The Art of the Ombudsman: leadership through International Crisis

Parliamentary and Health Service Ombudsman’s Executive Summary

By late 2020, COVID-19 had claimed 1.8 million deaths worldwide and raised fundamental questions about public health and security, the delivery of public and health services, the policing of and access to national borders, civil liberties and the suspension of fundamental freedoms. The primary aim of Ombudsman Offices is to safeguard public and human rights. They are therefore directly involved in and affected by the pandemic and its consequences as they endeavour to help citizens whose lives have been affected.

We carried out a survey among the international Ombudsman community to find out what leadership challenges they were facing as a result of the COVID-19 crisis and other crises going forward. This study is based on questionnaire returns from 53 Ombudsman schemes in 37 different countries representing 24% of International Ombudsman Institute (IOI) members. The returns come from a diverse range of organisations across a number of continents, and the results are therefore based on a broad cross-section of the Ombudsman community at national and sub-national level.

Ombudsman successes to emerge from the pandemic

As a snapshot of how Ombudsman schemes confronted the pandemic in its formative stages – an unprecedented series of events across the world – the results suggest a number of successes but also some causes for concern. First, with regard to success, there has been clear and demonstrable learning gained through the experience of running organisations during the pandemic. Ombudsman leadership has been largely resolute, flexible and adaptive throughout the crisis, and has drawn on networks like the International Ombudsman Institute and the Network of the European Ombudsman to consult and exchange views and experience. Although rooted in a participative style, Ombudsman leadership approaches have necessarily become more directive but also more empathetic when dealing with the challenges of remote working. Approaches have also been defiantly pragmatic in getting on with the business of complaints resolution and public policy improvement.

There has been no recourse to waving an illusory magic wand.

Secondly, there is evidence of decisive action by Ombudsman schemes to contribute to learning about the impact of the pandemic via the use of ‘own-initiative’ powers. These entitle schemes to launch investigations where there is public interest but no individual complaint. Most responding organisations (87%) are able formally to conduct inquires on their own initiative, and many have done so in direct response to matters arising over the course of the pandemic.

Examples of this include investigations into:

• multiple financial irregularities relating to procurement and expenses by members of the Presidential Taskforce dealing with the COVID-19 pandemic (Malawi)
• the experience of disabled people during the COVID-19 emergency (New Zealand)
• policies and practice related to visiting residential care homes (Slovenia)
• the lack of legally required training for staff in special care homes (Estonia)
• member state Governments use of EU funds against the background of COVID-19 to promote independent living for people with disabilities and older persons, and transitioning away from residential care institutions (European Union)
• the consequences for inmates and residents of the attempt to keep COVID-19 out of prisons and half-way houses (Denmark)
• policing of borders and immigration rights (Finland)
• administration of homelessness by local authorities (Wales).

Almost all respondents agreed that Ombudsman organisations should have ‘own- initiative’ power. And many of those with this existing power who have not yet launched investigations intend to do so. The common theme that ties these areas of investigation together is the manner in which vulnerable individuals have been treated throughout the crisis. For the small minority of schemes without own-initiative powers (mostly in the United Kingdom), contributions to learning from the pandemic have been constrained by the delay in receiving individual complaints (which have to go to front-line bodies first) and the need to process these complaints individually before coming to a systemic view. Where Governments have also been Delphic about the arrangements for public inquiries into the pandemic, this is a lost opportunity for learning.

Thirdly, of the 52 respondents, only 4 per cent have roles and responsibilities that are governed neither by legislation nor by constitutional rules. This governance is largely consistent with the recommendations of the Venice Principles on the Protection and Promotion of the Ombudsman Institution and emphasises the constitutional legitimacy of Ombudsman institutions in administrative justice systems.

Causes for concern to emerge from current research - the heightening of existing challenges after COVID-19

With regard to causes for concern, the Venice Principles also state that: ‘the procedure for selection of [Ombudsman] candidates shall include a public call and be public, merit-based, objective, and provided for by the law’.

In terms of how individuals who completed the questionnaire came to be in their roles, the majority (54%) were appointed via a process of open competition. 21% were appointed solely by invitation and the remainder (25%) went through a mix of the two. The appointment of some individuals has therefore, historically, been inconsistent with the guidance now set out by the Venice Principles. If the number of people not appointed on the basis of fair and open competition were to grow, this would constitute something of a threat to the legitimacy of the Ombudsman institution where independence is a sine qua non.

