‘SPEAKING TRUTH TO POWER.’

' When will they ever learn? Oh, when will they ever learn?' - Homage to Pete Seeger.

THE CONTRIBUTION OF THE OMBUDSMAN PROCESS IN EXPANDING THE VALUE OF ALTERNATIVE DISPUTE RESOLUTION.

Experience would suggest that an analysis of the internal grievance procedures of any institution and, in particular, the Armed Forces, provides a barometer of prevailing issues with concern to members. It would be true to say that recurring grievances on the same issue may signal bad policies or practices, or the maladministration of what are good practices.

An Office of Ombudsman must be totally independent of the bodies or institutions under its remit and, indeed, independent of the departmental secretariat in order to be well positioned to identify systemic issues or abuses with confidence that the observations and findings and adjudications will be respected, followed and implemented.

An Office of Ombudsman maintains a focus on grievances and, as such, is grievance and complaint focused. The Ombudsman conducts an in-depth investigation of the causes of complaint and through a review of the internal complaint handling system of the body under remit, the Office gains sight of the prevailing standards in dealing with complaints. It is of value to the body under review that the outside independent analysis of the complaints provides an opportunity of identifying recurring causes of grievances arising out of systemic abuses.

The concept of Ombudsman, with its origin in Nordic Lands, has been adopted and developed throughout the world and is now recognised as being complimentary to, and an extension of, the Rule of Law but only when it conforms to recognised standards of best practice.

In the pursuit of fair procedures and principles of Natural Justice, a military, security sector, or other Ombudsman’s responsibility, must not be underestimated. Courage, patience, and tenacity are required in the quest for accountability and proper transparency in the treatment of citizens in general or those of a specified section of society in a bespoke Sector Ombudsman. 

There may be many challenges, obstructions, and frustrations encountered in the endeavours to investigate the complaints and to provide remedy and redress in individual cases and have recommendations implemented. When an Office of Ombudsman is given full support, the outcomes are a positive and a cost-effective means of reaching a resolution. In this respect the Office of Ombudsman is seen as a relevant and pivotal part of the development alternative dispute resolution processes (ADRs).

In order to be truly effective, the Ombudsman must be endowed with legally established rights and powers to investigate all aspects of the causes of complaints and grievances.

As the Office develops through the adjudication of diverse cases, it will accumulate a rich resource of precedents. Although traditionally an Ombudsman is not strictly bound by precedent, it is desirable to maintain consistency and in the interests of maintaining the confidence and trust of its constituents.

Since December 2005, the Office of the Ombudsman for the Defence Forces in Ireland (ODF) has provided an independent, objective, and accessible means of redress for individual members and former members of the Defence Forces in addition to maintaining oversight of administrative and systemic practices.

This means that members of the Irish Defence Forces have been given the right to an independent review of their grievances and how they were handled within the internal grievance procedures. There are additional safeguards because the legislation linked the military internal complaint handling procedures to the Legislation establishing the Office of Ombudsman requiring that the Military Ombudsman be advised of every complaint that is made through the redress of wrongs (RoW) procedure.

Very quickly after the establishment of this Office there were over two and a half thousand visitors to the website from as many as 77 countries which increased to 86 .

Since becoming operational in December 2005, the Office of ODF handled more than 380 individual cases in the first four year period and it proved to be a significant catalyst for reform of administrative and human resource practices within the Irish Defence Forces. Due to a swift and positive response to some of the early case adjudications, where, for example, a lack of consistency in the criteria used in selection and appointment procedures a Letter of Instruction (LoI) was issued by the Deputy Chief of Staff (Support) introducing changes with immediate effect.

It was noted that in the second year of operation of the Office a number of the cases eligible for investigation came from the Officer rank of Lieutenant or higher.

Best practice in the operation of an Office of Ombudsman would dictate that the Office monitors the implementation of commitments given by the body under remit and a Minister if that is relevant. Whereas it could be said that adjudications and recommendations have been a catalyst for reform across a wide range of areas, the only way that an Ombudsman can properly determine whether there is a meaningful and sustained benefit as a result of adjudications and recommendations issuing from the Office is by conducting timely audits on the follow up and implementation of undertakings and agreed redress.

It is now widely recognised that the work of an independent Office of Ombudsman can stretch to overseeing the protection of human rights and fundamental freedoms particularly in the case of an Ombudsman who has jurisdiction over the Security Sector or Armed Forces. Such an Office is also perceived as representing a means of overseeing administrative standards in human resource management practices within institutions over which it has jurisdiction.

In the early days of the establishment of an Office of Ombudsman there may be immediate visible changes and reforms but, as time passes, the on-going benefits accrue by virtue of the Office serving as a touchstone or barometer. The presence of a properly empowered Office of independent oversight can influence how an institution conducts the management of its people and promote fair treatment.

