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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]


W. John Hopkins

Egalitarianism — Public interest — Corruption and bribery — Ombudsman

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Overview and Definition

1.  The essence of the ombudsman concept is not easy to define and has, at times, proved controversial. The term itself is an Anglicization of the Swedish term Ombudsmannen, meaning representative and although the word is gender neutral it is often not perceived as such. This perception has led to a number of private sector and internal ombudsmen in North America (particularly in tertiary education) to use the term ‘ombudsperson’ or ‘ombuds’. However, only one public ombudsman has adopted this style (that of British Columbia). For this reason, the more universally accepted term, ombudsman, is used as the generic term in this article.

2.  The functions of the modern institution have developed significantly from its Scandinavian origins and today many entities that classify themselves as public sector ombudsmen do not use the term in their official titles. Examples include Public Defender (Defensor de Pueblo, Spain), State Mediator (Médiateur de la République, France) or Parliamentary Commissioner for Administration (UK). In addition, a number of human rights institutions perform ombudsman type functions but do not define themselves as such. It is therefore unsurprising that opinions diverge on the exact nature of the modern ombudsman enterprise.

3.  Perhaps the most accepted definition is that used by the International Ombudsman Institute (IOI), the international professional body representing public sector ombudsmen, which defines the role of public sector ombudsmen as:

to seek to protect any person or body of persons against maladministration, violation of rights, unfairness, abuse, corruption, or any injustice caused by a public authority, or official acting or appearing to act in a public capacity, or officials of a body providing devolved, partially or fully privatized public services or services outsourced from a government entity, and which could also function as an alternative dispute resolution mechanism (IOI Bylaws (2012)).

4.  Within this broad definition, several fundamental differences exist. Those ombudsmen which trace their lineage back to the ‘classic’ Scandinavian model focus on the concept of ‘maladministration’ to define the ombudsman’s role. Although many of them exercise additional roles in fields as diverse as the provision of public information (New Zealand) and ministerial ethics (South Africa), their core focus remains on good administrative practice. In contrast, ‘human rights’ (or ‘hybrid’) models combine the concept of the National Human Rights Institution (NHRI), as outlined in the Paris Principles (UNGA Resolution 48/134), with that of the ‘classical’ ombudsman, placing human rights at the core of the ombudsman enterprise. This model is now particularly prevalent in Latin America, Eastern Europe and parts of Africa.

5.  The link between ombudsmen and rights has become increasingly obvious even among those ombudsmen which are not formally recognized as NHRIs. Many ‘classical’ ombudsmen, for example, now exercise jurisdiction in areas which require consideration of the Paris Principles (particularly as regards the prevention of torture) (Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2002) Art. 18(4)). The nature of the ombudsman institution is therefore not as clear-cut as was originally the case but, despite debate over its exact definition, its development has been one of the most important constitutional innovations of the late twentieth century.

B.  A History of the Ombudsman Concept

6.  The concept of an independent official overseeing the public sector is not new and there are examples of such offices throughout history (eg tribunes in the Roman Republic and the Diwan-al-Mazalim in the Ottoman Empire (Pickl). However, the concept of the modern ombudsman (and the term itself) is inextricably linked to the development of the institution in Sweden in the eighteenth and nineteenth centuries.

7.  The origin of the Swedish institution comes, not from an official charged with ensuring good administration on behalf of citizens, but one charged with doing so on behalf of the King. In 1712 (while Charles XII remained exiled) the position of King’s supreme representative or ‘Högste Ombudsmannen’ was created to ensure that governmental officials followed the laws of the Kingdom in the King’s absence. In 1719, amid the constitutional reform that followed Charles’ death, this Royal Ombudsman changed its name to ‘Justitiekanslern’ or Chancellor of Justice. This position remains to this day but is not regarded as a modern ombudsman (although some of its complaint handling functions are similar).

8.  In 1809 the Swedish absolutist monarchy was finally abolished and a parliamentary democracy re-established. This also led to the creation of a parliamentary official, modelled on the earlier royal example, charged with oversight of the central executive (extended to include local government in 1957). The Swedish Riksdagens Ombudsmannen (Parliamentary Ombudsman), now more commonly referred to as the Justitie Ombudsmannen (or JO), remains constitutionally entrenched in chapter 12 of the Swedish Institution of Government (part of the current constitution). It is widely regarded as the origin of the modern institution.

