5. Memorandum by the English
Public Sector Ombudsmen
1. This memorandum has been prepared jointly
by the Parliamentary Commissioner for Administration, the English
Local Government Ombudsmen, and the Health Service Commissioner
for England ("the English Public Sector Ombudsmen")
as a response to the Joint Committee's call for evidence issued
on 5 April. We have not consulted our public sector ombudsmen
colleagues in Scotland, Wales, or Northern Ireland because the
establishment of Human Rights Commissions in Scotland and Wales
would be a matter for the devolved administrations in those countries
and, as Question 4 in the call for evidence points out, the Northern
Ireland Human Rights Commission must continue to exist.
2. We do not wish to express a view on the
desirability of establishing a Human Rights Commission for the
United Kingdom: that is a matter for Government and Parliament
to decide. Nor do we have any experience on which to base a reply
to most of the questions raised in the call for evidence. However,
there are two aspects on which we do wish to submit evidence.
3. The central role of the public sector
ombudsmen is to investigate complaints from members of the public
that they have sustained injustice in consequence of maladministration.
The concept of maladministration is not defined by statute; but
as it has been developed by successive ombudsmen it includes actions
which could be regarded as involving breaches of particular human
rights, such as the right to peaceful enjoyment of property, to
respect for family life, or to suitable education for children.
Maladministration may also involve more general inconsistencies
with the philosophy underlying the European Convention on Human
Rights: for example, action by a public authority may be disproportionate
to the objectives which it is trying to achieve; or it may be
accompanied by an inadequate explanation, or inadequate information
regarding rights of objection or appeal.
4. This link between human rights issues
and the work of public sector ombudsmen has been widely recognised
abroad. In some European countries, for example, such as Hungary
and Poland, the title of the national ombudsman is "Commissioner
for Human Rights"; and the Human Rights Commissioner appointed
in 1999 by the Council of Europe regards the national ombudsmen
in states which are members of the Council as among his most important
5. We therefore suggest that if a Human
Rights Commission is established for the United Kingdom there
would be advantage if one or more of the public sector ombudsmen
were among its members.
6. Question 9 in the Joint Committee's call
for evidence asks what powers a Human Rights Commission might
have. We have a particular interest in the suggestion that it
might be empowered to conduct investigations.
7. In our view, this would be undesirable.
First, to the extent that the Commission was regarded as an advocate
for a particular point of view it might not be accepted as an
impartial and objective investigator. Secondly, the Commission
would have to undertake an operational role and to be the employer
of a sizeable number of investigative stafftasks for which
it seems unlikely to be well equipped. Finally, as explained earlier
in this note, the public sector ombudsmen already conduct investigations
in areas touching on human rights; and the creation of yet another
body with a similar role would lead to confusion for complainants
and others. One of the main messages to come out of the Cabinet
Office Review of the English Public Sector Ombudsmen, published
in April 2000 and the subject of a consultation document issued
by the Government in June 2000, was the need to simplify and unify
the machinery for resolving complaints against public sector organisations.
8. In connection with the Cabinet Office
Review, we would observe that none of its recommendations would
weaken the arguments in this note: on the contrary, the creation
of a single ombudsman service to cover most public services in
England (and non-devolved matters for the whole of the United
Kingdom) would enhance the ability of the ombudsmen to contribute
to the work of a Human Rights Commission if one were to be established.
20 June 2001