The Ombudsman and Administrative Justice: From Promise to Performance
Coordinators: Marc Hertogh (University of Groningen), Richard Kirkham (University of Sheffield)
Description of the meeting
Over the course of just over half a century, the ombudsman has become one of the most important justice institutions in Europe and around the world. The institution has a deeply embedded role in promoting administrative justice, and more recently has operated at the forefront of consumer law. Yet there remains a deficit in empirical and socio-legal research on the ombudsman, which stands in contrast to the proliferation of academic literature on other institutions charged with promoting the rule of law. In particular, there is a comparative shortfall of academic literature available on the impact and detail of the ombudsman’s work when compared with the extensive analysis that exists of human rights law, administrative law or consumer law, all legal areas that come within the remit of one or more ombudsman schemes in operation. There are no doubt good reasons for the disparity in coverage, but it is becoming increasingly difficult to explain away the shortfall in ombudsman research given its influence on modern systems of justice. According to the International Ombudsman Institute, a public sector ombudsman now operates in over 90 countries. As a result, in the public sector redress is now made available by ombudsman schemes on a scale that places it at the core of the administrative justice system. Not only do ombudsman schemes resolve complaints, they are also employed in some countries as a key cog in networks of accountability undertaking administrative audits, reviews of the implementation of legislation, and are sometimes even involved in the process of testing the constitutionality of legislation. Some ombudsman schemes have an extensive remit in human rights and operate as a country’s National Preventative Mechanism under the Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention. The workshop will focus on the public sector ombudsman. This is the traditional heartland of the ombudsman idea. But one of the aspirations behind the workshop is to bring together previously dissipated research expertise. Thus the workshop will also reflect upon the spread of the ombudsman idea to the private sector. In the EU, for instance, the Directive on Consumer ADR (2013/11/EU) and the ODR Regulation will lead to a further increase in the influence of the ombudsman model. Meanwhile, an alternative use of the ombudsman brand has been deployed in some countries, especially the United States, to describe ‘organizational ombudsman’ schemes which have a remit to operate within various forms of organization to offer a quasi-independent route to redress. As well as expanding the profile of the ombudsman method of dispute resolution, the widening spread of ombudsman activity across countries and economic activity has begun to encourage the quality and diversity of scholarship. But this range of scholarship has yet to be brought together, which is a main goal of this workshop. The workshop also seeks to foster this new growth in interest on the ombudsman model, and build the foundations for the regular exchange of ideas between scholars and practitioners, and across the globe. Currently, a few sector specific studies on the ombudsman have been published, but more wide-ranging analyses of the field are mostly dated. The workshop aims to fill a void in ombudsman studies, by mapping the terrain and offering an overview of state-of-the-art ombudsman research. It will bring together some of the best international academics currently working in the field to provide an analysis of the key areas of ombudsman research, points of contention and best practice in research methodology. The workshop will be organized around three main clusters: I. Fundamentals of the Ombudsman Model Papers in the first cluster will revisit the underlying theories which support the ombudsman model, re-evaluate their continued fitness for purpose in the 21st century and consider what they mean for best practice in institutional design. Areas that will be explored include: the history and the evolution of the ombudsman model; the importance of independence; the ombudsman in developing countries; the ombudsman and human rights; and important similarities and differences between the public sector and the private sector ombudsman. II. Evidencing the Claims of the Ombudsman Model In the second cluster, papers will analyze the empirical evidence available to back up the claims made in favour of the ombudsman model in terms of its capacity to deliver, support and shape justice. Areas that will be explored include: the use of own-initiative powers by the ombudsman, standards in the practice of ombudsman schemes; the relationship between the ombudsman and the courts; the profile and experience of complainants; the impact of the ombudsman on prisons and the police; human rights and the ombudsman; and the evaluation of ombudsman systems. III. Future Challenges for the Ombudsman Papers in the third cluster will suggest an agenda for future socio-legal research on the ombudsman. Which general lessons may be drawn from the contributions in this workshop? Which theoretical and normative claims of the ombudsman model (laid out in Cluster I) are supported by empirical evidence (discussed in Cluster II)? And which of these claims cannot be supported? Looking back at the different papers what will be the most important issues for future ombudsman research? What are important blind spots in our knowledge about the ombudsman? And which existing theoretical and empirical approaches still need to be developed further in the future?
Our experience in Oñati
Organizing an academic workshop at the International Institute for the Sociology of Law (IISJ) in Oñati was a very enjoyable and rewarding experience. The idea for the workshop took shape when both us were discussing the remarkable mismatch between the importance of the ombudsman in practice and in academic research. Over the course of just half a century, the ombudsman has become one of the most important justice institutions in Europe and around the world. The institution has a deeply embedded role in promoting administrative justice, and more recently has operated at the forefront of consumer law. Yet there remains a deficit in empirical and socio-legal research on the ombudsman. Building on this idea, we decided to organize an interdisciplinary workshop to discuss the state-of-the-art of ombudsman research.
We invited the best international academics currently working in the field (from Europe, Latin America, Australia and Asia) and several leading ombudsman-professionals (including the British Parliamentary and Health Service Ombudsman, the acting New South Wales Ombudsman and the Ombudsman of the Basque Country/Ararteko). Participants revisited the underlying theories which support the ombudsman model, analyzed the empirical evidence available to back up the claims in favor of the ombudsman-model, and suggested an agenda for future socio-legal research. From the very first moment, there was a great synergy in the group. The discussion was very rich and our debates continued even after the workshop at one of the many typical bars at the lovely town square. We also had a nice workshop dinner at the “Torre Zumeltzegi” restaurant, with superb views of the Oñati valley and the historic town centre (sponsored by the Centre for the Study of Law in Society, University of Sheffield).
The beautiful surroundings of the Institute in Oñati and the hospitality by Malen and her colleagues created a wonderful and productive atmosphere for our discussions. The revised workshop papers will be published in a Research Handbook on the Ombudsman (Edward Elgar Publishing). Moreover, the group agreed to take the first steps towards a permanent international research network on the ombudsman.
“Eskerrik asko” to the IISJ and we look forward to visiting Oñati again!
Marc Hertogh, University of Groningen, The Netherlands
Richard Kirkham, University of Sheffield, United Kingdom