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Evolving Role of the Ombudsman: New Responsibilities, New Opportunities, New Challenges

Speech by IOI President and Ombudsman Peter Tyndall at the Forum of Canadian Ombudsman and Association of Canadian College and University Ombudspersons, Ottowa.

May 16 2017

I am delighted to have the opportunity to speak to you today.

I am currently the Ombudsman for public services in Ireland and prior to that I held a similar position in Wales. I am also, since November, President of the International Ombudsman Institute (IOI) and it is in this capacity that I am speaking to you today.

I follow in the recent footsteps of our Taoiseach – the Irish Prime Minister, who met with Prime Minister Trudeau earlier this month on May the 4th in fact.

The IOI, of course, has had a long association with Canada.  The establishment of the International Ombudsman Committee and the first international conference took place in Edmonton in 1976.  The IOI was then incorporated under Canadian law and hosted here for many years.

More recently the FCO, utilising IOI funding, was able to organise training in British Columbia on, “Systemic Investigations for Small Offices”.

When I started work as an Ombudsman, I quickly became aware of the high profile role adopted by some Canadian Ombudsman Offices.  The own-motion work of the Ontario Ombudsman and the associated “Sharpening Your Teeth” training were particularly well known outside Canada but I also learned about the work of Fiona Crean when she was in Toronto and Howard Saper’s work as Federal Correctional Investigator.  Howard went on to be of particular assistance to me in Ireland as I developed the case for jurisdiction over prisons. 

In the IOI I served with Howard and Peter Hourihan on the World Board and more recently, with Paul Dubé.  Given my admiration for the work of the Canadian Offices, I was particularly pleased to have the opportunity to participate in your conference to learn more of your practice and to encourage others to join the IOI family so that we can benefit from your knowledge and experience and you can draw on the rich tapestry of Ombudsman practice within the IOI membership.

The Ombudsman institution has proved remarkable adaptable over the years.  Some see the risk of dilution in the expanding roles but I prefer to see the growth in activity as evidence of the trust in our ability to hold public services to account and our adaptability in taking on complementary roles.

The classical Ombudsman model with which we are most familiar in the English speaking world developed following the direction set by Denmark, whose Office dates to 1955.  This model is primarily concerned with maladministration.  It provides an alternative to the courts, is independent, objective and free to the complainant.  It can be regarded as the final stage in the formal complaint process short of access to the courts.

The Ombudsman concept has taken on new powers and competences as it has spread around the globe.  The core values of independence, objectivity and fairness remain as relevant today as they were more than 200 years ago, but the changing face of our societies and our governance have enabled Ombudsman Offices to take advantage of new opportunities and to address new challenges.  The role of the IOI in supporting the transfer of best practice and innovation is particularly important, but also the roles of assisting Offices to resist challenges and to ensure that the core values and principles underlying the Ombudsman model are not undermined.

I will refer to the challenges posed by the upsurge in populism and by the privatisation of public services.

In my talk today, I will pay particular attention to the role of Ombudsman Offices in protecting human rights, which has probably been the single most important development in recent years.  However, I also want to mention some other key roles taken on by Offices which have proved to be complementary and which offer an insight into possible developments elsewhere.

The first of these is anti-corruption.  Many Ombudsman Offices especially in Asia and in Africa have this role explicitly, and it formed part of their original work when they were founded.  However, it is not confined to those continents.  The Welsh Ombudsman and the Northern Irish Ombudsman both investigate complaints against members of local councils.  This covers both allegations of corruption, but also of breaches of their Code of Conduct including issues around equality and respect.

My own Office provides the secretariat for the Standards in Public Office Commission, which amongst other roles, considers complaints about members of the Irish Parliament and local government, as well as senior staff members in our public services.  The investigative skills required are very complementary to those used in maladministration cases, and in some instances, the subject matter can overlap, for example in planning matters, where alleged corruption can lead to maladministrative outcomes.

There have been some very high profile cases elsewhere.  The work of the Control Yuan in Taiwan brought about the fall of a prime minister while the former Public Protector in South Africa brought the case against President Zuma regarding the use of state money to finance improvements to his private property which led to international coverage. 