9.  The JO, unlike its earlier royal counterpart, was a parliamentary position, appointed to ensure that executive agencies followed the law of parliament. The Swedish JO, unlike most modern ombudsmen, had (and retains) the power to prosecute public officials for breaches of the law. In its early years, the JO saw this as its primary role and only pursued actions of illegality against public officials. In addition, complaints from the general public were not at the core of the ombudsman’s work, with only 8,000 being heard during the first century of its existence. It was not until the twentieth century that the institution developed the wider, non-judicial, aspects of dispute resolution that now form the core of the modern ombudsman idea.

C.  The Development of the Modern Ombudsman

10.  Although Sweden is the spiritual home of the ombudsman, it is not to Sweden that we owe the key elements of the modern global models. Until the 1950s, the ombudsman was largely unknown outside Scandinavia and regarded as little more than a Swedish/Finnish curiosity (the Finnish Ombudsman, created in 1917, was modelled on the Swedish example). This changed in 1953 when Denmark also adopted a constitutionally entrenched parliamentary ombudsman. In the wake of the post-war expansion of the Danish State, court processes were considered insufficient to ensure that individual complaints against the executive were addressed. As a result, the Danish Folkentingets Ombudsman (Parliamentary Ombudsman) was introduced to provide a method of redress for individual complaints outside the formal processes of administrative law.

11.  The Danish model, although drawing on the Swedish concept for its inspiration (and nomenclature), differed in a number of fundamental aspects. In particular, the Danish Ombudsman lacked the power to prosecute. In addition, the Danish model focussed not on alleged breaches of administrative law but on the broader (and rather vague) concept of ‘maladministration’, an idea that encompasses poor practice and behaviour rather than specifically defined legally concepts.

12.  The Danish adoption of the public service ombudsman model increased the visibility of the concept outside Scandinavia and less than a decade later (1962), New Zealand became the first non-Scandinavian country to adopt the idea. Like Denmark, the New Zealand government was faced with pressure to increase oversight of the public sector, particularly as the domestic system of administrative law was poorly developed. In response, and in direct reference to the Danish model, the New Zealand government conceded the creation of an independent official responsible to Parliament but lacking any formal powers of enforcement. The adoption of the ombudsman institution in New Zealand led directly to interest in the concept throughout the Commonwealth. This saw the creation of a Parliamentary Commissioner for Administration in the UK (1967) and a swathe of similar models across the newly independent states of the Commonwealth (starting with Tanzania in 1963 and quickly followed by Guyana and Ghana in 1966).

13.  The modern ‘classical’ concept of the ombudsman is largely based upon the Danish model, as developed in New Zealand, of an independent parliamentary institution operating primarily (or exclusively) as a non-judicial dispute resolution mechanism of last resort with extensive (or unlimited) powers of investigation. Lacking the power of enforcement, the institution is given a wide remit to consider principles of good practice and fairness (often, but not always, captured by the term ‘maladministration’) rather than applying narrow legal principles of administrative law.

14.  A second variety of ombudsman emerged in the 1970s alongside the Danish/New Zealand model. This variant emerged out of the parallel development of NHRIs pioneered by France in 1946 (La Commission Nationale Consultative des Droits de l’Homme). By the 1970s these models had evolved into bodies providing both advocacy and complaint mechanisms for alleged breaches of Human Rights, in a manner similar to the ombudsman. This standalone ‘Human Rights Commission’ (HRC) model pioneered in Canada and New Zealand in 1977 has become common, particularly in the Commonwealth. However, an alternative, ombudsman-based model emerged simultaneously during the Iberian Peninsula’s transition to democracy in 1975.

15.  Pioneered in 1975 with the creation of the Portuguese Provedor de Justiça (Provider of Justice) followed in 1978 by the Spanish Defensor del Pueblo (Defender of the People), this model fused elements of the modern NHRI and the ‘classic’ ombudsman into a single institution. Influenced by the Scandinavian ombudsman model, both Spain and Portugal introduced independent oversight institutions directly responsible to Parliament and explicitly charged with both the protection of human rights and prevention of ‘maladministration’.

