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OUTPUT FOUR

ARTICLE IN PEER-REVIEW JOURNAL

TITLE:

Language ombudsmen, commissioners and regulators in Canada, Ireland and Wales1

AUTHORS:

Patrick Carlin, Diarmait Mac Giolla Chríost & Colin Williams

AFFILIATION:

School of Welsh, Cardiff University

KEYWORDS:

Canada, complaint-handling body, French language, Irish language, Ireland, language

commissioner, language law, language planning, language ombudsman, language regulation,

regulatory state, Wales, Welsh language

ABSTRACT:

The paper arises from an ESRC-sponsored research project, comprising the comparative

study of language ombudsmen, commissioners and regulators (OCRs) in Canada, the

Republic of Ireland and Wales, in the UK. The intention of the paper is to set out the

intellectual and methodological rubric pertaining to the research. In the first place, this

includes a discussion of how OCRs are situated within the contemporary form of the state as

pertains to the area of study. Thus, we ask what roles are played by OCRs in the context of

the regulatory state. Secondly, the paper offers a critical outline of an interrogative

framework for conceptualising ombudsmen, commissioners and regulators, along with the

characteristic features of complaint-handling bodies, in particular as they pertain to language

planning and policy. This includes a discussion of definitions of the office of ombudsman in

particular. Finally, a brief historiographical critique of aspects of each of the case studies, viz

the handling of complaints by the statutory language organisations, is delineated, thereby

1 This paper arises from the ESRC project ‘The office of language commissioner in Wales, Ireland and Canada’, reference number ES/J003093/1.

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identifying the substantive intellectual issues inherent to developing a better understanding of

the office of language ombudsman and variations thereof.

Introduction

In recent years the infrastructure pertaining to language planning in both Wales, in the UK,

and the Republic of Ireland has been substantially re-worked. In particular, offices of

language commissioner have been created in both jurisdictions, Comisiynydd y Gymraeg [the

Welsh Language Commissioner]2 (2011) in the case of Wales and An Coimisinéir Teanga

[the Irish Language Commissioner]3 (2003) in Ireland. The nomenclature implies a certain

commonality of approach while also signalling a connection to an apparently obvious

antecedent in the shape of the language ombudsman in Canada, the federal Office of the

Commissioner of Official Languages4 [OCOL] (e.g. Dunbar, 2013). In addition, a variety of

other language actors exist in Canada at the provincial and territorial levels (Hudon, 2011),

whether ombudsmen, commissioners or regulatory offices, or the administrative offices of

government: Commissioner of Official Languages for New Brunswick; Francophonie and

Official Languages Branch, New Brunswick; Languages Commissioner of the Northwest

Territories; Language Commissioner of Nunavut; French Language Services Commissioner,

Ontario; Office of Francophone Affairs, Ontario; Office québécois de langue française;

Secrétariat aux affaires intergouvernementales canadiennes, Québec; Francophone

Secretariat, Alberta; Francophone Affairs, British Columbia; Francophone Affairs

Secretariat, Manitoba; Office of French Services, Newfoundland and Labrador; Acadian

Affairs, Nova Scotia; Acadian and Francophone Affairs, Prince Edward Island; Francophone

Affairs Branch, Saskatchewan; and, French Language Services Directorate, Yukon Territory.

Mapping the exact nature of these offices and how they inter-relate across federal, provincial

and territorial domains is crucial to developing a full understanding of the function of the

language commissioner in Canada and, moreover, in enabling meaningful comparisons to be

drawn between the Canadian, Irish and Welsh cases. In this paper we present a framework for

capturing the relationships between offices such as these so as to enable the systematic

analysis of their respective roles and their various modus operandi.

Prima facie, each of the offices of language commissioner at the federal level in Canada,

and in the cases of the Republic of Ireland and Wales may be viewed as ombudsmen of sorts,

2 http://wwwcomisiynyddygymraeg.org/3 http://www.coimisineir.ie/4 http://www.ocol-clo.gc.ca/

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whose primary task is to challenge maladministration through responding to complaints and

initiating investigations. In order to understand the precise nature of the connections between

the cases, the over-arching aim of the ESRC project is to trace the development of the offices

of the Welsh Language Commissioner, the Irish Language Commissioner and OCOL, in

particular, thereby explaining the chronology of their creation along with the underlying

policy rationale, and also to delineate and evaluate the operation of these offices in practice.

This paper is limited to setting out a preliminary, crucial aspect to the intellectual and

methodological rubric adopted by the research team in order to achieve this aim. It comprises

a critical review of the scholarly and professional literature pertinent to answering the

following salient questions which go to the heart of certain primary, conceptual issues:

how might language OCRs and their various functions be conceived and what role do

they play in the ‘regulatory state’?

what is an ombudsman, in contrast to other complaints-handling bodies?

is it possible to devise a framework that will enable the systemic interrogation of the

characteristics of ombudsmen, complaint-handling bodies and regulatory

organizations in general and which may be applied to language ombudsmen,

complaint-handling bodies and regulatory organizations?

what are the principal characteristics of an effective complaint-handling body?

How these questions are answered shapes the themes by which the offices of language

commissioner are to be interrogated.

The regulatory state

OCRs are quasi-autonomous agencies and institutions which discharge oversight functions

within a set of processual innovations and delegated linkages commonly termed the

regulatory state. Its provenance is contested equally as much as its ascribed ontology within

academic professionalism (Moran, 2002: 411-12). The aim of this section is to briefly outline

the differing interpretations regarding the development of the regulatory state, paying

particular attention to the specificities of the British regulatory state. Three subsequent

questions are then posited:

i. to what degree can the British regulatory state be understood as a Madisonian state

which envisages functional non-majoritarian institutions as protector of the citizen?

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ii. if such a Madisonian construct can be argued for, what locations do OCRs inhabit

within such a construct and to what degree are they perceived as constitutional

constraints on majoritarian power over and above the traditional tripartite division of

power?

iii. what could be the role of OCRs with a language-based remit? With the

prescription of standards as a command and control mechanism of the regulatory state

synoptically read off to a central node (Moran, 2007: 24-5; Hood, 1995), can a

prognosis for standards-based language regimes be arrived at?

When writing at the beginning of the 1980s on the ‘inherited procedural norms’

within the state tradition of forging a common and legitimising set of societal principles

through the ordering of authority, Kenneth Dyson admonished the hitherto ‘inwardness’

(1980: 4) of British and American political thought and practice towards both the reality-

engendering concept of the state and the institutions which inhabit its institutional landscape.

According to Dyson, the absence of ‘the notion of the state as a ‘lived’ historical and

sociocultural phenomenon did not … encourage its emergence as a central concept within the

intellectual tradition’ (p.4). Only during ‘periods of doubt’ regarding the UK’s institutional

arrangements such as Edwardian welfare policies and the disenchantment of the New Left

during the 1960s (1980: 17) did the state reappear with any significant explanatory and

normative sense of purpose. Earlier probing of the indivisibility of the state, however, either

by the discrete and contingency-driven empirics of the ‘Anglo-American’ tradition (pace

Dyson) or by Marxist structural problematising of the state’s unchanging and unchangeable

teleology (Wallerstein, 1991: 17) could not avoid coming to terms with a sea change in the

ordering of the state by the last two decades of the 20th century, and thus with interpreting the

implication of the state in these convulsions.

Advanced capitalist democracies began to experience fundamental structural changes

to the outworking of high modernism as represented by Keynesian economics and the

development of the welfare state (Moran, 2002; Hood, 1998). Services to citizens emanating

from both the public and private sectors became more fluid with the onset of liberalisation

and privatisation, with private and voluntary sectors engaging in services previously

predominantly exclusive to the public sector. Attempts to capture the role and processes of

government in these structural changes coalesced around two core and connected images,

those of governance and of regulation. Under the paradigm of the universal reform model of

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New Public Management,5 the functions of government underwent a conceptual reorganising

of the boundaries between the public and private sector as well as an increase in the salience

of government through networks. Ideas prevalent in the increased importance of epistemic

communities is a shift from Weberian hierarchy-laden and rules-based administration to

relations of mutual and flattened dependence, resulting in a networked ‘government of

strangers’ (Hecko, 1977). In order to achieve this, distance would be created between the

‘rowing’ of service delivery and the ‘steering’ of policy decision-making (Yeung, 2010;

Hood et al, 2000; Hood, 1995). However, a sui generis mismatch in the United Kingdom

between the perceived ramifications of arm’s length ‘steering’ by government (Osborne &

Gaebler, 1992) on the one hand and hyper-politicisation within regulation on the other is

discerned (Moran, 2002), creating thus the conditions for an ‘immanent critique’ of such a

regulatory state (Moran, 2001: 424). One may, thus, reasonably problematize the paradox of

the expansion of regulation in a neoliberal age and a reactivation of politics in the regulatory

state in not only the UK (Burgess, 2011) but also a range of polities in the global South

(Dubash & Morgan, 2012). This would seem to run counter to other scholars who see a

reining in of regulatory fervour as de-regulation (Grabosky, 2013) or as ‘post-regulation’

(Black, 2001). The state of play would thus seem to remain fuzzy, with deregulation, post-

regulation and re-regulation being cited as inheritors of the regulatory turn of the last quarter

of the twentieth century (Christensen & Lægraeid, 2006a; Yeung, 2010).

