handling bodies to meet their own legal obligations and to ensure that public services meet the needs of the people that use them.216 Human rights have become, to
varying degrees, embedded within the operational frameworks of such bodies; however, human rights and HRA are rarely referred to explicitly in their published reports and case commentaries.217 Even where human rights concerns are identified,
216
Such bodies include regulators, inspectorates, ombudsmen, and commissioners for children and older people. For this study, we have interviewed several ombudsmen and children’s and older people’s commissioners in the UK. See Ministry of Justice (2009) The
Human Rights Framework as a Tool for Regulators and Inspectorates (London: Ministry of
Justice).
217
Office for Public Management (2009) The role and experience of inspectorates, regulators
and complaints-handling bodies in promoting human rights standards in public services
(Manchester: Equality and Human Rights Commission), pp. 51-53. An exception was Injustice
in residential care, a report by the Local Government Ombudsman and the Health Service
Ombudsman for England, which sets out the findings of a joint investigation into a complaint against Buckinghamshire County Council and Oxfordshire and Buckinghamshire Mental Health Partnership NHS Trust in relation to their care of a young man with severe learning disabilities. The findings note that: ‘Article 3 … Article 8 … and Article 14 ... [of the Human Rights Act] were engaged in Frank’s case ... A proper consideration of human rights issues at any point would have led to improvements in Frank’s and his parents’ situation’. See
67 they are generally referred to as instances of maladministration or unreasonable decision-making rather than in human rights terms. As noted in section 5.2.1,
complainants rarely approach complaint-handling bodies using the language of rights (although advocacy organisations are more likely to do so). These factors, combined with concerns about consent and confidentiality (section 5.2.2), mean that oversight and complaints-handling bodies have rarely been a source of human rights stories.
However, there is potential for stories to be generated by these bodies. The Northern Ireland Ombudsman is in the process of integrating a human rights approach into its handling of complaints from people who believe they have suffered injustice as a result of poor administration or the wrong applications of rules by government departments and public bodies in Northern Ireland.218 Deputy Ombudsman Marie Anderson notes that human rights are being integrated into every stage of the Ombudsman’s work, from validation of complaints through to investigation and assessment and the recommendations it makes to bodies that are the subject of complaints.219 The overall objective is to ensure that the Ombudsman uses human rights principles and standards as a benchmark for the actions of bodies in its jurisdiction in order to establish if there has been maladministration. Marie Anderson ventures that the examination of cases ‘through a human rights lens’ will involve a shift in approach. Complaints will be investigated in an appropriate case using the values of fairness, respect, equality, dignity and autonomy (FREDA).
In one recent case, the Ombudsman had received a complaint from the father of a 16-year-old girl about removal of home tuition support. Applying a human rights- based approach, the Ombudsman decided to consider the rights of the child and in so doing asked the girl what her preference was, which she confirmed was to attend college. As Marie Anderson noted, ‘Using FREDA has led us to empower that 16- year-old girl to make her own decision about how she wished to be educated’.
Marie confirmed that a human rights based approach will also be relevant in the context of proposed legislative change for the Office. The Committee of the Office of the First Minister/deputy First Minister of the Northern Ireland Assembly are
considering granting the Ombudsman additional powers which include own motion investigations. Currently all investigations are conducted in private and, at present, only case summaries of investigations are published; however, the Ombudsman is also seeking powers under the new legislation to make its full investigation reports publicly available in the public interest. The Ombudsman hopes that the new powers
England (2008) Injustice in residential care: a joint report by the Local Government
Ombudsman and the Health Service Ombudsman for England, HC 421, p.8.
218
See International Ombudsman Institute (2013) Annual Report 2012-13 (Vienna: IOI), pp. 23-24.
219
68 will also be utilised with respect for the FREDA values and a human rights-based approach to Ombudsman reports will seek to balance the privacy of the individual and the public interest in holding public services to account.
Emma Gray of the Scottish Public Services Ombudsman (SPSO) notes that human rights have become more embedded in the Ombudsman’s work since 2007.220 While the SPSO cannot determine whether an individual’s rights have been unlawfully breached – since this is the role of courts and tribunals – it can take account of the human rights of the complainant and can investigate how the relevant public authority has taken these into account in its actions or decisions affecting the complainant. Again, however, human rights are rarely referred to explicitly in the SPSO’s case commentaries. Exceptions include the commentaries on complaints concerning two young men with special educational needs who had been distressed by the way they were treated by staff of the bus company which transported them to school;221 and another concerning a woman who was injected with antipsychotic drugs by hospital staff against her will.222
Emma Gray notes that human rights principles frequently come into play in respect of complaints concerning policies which are indiscriminate in their effect. Human rights concerns are also powerfully evident in health-related complaints, such as those which concern care of the dying (people being moved into a shared ward to die without being screened; or people sharing a ward with a dead person for some time); or failures in nursing care, especially the management of continence. The
Ombudsman recognises the publicity value of some cases and sometimes facilitates contact between complainants and journalists, but only if the complainant wishes.
The children’s commissioners in the UK each have a remit to protect and promote children’s rights. The Northern Ireland Commissioner for Children and Young People obtains stories from a variety of sources: its advice line; case work (both pre-legal and litigation);223 outreach work, such as complaints clinics at youth clubs; events
220
Interview with Emma Gray, Head of Policy and External Communications, Scottish Public
Services Ombudsman, 14 January 2014. 221
Scottish Public Services Ombudsman, Ombudsman’s Commentary, January 2007 Reports, p.1. The Ombudsman noted that the complaint did not refer to human rights; nevertheless, ‘My expectation is that public authorities are not only technically compliant with the law, and with their own policies and procedures, but that they make decisions and take actions that further an approach that integrates human rights into their work.’
222
Scottish Public Services Ombudsman, Ombudsman’s Commentary, September 2010 Reports, p.1.
223
The NICCY is the only children’s commissioner in Europe to have intervened in cases before the ECtHR, concerning the privacy rights of children and young people in the Youth Justice System.
69 and campaigns; and networking activities with professionals, statutory bodies and NGOs. NICCY makes available anonymous case studies224 and uses stories in campaigns such as Make it Right, in which children and young people articulated their experiences in demands in relation to issues such as poverty, justice, mental health, disability and the needs of young carers.225