Ombudsman (pronounced Om-buds-man) is a Swedish word which is derived from the Old Norse term umboðsmaðr meaning representative. Modern Ombudsmen trace the institution back to the first Swedish Parliamentary Ombudsman in 1809. There are much earlier examples in history of redress for individuals with grievances against official action.

Provisions for redress of official actions are neither new nor discovered by Europe. From ancient times there have been examples of officials who received complaints and were authorised to intervene and, where necessary challenge official actions to achieve fair outcomes. In ancient Egypt Pharaohs appointed complaint officers who were attached to the royal courts to hear grievances. The Mandarins of Imperial China established methods for the public to complain about official actions. The concept of redress is an aged one.

Following in the footsteps of the Swedish Parliamentary Ombudsman, which was established in 1809, the Parliamentary Ombudsman institution has been adopted by governments around the world over to address the complaints of government maladministration from citizens.

Borrowing the idea from the Ottoman Empire, the Swedish King appointed a high level official in 1712 to keep an eye on royal courtiers whilst he travelled. This role evolved into the first fully independent modern Ombudsman in 1809. The idea has spread in the last 30 years – today there are over 190 international, national, regional and local Ombudsman institutions from over 100 countries that are members of the International Ombudsman Institute which is the only global organisation for the cooperation of ombudsman institutions worldwide.

In 2001 an amendment to the Bermuda Constitution Order 1968 created an Office of the Ombudsman. Chapter VI A, Section 93A of the Bermuda Constitution 1968 sets out that:

• the Ombudsman is appointed by the Governor after discussion with the Premier who will first consult with the Opposition Leader; and
  in the duties of the Ombudsman's job, the Ombudsman is not under the management or control of anyone or authority.
• For the Office of the Ombudsman to open its doors and start receiving complaints from the public the Legislature passed an act setting out its functions and powers.

In 2004 the Governor gave ascent to the Ombudsman Act 2004 and in August 2005 Arlene Brock was appointed the first Ombudsman. The Office of the Ombudsman opened in 2005 with its official opening in January 2006.

The constitutional status of the Ombudsman is important for protecting the Ombudsman's independence. The Office of the Ombudsman can only be abolished by an amendment to the Constitution. An act of Parliament is not sufficient to dismantle the Office. In Bermuda an amendment to the Constitution requires an Order in Council of the UK Government.

The salary of the Ombudsman is charged to the Consolidated Fund (s.4 Ombudsman Act 2004). The funds required for the salaries of the officers employed by the Office and all of the Office's other expenses are paid out of moneys appropriated by the Legislature as part of the Bermuda Government's annual budget process (s.23 Ombudsman Act 2004).

The appointment of the Ombudsman is made by the Governor under Section 93A(1) of the Bermuda Constitution Order 1968.

The post of the Ombudsman is advertised and the Governor organises an ad-hoc advisory panel, chaired by the Deputy Governor, to consider applications ("Advisory Panel").

The Advisory Panel reviews the applications on the basis of the key elements for the job and produces a short list of candidates for interview. At interview the Advisory Panel asks each shortlisted candidate a series of questions related to the following competencies: analysis & decision making; management & leadership; communication skills; negotiation & mediation skills; civil service knowledge; and administration and legal knowledge.

Having marked the candidates against these competencies the Advisory Panel recommends a final selection of candidates to the Governor, whom the Governor meets individually. Thereafter the Governor, acting after consultation with the Premier, who would have consulted the Opposition Leader, makes his decision. The appointment of the new Ombudsman is announced and is made by instrument under the Public Seal.

The Ombudsman Act 2004 is the Ombudsman's governing legislation. It sets out the functions, powers and responsibilities of the Ombudsman. Unlike the Bermuda Constitution Order 1968, this is an act of Parliament and can be amended by the Legislature. There have been no amendments to the Ombudsman Act 2004.

The Ombudsman may investigate administrative actions taken by a public authority. Administrative actions include the following:

• administrative decisions, acts, recommendations;
• failure to do an act or make a decision or recommendation; and
• failure to provide reasons for a decision or action (s.2 Ombudsman Act 2004).

Under the Ombudsman Act 2004 the Ombudsman will determine if there is evidence of maladministration. Section 2 of the Ombudsman Act 2004 set out the types of maladministration the Ombudsman can investigate which includes:

• unreasonable delay;
• abuse of power (including discretionary powers); and
• actions which are:
  • inefficient, bad or improper;
  • contrary to law;
  • based on mistakes of law or fact;
  • based on irrelevant grounds;
  • unfair, oppressive, improperly discriminatory or based on arbitrary procedures; or
  • negligent

The Ombudsman reviews administrative actions of all Government departments and boards, public authorities, other bodies established by the Bermuda Legislature or a cabinet minister or bodies whose revenues or fees derive from money provided or authorized by the Bermuda Legislature (s.3 Ombudsman Act 2004).

