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"Compliance with the Ombudsman's Recommendations" (11 December 2004) (11.12.2004)

Address by Pat Whelan (Director General, Office of the Ombudsman, Ireland) at International Ombudsman's Conference organised by The Turkish National Assembly and the Greek Ombudsman in co-operation with Bilgi University, Istanbul "Compliance by the Administration with the Ombudsman's Recommendations

Introduction

Because of differences in culture, history and approach, each national 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.

Indeed, there are important differences in approach with, for instance, the Danish Ombudsman, perhaps, being most proactive in undertaking investigations on his own initiative whereas in the United Kingdom and France complaints must come through a member of Parliament. While the term Ombudsman is increasingly used in Britain, the legal nomenclature is Parliamentary Commissioner for Administration and in France, "Le Médiateur de la République". In addition, the concept of fairness and equity which underlines the institution of ombudsman has been taken up in recent years with enthusiasm by new democracies in Eastern Europe, Africa and Latin America.

On one hand, we have what's known as the classic or traditional ombudsman in countries which have long enjoyed democratic and constitutional freedom governed by the rule of law. On the other, in the newer democracies we have the Public Protector or "Defensor del Pueblo" whose remit also extends to corruption and infringements of human rights.

Given these differences, it would be presumptuous of me, as the representative of the relatively small, albeit, successful, Office of the Ombudsman of Ireland, to come here today to lecture you about best practice from an ombudsman's perspective. Rather, 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. My objective here today is to do no more than share with you some of the experiences that have contributed to the success of the institution of ombudsman in Ireland and in some of our neighbouring European countries. It will be a matter for you to decide if these experiences are relevant and appropriate to your plans to establish an ombudsman institution here in Turkey.

Public Administration, Public Expectations and the Ombudsman

Before addressing the main theme of my paper viz., compliance by the administration with the ombudsman's recommendations, we should ask ourselves two questions:
"what do people want of their Government and public administration?" and
"what do people want of their ombudsman?".

To deal with the first question, of course, they want a myriad of things, depending on who they are and what their circumstances are at the time. People are taxpayers, mortgage holders, social welfare recipients, members of ethnic minorities, employees, politicians, business people, drug addicts, prison inmates; they are young, old, middle-aged, healthy, sick, disabled; they are men, women, poor, rich, informed, uninformed...one could go on indefinitely.

I believe that 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 my view, however, there is a need for more research and enquiry into how the two great institutions of a modern democratic state, the Parliament and the courts, can be made more effective in ensuring the greater accountability of Government and public administration, to the people generally. As to the media, questions have been raised concerning the suitability and the ethics of their being used (or sometimes abused) as a mechanism of accountability. However, this is not the occasion on which to address that complex issue.

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 have also have the Referendum Commission - an independent body which conducts public information campaigns on Government proposals to amend the Irish Constitution.

To answer the second question, "what do people want of their ombudsman?" I believe they expect him or her to be:

• clearly independent in doing the job,
• accessible to the public with as few formalities as possible and at no cost to them,
• fair in dealing with complainants and also with the public bodies which are investigated, and
• effective in securing appropriate redress when justified.

In this paper, I deal principally with the latter point - effectiveness in securing appropriate redress. 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. Before discussing effective redress, I have some comments to make about administrative accountability and fairness.

Administrative Accountability, Fair Treatment and the Ombudsman

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.

The 1994 Annual Report of the Irish Ombudsman 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.

These principles were first developed in the 1980s by a Committee of Ministers of the Council of Europe and given the theme of this conference, it is not at all difficult to see how relevant they still are today.

The 1994 Report 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". The role of promoting best practice is one which the present Ombudsman, Emily O'Reilly, is very keen to further develop during her tenure.

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, 66,000 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 remit. Procedures and systems can then be improved in order to ensure that particular complaints do no recur. There is, however, a further level to which I attach particular importance. That is identifying, and seeking remedies for, deficiencies or injustices which have become endemic in the public service culture and which contribute to that "democratic deficit" which everyone admits exists and which alienates the people from the institutions of State.

Securing Compliance by the Administration

In the following paragraphs I describe the principal factors which contribute to compliance by the administration with the ombudsman's recommendations.

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.

In many countries the ombudsman�s budget is determined - not by Parliament - but by government which leaves the ombudsman open to the perception that he or she is not independent. It also leaves it open to government to starve the office of resources in order to reduce its effectiveness. Having the budget determined by Parliament may appear to be a more satisfactory mechanism but this is not necessarily so. It depends on the nature of the Parliament, its relationship with government and the importance that Parliament attaches to the ombudsman�s role.