I’m conscious that here in Canada, this work is undertaken by independent Commissioners, not least because Ireland looked to the models here in developing our own regime.  The Register of Lobbying in Ireland, which is overseen by the Standards in Public Office Commission with secretariat support from my office, draws heavily on the Canadian example and the Registrar has come to us from Canada.

As I alluded to earlier, Human Rights work is one area in which public services Ombudsman Offices have become particularly active.  I would argue that human rights are at the heart of the work of all public services Ombudsman offices. The Ombudsman is a core component of the protections that all people should enjoy in a democratic state.  Some Ombudsman offices are also the National Human Rights Institution in their country.  Others, such as my own in Ireland, work alongside a separate NHRI.  However, my Office, and others like it, have clearly stated that a breach of human rights is always maladministration. This ensures that our Offices can play their part in ensuring that human rights are respected.

The IOI has supported this position, not least by providing funding for the Northern Ireland Ombudsman’s Office, who worked jointly with the Northern Ireland Human Rights Commission in the development of a toolkit for use in considering complaints.  This approach ensures that staff in our offices are alert to the possibility that the action of a public service provider may have breached a complainant’s human rights, and they respond accordingly.  The toolkit includes an excellent manual and has been accompanied by training.  I can strongly commend it to you and hope you will find it of assistance in your work in Canada.

When the IOI was founded, one of the key figures saw the Office of the Ombudsman as a human rights body.  However, at that time, none of the founding members were formally constituted as human rights institutions.  Now, in 2017, the majority of members are and the IOI by-laws now make clear that we ourselves are a human rights organisation. 

The development of Ombudsman institutions worldwide has had a key influence on this explicit recognition.  In Africa, in Latin America and in Central and Eastern Europe, the development of new Ombudsman offices, often in countries with emerging democracies or in those returning to democracy, saw a strong trend towards combining the NHRI function with the Ombudsman’s Office.

The classic Ombudsman model greatly facilitates this.  The Ombudsman should be independent of the Executive, and thus appointed by the Parliament or the Head of State following a vote in the Parliament.  This formal independence sits well with the Paris principles.  A range of powers including the compellability of evidence and co-operation of officials, broad jurisdiction over public services and the capacity to report to the Parliament all ensure that Ombudsman Offices can be effective in undertaking human rights roles.

Increasingly, Ombudsman Offices which are not NHRIs are taking on aspects of human rights jurisdiction.  Many Children’s Ombudsman Offices are charged with ensuring compliance with the United Nations Convention on the Rights of the Child while many Offices also have taken on the role of National Preventative Mechanism under the Optional Protocol against Torture.  One of the IOI’s roles is to provide training for members and NPM training has proved particularly valuable.

In practice, how does an Ombudsman go about protecting human rights?  The role of the Ombudsman is to hold public services to account.  We can do so in three ways.  The classical mode is simply to investigate a complaint by an individual.  Our job, as you know, is to seek to have the individual put back into the position they would have been in had the maladministration not occurred.  If there has been a breach of human rights, then this will also be remedied.

Non NHRI Ombudsman staff using the Northern Ireland developed human rights approach will explicitly seek to identify any human rights breaches even where these are not specified in the complaint.  However, one of the characteristics which distinguishes our work from that of the courts is that we look to see if there are systemic issues which may mean that the injustice suffered by the person complaining might also potentially have affected others, or could affect others in the future.  In which case, we make recommendations for changes to practice, procedures, training or even legislation to ensure that the underlying problem is addressed.  This is the second form of Ombudsman intervention, and there are many effective examples.

Finally, almost all Ombudsman Offices worldwide have own-motion or own-initiative powers.  These can be used to investigate instances where the Ombudsman believes an injustice has occurred, but the Office has not received a complaint.  Examples include the consideration of issues affecting refugees or asylum seekers, where the individuals concerned may distrust authority because of their personal experience, may be reluctant to complain for fear of it impacting decisions on their status, or may simply be unaware of the mechanisms available to them.  Issues regarding language also may tend to make it difficult for people to complain.

