A woman in Ireland is fined for parking in a space reserved for persons with disabilities; she writes that a covering of snow prevented her from seeing the wheelchair logo painted on the pavement, and feels that her honesty is being impugned. Presiding at trial, a judge in Sweden says that a husband’s assault on his wife is “understandable.” In the United Kingdom, a life insurance company’s practices and the government’s ineffective regulation result in billion-dollar losses for customers.
They range from the day-to-day to the life-altering, but these cases all involve conflicts between citizens and the state, and were addressed through the growing institution of the national ombudsman.
“The public administration intervenes intensely in people’s lives – education, health, everything,” explains Emily O’Reilly, the Ombudsman and Information Commissioner for the Republic of Ireland, resulting in the “need for an independent, well-resourced, expert, easily accessible, impartial body to safeguard public entitlements, rights and freedoms.”
On December 3, O’Reilly spoke at Harvard Law School about the history and role of the national ombudsman in Europe. O’Reilly, who is serving her second six-year term, undertook this role in 2003, after a well-respected and highly visible career as a political journalist. Her connections with Harvard include a Nieman Fellowship in Journalism.
In general, she said, the need for ombudsmen stems from “maladministration,” a problem that occurs when a public body fails to act in accordance with a rule or principle binding upon it. “This can be high or low,” O’Reilly explained; “it can range from serious breaches of the law to how you are treated in a doctor’s waiting room.”
“The principle is that [the ombudsman’s involvement] levels out the playing pitch between the state and the citizen – state very big, citizen very small,” O’Reilly explained. “What the ombudsman does is bring his or her expertise, authority, and power to bear on the resolution to the problem so that citizens can stand on an equal level with the state while their complaint is being investigated.”
O’Reilly traced the concept of the ombudsman (coined from the Swedish word “ombud,” meaning “agent” or “authority”) to Charles XII of Sweden. In 1712, embroiled in the Great Northern War between the Swedish and Russian empires and exiled in Moldova, the King appointed an official to ensure that bureaucrats back home were not ill-treating his people. The first Swedish parliamentary ombudsman was appointed in 1809, but it was not until the early and mid-20th century — with the devastation caused by two World Wars, the subsequent growth of public administration, and the establishment of the European Convention on Human Rights — that the institution began, slowly, to take hold. By 1998, a dozen Scandinavian and Western European countries had established an ombudsman’s office.
After the collapse of Communism in the late 1980s, an equal number of Central and Eastern European countries followed suit. In these new democracies, O’Reilly said, titles like ”Citizen’s Defender” (Bulgaria) and “Public Defender of Rights” (Czech Republic), and the ombudsmen’s specific powers to challenge new laws, intervene against or appeal judicial proceedings, and monitor institutions prone to human rights abuses reflect a “much sharper focus” on traditional human rights issues and the need to embed the rule of law. As examples, she cited the Croatian ombudsman’s intervention as amicus curiae in the first discrimination case heard by the country’s Supreme Court, and widespread involvement by ombudsmen in Albania, Hungary, and Romania in complaints of discrimination against the Roma people.
She argued that for the system to work, the process must be free to use and accessible, the office should be created under a legal statute or the country’s constitution, and the ombudsman must have wide powers of inspection and inquiry.
An ombudsman’s approach is conciliatory and non-adversarial, O’Reilly said, but while his or her recommendations have no binding legal effect, they carry a strong moral persuasion. And “in most well-functioning democracies, with well-functioning ombudsmen’s offices,” that is often, even virtually always, enough for them to be accepted. This stems, she explained, from “a contract of trust” among the ombudsman, the public bodies, and the people. “The people buy into my independence, the public administration accepts that [an ombudsman] is a good thing for a democracy to have, and as long as the decisions I make are rational and not off-the-wall, they will accept them. …There’s a sense that they should trust in the diligence and the skill of the office to arrive at an effective outcome.”