The shorthand coinage of the ‘regulatory state’ indicates ‘greater reliance on

institutions operating at arm’s length from government, insulated from daily political

pressures and embedding their decisions in technical expertise’ (Dubash & Morgan, 2012:

262) and the ‘use of authority, rules and standard-setting, partially displacing an earlier

emphasis on public ownership, public subsidies, and directly provided services’ (Hood et al,

1999: 3). In a circumscribed sense, regulation means ‘formulating authoritative sets of rules

and setting up autonomous public agencies or other mechanisms for monitoring, scrutinizing

amd promoting compliance with these rules’ (Christensen & Lægraeid, 2006b). Linking

regulation to the state, core to Moran’s interpretation of regulation is the concept of ‘synoptic

legibility’ to a given centre: ‘[T]the regulator is a governor receiving information about the

state of the system and its interaction with its environment. If anything could take us to the

kernel of the regulatory state, it would be this cybernetic image’. (2007: 13). However,

regulation applied to the public sector by arm’s length bodies is under analysed and thus,

5 Cf Richards and Smith, 2006 for an overview of the ‘hollowed-out state’ as governance.

5

according to Hood et al, ‘merits attention as a matter of some political and constitutional

significance’ (1999: 4).

The regulatory state may be envisaged as competing images with varying nuances of

approach and emphasis;6

as an American-influenced state which ushered in the concept of the regulatory

agency as institutional innovation, replete with a courts system disposed to settle

disputes by means of a highly adversarial medium;

as a risk state, whose organising notion is understood as cultural responses and

sensitivities to grand narratives of late modernity (e.g. Giddens, 1990) or as the

increase in risk perceived by citizens due to the scalar development and impact of

technologies in their lives (Beck, 1992). A pluralist version which refutes the

teleology of modernity (e.g. Douglas, 1994; Hood et al, 1998; 2001) interprets risk,

and by extension regulation, as ‘a political weapon used by a society poised between

the cultures of individualism and egalitarianism’ (Hood, 2001: 4)

as a technologically and rationality-driven smart state, which not only accepts the

transformational teleology of the state (from a Westphalian state to a Keynesian state

to a Regulatory State) but normatively prescribes it (e.g. Braithwaite, 2000;

Braithwaite & Drahos, 2000) through the driving through of performance and process

standards (e.g. Gunningham et al, 1998; Scott, 2010) as well as quantification (Porter,

1995).

However, another interpretation of the regulatory state exists which brings us closer to

the location of OCRs, and by extension language OCRs, within that configuration. The

Madisonian state, focusing on the checks and balances on majoritarian power, accounts for

the decline of the redistribution and stabilisation function of the interventionist Keynesian

state with the concomitant rise of the regulatory function (Majone, 1994). Within this now

dominant function, democratic legitimacy and accountability surrounding the rise of non-

majoritarian institutions (NMIs) are emphasised and problematised (Thatcher & Stone Sweet,

2002; Dubash & Morgan, 2012; Moran, 2007; Scott, 2000; Christensen & Lægraeid, 2006b).

Earlier accounts of legitimacy delegated to NMIs are predicated on their increased

accountability rather than by their politicisation (Majone, 1994; 1996; 1999). In one way, this

is a particularly powerful model which speaks to the transformation of government into 6 The recopilation below draws upon Michael Moran’s accounts (2001; 2002; 2007) of the uniqueness of the current British regulatory state which is predicated on an admixture of high modernism, hyper-innovation, politicisation and institutional chaos.

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steering through governance, reflecting the image of the smart regulatory state. However, one

should not be surprised that the generalised explanatory power of Majone’s emphasis on the

‘expertise, consistency and other such technocratic virtues’ (Dubash & Morgan, 2012: 265)

of NMIs in the Madisonian state may be rendered contingent in a range of states by

majoritarianism through hyper-politicisation, ranging from the UK (Moran, 2007; Flinders &

Buller, 2006) to the global South (Dubash & Morgan, 2012). Indeed, in the case of the UK,

the state is not deemed to be ‘marked by diminished ambitions’ (Moran, 2007: 20) whereby

“redistributive and regulatory politics in the context of economic liberalization of essential

services has lead to the rise of “regulatory welfare regimes” that effectively smuggle social

goals via the backdoor into the regulatory regime” (Dubash & Morgan, 2012: 268-9). Could

this partially explain Moran’s question: ‘Why is the age of the regulatory state also the age of

the policy catastrophe?’ (2001: 415)?

If there is, therefore, a uniqueness to the British regulatory state, partially escaping from

path dependency upon its own version of ancien régime, that of ‘club government’ of the

Victorian period and subsequent high modernism, yet now employing a wealth of unelected,

and in many cases, politically micromanaged (Moran, 2007: 190) NMIs which are smuggling

social goods via the back door, what is the relationship between ombudsmen, commissioners

and regulators and the new British Madisonian state as regards their normative claims and

regulatory functions? In other words, what claims are made by these NMIs and what is their

constitutional position in a UK whose ‘silent constitution’ highlights abeyances ‘which are

not reducible to demarcated rules’ (Foley, 1989: 129)?

Let us begin with the constitutional role of the Ombudsman. Let us also suppose that two

models of a Madisonian state may be envisioned, an earlier model based on NMI expertise,

efficiency criteria, diffusive capacity and consistency (pace Majone), and a second, more

integrative model that also highlights constitutional and quasi-judicial values. Buck et al

(2011), in their seminal volume on the ‘Ombudsman Enterprise’ adopt a position that

straddles both of these models. Four interlinked propositions are put forward by the authors

which define the ombudsman contribution to an underpinning of the constitutional order: i. an

incumbence upon public authorities to operate with integrity; ii. a requirement to exercise

good administration; iii. a necessity to build integrity or accountability institutions and iv. a

necessity to create a set of procedures through which citizens’ legitimate grievances can be

brought forward and upheld (2011: 24-5). Moreover, the ombudsman is a ‘variant form of

dispute resolution […] outside of the courts’ (Buck et al, 2011: 4-5). These propositions may

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well be constitutive of what Michael Foley reminds us are ‘metaphysical and moral adjuncts’

within the customary British constitution and which ‘remain sufficiently obscure to allow

them to retain an approximate appearance of internal coherence and clarity’ (1989: 9).

According to some (Midwinter & McGarvey, 2001), the ombudsman is deemed not to be a

regulator due to its investigatory and redress functions as well as by its force of argument

rather than by enforcement. Yet, others assert that the ombudsman is to be situated in the

context of ‘the steady introduction of a whole variety of autonomous regulatory, audit,

inspectoral and other unelected professional bodies designed to call the exercise of public

power to account’ and that it is a feature of a ‘non-political regulatory regime’ (Thompson et

al, 2011: 16 & 18). Indeed, the implication of the practice of the ombudsman using the audit

and inspection function to ‘fire-watch’ (Harlow & Rawlings, 2009) and to ‘fire-prevent’

(Snell, 2007), the ‘getting-it-right agenda’ according to Buck et al (2011), is that the office

may be characterised as possessing a regulatory style of behaviour. In any case, both

regulators and ombudsmen undoubtedly fulfill the criteria for inclusion within the NMI

block. An argument for the fusion of both Madisonian models may be thus based upon the

acceptance of both normative claims and the putting in place of structures which favour the

citizen. As an example of an NMI, the ombudsman speaks to organising ‘society in such a

way that the individual is normatively acknowledged, structurally advantaged, and

institutionally protected’ (Buck et al [Carolan, 2009]: 26).

