Annex A – Principles of Ombudsmanry
The principles of the classical ombudsman have been developed, studied, and tested since the concept was introduced in the 19th century. These principles overlap and sometimes have different names in the academic literature, but remain consistent in terms of their underlying reasoning and component features. Entrenchment of these principles in ombudsman legislation is important, as is strict adherence to them in practice. Without these foundational principles, the ombudsman’s credibility and operational effectiveness are at risk.
The principles are:
- Independence
- Impartiality
- Fairness
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Confidentiality
Independence from the organization that is subject to oversight
Following the classical ombudsman model, the principle of independence includes the following features:
- legislated mandate
- independence from the political and administrative authorities under scrutiny
- tenure with a fixed salary
- immunity from prosecution
- appropriate funding
- control over communications
- control over staffing and administration
Independence from the organization subject to review must be entrenched in legislation. Otherwise, the ombudsman is at risk of repercussions following an unfavourable review or recommendation, including the shutdown of the office. The ombudsman must be, and must be seen to be, free to conduct reviews, make recommendations, and be unfettered in its decisions by the organization it oversees.
The perception of independence, in the eyes of constituents and the public, is also critical. To be credible, the ombudsman must not be perceived as an extension of, or answerable to, the organization it is mandated to review.
Similar to judicial independence, tenure of office and a sufficient salary are necessary for the ombudsman to be independent. Tenure insulates the ombudsman and its decisions from the potential consequences of political displeasure. Sufficient compensation ensures that financial incentives would not be perceived to influence decisions.
Another standard feature of the classical ombudsman model is immunity from liability for acts performed in good faith within the scope of mandated duties. This type of protection allows the ombudsman, and staff, to carry out their normal duties without the fear that they will be subject to disciplinary or other proceedings. Legislation, therefore, generally includes a specific provision for immunity from defamation for public communication provided the statements are appropriate and made in the context of the ombudsman’s duties.
Responsibility for the ombudsman’s own communications and media relations is an essential aspect of the ombudsman’s tool kit. The ombudsman must be free to publish findings and make recommendations autonomously, and to communicate the same through media when it is in the public interest to do so. This goes directly to the credibility and effectiveness of the ombudsman.
Appropriate funding and control of administration are also hallmarks of independence for ombudsman offices. Without administrative and budgetary control, critical operational decisions could be impacted. True independence is not possible when the organization under review holds the purse strings of the organization mandated to conduct the review.
Impartiality with respect to all dealings and all persons
Following the classical ombudsman model, the concept of impartiality includes the following features:
- actual and perceived impartiality
- evidence based investigations
- fair appointment process
- non-partisan appointee
The ombudsman must carry out its mandate in a manner that ensures impartiality of its investigations and decisions. Investigations are evidence-based and are concluded without prejudging any outcome, advocating for any point of view, or being influence by organizational favour or political partisanship.
The ombudsman is impartial - neither an advocate for a complainant nor for the organization subject to oversight. The ombudsman must gather and consider all facts objectively, giving all parties the opportunity to present and respond to evidence before conclusions are drawn and recommendations are made. Credibility and acceptance of recommendations depend on the stakeholder’s conviction that ombudsman findings are unaffected by real or perceived bias.
The process of choosing an ombudsman is also generally entrenched in legislation because the appointee must be an individual in whom all stakeholders have confidence. The critical element is that the appointment process should be decided based on the qualifications of the person, as opposed to his or her political views or affiliations.
Fairness of the review process based on the rules of natural justice
Following the classical ombudsman model, the concept of fairness includes the following features:
- processes consistent with the rules of procedural fairness and natural justice
- direct and free access for constituents
- defined jurisdiction
- investigations may be initiated without a complaint
- cooperation from the organization subject to investigation
- access to records and premises
- power to compel witnesses
- findings are not reviewable
- power to make recommendations but no order making power
- power to report (communications)
The principle of fairness is an overarching operational goal related to all aspects of the ombudsman’s work. The ombudsman must carry out its mandate ensuring that its investigations and review processes are credible, consistent with the rules of procedural fairness, and accessible to all.
In order to ensure credibility, the ombudsman’s investigative process must be consistent with the rules of procedural fairness and natural justice as developed by the court systems. This includes having an impartial decision maker who considers all evidence and allows all parties to present and respond to evidence before making findings and recommendations.
Most ombudsman work is conducted informally and issues are generally resolved with quiet diplomacy and without public notice. However, cooperation of the organization under review is not always forthcoming. Consequently, ombudsman legislation provides the necessary authorities to facilitate investigations and discourage obstruction. Authorities generally include the ability to access information held by the organization, whether the access be to records, individuals, or premises. Disciplinary action for non-cooperation with, or obstruction of, the ombudsman is standard. Most ombudsman legislation also includes the power to subpoena and to compel witnesses. Whether or not these authorities are used is less important than the strong incentive they provide to secure cooperation.
Informality and resolution at the lowest levels of the administration is the ombudsman’s primary approach to dealing with complaints. However, the ombudsman may escalate matters to the highest level within the organization if its recommendations are ignored or receive an insufficient response at lower levels. The ombudsman may also make public its findings and recommendations where it is in the public interest to do so.
The classical ombudsman model does not include order-making authority. Ombudsman offices can generally only make recommendations based on the findings of their investigations and cannot order corrective action. Recently, however, the Service Complaints Ombudsman for the Armed Forces in United Kingdom has been granted the authority to overturn decisions made by the military chain of command on certain matters.1
The concept of fairness is also understood to mean equal access for all constituents free of charge. Consequently, the ombudsman has authority to maintain information programs and use other means to inform constituents about its existence and the services available. Without the ability to communicate freely with constituents, access to the ombudsman becomes limited.
Confidentiality of constituent information
Following the classical ombudsman model, the concept of confidentiality includes the following features:
- investigations are conducted in private
- information remains confidential
- confidentiality protects from fear of reprisal
- ombudsman and staff are not compellable witnesses
An ombudsman must ensure that the information of constituents is kept confidential. Adherence to the principle of confidentiality is essential to retain the trust and confidence of the constituency. More specifically, individual complainants must have the confidence that they can bring issues of maladministration to the attention of the ombudsman without of fear of reprisal.
Most ombudsman legislation includes a protection for the incumbent ombudsman and staff from being compelled to testify regarding any matter within their knowledge as a result of the performance of duties. This is an important element of confidentiality that is intended to protect private exchanges of information between the ombudsman and a constituent.
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