I would like to give an example of an investigation that was undertaken by an Ombudsman, in this instance, the then Ombudsman for Slovakia Dr Jana Dubovcová, using own-initiative powers.  The Ombudsman for Slovakia is an NHRI, but the investigation could equally have been undertaken by a classical Ombudsman.  In this instance, the matter investigated was the decision to place Roma children, without intellectual disabilities, into schools for children with special needs.  The Ombudsman concluded that the decision was not taken on educational grounds, but in fact constituted racial discrimination.

The outcome of this investigation illustrates another important point.  Ombudsman Offices doing their jobs will inevitably on occasions disagree with their governments.  One of my predecessors as IOI President, former New Zealand Ombudsman Beverley Wakem, often talked about the Ombudsman’s role in “speaking truth to power”.  In the case of the Slovak Ombudsman, the Ombudsman sought to lay this report before the Parliament, the National Council of Slovakia.  The Council refused to discuss the report, prompting an intervention from the IOI.  Ultimately, the report was discussed.

The rise of populism and the accompanying xenophobia, places an even greater reason for Ombudsman Offices to be active in this field.  As a native Irishman I grew up in a mono-cultural society which was dominated by the Catholic Church.  The denial of human rights to women, to disabled people and to children was commonplace and officially endorsed or condoned.  In recent years, however, huge strides have been made and we now have a far more diverse society, and can take particular pride in the overwhelming support for the same sex marriage referendum which was held in Ireland in May 2015.  However, we still have a long way to go in vindicating women’s rights and in dealing with the legacy of institutional care for disabled people.  That said, Ireland is one of the few countries in Europe where immigration does not shape elections or characterise political debate.

Before I became the Ombudsman in Wales, I worked on the delivery of public services to people including refugees and asylum seekers.  I was always conscious of the widespread xenophobia which regarded people from outside the UK with suspicion and often hostility.  In the end, I believe, this is what fuelled Brexit and led to the leave vote in their referendum.  The negotiating position of the British Government, which has placed the movement of people at the top of the agenda, is a real measure of the extent to which the populist position has been allowed to dominate.

When I worked in Wales in the 90s, the principal countries of origin of refugees and immigrants were Somalia and the Yemen.  This reflected the presence of seafaring communities in South Wales for many decades comprised mostly of men who were then joined by their families fleeing violence in their own countries.  The hostility they faced was appalling.  Any new development of social housing was said to be exclusively for them and there was a strong populist view that they were having preferred access to public services.

It is interesting to see how successive waves of people have experienced similar hostility.  In London, for instance in the 60s, landlords regularly displayed signs saying no blacks or Irish.   The Irish faced similar hostility in the USA, but sadly, elements of the Irish diaspora there became anti-immigrant in their turn.

More recently, in Britain, the focus of the hatred has shifted to people moving from Central and Eastern Europe following the expansion of the European Union.  The discrimination has been legitimised by the populist press, but also by the failure of political parties and civil society to provide effective advocacy.

It is interesting to note that the proportion of people born outside the UK who live there is lower than in my native Ireland.  It is also significant that the birth rate in the UK, as in much of the developed world, is leading to an increasingly older population.  Without immigration, the health service and social care will collapse, the economy will shrink and the cost of state pensions will be completely unaffordable as the number of people of working age will be insufficient to pay for them.

It is also instructive to observe that one of the consistent calls in the UK has been, as its proponents say “to reclaim our sovereignty”. This is often associated with renouncing the jurisdiction of the European Court, and a desire to repudiate human rights.  The present Government there is committed to the repeal of the Human Rights Act.  This is particularly ironic as the European convention on human rights, which was signed by the UK in 1951, was inspired by the iconic British Conservative politician, Sir Winston Churchill, ironically, in the face of considerable opposition from the then Labour government.  Indeed to paraphrase Winston Churchill “once the foundation of human rights is agreed on the lines of the decisions of the United Nations … we hope that a European Court might be set up, before which cases of violation of these rights … might be brought to the judgment of the civilized world.”