In relation to the latter point it is 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 directly 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

I mentioned earlier the four key factors which the public demand from their ombudsman. These were 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.

In the following paragraphs I describe how the Irish Ombudsman's Office has cultivated public support through the manner in which it deals with complainants.

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.

In principle, a remedy is called for where a member of the public has suffered loss ("adverse effect") because of the actions (or inaction) of a public body. The loss may be a direct, financial loss and thus quantifiable (e.g. a grant wrongly refused); or it may be in terms of time, effort and perhaps money lost in coping with the consequences of a bad decision; or it may be in terms of an opportunity lost ( e.g. to object to a planning application) or it may be a loss in terms of anxiety and upset resultant on a bad decision. Or, indeed, the loss may involve any combination of these elements.

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.

Use of Annual Report to gain Public Support and to publish "Precedent Cases"

The ombudsman's annual report should be circulated as widely as possible among public bodies and the public generally. It should also be put on the Office's website. Accordingly, the ombudsman should foster good relations with the media to ensure that the report receives maximum publicity. A well-presented and well-written report will help to increase awareness of the office and, in time, encourage members of the public to use its services, and in the longer term, engender public support for its services.

The annual report can also be a useful forum in which to raise issues of concern to the ombudsman. For example, procedural shortcomings identified from the examination of one complaint in a particular public body can be brought to the attention of all public bodies and they can be encouraged to review their procedures to ensure that similar complaints do not arise in their areas of responsibility. This approach is particularly useful with local councils or municipalities which are all autonomous but yet deliver the same range of services to their clients.

This approach also allows the ombudsman to highlight the "precedent" value of complaints which he or she has resolved. It can encourage greater levels of compliance by public bodies in two important ways. First, it facilitates public bodies in identifying standards of best practice and makes them more likely to settle complaints on their own initiative without the need for the ombudsman's intervention. Second, in the event of a public body contemplating rejection of an ombudsman's recommendation, it can help to secure acceptance of the recommendation if the ombudsman can point to a similar case, or one in which similar principles apply, which already had been accepted by another public body.

Finally, there may be cases in relation to which the ombudsman is meeting total resistance from a public body and in which it appears to the ombudsman that were he or she to make a recommendation that this would, in all probability, be rejected by the public body. It can be useful in such cases for the ombudsman to give an account of the case in the annual report on a "work-in-progress" basis. Sometimes, in such cases, the power of public opinion can force the public body to rethink its grounds for opposing a settlement of the case.

Legislative Authority to pay Financial Compensation

Where the ombudsman makes a recommendation for financial compensation to a complainant who has been adversely affected by administrative negligence it is important that the public body in question has legislative authority to make the payment. Ideally, this legislative authority should be included in the ombudsman legislation. Otherwise it can result in a public body saying that it accepts the ombudsman's recommendation, in principle, but that it does not have the authority to make a payment to the complainant.

Lack of resources and poor quality administration

The question often arises as to whether an ombudsman should make a finding in relation to a complaint which is a direct result of a public body having been starved of adequate resources. On the one hand it can be argued that the provision of resources is a matter for government and that a recommendation by the ombudsman to provide resources is an encroachment on the functions of government. It is an area where an ombudsman need to exercise caution but he or she will need to establish why the public body is underfunded, the attempts it has made to secure resources and the criteria used by the funding authority to allocate resources.

On the other hand, if the Parliament has passed legislation providing for particular benefits or entitlements and the government has neglected to provide the necessary resources this is a matter that the ombudsman ought to bring to the attention of Parliament, and perhaps the general public.

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 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

As I said at the beginning of this paper, some of the experiences I have described may resonate with you and others may not. But it is my hope that they will be of some assistance as you move forward with your plans to establish an ombudsman institution.

In the final analysis, it seems to me that the success of any ombudsman's office is dependent on just two factors. First, because it is a highly personalised role, the individual qualities of the incumbent ombudsman are highly important. Is he or she courageous, decisive and wise? Or is he or she reticent, indecisive or, indeed, pliable? The second factor is the effectiveness of the other organs of the state. Are Parliament and Government effective? Does the judicial system command public trust and confidence? If these organs are effective, the ombudsman's task becomes easier to achieve. But if they are not, it may be asking too much of an ombudsman, unless other support structures are also put in place.

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