Defining the office of ombudsman

A scholarly consensus exists upon the fact that the international proliferation of the office of

ombudsman has made the matter of defining the notion of ‘ombudsman’ more complicated

(e.g. Lloydd, M., 2005: 6). Carl asserts that the challenge is even more acute again ‘The

world-wide diffusion of the ombudsman concept and the accompanying academic literature

has failed to produce a universal definition of “ombudsman.” As a result, liberal

interpretations of the concept have flourished [...]’ (Carl, 2012: 203). Carl draws upon Rowat

(2007) in suggesting that this is the result of over-use and mis-use of the term in the USA in

particular. Despite the immediacy of the work of Carl, it is worth noting that the paper

appears to be rather dependent in manner of approach upon Heede (2000) whose five ideal

types of ombudsmen Thompson et al (2008) find not ‘entirely helpful’ (27). Moreover, any

understanding of the ombudsman role ought somewhere to take account of the work of

authorities such as Gottehrer & Hostina (1998), Harden (2000), Harlow & Rawlings (2009)

and Hill (1974). Indeed, Harlow & Rawlings re-state in various editions of their work that

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‘Ombudsmen have common characteristics’ identified by the International Ombudsman

Institute [IOI] ‘in an effort to protect against dilution by the plethora of quasi- or pseudo-

ombudsmen that today litter the public and private space’ (Harlow & Rawlings, 2009: 529).

Writing specifically of the UK Thompson at al (2008) conclude that uncertainty exists,

arising from the fact of there now being very many different types of complaint-handling

bodies in the UK and the advent of devolution:

The PSO [Public Services Ombudsmen] are a key part of the administrative justice

system, which has become more sophisticated recently. Reforms have been

introduced, although sometimes not completed, and new legislation passed, but

connecting issues have not always been properly taken into account. The end result is

a complex array of ombudsmen and intermediate complaint handlers with, following

devolution, no clear symmetry in jurisdiction across the UK. The relationship of the

PSO with other parts of the wider administrative justice system such as the courts

remains unclear, and the exact scope of their powers is in places vague and uncertain

(Thompson et al, 2008: 21).

Where one can be absolutely certain, according to Thompson, is that ombudsmen are

characterised by their inherent flexibility in their roles of ‘fire prevention’ (an inspection and

audit function) (following Snell, 2007), ‘fire fighting’ (seeking individual redress) and ‘fire

watching’ (seeking systemic improvement) (following Harlow & Rawlings, 2009)

(Thompson et al, 2008: 27-8). For example, in some Australian jurisdictions Ombudsman

practice includes inspection and audit functions, as well as the systematic review of

legislation (Thompson et al, 2008: 22). Another authoritative voice concurs in relation to the

office of ombudsman in the Canadian context in which there is no ‘single model of

Ombudsman practice’ but that they all share the same ‘essential tasks and function’ (Darling,

2009: 6). Thus, the ombudsman can be said to have two major roles viz the resolution of

complaints and the seeking of improvement in administration (e.g. Thompson et at, 2008:

22), and that the techniques of the latter include investigation recommendations, publications

and guidance, training, systemic investigations, oversight and audit, and, research and

analysis (Thompson et al, 2008: 24).

To be fair to Carl, it may be the case that the terrain has become even more crowded

since Seneviratne’s (1994) seminal study of the ombudsman in the UK in which she asserts

that while there are ‘a number of problems of comparison’ it was both desirable and possible

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to offer ‘some definitions’ of the term (Seneviratne, 1994: 5). Seneviratne proffers the

definition coined by the International Bar Association, as follows:

[An ombudsman is] an office provided for by the constitution or by action of the

legislature or Parliament and headed by an independent, high-level public official who

is responsible to the legislature or parliament, who receives complaints from

aggrieved persons against government agencies, officials, and employees or who acts

on his own motion, and has power to investigate, recommend corrective action, and

issue reports (Seneviratne, 1994: 5).

She also turns to the Hill’s (1976) ground-breaking work on the New Zealand Ombudsman,

echoing his conclusion that ‘worldwide, ombudsmen have two distinguishing features:

constitutional independence and extensive powers of investigation’ (Seneviratne, 1994: 5). In

addition, Seneviratne draws attention (Seneviratne, 1994: 6) to the fact that practitioners were

beginning to respond to the ever-looser definitions of the office and set in motion, at that

time, events that would lead to the creation of the British and Irish Ombudsman Association

[BIOA] along with the identification of criteria for defining an organization as ‘Ombudsman

scheme’.

In his authoritative overview of the European Ombudsman, Harden (2000) reviews

the conceptual landscape in a convincing manner, taking up where Seneviratne left off. He

notes (2000: 203) that the term ‘ombudsman’ is not legally protected except in Demark and

New Zealand and that this helps to explain the rather indiscriminate use of the term.

Moreover, Harden states that at that stage there had been both a professional and an academic

response to the phenomenon of proliferation. The response of practitioners was, as

anticipated by Seneviratne, to strictly define the criteria for membership of national and

international associations of ombudsmen, namely the BIOA,7 the IOI,8 and, the United States

Ombudsman Association [USOA].9 The BIOA criteria for the recognition of ombudsman

offices are reproduced in Appendix One. They are, briefly: independence, fairness,

effectiveness, openness and transparency, and accountability. The IOI set out its criteria in

article two of its bylaws, reproduced in Appendix Two. In the preamble to the bylaws it is

asserted that despite international proliferation ombudsmen are still defined by ‘[the] core

principles of independence, objectivity and fairness’ (p.3). In the case of USOA, the ideal

7 http://www.ombudsmanassociation.org/8 http://www.theioi.org/9 http://www.usombudsman.org/

10

model is the so-called ‘legislative’ model which the USOA describe as ‘An ombudsman

created in law, with a term of office, full investigative powers, and access to records is the

model promoted foremost by USOA’ (Appendix Three).

According to Harden the intellectual response has been to seek to identify a normative,

classical model of ombudsman. In this context the work of Gottehrer & Hostina (1998) is

central, but the notion informs other authoritative statements as well (e.g. Söderman, 1997;

the Northern Ireland Ombudsman, 2003; the Organization for Security and Co-operation in

Europe;10 Aufrecht, 2009). It ought to be noted that while Harden characterises this work as

an academic response both Gottehrer and Hostina, by 1998, were former practitioners.

Gottehrer was ex-president of the USOA and a former regional director of State of Alaska

Ombudsman’s Anchorage office while Hostinga was a former Deputy Ombudsman of the

State of Alaska. They also make it clear in their paper that the professional definitions of the

office of ombudsman of the IOI, the American Bar Association, the BIOA, and the New

Zealand Ombudsman inform their definition (Gottehrer & Hostina, 1998: 9-15). Gottehrer &

Hostina define the classical ombudsman as an organisation which ‘functions in government

to receive and investigate complaints’ and that it ‘must have’ the following ‘irreducible

minimum characteristics’ (Gottehrer & Hostina, 1998: 1): independence; impartiality and

fairness; credibility of review process; and, confidentiality. More specifically, while not

providing the full detail of the model delineated by them, independence is understood

whereby the following apply (Gottehrer & Hostina, 1998: 1-4):

The Ombudsman’s Office is created in the Constitution or a law of the jurisdiction to

establish its permanence;

The Ombudsman acts as an officer of a legislative body or on behalf of the legislative

body, and is independent of the organizations the Ombudsman reviews;

The Ombudsman is appointed or confirmed preferably by a super majority of a

legislative body or entity other than the one the Ombudsman reviews through a

process designed to prevent political appointments;

The Ombudsman has a fixed, long term of office and may be reappointed;

Removal of the Ombudsman is for cause and by a super majority of the appointing

entity;

The Ombudsman has a high, fixed salary;

10 http://www.osce.org/odihr/16635

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The office has a budget funded at a level sufficient to carry out the purposes

established in law and spends and accounts for its funds directly to the legislative

body;

The Ombudsman has the sole power to appoint and remove staff;

Someone is always capable of exercising all the Ombudsman’s powers;

The Ombudsman is provided immunity from liability and criminal prosecution for

acts performed under the law;

Ombudsman actions may not be reviewed in court except to determine the

Ombudsman’s jurisdiction;

The Ombudsman may appeal to courts to enforce the powers granted by the act.

With regard to impartiality and fairness, the following apply (Gottehrer & Hostina, 1998: 4-

6):

Qualifications to serve are imposed and are designed to select an Ombudsman widely

respected among different political groups as impartial and fair;

A super majority is required for the Ombudsman’s appointment;

The Ombudsman's political and other activities are restricted to remove the office

from the political arena and make the ombudsman accessible to complainants from

any political group;

Legislation creating the Ombudsman’s Office or internal written policy states how

conflicts of interest will be handled;

Anyone may bring a complaint, preferably directly to the Ombudsman, without

paying a fee or passing through an intermediary official;

The Ombudsman may criticize any agency or person under the office’s jurisdiction

and may make recommendations to resolve specific situations or prevent their

reoccurrence;

The Ombudsman is required to consult before criticizing an agency or person and

allow the agency or person criticized to reply;

The Ombudsman is not an advocate for any individual or group although the

Ombudsman may, after an investigation has been conducted, advocate for

recommendations that would benefit a complainant.