I have used the UK example as an illustration, because the outcome is so stark.  The IOI is equally aware of the threat to any Ombudsman who speaks out.  The example of Adam Bodnar, the Polish Ombudsman is instructive.  His Office was to the fore in protecting rights in Poland, which were in danger of being eroded by the populist right wing Government there.  In response, his budget was severely cut.  One action which the Government took particular exception to was in support of the LGBT community.  The Government also sought to undermine the Constitutional Court, and proceeded despite heavy international criticism.

The IOI in response established a Commission of Inquiry to go to Warsaw and speak with the Government, the judiciary, NGOs and other significant players to establish the facts and as a show of solidarity.  The IOI also worked with other key international partners to maximise our impact and to support theirs.  A report was published and launched at a press conference.  It received considerable publicity and hopefully helped to resist further erosion of the capacity of the Ombudsman’s Office.

Subsequently, the IOI prepared new guidelines setting out the range of measures which can be taken to support colleagues under threat, ranging from letters to Parliaments to practical support on the ground.

When the British and Irish Ombudsman Association was first founded, one of the original Ombudsman members joked that its purpose was to allow the members to “huddle together for warmth”.  There is a real sense though, that one of our key purposes in coming together is to show solidarity to each other.  The inevitable consequences of highlighting failures in public services and human rights abuses, and seeking to redress the wrongs people suffer as a result, is that more of our colleagues are likely to face challenges in the future.  These can take the form of insidious undermining, of cuts to budgets, of limiting powers, of denying access to the courts or the Parliament, or of appointment processes designed to put an Ombudsman in place who will be sympathetic to a regime.  Indeed, in some extreme instances, of threats of violence. We must be alert to these challenges, and resist them.  We must support our colleagues in their work and be prepared to speak out and act where they are threatened.

I am from a generation which witnessed great events.  We saw the death of apartheid in South Africa.  We saw the fall of the Berlin Wall and Germany reunited.  We saw the end of fascist regimes in Spain and in Portugal. On my own island, we saw the ending of violence in Northern Ireland. 

It is important that our legacy should not be the erosion of human rights and the collapse of the institutions that were built to safeguard the rights of all of our peoples.  The Ombudsman community must redouble its efforts to highlight human rights abuse whenever it is experienced.  We must tackle discrimination against people for whatever reason, including their nationality, gender, disability, sexual orientation or race.  We must use all of the tools at our disposal, including our relationship with our Parliaments, the courts and the media. 

Those Ombudsman Offices which are also NHRIs have a clear mandate for this work.  Those of us who are not, must nonetheless highlight these issues as they arise in the course of our work.  Offices which are not NHRIs often have immigration and asylum services, prisons and services for older and disabled people in their jurisdiction, where human rights abuses can and do take place.  Access to services for people from minority groups, such as the Irish traveller community or Roma communities in Europe, can be the focus of the denial of rights as well as threats to immigrant communities.  I am conscious that the challenges facing Canada's Aboriginal peoples have also been explored from the perspective of human rights.

Other colleagues work in countries which see many migrants in transit, and have played a key role in highlighting their plight and seeking improvements to their conditions.  It is clear that often working with people who are distressed, may not have the predominant language, and who have learned with good reason to distrust authority means that we must be prepared to go to them, to make our service available to them in their own languages and to use our own-initiative powers to investigate where we believe there has been injustice but where people may feel intimidated or fear retribution if they complain.  The collaboration of Ombudsman Offices on a regional basis has been one of the strikingly innovative and welcome developments in response to the crisis in Europe.  You may wish to think about extending your support to colleagues in your southern neighbour!

The IOI does much valuable work in providing networking opportunities for Ombudsman Offices to ensure that best practice is highlighted and that we can learn from and support each other.  A lot of the day to day work of our offices is in public administration and helping people to deal with issues of importance to them such as access to services or grants.  However, at the moment, there is a real sense that in many countries, the underpinnings of our societies are under threat, and that the protections enjoyed by people are being eroded or removed. 

