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Reclaiming human rights in Europe: How to enhance democratic space?

Speech on the role of independent institutions in enhancing democratic space by Ombudsman and IOI President Peter Tyndall in Zagreb

The International Ombudsman Institute is the only global Ombudsman organisation.  We have almost 190 members in more than 90 countries worldwide.  The IOI will celebrate its 40th anniversary next year but the institution of Ombudsman as we currently know it dates back more than 200 years to its foundation in Sweden in 1809.  The purpose of the Office, which remains relevant today, was to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch.   

The classical Ombudsman model 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. 

Ombudsman Offices consider whether the action of a public service provider is compliant with the law and whether the provider followed the appropriate process.  However, they also look to see whether the outcome was fair, and just, so an Ombudsman Office can and will intervene when a court would find no failing.  This is one of the important intrinsic advantages of the Ombudsman.  Ombudsman Offices can also typically use a range of interventions to resolve complaints.  A quick effective intervention is often the most valued by the complainant, but a full range of interventions up to and including formal investigations which are reported to the Parliament can help to secure redress for the individual or individuals who have suffered injustice while also highlighting failures where necessary and bringing about change in the way services are delivered.   

I will use an example from my own Office.  Young people with disabilities can access a range of supports in Ireland when undertaking their final school exams.  These exams are particularly important because they determine access to University and other further and higher education.  People can access a reader, or a scribe, or perhaps a word processor, to help to level the playing field.  If they are turned down for this assistance, they can appeal, but in some instances, the decision rejecting the appeal arrived very close to the exam.  When they complained to my Office, they did not want a lengthy investigation and a report.  They needed a quick effective intervention.  We had a dedicated team working with the State Examination Commission.  In some instances, the Commission’s decision was clearly correct.  In others, we arranged for them to provide the necessary support.  We were resolving cases right until the weekend before the exams started.   

This case demonstrates two of the key strengths of the Ombudsman model.  Firstly, the ability to intervene flexibly to secure a successful outcome for individuals.  The second outcome was equally important, we secured change to the way in which the system operates to avoid other young people finding themselves in the same situation in the future.  It also illustrates the capacity of the Ombudsman to use a collaborative approach with service providers to secure important outcomes where an adversarial approach might well fail. 

The Ombudsman concept has proved to be incredibly adaptable and has taken on new powers and competences as it has spread around the globe.  Its 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. 

The Office of Ombudsman was not initially explicitly established as a human rights body, but 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.  Many Ombudsman offices are also the National Human Rights Institution in their country.  Others, such as my own in Ireland, work alongside a separate NHRI and look at maladministration by public service providers.  However, my Office, and others like it, have clearly stated that any breach of human rights by a body within their jurisdiction is always maladministration. This ensures that our Offices can play their part in ensuring that human rights are respected.  The case I described is a good example of how operating within a conventional Ombudsman model, protecting the rights of, in this instance, disabled people, is an everyday part of our work. 

The IOI has supported the work of Ombudsman Offices in the field of human rights, 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, even if it would not otherwise have been considered to be maladministration because there was no breach of law or procedure, and they respond accordingly.  The toolkit includes an excellent manual and has been accompanied by training. 

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.  However, in 2017, most 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.  They can do so in three ways.  The classical mode is simply to investigate a complaint by an individual.  The Ombudsman’s job 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 the work of the Ombudsman from that of the courts is that the Ombudsman will 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, recommendations will be made 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 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 difficulties, 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 conference will hear from the Polish Ombudsman, Dr Adam Bodnar.  He also experienced pushback from his Government who sought to undermine the work of his Office.  Again, the IOI worked with his Office alongside other international colleagues to ensure that he could continue to exercise his role. 

I use these examples to illustrate the real impact that Ombudsman institutions can have in maintaining a focus on rights issues when the political atmosphere is highly charged.  Having independent, objective, rights-based accountability bodies allows focus on the protection of rights when other voices are supressed.  A great strength of the Ombudsman approach is the focus on individuals and their stories.  This personalisation can be a sharp contrast to the sloganeering which often sadly characterises the populist voices who are becoming increasingly strident and influential. 