With regard to credibility of review process, the following apply (Gottehrer & Hostina, 1998:

6-7):

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The Ombudsman has general jurisdiction in the government that is broadly defined

and not restricted to one agency or one particular type of grievance;

The Ombudsman may investigate grievances of anyone concerning any decision,

recommendation, or any act done or omitted relating to a matter of administration, by

any organization or person over whom jurisdiction exists;

The Ombudsman may investigate complaints against government or semi-government

departments and agencies;

The Ombudsman may initiate an investigation without a complaint;

Agency staff are required to cooperate with the Ombudsman and the Ombudsman is

given access to records and agency premises; the Ombudsman has subpoena power or

the ability to compel individuals to testify or produce evidence in countries where

subpoena power does not exist;

The grounds for Ombudsman review are stated broadly and include “fairness”;

After investigation, the Ombudsman has the responsibility to make findings and

recommendations to organizations under the office’s jurisdiction and has the ability to

publish and publicize them;

The Ombudsman’s findings are not reviewable;

The Ombudsman may not make binding orders.

And with regard to confidentiality, the following apply (Gottehrer & Hostina, 1998: 8):

The ombudsman may maintain confidentiality;

The Ombudsman may not be forced to testify or produce records.

Hill remains the essential starting point for defining the ombudsman and it is worth

presenting his basic proposition in some detail:

A key to understanding the ombudsman’s popularity is the concept’s relative simplicity;

“grievance man,” “mediator,” and “citizens’ defender” are commonly used and not

inaccurate synonyms. [...] I have isolated several defining characteristics: the classical

ombudsman is 1) legally established, 2) functionally autonomous, 3) external to the

administration, 4) operationally independent of both the legislature and the executive, 5)

specialist, 6) expert, 7) nonpartispan, 8) normatively universalistic, 9) client-centered but

not antiadministration, and, 10) both popularly accessible and visible. The institution’s

mission is to generate complaints against government administration, to use its extensive

powers of investigation in performing a postdecision administrative audit, to form

judgements that criticize or vindicate administrators, and to report publicly its findings

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and recommendations but not to change administrative decisions. Indeed, one of the

institution’s most interesting puzzles is its apparent effectiveness despite minimal

coercive capabilities (Hill, 1976: 12).

Most other authoritative definitions conform quite closely to this, such as Harlow & Rawlings

(2009: 529) preferred description of ‘the essence of the office’, derived from Gregory &

Giddings (1995):

[An ombudsman is] an expert, independent and non-partisan instrument of the

legislature established by statute or in the constitution;

clearly visible and readily accessible to members of the public;

responsible for both acting on its own volition and for receiving and dealing

impartially with specific complaints from aggrieved citizens against alleged

administrative injustice and maladministration on the part of governmental agencies,

officials or employees (Harlow & Rawlings, 2009: 529).

The BIOA criteria for the recognition of ombudsmen too is a ‘good fit’ (Harlow & Rawlings,

2009: 529) with this. It is significant that the Parliamentary and Health Service Ombudsman

in the UK uses BIOA recognition in order to differentiate between ‘Ombudsmen schemes’

(ombudsmen proper) and other types of complaint handling bodies,11 as does the Citizen’s

Advice Bureau.12In addition, in a memorandum13 to the House of Lords select committee on

the constitution, the Northern Ireland Ombudsman explained the essential difference between

an ombudsman and other sorts of complaint-handling bodies and regulatory authorities in

relation to its autonomous status and its authority derives from the law and from the

legislature. It is indifferent to the political priorities of the executive and wholly independent

of the organisations it reviews and investigates. It is impartial, and is seen to be demonstrably

so. It is, therefore, an agent of the examination and analysis of the objective facts and of law.

Crucially, it differs significantly from other types of regulators that may be considered to be

executive regulators in the sense that they are regulating on behalf of the executive, the

government or administration of the day. Thus, the ombudsman stands apart. These are the

criteria against which the offices of language commissioner will be scrutinised in order to

determine the extent to which they might be said to be language ombudsmen, or other types

of complaint-handling bodies or regulatory authorities.11 http://www.ombudsman.org.uk/make-a-complain/if-we-cant-help/useful-links12 http://www.adviceguide.org.uk/england/law_e/law_civil_rights_e/law_complaints_e/how_to_use_an_ombudsman.htm13 http://www.publications.parliament.uk/pa/ld200304/ldselect/ldconst/68/68we52htm

14

An interrogative framework for characterising ombudsmen, commissioners and

regulators

In order to refine our understanding of the precise differences between ombudsmen,

commissioners and regulators in general, and variations within these types, a schematic was

devised in the format of a grid and comprising a range of specific items. The next step was to

then examine the academic, professional and grey literature in order to populate an individual

schematic grid for each organisation from a range of ombudsmen, commissioners and

regulators, including all of the language ombudsmen, commissioners and regulators from

each of Canada, the Republic of Ireland and Wales. The items on the schematic are as

follows: Full title: The official title for each organisation was sought, along with any non-

official brand name. There are implications to the use of the term ‘ombudsman’, whether

arising from legal status or from in-house corporate branding. Appointment: This refers to the

manner of appointing the principal office holder of the organisation, including identifying the

person, or persons, with whom the power of appointment resides. In the case of the UK this

could include, for example, the Crown, a UK Minister, or a Minister in a devolved

administration. Also of interest here are persons charged with making recommendations to

appoint, as opposed to actually making the appointment. Ombudsman Scheme, or Other

Complaint Handling Body: One of the aims of this exercise was to attempt to identify

whether an organisation is explicitly described as an ‘Ombudsman Scheme’ and thereby

bearing the imprimatur of a professional guild, such as the BIOA, as an ombudsman in the

strict sense of the term. On the other hand, there exists a variety of organisations which

handle complaints in the fashion of an ombudsman and yet are distinct from that. Such

organisations are also identified through the application of the schematic. Pertinent

legislation: This means the laws and other statutory instruments relevant both to the creation,

or subsequent evolution, of the organisation and also, where applicable, to the thematic

interests of the body. Statutory responsibilities: This refers to the duties charged to the

organisation as a matter of law. Statutory powers: This refers to the legal instruments

available to the organisation in the course of the exercise of its duties. Appeals: It is of

interest to the project how the decisions or recommendations of the organisation may be

appealed, if at all. Stated priorities: How the organisation articulates its corporate mission,

strategy and aims is of interest as this it not only provides an important insight to how the

organisation interprets its statutory remit but also, in some cases, there may very well be

some degree of contrast, or variation in emphasis, between aspects of the statutory mission

15

and the stated priorities at certain given times. Reporting: Of interest here is understanding to

whom the organisation reports, along with the precise mechanism of reporting. This is

important for understanding not only the matter of accountability but also of impact and

reach. Other relationship to government: This refers to the nature and extent of any other

formal relationships between the organisation and government, other than as already stated

with regard to appointment and reporting. Working with other bodies, departments and

agencies: This refers to the manner in which the organisation manages its working

relationships with other bodies, departments and agencies, such as in the form of Memoranda

of Understanding. Governance: The means the internal governance of the organisation.

Other: Other matters could include a wide range of issues, such as noting milestone reports or

investigations. Background: This important item refers to the origins and subsequent

development of the organisation, including legislative review and innovations resulting from

the agency of principal office holders.

This schematic was applied to 25 ombudsmen, commissioners and regulators across

the fieldwork domains, as follows:

I. Children’s Commissioner

for Wales

II. European Ombudsman

III. Financial Ombudsman

Service

IV. Healthcare Inspectorate

Wales

V. Information

Commissioner’s Office

VI. Legal Ombudsman

VII. Northern Ireland

Ombudsman

VIII. Ofcom

IX. Ofgem

X. Older People’s

Commissioner for Wales

XI. Parliamentary and Health

Service Ombudsman

XII. Police Ombudsman for

Northern Ireland

XIII. Prisoner Ombudsman for

Northern Ireland

XIV. Prisons and Probation

Ombudsman

XV. Property Ombudsman

XVI. Public Service Ombudsman

for Wales

XVII. Scottish Public Services

Ombudsman

XVIII. Commissioner of Official

Languages of New

Brunswick

XIX. Office of the Commissioner

of Official Languages

[OCOL]

16

XX. Languages Commissioner

of the North West

Territories

XXI. Languages Commissioner

of Nunavut

XXII. French Language Services

Commissioner Ontario

XXIII. Welsh Language

Commissioner

XXIV. Irish Language

Commissioner

XXV. Welsh Language Board

These populated schematics allowed for the systemic scrutiny of the language ombudsmen,

commissioners and regulators in the context of other similar such organisations with no

substantive interest in language issues per se. This allows the research team to address a

significant shortcoming characteristic of much of the scholarly work on language

ombudsmen, commissioners and regulators to date in that it very rarely ventures beyond the

literature of language planning and policy, whether into the areas of public administration

research or the academic study of governance. Thus, these important language organisations

may be situated in a broader context than before and as a result several insights that are novel

to language planning and policy may be imputed to this particular approach.