It is important that those of us working in countries with strong institutions and democracies share our perspectives on these vital issues, to learn from each other’s approaches to tackling the violation of human rights and to show solidarity to those of our colleagues who are under threat. 

Sometimes it can feel that such major international issues are a distraction from our core work of dealing with complaints about public services.  As I said earlier, human rights are not a secondary issue for us.  They are at the heart of what we do and we must ensure that our work is effective in protecting the rights of all of the people in our countries.

I now wish to move to the issue of the privatisation of public services and the challenge this poses for Ombudsman offices.  I am aware that this has been a high profile issue for you here, not least with Hydro 1.

Western democracies have adopted varying approaches to the role of government and public services.  Some, like the US, have opted for the small state, where taxes are low and the state offers services as a last resort.  In such countries, the majority of health care for example, is private, and there is often no parliamentary ombudsman.

Others states have adopted a partnership arrangement between the state and other interested parties with emphasis on social insurance with a smaller part played by taxation.

At the other end of the spectrum are countries where taxes are high, and the state provides or funds high levels of service directly.  In Europe, this model is often associated with the Scandinavian countries, for example.

I will take the example of the UK, as it illustrates many of the changes to the way services are delivered and the impact this has on access to independent redress.  After the Second World War, the UK embarked on a “large state” programme.  The National Health Service was developed, offering free healthcare for all, delivered directly by the state.  There was a large growth in municipal housing, and many sectors of industry were nationalised, including the coal mining industry and public transport.  The state owned and ran the utilities, providing water, phones and power.

In 1979 the incoming Government set out to redraw the boundaries of the state.  Large swathes of the public sector were privatised – power companies, water, phones and public transport amongst them.  Under successive governments a large proportion of municipal housing was sold to its occupants or transferred to not for profit housing associations and parts of the state healthcare sector were outsourced to private companies.

In England, new schools are now being set up outside of local government control.  Most residential homes for older people are now privately provided, whereas in the past they were provided by the state, or by local councils.

The UK has a model of public services ombudsmen which essentially allows users of public services to bring their complaints to the ombudsman where the provider fails to resolve them.  While all services are provided by the state, there is little issue about access to redress.  However, when services are privatised, then access to redress can be lost.  In some ways, you can argue, that it begs a question – if the railways, for example, are run by a private company, do they stop being a public service?

The development of ombudsman services in the UK reflected the changing face of public services, and also, the devolution of power to Northern Ireland, Scotland and Wales.

A series of ombudsman institutions covering banks, insurance and other parts of the financial sector were also created.  These have since been consolidated into the Financial Ombudsman Service, now the largest ombudsman service in the world.  This has a statutory basis, its existence is established by law and providers must participate.  Two key distinctions, which I will return to later, are that funding for the service is provided by the industry, and not by the state and its recommendations are binding. Otherwise, these wholly private sector ombudsman services fall outside of the topic I am addressing today. 

Of particular interest to us here though, was the development in the UK of private sector ombudsman schemes for telecommunications and for energy as these industries were privatised.  These schemes were approved under legislation.  In a Canadian context, it is important to note that the schemes are nonetheless entirely independent of the industries they supervise.

It is evident that the boundaries of the state are becoming more porous. More and more states are privatising more of their formerly public services.  Sometimes this is driven by ideology, in other instances by a desire to save money, and sometimes to shift necessary capital investment off the State’s balance sheet.

Coming back to the UK examples, there are ways in which pragmatic responses are being made to this in respect of access to redress.  I have already set out the arrangements for access to new private sector schemes for the utility sector.  In health, where the state commissions private or independent sector providers, the services they deliver are within the remits of the public sector ombudsmen, as is the case in Ireland.

This principle has been described as following the money.  In social care, some older people in residential homes have their care paid for by local councils.  This depends on their ability to pay, and for those people who can meet the cost of their own care, there is no subsidy.  The Local Government Ombudsman service in England has had its remit extended so that people who pay for their own care can still complain to the ombudsman if they cannot resolve their concerns locally. This is an example where an entirely privately funded service is within the remit of a public services ombudsman.  It can be said to be an example of a hybrid, public/private Ombudsman scheme of which I’m sure there are now examples across the world, and which may well come to be predominant in the future. 

