Fairness Principles v. Legal Rights

The quintessential work of a parliamentary ombudsman requires the application of fairness principles to the decisions, actions and general conduct of the public service. These principles require that those decisions, actions and conduct be reasonable; consistent with law; just; and not oppressive or improperly discriminatory.

As a practicing lawyer for over twenty years, I am constantly reminded of the benefits of judicial and quasi-judicial avenues to determine citizens’ legal rights. These benefits include a structured procedure to determine legal rights; access to and the application of established precedents, a rich and sometimes codified body of principles to determine what evidence is available to the decision maker and the right to have detailed written reasons provided when legal rights are determined.

The practice of a parliamentary ombudsman affords citizens with a variety of benefits that are distinct from those available when seeking the determination of legal rights. They are:

Informality: But for making a complaint to the ombudsman’s office, there are no prescribed mechanisms for seeking redress against a government body. As legal rights are not being determined, there is no requirement for the strict application of the rules of evidence.

Flexibility: Ombudsman are not constrained by precedent. Each citizen complaint is assessed against fairness principles. Creativity, ingenuity and an appreciation of nuisance can all be realized through that assessment process.

Speed: The absence of the application of strict rules of evidence and precedent permits an ombudsman’s office quick access to decision makers and a focused and fast understanding of the issue in dispute and the pragmatic means for resolving it.

The applications of these fairness principles help ensure that the reasonable expectations of citizens with respect to their public bodies are met without incurring the weight of the judicial or quasi-judicial process.