The completion of this stage of the research has led to the identification of several

emergent themes, relating to public administration and governance, which are likely to

inform the fieldwork. These are as follows: independence and autonomy - political;

institutional, perhaps related to secondments and recruitment; funding; objectivity - fairness,

proportionality ‘Wednesbury reasonableness’; natural justice; individual and public benefit -

drawing systemic issues with potential policy implications from individual cases, policy

instigator; a potentially important point of comparison between ombudsman and

commissioner; institutional and organisational development - historical background and

context of the creation of the office; related to the growth of the ‘regulatory state’; statutory

powers and jurisdiction - functional competence, as defined by law; other powers - soft

power, power deriving from practice; new public management ‘leverage’; advocacy - the

duty to promote; a potentially important point of comparison between ombudsman and

commissioner; also question as to whether regulators ought to ‘promote’; adjudication - in

the legalistic sense; the ombudsman as quasi-judge and as alternative to courts; binding and

non-binding decisions; a potentially important point of comparison between ombudsman and

commissioner; devolution - significance of differing jurisdictions; extent to which there are

contrasting cultures of governance with regard to OCRs; non-territorial bodies; agency,

17

personality and flexibility - extent to which different scope for this in office of commissioner

in comparison to ombudsman and regulator; accountability - to whom; formal and informal,

to public constituency, also a thematic constituency; working with other bodies - manner in

which this is conceived; mechanisms by which this is managed including MoUs, Framework

Agreements and Joint Statements; internal governance - Chair vs CEO vs OCR; other

relationships to Government - institutional reciprocity, such as ‘culture of no-surprise’; the

rights of citizens - conceptions of right; social rights; justiciability; appeals to justice, moral

authority; the Constitution - point of comparison between UK, Canada and Republic of

Ireland; relevance of constitutionality, ombudsman as extension of tripartite division of

power, as constitutional actor.

Another matter identified as being of considerable interest is to understand the principal

characteristics of an effective complaint-handling body and to ascertain the extent to which

the main language ombudsmen, commissioners or regulators manifest such qualities. These

characteristics were refined by means of an iterative dialogue between the relevant strands of

the scholarly and grey literature pertaining to complaint handling bodies in general. Simply

put, the following were identified in the academic literature (e.g. Gregory, 1994) as the

criteria pertinent to assessing the effectiveness of an organisation as a complaint-handling

body: impartiality and independence; visibility and access; jurisdiction; powers of

investigation; competence; speed; adequacy of remedial action secured, and; effectiveness in

obtaining compliance with recommendations.

The qualities proposed in the scholarly literature are echoed to a great degree in the

professional literature, such as the following criteria on best practice in complaint handling

as articulated by the BIOA (2007) and the National Consumer Council (1997): clarity of

purpose; accessibility; flexibility; openness and transparency; proportionality; efficiency,

and; quality outcomes. In this particular regard the conditions for an effective Ombudsman

service, as the complaint-handling body par excellence, as set out by the World Bank and

quoted in a memorandum by the Northern Ireland Ombudsman to the Constitution

Committee of the House of Lords is worth re-producing here. In it the Ombudsman asserts

that the effectiveness of the office as a complaint-handling body rests on the following:

Political support—from parliament, government, administration, and courts;

Adequate resources—a proper budget system must provide adequate resources

for the job;

18

Public perception—the public must be aware of and understand the

Ombudsman's office and its functions;

Functional competence—the Ombudsman must be effective in receiving,

investigating, and resolving complaints against the administration. Functional

competence depends on institutional design, administrative capacity, and

professional expertise, independence from the executive, and procedures for

dealing with government, ministers, and departments;

Regulatory value—the Ombudsman should fit with existing arrangements for

administrative regulation. The regulatory value of an institution depends on

the overall system of administrative regulation within a country and on how an

Ombudsman fits into it. Regulatory value also depends on an institution

enduring for a significant period.14

A key question that arises here is to what extent might such qualities be said to characterise

the language organisations that are the object of this study? We explore this question briefly

here by comparing certain aspects of the approach taken by three organisations to complaint

handling, namely OCOL, from its first year of reporting in 1970 up until 2012; the Irish

Language Commissioner, from its first year of reporting in 2004 up until 2012; and the Welsh

Language Board, from its first year of reporting in 1995 up until its final year of reporting in

2011. The Welsh Language Board is of immediate relevance as it was the precursor to the

office of the Welsh Language Commissioner, which is charged with building upon the

Board’s legacy. The first Welsh Language Commissioner (Meri Huws) was a member of the

Welsh Language Board between 1993 and 1997 and also its Chair between 2004 and 2012.

Her Deputy was, immediately prior to her current post, the officer responsible for the

regulatory functions of the Welsh Language Board, that is the approval and monitoring of

Welsh Language Schemes.

Language ombudsmen, commissioners and regulators as complaint-handling bodies in

context

In a comprehensive and authoritative overview of the creation and subsequent evolution of its

own office (OCOL, 2009), it is asserted that from its inception one of the central tasks of

OCOL was to establish itself as a credible complaint-handling body. This is reflected in the

manner in which the matter of complaints is dealt with in the office’s annual reports. In each

of the years since inception the body of complaints received by the office is subject to careful 14 http://www.publications.parliament.uk/pa/ld200304/ldselect/ldconst/68/68we52htm

19

and detailed description and analysis. The retrospective overview of complaints published by

OCOL in the annual report of 2005 is an extremely useful starting point with regard to raw

empirical data and its interpretation. Drawing upon this and the subsequent annual reports it

is possible to construct a picture of the volume of complaints received by OCOL from its

beginning up until the present (Figure 1).

1970-71

1972-731975

19771979

19811983

19851987

19891991

19931995

1997

1999-2000

2001-02

2003-04

2005-06

2007-08

2009-10

2011-120

500

1000

1500

2000

2500

3000

OCOL Complaints

Year

Num

ber o

f com

plai

nts

Figure 1 (source: OCOL, Annual Reports, 1971-2012)

Referring to the period up until 2005, OCOL asserts that there was a gradual rise in

complaints in the period from 1970 up until 1985. The substantial rise in the level of

complaints that characterises the period between 1986 and 1990 is explained by the

‘passionate debate’ (OCOL, 2005: 34) generated by the negotiations which culminated in the

Meech Lake Accord [1987]. That the eventual rejection of the amendments to the Canadian

Constitution proposed by it served to further energise the largely francophone political parties

is surely another factor. OCOL claim that the dramatically increased number of complaints

during this period is also explained by the fact that during this period the Official Languages

Act of 1969 was subject to substantial revision in relation to the issue of language in the

workplace in particular. The revised act was eventually passed in 1988 and had implications

for language of much greater scope than the act of 1969, obtaining a ‘quasi-constitutional

status’ (OCOL, 2009: 10). In fact, as OCOL note, the actual level of recorded complaints

could have been much higher again had the office not decided to record the 1,784 complaints

lodged by employees of the Canadian Security Intelligence Services in 1986 and as a single

20

complaint and similarly dealt with the 456 complaints by the same in 1987. Interestingly, the

period of activity with regard to complaints coincides with the stewardship of D’Iberville

Fortier as the Commissioner of Official Languages (1984-1991), a term defined by OCOL as

having established ‘a more solid framework’ in relation to the official languages (OCOL,

2009: 9). The process of attaining this solidity came at the cost of considerable jurilinguistic

vicissitude including that pertaining to the case of the Quebec vs Quebec Protestant School

Boards in 1984, the 1986 cases of Société des Acadiens du Nouveau-Brunswick Inc vs

Association of Parents for Fairness in Education, MacDonald vs City of Montreal and

Bilodeau vs Manitoba, the case of Mahé vs Alberta in 1990, the Multiculturalism Act 1988,

the abrogation of Saskatchewan and Alberta of the rights of Francophone communities in

1988, the declaration of several municipalities in Ontario asserted that they were unilingual

English. Following the appointment of Victor Goldbloom as Commissioner of Official

Languages in 1991, a tenure whose central mission OCOL defines as placing ‘linguistic

duality at the heart of national unity’ in which ‘the focus was now on its [linguistic duality]

crucial importance in preserving the country’s unity’ (OCOL, 2009: 11), the level of

complaints dropped quite markedly immediately and remained at around the level of 1,500

for the rest of the decade.