Has the pandemic changed the strategic challenges facing Ombudsman schemes? Schemes have certainly had to grapple with remote and flexible working. They have also had to respond decisively and sympathetically in countries where public services (especially hospitals and social care facilities) have needed to prioritise their core activities throughout the pandemic rather than expend resources on complaint handling. For some schemes covering health and social care provision where the pandemic has struck prodigiously, this has meant a temporary suspension of Ombudsman investigatory activities.

However, when asked to set out the key challenges at the height of the first wave of the pandemic, the responses of those involved in this research are recognisable to anyone familiar with the operational challenges faced by the Ombudsman community in the last ten years: the public’s lack of knowledge and understanding of the Ombudsman’s role; lack of appropriate resource; meeting expectations of service users; and having an outdated or restricted mandate. It is as if these issues – particularly access to vulnerable groups – have been heightened rather than changed fundamentally by COVID-19. The only significant addition is ‘disruption from national or international crises’, something obvious given the time and circumstances of the survey and the onset of the pandemic. Here, there are a small number of examples of populist Governments using the cover of the pandemic to curb civil liberties and rights.

With regard to public understanding of the Ombudsman’s role, a common concern from respondents is the public’s apparent lack of appreciation that the Ombudsman is ‘not an advocate for individuals but an advocate for fairness’. Respondents also noted that there can be confusion about what the Ombudsman can and cannot do. In addition, lack of appropriate resourcing is a major challenge for most Ombudsman Officers. In an extreme case, the resources allocated to the relevant Office barely covered administrative costs and prevented the appointment of qualified staff. Lack of funding has also resulted in schemes being unable to finance the publication of investigation findings and conclusions, or to develop outreach work.

A third of respondents selected ‘meeting the expectations of complainants and service users’ as their first or second most challenging issue. This is closely tied to the difficulty with which schemes struggle to reach those who are most vulnerable in society and typically belong to disadvantaged or underprivileged groups. The paradox that those who are most in need of assistance are also the least likely to seek it out (or even be aware of the services available to them) persists in much of the Ombudsman world.

A quarter of respondents selected their organisation’s mandate not being wide enough as a significant challenge. Respondents also reported problems with overlapping mandates, notably in Cyprus, where the Ombudsman explained that the independence of the institution had been under threat from another public institution. There are also significant challenges around human rights abuses. In the last few years, national Ombudsman Officers have come under pressure and attack for championing human rights issues in a number of countries, including Slovakia, Poland and Pakistan. In Poland, the Ombudsman came under unremitting attack for his principled defence of human rights undermined by a populist Government. The submission from the Mexico City Human Rights Commission (MCHRC) came in the context of chastening and systemic human rights violations in Mexico. These include violations committed by security forces – extra-judicial killings, torture, enforced ‘disappearances’ and abuses against migrants. They also include recent murders of human rights defenders and abuse concerning sexual orientation, gender identity and disability.

Organisational values, personal skills and attributes

The organisational values, personal skills and attributes that Ombudsman Officers found most difficult to deliver in their own organisations were, in essence, mirror images of the strategic challenges described above. Over half of respondents said that user accessibility is the most difficult to deliver in their organisation. The general context is that: ‘The [Ombudsman] institution is not well enough known amongst society. We need to find ways to reach the most vulnerable’. This is not easy, because the most vulnerable include culturally, religiously and linguistically diverse groups and others (for example, refugees and asylum seekers) who may also be disadvantaged. Strategies to address these issues include outreach work, the application of new technologies to reach people remotely and the construction of more diverse workforces capable of reaching and communicating with the communities they serve. The success of these strategies is partly dependent on having the necessary resource (both financial and non-financial) to reach out. It is also dependent on having a mandate that facilitates reaching out through, for example, the ability to conduct own-initiative investigations.

Ombudsman Officers understand the importance of transparency. It exists ‘so that all your decisions are clear to everyone and accessible’. However, achieving transparency was judged difficult for more than a third of Ombudsman organisations (37%, n=19) because of competing priorities. There is a balance to be struck between delivering transparency alongside the inherently confidential nature of the investigative work that Ombudsman services are involved in. The benefits of publishing information arising from casework are clear. Most importantly, publication can be used as a means by which to highlight the core functions of the Ombudsman – delivering justice for individuals and groups, drawing attention to systemic issues and leveraging positive change.

However, doing this raises a number of issues including: the complexity and restriction of the legal structures governing Ombudsman activities; the sometimes arcane nature of the subject matter involved in case resolution, which can inhibit effectiveness of disclosure; and that the commitment to transparency is a cultural challenge often requiring a radical disposition.

