Thursday 26th May 2016
The Ombudsman concept has proved to be a very durable and adaptable one. The core business of oversight of public services has been extended to include many other tasks, some of which we’ve already heard about. Many ombudsmen are national human rights institutions, and compliant with the Paris principles. Other offices, such as mine, have responsibility for freedom of information. Yet more, as in the case of the NIPSO, have responsibilities for elements of anti-corruption and ethics. We have recently seen this latter role powerfully demonstrated in South Africa. We also see Ombudsmen taking on an equalities role. My Office has a particular responsibility for legislation concerning disability, for example. Many Ombudsmen have become their National Preventative Mechanism under the Optional Protocol on Torture. Finally, there has been a growth in the creation of specialist ombudsmen, both dealing with public services, but more particularly, in the commercial sector.
There are certain core characteristics of the Ombudsman’s office which are consistent. At the heart of these is independence. Ombudsmen need to be independent of the providers of services in their jurisdiction. This makes them well placed to consider human rights issues.
Ombudsmen, however, are not advocates. They are objective arbiters of complaints, but once injustice arising from maladministration is identified, they then seek to provide a remedy for the individual. Unlike other mechanisms such as mediation or the courts, however, Ombudsmen also work to identify systemic causes of failures, and to take measures to ensure that these are put right. Thus if the consideration of a complaint identifies a human rights failure, and the cause is such as to suggest that other people who have not complained may be affected, then the Ombudsman can broaden the investigation to address the underlying problems.
Many Ombudsmen also have powers to instigate an investigation on their own initiative. This is now the case with the NIPSO, as it has been with my Office since its inception. This can also enable systemic problems to be addressed. A powerful example of this is the work of the Slovak Ombudsman in addressing discrimination against the Roma community.
In considering the breadth of the Ombudsman’s role, it is important to consider how the capacity of the Office can be developed to do justice to the tasks which must be undertaken. Building this capacity is a complex task. At its heart is the need to have sufficient, well trained and suitably skilled staff. But there are other key elements which also need to be taken into account. These include the values of the Office, the powers available, the extent of the jurisdiction, the accessibility to people whose human rights are under threat and developing and maintaining essential partnerships. The Office needs also to develop a strategic capacity, the ability to focus resources on meeting core objectives, targeting investigations on the areas of greatest risk and being effective in the use of resources and securing appropriate outcomes.
One of the key distinctions in the role of an Ombudsman is the requirement to consider not just whether the outcome of an individual’s interaction with a public service provider was compliant with the legal requirements, or indeed the processes and procedures governing the particular service, but also to determine whether the outcome was fair, and whether the outcome was just. The role of the Ombudsman is often described as being one of the mechanisms to ensure that the rule of law is observed. However, while that is a necessary role for an Ombudsmaan, it is not of itself sufficient.
To illustrate this point, I want to consider a grant scheme which was recently the subject of complaints to my Office. Because of errors in processing, grants were awarded to individuals who did not qualify for them under the scheme rules. Some years later, the decision was taken to reclaim these grants from the individuals who received them, even though they had already been spent on the intended purpose. I took the view that although the actions of the provider were in compliance with the law, and with the guidelines for the scheme, that the outcome was not fair. The decision was reversed.
This ability to look at context and outcomes equips the Ombudsman with the necessary ability to consider cases through a human rights lens. However, being able to do so is one thing, but being active in considering cases in this way goes beyond a paper commitment.
In the first instance, the role of the Ombudsman in securing fair outcomes must be clearly enshrined in the values of the Office. This needs to be explicit, and it needs to be actively promoted. In my Office we have a project designed to set out how our values are operationalised, how they are lived. Each time a computer is turned on, they feature on the home screen. They are prominently displayed throughout our offices. They clearly underpin our strategy, and drive our operational plans. This provides the conceptual under-pinning for a human rights approach to our work.
In our case, two particular values, fairness and empathy, are directly relevant. They signal that we as an organisation are committed to fair treatment, but also to understanding the perspective of the people who come to us and to being alert to breaches of their basic rights.
In building the capacity of an Office to extend its reach into human rights issues, the Leaders of the Organisation, must demonstrate a personal commitment to tackling these issues and the Strategy of the organisation must clearly reflect the human rights commitment, as should the operational plans and the budget. This is not an add-on extra, it is a fundamental part of the core work of the Office and needs to be reflected in its plans and operations.