16.  A weaker, French variant of the ‘classical model’ (the Médiateur de la République), was introduced in 1973. This executive appointed model influenced a number of Francophone countries. In 2011 the institution was abolished with the creation of a new ‘hybrid’ Défenseur des Droits. However, the médiateur model continues to operate in a number of Francophone states.

17.  Today the functions of the ombudsman are undertaken by a variety of institutions depending upon the jurisdiction in question. The primary division is between systems where a ‘classical’ ombudsman exists alongside a human rights commission (or similar) and ‘human rights’ or ‘hybrid’ systems which combine the two (leaving aside systems which lack either institution). This situation is further complicated by some systems dividing responsibility for specific elements of the public sector (local government, health services) between different institutions as well as providing redress against private bodies exercising public functions. The result is a far cry from the simplicity of the original Swedish model.

D.  The ‘Classic’ Ombudsman: The Danish/New Zealand Model

18.  The Danish adoption of the public service ombudsman model soon led to the concept being recognized outside Scandinavia and, in 1962, New Zealand became the first non-European country to adopt the idea. Like the Danish model it adopted a direct complaint mechanism which has become the norm for the institution. The UK Parliamentary Commissioner for Administration (although not the Health Service Ombudsman, who are the same person) introduced a parliamentary filter requiring complaints to be submitted via a Member of Parliament. Although the French Médiateur followed the same practice in 1973 this model has not been widely adopted. In 2011 the new French Défenseur des Droits abandoned the practice.

19.  The New Zealand scheme was the first to be established by ordinary legislation (a necessity due to New Zealand’s lack of a ‘written’ constitution) and the first to require that the office be both appointed by and responsible to Parliament alone (Parliamentary Commissioner (Ombudsman) No 10/1962 (NZ)). The executive has no role in the process of appointment with the ombudsmen (there are usually at least two) instead being directly appointed by Parliament (in practice through the Officers of Parliament Committee) (Ombudsman Act No 9/1975 Section 3) (NZ)). However, the dominance of the governing party in the unicameral New Zealand Parliament led to executive influence in the appointment process. In 1992, a serving ombudsman was not re-appointed when the government unanimously opposed her re-nomination. Under the current Standing Orders this could no longer occur as only two of the seven committee members are now from the governing coalition with minor parties given disproportionate representation (in addition to the fact that under the post-1996 proportional voting system an overall majority for a single party has never been achieved in the New Zealand Parliament).

20.  The growth in reputation of the New Zealand institution has led to a significant expansion of its role. In 1982 it became guardian of open government and the final decision maker under the Official Information Act (Official Information Act, 1982 (NZ)). More recently, it has expanded its role to include monitoring of the Optional Protocol of the UN Convention against Torture (OPCAT); the United Nations Convention on the Rights of Persons with Disabilities and the Protected Disclosures Act (NZ).

21.  Despite the reputation of the New Zealand model today, the position began from relatively humble beginnings. When it was first established the new post had very little status or visibility. This perhaps accounts for the lack of complaints in its first year (less than 800). Today the New Zealand Ombudsman has become the primary mode of administrative dispute resolution in New Zealand. In 2015 the New Zealand Ombudsman received 9,520 formal and informal complaints under the Ombudsman Act (New Zealand Ombudsman, 2015 (NZ)). Not only this, but its recommendations, although lacking the power of enforcement, are treated as practically binding by the executive. No recommendations of the ombudsmen have been rejected since at least 2003. However, recent comments by the New Zealand government in the past few years may mark a change in this attitude. This culminated in an ombudsman’s report into the censure of a public servant for alleged ‘leaking’ of a document being dismissed by the Minister concerned. The report did not require executive action but the attitude of the government to the report remains concerning (Geddis).