Independence is, of course, essential to Ombudsman practice. It was selected by a fifth of respondents as the organisational value most difficult to deliver. There is often an uneasy co-existence between being independent in terms of constitutional rules on the one hand and not being financially or politically independent on the other. This juxtaposition is reported by African respondents but is not confined to that continent. In one sub-Saharan African country, for example, although ‘the Constitution guarantees the independence of the Ombudsman, its links to the Ministry of Justice for budgetary and administrative purposes affect its independence’.

Regarding personal skills and attributes, half of respondents thought ‘being an effective manager of change’ was the most difficult to deliver in their organisation. This is an emphatic sign of the turbulent times Ombudsman Officers live in. The reasons given for this can be grouped under three main categories: politically related, culturally related, and resource related.

Ombudsman Officers are constrained politically by their accountability to Parliament and (through legislation) the external determination of their goals and oversight of financial management. As far as cultural factors are concerned, several respondents pointed out that staff in their organisation had been in post for many years and can be steeped in the traditions and conservatism of civil service bureaucracy. Further, promotion to management is often on the basis of case-handling competency rather than wider management skills, which can be a further impediment to change. Clearly, Ombudsman institutions need to be agile and adapt constantly to societal developments and the needs of citizens in order to remain relevant. To do this there has to be acceptance that ‘change is a constant and is often resisted by staff’. There also has to be acceptance of the importance of investment in skilled, adept management capable of articulating a vision of what the Ombudsman service wants to be, and a realistic plan for delivery. None of this is easy or formulaic – being an Ombudsman is an art not a science – especially where resources are scarce or limited and thereby reduce the possibility of effective management of change.

Over a quarter of respondents selected ‘understanding the political scene’ as being difficult to deliver in their organisation. This challenge can be acute in areas where there is a particularly complex, fractured and challenging political environment, sometimes complicated by the impact of war and refugees in crisis, or where there is rapid legislative change to suit political agendas without regard to the public interest. Of course, respondents to the survey found that an involvement in the prevailing political backdrop is inevitable given the constitutional position of the Ombudsman Office as a state organisation, the funding structures of Ombudsman organisations, which often depend upon the allocation of state finance, and the very nature of the citizen-focused work they are involved in. However, if political engagement cannot be avoided, it must be managed with skill and discretion. A balance therefore needs to be struck between developing sustainable dialogue and long-term relations with political stakeholders without being tied to the party-political ambitions of ministers and politicians, as this could lead to compromised independence and impartiality of Ombudsman schemes.

Empathy with complainants and disadvantaged groups was found to be challenging for a quarter of respondents. Displaying empathy with complainants and disadvantaged groups was seen as essential ‘because they are considered the weaker party and they have no hand in this’. However, as with other practices of the Ombudsman, demonstrating these skills and attributes can sometimes feel in tension with the Ombudsman’s need to be impartial and objective. Staff can become ‘case-hardened’ and at risk of focusing on formality and procedures to the detriment of acknowledging the traumatic events that a complainant may have experienced. The results from our survey suggest that this situation is particularly prevalent for organisations operating where health and social care issues are included within or alongside the public service mandate. Nonetheless, leaders need to be aware that getting the balance between empathy and objectivity right is a key issue and ‘is vital where many of our complainants are bereaved or traumatised or both’.

Finally, there was an essential need to manage stress and to be resilient. Most Ombudsman respondents see stress as part and parcel of being an Ombudsman. The emerging consensus is that it can’t be eliminated. The degree of stress is determined by a number of factors such as the nature and range of issues investigated, which can involve distressing accounts of violence, abuse or bereavement. They also include public bodies that can challenge Ombudsman schemes remorselessly, media scrutiny, pressures related to workload and availability of staff resources, and the requirement to process casework within fixed timescales.

The disposition of complainants themselves can also heighten the challenges of investigations in that their experience can lead to feelings of being ‘angry, disillusioned and sometimes downtrodden’. Many complainants have been through traumatic events, in some cases experiencing bereavement. Occasionally some are described as ‘vexatious’ or in the new parlance ‘querulous’. Inevitably, some complainants can appear ‘difficult’ and what one Ombudsman calls this ‘idiosyncrasy’ is stressful to staff. In any event, there is unanimity that complainants need to be treated with respect and courtesy.

