Ombudsman as a Global Institution: Transnational Governance and Accountability (Public Sector Organizations) 3030326748, 9783030326746

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PUBLIC SECTOR ORGANIZATIONS

Ombudsman as a Global Institution Transnational Governance and Accountability

Tero Erkkilä

Public Sector Organizations Series Editors B. Guy Peters Department of Political Science Pittsburgh University Pittsburgh, PA, USA Geert Bouckaert Public Management Institute Katholieke Universiteit Leuven Leuven, Vlaams Brabant, Belgium

Organizations are the building blocks of governments. The role of organizations, formal and informal, is most readily apparent in public bureaucracy, but all the institutions of the public sector are comprised of organizations, or have some organizational characteristics that affect their performance. Therefore, if scholars want to understand how governments work, a very good place to start is at the level of organizations involved in delivering services. Likewise, if practitioners want to understand how to be effective in the public sector, they would be well-advised to consider examining the role of organizations and how to make organizations more effective. This series publishes research-based books concerned with organizations in the public sector and covers such issues as: the autonomy of public sector organizations; networks and network analysis; bureaucratic politics; organizational change and leadership; and methodology for studying organizations. More information about this series at http://www.palgrave.com/gp/series/14525

Tero Erkkilä

Ombudsman as a Global Institution Transnational Governance and Accountability

Tero Erkkilä Political Science, Faculty of Social Sciences University of Helsinki Helsinki, Finland

Public Sector Organizations ISBN 978-3-030-32674-6    ISBN 978-3-030-32675-3 (eBook) https://doi.org/10.1007/978-3-030-32675-3 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This book explores the ombudsman as a global institution. The ombudsman has spread all over the world and its institutional development has also become global, meaning that its existence nationally is involved in transnational processes shaping the institution. Initially an institution of administrative law, a legal overseer, the ombudsman has increasingly been framed as a human rights institution and institution of good governance. These ideational shifts have not only influenced the global diffusion of the office of ombudsman but also the way in which the institution functions in the countries where it has existed for a longer period. In this book I explore the institutional development of the ombudsman, highlighting transnational ideas, discourses and “models” linked to this global institution. These ideational models are accommodated by a historical narrative on the global diffusion of the ombudsman shared by policy actors when they discuss the institution and how it should work. The global models are hence a source of organizational ideas, legitimacy and sense of orientation for actors, but such organizational blueprints also fit local institutions differently working as mechanisms of inclusions and exclusions. This study further highlights the ombudsman’s role as an institution of public accountability and its relationship with citizens and the public sphere, as well as the potential politicization of the ombudsman that also concerns its institutional development. My initial interest in the ombudsman institution is linked to my previous research on government transparency, another global institution of accountability. When teaching classes on institutional theory, I used the ombudsman institution as an empirical example that helped to demonstrate v

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various aspects of the so-called new institutionalist theories. Over time, I accumulated material and, more importantly, started to discern a narrative in the institutional development of the ombudsman that was discussed in class: its global diffusion, evolution over time, path dependencies, critical junctures and change, as well as the role of actors in this. Hence this book was conceived based on my exchanges with various students that I had the privilege to teach over the years at the University of Helsinki. I would like to thank all my students for their interest in the topic and for their comments and constructive critique. As this is a project that has developed over some ten years, I have come to rely on the help of various people who have assisted me with the research. I would wish to thank Caroline Bhattacharya, Jaakko Hillo, Leo Aarnio, Emma Japisson and Juho Mölsä for excellent research assistance without which this book would not have been completed. I also thank my interviewees and other contacts at the office of the Finnish Parliamentary Ombudsman, the Chancellor of Justice of Finnish Government, the European Ombudsman, the Council of Europe and the European Parliament for all their help and insight. I would also like to thank Niilo Kauppi with whom I previously co-authored a book chapter on the European Ombudsman where some of the themes developed in this book were discussed. The book is part of the Policy Instruments and Global Governance: Concepts and Numbers research project that has been funded by the Academy of Finland (Grant Number 268181). In addition to the colleagues mentioned above, I thank Ossi Piironen, Jemima Repo, James Mittelman, Salla Huikuri and Taavi Sundell for joining me on this research venture. Thanks also to Mark Waller for language editing. I also had the pleasure to work with Jemima Warren and Oliver Foster, my editors at Palgrave Macmillan. Most importantly, I thank my family for their love and support. Helsinki, Finland

Tero Erkkilä

Contents

Part I Global Institution   1 1 Ombudsman as a Global Institution  3 2 Transnational Governance and Global Diffusion of the Ombudsman Institution 21

Part II Ombudsman in Finland  65 3 Institutional History of the Ombudsman and Chancellor of Justice in Finland 67 4 The Finnish Parliamentary Ombudsman, the Chancellor of Justice and Institutional Change 97

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Part III European Ombudsman 141 5 European Ombudsman as a Supranational Institution of Accountability143 6 The European Ombudsman and Institutional Change175

Part IV Conclusion 207 7 Global Organizational Model and Institutional Change of Ombudsman209 Index227

List of Figures

Fig. 2.1 Fig. 2.2 Fig. 2.3 Fig. 2.4 Fig. 3.1 Fig. 3.2 Fig. 3.3 Fig. 3.4 Fig. 3.5 Fig. 3.6 Fig. 4.1 Fig. 4.2 Fig. 4.3 Fig. 4.4 Fig. 4.5 Fig. 4.6 Fig. 5.1

Global spreading of ombudsman institutions or similar complaint handling bodies 28 GDP and quality of governance scores by adoption of ombudsman or similar complaint handling body 38 Global spreading of ombudsman institutions or similar complaint handling bodies and freedom of information laws 43 Democracy and ombudsman or similar complaint handling body (grouped by year of adoption) 50 Ombudsman and Chancellor of Justice cases, 1920–2017  72 Difference between cases of Ombudsman and Chancellor of Justice (1920–2017) 74 Number of Ombudsman cases and decisions, 1990–2017  81 Ombudsman staff, 1983–2004 82 Reference to human rights, fundamental rights and good governance in decisions of the Ombudsman, 1993–2014 84 Finnish Parliamentary Ombudsman cases by traditional and digital means of filing, 1998–2008 87 Ombudsman decisions by administrative domain in 2016 102 Complaints to the Chancellor of Justice by administrative domain in 2016 103 Complaints and media coverage of the Ombudsman by month, 2016–2018105 Measures taken by the Ombudsman, 2005–2017 108 Measures taken by the Chancellor of Justice 109 Inspections and visits by the Ombudsman, 2001–2017 116 The European Ombudsman’s total number of complaints, the number of complaints that are within the mandate of the ix

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List of Figures

Ombudsman and the number of decisions following inquiry (1995–2017)154 Fig. 5.2 European Ombudsman: complaints and opened inquiries by country of origin in 2017 157 Fig. 5.3 Committee on Petitions, cases 2000–2016 162 Fig. 5.4 European Court of Human Rights, cases and decisions 1990– 2017164 Fig. 6.1 European Ombudsman staff, 1995–2017 187 Fig. 6.2 Budget of European Ombudsman (in euros), 1996–2016 188

List of Tables

Table 2.1

Adoption of ombudsman institution by year and region (year when legislation came into force) 26 Table 2.2 Global adoption of information access laws (year when legislation came into force) 42 Table 5.1 Citizens’ awareness of European institutions 155 Table 5.2 Inquiries closed by the European Ombudsman in 2017 by subject158

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PART I

Global Institution

CHAPTER 1

Ombudsman as a Global Institution

The ombudsman institution has had a remarkable global history. This early nineteenth-century Swedish institution of government control has, at least in name, spread to almost all corners of the world. The ombudsman was initially an institution of administrative law, a legal overseer, but has increasingly been framed as a human rights institution and institution of good governance. These ideational shifts have influenced the global spread of the office of ombudsman, but also the way in which the institution functions in the countries where it has been in place over a longer period. The institution has also spread to a supranational level in the European Union. The ombudsman has had many variations and there are a number of classifications that try to specify its different types (Abedin 2011; Ayeni 2014; Carl 2012; Bousta 2007; Reif 2004). The institution is often understood as a legal overseer, a typical perception in the Nordic countries (Hidén 1973), as a mediator (Klein 1976), an institution of conflict resolution (Abedin 2006) and guardian of human rights and good governance (Ayeni 2014; Reif 2000). Existing scholarship on the ombudsman has looked it as an institution of (global) administrative law and accountability (Hertogh and Kirkham 2018; Vogiatzis 2017; Kucsko-Stadlmayer 2008; Remac 2014; Hofmann and Ziller 2017). There are also comparative analyses of the institution and its historical evolution in different contexts (Reif 2004; Remac 2013). The ombudsman has been studied as a global “policy innovation” (Bennett 1997), and the literature on the global © The Author(s) 2020 T. Erkkilä, Ombudsman as a Global Institution, Public Sector Organizations, https://doi.org/10.1007/978-3-030-32675-3_1

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­ iffusion of the ombudsman highlights the UN’s coordination on National d Human Rights Institutions (NHRIs) since the early 1990s (Koo and Ramirez 2009; Cardenas 2003, 2014; Goodman and Pegram 2011; Reif 2004), related to the global adoption of human rights norms (Finnemore and Sikkink 1998; Risse and Sikkink 1999; Sikkink 2011; Risse et al. 2013). This book explores the institutional development of ombudsman, highlighting the importance of transnational ideas, discourses and “models” linked to this global institution, the context of ombudsman’s institutional evolution and transformation, the inter-institutional setting of the ombudsman, including its institutional peers and rivals, and the role of actors in establishing, institutionalizing and changing the ombudsman institution over time. In addition, the book highlights the ombudsman’s role as an institution of public accountability and its relationship with the “public” in different modalities of the concept. Finally, the book also explores politicization of the ombudsman, particularly in attempts to revise and reinterpret the mandate of the institution as well as due to potential political disputes related to cases pursued by the ombudsman. This book examines the ombudsman as a global institution in two respects. First, the institution has spread globally, covering all regions and most of independent states. Building on the existing literature on the ombudsman institution and scholarship on human rights, I outline the institution’s different phases and patterns over time. Second, the book further argues that along the spreading of the institution also its institutional development has become global, meaning that its national instances are increasingly involved in transnational processes, where the institution is being shaped. Indeed, it has become commonplace to discuss it as an ombudsman “model” (Carl 2018). The ombudsman has become a prominent global model for a NHRI, as defined in 1993 by the so-called Paris principles of the UN. In many ways it provides a global blueprint or policy prescription that countries have duly adopted. These ideational influences also concern the nation states that adopted the ombudsman institution already before it started to become a global norm and attribute of the modern state. Transnational governance concerning the ombudsman institution involves actors and ideas on a global and local level and the interaction between them, and facilitating institutions and venues such as international networks, conferences, professional organizations and news media. This can also involve a bottom-up process of learning and sharing ideas horizontally among similar entities. It is also important to note that

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c­itizens increasingly share the global perspective on these institutions, being able to bring their cases to various actors at the European and even UN level.