22.  From the 1970s, a wide range of Commonwealth, European and, to a lesser extent, Asian jurisdictions, began to adopt this ‘classic’ model of the ombudsman, particularly influenced by the New Zealand and Danish examples. Perhaps most surprising of all, the institution has more recently also migrated to the international/supra-national level with the establishment, in 1995, of the European Ombudsman. Established under the Maastricht Treaty as part of the European Union ‘citizenship’ reforms, the institution again followed the modern classical model pioneered in Denmark and New Zealand in an attempt to assuage concern that individuals had no right of redress against European institutional decisions. Once again, despite its relatively humble beginnings this supra-national model has become a significant influence on administration in the EU with 90% of its decisions implemented in 2015 (European Ombudsman, 2016).

E.  Ombudsman and NHRIs: South Africa

23.  The 1996 South African Constitution saw the creation of a suite of ‘State Institutions Supporting Constitutional Democracy’ established under Chapter 9. These include both a classical ombudsman (the Public Protector) of the type explored above, and a human rights commission (the SAHRC) (the other ‘Chapter 9’ institutions are the Auditor General, the Electoral Commission, the Commission for Gender Equality and the Commission of the Protection of the Rights of Cultural, Religious and Linguistic Communities). Each was established by statute under the interim post-apartheid constitution (1993–1996) (Human Rights Commission Act, 1994; Public Protector Act, 1994) (SA). These statutes remain in force and provide the practical framework for the operation of these institutions. This model sees the functions of the ombudsman split across two institutions, a model that has become common amongst Commonwealth jurisdictions in particular.

24.  The Public Protector (PP) has a broad jurisdiction across all areas of the public sector (at both national and regional levels) with only the judiciary and the private sector excluded from its oversight. The institution also has a broad functional remit, having the authority to investigate ‘any conduct … that is alleged or suspected to be improper or to result in impropriety or prejudice’ (The Public Protector Act, 1994, Sub-Section 4 (SA)). This specifically includes corrupt practices and violations of the Executive Members’ Ethics Act 1998 (SA) (this covers both national and regional executives).

25.  Although this relatively wide remit places the Public Protector slightly outside the classical mainstream, its powers and mode of operation are very much in this mode. Upon receiving a complaint (or on their own initiative), the PP has the power to investigate without restriction across a wide range of matters including access to information, poor procedures, failure to provide reasons and incorrect interpretation of laws. Unlike many ‘classical’ examples (including New Zealand), the South African Ombudsman is required to hold a legal qualification and is not barred from investigating questions of law. Nevertheless, the process remains extra judicial with emphasis on complaint resolution through mediation or negotiation where appropriate. Final recommendations remain non-binding, although prosecutors can be informed if the Public Protector is of the view that an offence has been committed.

26.  The South African Human Rights Commission (SAHRC), in contrast, operates as a collegiate structure typical of the HRC model developed in New Zealand and Canada, with both a remit to promote human rights and a complaint mechanism for the remedying of breaches. As with the ombudsman, the focus is on non-judicial resolution but should mediation or negotiation fail, the HRC may take the case through a hearing system. However, the results of these processes remain advisory only, although the SAHRC may instigate legal proceedings if it deems it appropriate.

27.  Of particular interest in comparative terms is the relationship between the Public Protector and the Human Rights Commission. Although the South African system makes a clear distinction between the resolution of issues concerning poor administrative practice and those relating to Human Rights, the practicalities of the situation are not so clear. In fact, although the Human Rights Commission is charged with the protection of Human Rights, it has named the Public Protector as one of the key agencies in the protection of these rights. In addition, the two agencies have developed a working relationship whereby the Protector handles Human Rights complaints against public bodies. These have included complaints about discrimination, police misconduct and privacy, amongst others (Reif 239).

28.  South Africa remains a model for the operation of a divided system but emphasizes the need for co-operation in such examples. It also marks part of a wider global trend for ombudsmen to see their role increasingly through a Human Rights lens. The European Ombudsman, in particular, has made use of Art. 41 of the European Union’s Charter of Fundamental Rights which recognizes a ‘right to good administration’.