The Ombudsman investigates administrative action of an authority:

• pursuant to a specific complaint; or
• on her own motion – notwithstanding that no complaint has been made – where there are reasonable grounds to carry out an investigation in the public interest (s.5 Ombudsman Act 2004).

 

The Ombudsman may not investigate:

• until existing procedures or appeals have been exhausted unless she determines that it was not reasonable for the Complainant to have resorted to such procedures (s.6 Ombudsman Act 2004); or
• those matters listed in the Schedule to the Ombudsman Act 2004.

 

The Schedule to the Ombudsman Act 2004 lists administrative actions that the Ombudsman may not investigate:

• actions that may not be inquired into by any Court;
• actions taken by Cabinet, Ministers or Junior Ministers;
• the pardon powers of the Governor;
• actions taken for the purposes of investigating crime or protecting the security of Bermuda; and
• the conduct of proceedings before a court of law or tribunal; and
• Government personnel and employment matters.

Complaints may be made orally, electronically or in writing by a person aggrieved (or other suitable person) about actions that occurred within the last 12 months (or actions that the complainant became aware of in the last 12 months) (s.7 Ombudsman Act 2004).

Persons detained or confined in an institution are entitled to be given a sealed envelope to write to the Ombudsman (s.7 Ombudsman Act 2004).

The Ombudsman may make preliminary inquiries to determine whether to formally investigate a complaint, mediate a dispute or decline to investigate the complaint (ss. 8 & 10 Ombudsman Act 2004).

The Ombudsman may decide not to investigate if:

• the Complainant knew of administrative action more than one year before making the complaint;
• existing law or administrative procedure provide an adequate remedy and there is no reasonable justification for the Complainant not to have availed himself of the remedy; or
•  the complaint is frivolous, vexatious or not made in good faith or has been settled. (s.9 Ombudsman Act 2004).

After notifying the authority of the intent to investigate, the Ombudsman may obtain information from such persons and in such manner as she considers appropriate, including inspecting premises, summoning persons and examining them under oath (ss. 11–13 Ombudsman Act 2004).

Any obstruction of the Ombudsman in the performance of her functions constitutes the offence of Contempt of Court. Also intentionally making a false or misleading statement to the Ombudsman is an offence (ss. 25 & 26 Ombudsman Act 2004).

All information given to the Ombudsman is privileged. It is not a breach of any relevant obligation of secrecy to provide information to the Ombudsman. No person may be penalised or discriminated against in their employment for complaining or giving information to the Ombudsman (s.14 Ombudsman Act 2004).

A whistleblower is protected under the Good Governance Act 2011 and the Employment Act 2000 if she provides confidential information to the Ombudsman.

The Ombudsman and her staff must maintain secrecy and cannot be called to give evidence in any Court proceedings in respect of anything coming to their knowledge in the exercise of their functions (ss. 20 & 21 Ombudsman Act 2004).

If at the conclusion of an investigation the Ombudsman decides there is evidence of maladministration she can make such recommendations as she sees fit including that an omission be rectified, decision be cancelled or altered, reasons be given, practice or course of conduct be altered and an enactment be reviewed (s.15 Ombudsman Act 2004).

Within 20 days of receiving the Ombudsman's recommendation, an authority must notify her of any actions taken or proposed to be taken to give effect to the recommendation. The authority may also give the Ombudsman reasons for failing to implement her recommendation. She may submit a Special Report to Parliament if she deems the response is inadequate or inappropriate (s.16 Ombudsman Act 2004).

The Ombudsman submits an Annual Report as well as any Special Reports to the Speaker of the House of Parliament with a copy to the Governor and a copy to the President of the Senate. These reports are also made available to the public through our website in our Publications section, at our office and in the Bermuda National Library. The Ombudsman may not make any adverse statements about an authority or person in her reports without giving the authority or person an opportunity to be heard (ss. 17 & 24 Ombudsman Act 2004).

From time to time the Ombudsman may release a media statement on a matter she seems to be of importance or may make a presentation to a community organisation, a school or an authority within her jurisdiction

Bermuda Constitutional Order 1968 Chapter VI A, Section 93A of the Bermuda Constitution 1968 provides:

• The Ombudsman is appointed by the Governor, after discussion with the Premier who will first consult with the Opposition Leader.