Research Design This book explores the transnational governance and diffusion of ombudsman as well as its institutional development and conceptual changes in Finland and the European Union (the European Ombudsman). I explore the evolution of transnational policy model of ombudsman and its ideational shifts, corresponding with different phases in the global spreading of ombudsman. I also discuss the role of international actors—such as the United Nations, the World Bank, the Council of Europe, the European Union as well as global and regional ombudsman associations—that facilitate the diffusion of ombudsman institutions and craft global “models” for them. I emphasize the role of actors in translating and editing the transnational policy ideas on local level shaping the institution (Sahlin and Wedlin 2008). The first case covers the institutional history of ombudsman in Finland, the first country to adopt the institution from Sweden, already in 1919. Initially a legal overseer, the Finnish Parliamentary Ombudsman has since then become the guardian of human rights and, more recently, an institution of good governance. These conceptual shifts have greatly influenced its institutional development. The transnational policy ideas related to it have helped local actors promote the ombudsman on a national level, making it an influential institution of government control that is also embraced by citizens who actively exercise their right to complain about the lawfulness of public governance. The long institutional history and availability of historical data (annual reports and time series) on the Finnish Parliamentary Ombudsman makes this an interesting case for analysing some 100 years of institutional history after its adoption. The Finnish Parliamentary Ombudsman also has a rival institution—the Chancellor of Justice—making Finland an interesting case in terms of the adoption and co-existence of institutions of public accountability. The second institutional case focuses on the European Ombudsman. As most independent states have adopted the ombudsman institution, it has now also reached the level of supranational governance. Adopted in

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1995, the European Ombudsman has profiled itself as an institution of good governance. This is a deliberate strategy to promote the institution in the EU’s inter-institutional setting. The global policy script of good governance coincided with the establishment of the European Ombudsman and resonated with the crises facing EU governance at the time. But while the European Ombudsman has been influential in promoting good ­governance on its own initiative, it has had rather less of an impact concerning the complaints of EU citizens, which mostly fall outside the competencies of the institution. However, the conceptual shift towards individual “rights” has nevertheless influenced the institutionalization of Ombudsman, as the EU citizen’s right to complain to the Ombudsman was further acknowledged in the Lisbon Treaty and Charter of Fundamental Rights. The section on the European Ombudsman examines a process in the global diffusion of the ombudsman, where the institution has been adopted on a supranational level, but also shows the bottom-up diffusion of institutional ideas. These ideas are also carried from one context to another and the holders of the position of European Ombudsman coming from different EU member states also act as change agents and carriers of ideas. Here, national models and transnational policy ideas meet uniquely. The EU has also been active in promoting the ombudsman model in Europe and globally. The case of the European Ombudsman exposes the limitations of the ombudsman as an accountability measure that depends on citizens and the public sphere, as these categories face challenges in the EU’s supranational context. The institutional cases I have selected for this study highlight the ideational aspects, inter-institutional setting and role of actors in the establishment and institutional evolution of the ombudsman. Despite their differences, both institutional cases highlight the importance of global discourses and models. The inter-institutional setting and institutional boundary work is also apparent in both cases. Moreover, the cases I examine underscore the importance of actors and even come together in the biography of Jacob Söderman, who was the Finnish Parliamentary Ombudsman and later became the first European Ombudsman, being apparent in the institutional strategies of these two institutions. The two institutional cases also concern us because they are both being “renegotiated” (Thelen 2004, 34–35) under recent initiatives to revise their mandates. This also highlights the role of global institutional models involving the ombudsman institution and their transnational communication.

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Theory and Methodology I analyse the institutional development and transnational governance of the ombudsman as a reflexive process, where its models are being crafted and promoted globally, while translated by local actors and conditioned by an institutional context. Theoretically, this work merges institutional analysis and conceptual history, highlighting their complementary characteristics in understanding institutional development in transnational governance. The book contributes to the scholarship on the ombudsman institution by highlighting it as a global institution that now involves transnational coordination that advances through debates on “models”. The perception of different ombudsman models goes further than to merely describe the institution and link it to discourses of human rights and good governance: it implies a certain political imaginary of global administrative law and spreading of related institutional forms, containing a strong element of historical narrative on the diffusion of the institution and its contextual evolution. This makes its different institutional variants appear as blueprints for comparing and adopting institutional ideas (cf. Meyer et al. 1997; Koo and Ramirez 2009). This perspective also highlights the ideational changes and policy actors’ role in editing and translating global policy scripts (Schmidt 2010; Alasuutari et al. 2015), including their capacity to promote them in their own institutional context (Mahoney and Thelen 2009). I also draw attention to the context of institutional change and evolution (Thelen 2004; G. B. Peters et al. 2005; B. G. Peters 2001; Krasner 1984), related conceptual changes (Koselleck 2004; Skinner 1969), as well as the intra-­ institutional setting and the ombudsman’s boundary work vis-à-vis its institutional peers and rivals (Erkkilä and Kauppi 2017; Gieryn 1983). Transnational Governance and Institutional Models The new institutionalist framework provides insights for understanding both continuity and change that we can observe in the institutional history of the ombudsman, which is in many ways characterized by distinctive institutional trajectories and path dependencies (cf. Mahoney 2000; Pierson 2004) and institutional evolution (Mahoney and Thelen 2009; Thelen 2004). My analysis mainly draws on sociological institutionalism, which explores the mechanisms for the global diffusion of institutional forms. In highlighting cultural aspects of this development, scholars have

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described this as a rationalization process, related to access to education, the use of scientific knowledge and the shared norms on the rights of individuals (Meyer et al. 1997; Bromley and Meyer 2015). Previous research on world society and human rights has concerned the global acknowledgement of rights of individuals (Elliott 2007), their appearance in constitutional texts (Beck et  al. 2012), the process of acquiring women’s voting rights (Ramirez et  al. 1997) and the global spread of National Human Rights Institutions such as the ombudsman (Koo and Ramirez 2009). This scholarship has uncovered the mechanisms through which international organizations come to influence nation states by defining global models that are normatively appealing to states that wish to fulfil the attributes of a modern state, be it respect for individual rights, rule of law, democracy, education of citizens or economic performance. The diffusion of institutional practices also often comes about with the help of international accrediting agencies that grade different countries and grant them accreditation status of international relevance. This is attractive for countries that wish to fulfil such standards that carry prestige and legitimation with them (Meyer et al. 1997). The diffusion of ombudsman institution fits in well with the standard narrative of world society theorizing, as critical turning points in the global spreading of the institution have been linked to the United Nations’ work to establish the criteria for NHRIs and monitor nations’ compliance for them (Koo and Ramirez 2009; Cardenas 2014). This development has depicted the existing ombudsman institutions as models for adopting a NHRI that complies with the new global norms for nation states. But the existing ombudsman institutions are also compelled to reflect on the global policy scripts that concern their activities. Consequently, the countries that already have the institution in place are also affected by the global convergence of human rights norms. However, to understand the changes on an institutional level, we also need to take into account the local institutional and ideational context as well as the actors. The global policy scripts are interpreted and edited so as to fit the local institutional terrain and prevailing cultural norms (Sahlin and Wedlin 2008), reflecting the motivations of local policy actors and elites that often use transnational institutional models and policy ideas as epistemic capital for promoting their agendas (Alasuutari et al. 2015). The previous research even points to the bounded rationality of the global spreading of institutional forms, leading to decoupling of the policy script

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and its implementation in a given country as this might not fully serve the original purpose of the adopted institution (Cole and Ramirez 2013). This calls for a detailed analysis of the ideas and concepts involved and how they are linked to existing norms and narratives. But when tracking actual institutional transformations of policy discourse, it is equally important that we acknowledge the context of change, the types of institutional transformation that might also be evolutionary, as well as the process whereby consensus is reached concerning the cognitive ideas behind a transnational policy discourse. Discourse, Concepts and Institutional Change Discursive institutionalism complements historical institutionalism (Schmidt 2008) by analysing the ideational aspects of institutionalization and institutional change in a given context. This framework provides the means for assessing the role of actors in a process of consensus formation concerning the “belief systems” or “truths” contained in policy change. While ideational change does not necessarily result in institutional change, discursive institutionalism acknowledges that new ideas are a potential cause of change and seeks to analyse the conditions and context where ideational changes lead to institutional transformations as well as the process where these changes come about (Schmidt 2006, 114, 2010). The global travelling of the ombudsman institution and concept is truly fascinating. But instead of assuming the ombudsman travelling on a well-­ formed concept (Sartori 1970), we might also be witnessing the diffusion of a meta-concept (cf. Marcussen 2005), where the countries adopt an idea of the ombudsman and not the ombudsman idea. In fact, as I will discuss in Chap. 2, the institution seems to be travelling globally on the vagueness of an ombudsman concept that allows different countries to adopt the institution while the actual functionality of ombudsman in different countries varies a great deal. The ombudsman institution has been shifting between the semantic fields (Koselleck 2004) of administrative law, human rights and good governance. This also helps to understand the different eras of its adoption, functions that the ombudsman has obtained in its new contexts, as well as the motivations for adopting it. These conceptual shifts have also influenced its institutional development, as the empirical cases reveal. Discursive institutionalism can help us to understand these changes, bridging the debates on institutional diffusion and institutional change of ombudsman.

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Discursive institutional change often assumes a juncture or discontinuity of governance (Marcussen 2000; Schmidt 2008), implying also political conflict (G.  B. Peters et  al. 2005). Institutionalized ideas are highly resistant to change (Marcussen 2000, 17). But once these ideational patterns are delegitimized or disconfirmed, they can change rapidly. This usually happens after a crisis or critical juncture, when there is an ideational vacuum or uncertainty during which policy actors search for new institutional ideas and models (Marcussen 2000; Schmidt 2002; Blyth 2002). The institutional cases discussed in this book highlight crisis and critical junctures of governance as context of institutional change. The role of actors is emphasized as carriers of knowledge and subjects of socialization (Marcussen 2000; Sahlin-Andersson and Engwall 2002), but they also have a significant role in policy coordination, where shared discourses are important in sharing normative and causal beliefs (Schmidt 2002, 211; Haas 1992). Policy actors’ ideational consensus over transnational policy scripts and institutional models is essential in the diffusion of policy ideas. These new ideas are often communicated through a policy discourse, which entails new causal beliefs (Schmidt 2002, 210–11; Bacchi 1999). But apart from coordinating ideas among policy actors, policy discourses also help to communicate the related institutional changes to the public (Schmidt 2002, 230–31). Schmidt’s work on policy coordination describes the communication of policy innovations in “public sphere” and “policy sphere” (Schmidt 2006, 254). Schmidt’s division to “coordinative” and “communicative” discourse (Schmidt 2002, 230–31) is particularly important in understanding the ideational and institutional changes of the ombudsman. The purpose of coordinative discourse is to explain and disseminate the new policy ideas to members of a policy community. The purpose of communicative discourse is simply to explain and legitimize a policy or institution to the general public. Schmidt further differentiates between simple and compound polities (Schmidt 2008, 312–13). Nation states as simple polities tend to have a more solid communicative discourse between the political elite and the public, whereas compound polities, such as large federalist polities, are characterized by stronger coordinative discourse. The communicative discourse from political actors to public tends to be weak in compound polities. This is particularly an issue for the European Union and European public sphere, as the public opinion is largely formed nationally based on

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local news media (Risse 2010). This puts pressure on the coordinative discourse shared by the policy actors and political elite. Concerning the European Ombudsman, coordinative policy discourse on good governance and transparency was pronounced when the policy actors agreed on the mandate of the institution and its scope, as will be discussed in Chaps. 5 and 6. In Finland, the communicative discourse of human rights allowed the Finnish Ombudsman to explain its activities to the citizens, helping it to become a dominant legal overseer in Finland. Finally, the new institutional ideas become embedded in practices of governing that have duly changed in the process. Yet, the success of this is largely determined by how these new ideas or discourses resonate with the prevailing public values, narratives and collective memory (Schmidt 2000, 2002; Rothstein 2000). Also public narratives accommodate and mediate institutional ideas (cf. Somers 1993; Somers and Block 2005), often related to references on institutional traditions (Neustadt and May 1986; Douglas 1987, 40–41; Anderson 1991; Hobsbawm 1987). In fact, such reflexivity over institutional history and traditions is in itself a mechanism of policy diffusion (Erkkilä 2012). Transnational policy models on ombudsman include a historical narrative on the global diffusion of the institution shared by policy actors when they discuss the ombudsman institution and how it should work. I analyse the references to these models as a source of organizational ideas and legitimacy that help to navigate the current and future problems of governance. Actors, Context and Politics of Public Accountability While existing research on the diffusion of ombudsman institutions might at times overlook the role of actors, this perspective is often present in the accounts of the institutional evolution of the ombudsman, even to the extent that institutional histories may become reduced into personal biographies that highlight the charisma, political and social capital as well as juridical competencies of individuals holding the office (Baudot and Revillard 2011, 196). But it is also important to understand the institutional context in which such actors operate, and which conditions their abilities but also their motivation for action (Mahoney and Thelen 2009; see also Giddens 1986, 5). International organizations such as the UN and World Bank, regional ombudsman associations, national ombudsman institutions and their peer