Ombudsman Offices are careful not to occupy a political space.  We draw our views and our strength from our casebooks.  It is the evidence we examine objectively which provides the authority for our interventions.  Generally, we make recommendations rather than have binding powers.  The quality and thoroughness of our investigations is the basis for the acceptance of our recommendations by the providers of our public services.  Having a broad mandate sometimes allows us to identify abuses of human rights where no complaint would be made on specifically human rights grounds. 

Ombudsman Offices continue to be innovative.  In South Korea, for example, there is a single telephone and on-line platform for managing all complaints about public services.  In Scotland, the Ombudsman is the Complaints Standards Authority and has the statutory power to require all public bodies to follow standard complaint processes.  Both of these approaches provide a much better experience for the individual while providing a rich vein of data about common failings which allow targeted interventions to secure improvements. 

Ombudsman Offices do face challenges, and we have to be alert to the need to support colleagues facing threats.  Sometimes these are subtle.  The long trend of privatisation of public services has seen many areas formerly in jurisdiction removed from some offices.  This can mean simply networked services, such as energy, water, public transport and so on.  However, it can stretch beyond this to include social care and prisons, for example, which fall within the mainstream of the human rights work of Ombudsman Offices.  The IOI position on this is unequivocal.  Where public services are being privatised, they should nonetheless remain within the jurisdiction of the public services Ombudsman.  A policy paper on this matter is on the IOI website.  There have recently been some welcome trends in the opposite direction with privatised services returning to the jurisdiction of the relevant public services Ombudsman, as was the case with water services in Scotland and social care services in the UK and in Ireland. 

Another threat we have seen in some instances is a proliferation of Ombudsman schemes in the private sector.  Well run, properly independent and well governed private sector Ombudsman Offices can offer effective redress.  However, the use of the name should preferably be governed by law, to prevent unnecessary confusion caused by too many Offices and damage to the brand through the use of the name by Offices which do not meet the necessary standards, most usually, by not being sufficiently independent.  The IOI has recently agreed a best practice paper on developing and reforming Ombudsman Offices which sets out the best practice in this area. 

The very expansion of powers and competences can in itself pose a threat, when the necessary resources are not made available.  Offices taking on new areas of work should always be properly resourced. 

The issue of funding is a critical one.  Many Offices struggled during the financial crisis as demand for their services went up and the resources available to them decreased.  Governments have also used their majorities in Parliaments to limit the resources available to Offices which brought difficult messages.  I have given the example of the Polish Ombudsman earlier but the first holder of my own Office in Ireland faced a similar challenge 30 years ago.  His use of the media, and Parliament effectively secured a reversal of the threat and although like the wider public service, my Office was impacted by the financial crisis, it has since had its funding restored and had additional funding for the new competences and powers we have achieved. 

On a more negative note, we have seen some Offices abolished during the recession, typically those at regional or local level, as was the case in Italy and Spain.  Despite this, the trend remains positive and the IOI has an ever-growing membership as Ombudsman Offices are created in more and more countries. 

In conclusion, the Ombudsman concept has proved a hugely successful mechanism for holding Government to account.  It has delivered on its original intention of tackling the power imbalance between the individual and the State.  It has found redress for individuals, and also brought about improvements to services and the law.  It has always operated in a human rights space, but over time, has done so more explicitly and to great effect.  It continues to innovate and evolve in the face of the changing challenges and opportunities it faces.  It has been embedded into growing numbers of democratic countries as a fundamental, and often constitutional protection for individuals.  The work of the Croatian Ombudsman is widely acclaimed and illustrates all of these positive characteristics.  I am very pleased to have the opportunity to participate in this important gathering and would like to commend Croatia for taking this initiative at a time when respect for rights and the rule of law is often under threat, and the role of the Ombudsman as a positive voice is more important than ever. 

 

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