Nick O’Brien, Honorary Research Fellow, Liverpool University Law School, on the essential connection between human rights and ombudsmen
[Note: This article is based on a presentation to the Ombudsman Association’s Equalities, Diversity and Human Rights Interest Group, 1 December 2014, House of Lords]
I want to consider three important misconceptions about human rights and suggest that the connection between ombudsmen and human rights is easier to make than it sometimes appears, at least here in the UK.
In a way it’s odd that I need to make that apology for talking about human rights, since in many, probably most, parts of the world ombudsmen are routinely seen as part of the human rights set-up and in fact often have the status of the National Human Rights Institution (NHRI) for UN accreditation purposes. This is the case, for example, in much of eastern Europe and Latin America, but also closer to home in Spain and Portugal where the ombudsman was set up after periods of dictatorship. Interestingly in France the ombudsman or mediateur was amalgamated with other agencies such as the commissioner for children to become a new defenseur de droits, and in the Netherlands not so long ago the ombudsman put forward a strong, but ultimately unsuccessful case, to become the NHRI.
But here in the UK things are rather different, and so the three misconceptions I have in mind are these. First, that human rights are primarily legal things and so somehow the property first and foremost of lawyers. Secondly, that human rights are mainly to do with a negative concept of liberty, freedom from state intrusion in respect of things like freedom of speech, freedom of movement, freedom of assembly and freedom from unreasonable restraint, and so are most likely to be about the police or the prisons or the criminal justice and security system in one way or another. (And in this connection it’s interesting to note that our most prominent human rights NGO is called Liberty, not Fraternity or Equality or even Justice.) And thirdly, that the main way of dealing with human rights conflicts is by way of adversarial litigation in the civil courts, and so the whole business is about legal enforcement.
There is good reason at the moment for ombudsmen to have an eye on human rights. It is now clear that the ombudsman ‘concept’ has in the last decade or so gone off in a subtly but importantly different direction from where it started here in the 1960s. In the early days, it was largely accepted that ombudsmen had something to do with the rebalancing of power, whether between the citizen and the state or the individual and a private corporation. The idea was that the way these big bureaucracies, whether public or private, worked reflected an imbalance of power, and in a post-war world more acutely conscious of trying to be somehow egalitarian and democratic, the ombudsman was there as a figure who could to some extent redress the balance. When Harold Wilson introduced the Parliamentary Ombudsman in 1967 it was very much with the intention of humanising the state bureaucracy and protecting the individual citizen from infringements of liberty and exposure to undemocratic humiliation.
But things have changed. Although the early private-sector schemes for banks, building societies, and insurance espoused a similar ethos, albeit applied to private bureaucracies, it’s fair to say that now, in both public and private sectors (insofar as that distinction holds water any more), the main preoccupation is no longer imbalance of power or the restoration of values such as liberty and equality but the consumerist notion of ‘quality of services’. The ombudsman is cast as one among many forms of ADR whose central task is quickly and efficiently to resolve a dispute between the user and the provider of a service, whether public or private, and secure redress – preferably but not exclusively financial – so that it’s back to ‘business as usual’ as soon as possible, and before the mutual enjoyment of free-market enterprise is unduly impaired. As Alan Bennett put it when standing outside a new mall in Leeds in the 1980s, ‘we’re all shoppers now’.
In some ways this is all fine, and no doubt it’s hard to be against the improvement of service quality and the recovery of compensation when things go wrong. This is all very much in tune with the new EU ADR Directive, which will be in force here by this time next year and which is currently exercising the ombudsman circuit. But sometimes it all seems a bit flimsy and leaves you wondering whether that’s all there is to the ombudsman enterprise.
One possible antidote to a purely consumerist approach is by way of regard to human rights, not because human rights are beyond reproach politically or philosophically, but because internationally they are pretty much the only game in town when it comes to trying to get some sort of purchase on values that are not just about the market. And so if ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.
In turning to human rights, let’s go back to the misconceptions I mentioned earlier, and first of all the idea that human rights are essentially legal and so the property of lawyers.
It’s obviously the case that there is a legal aspect to human rights and that they appear in so-called legal instruments that make them look like laws. And in the UK we have our Human Rights Act 1998 which looks like, and to some extent is, an ordinary statute. But if you’ve ever looked at it you’ll notice how slim it is and actually how vague. True, it’s really only incorporating into UK law the European Convention on Human Rights (ECHR), and so to that extent there’s really not a lot to say. But even the ECHR errs on the side of brevity and certainly does not prescribe a detailed set of rules envisaging as many situations as possible as is the case with most UK domestic legislation. And that brevity and vagueness point to that fact that human rights law, unlike most other law, is (as distinguished human rights lawyer Professor Conor Gearty remarked in his Hamlyn Lectures a few years ago) more like a mission statement than a series of detailed rules. Some, like the British Institute of Human Rights, have in fact tried to distil the essence of human rights and their mission into a few key principles, captured in the acronym FREDA – fairness, respect, equality, dignity and autonomy which again points to the fact that this may be law but not really as you know it. But whether those principles provide an exhaustive account of human rights or not, the key point is that there is nothing especially legalistic about human rights, and even when you look at the judgements of the domestic courts or more especially the European Court of Human Rights in Strasbourg, the judgments are thankfully more like philosophical reflections than detailed legal arguments, and so very much accessible to a non-legal audience and the sort of texts that pretty much anyone can engage with without having any special technical legal knowledge.
