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Keynote speech at the 2017 ENOHE Conference “The European Ombudsman: For an Ethical and Transparent EU Administration”

Langues disponibles : en

Strasbourg, France, 29 June 2017

Good morning everyone, welcome to Strasbourg and thank you for the invitation to address you here today.

In looking at your programme I recognise many of the issues that are of common concern to Ombudsmen, but I also recognise the specific issues of concern to Higher Education Ombudsmen. As this kind of Ombudsman is a relatively new phenomenon in many countries and doesn’t exist in any form in others, I can appreciate the challenges that this network has in terms of mapping out not just how this Ombudsman should develop but also in terms of finding commonalities between you.

In preparation for today I read through Rob Behrens study of the Higher Education Ombudsman and I found it fascinating and most informative on many levels.  Some phrases and statements stood out. The Higher Education Ombudsman was described, for example, as ‘a resilient but threatened, evolving, non-legal form of dispute resolution.’ Someone else commented that ‘an internal Ombudsman is a contradiction in terms’ while I think Rob himself noted how University academic staff enjoy ‘extensive protection from a questioning of their professional judgement’.

I also noted the high percentage of Ombudsmen whose mandates come from a University statute as opposed to from national legislation and how the issue of independence is probably, not surprisingly, the issue of greatest concern to practitioners.  Rob rightly describes Ombudsman independence as the ‘golden thread’ that defines what a correctly functioning and effective Ombudsman should be and all of the issues that you will discuss here today will be to a greater or lesser degree linked to that precious, critical value.

There is a story told in my country, Ireland, and probably others, of the stranger who is lost and asks somebody for directions to a certain place. The reply he receives is “Well I wouldn’t start from here.” And when I look at the wide divergence among you in relation to mandates, origins, powers, independence, resources, etc, I was reminded of that story. Problems very often arise for Ombudsmen not because they’re not competent and highly motivated, but because their founding statute has failed to put in place the tools they require to do that job well, assuming of course that even the job description is agreed and understood. I note the diverging views among you of what the role is.

I think that latter point is a particularly problematic one and it’s problematic not just for you but for all Ombudsmen.  I sometimes say that the Ombudsman has been a victim of its own success. It started in Sweden over 200 years ago, slowly spread for the next while and then gathered speed again in the middle and end of the last century.  Such was its perceived popularity with the public that many public and private institutions started introducing Ombudsmen into their worlds, but at times without proper regard to making sure that this new creature was what was by then popularly understood to be a real Ombudsman. And by a real Ombudsman I mean an independent Ombudsman – independent of the institution but also, critically, independent of the complainant. Otherwise the person charged with this role is a complaint handler, or a counsellor, or some kind of facilitator whose brief falls short of independent investigation and adjudication – the making of non-binding recommendations. In Ireland, following the enactment of legislation some years ago that I and my predecessors had lobbied for, the title Ombudsman is now protected and in my view, that is most definitely in the public interest.

But before I go on to talk about my own role and the wider EU context of transparency and accountability, I want to say how important I think your current role is , and your potential future roles could be. I don’t need to tell this audience about the expansion of third level education.  We have gone in a generation or two from a world in which access to third level education was limited, to one in where the expectation in most developed countries is that young people will go there.  I can see myself within the EU institutions the intense competition for jobs and the high academic standards expected for even entry level positions. 

The pressures on greater number of young people to succeed at this level are now intense but, as the survey also points out, there are issues particular to this sector that can be challenging for those who want to or who have to, question what they consider to be unfair procedures. I note that some institutions are reluctant to even see an issue in terms of a ‘complaint’.

And when you consider that those procedures may well determine a large part of the career or a young person, you can see how particularly vital it is that the issues that this network is discussing here today are properly analysed and properly resolved. As my own children have made, and are making, their way through third level education, I have seen the institutional barriers to real engagement with students when issues arise. I have seen the self-interest of the University take precedence over the interests of the student. I have heard the philosophical debates even over the core functions of a University at a time when everything, including education, is being commodified.  And of course, as in every institution, there are the usual non-academic issues that arise.  And given all of that, I can appreciate the very particular challenges that you face.

