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Populism? Regression of rights and the role of the Ombudsman

Speech on human rights by Ombudsman and IOI President Peter Tyndall to the IOI Europe Symposium in Barcelona

Monday 3 April 2017

Human rights are at the heart of the work of all public services Ombudsman offices. The Ombudsman is a core component of the protections that all people should enjoy in a democratic state.  Some Ombudsman offices are also the National Human Rights Institution in their country.  Others, such as my own, work alongside a separate NHRI.  However, my Office, and others like it, has clearly stated that a breach of human rights is always maladministration. This ensures that our Offices can play their part in ensuring that human rights are respected.

The IOI has supported this position, not least by providing funding for the Northern Ireland Ombudsman’s Office who worked jointly with the Northern Ireland Human Rights Commission in the development of a toolkit for use in considering complaints.  This approach ensures that staff in our offices are alert to the possibility that the action of a public service provider may have breached a complainant’s human rights, and they respond accordingly.  The toolkit includes an excellent manual and has been accompanied by training.

I have had the unique experience of working as Ombudsman in two countries, in Wales and now in my native Ireland.  I grew up in a mono-cultural society which was dominated by the Catholic Church.  The denial of human rights to women, to disabled people and to children was shocking, and is a legacy of shame for my country.  In recent years, however, huge strides have been made and we now have a far more diverse society, and can take particular pride in the overwhelming support for same sex marriage in the recent referendum.  However, we still have a long way to go in vindicating women’s rights and in dealing with the legacy of institutional care for disabled people.  That said, Ireland is one of the few countries in Europe where immigration did not shape elections or characterise political debate.

Before I became the Ombudsman in Wales, I worked on the delivery of public services to people including refugees and asylum seekers.  I was always conscious of the widespread xenophobia which regarded people from outside the country with suspicion and often hostility.  In the end, I believe, this is what fuelled Brexit and led to the leave vote in the referendum.  The negotiating position of the British Government, which has placed the movement of people at the top of the agenda, is a real measure of the extent to which the populist position has been allowed to dominate.

When I worked in Wales in the 90s, the principal countries of origin of refugees and immigrants were Somalia and the Yemen.  This reflected the presence of seafaring communities in South Wales for many decades comprised mostly of men who were then joined by their families fleeing violence in their own countries.  The hostility they faced was appalling.  Any new development of social housing was said to be exclusively for them and there was a strong populist view that they were having preferred access to public services.

It is interesting to see how successive waves of people have experienced similar hostility.  In London, for instance in the 60s, landlords regularly displayed signs saying no blacks or Irish.   The Irish faced similar hostility in the USA, but sadly, elements of the Irish diaspora there became anti-immigrant in their turn.

More recently, in Britain, the focus of the hatred has shifted to people moving from Central and Eastern Europe following the expansion of the EU.  The discrimination has been legitimised by the populist press, but also by the failure of political parties and civil society to provide effective advocacy.

It is interesting to note that the proportion of people born outside the UK who live there is lower than in my native Ireland.  It is also significant that the birth rate in the UK, as in much of the developed world, is leading to an increasingly older population.  Without immigration, the health service and social care will collapse, the economy will shrink and the cost of state pensions will be completely unaffordable as the number of people of working age will be insufficient to pay for them.

It is also instructive to observe that one of the consistent calls in the UK has been, as its proponents say “to reclaim our sovereignty”. This is often associated with renouncing the jurisdiction of the European Court, and a desire to repudiate human rights.  The present Government there is committed to the repeal of the Human Rights Act.  This is particularly ironic as the European convention on human rights, which was signed by the UK in 1951, was inspired by the iconic British Conservative politician, Sir Winston Churchill, and drafted under the guidance of another Briton, David Maxwell-Fyfe (who later became Lord Chancellor Kilmuir), in the face of considerable opposition from the then Labour government.  Indeed to paraphrase Winston Churchill “once the foundation of human rights is agreed on the lines of the decisions of the United Nations … we hope that a European Court might be set up, before which cases of violation of these rights … might be brought to the judgment of the civilized world.”

I have used the UK example as an illustration, because the outcome is so stark.  The IOI is equally aware of the threat to any Ombudsman who speaks out.  The example of Adam Bodnar, the Polish Ombudsman is instructive.  His Office was to the fore in protecting rights in Poland, which were in danger of being eroded by the populist right wing Government there.  In response, his budget was severely cut.  One action which the Government took particular exception to was in support of the LGBT community.  The Government also sought to undermine the Constitutional Court, and proceeded despite heavy international criticism.