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organizations are engaged in generating and exchanging the ideas and models that are used to promote the ombudsman institution. Local actors also tend to translate and edit transnational policy ideas (Sahlin and Wedlin 2008) and actively use transnational policy ideas in promoting their institutional interests (cf. Alasuutari et al. 2015) and communicating the institution to the public. These actors also engage in institutional boundary work (Gieryn 1983), where they try to (re)define the mandates and demarcation lines of their institutions vis-à-vis their institutional peers and rivals (Erkkilä and Kauppi 2017). This is apparent in the case of the ombudsman as an institution of public accountability. Accountability can be understood as a process, essentially reduced to three questions: accountable to whom, for what and how (Mulgan 2000, 555)? Considering the different types of accountability—political, bureaucratic, personal, professional, performance, deliberation (Erkkilä 2007)— the ombudsman potentially touches on them all. Most notably, the ombudsman is an institution of “public accountability” (Bovens 2005) in various senses of the term “public”. In its traditional form, the ombudsman supervises the use of public power and its legality, implying also public administration and government. It operates on the basis of complaints filed by citizens, the public. The ombudsman is not a court, but instead derives its authority from the publicity of its decisions that as such sanction the misuse of power without ruling out the possibility of further legal action. It hence provides an institutional form or site for the public as an “accountability forum” (Bovens 2005), relying on legal expertise of the ombudsman. Finally, the ombudsman—both an institution and an individual—is also a public figure with a media profile. Accountability systems also evolve over time and between institutional contexts, where the intra-institutional setting might be decisive in terms of how institutions of accountability function. The institutional changes may be incremental, involving institutions being constantly “renegotiated” over time (Thelen 2004, 34–35). But as mentioned above, institutional change often implies political conflict (G.  B. Peters et  al. 2005), which may manifest itself in various ways in the work of the ombudsman (Bakewell 1986; O’Hara 2011; Abraham 2008). The ombudsman is also seen as a “marker of the limits of politics” or as an agent between the fields of law, administration and politics (Gammeltoft-Hansen 2008; Magnette 2003), pointing to its balancing act in maintaining independence while controlling the use of public power.

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The concept of politicization helps us understand political conflict around the ombudsman institution. Politicization can be understood as the ability to contest issues and open a new horizon for action (Palonen 2003). As Palonen (2003) points out, nothing is political by nature, but instead needs first to be politicized through contestation. As we see with the cases discussed in this book, politicization becomes apparent in the debates concerning the mandate of the ombudsman—what could the mandate of the ombudsman look like, alternatively? But politicization is also relevant to the immediate context of writing this book, one marked by post-financial crisis and rise of populism, where legal and political institutions are increasingly being challenged. Methodology and Outline Methodologically, this book builds on qualitative content analysis and the conceptual analysis of public documents (Koselleck 2004; Skinner 1969; Bacchi 1999), thematic research interviews, analysis of statistical time series data, as well as some explorative statistical analysis of data on the diffusion of the institution and its relationship to good governance and democracy. I draw on the data to make a general analysis on institutional development, along which an analysis of the ideational shifts is provided. I examine the two chosen cases (Finnish Parliamentary Ombudsman, European Ombudsman) to provide a narrative of institutional changes and related ideational shifts (cf. Vennesson 2008; Koselleck 2004). The data for the two institutional cases is mostly qualitative and as such not best suited for making generalizations. However, the methodological approach tackles the problem of “small N” with several points of observation, identifying matching “patterns” and “causal narratives” within cases (Rueschemeyer 2003; Mahoney 2003, 360–68). I make use of interview material—consisting of 23 expert interviews1—for the book’s general narrative alongside official documents and time series data. The textual

1  Between 14 February 2018 and 22 February 2019, I interviewed 23 people in Helsinki, Strasbourg and Brussels. The interviewees were experts and office holders currently or formerly working for the Finnish Parliamentary Ombudsman, the Chancellor of Justice of Finnish Government, the European Ombudsman, the Council of Europe and the European Parliament.

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­ aterial mainly consists of annual reports,2 public policy documents, legal m texts, government proposals and selected newspaper articles. The statistical information is mainly derived from annual reports. In using the interview data factually, I use a triangulation of several sources of information (Davies 2001). The technique of snowballing was used to identify the interviewees, who were mostly not known at the beginning of the study (Beamer 2002, 145; Davies 2001, 76). This book is divided into three parts. The first part outlines theoretical framework for the book (Chap. 1) and explores the global institutional history of the ombudsman (Chap. 2). The second part of the book (Chaps. 3 and 4) covers the Finnish institutional case, discussing the ombudsman institution’s development in Finland against its peer institution the Chancellor of Justice. The third part of the book (Chaps. 5 and 6) discusses the European Ombudsman as a supranational case, and followed by conclusions (Chap. 7).

References Abedin, Najmul. 2006. The Ombudsman Institution and Conflict Resolution in the Contemporary Third World Societies. Journal of Third World Studies 23 (1): 219–233. ———. 2011. Conceptual and Functional Diversity of the Ombudsman Institution: A Classification. Administration & Society 43 (8): 896–929. https://doi.org/10.1177/0095399711417700. Abraham, Ann. 2008. The Ombudsman as Part of the UK Constitution: A Contested Role? Parliamentary Affairs 61 (1): 206–215. Alasuutari, Pertti, Marjaana Rautalin, and Jukka Syväterä. 2015. Organisations as Epistemic Capital: The Case of Independent Children’s Rights Institutions. International Journal of Politics, Culture, and Society 29 (1): 57–71. https:// doi.org/10.1007/s10767-015-9205-3. Anderson, Benedict. 1991. Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso. Ayeni, Victor O. 2014. Ombudsmen as Human Rights Institutions. Journal of Human Rights 13 (4): 498–511. https://doi.org/10.1080/14754835. 2014.886950. Bacchi, Carol Lee. 1999. Women, Policy and Politics: The Construction of Policy Problems. London: Sage Publications.

 Concerning the Finnish Parliamentary Ombudsman, a qualitative content analysis of all annual reports published (1920–2017) was conducted. 2

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Bakewell, R.D. 1986. The Ombudsman and Politics. Australian Journal of Public Administration 45 (1): 47–59. https://doi.org/10.1111/j.1467-8500.1986. tb01038.x. Baudot, Pierre-Yves, and Anne Revillard. 2011. Le Médiateur de La République Au Prisme de La Démocratie Administrative. Revue Française d’administration Publique 137–138: 193–207. https://doi.org/10.3917/rfap.137.0193. Beamer, Glenn. 2002. Elite Interviews and State Politics Research. State Politics & Policy Quarterly 2 (1): 86–96. Beck, Colin J., Gili S.  Drori, and John W.  Meyer. 2012. World Influences on Human Rights Language in Constitutions: A Cross-National Study. International Sociology 27 (4): 483–501. https://doi.org/10.1177/ 0268580912443575. Bennett, Colin J. 1997. Understanding Ripple Effects: The Cross-National Adoption of Policy Instruments for Bureaucratic Accountability. Governance 10 (3): 213–233. https://doi.org/10.1111/0952-1895.401997040. Blyth, Mark. 2002. Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century. Cambridge: Cambridge University Press. Bousta, Rhita. 2007. Contribution à Une Définition de l’Ombudsman. Revue Française d’administration Publique 123: 387–397. https://doi.org/10.3917/ rfap.123.0387. Bovens, Mark. 2005. Public Accountability. In The Oxford Handbook of Public Management, ed. Ewan Ferlie, Laurence Lynn, and Christopher Pollitt. New York: Oxford University Press. Bromley, Patricia, and John Meyer. 2015. Hyper-Organization: Global Organizational Expansion. Oxford: Oxford University Press. Cardenas, Sonia. 2003. Emerging Global Actors: The United Nations and National Human Rights Institutions. Global Governance 9 (1): 23–42. ———. 2014. Chains of Justice: The Global Rise of State Institutions for Human Rights, Pennsylvania Studies in Human Rights. Philadelphia, PA: University of Pennsylvania Press. Carl, Sabine. 2012. Toward a Definition and Taxonomy of Public Sector Ombudsmen. Canadian Public Administration 55 (2): 203–220. https://doi. org/10.1111/j.1754-7121.2012.00208.x. ———. 2018. The History and Evolution of the Ombudsman Model. In Research Handbook on the Ombudsman, ed. Marc Hertogh and Richard Kirkham, 17–33. Northampton, MA: Edward Elgar Pub. Cole, Wade M., and Francisco O.  Ramirez. 2013. Conditional Decoupling: Assessing the Impact of National Human Rights Institutions, 1981 to 2004. American Sociological Review 78 (4): 702–725. https://doi.org/10.1177/ 0003122413492762. Davies, Philip H.J. 2001. Spies as Informants: Triangulation and the Interpretation of Elite Interview Data in the Study of the Intelligence and Security Services. Politics 21 (1): 73–80. https://doi.org/10.1111/1467-9256.00138.

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Douglas, Mary. 1987. How Institutions Think? London: Routledge & Kegan Paul. Elliott, Michael A. 2007. Human Rights and the Triumph of the Individual in World Culture. Cultural Sociology 1 (3): 343–363. https://doi.org/10.1177/ 1749975507082052. Erkkilä, Tero. 2007. Governance and Accountability—A Shift in Conceptualisation. Public Administration Quarterly 31 (1): 1–38. ———. 2012. Government Transparency: Impacts and Unintended Consequences. Houndmills: Palgrave Macmillan. Erkkilä, Tero, and Niilo Kauppi. 2017. From Human Rights to Good Governance and Back: The Institutionalization of the European Ombudsman. In The Challenges of European Governance in the Age of Economic Stagnation, Immigration, and Refugees, ed. Chip Carey, 239–251. Lanham, MD: Lexington Books. Finnemore, Martha, and Kathryn Sikkink. 1998. International Norm Dynamics and Political Change. International Organization 52 (4): 887–917. Gammeltoft-Hansen, Hans. 2008. The Ombudsman as a Marker of the Limits of Politics. Unpublished conference paper presented in Tallinn, 7 March 2008. Giddens, Anthony. 1986. The Constitution of Society: Outline of the Theory of Structuration. http://www.wiley.com/WileyCDA/WileyTitle/productCd-0745665284.html. Gieryn, Thomas F. 1983. Boundary-Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists. American Sociological Review 48 (6): 781–795. https://doi.org/10.2307/ 2095325. Goodman, Ryan, and Thomas Pegram, eds. 2011. Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions. Cambridge and New York: Cambridge University Press. Haas, Peter M. 1992. Introduction: Epistemic Communities and International Policy Coordination. International Organization 46 (1): 1–35. Hertogh, Marc, and Richard Kirkham, eds. 2018. Research Handbook on the Ombudsman. Northampton, MA: Edward Elgar Pub. Hidén, Mikael. 1973. The Ombudsman in Finland: The First Fifty Years. Translated by Aaron Bell and edited by Donald C.  Rowat. Berkeley: Institute of Governmental Studies, University of California Press. Hobsbawm, Eric. 1987. Introduction: Inventing Traditions. In The Invention of Tradition, ed. Eric Hobsbawm and Terence Ranger, 1–14. Cambridge: Cambridge University Press. Hofmann, Herwig C.H., and Jacques Ziller, eds. 2017. Accountability in the EU: The Role of the European Ombudsman. Cheltenham, UK: Edward Elgar Publishing Ltd. Klein, Rudolf. 1976. Ombudsman into Mediateur. The Political Quarterly 47 (1): 92–94. https://doi.org/10.1111/j.1467-923X.1976.tb02166.x.