29.  Nevertheless, despite the effectiveness of the current South African Ombudsman, the institution remains fragile. The Protector has experienced almost constant criticism from government Ministers and the ruling majority in Parliament. The clearest example of this threat to the institution is the currently stalled (since 2013) Protection of State Information Bill (SA). This draconian measure would create severe penalties for the release of classified information and provide no defence of public interest. In addition, the Public Protector would only have legal access to such information through a court order. In the Nkandla investigation, the Protector was denied access to classified documents illegally (Public Protector, Report 25: 2013/14). However, the Protection of State Information Bill (SA) would legalize this practice. In addition, should such information be provided to the Public Protector informally they would be obliged to provide the material to the police. Unsurprisingly, the current Public Protector has stated that should the Bill be passed into law, her office would be fundamentally compromised (Ad Hoc Committee on Protection of State Information Bill, 28 March 2012).

F.  The Human Rights Ombudsman in the Spanish Speaking World

30.  The parallel development of the concept of NHRIs and ombudsmen was taken to its logical conclusion in the so called Iberian model which fused the two roles. The first of these was the Portugueuse Provedor de Justiça, established in 1975, although the Spanish Defensor del Pueblo is the model that has been most widely exported. This model followed the Danish conception of a parliamentary-appointed complaints mechanism but increased its jurisdiction to include the supervision of human rights. Appointed by a 3/5th majority in the lower house and the support of the Senado, the Defensor has a five-year renewable term. This appointment process has proved problematic with the two assistants also needing approval by Parliament. This has led to political parties agreeing to divide the positions along party lines and imposing candidates upon the Defensor (Bueso 325).

31.  Although the jurisdiction of the Spanish model is broader, its processes are very similar to the ‘classical’ model, with direct complaints from the public being the most common avenue, although Members of Parliament and Committees may also request investigations. Although the Defensor’s role is primarily informal, following the Danish model, and providing only ‘recommendations’ as a final outcome for investigations, they have limited prosecutorial power to defend aspects of the constitution. This sets it apart from the traditional classical models and marks something of a return to the judicial role of the Swedish original. In practice most of these powers have rarely been used as the Defensor del Pueblo’s intervention is largely unnecessary except in the most exceptional of cases. However, prosecutions to challenge legislation alleged to breach human rights under the Spanish Constitution, although also few in number, have proved politically significant, with such topics such as conscientious objection, trade union rights and rights of asylum all being taken before the Constitutional Court by the Defensor (Allen 25).

32.  This fused model of the ombudsman, combining the structure of the classical model with the jurisdiction of a National Human Rights Institution, has proved popular in recent years, particularly in states emerging from authoritarian rule. These have become common in Africa, alongside more traditional ‘classical’ models, and in some cases have fused with them (eg Ghana), but it is in Latin America that the ‘human rights’ ombudsman model has proved most popular.

33.  Most Latin American states underwent democratic transitions in the 1980s and the distrust of central authority caused by years of authoritarian rule led to strong demands amongst civil society for the creation of independent oversight authorities in the new constitutional orders. Not surprisingly, given the similarities between the Spanish legal system and those of Latin America (and the parallel experiences of authoritarianism), these tended to follow the Defensor del Pueblo model. However, despite the superficial similarities, significant differences exist between the Iberian model of the ‘Human Rights’ ombudsman and its Latin American counterparts.

34.  In Argentina, for example, the Defensor del Pueblo de la Nación has a remit which covers economic and social rights due to the Argentinian Constitution’s explicit recognition of international human rights treaties (Argentine Constitution, 1994, Art. 22). In addition, its jurisdiction explicitly includes private entities which deliver public services (as an example of cross-fertilization of the Iberian and Latin American systems, the Portuguese Ombudsman adopted similar powers in 1996). This combination led, in the aftermath of Argentina’s economic collapse in the late 1990s, to the majority of complaints being concerned with economic matters (such as the provision of water, electricity and financial services). One consequence of this was a series of successful court cases being launched by the ombudsman in 2001 against the forced conversion of depositors’ funds from dollars to Argentine pesos (Reif 199).