In the 2005 report, OCOL note a general trend of decreasing numbers from the year

2000. The office suggests a number of possible factors including the perception of

complainants that ‘the complaint investigation process does not guarantee that the problems

encountered will be fixed permanently’ (OCOL, 2005: 34). This is despite an earlier assertion

of the office that complaints ‘create momentum for change’ (OCOL, 2001: 1.1). A second

possible factor is the possibility that ‘many Canadians do not understand their linguistic

rights well enough to know when and how to lodge complaints’ (OCOL, 2005: 35). Levels of

complaints continued to drop to the extent that by 2007-08 they were at the lowest levels

ever, other than the very first year of the operation of the office. Elsewhere OCOL suggests

that the rather this period, which coincided with the tenure of Dyane Adam as Commissioner

of Official Languages (1999-2006), was one in which the relative importance of the official

languages to government was significantly reduced by the political fact of the ‘struggle with

the deficit’ (OCOL, 2009: 13). Adam began a process of reviving substantive political

engagement. In 2001 a first ministerial post with responsibility for official languages was

created. Her successor, Graham Fraser, appears to have shared her sense of mission as he

noted in his annual report of 2008 that ‘the application of Canada’s language policy is

21

incomplete and the Government of Canada continues to fall short of its own objectives’ and

that ‘a plateau’ had been reached in the implementation of language law (OCOL, 2008: ii, 3,

4, 5, 14, 44, 111, 148) This appears to have prompted an overhaul of the approach taken by

OCOL, delineated in that report. This manifesto for the renewal of the ombudsman role of

OCOL indicated that alternatives to investigations, report cards, audits and court

interventions would be explored in order to resolve language disputes (OCOL, 2008). In

doing so a collaborative approach was sought with federal institutions, characterised by the

negotiation and implementation of a range of Memoranda of Understanding and the sharing

of information. The intention was to allow for a proactive approach to be adopted and to

thereby ‘prevent the problems that give rise to complaints’ (OCOL, 2008: 14). While

complaints rose to an exceptional high of 1,729 in 2010 they dropped way most dramatically

to the extent that only 643 were recorded for 2012. The relatively high level of complaints

received in 2010 includes 876 individual complaints relating to the CBC / Radio Canada

budget cuts in Windsor, Ontario (OCOL, 2010b: 53). The following year, also characterised

by a relatively high level of received complaints, includes around 400 that were just related to

Air Canada (OCOL, 2011: 42). Despite Fraser’s mission to ‘renew’ he still found it necessary

to warn in 2010 that ‘the Federal Government must get back on course’ (OCOL, 2010: iv &

16-26). However, in his latest annual report the rhetoric is noticeably more positive, drawing

attention to ‘a number of successes’ (OCOL, 2012: iv) while at the same time implying that it

is easy to be critical in so far as ‘failure is obvious, success is invisible’ (OCOL, 2012: v).

The indications are that the Federal Government is contented with Fraser’s approach as he

has just been appointed to an unprecedented second term as Commissioner of Official

Languages.

The office of the Irish Language Commissioner in the Republic of Ireland is recent

innovation, its first year of operation being completed in 2004. From the outset it has adopted

an approach to its role as a complaint-handling body which reflects the historical practices of

OCOL. The influence became quite direct and was formalised in 2006 in the shape of annual

staff exchanges between the two offices so as to ‘increase our understanding of each others

work practices as a tool towards establishing norms of best practice’ (2006: 27). The office’s

Annual Reports present substantial statistical the data on complaints received for each year

along with an explanatory narrative and a summary of selected cases felt by the

Commissioner to be of particular interest. As a result it is possible to present a complete

picture of the level of complaints dealt with by the office (Figure 2). The data indicate that

22

the level has steadily increased since the creation of the office, suggesting that it is increasing

viewed by complainants as a credible complaint-handling body according to the

Commissioner (Irish Language Commissioner, 2006: 5). The range of complainants have

been characterised by the Commissioner as ‘individuals in the general public [...] language

activists [...]’ and ‘language organisations’ (Irish Language Commissioner, 2012: 6). This

credibility may well have been a consideration in relation to the decision to reappoint Ó

Cuirreáin to the post of Irish Language Commissioner in 2010.

The Irish Language Commissioner: Complaints and investigations

Year Complaints Investigations

2004 3042005 4152006 6112007 622 122008 596 172009 687 172010 700 112011 734 152012 756 13

Figure 2 (source: The Irish Language Commissioner, Annual Reports, 2004-2012)

The Irish Language Commissioner conducted his first investigations in the reporting

year of 2007, as the full provisions of the Official Languages Act 2003 came into effect. The

office gave notice to the bodies subject to the pertinent legislation in the annual report of the

previous year of his intention to do so, marking a shift from dealing with bodies under the

‘spirit of the legislation’ as an ‘interim strategy’ to dealing with bodies ‘on the basis of actual

obligations’ (Irish Language Commissioner, 2006: 36). In each of his annual reports the

Commissioner notes the number of new investigations per year while also providing

condensed summaries of the investigations conducted, including naming each of the bodies

subject to investigation. At the same time he also notes that the authoritative accounts of the

investigations are available in the form of official reports issued in accordance with Section

26 of the Official Languages Act 2003 (e.g. Irish Language Commissioner, 2007: 35). This

allows the commissioner to draw substantive insights form the body of data on complaints. In

particular, he is able to identify systemic failings on the basis of empirical evidence. In his

most recent annual report he states that ‘2012 was not a vintage year for the promotion of the

23

Irish language in the public sector and for every one step forward there appeared to have been

two steps backwards’ (Irish Language Commissioner, 2012: 4).

It is the case that the Welsh model of ‘Language Schemes’ was adopted by the Irish

law-makers (Williams, 2009). One would expect much common ground. However, the

approach to complaint-handling taken by the body responsible for the monitoring compliance

of such schemes, the Welsh Language Board, can be seen to be quite different to that taken

by OCOL and the Irish Language Commissioner. Drawing upon the Welsh Language

Board’s annual reports, it is possible to build up an understanding of both the style and the

substance of its performance with regard to complaint-handling (Figure 3). The first point of

contrast is the simple observation that for 9 reporting years, out of a total of 16, the

organisation provided no data at all on complaints. In 3 reporting years an approximate

number of received complaints was published. With regard to complaint-handling in general,

the contrast between OCOL and the Irish Language Commissioner on the one hand and the

Welsh Language Board on the other is reflected in the Board’s final annual report, for the

year 2010-11, in that this is the only annual report in which a statistical analysis of the body

of complaints received by the Board is presented (Welsh Language Board, 2011: 25).

The year 2008-09 is, clearly, a watershed. Prior to that reporting year 8 investigations

had been conducted by the Welsh Language Board during the course of 14 reporting years.

From 2008-09 no less than 17 investigations were conducted during the course of 3 reporting

years. During that year the Proposed Draft National Assembly for Wales (Legislative

Competence) (Welsh Language) Order became a political and statutory reality, heralding the

inevitable demise of the Welsh Language Board. It would eventually be replaced by the

Welsh Language Commissioner in 2012. That year is also the first occasion on which the

Welsh Language Board expresses the view that its regulatory powers are too limited as

‘under the present legislation, those circumstances in which the Board can make

recommendations are restricted, as are our powers to enforce change in the light of those

recommendations’ (Welsh Language Board, 2009: 9), leading it to the belief that ‘the Welsh

Language Act 1993 is no longer adequate’ (Welsh Language Board, 2009: 7). This year also

marks the creation by the Welsh Language Board of a Complaints and Statutory

Investigations Panel (Welsh Language Board, 2009: 60). The Board also finds it a

sufficiently noteworthy event to report that in that year also it published ‘a booklet that

explains the procedure for complaining about the lack of Welsh language services’ (Welsh

Language Board, 2009: 60). This is a most intriguing development given the view expressed

24

by the Board in the same report that it considered its powers in this regard to be inadequate.

The creation of the Complaints and Statutory Investigations Panel and the provision of

literature aimed specifically at facilitating the making of complaints would imply that the

Board was, in fact, adopting quite a new posture on this matter. That it instigated the most

intense period of investigations in its history suggests that the Board had decided to make

greater, much more aggressive, use of the powers it possessed, whatever their adequacy, than

ever before.

