58. Memorandum from the Commissioner
for Local Administration in Scotland
Thank you for your letter of 21 March 2002.
As you are aware the Scottish Parliament has also been looking
at the development of a human rights culture and my office has
responded to consultations of the subject.
Rather than answer each of your questions individually
I have tried to answer question one and then reflect on how human
rights issues have influenced policy and practice over my office
in its 26 years' existence. My authority is derived from the Local
Government (Scotland) Act which defines my task as the investigating
of complaints about maladministration with injustice and reporting
on them. The focus is on analysis of a complaint to determine
the facts which generated the complaint. That is not done explicitly
against a human rights framework. It is, instead, undertaken first
against the legal background of the service concerned, then the
"best practice" of the service delivery sector and lastly
against generally recognised principles of sound administration.
The paramount consideration has been resolution of the complaint
and for the last 10 to 15 years successive Ombudsmen in Scotland
have tried to make early resolution without formal investigation
the norm. What has been seen to constitute maladministration has
developed over the years, from the experience of this office and
the experiences of the Parliamentary and Health Service Ombudsmen,
and the other Public Service Ombudsmen within the British Isles.
I suspect the gradual move over the last decade to a rights culture
has been influencing thinking, without detracting from the focus
on the issues of each individual complaint and the needs of each
individual complainant. With the incorporation of the European
Convention into our law I expect the influence to grow and become
much better understood by Ombudsmen and bodies within their jurisdiction.
There is one development which I find potentially of benefit in
my practice and which if applied further has the potential to
move matters on, namely the Code of Good Administrative Behaviour
promoted by the European Ombudsman and approved on 6 September
2001 by the European Parliament. Whilst targeted at European Institutions
I believe it sets out in plain language principles which are of
universal application by Ombudsmen at all levels. More importantly
it describes behaviour which all public administrations should
aspire to achieve. (The Code is available at www.euro-ombudsman.eu.int).
It is anchored in Article 41 of the Charter of Fundamental Rights
of the European Union, reflects fully the aspirations of the Charter
itself and fills a gap between the pragmatic, problem solving
role of any UK Ombudsman operating within statutory parameters
and the broader principles of the Charter.
16 April 2002