My own Office has had its remit extended to nursing homes, where any of the residents receives a state subsidy, the whole service comes under my remit.  In practice, this covers the whole of the sector.  These homes, which have replaced state run homes by and large, are fully private and receive no direct subsidy from the State.  Any State subsidy goes to the resident.  This is one of several examples where wholly private bodies are within my remit.

The University sector in England and Wales is covered by another hybrid ombudsman scheme – the Office of the Independent Adjudicator for Higher Education founded in 2004 and also approved under legislation.  University education is funded increasingly through fees paid by the students, so state funding is therefore a smaller proportion of the income stream and the universities themselves are independent.  Of particular interest here is that the funding of the Adjudicator’s Office is by way of a levy on the universities, rather than from the state.  My own Office has jurisdiction over universities in Ireland which again, are independent bodies but nonetheless use a public services Ombudsman to provide independent redress.  I am interested to learn more about the work of University Ombudsman schemes while I am here.

Housing associations are within the remit of the Ombudsman in Wales, Scotland and Northern Ireland.  These are not for profit independent bodies which receive some state subsidy towards the cost of building homes, but the majority of their capital funding is borrowed from financial institutions, and most of their income is from rents.   In terms of my own Office I take complaints about housing decisions made by local authorities whereas complaints against housing associations are dealt with by the Residential Tenancies Board which is a separate statutory body.

In Wales, Scotland, Northern Ireland and the Republic of Ireland, the public sector ombudsmen receive state funding for their work in this sector, but in England, the Housing Ombudsman is a statutory scheme which receives funding both by way of grant and through a levy on the sector.

The net effect of all of these developments is a far more complex network of ombudsmen spanning both existing public services and former ones funded by a mixture of grant and levies.  Some sectors now have more than one ombudsman, while others such as transport, now have no access to an ombudsman at all.

One response to the complexity was the creation of the British and Irish Ombudsman Association, the equivalent of the FCO, which covers both the UK and the Republic of Ireland, as well as some of Britain’s remaining overseas territories.  The Association, includes ombudsman offices from both public and private settings.   At the moment there are 28 ombudsman members and 40 “complaint handler” members who meet some, but not all, of the ombudsman membership criteria. 

One of the key risks of diversification is the loss of a consistent approach to standards. BIOA works hard to restrict the use of the ombudsman title to schemes which meet the key criteria - independence; fairness; effectiveness; openness and transparency, and accountability.  In Ireland, the title has statutory protection.  My Office must be consulted before the title can be used.

The Ombudsman Association also developed an accreditation process for training programmes for staff of member schemes.   The resulting training courses with Queen Margaret University have also been funded for IOI members around the world alongside funding for members to participate in “Sharpening your Teeth”.

Of possible interest to you here is a new “Service Standards Framework” which will be launched at their annual meeting next month.  This scheme sets out detailed standards which members will look to achieve and produce reports on their compliance.  While the IOI has sought to ensure that all applicants for full voting status comply with the criteria for membership, we are now committed to exploring the adaptation of these standards so that they can be used in a global context.  They will be available on the OA website following their expected adoption.

From the citizen’s perspective, the rapid expansion in redress schemes, described in one publication as “ombudsmania”, presents its own challenges.  When all public services are provided and delivered by the state, it’s easy to know where to complain.  However, as more and more are delivered by the private or independent sectors, finding your way through to the appropriate ombudsman scheme can be more of a challenge.  This leads to increasing amounts of signposting activity, where schemes find they spend a lot of time helping to direct callers to the appropriate body.  In the case on my Office, we receive complaints appropriate to other public sector schemes such as the Police Ombudsman and the Children’s Ombudsman, as well as for the only private sector scheme, the Financial Ombudsman.

When I was Ombudsman in Wales, we explicitly developed a new service – Complaints Wales.  This provides a dedicated telephone hotline and website which tells people how to complain about public services, even where they are now provided by private companies.  It helps to direct callers to either the service provider or, if they have already complained to them unsuccessfully, to the appropriate ombudsman.  It allows users of the website to complete a complaints form on-line which is then forwarded on their behalf, so that they avoid having to start their complaint again.