Welsh Language Board: Complaints and statutory investigations

Year Complaints Statutory investigations

1994-5 No reference1995-6 Over 2501996-7 No reference1997-8 No reference1998-9 Over 300 11999-2000 Over 250 32000-1 2742001-2 No reference2002-3 No reference2003-4 No reference2004-5 No reference 32005-6 No reference2006-7 No reference2007-8 62 12008-9 106 82009-10 186 42010-11 206 5

Figure 3 (source: the Welsh Language Board, Annual Reports, 1995-2011)

Welsh Language Board notes again in 2010 its ‘limited regulatory powers’ and how it has

been ‘frustrated at times because of the lack of enforcement powers’ (Welsh Language

Board, 2010: 4). This report is the first which actually places the matter of language schemes

at the front of the report as the first substantial item (Welsh Language Board, 2010: 15-26).

Reports from 1995 and 1996 included a short statement on language schemes in the opening

part and by 1998 they are confined to a short statement in the middle of the report (Welsh

Language Board, 1998: 11).

25

Other features of these data (Figure 3) open up certain points that merit further

scrutiny beyond this paper other. For example, the Board is inconsistent as to the naming of

bodies subject to investigation, and is partial and selective about making information on its

investigations available to the public, whether in the form of condensed summaries or as

authoritative reports, available on its investigations. Prior to 2008-09 the Board named the

bodies being subject to investigation but from that year onwards 10 of the 17 bodies being

investigated are named. Why the others are not identified is not made clear. Also, because of

the unevenness of the reporting by the Board one cannot be absolutely certain that the

investigations noted in the period prior to 2008-09 are separate and new cases, or rather

ongoing and unresolved cases. For example, the body CADW is named in both 1998-99 and

1999-2000 as being under investigation, while the case of Carmarthenshire County Council is

noted to be ‘ongoing’ in 2004-05 but it is not absolutely clear from the annual reports that

this is not the same case referred to in 1999-2000. The matter of own-initiative investigations

is also interesting in this regard. Choosing to conduct an investigation in the absence of any

complaint would imply that the investigating authority is wholly confident that

maladministration has occurred. The track record of the Welsh Language Board in relation to

own-initiative investigations is, prima facie, rather patchy. For example, the Board initiated

an investigation into Bangor University’s recruitment of a Vice-Chancellor during 2010-11

following the appearance of an advertisement for the post. The Board asserts that there were

two main considerations: ‘was the Code of Practice for Staff Appointments used according to

the Welsh Language Scheme, and on what basis was the decision made that Category D

(according to the definitions of that code) was the most suitable for the new Vice-

Chancellor’s job description?’ (Welsh Language Board, 2011: 83). The Board found that it

‘was in no doubt that the […] Code of Practice was adhered to’ (Welsh Language Board,

2011: 83) but that the designation of the post to Category D was ‘inappropriate and

incompatible with the mission of the University itself, and is at odds with the spirit of the

Welsh Language Scheme’ (Welsh Language Board, 2011: 85). This raises two separate

issues. Firstly, on the point of regulation the concern at the heart of investigation of the Board

was demonstrated to be unfounded. Secondly, the Board felt that it was appropriate that it

comment upon the ‘mission of the University’, a matter that was surely beyond the legitimate

interests of the Welsh Language Board.

With regard to its function as a regulatory body charged with the approval and

monitoring of Language Schemes across the piece it is significant that in the period between

26

2005-06 and 2008-09 the Board reported that it was not meeting its own targets with regard

to the approval and monitoring of Welsh Language Schemes. In the Board’s Annual Report

for 2005-06 it is explained that ‘We did not succeed in meeting the targets in full, mainly

because we were dependent in the co-operation of the relevant bodies’ (Welsh Language

Board, 2006: 87). The Board reported its performance in this area using almost the exact

same wording for the next three years, noting also that in 2007-08 and 2008-09 internal

staffing changes had affected the performance (Welsh Language Board, 2007: 79-80; 2008:

80; 2009: 85-6). Once again, the period around 2008-09 seems to be a watershed as from that

point onwards the Board exceeds all of its targets in this area (Welsh Language Board, 2010:

66; 2011: 70). If the previous analysis of the Board was correct then this would suggest that

the co-operation lacking previously had by now, somehow, been obtained. That in turn

suggests that the Board gained new credibility as a regulatory body in this period, even

though it had been made clear by the Welsh Assembly the course of that year that the Board

would shortly cease to exist and be replaced by a Welsh Language Commissioner. This

merits further examination by other means, such as interviews with key actors and the

analysis of pertinent documents.

Conclusions

In this paper we have set out the conceptual rubric for further interrogating language

ombudsmen, commissioners and regulators. The next steps will involve a series of in-depth

semi-structured interviews with pertinent policy actors in each of the fields of study along

with a robust examination of the complaint-handling function of each of the bodies studied,

including the detailed consideration of a number of completed, and thereby historical,

investigations. As is clear from our approach to defining the office of ombudsman, this will

entail developing a more complete philosophical understanding of language ombudsmen,

commissioners and regulators and this means setting them in the context of such bodies more

generally, thereby both drawing from and building upon work of Thompson et al (2008),

Buck et al (2011), Adler (2003), Halliday & Scott (2009), and Kirkham et al (2009). This, in

turn, opens up a range of substantial questions including with regard to the place of language

ombudsmen, commissioners and regulators in the constitution and the evolution of such

offices roles, methods and relationships as actors alongside the executive, the judiciary and

the legislature. These must be answered elsewhere. Our brief exploration of the approach of

three language bodies to complaints received suggests other, empirical, questions that have

27

implications for praxis. This is also a core issue for our research, after all the very purpose of

such bodies is to effect change for the better in the everyday lives of ordinary citizens.

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Appendices

33

Appendix One: British and Irish Ombudsman Association, Schedule 1 to the Rules,

Criteria for the recognition of ombudsman offices

A. Guiding principles

The Association will afford recognition as Ombudsman Offices to those bodies whose core

role is to investigate and resolve, determine or make recommendations with regard to

complaints against those whom the Ombudsman is empowered to investigate; and which meet

the detailed Criteria set out below.

The Association will only give recognition to Ombudsman’s Offices whose primary role is to

handle complaints by individuals about maladministration, unfair treatment, poor service or

other inequitable conduct by those subject to investigation.

The Association recognises and values the wide range of Ombudsmen schemes in the public

and private sectors and the variations in their constitution, jurisdiction, powers and

accountability. The Criteria for Recognition of Ombudsman’s Offices have been drawn up

with that in mind and the Association will apply the Criteria with sufficient flexibility to

encompass those variations.

The Association expects users of Ombudsman schemes in the public and private sectors to

have comprehensive and coherent coverage and clear and simple access to Ombudsmen and

will take account of this when considering applications for membership of the Association. In

the case of private sector schemes, the Association is opposed to the fragmentation of redress

schemes within a single industry. The Association prefers there to be a single Ombudsman

within an industry. Where more than one scheme is established within an industry, the

Association will normally only afford recognition to the scheme or schemes to which a

substantial number of firms in the industry belong.

Criteria

The Association’s Criteria for the Recognition of Ombudsman Offices are set out in

detail in Part B below. The five key Criteria are:

• Independence

• Fairness

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• Effectiveness

• Openness and transparency

• Accountability

B. Criteria

1. Independence

(a) The Ombudsman must be visibly and demonstrably independent from those whom the

Ombudsman has the power to investigate.

(b) The persons who appoint the Ombudsman should be independent of those subject to

investigation by the Ombudsman. This does not exclude minority representation of those

subject to investigation on the appointing body, provided that the body is entitled to appoint

by majority decision.

(c) The term of office should be of sufficient duration not to undermine independence. The

appointment should be for a minimum of five years. It may be subject to renewal but the

renewal process should not undermine or compromise the office holder’s independence.

(d) The remuneration of the Ombudsman should not be subject to suspension or reduction by

those subject to investigation, but this does not exclude their minority representation on the

body authorised to determine it.

(e) The appointment must not be subject to premature termination other than for incapacity

or misconduct or other good cause. The grounds on which dismissal can be made should

always be stated, although the nature of the grounds may vary from scheme to scheme. Those

subject to investigation by the Ombudsman should not be entitled to exercise the power to

terminate the Ombudsman’s appointment, but this does not exclude their minority

representation on the body which is authorised to terminate.

(f) The Ombudsman alone (or someone acting on his or her authority) must have the power to

decide whether or not a complaint is within the Ombudsman’s jurisdiction. If it is, the

Ombudsman (or someone acting on his or her authority) must have the power to determine it.

The Ombudsman’s determination should be final and should not be able to be overturned

other than by the courts or an appeal route provided for by law.

