'It’s been 24 years since the States were advised that Jersey needs an ombudsman. It’s time we had one'

Ted Vibert

By Ted Vibert

MANY people in Jersey who value fairness about the way government departments, as well as individuals in government, treat them, will be bitterly disappointed by the decision taken by the States not to proceed with the introduction of an ombudsman’s office to deal with their complaints.

They have scrapped the idea on the grounds of cost.

It was 24 years ago when the States were first advised that the people of Jersey should have such an official to protect citizens against acts of unfair treatment by public servants, government departments or States Members.

But, disgracefully, nothing has been done to implement this advice. As has often been the case in Jersey, if high-ranking and responsible public servants don’t want a piece of legislation to be implemented, especially one which might hold them to account, they will drag their feet until everyone forgets about it. Those who smile knowingly when watching the TV series Yes, Minister, where humorous fiction was often the fact, will know what I mean.

The concept of the ombudsman dates back to Sweden in 1713 when their then King Charles XII appointed a Supreme Royal Ombudsman, whose role was to keep an eye on his own royal officials to ensure that they were also observing his laws.

Then, in 1809, the position of ombudsman was removed from royal appointment in Sweden and included in the country’s new constitution. Many democratic countries around the world have now followed this excellent concept and incorporated this position into their own legal and constitutional frameworks.

The idea that Jersey should have a much-needed ombudsman came when Sir Cecil Clothier published his report in December of 2000 on the machinery of government in Jersey.

Sir Cecil, a prominent lawyer and a UK High Court judge, who had also been Britain’s first ombudsman for the Health Service and chair of the UK Police Complaints Tribunal, was engaged to head a panel of local people to undertake the review.

The panel was directed to examine and comment on whether “our machinery of government was presently subject to checks and balances sufficient to safeguard the public good and the right of individuals”.

The panel consisted of Sir Cecil Clothier KCB, QC; Sir Kenneth Bloomfield KCB; Professor Michael Clarke CBE, DL; John Henwood MBE; Dr John Kelleher; David Le Quesne; Anne Perchard; Colin Powell OBE and Sir Maurice Shock and could be described as the most intelligent, intellectual, and worldly group of people ever assembled to work on any project for the States of Jersey in our entire history.

This panel devoted a whole chapter of their report to the question: An Ombudsman for Jersey?

In this chapter, the Clothier panel outlined why they felt it important that Jersey should have an ombudsman. They said that “in most modern democracies provision is made for the citizen to complain about maladministration of his or her affairs by the various departments of government. The argument in favour of an ombudsman for Jersey is strengthened by the proposal to shift more of the administrative decision-making in the system to the civil service. The function of an ombudsman would help to relieve the States of many minor matters of complaint at present often the subject of lengthy debate.”

In their forward to their report, the panel quoted Edmund Burke, the prominent Anglo-Irish writer, politician and philosopher of the late 1700s, famous for many of his utterances such as “those who don’t know history are destined to repeat it” and “the only thing necessary for the triumph of evil is for good men to do nothing”. And they used his quotation “a state without the means of some change is without the means of its conservation” to illustrate the theme of their wide-ranging report, which resulted in Jersey changing its form of government by 24 committees to ministerial government and a Council of Ministers in 2000.

Clothier quoted another of Burke’s sayings, “that in any civilised state the citizen’s complaint must be listened to, adjudicated upon and a remedy supplied if the complaint is well-founded”.

On this issue, the panel recommended that readers “with the time and inclination” might like to read Burke’s Thoughts on the cause of the present Discontents of 1770 wherein they will find many reverberations in the Jersey of today”.

The panel made it clear that the role of an ombudsman was not to review the discretionary decisions of government properly arrived at, but to be concerned only with dilatory, incompetent or discourteous dealings with citizens’ affairs.

The panel pointed out that at the time, complaints of this nature were “supposed to be considered by an Administrative Appeals Board” composed of senior figures, some of whom had been prominent in government in earlier days. They could not consider any complaint unless it has been investigated and judged worthy of consideration by the States Greffier in his or her sole discretion.

“The investigative staff and powers available for this purpose seems to us to be very limited, which explains why the consideration of complaints is very slow indeed. But, of course the Greffier’s first priority is to serve the States and it seems to us unreasonable to expect him or her to undertake this burdensome task without substantial additional staff. If a complaint reaches the board and is upheld there is no satisfactory sanction which can be applied to the errant administrator or committee to oblige them to make amends.”

The panel concluded with this recommendation: “We consider these arrangements to be quite unsatisfactory. We recommend the institution of a proper ombudsman to hear complaints of maladministration by government departments. This would be a matter of little difficulty and no great expense. The ombudsman should be an independent person and endowed with powers to order the production of papers and files and to command the attendance of witnesses. If a finding is made in favour of the citizen and the responsible department does not volunteer to remedy the grievance, the power of compulsion should be with the States to whom the ombudsman reports and whose officer he is. The States should jealously guard the authority of the ombudsman if they find his report acceptable.”

The Clothier Panel concluded their section on the desirability of appointing an ombudsman for Jersey by saying that “the workload of a Jersey ombudsman could not, in the nature of things, be great and could be discharged by a part-time appointment.

“There could even be an ombudsman chosen, not only by Jersey, but by other of the Channel Islands just as there is a Channel Islands Court of Appeal for legal matters. We leave the choice to the States, remarking, however, that the agreement of Guernsey is not a pre-requisite to the creation of the office of Ombudsman for Jersey.”

We can only be left to wonder why so many of the recommendations in the Clothier Report were taken up but this one was completely ignored and allowed to simply fade away. So much for government by the people for the people.

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