Marc Hertogh and Richard Kirkham
This chapter provides a review of the state of ombudsman research past and present. It makes the argument that much has been achieved in ombudsman scholarship but suggests that as an overall body of work there are multiple gaps in our understanding, as well as our methodological and theoretical approaches to the subject. The claim is made that there is need for a more integrated and coherent approach to the study of the ombudsman, and internationally a greater awareness in the sector of the different studies already in place. The chapter additionally argues that there remains a relative shortfall in empirical research on ombudsman institutions and a need to connect that research back to our theoretical understandings of the role that the ombudsman plays. Finally, the chapters in the book are used to illustrate perhaps the main running theme of the ombudsman institution: the diversity in the way that it has evolved.
This chapter commences with an up-to-date overview of ombudsman history and its evolution. Current models and taxonomies are referenced. The rigour of this introductory description originates from uniting the fragmented information provided by preceding sources while removing their self-imposed limitations inherent to their diverse disciplines, backgrounds and choice of examined time periods. This historical overview is enriched with an analysis of the various debates prompted by the on-going evolution of the Ombudsman model. The latter’s proliferation is examined for its quality as a product of cross-fertilization before some of the criticisms that have been raised against the ombudsman throughout the ages are examined. Drawing on the concept of independence, the chapter is rounded off with a discussion of whether the proliferation of the ombudsman led to a healthy rivalry of models or diluted the concept.
This chapter explores the role of the ombud in mediating between citizen and state, democracy and human rights. In so doing, it challenges current orthodoxy, especially in respect of the ombud’s perceived role as means of individual dispute resolution. The chapter situates the worldwide mapping of the ombud in the context of three different relationships between citizen and state: social democracy; consumerism; and human rights. It identifies a dominant form of legal liberalism (‘individualistic legalism’) as a constraint upon the ombud’s development. It advances ‘legal pragmatism’ as an alternative legal philosophy whose focus on deliberative problem-solving better captures ombud aspirations and offers enhanced prospects for coherence and impact. The chapter concludes with some practical observations to enable the ombud better to fulfil its potential in the service of humane values and of its founding vision, both social and democratic.
Hodges describes the remarkably fast spread of ombudsmen dealing with consumer-trader disputes, which has taken place in Europe. He identifies them as operating at the intersection of three worlds: consumer dispute resolution; market regulation and consumerism; and information technology. He describes recent EU regulation of consumer market ADR entities, especially requirements of transparency and governance, and also their highly efficient procedures in responding to any and all consumer complaints received. He notes issues of funding, criticisms of the model, and the status of research, before suggesting how this model will evolve in future, and the lessons that it bears for the more established public ombudsman model.
This chapter is a plea for a new and more rational look at the function of ombudsmen primarily in the UK system but also generally. I shall argue that, in a bureaucratic age with a heavily managerial ethos, we are in danger of sacrificing individuality (the ‘personal dimension’) and diversity. I want to argue too against the piecemeal nature of reforms to the ombudsman office. There has been a failure to consider the functions of the various offices separately and take into account the different ways in which different ombudsmen may need to operate. In particular, there is a danger of under-valuing the constitutional importance of the office of Parliamentary Commissioner for Administration (PCA).
Johannes Chan and Vivian Wong
Established in the last days of British governance in Hong Kong, the Ombudsman was greeted with scepticism by the incoming regime and the public. The first part of this chapter reviews the role of the Ombudsman in such a political context, and the constraints in establishing its credibility and extending its jurisdiction. The second part of the chapter reviews the effectiveness of the Ombudsman, particularly its experience in launching direct investigation and its success and limitations in improving the quality of public administration and governance. It is argued that in a semi-democracy, an independent Ombudsman may serve to provide the much-needed legitimacy to the governing regime. At the same time, it has to work within the political constraints and maintain its credibility. The balance requires political sensitivity and pragmatism, and the success of the Ombudsman will depend on its ability to respond to the socio-political context in which it has to operate.
Benny Y. T. Tai
The goals of Rule of Law include providing behavioural guidance for citizens, maintaining social order by ensuring government officials are bound by law in their exercise of powers, constraining governmental powers to prevent arbitrariness and achieving justice by protecting rights of citizens. A multi-level approach of the Rule of Law shows how the Rule of Law may develop to attain more sophisticated goals at different stages. The Ombudsman as a mechanism of the Rule of Law also evolves into diversified forms with flexible jurisdictions and powers and plays key roles at different stages of the development of the Rule of Law.
Ombudsmen and the judiciary are two different institutions with two different sets of competences and remits. Although they have some clearly different competences, there might be a grey area where their remits come together and potentially overlap i.e., an area where ombudsmen and the judiciary alike provide protection to individuals by assessing their complaints or by dealing with their legal actions. The possible overlap between the competences of these institutions can give the impression that there is some competition between the two or that the ombudsmen assume a position that does not really belong to them. This chapter first, aims to provide a short general overview of the most striking competence-based differences and similarities between ombudsmen and the judiciary and second, to illustrate the overlaps it discusses the specific relations between the European Ombudsman and the Court of Justice of the European Union.
Alex Brenninkmeijer and Emma van Gelder
The rule of law is one of the fundamental values on which the European Union is built. The EU ensures its upholding through various means and the EU institutions play an essential role in this process. This chapter focuses on the roles of the Court of Justice of the European Union, the European Ombudsman and the European Court of Auditors in upholding the rule of law. To this end, the chapter analyses the institutions’ different mandates, standards, outputs and possible impact, and subsequently provides a comparative overview of how these institutions create a complementary framework for the safeguard of the rule of law in the EU.