35.  Despite the prominence of the ombudsman in many Latin American states, significant constitutional obstacles exist to their effectiveness. This specific Latin American model is often referred to as the Ombudsman Criollos, a phrase coined by the Mexican Human Rights Commission (Cardenas 153). Latin American ombudsmen have, without exception, operated in the context of weak state institutions, a legacy of human rights abuses, poorly functioning legal systems and massive inequality. These challenges have been exacerbated by the predominance of presidential models in Latin American constitutionalism. This limits the leverage that the Defensors can exert given their parliamentary authority. In fact, many Latin American ombudsmen find Parliament/Congress uninterested in their work, creating a very different dynamic from that found in the Spanish model itself and in parliamentary systems generally (Uggla). This leaves them entirely reliant upon their reputation with the executive branch to ensure compliance. In practice the issues faced by Latin American Defensors therefore cut across the institutional differences between ‘human rights’ models and their ‘classical’ cousins.

G.  ‘Ombudsmania’: The Growth of Sectoral Ombudsman

36.  The growth in popularity of generalist public sector ombudsmen has been accompanied, more recently, by an explosion in the numbers of specialist ombudsmen focussed on complaints in particular public (and private) sectors. In Sweden, for example, the Consumer Ombudsman, the Children’s Ombudsman, the Equal Opportunities Ombudsman, the Ombudsman against Ethnic Discrimination, the Disability Ombudsman and the Ombudsman against Discrimination because of Sexual Orientation have all been established since 1971. These examples all straddle the murky boundary between the public and the private.

37.  Beyond this, there are a number of publicly funded and statutory ombudsmen, which regulate the private sector. The growth in these bodies and the variability in their powers and effectiveness has led the European Union to legislate on the matter to ensure a degree of coherence between such systems (Directive 2013/11/EU). UK examples which fall under these European rules include the UK’s Financial Ombudsman Service, the Pensions Ombudsman and the Office for Legal Complaints (commonly referred to as the Legal Ombudsman). All such bodies (which must now be approved by the relevant Member State authorities) have a parent public compliance agency to oversee their adherence with the public law norms established by the Directive and relevant Member State legislation.

38.  The growth in the number of self-styled ombudsmen across the globe raises a number of issues for the institution itself. Should all these bodies be regarded as ombudsmen? The International Ombudsman Institute (IOI) has taken the approach of limiting membership to public service ombudsmen who are independent from the executive branch. This definition has been broad enough to cover both ‘human rights’ ombudsmen and ‘classical’ variants but it excludes private sector ombudsmen and internal executive examples. It is also noticeable that a number of Human Rights complaints mechanisms which fall under the IOI definition are not members. In addition, the growth of sub-national/local ombudsman (such as in Belgium, Spain and the devolved nations of the UK) as well as sectoral ombudsmen has created a split within the ombudsman community with few of the latter obtaining IOI membership.

39.  The establishment of a supra-national European Union level institution has exposed a wider issue for citizens in multi-level systems. With the growth of multi-level decision making (and multi-level ombudsmen) the problem of jurisdiction has become confusing for applicants and has caused conflicts between some ombudsmen in some jurisdictions (Galera, Acosta and Soleto). The European Ombudsman has responded by establishing an information network to allow cooperation between such institutions and to ensure incorrectly filed complaints can be handed to the correct authority. This model has now been replicated in some other European jurisdictions, notably the UK. This issue is avoided in South Africa by the ombudsman being a single institution with regional offices.

40.  It is also noteworthy that a number of states have not followed the public/private division utilized by the IOI. In the UK, for example, although only the UK Parliamentary Ombudsman is a member of the IOI, the British and Irish Ombudsman Association (BIOA) has members from across the public and private spheres. The BIOA has used its functional ‘Guide to Principles of Good Governance’ to lay down the key principles that must be followed for a scheme to be a member of the association and thus be regarded as a true ‘ombudsman’. This functional approach focuses neither on the public/private law nature of the scheme, nor on its powers of enforcement but on its dispute focussed approach and independence. Given the growth of ‘governance’ and the global shift towards the provision of ‘public’ services by private and non-governmental providers, perhaps consumer-citizens are better served by this functional concept of the ombudsman than one that isolates pure ‘public’ institutions from the wider provision of services to the individual.