The IOI in response established a Commission of Inquiry to go to Warsaw and speak with the Government, the judiciary, NGOs and other significant players to establish the facts and as a show of solidarity.  The IOI also worked with other key international partners to maximise our impact and to support theirs.  A report was published and launched at a press conference.  It received considerable publicity and hopefully helped to resist further erosion of the capacity of the Ombudsman’s Office.

Subsequently, the IOI prepared new guidelines setting out the range of measures which can be taken to support colleagues under threat, ranging from letters to Parliaments to practical support on the ground.

When the British and Irish Ombudsman Association was first founded, one of the original Ombudsman members joked that its purpose was to allow the members to “huddle together for warmth”.  There is a real sense though, that one of our key purposes in coming together is to show solidarity to each other.  It has often been remarked, not least by my predecessor as IOI President Dame Beverley Wakem, that the role of an Ombudsman is to speak truth to power.  Never has this role been more important, than in the face of the threats to human rights which characterise many of the populist movements we have seen grow across the continent in recent years.  The inevitable consequences of highlighting human rights abuses, and seeking to redress the wrongs people suffer as a result, is that more of our colleagues are likely to face challenges in the future.  These can take the form of insidious undermining, of cuts to budgets, of limiting powers, of denying access to the courts or the Parliament, or of appointment processes designed to put an Ombudsman in place who will be sympathetic to a regime.  Indeed, in some instances, of threats of violence, although thankfully no such threats have been reported in Europe. We must be alert to these challenges, and resist them.  We must support our colleagues in their work and be prepared to speak out and act where they are threatened.

I am from a generation which witnessed great events.  We saw the death of apartheid in South Africa.  We saw the fall of the Berlin Wall and Germany reunited.  We saw the end of fascist regimes in Spain and in Portugal. On my own island, we saw the ending of violence in Northern Ireland. 

It is important that our legacy should not be the erosion of human rights and the collapse of the institutions that were built to safeguard the rights of all of our peoples.  The Ombudsman community must redouble its efforts to highlight human rights abuse whenever it is experienced.  We must tackle discrimination against people for whatever reason, including their nationality, gender, disability, sexual orientation or race.  We must use all of the tools at our disposal, including our relationship with our Parliaments, the courts and the media. 

Those Ombudsman Offices which are also NHRIs have a clear mandate for this work.  Those of us who are not, must nonetheless highlight these issues as they arise in the course of our work.  Offices which are not NHRIs often have immigration and asylum services, prisons and services for older and disabled people in their jurisdiction, where human rights abuses can and do take place.  Access to services for people from minority groups, such as the Irish traveller or Roma communities, can be the focus of the denial of rights as well as threats to immigrant communities.  Work highlighting the discrimination faced by Roma people has led to attacks on Ombudsman offices, for example in Slovakia.

Other colleagues work in countries which see many migrants in transit, and have played a key role in highlighting their plight and seeking improvements to their conditions.  It is clear that often working with people who are distressed, may not have the language of their host country, and who have learned with good reason to distrust authority means that we must be prepared to go to them, to make our service available to them in their own languages and to use our own-initiative powers to investigate where we believe there has been injustice but where people may feel intimidated or fear retribution if they complain.  The collaboration of Ombudsman Offices on a regional basis has been one of the strikingly innovative and welcome developments in response to the crisis.

The IOI does much valuable work in providing networking opportunities for Ombudsman Offices to ensure that best practice is highlighted and that we can learn from and support each other.  A lot of our day to day work is in public administration and helping people to deal with issues of importance to them such as access to services or grants.  However, at the moment, there is a real sense that the underpinnings of our societies are under threat, and that the protections enjoyed by people are being eroded or removed.  In organising this conference, Rafael Ribo, as European President and his staff are to be commended.  They have given us the opportunity to share our perspectives on these vital issues, to learn from each other’s approaches to tackling the violation of human rights and to show solidarity to those of our colleague who are under threat. 

Sometimes it can feel that such major international issues are a distraction from our core work of dealing with complaints about public services.  However, I will end where I began by reiterating that human rights are not a secondary issue for us.  They are at the heart of what we do and we should all go from here determined to ensure that our work is effective in protecting the rights of the people in our countries.

 

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