An associated challenge is being resilient. For one experienced Ombudsman, stress and resilience are ‘two sides of the same coin: increased stress impacts on resilience; reducing resilience impacts on stress levels’. She distinguishes between personal and organisational resilience. While personal resilience can be eroded by the increased pressures on staff, organisational resilience can be undermined by lack of resources for succession planning and investment for change. All this can be debilitating, especially where there is a lack of, or limited experience in, stress management. There is also a hint of fatalism and weariness in some of the responses concerning these issues.

Towards the ‘Manchester Memorandum’ and further professionalism in Ombudsman schemes

Most respondents were clear that they had had to develop or change their predominantly participative leadership styles in light of the pandemic’s impact on their Offices’ work. First, there was acceptance that remote working required new norms and expectations since face-to-face engagement was much harder, and there was a need to learn new ways to engage and communicate. Secondly, there was a move towards a more empathetic approach towards staff colleagues in light of the dislocation and uncertainties now dominating the scene. This empathy was part of a wider change in the way in which Ombudsman leaders communicated with their staff.

There is another paradox here that respondents were not slow to grasp. On the one hand, the constraints of remote working (notwithstanding necessary refinements in on-line communications) required a more directive style. Decisions such as changes to policy had to be taken without the level of consultation that would normally take place. On the other hand, alongside the directness came an appreciation that remote working also meant the need for trust and relative autonomy for case handlers. Where leaders ended on the continuum from directness to being delegative varied, but for one Ombudsman it led to the development of ‘a more permissive and empowering style’.

In light of the challenges and significant changes faced by Ombudsman schemes, the conclusion of this study (chapter six) sets out an outline strategy (The Manchester Memorandum) for developing the professional status of Ombudsman Officers and schemes, with a focus on comparative learning and collective action. There are five elements to this strategy and they all involve use of the Venice Principles to guide a change in behaviour and practice, and the powerful network of the International Ombudsman Institute to structure it.

First, in the wake of declining public trust in state institutions, the IOI has recently encouraged its member organisations to use peer review as an important supplement to formal accountability mechanisms. Having already disseminated helpful guidance on how to conduct peer reviews, it should now recommend all members, wherever possible, to commission quinquennial five-yearly peer reviews using the Venice Principles as a guide and a benchmark.

Secondly, it is recommended that to give further authority and independence to the peer review process, Regional Boards of the IOI advertise and then construct and validate lists of approved peer reviewers. These approved peer reviewers would then be available to undertake peer reviews at the invitation of individual member schemes. Additional guidance about how to introduce this process has now been disseminated.

Fourth, thought-through and comprehensive management development strategies are essential to help ensure effective working. They are also necessary to support the preferred leadership styles of Ombudsman leaders. Given the diversity in size, function, mandate, resource and political culture of the respondent institutions in this study, it would be unrealistic to hope to discover a unity in the content, scope and form of delivery of development offered. There are particular concerns about smaller schemes with resource constraints and no access to international donors, which have limited access to professional development. This issue of focused continuing professional development is a key test for the gradual professionalisation of Ombudsman schemes, their case-handlers, managers and leaders. To its great credit, the IOI, alongside national Ombudsman associations and universities, has offered and conducted relevant training and development for members since at least 2011. It should now consult on the development of an accredited continuing professional development scheme constructed against competences drawn from the Venice Principles.

Fifth, is the need to develop strategies for reaching vulnerable citizens or aspiring citizens beyond the usual user groups of Ombudsman service users. The utility of the Ombudsman depends upon the effective complaint resolution, the promotion of better public policy, and demonstrating relevance and reaching out to those who are vulnerable and marginalised and have nowhere else to turn to. Being an Ombudsman is a challenging art, not a dismal science. These activities require investment, renewal, oversight and continuous exchange.

Sixth, and finally, noting the emphasis in the Venice Principles on the Ombudsman as ‘an important element in a State based on democracy, the rule of law, the respect for human rights and fundamental freedoms and good administration’ it is important that the human rights and fundamental authority of the institution is not undermined by its ‘brand’ name ‘Ombudsman’. In chapter one we set out the highly contested debate between those who argue that ‘Ombudsman’ is an out-of-date gendered term, and those who argue that etymologically ‘Ombudsman’ is a literal translation from the original Norse without reference to or implications of gender bias. If at all possible, the IOI needs to resolve this issue by encouraging debate, taking the views of its members and acting upon those views.

Whether the proposals above – The embryonic Manchester Memorandum – are sufficient to meet the needs of a cadre under pressure is a good question. But the pandemic, eloquently described as ‘like the shadow of a great mountain’, will pass. Change is in the air. It is time to prepare.

Rob Behrens

Parliamentary and Health Service Ombudsman

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