H.  The Ombudsman Enterprise Today

41.  In 2016, the International Ombudsman Institute had over 170 individual institutional members with many functional ombudsmen existing outside its membership. As explored above, the exact nature of the institution varies across jurisdictions and broad comparisons are difficult. In the majority of examples, it is a single person institution (but exceptions include Austria, Sweden and New Zealand). Most have a constitutional basis, but many do not (New Zealand and the UK); with a minority only operating as executive bodies. Some have a broad remit across the public sector (and beyond, as in Argentina) while some are sectoral or restricted to the federal or local levels. Nevertheless, despite these variations, it is still possible to make some broad statements about the ombudsman institution at the start of the twenty-first century.

42.  The concept of the ombudsman encompasses independent investigators who hear complaints from individuals (sometimes via a parliamentary filter) without charge against the actions of the public sector. They may also launch their own investigations when appropriate. Each has some form of responsibility to Parliament and all rely primarily (or exclusively) upon ‘alternative’ non-judicial methods to resolve disputes. In addition, they are not limited by the specific legal rules to declare a complaint upheld but instead look at more substantive reasons such as unfairness, poor behaviour or breach of rights. Although many have a specific human rights focus, all have responsibility to ensure ‘good administration’. The difficulty in defining the exact nature of this term has led to some ombudsmen enacting codes or guidelines defining good administrative practice (Hopkins) while others have adopted a legalistic approach to their remit. Some authors (Kucsko-Stadlmayer) have gone as far as defining those ombudsmen who take this latter approach as ‘Rule of Law’ ombudsmen (as in Austria and Sweden for example) in contrast to the ‘human rights’ and classical models described above. It is not clear that this approach is itself a model of ombudsman. The European Ombudsman, for example, in effect moved from a more formal focus to an informal ‘classic’ approach with the transition from the first office holder (Jacob Söderman) to the second (Nikiforos Diamandouros). In effect, each office holder brings their own view of the institution, in this case as the ombudsmen of Finland and Greece respectively.

43.  The extent of ombudsman discretion has led to some ombudsmen having their decisions challenged before the judiciary but, with few exceptions, courts have generally been reluctant to review their decisions. The Ghanaian Commission of Human Rights and Administrative Justice has the power of the enforcement through the courts. The Ghanaian Court of Appeal stated in 2001 that such actions can only be reheard de novo if the ombudsman acts, ‘clearly in breach of the principles of natural justice or otherwise unjustified in law and/or fact’ (Ghana Commercial Bank Ltd v Commission on Human Rights and Administrative Justice (2000)). Similar sentiments have been expressed by the courts in New Zealand and Canada when dealing with complaints against classical ombudsmen (BC Development Corporation v Friedman (1984); Wyatt Co Ltd v Queenstown Lakes District Council (1991)).

44.  Although the exact operation of the ombudsman institution varies, there can be little debate that the ombudsman enterprise has been one of the great success stories of administrative law in the second half of the twentieth century. However, despite the global spread of the institution, research has raised serious questions about the effectiveness of the institution in particular contexts (Abedin). In Latin America, for example, most ombudsmen have made little impact upon the abuse of human rights and poor administrative practice. Some (like their South African equivalent) have come under sustained attack from the executive branch while others have been dismissed as irrelevancies to states struggling with the transition to democracy (Uggla). Even in established systems, concerns have been expressed as to recent executive attitudes towards ombudsmen (New Zealand, see Geddis) and their NHRI cousins (for example the Australian Government response to the Australian Human Rights Commission criticism of offshore immigration detention) amid wider concerns about underfunding of ombudsmen institutions.

45.  There is no doubt that ombudsmen have the potential to make a significant difference to the lives of individuals wronged by the actions of the State and its agencies, but that ability requires the pre-existence of a strong culture of administrative compliance with the rule of law. Where this is lacking or the political costs of ignoring the ombudsman’s decisions are deemed to outweigh the advantages of doing so, the institution struggles to have an impact. Despite this, even in these cases, the existence of an independent ombudsman still provides a form of redress against the State where none would otherwise exist. It thus operates as an important (if limited) bulwark against executive mismanagement and abuse of power. It is nevertheless somewhat ironic that the quintessential public alternative dispute resolution mechanism requires a strong commitment to the formal rule of law to make it truly effective.

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