Ombuds and national human rights institutions: Still learning to speak the same language?

By Dr Nick O’Brien, Honorary Research Fellow, University of Liverpool

Some reflections on an international conference in Belfast, 26-27 May 2016, on Human Rights: A 21st Century Approach to the Work of Ombudsmen

The ombuds institution in the UK, ever since its reception in 1967, has been associated chiefly, in its public-sector form at least, with the concept of ‘maladministration’. Although a notable part of the post-war reform of administrative justice and the enhancement of individual entitlement, the ombuds in the UK have rarely spoken the language of ‘human rights’ with any fluency or indeed regarded human rights territory as their natural habitat.

On the contrary, whilst ombuds elsewhere have evolved with an overt commitment to human rights protection, in the UK innovation has occurred more strikingly in the private than the public sector with the emergence of ombuds offices whose emphasis has been on the resolution of consumer disputes rather than on the democratic accountability of institutions within their remit. So pervasive, in fact, has been ‘consumerism’ as the dominant ethos that even in the public sector the role of the ombuds has been increasingly cast as a form of consumer dispute resolution for those aggrieved about the quality of ‘public services’, whether delivered nationally or locally, in-house or ‘outsourced’.

As a result, it is still the case that ombuds in the UK are scarcely perceived as part of the national human rights structure, the formal licence to promote and protect human rights instead being ceded almost exclusively to the respective national human rights and equality institutions. In such a context, the innovative and explicit collaboration in Northern Ireland of the Ombudsman and the Northern Ireland Human Rights Commission is especially striking and a potential model for the co-ordinated promotion and protection of human rights elsewhere. At a time when the language of human rights continues to evoke some unease in the UK and when the Human Rights Act itself is viewed with suspicion, it should be apparent that the enlistment of the ombuds institution as an express ally of human rights, and indeed a potential purveyor of a different approach to human rights protection, is especially salient.

At a time when the language of human rights continues to evoke some unease in the UK and when the Human Rights Act itself is viewed with suspicion, it should be apparent that the enlistment of the ombuds institution as an express ally of human rights, and indeed a potential purveyor of a different approach to human rights protection, is especially salient.

How then might the relationship between ombuds and human rights be re-imagined, so that Northern Irish exceptionalism might be a spur to a common vision and the adoption of a common language? That question was at the centre of a recent international conference in Belfast (hosted by the new Northern Ireland Public Services Ombudsman, Marie Anderson, and by Les Allamby, Chair of the Northern Ireland Human Rights Commission) where delegates were unequivocally assured at the outset by the UN Human Rights Commissioner that all ombuds institutions, and not just those with an explicit human rights mandate, should take a ‘human rights based approach’ to their work. The Secretary General of the International Ombudsman Institute was equally unequivocal: ‘Ombudsman business is human rights protection, without distinction’, he said; whilst the Director of the EU Fundamental Rights Agency added that ombuds understand better than others how ‘lofty human rights’ translate into the complicated business of governance.

On this account, the language of human rights is quite simply (as Conor Gearty put it in his 2005 Hamlyn Lectures entitled Can Human Rights Survive?) ‘the Esperanto of the virtuous’, the default position of all those of goodwill who seek to make the world a better place. Yet it is clear that ombuds in the UK remain reluctant adopters of human rights language. Such reluctance does not stop, it seems, at the English Channel. The European Ombudsman spoke of the need for ombuds to do ‘human rights by stealth’ and reminded delegates of an analogy she first used twelve years ago when Ombudsman for Ireland: it’s like feeding vegetables to your children; you smother them with chilli sauce and ketchup and avoid at all costs actually referring to them as vegetables.

The European Ombudsman spoke of the need for ombuds to do ‘human rights by stealth’ and reminded delegates of an analogy she first used twelve years ago when Ombudsman for Ireland: it’s like feeding vegetables to your children; you smother them with chilli sauce and ketchup and avoid at all costs actually referring to them as vegetables.

That human rights (like some vegetables) have acquired a bad name hardly comes as a surprise to those exposed to the popular press or political discourse in the UK; nor is the ‘crisis of human rights’ confined to the UK. The Director of the EU Fundamental Rights Agency identified three challenges for human rights throughout Europe: first, the drop in confidence in human rights as a tool for levering change; secondly, the lack of understanding of how human rights can be applied in practice; and thirdly, the more malign attack on human rights from those with a political axe to grind. If there were any doubt about the extent of those challenges, the migrant crisis – both ‘profound human rights crisis and profound public administration crisis’ – casts its shadow across the continent of Europe.