The powers available to an Office also fundamentally impact on the capacity to undertake this work. Being able to secure co-operation in an investigation is essential. Open access to the services in jurisdiction is often key to this. Institutional settings and so called congregated settings are areas in which the risk of human rights violations is high. Being able to speak to residents and staff, and to examine files and other evidence as of right is essential.
The capacity to make public reports, and to have reports considered by the relevant Parliament is also fundamental. The need to build capacity in these areas will be evident if the powers fall short of what is necessary to investigate and correct breaches of human rights. It is the role of the Ombudsman, and civic society, to highlight deficiencies in these areas where they exist and to press for change. Producing hard hitting reports highlighting failures, and ensuring that there is public and political support for compliance with recommendations, is an essential element of an Ombudsman’s work. When thinking of developing staff capacity, we often focus on training in a human rights approach for investigators. This is of curse essential, but not sufficient of itself. Staff need to be able to produce clear and well-argued reports, but for maximum impact, there will be times when it is necessary to use the media to highlight failures. Having the capacity to do so both requires an effective communications role and that the Ombudsman themselves is an excellent communicator.
Similarly, the role of the Parliament is of great importance when securing compliance. Building relationships with appropriate committees is one element of this, and having regular open channels of communication on the work of the Office helps to secure support for the implementation of recommendations when there is pushback from Government or public service providers. Access to Committees also provides a forum in which human rights deficiencies can be highlighted.
Incidentally, there is often discussion as to whether the fact that public service ombudsmen normally make recommendations, rather than have binding powers, constitutes a weakness. In longer established public sector schemes, the rate of compliance is generally very high. My own Office, for example, has had only one recommendation rejected in more than 30 years. However, in more recently established or restored democracies, compliance levels are often lower. This was evident in the case of the Slovak Ombudsman, who I mentioned earlier. Her report on the problems of Roma children was rejected by the Parliament, and the international community has had to work hard to support her Office. The outgoing Oireachtas (parliamentary) committee on public service oversight and reform proposed the adoption of qualified majority voting to address this issue. They suggested that 75% of members must vote against a recommendation if it is to be rejected.
Jurisdiction is the next key issue I wish to address. If a human rights approach is to be effective, the Ombudsman or another independent redress mechanism, must be available to all individuals whose rights are at risk through their engagement with the state. I mentioned institutional settings earlier, and in addition, key areas of Government activity such as prisons and immigration need to be included. My own jurisdiction is not comprehensive in these areas, and I am working actively to change this. Without access to independent complaint handling, human rights violations in these areas can escape scrutiny, and persist. Many of you recently attended a seminar organised by my Office on prisoner complaints. In certain key areas in Ireland, such as this, there is a need for access to fully independent complaints mechanisms to ensure that human rights abuses are not taking place. In considering human rights issues, it is not sufficient to address those which are brought to the attention of your Office by people who can currently complain, it is essential that you consider whether there are individuals who cannot complain to your Office or to another appropriate Ombudsman and work to have jurisdiction extended to plug any gaps.
However, in so doing, it is important to establish what volume of complaints are likely to arise because of an extension of jurisdiction and what volume of work this is likely to generate. Ensuring that an Office is properly resourced to deal with the additional demand is vital in building capacity. Often, speaking to other Offices which already have the jurisdiction will enable you to establish likely complaint numbers and work volumes. The date of the introduction of a jurisdiction, and decisions as to whether to backdate the jurisdiction, are also important. It’s necessary to recruit and train staff, prepare agencies newly in jurisdiction to deal with your Office, prepare information for potential complainants, ensure your systems are set up to encompass the complaints (for example, having categories and sub-categories in your complaint handling system) and publicising the new role. A balance needs to be struck between the need to address historical complaints which arose before the jurisdiction commenced, and the difficulties created by inheriting a backlog of work which can damage the credibility of the Office due to the delays inevitable in addressing it or to the delays in tackling new cases because of pressure to deal with the backlog.
