Chief Commissioner Addresses British and Irish Ombudsman's Association AGM
Professor Michael O’Flaherty’s speech to the British and Irish Ombudsman Association 19th Annual General Meeting in Belfast
Thank you very much for the opportunity to address you today. This is an important opportunity for an exchange of views between representatives of what should be easy bedfellows’ ombudsmen and national human rights institutions; and keeping in mind that in many countries the ombudsman is vested with the functions of a national human rights commission.
That said’ you have not given me the easiest of topics. The issue of the need for a good relationship of ombudsmen and the courts is a simple one to acknowledge but notoriously difficult to spell out in practical and operational terms. As I floundered around considering what to say’ it occurred to me to put on another of my hats and use the resulting perspective to serve as my starting point.
For much of the last 8 years I have served as a member of the United Nations Human Rights Committee’ the treaty monitoring body established under the International Covenant on Civil and Political Rights. One of our main functions is to review implementation of the treaty by States’ including Ireland and the UK’ on the basis of the submission of periodic reports and on material obtained from other sources. In carrying out that task’ one of our fundamental assignments is to assess how’ in fact’ that states deliver on the human rights commitments and’ in that context’ how they ensure the avoidance of violations and the delivery of redress to the victims.
What is interesting in our Committee is that we are somewhat promiscuous as to the means of prevention and redress. We are interested primarily in ensuring that justice is done and less so regarding the vehicles for that justice’ just as long as they are effective. Of course the treaty does acknowledge a distinct and critical role for the judiciary but’ beyond that’ it is assumed that any state will put together a complex array of institutions all of which serve to honour on what we call the obligation of human rights implementation. What is more’ in international practice it is by now commonplace to assume and demand that the delivery of justice be undertaken by wide range of actors with a diversity of functions – albeit operating in a coordinated and complementary fashion.
By recalling how we work in the UN Human Rights Committee I was helped to put today’s topic in context. I was also re-assured because this approach ensures that institutions such as my own are seen as part of the mix - for the remainder of this presentation I can speak of ‘us’.
And I suggest that the throwing of us all together in this way – seeing us all essentially or ultimately as human rights actors is no longer problematic. In my preparation for today I have come across speech after speech by European ombudsmen arguing that this is exactly how their role is best understood. And let me add that this is even beginning to be the case with regard to the ombudsman function in the private or privatised sectors. Time will not permit to speak to that in any depth but suffice to mention the remarkable developments in the last couple of years regarding the human rights responsibilities of business enterprises – for instance in the context of the recent UN guidelines on the subject’ known as the Ruggie Principles.
Coming back to our common role in delivering justice’ what does that mean in practice? What is it to say that’ ultimately’ we’ with the courts are partners for the prevention of human rights wrongs and for the delivery of justice when abuses occur?
In the first place – and here already the distinct functions of judicial and non-judicial partners becomes evident – the righting of wrongs has both preventive and responsive dimensions’ with the former preventive dimension well within the mandates of many ombudsman institutions. Redress also has distinct substantive and procedural dimensions’ with the non-judicial actors particularly well placed to deal with the process dimension. One other element required of redress’ if it is to be fully compatible with human rights’ is that it have a systemic quality – tackling the underlying problems beyond the specifics of a case – again an area were the non-judicial actors can complement the work of the courts.
I could continue this list of relevant but obvious complementarities. Suffice to mention just two more: first’ the cost of seeking redress – in both the UK and Irish jurisdictions the cost of accessing the courts is a matter of great concern – indeed it is hard to justify in human rights terms. In this context’ the considerably lower expense of ombudsman proceedings is important. Similarly’ the potential for speed in ombudsmans’ proceedings is often in marked contrast to that of the courts.
While some of these dimensions of the justice partnership – or the justice division of labour - are generally acknowledged and non-controversial’ less clear are the underlying principles that should guide and inform the relationship? What are the common standards that unite all of us and give us direction? I suggest that the underling human rights base of our work provides the answer to that question.
You might well ask how the vast panoply of human rights instruments and jurisprudence can be distilled down into the necessary set of core principles. Fortunately’ that work has already been done for us. In the decades since the second world war’ and repeatedly reaffirmed by governments at the highest levels’ it is acknowledged that there are two fundamental pillars that uphold the human right system and these can serve as our baseline guidance. These pillars are the principles of universality and indivisibility.
By universality I mean the fact that a human rights approach is only as good as it ability reach out to all persons – to every last man’ women and child – and that this universal reach requires that priority attention always be paid to the upholding of the human rights of the most vulnerable and marginalised. Universality also underlies the principle of non-discrimination with which we are all familiar.
By the other of the two pillars’ indivisibility I refer to the need to deliver equally on all of the human rights standards to which any state is committed – be they civil’ political’ economic’ social or cultural rights’ and’ in so doing’ not to prefer one class of human rights over another. And’ needless to say’ when I refer to all human rights I refer to all the rights to which a State is committed through the human rights treaties. Importantly’ for both the UK and Ireland these treaties extend well beyond the ECHR’ embracing many more UN and European sets of standards.
It seems to me that if we accept a common community of actors for justice – us and the courts – and the global adherence of us all to the principles of universality and indivisibility – that we give ourselves a shared direction and a framework in which to ensure the necessary specialisation’ complementarity and cooperation. At the same time’ we ensure that our reach is truly universal and preoccupied with the defence of the rights of the weakest in society.
Time is not with me today and there is not the opportunity to reflect on what this approach might mean and require in terms of cooperation structures’ mutual learning’ training and education – admittedly the hard questions! Nor is there the space to look at the new work areas’ including at the international level that would open up for us all.
Let me instead wrap up with the suggestion that my approach is very much of the moment – when our governments’ on the one hand’ identify human rights as underlying principles of governance (at least in theory) and’ on the other hand’ they want human rights problems sorted out at the national rather than the international level as evidenced by the recent Brighton Declaration.
With these thoughts in mind the last word should go to Ann Abraham. Last June’ in a rather forceful policy submission to government on the UK’s human rights architecture’ she wrote of how the human rights bodies and her Office should work together to’ ‘Achieve the ambition of discharging the human rights remit and of embedding a human rights culture within the domestic framework of public administration’. That is what it is all about.