Introduction

In our everyday work as ombudsmen, we often face questions such as “should more have been done to help the complainant?”, or, “should the complainant receive compensation?”

Our answers to such practical questions depend, in part at least, on ideas about the relationship between legality and good administration. Even the questions themselves reflect such ideas: for example, some colleagues here present would not ask the question about compensation; at least, not as I have framed it.

In turn, ideas about the relationship between legality and good administration tend to reflect the variety of historical contexts in which the ombudsman institution has developed.

I therefore begin with an historical approach. Looking back to where we came from helps us to understand better variations in the practice of ombudsmanship that might otherwise seem puzzling.

After the historical analysis, I shall distinguish between narrow and broad views of legality.

Then I shall turn to good administration and its relationship to legality. I shall identify two models, which seem very different at first sight. The broad view of legality, however, tends to make them converge, at least in their practical implications.

Finally, I shall explain why I believe that, even taking the broad view of legality, there could also be “life beyond legality”.

1 An historical approach

As it exists in Europe today, the ombudsman institution is the result of three kinds of historical and social developments. Without too much risk of distortion, we can think of ombudsmen as having been established in three waves, with the second wave continuing alongside, perhaps even merging with, the third.

Sweden established the world’s first ombudsman in 1809, as part of a constitutional settlement that ended a period of absolute monarchy. The new institution was to be independent of Government, supervise the application of the laws by judges and other public officials and prosecute in cases of illegal conduct(1).

Until the middle of the 20th Century, only one other country, Finland, had established an ombudsman. The Finnish Ombudsman was based on the Swedish model, with power to supervise the courts and to prosecute officials.

The characteristics of the two institutions created during this long first wave forged an enduring and essential link between the ombudsman and the rule of law, which is the fundamental constitutional principle governing the relationship between the individual and the State.

Elsewhere in Europe during this period, the rule of law came to be identified primarily, or even exclusively, with the courts.

The second wave of ombudsman development began when Denmark established the world’s third ombudsman office in the mid-1950s. During this wave, ombudsmen were established to tackle problems arising from the expansion of public administration during the twentieth century, especially after the Second World War, when the social welfare and regulatory functions of the State grew exponentially.

Even in countries where democracy and the rule of law were deeply entrenched, the scale and complexity of the new administrative activities presented difficult challenges.

Our colleague Hans Gammeltoft-Hansen has explained the point clearly in relation to his country:

“The relationship between citizen and administration … changed both quantitatively and qualitatively. It became difficult for the citizens to get their bearings in the system of rules, the political control of the administration was reduced and the established judicial control mechanisms … proved to be inadequate.”(2)

The perceived inadequacy of existing judicial controls was a key reason for the subsequent spread of the ombudsman institution to many other countries. That was true, for example, of the United Kingdom, where the development of judicial review of administrative action was in its infancy, when an Ombudsman was set up in 1967.

It was also true in France, where the Médiateur de la République was created in 1973, notwithstanding the existence of a long-established system of administrative courts, applying a highly sophisticated and widely-admired body of administrative law.

Broadly speaking, there are two kinds of reasons why judicial control of administration, although essential to guarantee the rule of law, was considered insufficient in the “second wave” countries.

Firstly, access to the courts is limited, both by practical considerations, such as the length and cost of proceedings, and by legal hurdles, such as rules about who may bring proceedings, or about the kinds of act that may be challenged.

Secondly, the criteria of judicial review applied by the courts were not considered adequate to remedy all the problems that deserved a remedy.

In New Zealand, for example, which, culturally though not geographically, forms part of the European heritage, the Ombudsman was empowered to make recommendations concerning administrative acts or omissions not only if they were “contrary to law”, but also if they were “unreasonable, unjust, oppressive, or improperly discriminatory”; “based wholly or partly on a mistake of law or fact”, or just “wrong”.

Other “second wave” countries specified the ombudsman’s mandate in different ways, such as maladministration, or dysfonctionnement. The underlying idea, however, is the same: good administration involves more than the avoidance of illegality.

The third wave of ombudsman institutions was triggered by social and political change of a different kind from the second wave: that is, the transition from authoritarian, or totalitarian, rule to democracy. In Greece, Portugal and Spain, for example, ombudsmen were established following the transition from authoritarian to democratic systems of government(3). More recently, after the fall of communism, ombudsmen were established in many of the new democracies of Central and Eastern Europe(4).