There is a clichéd view of the people most likely to access an Ombudsman’s Office. They are older, middle class and well educated people. The cliché, like many others, has a grain of truth. Although this group is far from predominant, it does require us to think carefully about who can complain to us, and how easy we make it for them.
This is even more significant if we think about people who may be denied their human rights. How easy is it for homeless people to access our offices? What about members of the travelling community? What about refugees or asylum seekers? People who don’t have the same first language as us? What of people with mental health problems detained against their will? Prisoners? People with intellectual disabilities? Can someone using a wheelchair even get past the door?
If our offices are to deal with human rights issues, we must make sure that we are truly accessible to those who need us. It’s important to try to get objective information about who is using our Offices as a starting point. We’re currently replacing an outdated IT system and the new system is being designed to give us much more information about our complainants. If groups who should be reaching us aren’t, then we know where to target our outreach. This is a critical capacity issue. To ensure that your Office is taking a human rights perspective you need to be getting out to where people are – to hospitals, residential accommodation, provision for refugees and asylum seekers and prisons. You need enough people to let you do this. Whereas a written approach is fine for some categories of cases, for people whose human rights are at risk, personal contact can be vital.
The fundamental partnership for Ombudsman Offices which are not NHRIs is evidenced by this conference. Working alongside your National Human Rights body gives you access to a different perspective on your work and to the expertise which they can bring. They can alert you to issues of concern and help to raise staff awareness of human rights issues.
The joint working between the NIPSO and the NIHRE is a model of its kind and is a clear demonstration of how the capacity of the Office to identify and address human rights violations has grown. Equally, the NIHRE has access to the large caseload of the Ombudsman’s Office and the capacity of the Office to investigate individual cases and systemic problems. My Office also engages with the Irish Human Rights and Equality Commission. We have agreed to seek to act as an exemplar in human rights issues, and have made a public commitment to do so in our Strategic Plan. It says “We want our Office to be at the forefront of human rights and equalities issues and will strive at all times to take practical and effective steps to move this agenda forward.”
Ombudsmen often operate within a cluttered accountability framework. There are often regulators and inspectors covering the services in respect of which Ombudsmen get complaints. Examples include Prison Inspectors, the Mental Health Commission, Health and Social Care Inspectorates, and so on. Partnership with these enables the Ombudsman Office to receive complaints which are initially made to the Inspectorate, to pass intelligence from complaints to the Inspectorate to inform their work, and to use the outcome of inspections to inform the consideration of complaints. These partnerships can usually be enhanced by the signing of a Memorandum of Understanding such as that my Office has with the Health Inspection and Quality Authority, for example, which sets out the way in which each of these information exchanges will be managed.
The other key partnerships are with civil society. Many of the key human rights issues are championed by NGOs. These groups often have access to communities of people most at risk of human rights violations. They can help to ensure that there is awareness of the role of the Office within the communities with which they work, can act as advocates in bringing complaints forward, and can help to identify areas of concern. My Office works with many groups including those working with prisoners, with disabled people and with older people, for example. NGOs can also contribute to the debates concerning extended powers or jurisdiction where these are necessary to enable the Ombudsman to consider complaints concerning human rights issues.
The critical capacity issue is people. Having sufficient of them, ensuring they have the appropriate skills, and that they are sensitised to the need to determine whether there may be a human rights violation in a case they are considering lies at the heart of an Ombudsman’s ability to do this work effectively.
I don’t propose to say too much on this subject, as the training jointly developed by the Ombudsman and NIHREC is so well designed to equip the staff of our offices with the skills they need. Much of the training delivered to our staff is contextual, it helps them to understand the legislation they are dealing with and the process and procedures they will use. However, we also need to develop skills and this training deals with both. It sets out the human rights context very effectively but also uses real case examples to focus on developing the skills needed to identify human rights issues and to successfully address them in investigating and resolving cases. The training has been provided to the staff in my Office, who continue to use the learning in their work. I can only commend it to you.
Ombudsmen Offices are well placed to address human rights issues arising from their work and to identify areas in which they should focus their work to ensure that they maximise their impact. To do so, they must develop capacity at a strategic, jurisdictional, operational, staffing, communication, accessibility, influencing and reporting level. When they do so, they can have a significant impact in protecting and enhancing the rights of people living in their countries. There are challenges involved, but the outcomes require us to overcome them.