The Ombudsman in the Modern State

Matthew Groves, Anita Stuhmcke, Matthew Groves, Anita Stuhmcke

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509943258
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

Ombudsmen are a global phenomenon. They are also a critical part of the public law frameworks of modern liberal democracies. This is the first edited collection to examine the place of the ombudsman in the modern state. It brings together key international scholars to discuss current and future challenges for the Ombudsman institution and the systems of government within which they operate. The book is international in scope with authors heralding from most continents - Canada, the Netherlands, the United Kingdom, Australia, New Zealand, Hong Kong, South Africa, Germany, and Austria. This global analysis is both in-depth and expansive in its coverage of the operation of Ombudsmen across civil and common law legal systems. The book has two key themes:
- The enduring question of the location and operation of Ombudsmen within public law systems in a changing state, and
- The challenges faced by Ombudsmen in contemporary governance. This collection adds to the public law scholarship by addressing a common problem faced by all avenues of public law review – the evolving nature of modern public administration.

1

The Evolution and Future of the Ombuds

MATTHEW GROVES AND ANITA STUHMCKE

The very title of this book – The Ombudsman in the Modern State – presumes that the ombuds institution will continue to exist, but in so doing it must continue to evolve. That is because we proceed on the assumption that government and its individual elements will continue to develop relentlessly. This book examines one part of government that is as dynamic as it is static – dealing with complaints about bad government. As much as government evolves, one constant feature of government remains: mistakes. The form of those mistakes might change, so the error previously made by a person standing behind a counter might now be made through an automated decision-making process, but their substantive nature remains eerily familiar. Public agencies and their staff make decisions or devise policies that are unfair or wrong, or perhaps explain or implement their decisions in a clumsy manner. The people affected by those decisions and policies have a grievance and want to be heard, preferably by an office independent of the agency or official that caused the problem. Ombuds¹ assume a central role in meeting that need.

Introduced in its modern form as the Justitieombudsmannen in 1809 in civil law in Sweden, the first common law ombuds was established in 1962 in New Zealand. That transition of the institution from a civil law to a common law system of government provoked debate about what precisely the institution should do.² Although ombuds are now a well settled aspect of modern government, debate about the proper mission of the institution continues.³ This book does not seek to answer that debate, only to continue it. Drawing on authors from across the globe, from common law and civil law countries, the challenge set for the authors contributing to this collection is the interrogation of this evolution. This task is challenging. There are several core tensions which make this so, including the impact of artificial intelligence (AI) on both the agencies investigated by ombuds and the ombuds’ own processes, the enduring nature of many issues facing ombuds, such as the impact that the apparently low political priority of ombuds offices has on the institution itself.

I.International but Still a Mystery

The ombuds institution is truly global, yet continues to defy generic definition.⁴ Today’s international ombuds institution is integral to the public law frameworks of modern liberal democracies. This is due both to the sheer volume of complaints that ombuds receive and to their unique jurisdiction and powers. Globally, in the modern state, the ‘ombudsman concept’ refers to this distinctive approach to the institutions receipt, handling and resolution of a citizen’s complaint and its capacity to take in wider problems of maladministration. To some extent, ombuds are defined by what they are not.⁵ Ombuds are institutionally separate from the departments and other arms of government they investigate, yet they are a public sector agency. Ombuds are not courts and do not conduct reviews according to the same doctrinal precision of the courts.⁶ Nor do they make and remake decisions, which is typically the hallmark of tribunals. Unlike courts and tribunals, ombuds have no enforcement power.⁷ Ombuds instead undertake free, fast and non-binding review of individual decisions or wider governmental practices, and are guided in this work by standards quite distinct from those used by courts and tribunals.

Stephen Thomson’s chapter in this collection questions whether that limit should continue. He suggests that ombuds could be granted limited powers of enforcement which would not, if crafted and managed carefully, undermine the conceptual foundation of ombuds. This suggestion is arguably an extension of the small but noticeable number of judicial review cases where courts have entertained claims about the scope of ombuds’ powers or the lawfulness of their processes.⁸ The grant of modest enforcement powers represents an equally modest strike back on the part of ombuds, which suggests that the potential competition between courts and ombuds Thomson is anxious to avoid has already started. Any suggestion to invest ombuds with remedial or enforcement powers stands against all of history. This remedial limitation is not simply part of the shared Scandinavian Grundnorm of the institution. It is often what distinguishes ombuds from other complaint mechanisms and is widely thought a part of its secret for success. Here, the institution breaks the chain of authoritative decision-making and does so by not interfering, at least in a formal or direct legal sense, with the administrative process.

As ombuds disavow the formal, technical and often adversarial approach of courts,⁹ the institution lends itself more easily to comparative work across both civil and common law jurisdictions than either courts or tribunals. Comparative scholarship about the courts is generally thought difficult, though not impossible, by reason of the different methodologies of the civil and common law worlds.¹⁰ That problem has never troubled the ombuds because it remains the only public law innovation that has been embraced in the common law world without any real attempt to hide its European origins.¹¹ The avoidance of judicial methodologies and their associated procedural morass means that comparative analysis of ombuds is not muddied by the problems which arise in comparative analysis of courts and their often vastly different constitutional settings and localised quirks of procedure.¹²