I am planning to put a similar service in place in Ireland and a current signposting website for all health sector complaints in the Republic of Ireland (healthcomplaints.ie) is being developed, under the leadership of my Office, as a prototype for a public service-wide on-line complaints portal.

The move towards the privatisation of public services in the Republic of Ireland is far removed, in terms of scale, from that of the UK but it has happened in some sectors. For instance, local authorities used to be responsible for waste collection but that service is now almost completely privatised and, as result ,is no longer under the remit of my Office.

Responsibility for the supply and upkeep of domestic water services in Ireland has been moved from local authorities to a new central body, Irish Water. This in turn resulted in oversight responsibility for complaints being taken from my Office and moved to the Office of the Commission for Energy Regulation. Charges for domestic use were also introduced but have since ceased due to huge public and political controversy which still has the potential to bring down the current Government. Some of the protest has focused on suggestions, which are denied by the Government, that the long term plan is to sell off Irish Water to private interests and there have been calls for a referendum to ensure this never happens.  I continue to campaign for the return of jurisdiction to my Office and am optimistic that this will come about.

In the context of the private/public debate and the role of the Ombudsman there is an interesting dimension to the statutory role of my Office in Ireland arising from the 2012 Ombudsman (Amendment) Act.  That Act enables the Minister for Public Expenditure and Reform to declare by Ministerial Order that a body should become a reviewable agency if it is publicly financed wholly or partly, directly or indirectly.

The Minister used that power for the first time in 2015 when he brought the private nursing homes into my jurisdiction.  There are almost four hundred and thirty of them throughout Ireland with over 22,000 residents. This means that any resident of a private nursing home, or persons acting on their behalf, can complain to my Office.

The IOI has been active in reviewing these issues as many members worldwide have been affected by privatisation.  The IOI believes that there should be access to independent redress for all public services, regardless of who provides them. It has agreed on a policy setting out its views on how this should be achieved.

It notes that many public services ombudsmen have retained jurisdiction over services when the transfer has been managed by a contract. For example, where a local authority lets a contract for refuse collection to a private company, the service usually remains in the Ombudsman’s jurisdiction because it is being provided on behalf of the local authority. These arrangements pose few problems because access for the service user to independent redress is not lost. The only issue to be considered is that the arrangements for handling complaints and for notifying service users of their right to come to the Ombudsman should be written into the contract.

If a service is to be outsourced to an independent entity, as has often been the case with public utilities such as water, electricity or gas, the IOI believes that there is no reason to transfer the requirement to provide redress. This should be retained by the existing national or regional Ombudsman. There is excellent evidence of this arrangement being adopted and working effectively in Spain or in Australia for example.

In some instances, states have established separate independent ombudsman schemes, which have a proper statutory basis to cover particular industry sectors such as energy. Where such schemes already exist, the IOI supports their continuation, but does not wish to see further extension where services are already within the jurisdiction of a public services ombudsman.

In other cases, complaints are dealt with in the first instance by a body which is independent of service providers and is itself in the jurisdiction of an Ombudsman, as is the case in Sweden, for example. This arrangement works effectively and the IOI does not wish to see it changed.

However, in many instances, services have been outsourced and there has been a complete loss of access to independent redress. Sometimes, there is a company “ombudsman” but these are not independent and the IOI does not support the use of the name ombudsman in such cases. The IOI believes that in all instances where public services have been removed from an Ombudsman’s jurisdiction and no fully independent alternative is provided, that the public services ombudsman’s jurisdiction should be reinstated.

Public services ombudsmen are usually funded by their parliamentary body to make them independent of government and often make recommendations rather than binding decisions. Where wholly private companies are within jurisdiction the IOI believes that the cost of the Ombudsman’s work should usually be funded by a charge on the companies, either by a levy, or a charge per case, or a combination of both. The Ombudsman’s decisions should usually also be binding, and only be capable of being set aside by the courts. This is because private companies are not susceptible to scrutiny by elected bodies in the same way as public services providers and thus recommendations may not be implemented.