When it comes to the business of responding to that crisis and of enlisting the ombuds institution in the re-imagining of its relationship with human rights, three inter-related but arguably misplaced emphases in the dominant interpretation of ‘human rights’ must be challenged. Those emphases are first, that human rights are in their form primarily legal rules; secondly, that human rights are in their content primarily about civil and political rights; and finally that human rights are in the manner of their invocation primarily matters for enforcement in the courts. Each of these propositions is open to a measure of modification and was exposed to such by various speakers.

So, ‘It’s not all about rules’, said the Police Ombudsman for Northern Ireland, but as much about principles. ‘Social rights, more than civil and political rights’ are the ombuds’ natural habitat, maintained several speakers. It’s about ‘deliberative democracy’ and conversation more than the big stick, suggested the boss of one of Northern Ireland’s largest health trusts. It’s about ‘humanising the bureaucracy’, said Marie Anderson.

‘Social rights, more than civil and political rights’ are the ombuds’ natural habitat, maintained several speakers.

What is clear, however, is that it’s also about the painstaking and careful task of translating human rights rhetoric into daily ombuds practice. The undertaking of that exercise in Northern Ireland finds specific expression in the Human Rights Manual whose publication the Belfast conference ostensibly aimed to celebrate. The Manual, drafted with considerable skill and insight by Dr Nazia Latif, a former policy and research officer at the Northern Ireland Human Rights Commission, ambitiously, and effectively, undertakes to make human rights principle the stuff of daily engagement so that it can inform the work of ombuds and other complaints-handlers not just in the UK but, subject to some local adaptation, throughout the world.

Liberally illustrated with practical real-life examples, the Manual draws upon the so-called FREDA principles (Freedom, Respect, Equality, Dignity, and Autonomy) to apply international and domestic human rights instruments to the sort of situations that confront ombuds staff every day of the week, from first acceptance of a grievance to the completion of investigation and the recommendation of remedy. Notable is the generous coverage not just of civil and political rights but, especially salient for many public service ombuds, non-justiciable socio-economic rights, upon which the ombuds-style of deliberation has particular traction.

As Professor Carrie Menkel-Meadow, one of the founders of the ADR movement in the USA, remarked, the Manual is to that extent unrivalled in its practical application, a ground-breaking contribution to the advancement of human rights protection that deserves generous dissemination throughout the administrative justice community worldwide. For ombuds in the UK, and elsewhere, whose confidence in human rights discourse is not that of a native speaker, the Manual offers the prospect of renewed engagement with human rights and with their capacity to add real value both to ombuds investigation and to the work of public authorities. In the words of Professor Maurice Sunkin, there can now be ‘no doubt about ombuds having a critical role in human rights’: the key aim is quite simply the achievement of ‘humane public administration’.

If the engagement of ombuds in the UK has hitherto been marked by a measure of diffidence and ‘stealth’, the publication of the Human Rights Manual in Northern Ireland can be seen, then, as the opening of a new chapter, in which human rights rhetoric is finally transformed into human rights practice. That such an initiative has been the fruit of collaboration between two key ‘players’, national ombuds institution and national human rights institution respectively, is testimony both to the individual vision of the original proponents, Dr Tom Frawley, then Northern Ireland Ombudsman, and Professor Michael O’Flaherty, then Chair of the Northern Ireland Human Rights Commission, and, no doubt, to the common pursuit in Northern Ireland of a brighter future.

When it comes to finding a shared set of values and a common language for that endeavour, the lexicon of human rights must be the primary linguistic tool.

Such collaboration is, however, more generally a reminder of the need to think increasingly in terms not so much of isolated human rights and administrative justice institutions but of interlocking ‘networks of accountability’, in which first-instance decision makers, case reviewers, ombuds, human rights institutions, regulators and the courts all have a distinctive part to play. The resounding message of the Belfast conference is that when it comes to finding a shared set of values and a common language for that endeavour, the lexicon of human rights must be the primary linguistic tool. In the administrative justice kitchen, at least, it is time to call a vegetable ‘a vegetable’.