When it comes to the crunch with ombudsman rulings we fail to grasp the nettle

Opinion: our default response to scandals is to revert to handwringing

“After any seasonal scandal escapes from the shadows, we revert to our well-practised, handwringing default mode. Expressions of grave concern are chimed out with calls for transparency and accountability, as though we had never thought of these before.” Photograph:  Collins

“After any seasonal scandal escapes from the shadows, we revert to our well-practised, handwringing default mode. Expressions of grave concern are chimed out with calls for transparency and accountability, as though we had never thought of these before.” Photograph: Collins

 

The concept of ombudsman, with its origin in Nordic lands, has been adopted and developed throughout the world and is recognised as being complementary to, and supportive of, rule of law principles, but only when it is adequately and properly mandated and conforms to recognised standards of best practice.

An office of ombudsman must be totally independent of the bodies under its remit and, indeed, independent of any departmental secretariat, in order to be well-positioned to identify systemic issues or abuses with confidence that findings and adjudications will be unfettered, followed, and implemented.

In some instances, such as the job I did as ombudsman for the Defence Forces, the office may have oversight of complaints and grievances and fair treatment within the forces, or an office may be established to deal with complaints against the force as with the Garda Síochána Ombudsman Commission.


Leadership
In my experience, the effectiveness, in real terms, of such an office depends on both political leadership and, even more significantly, the leadership of the organisation under remit.

In a common law setting, it is safe to say that a statutory ombudsman contributes to widening access to justice, but this function must be distinguished from the judicial system in that a statutory ombudsman usually only makes recommendations and is therefore dependent on the moral authority underpinning the establishment of the office to ensure enforcement of the adjudications.

The essential function of an ombudsman is directly related to the two central elements of accountability: being called to, and being held to, account. There is universal agreement that there is no point in having a watchdog unless it can bite.

A number of criteria have been proposed for measuring the effectiveness of ombudsman institutions. These include accessibility; expertise; access to information; and independence, including capacity to initiate investigations, right to operate free from interference and access to sufficient resources.


Independence
Of these, independence is of key importance to the work of ombudsman offices and is argued to be the key ingredient for their effectiveness.

An ombudsman is accountable to the people through parliament and might, in some instances, report through a minister, but, in essence, the ombudsman does not report to government, as such, in the sense that this is understood to convey a potential censoring or control in the exercise of its legally based functions.

Many commentators believe that autonomy must be guaranteed by law so that there can be no interference from the executive.

As to operational independence, the functions the ombudsman is empowered to undertake should not be so restricted, in the small print of enabling legislation, as to render the office inadequate to properly meet the expectations of society in light of the stated reasons for its establishment in the first place.

It is well established that the ombudsman is best placed to keep the enabling legislation under review and seek amendments where deemed necessary. These submissions should be given serious and timely consideration if the office is to serve its objectives.

After any seasonal scandal escapes from the shadows, we revert to our well-practised, handwringing default mode. Expressions of grave concern are chimed out with calls for transparency and accountability, as though we had never thought of these before.

We have legislative protections; we even celebrate the “first to do” in some cases but, when it comes to the crunch, we do not grasp the nettle.

It seems that, having gained credit for announcing oversight provisions, we think nothing of diluting the powers, and compliance with adjudications may become a sparring session if the recommendations are inconvenient or uncomfortable.

If Alice in Wonderland came to visit, the Mad Hatter’s Tea Party would be our stage presence.

Echoes of Pete Seeger – “When will we ever learn?”


Paulyn Marrinan Quinn SC was founding ombudsman for the Defence Forces (2005- 2012) and founding insurance ombudsman of Ireland (1992-1998)

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