The IOI believes that people should be able to complain about any public service through their national, regional or local ombudsman. In the ever more complex world of public service delivery, we should be aiming for simplicity in helping people to access redress when things go wrong. A “one stop shop” for all public service complaints is the way to do this. A proliferation of Ombudsman Offices and redress mechanisms only serves to confuse service users. The IOI will work to avoid this outcome.

It is the job of the state to ensure that citizens have access to public services.  It is also widely accepted that citizens should have access to independent redress in the shape of an Ombudsman. Rather that the incremental and episodic approach that has characterised developments the default position should be to offer the citizen a single effective public services ombudsman scheme.  Complexity in service delivery should be counterbalanced by simplicity in accessing redress.

I would like to turn now to two final topics – firstly innovation and secondly some words about the IOI.

Ombudsman Offices are relentlessly creative in finding new ways of working to benefit complainants and improve public services.  The E-People project in South Korea is a classic example of this.  All public services complaints are managed on the same on-line platform.  You can contact them via a web form or a phone call.  There is no paper. 

If it is an initial complaint it is routed to the body complained about.  They manage the complaint using the web platform.  If they do not resolve it to the satisfaction of the complainant, or if the timelines are exceeded, it will come to the Ombudsman.  You don’t need to re-submit it.  Everyone is using the same platform.

The quality of information about complaint handling and problems with public services that this platform gives is incomparable.  It’s easy to see if one body is receiving many more complaints about a particular subject than others in the same field.  The Ombudsman can target interventions on those agencies which are consistently failing to meet targets or are failing to resolve complaints.  This is also so much easier for the complainant, as there is never any doubt about where to go.

The Scottish Ombudsman has the statutory power to lay down complaints systems that every public service provider must use.  Again, this gives a hugely rich source of data about what’s going wrong in the public service, and allows resources to be targeted on putting it right.

The Scottish Ombudsman has also set up a learning and improvement unit to work with bodies who are consistently failing to ensure that systemic problems are tackled.

This leads me to some thoughts on the IOI.  We’ve been working to make sure that we are providing a valued service to our members.  With the Secretariat being funded by the Austrian Government, all of the membership fees are available for services to members. 

We continue to provide training in different locations around the globe.  The Caribbean region will be hosting a Queen Margaret College training session next month and we recently held the first Spanish language session in Argentina.  Small grants are available to each region to develop projects which can benefit the wider Ombudsman community.

A series of policy and best practice papers are also being developed.  I mentioned the policy paper on privatisation and there is also a best practice paper on creating and reforming Ombudsman schemes.  My Office will be working with the Ontario Ombudsman to produce a best practice guide on using own-initiative powers and another paper is in development looking at how best to ensure that recommendations for systemic change are effective.

We’re also looking to be more inclusive by encouraging new members and are introducing universal suffrage and e-voting to allow all members to participate in decision making.  Existing members are being re-validated to make sure we all meet the current standards, and to recommend improvements where this isn’t the case.

A new fee structure is being introduced from July with three tiers rather than a flat rate.  This will make membership more affordable for smaller Ombudsman offices.  New links are being forged with other international bodies, including the UN, to garner further support for the Ombudsman concept and to assist interventions in support of colleagues under threat.  We’re also working to support the establishment of Ombudsman schemes where none currently exist.  This runs alongside the programme of regular conferences designed to bring members together in mutual support and to promote the sharing of best practice.

Information about all of these developments can be found on our recently updated website.

So in conclusion, the Ombudsman concept is in rude good health.  It is spreading across the world and is constantly evolving in response to opportunities and challenges.  There are threats, and we need not to be complacent but to address them as they arise.  We can all continue to learn from the success of others in modernising our own schemes and being ever easier to use and more effective for our complainants.  The IOI will work to support these developments and I fully expect that the Offices in Canada will remain a key source of learning and development for the Ombudsman community worldwide.

Thank you for your attention.

 

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