Given the historical experiences which formed the background to, and impetus for, these new ombudsman institutions, it is not surprising that many of them were given mandates focused on rights and, specifically, human rights. For the same reason, the rule of law tends to be high among their concerns and the Council of Europe has emphasised both human rights and the rule of law in its work to promote the ombudsman institution in Europe.

In my opinion, it would be a profound mistake to think that the three waves that I have described result in distinct types, or models, of the ombudsman. On the contrary, all the ombudsmen in Europe that I know would identify with the concerns of all three waves.

But I do believe that the different waves have resulted in continuing differences of ideas that could be an obstacle to mutual understanding within the ombudsman community, unless they are explicitly recognised and discussed.

2 What do we mean by “legality”?

The term legality, I believe, illustrates such differences. I will explain what I mean by contrasting two views of legality, which I characterise as “narrow”, with what I call a “broad” view.

The first narrow view identifies legality exclusively in terms of conformity to validly enacted legal texts. It is narrow because it limits the range of material that is regarded as relevant.

The second narrow view identifies legality with conformity to rules that, ideally at least, would apply themselves, with no need for debate or discussion. The narrowness of this view concerns the nature of legal reasoning.

A broad view of legality expands the range of relevant material to include general principles of law such as equality, proportionality, and fair procedure.

Expanding the range of relevant material also implies a broader view of legal reasoning, because to understand and apply principles necessarily requires the exercise of judgement and, in many cases, a balancing of different principles.

In addition, one of the most salient characteristics of the European legal order is that human rights are also legal rights, both within the framework of European Union law and in the wider system of the European Convention on Human Rights. On a broad view, legality thus also implies respect for human rights.

Allow me to stress a further important point here.

In the EU framework, it is not possible to understand and apply general principles without taking account of the case law of the Court of Justice. Nor is it possible to understand and respect the European Convention on Human Rights without taking into account the case law of the European Court of Human Rights.

The broad view, therefore, includes legal principles, human rights and the case law of the two European courts as relevant material for the assessment of legality. At the same time, it implies a rich form of legal reasoning to carry out the assessment.

Let me hasten to add that the broad view of legality does not exclude the existence of clear rules that must be correctly applied. It does mean, however, that a civil servant who believes that a text can be applied mechanically, or that an unjust, unfair, or unreasonable administrative act is legal, will usually have misunderstood the law.

3 Good administration

The mention of a civil servant brings me to good administration and to the relationship between good administration and legality.

At the risk of over-simplifying a complex subject, I will sketch two models of good administration. Let me immediately point out that the models are highly schematic and incomplete and that I offer them only as a preliminary contribution to reflection and discussion and without in any way wishing to be directive, let alone prescriptive.

Both models recognise that public administration involves decisions that are not fully determined by rules laid down in advance. Where the models differ, is in the way they characterise the judgments and choices made by the administration.

In the first model, the process of administration is understood as the application of law to specific cases. The need for administrative judgement and choice arises from the incompleteness of legal rules. In principle, there is only one correct legal result in each case and the task of the administrator is to define and give effect to that result through concrete formulation of the rule.

This model also recognises and protects the freedom of the administration to identify and pursue the public interest when making policy choices. To this limited extent, the model makes room for administrative discretion(5).

In the second model, the concept of discretion is much more extensive. Discretion is seen as a pervasive and necessary feature of modern public administration and judgments and choices, even in individual cases, are conceptualised as the exercise of discretion. The core problem, as seen from the perspective of this model, is how to ensure that discretion is used properly and wisely, through appropriate mechanisms of accountability.

With a large degree of approximation, I associate the first model with administrative theory which has been influential in many continental European countries. Even more approximately, I associate the second model with the “second wave” of ombudsmen that I described earlier, though with a large reserve as regards the French case, which may well deserve a separate model. I leave it to the colleagues who represent the first wave of ombudsmen to determine which one of the two models, if any, most closely approximates their practices and traditions.

Although the two models differ as regards the extent of the public administration’s legal obligations, both models regard compliance with those obligations as an essential aspect of the rule of law. That means it can never be good administration to act unlawfully.

The two models also agree on the need for administration to be accountable. The first model, however, sees accountability as primarily legal, whereas the second also sees an important role for what are conceptualised as non-legal forms of accountability.

I have taken up your time with the two models, mainly in the hope that they can help us engage in meaningful dialogue, rather than either talking past each other, or concluding that our points of departure are so different that we cannot learn from one another.

Two reasons to expect convergence

I also want to emphasise, however, what I see as reasons to expect at least a degree of convergence of the two models.

The first reason follows from what I have said about legality. The emphasis on principles and human rights in the European legal order is constantly re-inforcing the broad view of legality at the expense of the narrow view.