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Koo, Jeong-Woo, and Francisco O.  Ramirez. 2009. National Incorporation of Global Human Rights: Worldwide Expansion of National Human Rights Institutions, 1966–2004. Social Forces 87 (3): 1321–1353. https://doi. org/10.1353/sof.0.0167. Koselleck, Reinhart. 2004. Futures Past: On the Semantics of Historical Time. New York: Columbia University Press. Krasner, Stephen D. 1984. Approaches to the State: Alternative Conceptions and Historical Dynamics. Comparative Politics 16 (2): 223–246. Kucsko-Stadlmayer, Gabriele. 2008. European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea. Vienna: Springer. Magnette, Paul. 2003. Between Parliamentary Control and the Rule of Law: The Political Role of the Ombudsman in the European Union. Journal of European Public Policy 10 (5): 677–694. https://doi.org/10.1080/13501760 32000124032. Mahoney, James. 2000. Path Dependence in Historical Sociology. Theory and Society 29 (4): 507–548. ———. 2003. Strategies of Causal Assessment in Comparative Historical Analysis. In Comparative Historical Analysis in the Social Sciences, ed. James Mahoney and Dietrich Rueschemeyer, 337–372. Cambridge: Cambridge University Press. Mahoney, James, and Kathleen Thelen, eds. 2009. Explaining Institutional Change: Ambiguity, Agency, and Power. 1st ed. Cambridge University Press. Marcussen, Martin. 2000. Ideas and Elites: The Social Construction of Economic and Monetary Union. Aalborg: Aalborg University Press. ———. 2005. Central Banks on the Move. Journal of European Public Policy 12 (5): 903–923. https://doi.org/10.1080/13501760500161597. Meyer, John W., John Boli, George M. Thomas, and Francisco O. Ramirez. 1997. World Society and the Nation-State. The American Journal of Sociology 103 (1): 144–181. Mulgan, Richard. 2000. Accountability’: An Ever-Expanding Concept? Public Administration 78 (3): 555–573. https://doi.org/10.1111/1467-9299. 00218. Neustadt, Richard E., and Ernest R. May, eds. 1986. Thinking in Time: The Uses of History for Decision-Makers. New York: Free Press. O’Hara, Glen. 2011. Parties, People, and Parliament: Britain’s ‘Ombudsman’ and the Politics of the 1960s. Journal of British Studies 50 (3): 690–714. Palonen, Kari. 2003. Four Times of Politics: Policy, Polity, Politicking, and Politicization. Alternatives 28 (2): 171–186. Peters, B.  Guy. 2001. From Change to Change: Patterns of Continuing Administrative Reform in Europe. Public Organization Review 1 (1): 41–54. https://doi.org/10.1023/A:1011568911704.

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Peters, Guy B., Jon Pierre, and Desmond S.  King. 2005. The Politics of Path Dependency: Political Conflict in Historical Institutionalism. The Journal of Politics 67 (04): 1275–1300. https://doi.org/10.1111/j.1468-2508.2005. 00360.x. Pierson, Paul. 2004. Politics in Time. History, Institutions and Social Analysis. Princeton: Princeton University Press. Ramirez, Francisco O., Yasemin Soysal, and Suzanne Shanahan. 1997. The Changing Logic of Political Citizenship: Cross-National Acquisition of Women’s Suffrage Rights, 1890 to 1990. American Sociological Review 62 (5): 735–745. Reif, Linda C. 2000. Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection. Harvard Human Rights Journal 13: 1–69. ———. 2004. The Ombudsman, Good Governance and the International Human Rights System. Leiden: Martinus Nijhoff Publishers. Remac, Milan. 2013. Standards of Ombudsman Assessment: A New Normative Concept? Utrecht Law Review 9 (3): 62–78. https://doi.org/10.18352/ulr.237. ———. 2014. Coordinating Ombudsmen and the Judiciary: A Comparative View on the Relations between Ombudsmen and the Judiciary in the Netherlands, England and the European Union. PhD Thesis, Utrecht University, Utrecht. Risse, Thomas. 2010. A Community of Europeans?: Transnational Identities and Public Spheres. Cornell University Press. Risse, Thomas, and Kathryn Sikkink. 1999. The Socialization of International Human Rights Norms into Domestic Practices: Introduction. In The Power of Human Rights: International Norms and Domestic Change, ed. Thomas Risse, Stephen C.  Ropp, and Kathryn Sikkink, 1–38. Cambridge: Cambridge University Press. Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink, eds. 2013. The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press. Rothstein, Bo. 2000. Trust, Social Dilemmas and Collective Memories. Journal of Theoretical Politics 12 (4): 477–501. https://doi.org/10.1177/09516928 00012004007. Rueschemeyer, Dietrich. 2003. Can One or a Few Cases Yield Gains? In Comparative Historical Analysis in the Social Sciences, ed. James Mahoney and Dietrich Rueschemeyer, 305–336. Cambridge: Cambridge University Press. Sahlin, Kerstin, and Linda Wedlin. 2008. Circulating Ideas: Imitation, Translation and Editing. In The SAGE Handbook of Organizational Institutionalism, ed. Royston Greewood, Christine Oliver, Roy Suddaby, and Kerstin Sahlin, 218– 242. London: SAGE Publications. Sahlin-Andersson, Kerstin, and Lars Engwall. 2002. The Expansion of Management Knowledge: Carriers, Flows, and Sources. Stanford University Press.

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Sartori, Giovanni. 1970. Concept Misformation in Comparative Politics. The American Political Science Review 64 (4): 1033–1053. https://doi. org/10.2307/1958356. Schmidt, Vivien A. 2000. Values and Discourse in Adjustment. In Welfare and Work in the Open Economy: Volume I: From Vulnerability to Competitiveness, ed. Fritz Scharpf and Vivien A. Schmidt, 229–309. Oxford: Oxford University Press. Schmidt, Vivien A. 2002. The Futures of European Capitalism. Oxford: Oxford University Press. ———. 2006. Democracy in Europe: The EU and National Polities. Oxford: Oxford University Press. ———. 2008. Discursive Institutionalism: The Explanatory Power of Ideas and Discourse. Annual Review of Political Science 11 (1): 303–326. https://doi. org/10.1146/annurev.polisci.11.060606.135342. ———. 2010. Taking Ideas and Discourse Seriously: Explaining Change Through Discursive Institutionalism as the Fourth ‘New Institutionalism. European Political Science Review 2 (1): 1–25. https://doi.org/10.1017/ S175577390999021X. Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. 1st ed. New York: W. W. Norton & Company. Skinner, Quentin. 1969. Meaning and Understanding in the History of Ideas. History and Theory 8 (1): 3–53. Somers, Margaret R. 1993. Citizenship and the Place of the Public Sphere: Law, Community, and Political Culture in the Transition to Democracy. American Sociological Review 58 (5): 587–620. Somers, Margaret R., and Fred Block. 2005. From Poverty to Perversity: Ideas, Markets, and Institutions over 200 Years of Welfare Debate. American Sociological Review 70 (2): 260–287. Thelen, Kathleen. 2004. How Institutions Evolve: The Political Economy of Skills in Germany, Britain, the United States, and Japan. Cambridge: Cambridge University Press. Vennesson, Pascal. 2008. Case Studies and Process Tracing: Theories and Practices. In Approaches and Methodologies in the Social Sciences. A Pluralist Perspective, ed. Donatella Della Porta and Michael Keating, 223–239. Cambridge: Cambridge University Press. Vogiatzis, Nikos. 2017. The European Ombudsman and Good Administration in the European Union. 1st ed. 2018 edition. London: Palgrave Macmillan.

CHAPTER 2

Transnational Governance and Global Diffusion of the Ombudsman Institution

Introduction The global diffusion of the ombudsman has been mostly studied in the context of human rights and proliferation of National Human Rights Institutions (Cardenas 2014; Reif 2004). The institution has had many variations, and the literature contains classifications that seek to identify its different variants (Abedin 2011; Ayeni 2014; Bousta 2007; Carl 2012; Reif 2004), also linking it to the different “development phases” or “generations” of its global diffusion (Remac 2013, 63–65). The institution is often understood as a legal overseer, a typical perception in the Nordic countries (Hidén 1973), which are commonly seen as providing the “classical” ombudsman model (Remac 2013, 63), though it is arguably also a more general feature in European constitutional tradition (Bonnor 2003). The institution is often seen as a mediator (Klein 1976), an institution of conflict resolution (Abedin 2006) and guardian of human rights (Ayeni 2014). The different types or generations of ombudsmen are now tending to converge conceptually or are “hybridizing” (Reif 2004, 7–9; Remac 2013, 68), for example, as classical ombudsman institutions—such as the Finnish Parliamentary Ombudsman (see Chap. 4)—are adopting the tasks of human rights institutions, advocates of good governance and even act as mediators alongside their role as legal overseer. There are different patterns of explanations for the diffusion of the ombudsman, that all have their strength in understanding the different

© The Author(s) 2020 T. Erkkilä, Ombudsman as a Global Institution, Public Sector Organizations, https://doi.org/10.1007/978-3-030-32675-3_2

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phases in the global adoption of the ombudsman. First, there are arguments pointing to a specific function that the institution has in its context of adoption (Bennett 1997). Second, the proliferation of ombudsman is linked with the general process of global democratization and the spread of human rights (Cardenas 2014). The third line of argument—which I also adopt in this chapter—highlights the cultural aspects of the diffusion and the role of international actors in promoting the institution (Koo and Ramirez 2009). A major factor in the global diffusion of the ombudsman institution is the international effort to codify National Human Rights Institutions (NHRIs), as in the 1993 Paris Principles of the UN. In relation to the previous point, the diffusion of the ombudsman can be linked to global discourses such as human rights (since the late 1980s) and good governance (since the mid-­ late 1990s). Already since the 1970s, the International Ombudsman Institute (IOI) has actively promoted the institution. The ombudsman offices of individual countries have also promoted the institution, leading to horizontal learning between countries. There are also regional associations and institutes for promoting the ombudsman. Recently, international organizations for development economics, such as the World Bank, have been active in promoting the idea. This can be linked to the discourse on good governance that originated from the World Bank in the 1990s. The above initiatives have contributed to the spreading of the institution but also influenced its conceptualization, mandate and functions in different contexts. The institutional history of ombudsman bears similarities to transparency and freedom of information as global instruments of public accountability (Erkkilä 2012; Berliner 2014; Worthy 2017). Though these are related institutions of accountability (Bennett 1997; Hossu and Carp 2011), their institutional history and global propagation have somewhat different patterns. The ombudsman institution currently has a high symbolic value for countries adopting it (Meyer et al. 1997) as well as for those promoting it. However, while global interest in the institution is gathering pace, the ombudsman’s relationship with democracy is becoming less apparent and there seems to be a weakening of the link between the ombudsman institution and the state of democracy in the countries that have adopted it (see below). Nevertheless, there is a keen interest in the institution. In order to understand the global spread of the ombudsman, one needs to consider the motivation of countries in adopting the institution as well as the activities of transnational policy actors promoting this organizational model.