• The Governor can remove the Ombudsman from office for inability to perform the functions of the office, misbehaviour, or engaging in any other unapproved job.

• In the duties of the Ombudsman’s job, the Ombudsman is not under the management or control of anyone or authority.

The Ombudsman may investigate the following:

• managerial decisions, acts, recommendations;
• failure to perform an act or make a decision or recommendation; and
• failure to provide reasons for a decision or action. (Section 2)

  The Ombudsman determines if there is evidence of “maladministration” which includes (but is not limited to) actions that are: inefficient, inappropriate, improper, unreasonable delay, abuse of power (including discretionary), contrary to or mistake of facts, irrelevant grounds, unfair, oppressive, improperly discriminatory, unreasonable procedures, and negligent.  (Section 2) The Ombudsman reviews administrative actions of Government departments and boards, public Authorities and other bodies established by Parliament or a Minister or whose funding is received from money provided or authorized by Parliament. We refer to all bodies within the Ombudsman’s jurisdiction as “Authorities”. (Section 3) The salary of the Ombudsman is charged to the Consolidated Fund. (Section 4) The Ombudsman can investigate administrative action of an authority under two circumstances:

1. further to a specific complaint; or
2. on the Ombudsman’s own initiative – notwithstanding that no complaint has been made – where there are reasonable grounds to carry out an investigation in the public interest; and (Section 5)

  The Ombudsman may not investigate until the Complainant exercises any existing procedures. However, if the Ombudsman determines that it was not reasonable for the Complainant to have used such procedures she may pursue an investigation. The Ombudsman cannot investigate those matters listed in the schedule of the Act, namely:

• Administrative actions that may not investigated into by the Courts;
• Actions taken by Cabinet, Ministers or Junior Ministers;
• Pardon power by the Governor;
• Action taken for investigation of crime or security of Bermuda;
• Conduct of proceedings before a court of law or tribunal;
• Human Resources and employment matters. (Section 6)

  Complaints may be made orally (walk-ins or by appointment), email, or in writing within the last 12 months. (Section 7) Prisoner officers are required to give prisoners a sealed envelope and other materials necessary to write to the Ombudsman. (Section 7) The Ombudsman may ask informal questions of the Authority before an investigation or mediation. (Section 8 & 10) The Ombudsman may decide not to investigate if:

• the Complainant knew of the administrative action complained of    more than one year prior to the complaint; or
• current law or administrative procedure provide a sufficient solution and there is no reasonable explanation for the Complainant not to have benefited himself/herself of the solution; or
• the complaint is little weight, vexatious or not made in good faith or has been settled.(Section 9)

  After informing the Authority of her intent to investigate, the Ombudsman may obtain information from individuals in a manner as she considers appropriate, including inspecting premises, calling upon witnesses and examining them under oath. (Section 11-13) All information given to the Ombudsman is confidential. It is not a violation of any agreement of secrecy to provide information to the Ombudsman. No one will be penalized or discriminated against in their job for complaining or giving information to the Ombudsman. (Section 14) The Ombudsman investigates to determine if maladministration has happened. Once the investigation is complete the Ombudsman informs the Authority of her findings in writing. If the Ombudsman finds maladministration, she makes recommendations for improvements. (Section 15) The Ombudsman makes recommendations as she sees fit including that an omission be corrected, decision be cancelled or altered, reasons be given, practice or course of conduct be altered and an order be reviewed. (Section 15) Within 20 days of receiving the Ombudsman’s recommendations, the Authority must notify her of action taken or proposed to give effect to the recommendations or reasons for the failure to implement them. She may submit a Special Report to Parliament if she deems the Authority’s response to her recommendations inadequate or inappropriate. (Section 16) The Ombudsman submits an Annual Report and any Special Report to the Speaker of the House of Parliament with a copy to the Governor and a copy to the President of the Senate. The Ombudsman may not make any hostile statements in reports without giving the Authority an opportunity to be heard. (Section 17 & 24) The Ombudsman and staff must maintain secrecy and are exempted from giving evidence concerning complaints made to our Office in Court proceedings. (Section 20 & 21) Any obstruction of the Ombudsman in the performance of her duties commits the offence of Contempt of Court. Deliberately misleading or false statements to the Ombudsman or staff are offenses answerable in Magistrates’ Court. (Section 25 & 26)   Dr. Nelson Mandela stated in 2000: “It was to me never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and office and judged against it. One of the first judgments of our Constitutional Court, for example, found that I, as President, administratively acted in a manner they would not condone. From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly, the Public Protector [Ombudsman] had on more than one occasion been required to adjudicate in such matters.”