35

(g) Unless otherwise determined by statute the Ombudsman should be accountable to report

to a body independent of those subject to investigation, but this does not exclude their

minority representation on that body. That body should also be responsible for safeguarding

the independence of the Ombudsman.

2. Fairness

(a) The Ombudsman should be impartial, proceed fairly and act in accordance with the

principles of natural justice.

(b) The Ombudsman should make reasoned decisions in accordance with what is fair in all

the circumstances, having regard to principles of law, to good practice and to any

inequitable conduct or maladministration.

(c) In all cases where it is decided not to accept the complaint for investigation, the

Ombudsman should notify the complainant of that decision and the reasons for it.

(d) In all cases investigated, the Ombudsman should notify the parties concerned of the

decision and the reasons for it.

3. Effectiveness

(a) The office of the Ombudsman must be adequately staffed and funded, either by those

subject to investigation or from public funds, so that complaints can be effectively and

expeditiously investigated and resolved.

(b) The Ombudsman should expect those subject to investigation to have accessible and fair

internal complaints procedures.

(c) Accessibility

(i) The right to complain to the Ombudsman should be adequately publicised by those subject

to investigation.

(ii) Complainants should normally have direct access to the Ombudsman scheme. If,

exceptionally, this is prevented by law, the Ombudsman should seek to minimise the adverse

impact on complainants.

(iii) The Ombudsman’s procedures should be straightforward for

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complainants to understand and use.

(iv) Those complaining to the Ombudsman should be entitled to do so free of charge.

(d) Powers and procedures

The Ombudsman should:

(i) Be entitled to investigate any complaint made to the Ombudsman which is within the

Ombudsman’s jurisdiction without the need for any prior consent of the person or body

against whom the complaint is made. This does not preclude a requirement that before the

Ombudsman commences an investigation, the complainant should first have exhausted the

internal complaints procedures of the person or body being investigated.

(ii) Save as otherwise provided by law, have the right to require all relevant information,

documents and other materials from those subject to investigation.

(iii) Be entitled but not obliged, to disclose to the complainant or to the person being

investigated such information, documents and other materials as shall have been obtained by

the Ombudsman from the other of them unless there shall be some special reason for not

making such disclosure, for example, where sensitive information is involved or disclosure

would be a breach of the law.

(e) Implementation of Decisions

Either

(i) Those investigated should be bound by the decisions or recommendations of the

Ombudsman; or

(ii) There should be a reasonable expectation that the Ombudsman’s decisions or

recommendations will be complied with. In all those cases where they are not complied with,

the Ombudsman should have the power to publicise, or require the publication of such

noncompliance at the expense of those investigated.

4. Openness and transparency

(a) The Ombudsman’s Office should ensure openness and transparency so that members of

the public and other stakeholders know why the scheme exists, what it does and what to

37

expect from it; and can have confidence in the decision making and management processes of

the scheme.

(b) Information in the public domain should include a clear explanation of an Ombudsman

scheme’s legal constitution, governance and funding arrangements.

(c) The jurisdiction, the powers and the method of appointment of the Ombudsman should be

matters of public knowledge.

(d) The Ombudsman should be entitled in the Annual Report, or elsewhere, to publish

anonymised reports of investigations.

5. Accountability

(a) The Ombudsman, staff members and members of any governing body should be seen to be

responsible and accountable for their decisions and actions, including the stewardship of

funds.

(b) The Ombudsman should publish an Annual Report and Annual Accounts.

Appendix Two: International Ombudsman Institute, Bylaws, Article 2

Purpose and Principles

38

(1) The purpose of the IOI, whose activities are of a non-profit making nature, is to

contribute to

respect for human rights and fundamental freedoms,

adherence to the rule of law,

effective democracy,

administrative justice and procedural fairness in public organizations,

improving public services,

open and accountable government, and

access to justice for all

by promoting the concept and institution of ombudsman and encouraging its development

throughout the world.

(2) In pursuing this purpose, the IOI and its members recognize the following principles as

the expression of an International Ombudsman Standard and require observance of them by

any ombudsman institution:

a) it should be provided for by a Country, State, Regional or Local Constitution and/or an

Act of a Legislature, or by international treaty,

b) its role should be to seek to protect any person or body of persons against

maladministration, violation of rights, unfairness, abuse, corruption, or any injustice caused

by a public authority, or official acting or appearing to act in a public capacity, or officials

of a body providing devolved, partially or fully privatized public services or services

outsourced from a government entity, and which could also function as an alternative dispute

resolution mechanism,

c) it should operate in a climate of confidentiality and impartiality to the extent its governing

legislation mandates, but should otherwise encourage free and frank exchanges designed to

promote open government,

d) it should not receive any direction from any public authority which would compromise its

independence and should perform its functions independently of any public authority over

39

which jurisdiction is held,

e) it should have the necessary powers and means to investigate complaints by any person or

body of persons who considers that an act done or omitted, or any decision, advice or

recommendation made by any public authority within its jurisdiction has resulted in the kind

of action specified in paragraph 2 (b),

f) it should have the power to make recommendations in order to remedy or prevent any of

the conduct described in paragraph 2 (b) and, where appropriate, to propose administrative

or legislative reforms for better governance,

g) it should be held accountable by reporting publicly to a Legislature, or other elected body,

and by the publication of an annual or other periodic report,

h) its incumbent or incumbents should be elected or appointed by a Legislature or other

elected body, or with its approval for a defined period of time in accordance with the relevant

legislation or Constitution,

i) its incumbent or incumbents should only be dismissed by a Legislature or other elected

body or with its approval for cause as provided by the relevant legislation or Constitution,

and

j) it should have adequate funding to fulfill its functions.

Appendix Three: the United States Ombusdman Association, Characteristics of

ombudsman offices

The legislative model

40

In its effort to promote and encourage the establishment of ombudsman offices, the USOA

specifically promotes and encourages the establishment of offices that manifest the following

characteristics:

1. a governmental office created by constitution, charter, legislation or ordinance

2. an office with the responsibility to receive and investigate complaints against

governmental agencies

3. an office with freedom to investigate on its own motion

4. an office which may exercise full powers of investigation, to include access to all

necessary information both testimonial and documentary

5. an office with the authority to criticize governmental agencies and officials within its

jurisdiction and to recommend corrective action

6. an office with the power to issue public reports concerning its findings and

recommendations

7. an office directed by an official of high stature who

o is guaranteed independence through a defined term of office and/or through

appointment by other than the executive and/or through custom

o is restricted from activities constituting a personal, professional, occupational

or political conflict of interest

o is free to employ and remove assistants and to delegate administrative and

investigative responsibility to those assistants.

Appendix Four: Extract from Northern Ireland Ombudsman (2003) Memorandum -

House of Lords - Constitution - Written evidence, March 2003

[A]n Ombudsman is a unique type of regulatory authority, in that it is an autonomous

regulatory body and its authority derives from the law and it reports to the legislature. Given

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that its authority derives from the legislature, it can be seen as largely autonomous in that it

is impervious to the short-term concerns and plans of the executive (a fact reflected in how

the office is funded and resourced). The Ombudsman acts as an officer of a legislative body

or on behalf of the legislative body, and is independent of the organisations the Ombudsman

reviews. The Ombudsman is made a part of the legislative body to achieve functional and

political independence from the organisations or agencies the Ombudsman reviews; officials

who investigate complaints who are not independent of an agency they receive complaints

about may not act impartially but rather act to protect the organisation. The principal reason

the independence of Ombudsmen is closely guarded is to ensure that they are impartial. Their

findings and decisions are thus based on examination and analysis of the facts and law. They

must be independent and avoid even the appearance of serving the interests of the

organisations they investigate if complainants are to place credence and trust in the results of

their investigations. A key determinant of the development of trust in the Ombudsman process

is the degree of impartiality and procedural fairness displayed by the Ombudsman's office in

conducting its affairs. // In this important respect, the Ombudsman's office differs

significantly from other types of regulators that operate in the public domain: in the case of

regulators whose authority derives from control over appropriated funds and from proximity

to ministerial influence, they can be seen as executive regulators, in that they are regulating

on behalf of the government; whereas sector regulators are executive regulators but with

more clearly circumscribed authority, for example their remit being restricted to one

particular arena such as health, for instance. The Ombudsman has general jurisdiction in the

government that is broadly defined and not restricted to one agency or one particular type of

grievance. Ombudsmen with a broadly defined, general jurisdiction are not as subject to

pressure or influence as those with jurisdiction over only one agency or one type of

complaint. Their review process is made more credible by the breadth of their jurisdiction

because they can follow the investigation where the evidence leads.

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