This is particularly relevant as regards an Ombudsman dealing with military grievances - a matter addressed by a former German Parliamentary Commissioner for the Armed Forces, Reinhold Robbe, when he said “experience has shown that the very existence of an independent Commissioner to whom any member of the Armed Forces can have recourse has a positive effect on leadership behaviour.”

In my experience, the effectiveness, in real terms of such an Office depends on both political leadership and, even more significantly, the leadership of the institution over which the Ombudsman has oversight. In a Common Law setting, it is safe to say that a Statutory Ombudsman contributes to widening access to justice, but this function must be distinguished from a judicial system in that a Statutory Ombudsman makes recommendations and is therefore dependent on the moral authority underpinning the establishment of the Office to ensure enforcement of the recommendations for remedy and redress. The Office of Ombudsman not only depends on the willingness of the institution under its remit to cooperate and comply with the recommendation but also to have had the foresight to envisage the long-term benefits to that institution or body. There can be no doubt that leadership is the key to meaningful institutional change and reform.

Effecting change in the approach to handling interpersonal disputes or grievances within an institution or workplace, particularly those with a distinct culture, requires leaders with vision, foresight, and moral courage. Without this commitment to change in the long-term interest of an organisation, little would ever change for the better.

While I was working as the Irish Ombudsman for the Defence Forces (2005 – 2012) I experienced not only open-mindedness but a willingness to engage with positive change from the three Chiefs of Staff who held that post during my tenure. This open-minded approach demonstrated an overriding concern for the well-being and fair treatment of those under their command. In so doing they recognised the significant benefits that flow from an outside independent review of administrative practices and systemic failures that give rise to grievances and perceptions of unfairness.

It is now widely acknowledged that those who choose to serve their country in the security sector and Armed Forces, with all the attendant risks that may present, deserve to have their dignity and rights respected in the workplace, regardless of the unique requirements of service in a chain-of-command structure, and that an independent civilian Office of Military Ombudsman can provide a valuable oversight function.

At the time of the establishment of the Office of Military Ombudsman in Ireland recognition was gaining momentum, through the work of the Geneva based Centre for Democratic Control of Armed Forces (DCAF) and the Organisation for Security and Cooperation in Europe (OSCE-ODIHR), to approach the topic of the fundamental rights of military or security personnel with the guiding concept of the “the citizen in uniform” and a decision had been taken to conduct a review of prevailing practices in OSCE member States.

I was invited to join the Expert Group convened to draw up the ‘Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel’ in 2006 which was launched in Vienna at the OSCE headquarters in May 2008. This Handbook is a valuable resource in providing an overview of the differing approaches to the core issues pertaining to the rights and welfare of security forces personnel in a number of jurisdictions in relation to the spectrum of issues covered in the study. It provides an opportunity to reflect, to compare, and evaluate the ‘norms’ in other jurisdictions.

The decision to establish a statutory independent Ombudsman for the Defence Forces in Ireland was a major and timely development and placed Ireland at the forefront in this area. This bespoke Office of Ombudsman was guided by the founding principles of the concept of Ombudsman – independence, fairness, accessibility and accountability.

Perhaps the last of those pillars underpinning the integrity and effectiveness of an Office of Ombudsman is worth emphasising. All recognised Ombudsman Offices are bound, under their mandate or governing legislation, to produce an Annual Report and Annual Accounts audited by the Office of the Comptroller and Auditor General or equivalent. Notwithstanding variations, in the different underpinning legislative provisions, these acts of accountability must be effected before the end of the third or fourth month of the following year.

This provides an opportunity for all the publics that the Office serves to get a sense of the ‘nuts and bolts’ of the work that was conducted in the preceding year and to be satisfied that the C&AG had conducted an audit and issued the requisite certificate of good governance which ideally should be included in the Annual Report at the time of its publication. These Annual Reports and Audited Accounts are laid before the Parliament. This allows the public representatives to scrutinize and appraise the work of the Office. It is common that the Ombudsman may be required to appear before the Public Accounts Committee, or any other relevant Parliamentary Committee, to provide insights into the operation of the Office and account for the use of and stewardship of the public funds by the Office. It is important also to note that there are stringent procedures involving reviews of internal financial controls which, by their very nature, provide assurances about the accounting and auditing systems.

In relation to the work of the OSCE and DCAF it would be remiss not to mention the substantial amount of work that is done in maintaining standards in the area of oversight of the security sector and, just recently, for example, a Guidance Note was drawn up by DCAF on integrating gender into Security Sector oversight bodies and NGOs and a Handbook on Gender and Complaint Mechanisms in a military context.