That has obvious implications for the first model, because, in order to apply the law correctly, administrators must adopt the broad view of legality.

It also has implications for the second model’s view of discretion. The exercise of discretion must now take account of human rights. Furthermore, the development of legal principles makes for an increasing degree of potential overlap between judicial review of the exercise of discretion and the work of an ombudsman.

In practice, therefore, the two models tend to converge as regards the control of the administration, towards a focus on rights and principles that, in substance, are much the same whether they are applied by an ombudsman, or by the courts. It therefore makes little sense not to acknowledge their legal quality.

The second reason is that in many European countries, as well as at the level of the Union institutions and bodies, there is strong pressure to recognise, in concrete ways, that the public administration exists to serve the citizens.

Individuals are no longer content to be passive subjects or merely “les administrés”, who wait patiently for the public administration to determine the correct outcome(6). They are citizens, who understand both that they have rights and that public administration involves finding a balance among conflicting interests and among competing principles.

To win public trust and acceptance, the pub lic administration needs not only to be respectful and courteous towards citizens, but also to demonstrate that it is accountable and responsive. Among other things, that means being ready to explain and to justify its conduct through genuine and meaningful dialogue with citizens, both about matters that affect them personally and about how the public interest is identified and pursued.

I am increasingly persuaded that, in order to meet European citizens’ expectations of the EU institutions and bodies, what needs to be created and carefully nurtured is a culture of service, in which the EU administration

• acts openly, fairly, reasonably, carefully and consistently;
• takes into account and balances all the interests involved;
• avoids unnecessary delay;
• is courteous and helpful, as well as sensitive to individual circumstances, needs and preferences;
• acknowledges mistakes and offers apologies where appropriate; and
• aims for continuous improvement in performance.

For reasons that I shall develop in a moment, I doubt that an exclusive focus on legality, even the broad view of legality, is sufficient to establish and sustain a culture of service in this sense. There also needs to be room for “life beyond legality”.

It is for you, colleagues, to say whether you also feel the need for a culture of service and for “life beyond legality” at the level of the administrations for which you are responsible. To the extent that you do, there would be further reason to expect some convergence between the two models of administration.

4 Life beyond legality

Let me now explain what I mean by “life beyond legality” and why I think it is important for the EU institutions and bodies on which I now wish to focus.

In the present state of EU law, two of the key documents on which I draw in my work as European Ombudsman are not legally binding.

That is true of the Charter of Fundamental Rights, which includes, among others, the right to good administration. It is also true of the “European Code of Good Administrative Behaviour”, which the European Parliament approved and asked the European Ombudsman to apply.

The discussions at the Lisbon Summit later this week could lead to changes in the future. As I understand it, the idea is that the Charter will become legally binding. Furthermore, the draft Reform Treaty contains a provision that could provide the legal basis for enactment, in the future, of a “European administrative law” that would apply to all the EU institutions and bodies.

Even if these developments were to take place, however, there are two considerations that lead me to think that the continued existence of conceptual space for life beyond legality would be positive for European citizens.

The first consideration is that law and legality continue to be closely associated with blame and sanctions. I put this forward not as a conceptual point about the nature of law, but as an observation, based on my experience as an ombudsman, about the way that many administrators view the world. I would add that it is also a view shared by a significant number of complainants.

Blame and sanctions are, of course, necessary in some cases. Corrupt officials should be punished. Lazy or incompetent officials should be disciplined. But a culture of service is not a culture of blame. If we tell civil servants that good administration is a legal obligation and that poor service is illegal, we may re-inforce a defensive culture.

Another danger of defining the requirements of good administration as legal obligations only is that the real meaning of service to citizens may be lost in the effort to achieve the precision and certainty to which lawyers and administrators rightly aspire. How long precisely must one be prepared to spend on the telephone in order to be helpful? Which precise phrases words and phrases constitute discourtesy?

Here is a real example to illustrate my concerns. There is a European institution which has a code of good administrative behaviour requiring letters to be answered within 15 days. In my experience, its administrators take that seriously, as they should. The precise rule is appropriate and effective. Whether it would be made any more effective by defining it as a legal obligation is questionable, but that is not my point.

The code provides for exceptions, one of which is that correspondence need not be answered if “it can reasonably be regarded as improper, for example, because it is repetitive, abusive and/or pointless”. To my mind, that principle should rarely be invoked and, when it is, a convincing explanation is required as to why it should apply in the specific case. I was disturbed, however, to find evidence that some administrators had seized on the word “repetitive” and tried to convert the principle into a rule that a second letter about the same issue can just be ignored.