The chapter of Greg Weeks attempts to identify one of the bright lines needed to understand the shared focus of the ombuds institution. He makes clear that maladministration is the focal point for the institution but that there are other key aspects of the institution, notably the wide remedial discretion, the lack of final determinative powers and the morality of its determinations, which in combination distinguish ombuds from the traditional work of courts and tribunals. Weeks argues that courts and tribunals are largely unsuccessful in doing what an ombuds does – examine maladministration in its widest sense. Individual ombuds can adopt quite different philosophies and processes for their office, but they are all founded upon a ‘legal and policy architecture’ that is ‘substantially common worldwide’.¹³ That universal foundation eases the path for comparative scholarship. The different constitutional and operational settings of ombuds, but with a shared history and function, is a theme which echoes throughout this collection. Ron Patterson’s chapter on the New Zealand Parliamentary Ombudsman, the first common law ombuds in the world, is an excellent example of the importance of jurisdiction and operational context for ombuds. Patterson’s chapter explores the New Zealand Health and Disability Commissioner and its ‘oversight’ by the New Zealand Parliamentary Ombudsman. In doing so, the chapter explores age-old themes shared by the institution across the globe: access to services; transparency of services; and ensuring fairness of decision-makers. Similarly, Chris Wheeler’s chapter focuses on the jurisdiction and operation of one of the seven Australian ombuds, the NSW Ombudsman, and in doing so draws out challenges which face ombuds in the modern state around the world. Wheeler identifies and interrogates five major challenges for the future for ombuds. Some are ongoing and some are new: independence, resourcing, proliferation, technology and adaptability. Wheeler’s chapter singles out the enormous changes brought about by the technological changes over the past 20 years which have made and will continue to make seismic changes to the environment in which ombuds operate. Wheeler observes that the increasing use of automation to make discretionary decisions has created a significant challenge for ombuds, which will be a growing problem over time.

II.The Impact of AI on an Institution Founded on the Value of the Human Touch

As Wheeler’s chapter identifies, technology is a significant and ongoing globally shared external pressure brought to bear upon the office of the ombuds in the modern state. This topic is further taken up by Creutzfeldt in chapter seven, who reflects upon technology, ombuds and legal consciousness. Her chapter pushes debate into wider notions of justice and how digitalisation meets citizen demands. Creutzfeldt’s chapter examines a wider dilemma now facing public law – how do systems of administration accommodate AI and technological developments?¹⁴ The issue becomes all the more pressing for ombuds, who are likely to become increasingly occupied by complaints from people who felt they were not accommodated by a process. Time-honoured complaints about ‘faceless bureaucrats’ will assume a literal quality in the age of digital government. The problem will come into sharp focus as ombuds simultaneously consider complaints about decisions with an increasingly machine-led component while they seek to adopt similar systems to manage complaints.¹⁵ The problem also has a sharper edge for ombuds when account is taken of the dignitarian element of administrative law, which acknowledges the inherent value of treating those affected by the exercise of official power with respect.¹⁶ The solutions suggested by Lord Sales seemed designed to locate a suitable place for the courts in settling these problems. Sales proposed a combination of ex ante and ex post scrutiny of significant use of AI in government. The ex ante stage could involve notice and consultation, to enable feedback and advance knowledge about significant new schemes or algorithmic processes.¹⁷ The ex post mechanisms occurring after AI-driven changes had commenced operation could include ways to filter those complaints requiring more attention, with perhaps judicial oversight reserved for the small number of cases that raised systemic issues.¹⁸ Sales is especially concerned to identify a suitable site for the work of the courts, though his combination of preliminary scrutiny and test cases implicitly leaves open a role for ombuds in his acknowledgement that simple, informal review will always be required.¹⁹ It is, however, revealing that Sales suggests the creation of a new ‘expert algorithm commission’ as an oversight body but does not once consider deployment of ombuds.

III.Age-Old Problems in the Midst of an AI Revolution

The recent explosion in the number of official inquiries and academic scholarship on the impact of technology on public administration has the potential to obscure the point that technology draws into focus problems that many affected by public agencies have long experienced. Many people who are adversely affected by official decisions struggle to access and understand the processes which affect them. A loose parallel can be drawn with a person who in recent decades might have struggled to apply for a pension or other public benefit because they were not very literate, could not afford a bus fare to visit a government office or perhaps did not have easy access to a telephone. These different examples of access to, and understanding of, decision-making and complaint processes are not too different from the struggles many now face when attempting to lodge online forms or understand the automated processes often used to determine them. Those of us who struggle to grasp the nature of computer coding probably fail to realise that the lengthy paper forms used by agencies may have been just as indecipherable to many as coding.²⁰ When characterised this way, another constant feature of government is apparent – the relative vulnerability of many who interact with or complain about government.

Indeed, the existence of a possibility to complain does not translate into equal opportunity to do so. Not all social groups access the institution in the same proportion. Complaints made to government ombuds are rarely made from people who are socially disadvantaged.²¹ They are made by people who are from older, middle-class backgrounds rather than from the lower-class, young or minority groups.²² International research has confirmed that the general profile of the user of ombuds services is ‘a man or a woman in middle age with a higher education and a reasonable income and enough bureaucractical competencies’.²³ Thus, more powerful members of society are able to take better advantage of the ombuds institution, which is designed to support all members of society regardless of race, class, gender or age. The autonomous liberal individual is not necessarily in a position to bring a complaint to an ombuds.

This age-old problem of vulnerability is examined by Linda Reif in her chapter about the rights of older people. Reif examines how ombuds face similar challenges across both different jurisdictions and different types of ombuds institutions – most notably, classic-based and human rights-based ombuds. Urging a higher priority be placed upon the rights and needs of seniors by ombuds institutions, Rief’s contribution is a reminder of how ombuds preserve and protect the rights of vulnerable individuals. In chapter eight, Nick O’Brien further focuses upon disability rights to take up the challenge of conceptualising the role of the institution with respect to rights more broadly. Using disability rights, O’Brien offers a means to reconceptualise how ombuds may promote and protect equality...