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Diffusion of Institutions and Global Spreading of Ombudsman Diffusion is defined as coming about through coercion, competition, adaptation, learning and emulation, where ideas, norms and practices are spread across countries (Elkins and Simmons 2005; Simmons et al. 2006). The scholarship on diffusion has focused on financial institutions (King 2005; Marcussen 2005), democratic institutions and policy instruments (Berliner 2014; Starr 1991), human rights (Beck et  al. 2012; Elliott 2007), educational policies (Schofer and Meyer 2005) and public sector reform (Dobbin et al. 2007; Lee and Strang 2006). While diffusion often involves international organizations, it can also be a horizontal process, where institutional forms spread from one country to another (Bennett 1997; Karvonen 1981). Recently, the focus of diffusion research has turned towards an analysis of transnational governance (Djelic and Sahlin-­ Andersson 2008), where international organizations, policy ideas, standards and regulation are seen as drivers of change but also as source of legitimation (Mahon and McBride 2009; C.  M. Radaelli 2000, 2005; Schmidt 2010). Confusingly, the current literature treats diffusion both as an outcome and process (Elkins and Simmons 2005, 36–37). As a concept, diffusion has been criticized for its natural scientific connotations, referring to the physical origins of the term (Sahlin and Wedlin 2008). This perception would also see diffusion as an outcome, highlighting causal relations. Seen as a process, the notion of diffusion owes to innovation studies and diffusion of innovations (Rogers 2003). The innovation diffusion perspective has also been referred to in political scientific studies on human rights. For example, Sonia Cardenas’ (2014) research on NHRIs has revealed a trend of global diffusion that took two major turns in the 1980s and 1990s. In discussing this against the model of diffusion of innovations, Cardenas sees the trend as a classic S-curve, with innovators and early adopters, followed by the critical mass (Cardenas 2014, 35–36). But generally speaking the diffusion of innovations perspective may be problematic, as it tends to make a normative claim for diffusion, depicting the “innovation” and its promoters (innovators) positively while depicting the slow adopters in negative terms, as “laggards”. As I argue in the following chapters, there are limitations in the discussion on diffusion apparent in the narrative of ombudsman’s global reach and its “models”. Such narratives do not greatly reflect the actual mechanisms behind the development of the ombudsman institution, and as it is

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often conflated with global democratization and adoption of human rights, it becomes a feature of the (inevitable) modernization process. There is a risk that the simplifying concept of diffusion begins to hide the complexity and variance of the process. In fact, there are different phases in the global adoption of the ombudsman that cannot be understood as a single process. The narrative of the ombudsman’s global spread also comes to hide the phases of this process and the potentially different motivations for countries to adopt the institution or subscribe to global organizational models that are now associated with the ombudsman. The scholarship of diffusion has been criticized for assuming a rather clearly defined institution or idea that spreads from one context to another (Sahlin and Wedlin 2008). Though some scholars have identified role of legal overseer supervising the administrative process as fulfilling the “classical” ombudsman model (Remac 2013; Abedin 2011), it is difficult to find a core idea of the ombudsman in its present manifestations. There are ideational shifts in the debate on the ombudsman, as it has been actively linked to transnational discourses on human rights since the 1980s and, coming to 1990s, the ombudsman is drawn into the debate on good governance (Reif 2004; Ayeni 2014). This has arguably removed the ombudsman from its legal roots in administrative law (Drewry 2009). We could even ask if what we are observing is a diffusion of the same institution and not the diffusion of a meta-concept (Marcussen 2005), where countries adopt an idea of the ombudsman and not the ombudsman idea. Therefore, the diffusion of the ombudsman institution might not be about the power of a particular idea but rather about the vagueness of an ombudsman concept that allows various actors to shape it to fit their needs. This offers a perspective for understanding the different functions that the ombudsman has obtained in its new contexts, as well as the motivations for adopting it. Finally, most of the research on diffusion aims to uncover the motivations of countries in adopting the institution, but often says little about the motivations of those promoting the institution. Despite the obvious and vital differences between the national implementations of the ombudsman and their ideational roots, international organizations and NGOs nevertheless see the ombudsman as an instrument to be promoted. Their motivation to engage in this activity is equally interesting as is the motivation of countries in adopting the institution. In fact, while transnational actors have an increasingly important role in spreading the institution,

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they also have an interest to engage this process, as it further legitimizes their expert position. Global Spreading of the Ombudsman The ombudsman has spread all over the world. Originally a Swedish institution (created in 1809), the ombudsman has seen a steady proliferation since the 1970s. There is a clear peak in the 1990s and early 2000s. As Table  2.1 shows, the diffusion of the institution initially seems to have respected administrative traditions. The adoption of the ombudsman institution was first advanced in the Nordic context. Finland becomes the first country to copy it to its constitution (1919), followed by Denmark (1955, constitution of 1953) and Norway (1962). Its adoption by the British Commonwealth countries also started early, with Guyana (1966), the UK (1967), New Zealand (1962) and Australia (1976) adopting the institution by the 1970s. Geographic proximity seems to have been important, and many Central European countries adopted the ombudsman in the 1970s and 1980s despite their different administrative traditions. However, by the 1980s, there are already several instances of the institution on all continents. Starting from the 1990s, the institution has started to spread globally in a previously unseen manner. After the Cold War, many post-communist states adopted the institution. It was also adopted by several states in Latin America and a number of African countries adopted the institution within few years of each other in the 1990s. Since 2000, the institution is mostly adopted in developing countries and East European states. In focusing on the diffusion process since the 1960s, Fig. 2.1 shows steady and relatively slow spreading of the institution until the late 1980s. But from there on, the diffusion of the institution gathers pace and there is a steep rise in the number of ombudsman institutions and similar complaint handling bodies globally. This then evens off in the early 2000s, though the institution still spread steadily. By now, the national ombudsman has spread to all continents, now covering most of the independent countries of the world. Table 2.1 shows the adoption of national ombudsman institution by region (see regional grouping of countries). The institutional coverage of the institution is particularly prominent in Europe, Africa and Latin America. The geographical coverage of the institution is relatively lower in Asia and Oceania, though New Zealand and Australia adopted the institution already early on. In North

New Zealand (1962)

Japan (1955)

Tanzania (1966) Mauritius (1969, in operation 1970)

Denmark (1955, constitution of 1953) Norway (1962) United Kingdom (1967)

Sweden (1809) Finland (1919)

Taiwan (1948)

1950s and 1960s

Before 1950s

1980s

Ireland (1980, in operation 1984) Netherlands (1981, in operation 1982) Spain (1981, in operation 1982) Iceland (1987) Poland (1987) Tunisia (1972, Slovenia (1988) constitution of Hungary (1989) 1959) Zambia Uganda (1988) (1974) Sri Lanka (1982, constitution Nigeria (1975) of 1978) Puerto Rico Pakistan (1983) (1977) Barbados (1981) Trinidad and Guatemala (1987, constitution Tobago of 1985) (1977) Haiti (1987, in operation 1995) Papua New Mexico (1989) Guinea (1975) Solomon Islands (1980, Australia constitution of 1978, in (1976, in operation 1981) operation Cook Islands (1984) 1977) Samoa (1988, in operation 1990) Hong Kong (1989)

Israel (1971) France (1973) Germany (1975) Portugal (1976) Austria (1977)

1970s

Namibia (1990) Ghana (1993) Lesotho (1993)

Croatia (1990) Cyprus (1991) Macedonia (1991) Romania (1991) Estonia (1992, predecessor 1938–) Slovak Republic (1992) Greenland (1994) Lithuania (1994, constitution of 1992) Latvia (1995) Malta (1995) Uzbekistan (1995) Georgia (1996) Belgium (1997) Moldova (1997, in operation 1998) Ukraine (1997, in operation 1998) Andorra (1998) Greece (1998) Russian Federation (1998) Albania (1999) Czech Republic (1999, in operation 2000) Gibraltar (1999)

1990s

(continued)

Ivory Coast (2000) Ethiopia (2000, in operation 2004) Rwanda (2003) Burundi (in constitution 2005, in operation and specific law 2010) Guinea (2010) Zimbabwe (in constitution 2008, in operation 2010) Kenya (2011)

Kosovo (2000) Faroe Islands (2001) Azerbaijan (2002) Luxembourg (2003) Armenia (2004) Serbia (2005) Bulgaria (2004) Turkey (2012)

Since 2000

Table 2.1  Adoption of ombudsman institution by year and region (year when legislation came into force)a

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1950s and 1960s

1970s

1980s

Vanuatu (1994)

Peru (1993, in operation 1996) Antigua and Barbuda (1994) Argentina (1994) Turks and Caicos Islands (1994) Panama (1997)

Republic of Korea (1994) Macao (1999) Thailand (1999, in operation 2000)

Morocco (2011) Niger (2011) Benin (2014)

Burkina Faso (1994) Malawi (1994, in operation 1995) Botswana (1995, in operation 1997) South Africa (1995) Gambia (1997, in operation 1999) Mali (1997, in operation 1999) Sierra Leone (1997, constitution of 1991, in operation 2002) Sudan (1998) Djibouti (1999) Senegal (1999)

Tonga (2001) Bermuda (2004) Cayman Islands (2004) British Virgin Islands (2007) Curaçao (2010) Sint Maarten (2010)

Indonesia (2000) Timor Leste (2005) Jordan (2009) Bahrain (2012)

Since 2000

1990s

a The data is based on International Ombudsman Institute’s country listing. There are some institutions missing as only IOI members are listed. Only national level institutions are included

Before 1950s

Table 2.1 (continued)

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180 160 140 120 100 80 60 40 20 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

0

Fig. 2.1  Global spreading of ombudsman institutions or similar complaint handling bodies (The entries cover countries and their dependent territories with either national or regional institutions in place. In addition to the IOI membership list, the information on the existing ombudsmen has been derived from other sources such as membership information of regional ombudsman associations, government websites, publicly available documents from international organizations and news outlets. Also some selected NHRIs and other complaint handling bodies with functions similar to the ombudsman are listed. Some of these have later joined an ombudsman association.)

America, the institution has spread to the United States and Canada on a state level, but not at a federal level (see below). The global spread of the institution has been discussed taking place under different “waves” or “generations” of the institution, which correspond to the conceptualizations of it (Remac 2013).1 From this perspective, the shifting conceptualization of the institution can be linked to the process of diffusion. According to Remac (Remac 2013, 64–66), the first-­ generation institutions, the Swedish and Finnish Ombudsmen, were legal overseers. The second generation, consisted of post-Second World War ombudsmen, following the Danish model, which was more flexible than the Swedish one, and focused more generally on dealing with maladministration than outright illegality. This generation of ombudsmen is also linked to the growth of government due to welfare state functions. The 1  The discussion on waves evokes ideas of innovation diffusion but also Huntington’s claim for different waves of democratization. This is also linked to the global spreading of human rights (Landman 2013).

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third generation is linked to the spread of human rights and regime changes in Southern Europe as well as in the post-communist countries of Eastern Europe. The fourth ombudsman generation is linked to anti-­ corruption work and good governance, often lacking standards of legal control, and such institutional variants have been typical for developing countries, particularly in Africa (Remac 2013, 64–66). There are several patterns of explanation in the standing literature for the diffusion of ombudsman. First, diffusion is understood in functionalist terms, where the ombudsman addresses a specific need at a local level, such as the growth of public administration (Bennett 1997; Remac 2013, 65). This “big state” argument sees the institution as balancing the expansion of the state, particularly in welfare state policies, similar to the adoption of freedom of information acts and privacy laws. Functionalist explanations may also be helpful in understanding the birth of the ombudsman institution in Sweden, but also highlight the motivation of governments to adopt the institution as a result of conflict resolution (Abedin 2006). For instance, post-communist countries’ adoption of the institution in the 1990s can be understood in the context of coming to terms with the communist past. Also in Latin America, adopting the institution can be linked to addressing past human rights violations under military rule, but rather more in relation to democratization (Pegram 2008). The second pattern of explanation would indeed tie it to global democratization and the global spread of human rights from the perspective of social movements. The scholarship on democratization observes an increase in the number of democratic states globally that corresponds with the global spread of human rights and related national institutions (Landman 2013; Reif 2000, 12).2 Though the adoption of the ombudsman institution in the East European post-communist states was a reaction to the past, it is also a result of a process where the international drive for human rights contributed to the collapse of communism.