In an administrative culture where such attitudes exist, the attempt to promote a service culture through law might only reinforce a narrow and legalistic approach.

At the same time, it might also encourage the tendency of some complainants to regard their complaint as a denunciation, rather than as an instrument for seeking practical redress, or a constructive solution to a problem.

The second consideration concerns the relationship between the work of ombudsmen and the work of the courts. As European Ombudsman, I see myself as the partner of the Community Courts in relation to good administration, helping to ensure that the Community administration takes rights seriously and embodies a culture of service to citizens, both in its understanding and application of the law, and in the exercise of discretionary powers.

The logic of judicial procedures leads to an adjudication, in which the court determines authoritatively the legal rights of the parties.

The logic of my procedures, on the other hand, is different and involves flexibility between two modes of operation. On the one hand, there is a dispute-resolution mode, which focuses on problem-solving, conflict-reduction, possibilities for compromise and win-win outcomes. On the other hand, there is an adjudicative mode, in which I find either that there is maladministration, or that there is no maladministration. That mode is governed by a logic analogous to that of the Court, in which one party usually sees itself as the winner and the other as the loser.

The appropriate balance between the two modes depends on the case and some cases may involve switching between them more than once.

In my view, the European Institutions are encouraged to co-operate with me in the dispute-resolution mode by the knowledge that my inquiry is not exclusively focused on the question “what are the legal rights of the parties?” To put the same point more formally, a n administration characterised by a culture of service to citizens should regard a complaint as an opportunity to put the principle of service into practice. Willingness to co-operate with the Ombudsman to achieve a satisfactory resolution of the complaint is an important expression of commitment to that principle.

If there were no life beyond legality, institutions and complainants alike would be encouraged to regard my inquiries not as an opportunity to seek a win-win solution, but as a surrogate, or even a rehearsal, for a judicial procedure in which the only relevant question would be: “has the institution behaved legally?” Such an outcome would, I believe, significantly diminish the contribution that the European Ombudsman can make to enhancing relations between the European institutions and European citizens.

Again, however, I wish to insist that it for colleagues to determine whether the existing cultures in the administrations for which they are responsible and the characteristics of their own procedures lead them to share my analysis of the risks of an exclusive focus on legality and of the corresponding benefits of “life beyond legality”.

5 Conclusion

Friends and colleagues, let me bring my remarks to a conclusion by emphasising that successful ombudsmanship involves, among many other things, adapting the institution prudently to the constitutional, legal and administrative cultures in which it functions. Flexibility and diversity are strengths.

There is, therefore, both space and the need for ombudsmen in different countries to apply different understandings of the relationship between legality and good administration.

However, I am convinced that the three waves that I described earlier have all brought their own distinctive and enduring contributions to the practice of ombudsmanship; and that they will continue to converge, since the rule of law, human rights and a culture of service in the public administration represent values and aspirations that we all share.

Thank you for your attention.

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(1) See Bengt Wieslander, The Parliamentary Ombudsman in Sweden, The Bank of Sweden Tercentenary Foundation, 1994.

(2) Hans Gammeltoft-Hansen, “Trends leading to the establishment of a European ombudsman”, in P. Nikiforos Diamandouros (ed.), The European Ombudsman: Origins, Establishment, Evolution (Luxembourg: Office for Official Publications of the European Communities: 2005) pp. 13-26 at 17-18.

(3) The Portuguese Ombudsman was created in 1975 (Decree-Law n.º212/75, April 21) and subsequently included in the Portuguese Constitution of 1976 (Article 23). The Spanish Constitution of 1978 made provision for the office of Ombudsman (Article 54) and the first Ombudsman was appointed in 1982. In Greece, the Ombudsman was established in 1997 (Article 1 of Law n. 2477/97 - see now Law n. 3094/2003) and subsequently included in the Greek Constitution of 2001, in Article 103 (9). The first Greek Ombudsman took office in 1998.

(4) The Polish Ombudsman is an exception, having been established in 1987, shortly before the fall of communism in that country.

(5) For a survey of national concepts of discretion see, Jürgen Schwarze, European Administrative Law, Revised 1st Edition, (Office for Official Publications and Sweet and Maxwell: 2006) pp. 261-295.

(6) See generally, Jocelyne Bourgon, “Responsive, responsible and respected government: towards a New Public Administration theory, International Review of Administrative Sciences, Vol. 73 No 1 (2007) 7-26.