So, if there is nothing especially intimidating about the form of human rights law, what, secondly, about its content, which so often seems to be wrapped up with controversial political statements about prisoners or terrorists or police suspects, or major debates about religious or cultural freedom. Might not all this be a bit over the heads of the day-to-day work of most ombudsman schemes, who rarely get embroiled in that sort of political controversy?
All this controversial stuff does have a human rights angle, and it’s often this that captures the eye of the press, and the courts for that matter. So we get all the scare stories about the extraordinary bad people who somehow use human rights to ‘get off’, rather than the stories of many ordinary good people who need human rights to get what they need. It’s part of the same distortion that gives us Liberty as our main human rights NGO. The reason I say ‘distortion’ is that when the UN made its universal declaration in 1948 it in fact combined all these negative freedom-from libertarian rights with a set of positive ‘freedom-to’ egalitarian and fraternal rights, that are normally described as social rights (as opposed to political or civil rights), things like the right of access to healthcare or education or social care or employment. It was only later that these social rights got separated out from the rest. So in Europe in the 1950s we ended up with the ECHR, which is a civil and political rights instrument, and separately with the European Social Charter, which contains socio-economic rights.
And here’s the important bit for ombudsmen, which is actually to do with the third of our misconceptions, the one about legal enforcement. While the ECHR got the court in Strasbourg, the Social Charter was left without a forum for legal enforcement of that sort and was instead left to a Committee of the Council of Europe to oversee. The Committee does that job by receiving and investigating complaints, and by doing its own inspections, and then making recommendations to the state in question. In the jargon of the lawyers, these social rights are non-justiciable, in the sense that they cannot be taken to court, but they are entitlements nonetheless with equal status to any other political or civil rights, and in many ways they are more directly relevant to the daily lives of ordinary citizens than their more demonstrative siblings. If you look at the decisions of the Committee on the Council of Europe website you’ll see again that they are generally short, non-technical and very much the sort of thing you can imagine an ombudsman coming up with.
Basic human needs
So, we can brush aside these three misconceptions that might get in our way and prevent us from seeing human rights as natural ombudsman territory. Human rights are not the product of legalistic instruments but much more like the sort of broad principles that crop up, for example, in the principles for administrative justice published by the Parliamentary and Health Services Ombudsman, or those produced by the European Ombudsman or the Administrative Justice and Tribunals Council before its abolition.
Human rights are not primarily about policing or security; instead they are very much about the provision of basic human need in areas like education, health, social care and housing.
And, finally, human rights do not typically have to be ‘enforced’ in the courts; on the contrary, the important socio-economic rights are more often than not ‘given force’ (not enforced) by processes that are strikingly similar to those of ombudsmen.
In principle, therefore, there is no reason why ombudsmen should not see themselves as very much engaged with the human rights terrain. On the contrary, just as in the rest of the world, there is every reason for ombudsmen in the UK to see human rights as their natural habitat. When ombudsmen say they are not making legal determinations but instead deciding what is fair and reasonable in the particular case, people sometimes wonder from where they conjour these magical extra-legal values. One answer is to say that those values, although not always articulated as such, are in effect the sort of standards or norms that lie at the heart of human rights. If Ombudsmen are not to lapse into the sort of consumerism that currently entices them, they would do well to become more self-conscious about the human rights aspects of their role.
I have no problem with the idea that the thought processes which underpin Ombudsman decisions may pay homage to human rights thinking, provided of course they are judge proof in the context of the particular ombudsman’s (or woman’s) founding powers. But I think the perennial confusion between morally based human rights and international and domestic law based (i.e. legal) rights needs to be thoroughly understood before Ombudsmen make untutored references to them in their decisions. As Ombudsman territory often more naturally but not exclusively, equates to the kind of ‘rights” referred to in the European Social Charter, it also needs to be said that such rights (sometimes taken as implying duties for governments) need to be endorsed with some care. Many of them may be better considered as high priority goals rather than as rights, given the costs and difficulties inherent in enforcing them and the varying resources of member states; or perhaps having a weaker moral foundation but still morally based if you are a philosopher. One can be agnostic about whether morally based human rights and legally based rights have to coincide. A positivist outlook lets you observe that they do sometimes but do not always need to. Social rights beyond “protection from” are even more tricky in looking for a solid here and now justification. For a very useful survey of all this, go to plato.stanford.edu and type ‘human rights’. In short, social rights are non justiciable mainly for political reasons, which in turn may largely rest on resource constraints. They have more to do with describing a line of travel and a mutual exhortation to reach highly desirable improvement goals than the indefeasible universal rights of individuals. Rights language is very seductive but slippery and the law means more when human dignity is at stake. Ombudsmen who want to use the language of rights may want to bear this in mind. Good luck!