2  Both Reif and Landman discuss the global spread of human rights against the four “waves of democracy” identified by Huntington, where the first wave of democracy spans from the early nineteenth century to mid-1920s. The second was from the mid-1930s to early 1960s. The third from the mid-1970s to late 1980s. The fourth wave, from the 1990s onwards, has seen most notably the democratization of former communist states. They argue that the above waves are also closely linked to human rights and their spread globally (Landman 2013; Reif 2000, 12).

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To come back to the trends identified by Cardenas (2014), the number of NHRIs started to grow in the 1980s and now included ombudsmen. But Colin Bennett has linked the same development in the global number of ombudsmen to the growth of government and attempts to create a new measure of accountability (Bennett 1997). There seems to be differing views about the core functions of the institution and what contextual factors might explain its diffusion. The democratization argument may not alone explain the diffusion of the ombudsman, particularly since the 1990s, as diffusion in this era has been particularly pronounced in developing countries and often involving non-democratic states. This also runs somewhat counter to Colin Bennett’s argument of “big state” as a functionalist explanation for countries adopting the institution. In addition to the democratization argument, Cardenas (2014) points out that the diffusion of the institution is also largely the result of a development in international realm, where coordination around the NHRIs has emerged, facilitating their diffusion. Interestingly, Cardenas also detects a strong element of symbolism in the diffusion of NHRIs. The third pattern of explanation for the diffusion of the ombudsman would be cultural (Koo and Ramirez 2009). This line of argument would see NHRIs as a global norm adopted by different countries, the ombudsman being an obvious model. Here the assumption would be that countries are adopting the institution largely due to transnational learning or emulation. In fact, the early cases of ombudsman’s diffusion—for e­ xample, to New Zealand (Rowat 1973)—carry connotations of ideational influences and policy learning. But this seems to be intensifying especially since the 1990s. This links to a Meyerian analysis of global policy scripts, which highlights the cultural aspects of diffusion (Beck et  al. 2012; Meyer et al. 1997). According to the above line of argumentation, the diffusion of ombudsman goes hand in hand with the international codification of the NHRIs in the so-called Paris principles (1993). The notion of an NHRI is constructed in the international realm and promoted by the UN, granting it a high symbolic value. The NHRI hence becomes an attribute of a modern state that countries perceive that they need to fulfil (Koo and Ramirez 2009). The ombudsman becomes an obvious model that fulfils the attributes of the NHRI set by the international community. But there are also other ideational influences, such as those coming from international organizations for economic development.

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Ombudsman and Transnational Governance Cross-National Communication: Swedish Institution, Danish Model The transnational communication around the ombudsman institution started cross-nationally, involving initially learning from the Swedish model. This was evident already in the Finnish case, when the newly independent nation copied the institution from Sweden in 1919 (Hidén 2000). In the 1970s, the ombudsman institution was referred in the literature as an “idea” or a “plan” that was replicated from one country to another (Rowat 1973). Also, the ombudsman offices of individual countries have had strong international ties. The annual reports of the Finnish Parliamentary Ombudsman from the 1980s onwards contain detailed accounts of international activities, including country visits and foreign delegations that were hosted. Though the Swedish institution acted as a model for Finland’s adoption of the ombudsman (see Chap. 3), it was the Danish Ombudsman that became a global model for countries to emulate. While the Swedish and Finnish Ombudsmen are strongly associated with assessment of legality, the Danish model is more flexible, allowing for assessment of more general administrative principles (Remac 2013, 64–65). The Norwegian adoption of the ombudsman was influenced by the Danish example (Gellhorn 1966b), but more importantly the Danish Ombudsman became an important model for the Anglophone world. Individual actors were important in the global diffusion of ombudsman and the “Danish model”. Stephan Hurwitz, a Danish law professor and first Danish Ombudsman (Parliamentary Commissioner for Public Affairs), is often mentioned as a key figure in spreading awareness of the institution (The New  York Times 1981).3 Experts interviewed for this study mentioned him as an important individual, who promoted the institution while travelling internationally and in events also organized by the United Nations. Stephan Hurwitz’s presentation on the Scandinavian model of ombudsman at an international conference organized in Sri Lanka in 1960 3  Stephan Hurwitz became the first Danish Ombudsman in 1955 and retired from the position in 1971. He had been active in preparing the prosecution of Danish wartime Nazi collaborators, though remaining critical of their retroactive harsh sentences. He was also a member of the United Nations War Crimes Commission in 1945 (The New  York Times 1981).

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has been identified as an inspiration for New Zealand’s adoption of the ombudsman institution in 1962 (Danish Parliamentary Ombudsman 2011; Hurwitz 1960). New Zealand became the first English-speaking country to adopt the institution that subsequently spread to several Anglophone countries. In examining the proposals made between 1957 and 1960 to establish the ombudsman institution in Britain, New Zealand, Australia, Canada and the United States, Gwyn highlights the role of actors and timing of proposals. Gwyn’s analysis complements Rowat’s analysis of the global spread of the ombudsman institution (Gwyn 1980; Rowat 1973). Arguing that the spread of the institution cannot be reduced to expansion of state activities and existing social conditions, Gwyn stresses the role of scholars as carriers of knowledge (Gwyn 1980, 317–19). While there was little prior awareness of the ombudsman institution in the English-speaking world, British legal scholars came to argue for the need for a similar institution in the UK in 1957. The Danish ombudsman model, included in 1953 in the Danish constitution, and the contacts to Stephan Hurwitz were central in this process (Gwyn 1980, 321–25). The discovery of the ombudsman in the English-speaking world also led to its global spread, facilitated by professional organizations (such as the International Commission of Jurists), news media and various conferences organized around the topic (Gwyn 1980). This is also evident in the emergence of English language legal scholarship on the Nordic ombudsmen (Gellhorn 1965, 1966a, b; Abraham 1968; Hidén 1973). In the Australian case, the adoption of the ombudsman institution was discussed in the context of growing state functions, but the general interest in this “Scandinavian” institution in the Commonwealth countries was quoted in the debates of the early 1960s on adopting the institution in Australia (Caiden 1964, 97). Here, New Zealand’s decision to adopt the institution was the apparent motivation. In Caiden’s 1964 article “Ombudsman for Australia”, the original Swedish model is described relatively briefly and the Finnish decision to adopt it in 1920 is mentioned in one sentence (Caiden 1964, 105–06). On the other hand, the “Danish model” is discussed at length, arguing that it has recently spread to Norway and informed British debates on the matter that—despite failing to get the institution adopted the in the UK—inspired the adoption of the institution in New Zealand in 1962. It is acknowledged that in Britain “the Ombudsman became widely known largely through the writings and lecture tours of Professor Hurwitz” (Caiden 1964, 107).

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These examples show how the spread of the ombudsman institution respects administrative traditions and how closely the British debates on the matter were followed in other Commonwealth countries. New Zealand (1962) adopted the institution before the United Kingdom (1967) and Australia (1976), but the accounts on the adoption of ombudsman institution in these countries show a close cross-communication of ideas and highlight the role of individual actors as well as committees and reports that have helped to share an understanding of the institution. In the United States, the debates mainly concerned adopting the ombudsman on a state and municipal level (Unruh 1965; Gellhorn 1968), and the institution did not take root on a federal level.4 More recently, the European Ombudsman has actively promoted the institution, linked to its adoption in Greece and Turkey (Ladi 2011; Karasoy 2015). In Finland (Chaps. 3 and 4), there have been numerous foreign delegations wishing to visit the Parliamentary Ombudsman over the years, coming particularly from countries that have recently adopted the ombudsman institution. The international coordination around the ombudsman institution also started early. Founded in 1978, the International Ombudsman Institute (IOI) has actively promoted the institution. With its seat in Vienna, the IOI has been increasingly active in recent years. It has a broad membership base, including national and regional ombudsmen, and the European Ombudsman is a member. The IOI has got a regional organization, consisting of six chapters: Africa, Asia, Australasia and Pacific, Caribbean and Latin America, Europe and North America. It supports the activities of the member organizations through training, research and promotion of best practices, but it also provides regional subsidies and further support for ombudsmen under threat.5 The IOI also promotes the “Ombudsman concept”. By its own definition, “[the IOI] encourages the creation and development of ombudsman institutions where they do not already exist, it funds research, provides training and promotes information exchange and shared learning.”6 This mission statement further carries the normative position that the IOI “contributes to improving public services around the world”. 4  The IOI members in the United States are the Ombudsman Dayton-Montgomery County and the State of Iowa Office of Ombudsman. In Canada the following provincial Ombudsmen are members of the IOI: Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Québec, Saskatchewan, Montréal and Toronto. 5  The IOI Activities [http://www.theioi.org/ioi-activities]. 6  The IOI Activities/IOI Policies [http://www.theioi.org/ioi-activities].

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The IOI declarations adopted in its general assemblies also summarize the “Ombudsman concept” of the association. The Wellington Declaration, adopted in 2012, in many ways echoes the transnational policy discourse now surrounding the institution (International Ombudsman Institute 2012). In linking the institution to rule of law, transparency, good governance, democracy and human rights, the IOI stresses the “diversity” of ombudsman institutions and, respectively, the countries where it exists (ibid.). The IOI further recognizes that the institution exists worldwide on national, regional and local level and that the number of such institutions is growing, encouraging the adoption of the institution “where they do not already exist”. The IOI further recognizes that some of its member institutions also act as NHRIs and, in cases where the ombudsman is not an NHRI, the IOI encourages collaboration between ombudsmen and NHRIs (International Ombudsman Institute 2012, 2). It also highlights the collaboration between IOI and the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC, later GANHRI) (ibid.). Together with the IOI, there are various regional ombudsman associations and institutes that function as venues for exchanging ideas on the institution (African Ombudsman and Mediators Association, Asian Ombudsman Association, European Ombudsman Institute, the Association of Mediterranean Ombudsmen, the Ibero-American Federation of Ombudsmen, the Association of Ombudsmen of Member Countries of the West African Economic and Monetary Union). There is also a British-Irish Ombudsman Association (founded in 1993), including ombudsmen and similar complaint-handling bodies in the UK, Ireland and British Overseas Territories.7 The cross-national collaboration seems to have been a major factor in the diffusion of the ombudsman institution from the 1960s to 1980s. But starting from the 1990s, cross-national learning bilaterally or through association membership has been increasingly complemented by transnational policy networks, where international organizations, most notably the UN, are promoting the ombudsman. This also links with the prominent global discourses on human rights and good governance.

7

 Ombudsman Association [http://www.ombudsmanassociation.org/].

