can be a difficult balance to achieve but, in general, I believe that public bodies accept the legitimacy of this approach.

As with most ombudsman offices, my office variously finds itself acting as conciliator, as facilitator, as investigator, as presenter of complainants’ cases, as enablers (where a complainant cannot develop and articulate the relevant arguments); and of course, ultimately, our Office must take a view on the merits of the particular complaint. In seeking solutions to the problems presented in complaints, the ultimate step is a written investigation report with formal findings and recommendations. This arises in a small minority of cases only. The vast majority of complaints are concluded on the basis of a relatively informal, but none the less, fair procedure. The methodology of the Office, in seeking the conciliatory resolution of disputes where possible, is in sharp contrast with the adversarial nature of the courts. In addition, where the complaint centres on an issue of fairness rather than of legality, the Office may provide a remedy not available at law.

Not surprisingly, the resolution of complaints is not always black and white and this is reflected in the range of remedies achieved. Remedies can range from an apology given, the payment of a disputed grant or allowance, the payment of compensation and/or changes to the rules or procedures governing a particular scheme. Where a complaint is only partially upheld, for example where a compromise settlement has been achieved between the parties, then the remedy will reflect this compromise. That said, public bodies themselves need to be much more active in offering remedies, on their own initiative, where their actions have caused loss for a client. Such an approach is entirely consistent with the development of internal complaints systems across the Irish public service generally.

Monitoring the implementation of Recommendations

Where a public body agrees to implement an ombudsman's recommendation - particularly one involving procedural or systemic changes in the organisation - it is important that the ombudsman monitors the implementation of the recommendation over time. This will guard against the possibility that the body might immediately accept the recommendation but in the hope that sometime later, it can then quietly ignore it.

Recommendations that are rejected by the Administration

The number of recommendations that are rejected by public bodies is likely to be very few in number as compared to the instances where recommendations have been accepted and implemented. They are likely to be cases where there is room for a genuine difference of opinion and may also have distinct policy or political implications. When a recommendation is rejected by a public body the ombudsman will have to decide whether to make a special report to Parliament or, indeed, whether to do nothing further. Sometimes it may be entirely appropriate, given the circumstances of the case, not to refer it to Parliament if the ombudsman has grounds to believe that there is no prospect of securing Parliamentary support for his or her recommendation. Ombudsmen differ on this point - some take the view that all rejected recommendations should automatically be reported on to Parliament. Those who do not share this view are primarily influenced by the potential damage to the credibility of their office in the event that Parliamentary support is not forthcoming. However, an ombudsman who takes this view, also has the difficult task of justifying to the complainant his or her decision not to make a special report. And such a decision, from the complainant's perspective, can also be damaging to the credibility of the Office.

Conclusion

That concludes my thoughts on how my particular Office has achieved some success in its role as a monitor of the administration and as a watchdog on behalf of the people to ensure fair treatment at the hands of the Irish public service. However, to paraphrase the old Chinese saying, we have the good fortune to live in interesting times! The classical or traditional ombudsman model faces new challenges. Hard choices need to be made by some of us whether to play an active role in the human rights arena or to stay within the more comfortable zone of unearthing maladministration.

I welcome this conference because it forces us to consider these and other questions which open up the possibility of strengthening the ombudsman and NHRIs in the years ahead. Chief among these questions is the matter of co-operation between ombudsmen, NHRIs and the Commissioner for Human Rights and I look forward to the unfolding discussion on that issue. But there is, perhaps, also another more fundamental question, namely, the extent to which ombudsmen and NHRIs co-operate at national level. I know we will have an opportunity to debate that issue tomorrow but it is, I suspect, an area where many of us could be found wanting!

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