All institutions and bodies that are ran on traditional or historic basis may have an environment in which abuses can thrive if there is no Office of oversight with the power to shine a light into the darker corners and expose any wrong-doing or unfair practices.

In a democracy it is acknowledged that the Government exercises control over the Armed Forces and that civilian oversight of the Armed Forces is a vital aspect of a modern democratic State. The Government will be responsible not only for the actions of the Armed Forces but also for ensuring that it is fit for any of the roles that it may be called upon to perform. The Government will, for example, be responsible for ensuring that the Armed Forces are paid and that their equipment is up to standard. The Government of the State has a responsibility, to both soldier and civilian, to ensure that the Armed Forces are effective and well managed. The discipline and morale of the Armed Forces therefore is a matter not only for the Armed Forces themselves, but for the State.

Military life brings with it certain obligations and duties which distinguish it from other professions, not least because a soldier’s expected to risk being in the way of harm on behalf of the protection of the people in the State. Needless to add, Military discipline is vital to the continued effectiveness of the Armed Forces. Far from being a threat in any sense to this, the institution of a Military Ombudsman is in some respects a buttress to internal disciplinary procedures, ensuring that they are fairly administered and enhancing morale. The particular constraints of military life, such as discipline and collegiality, do not mean that human dignity may be denied to serving personnel; rather it means that in upholding that dignity, the distinct aspects of military life must be acknowledged.

However, it would be difficult to argue that by the mere fact of joining the Armed Forces voluntarily or as a conscript, a person has consented to ill-treatment in the Armed Forces, or that s/he has waived those human rights available as a citizen.

The need for fair and accountable complaints process within the Armed Forces is vital, not only on a theoretical basis, but for very practical reasons of recruitment and staffing. A non-conscript army must compete for recruits with civilian organisations who will often be in a position to offer more attractive remuneration. Military training is expensive and involves imparting some skills which can be directly transferrable to a civilian context. This is particularly the case with highly skilled or technical military professions. Members of the Armed Forces must be attracted to join the service and encouraged to remain after their initial training. In this respect, the army must behave like any other large employer and make wise human resource management a core aspect of its work.

It is said by many commentators that a Military Ombudsman is a democratic corrective; some go further and submitted that it is a democratic imperative.

An Ombudsman often identifies administrative procedures and practices that are out of date, badly administered or in need of reform. Systemic issues which require attention also come to light. One of the far-reaching benefits of this form of administrative oversight is that a decision in one case, not only vindicates the complainant’s complaint, but ensures that the underlying causes are addressed.

A number of criteria have been proposed for measuring the effectiveness of Ombudsman Institutions. These include criteria of accessibility (including factors such as proximity and visibility); criteria of expertise (including specialisation and access to information); and criteria of independence (including capacity to initiate investigations, operate free from interference, and access to resources).

Of these, independence is of central importance to the work of Ombudsman Institutions and is widely argued to be the key ingredient for their effectiveness. As the Council of Europe argued in a 2003 report:

“His/her duties are best discharged when acting as an independent, impartial intermediary [...]. An Ombudsman ought to give the public in general the confidence that there is an impartial “watchdog” holding government and public administration to account.”

It is widely accepted among the growing body of international Ombudsman that institutional independence is important in order for an Ombudsman institution to be effective. Many people believe that independence must be guaranteed by law and, where applicable, the Constitution. These statutory provisions typically dictate that there can be no interference from the Executive and, in States such as Sweden and Finland, not even Parliament may issue instructions to the Ombudsman.

Budgeting and the provision of resources is one area in which the independence of an Ombudsman institution vis-à-vis other institutions of state is particularly significant. Financial independence means that an Ombudsman Institution obtains and manages it funds independently from any of the institutions over which it has jurisdiction. If an Ombudsman Institution has to rely upon an Institution whose activities it oversees for funding, this may compromise its independence. There is the inevitable risk that the Institution in charge of the budget may restrict resources in order to restrict the ability of an Ombudsman to oversee their activities. It has often been suggested that the financing of an Ombudsman Institution should never be subject to the good will of the Executive. As I myself have stated it is not desirable that an Ombudsman has to seek resources from a Department or Institution which is under its jurisdiction, [and] it is not correct for the budget of an Ombudsman’s Office to be connected to a Government Department which may be subject to budgetary cuts, thereby having a direct impact on the operation of the Ombudsman’s work.

In research and comparative study conducted by DCAF some of the institutions pointed out that the reliance upon the Executive for resources had negative consequences on their independence and the performance of their functions.

A short-sighted Executive that uses resources to stifle or limit the function of Offices of oversight does so at huge cost.

When will they ever learn?

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Paulyn Marrinan Quinn. 2014.

Dublin. Ireland.