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United Nations, Ombudsman and Human Rights As we have seen, the ombudsman institution is often linked with the so-­ called NHRIs, which consist of national human rights commissions, ombudsman offices and public defenders (Cardenas 2014, 2; Reif 2004). The emergence of NHRIs can be understood in the context of the role of the UN as a promoter of this scheme through standard setting, capacity building, facilitating networks and granting memberships (Cardenas 2003). The drafting of the Paris Principles by the UN has contributed greatly to the diffusion of ombudsman. In 1993, the United Nations General Assembly adopted the Paris Principles that guide the work of the NHRIs. The NHRIs comprise a large set of institutions such as the human rights commissions, committees or councils, but also ombudsman institutions, public defenders or mediators. First outlined in 1991, the Paris Principles define the human rights objectives and guidelines for institutional independence, mandate, funding of human rights institutions concerned as well as the selection and appointment of individuals.8 The typical argument of world society theorizing (Meyer et al. 1997) would be that while this codification primarily aimed to give guidelines for NHRIs, it also comes to depict them as an attribute of a modern nation and countries are willing to adhere to this norm. The ombudsman hence becomes a model in the countries pursuit to fulfil the norms set by the international community. The adoption of the Paris Principles has facilitated the rapid diffusion of NHRIs globally, but this has also required work of institutional actors. The International Coordinating Committee for National Human Rights Institutions (ICC) was established in 1993 and later changes its name to Global Alliance of National Human Rights Institutions (GANHRI).9 It is an international association for all NHRIs globally. The organization “facilitates and supports NHRI engagement with the UN Human Rights Council and Treaty Bodies” (ibid.). It also serves as a venue for annual meetings of the NHRIs. Most importantly, it serves as an accrediting agency for NHRIs in accordance with the Paris Principles. The GANHRI also promotes the NHRIs within the UN system and internationally. Its services

8  United Nations, Principles relating to the Status of National Institutions (The Paris Principles) [http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions. aspx]. 9  A brief history of the ICC [http://nhri.ohchr.org/EN/AboutUs/Pages/History.aspx].

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also include capacity building and assisting governments to establish NHRIs. The standard narrative of world society literature points out how the UN system has shaped the global spread of organizational forms and institutional practices (Beck et al. 2012; Meyer et al. 1997; Schofer and Meyer 2005). Here, the accreditation system is often highlighted as means for influencing existing institutions, but alone the international activities to define global norms such as human rights or national human rights systems are seen as drivers of institutional convergence. The activities of the ICC fit this pattern of explanation. The criteria (Paris Principles) set by the UN serve as an influential driver for the proliferation of NHRIs globally, and here the ombudsman institution serves as an existing and “proven” model for countries that wish to attain the attributes of a “modern” state. Looking at the increasing adoption rate of the institution starting from the 1990s, transnational communication has had a significant effect (cf. Koo and Ramirez 2009). It is interesting to note, that the discourse on human rights has also influenced the ombudsman institutions that were adopted earlier. For instance in Finland, the Finnish Parliamentary Ombudsman became the guardian of human rights at the turn of 1990s, having already existed for almost 50 years (Hidén 1973, 2000). In this respect, the ideational shifts concerning the ombudsman institution have contributed both to its global spread and its institutional changes in the Nordic context. I will return to this in more detail in Chaps. 3 and 4. World Bank, Ombudsman and Good Governance Along with the UN, the World Bank has also been active in promoting the ombudsman institution. This can be linked to the global discourse on good governance. The concept was initially drafted by the World Bank (Drechsler 2004), but was soon adopted and promoted by other international organizations such as the UN (Zanotti 2005) and has become a principle of international law (Seppänen 2003). The World Bank now also promotes the ombudsman, but as a guardian of good governance. The Bank’s website provides a historical narrative on the diffusion of the institution. There is also an analysis of the different forms of the institution, where the ombudsman is seen to have found its fit in different context. While this could be problematic from the perspective of the actual ­functionality of the institution, it is instead perceived as its strength:

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Each country that has established an OI adapts it to local circumstances and integrates it into the overall institutional set-up. As a consequence, OIs with wide variations in mandate, powers, and functions have emerged.10

The World Bank uses a classification to summarize the different ombudsman models, identifying Classical Ombudsman, Human Rights Ombudsman, Anti-Corruption Ombudsman and Auditing Ombudsman as its subcategories. Conspicuous here is the lack of the “mediator model” of ombudsman, which is usual in Southern Europe. There is also a clear emphasis on the economic perception of the institution, embodied in the Anti-Corruption and Auditing variants of the classification. Conceptually these can be linked with the World Bank’s definition of good governance, which potentially stresses governance performance and efficiency over democratic aspects (Erkkilä and Piironen 2014). The drive for good governance has been a motivation for developing countries’ adoption of the ombudsman (Fombad 2001; Sarker and Alam 2010), being also a guideline for non-democratic Asian countries of high economic performance such as Hong Kong (Cheung 2009). The IOI also stresses the link between the ombudsman and good governance. It also states that the “specific role of the Ombudsman institution may vary” from one country to another.11 The heterogenic nature of the ombudsman institutions globally obviously also gives a motivation for the accreditation work of the ICC and the coordinative activities of regional associations and institutes. The World Bank and the ICC (later GANHRI) seem to conceive of the ombudsman institution somewhat differently, or at least highlight different aspects of it. While the ICC discusses the institution specifically in the context of the human rights, the World Bank sees it more broadly as an institution of good governance and “quality of governance”, implying performance and efficiency. Indeed, one could perceive an appealing link between the quality of governance and the ombudsman institution. Figure 2.2 shows a regression chart, where the countries’ “quality of governance” (based on World Bank Institute’s Worldwide Governance Indicators) is assessed against their GDP. There is an apparent difference between the countries with an ombudsman or a similar complaint handling body (value 1) and those that do 10  World Bank [http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPUB LICSECTORANDGOVERNANCE/0,,contentMDK:23543235~pagePK:148956~piPK:2 16618~theSitePK:286305,00.html]. 11  International Ombudsman Institute [http://www.theioi.org/the-i-o-i].

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Fig. 2.2  GDP and quality of governance scores by adoption of ombudsman or similar complaint handling body

not have one, as those countries with the institution in place perform categorically better than countries with similar GDP scores that do not have it (value 0). The point I wish to make here is that the global indicator data helps to make simplified assessments of differences between countries regarding institutional legacies. Institutions of development economics are increasingly engaged in comparative assessments of nation states. In the past two decades there has been a surge in global country comparisons and rankings that are also instances of the transnational discourse on good governance and economic competitiveness. While many of the indicators have been produced by international NGOs, international organizations are also keen to enter the field of ranking in the name of their institutional interests (Freistein 2016). The rankings also function as mechanisms of transnational governance, and there is great reflexivity over the figures in the countries that are being

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assessed, as the actors on national level adhere to the tacit policy feed of the rankings (Erkkilä and Piironen 2009; Löwenheim 2008). Countries’ institutional arrangements are easily transformed into broad macro-level explanations of economic performance, quality of governance or the state of democracy. Some observers have drawn a direct link between the high ranking of countries in these global comparative assessments and the existence of the ombudsman institution. For instance, New Zealand’s high ranking in Transparency International’s Corruption Perception Index is now seen as a direct result of having a well-established ombudsman (Pohekar 2010, 70). Obviously, to simply establish a link between the ombudsman institution and a measure of good governance is much too straightforward and overlooks various institutional and contextual aspects. But the simplistic information of country rankings has nevertheless created a political imaginary, where specific institutional arrangements are singled out as means for improving public sector performance and national economic competitiveness. This perception is ahistorical and gives little consideration to the limitations for copying institutions from one context to another (Przeworski 2004). Some of the global assessments of good governance—for instance, the Actionable Governance Indicators of the World Bank—include indicators that measure whether a country has an ombudsman and what its mandate and institutional status are. These indicators increasingly function as policy instruments, used to assess developing countries’ eligibility for external funding (Erkkilä 2016). As an attribute of good governance indicators, the ombudsman is potentially perceived as one of the policy measures that countries are expected to fulfil to secure funding. The Freedom House country reports also prominently cite statements of national ombudsman institutions, and the reports follow closely the institutionalization of ombudsman in assessed countries. As the above examples show, there is a link between the policy script on the ombudsman institution and the rankings and indicators of human rights and good governance. This creates further pressure on countries to adopt the institution. Transparency and the Ombudsman The global spread of the ombudsman finds a parallel in another institution of Swedish origin, the information access law (Bennett 1997). Often regarded as a Nordic feature of governance (Harlow 2006, 193), freedom

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of information has now become a global feature of governance, as countries have raced to adopt it (Berliner 2014). Here too, we see different national models, where the implementation of the legislation as well as its contextual use differs (Worthy 2017; Hazell and Worthy 2010). Moreover, there are conceptual shifts, as access to government information has shifted from democracy to economic efficiency, often discussed under the label of transparency (Erkkilä 2012). There is now a perceived link between the quality of governance and the ombudsman institution. What is important here is the conceptual shift of ombudsman, which is now increasingly seen as an institution of good governance. While access to government information is in many ways an essential tool for the ombudsman institution to function, the above ideational shift has further linked the institution to the notion of transparency and access to government information. Similar explanations are used for the diffusion of the ombudsman and transparency. First, there are arguments addressing a specific function that the institutions have had in the context of adoption (Bennett 1997; Konstari 1977). Second, the proliferation of the ombudsman and transparency are linked with the general process of global democratization and the spread of human rights (Cardenas 2014; Rose-Ackerman 2005; cf. Landman 2013). The third line of argument highlights the cultural and ideational aspects of the diffusion and the role of international actors in promoting the institution (Alasuutari et al. 2015; Erkkilä 2012; Blomgren and Sahlin 2007). In the twentieth century, the diffusion of the ideas on “freedom of information” legislation (as well as privacy and the ombudsman) has long been taken as example of political innovation (Rowat 1973, 1979). This diffusion of ideas used to be mostly horizontal, from one national context to another, but is now increasingly becoming vertical, from supranational organizations to national polities (West and Sanders 2003; Knudsen 2003; Harlow 2006). The converging standards in public information are discussed under the notions of transparency and good governance. The international diffusion of governance ideas concerning transparency now encompasses newly industrialized countries, even autocracies (Rodan 2004; Samaratunge et  al. 2008; Cejudo 2008; Lynden and Wu 2008; Liu 2016). The motivations for adopting transparency are increasingly linked to perceived economic gains (Azubuike 2008), and the institution currently has a highly symbolic value for countries that adopt it.

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Table 2.2 outlines the institutional history for adopting the information access laws. In the European context, the institutional practice of making government documents public dated as far back as the eighteenth century in Sweden. Though the publicity of the state affairs was a topical issue in several places in eighteenth-century Europe, they first gained institutional status in Sweden in 1766 (Konstari 1977; Knudsen 2003; Gestrich 1994; Würgler 2002; Dülmen 1986; Martens 1971; Eijnatten 2004). There are general features in the adoption (and non-adoption) of access laws in the twentieth century (Bennett 1997), but country-specific studies stress historical explanations (Durham Peters 2005; Rose-Ackerman 2005; Knudsen 2003; Thurlow 1994; Owen 2000; Spence 2000; Grønlie and Nagel 1998; Tant 1993; Häner 1990; Robertson 1982; Høgetveit 1981; Konstari 1977). In many ways, the global history of freedom of information parallels that of ombudsman. Looking at the Table 2.2, the general trend of how the information access laws are adopted bears similarities to that of ombudsman. Initially the Nordic countries adopted the institution along with the United States. Several Central European countries and British Commonwealth countries followed in the 1970s and 1980s. In the 1990s the post-communist countries adopted the institution, similar to the ombudsman. We also see a rapid increase in the early 2000s, when the institution was adopted by many developing countries. As with the ombudsman institution, access to government information has become a token of good governance. Promoted by international organizations such as the World Bank and the OECD (OECD 2003, 2005; Weiss 2000; Drechsler 2004), transparency is now part of a global policy script on good governance. Countries are adopting information access laws also in hoping to attract foreign direct investments (Azubuike 2008; Rodan 2004), which has stressed the economic perspective on the ­institution. This is linked to the new economic ideas of transparency, where access to information is an important element of market performance (Stiglitz 1998, 2002, 2008). Seen from this perspective, transparency does not necessarily imply democratic accountability (Rodan 2004). However, even if there might be perceivable parallels in the adoption of the two institutions, it is important to note that their global diffusion has proceeded somewhat differently. Figure  2.3 shows the diffusion of ombudsman institutions and similar complaint handling bodies (national level) and information access laws between 1950 and

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Table 2.2  Global adoption of information access laws (year when legislation came into force) =>1980s