I’ll now turn to my own work. The European Ombudsman was created by the Maastricht Treaty in 1993. Under the Charter of Fundamental Rights, the right to good administration is further enshrined. The Ombudsman is elected by the European Parliament and is not a nominee of a Member State Government, unlike EU Commissioners, auditors, and judges. I report to the parliament annually and frequently go before parliament committees to give evidence on my work.

I have the same powers as that of a classic Ombudsman. I have wide powers of investigation and make non-binding recommendations if I find maladministration. Up to 90% of my recommendations are accepted. I can make a report to Parliament if a recommendation that I judge to be important is not accepted but this has happened on just a few occasions in the history of the office.

I also have the power of own initiative investigation and this is something that I use quite a lot particularly in the area of transparency.  As the complaints I receive from citizens have to be against an EU institution and not a national one, many of the issues I deal with concern the accountability mechanism of the EU and not necessarily the more usual complaints of citizens around social protection, housing, health and other matters of daily concern to the public.

Some of my work however does have relevance for this network. My work contributes to opening up decision-making and policy-making that directly or indirectly affects education.

I have for example, worked on the independence and interest balance of the expert groups that advice the European Commission on its work. The European University Association for example are members of expert groups that discuss issues such as the modernisation of higher education. I don’t know whether the EU members of this network have examined this in the context of raising the profile and relevance of Higher Education Ombudsmen but it might be worth considering.

I have also worked to make the making of laws by the EU more transparent and more open to all interests particularly in my work on the so-called Trilogue process, that is the informal deal making between the Commission, the Parliament and the Council.

TTIP (and other trade agreements such as TiSA  - the Trade in Services Agreement- currently being negotiated by 23 WTO members incl. the EU) are of interest for their potential to affect the Higher Education Sector. This because, although these agreements are meant to exclude services of public interest; Higher Education facilities worry, as I understand it, that as they are often funded with both public and private money, they will be caught up in such agreements. The same applies of course to health services.

I have also worked to make the Council – that is the Ministers from the Member States who agree new laws generally as co-legislators with the parliament – more transparent. It is often not clear to citizens exactly what positions their own Ministers are taking and I believe that a more transparent Council would make it easier for citizens to understand who decides what in the EU and whether it is always entirely fair to blame Brussels for everything!

More recently I have been working on Brexit and particularly on the transparency of the negotiations and on citizen rights.  Obviously the final deal will be very relevant both for students looking to study in UK and for UK students seeking to study in Europe, and perhaps particularly during an Erasmus type year.

Individual cases that are relevant to your work include:

A case in 2015 concerned the rejection of an application for a fellowship position under an EU research programme. After being initially offered the position by a university, the complainant was informed that his past internship in a private company rendered his application "ethically unacceptable" because, amongst other reasons given, there was a legal conflict between members of the team and that company. He complained to the Research Executive Agency but the Agency said hiring researchers was a matter for the beneficiaries of grants, in this case the university. The researcher turned to the Ombudsman saying that the procedure was not transparent. The Ombudsman recommended to the Agency that it increase its oversight on recruitment practices by institutions awarding research fellowships. The Agency accepted the recommendation.

In another case a Belgian national applied for a post in an EU delegation, with one of the required qualifications being a post-secondary school diploma. He got on the reserve list and then applied for a job at the Commission and was picked. But the Commission refused to employ him saying his diploma was not post-secondary. The complainant said it was recognised under Belgian law as being post-secondary. He turned to the Ombudsman, who obtained confirmation from the Belgian permanent representative to the EU that the diploma was indeed post-secondary. The EO in 2015 asked the EC to compensate the complainant by either offering him an equivalent post or adequately compensate him for loss of income and professional experience.

And earlier this year, I recommended that the European External Action Service (EEAS) pay all of its trainees an appropriate allowance to allow greater access for young people of all backgrounds. The EEAS has almost 800 trainees in its delegations around the world whose full time services are not remunerated. We are awaiting the final response.

Finally, this year I initiated the first ever European Ombudsman Good Administration Award – in which there were two education-related runners-up in categories on collaboration and citizen-focused delivery:

One was a project on changing mind-sets about vocational training among parents and young people.

Another was a portal providing a user-friendly one-stop shop for thousands of researchers, SMEs and other beneficiaries of EU research and innovation funding.