1990s

2000–2004

2005–2009

2010s

Sweden (1766) Finland (1951) United States (1967) Denmark (1970) Norway (1970) France (1978) Netherlands (1980) Australia (1982) New Zealand (1983) Canada (1983) Colombia (1985) Greece (1986) Austria (1987)

Italy (1990) Hungary (1992) Ukraine (1992) Portugal (1993) Belgium (1994) Belize (1994) Iceland (1997) Thailand (1997) Uzbekistan (1997) South Korea (1998) Ireland (1998) Latvia (1998) Israel (1999) Albania (1999)

Lithuania (2000) Czech Republic (2000) Georgia (2000) Liechtenstein (2000) Bulgaria (2000) Moldova (2000) Japan (2001) Trinidad (2001) Estonia (2001) Slovakia (2001) South Africa (2001) Romania (2001) Bosnia and Herz. (2001) Poland (2002) Angola (2002) Pakistan (2002) Panama (2002) Tajikistan (2002) Zimbabwe (2002) Mexico (2003) Armenia (2003) Croatia (2003) Kosovo (2003) Peru (2003) St. Vincent and Gren. (2003) Slovenia (2003) Jamaica (2004) Serbia (2004) Turkey (2004) Antigua (2004) Argentina (2004) Dominican Republic (2004) Ecuador (2004)

United Kingdom (2005) Azerbaijan (2005) India (2005) Montenegro (2005) Taiwan (2005) Switzerland (2006) Germany (2006) Uganda (2006) Honduras (2006) Macedonia (2006) Jordan (2007) Kyrgyzstan (2007) Nepal (2007) Nicaragua (2007) China (2008) Bangladesh (2009) Chile (2009) Guatemala (2009) Uruguay (2009) Cook Island (2009)

Ethiopia (2010) Russia (2010) Guinea (2010) Indonesia (2010) Liberia (2010) El Salvador (2011) Mongolia (2011) Niger (2011) Nigeria (2011) Tunisia (2011) Brazil (2011) Malta (2012) Yemen (2012) Rwanda (2013) Guyana (2013) Sierra Leone (2013) Spain (2013) Ivory Coast (2013) Maldives (2014) Paraguay (2014) Burkina Faso (2015) Kazakhstan (2015) Sudan (2015) Kenya (2016) Philippines (2016) Sri Lanka (2016) Tanzania (2016) Togo (2016) Vietnam (2016) Vanuatu (2016) Malawi (2016) Lebanon (2017) Cyprus (2018) Luxembourg (2018)

Sources: Fringe Special, FreedomInfo

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180 160 140 120 100 80 60 40 20 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

0

Ombudsman or similar complaint handling body

FOI

Fig. 2.3  Global spreading of ombudsman institutions or similar complaint handling bodies and freedom of information laws (The figure indicates different patterns of global spread of these institutional forms over time. However, it should be noted that the while the FOI laws are adopted by independent states, the entries to the ombudsman list also covers dependent territories, visible in their higher number. See Fig. 2.1 for details.)

2014. The global spread of the ombudsman has been quite steady since the 1970s, whereas the adoption of information access laws rose sharply after the mid-1990s, when transparency became codified as a key element of good governance. As Tables 2.1 and 2.2 show, the Nordic countries adopted both institutions at an early stage. There are many countries that adopted an ombudsman already relatively early on but which adopted an information access law at a rather later stage, presumably after it became a “global norm” in the 1990s, such as the UK and Germany. However, though their global institutional histories also point to ­different patterns of adoption, the two institutions now meet under the umbrella of good governance. The global policy scripts also function as epistemic capital that actors can evoke to promote their agendas on a local level (Alasuutari et al. 2015; Sahlin and Wedlin 2008). For example, transparency has become a cause

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to promote for the Romanian Ombudsman (Hossu and Carp 2011). Similar developments can even be seen in the Finnish context, where the ombudsman was adopted already in 1919. Initially a legal overseer (Hidén 1973), the Finnish Parliamentary Ombudsman became reframed as a guardian of human rights in the 1990s (Hidén 2000) and an institution of good governance in the early 2000s (Arjola-Sarja 2010). This reframing follows the ideational shifts around the institution that are communicated transnationally. This also draws a clear ideational link to the access of government information, also a traditional feature of Finnish governance, that has equally been reconceptualized according to transnational policy scripts of good governance, moving it from the semantic field of democracy to that of governance performance and economic efficiency (Erkkilä 2012). The ideational link between transparency and the ombudsman is most apparent in the EU context, where good governance has become the primary domain of the European Ombudsman (see Chaps. 5 and 6). The majority of its annual cases concern the access to EU documents, being 29.6% of all cases in 2016 (European Ombudsman 2016, 37). This is also the result of a deliberate strategy and boundary work of the European Ombudsman that found its place in the inter-institutional setting of the EU by framing itself as an institution of good governance (Erkkilä and Kauppi 2017), coinciding with the crisis of EU governance and rise of “good governance” as a global policy script (Cini 2007; European Commission 2001; Gammeltoft-Hansen 2005; Zanotti 2005; Drechsler 2004). European Union, the Ombudsman and Human Rights The EU has its own ombudsman institution, the European Ombudsman, which has been operating since 1995. I will come back to this in Chaps. 5 and 6. However, the EU has also been active in promoting the ombudsman globally. The EU policies to promote the ombudsman have mostly been drafted in the context of its external relations. Noteworthy in this is the conceptual shift where the ombudsman becomes subsumed under a more general notion of human rights defender, owing to the UN. This shift is evident in the EU’s Annual Human Rights and Democracy in the World Report, which has been published since 1999 (Council of the European Union 2015),12 prepared initially by the Commission Directorate

 Named Annual Human Rights Report until 2008.

12

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General and since the Lisbon Treaty came to effect in 2009 by the European External Action Service. The EU’s Treaty of Lisbon—granting EU citizens the right to complain to the European Ombudsman—marks the conceptual shift. The reports prior Lisbon also discussed the EU’s internal human rights policies and actors, mentioning the ombudsman explicitly as a principle actor in human rights matters (Council of the European Union 2000, 2001, 8–9, 2002, 13, 15, 2003, 7, 10, 2004, 2005, 10–11, 2007a, 20, b, 19). Moreover, the ombudsman institution was also referred to in the context of treaty reforms concerning the Charter of the Fundamental Rights (Council of the European Union 2001, 13). However, since the Treaty of Lisbon, the focus has turned to the EU’s external human rights policies and the ombudsman institutions are now only mentioned in country-specific reports or bilateral contexts (Council of the European Union 2000, 36; European External Action Service 2012, 130, 189). In the EU’s policy and strategy documents, the ombudsman becomes subsumed under principles concerning human rights defenders, which seems to be a strategic choice. The so-called Hautala report of the European Parliament sees the vagueness of the term Human Rights Defender in the UN declaration as an advantage and urges the Council and the Commission as well as established EU programmes to share this approach (European Parliament 2010, 6, 21).13 The EU’s recent global strategy addresses the human rights defenders highlighting non-state and civil society actors (European External Action Service 2018k, 27, 43). The EU has also published guidelines on the protection of human rights defenders, mentioning supporting the ombudsman institutions’ capacity building (European External Action Service 2008, 8). Otherwise, the document refers more broadly to Human Rights Defenders. The EU funds and supports ombudsman institutions and their establishment through the European Instrument for Democracy and Human Rights (EIDHR) (Council of the European Union 2002, 271, 275, 2007a, 72, 2014, 346, 2017, 42), though the concept “ombudsman” is not explicitly mentioned in the EIDHR strategic documents

13  “[The European Parliament] welcomes the fact that the UN Declaration of 1998 does not provide a strict definition of ‘human rights defenders’ and in this sense, calls on the Council and the Commission to strongly support this approach” (European Parliament 2010, 6).

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(European Commission 2015), which instead talk about Human Rights Defenders as defined by the United Nations (OHCHR 2018). The ombudsman institution is mentioned in most European Neighbourhood Policy (ENP) action plans, and there are also objectives to strengthen or develop NHRIs (European External Action Service 2018a, 4, b, 11, c, 6–7, d, 14, e, 4, f, 7–8, g, 5, h, 7, i, 5, l, m, 2). In ­addition to ENP action plans, the ombudsman is promoted in the Eastern Partnership programme (European External Action Service 2018j, 3–4). The ombudsman features here particularly in the context of democracy and human rights. The Council of Europe and the UN stand out as ideational sources for the EU policies. The UN Paris Principles and declaration on Human Rights Defenders are referred as general principles (European External Action Service 2018a, 4, d, 14, i, 5, m, 2; European Parliament 2010, 3), while the Council of Europe appears as a partner and benchmark in practical implementations (European External Action Service 2012, 189, 2015, 106; European Parliament 2010, 17). In short, there is a conceptual shift in the EU policies, where the global human rights discourse is increasingly taking hold and concept of “ombudsman” semantically shifts under the notion of “human rights defender” (Koselleck 2004). As I discuss in Chaps. 5 and 6, this conceptual shift is relevant to the work of the European Ombudsman, an expert organization already running the European Network for Ombudsmen (ENO), who is not a stakeholder in the above policies. Here, classifications function as mechanisms of inclusion and exclusion, as the notion of “human rights defender” complies poorly with the mandate of the European Ombudsman, who only handles cases concerning EU citizens’ dealings with the EU institutions, effectively excluding human rights cases. But there is an interesting recent development in the European debate as in March 2019 the so-called Venice Commission of the Council of Europe adopts its own “Principles on the Protection and Promotion of the Ombudsman Institution” naming them “Venice principles” (Council of Europe 2019). Citing concerns over rule of law in Europe and ombudsmen being subjected to threats, the Venice principles aim to establish common standards for European ombudsmen. The Venice principles are in many respects aligned with the Paris Principles of the UN, but instead of perceiving ombudsman solely as a human rights institution (cf. United Nations General Assembly 1993, 1), the Venice principles consider more generally as a legal overseer, noting that the ombudsman’s mandate “shall

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cover prevention and correction of maladministration, and the protection and promotion of human rights and fundamental freedoms” (Council of Europe 2019, 4). Handling and investigating of complaints is identified as ombudsman’s key function (Council of Europe 2019, 5), which is rather seen as optional in the Paris Principles (United Nations General Assembly 1993, 2–3). The selection criteria and term limits are also more legalistic and stricter than in the Paris Principles (Council of Europe 2019, 4; United Nations General Assembly 1993, 2). Here the Ombudsman seems to make a return to its roots amid concerns over rule of law in Europe, though the human rights discourse is still very much present in the Venice principles. Summary: Global Models of Ombudsman In short, there is a global discourse on ombudsman “models”, shared by various actors promoting the institution. There are apparent conceptual shifts in the debate, as the ombudsman has shifted from general democratic and legalistic connotations towards ones of human rights and then later good governance. While there is not necessarily a single rationality behind the promotion of the institution, there seems to be a shared conviction about its importance (cf. Haas 1992), despite great differences in the actual implementation of the institution on national level. One of the compelling elements of this discourse is the global reach of the institution, now covering most independent states. However, the narrative on diffusion often portrays the process as inevitable and does not reflect much on the actual mechanisms behind it. As I have argued above, there are different phases in the global adoption of the ombudsman that cannot be understood as a single process. The notion of diffusion itself is closely tied to the narrative of ombudsman’s global spreading, also now put forward by the international organizations. This narrative of global diffusion potentially obscures the phases of this process and the different motivations on the part of countries in adopting the institution. Moreover, it bypasses the role of transnational actors in the process—the focus is on the countries adopting the institution and their motivations to do so. Another problem in this debate is that it is increasingly difficult to identify a clearly defined institution or idea spreading from one context to another. As discussed above, there have been shifts in the conceptualization of the ombudsman as it has moved from its legal origins to the

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sphere of human rights and then to good governance, now also covering notions of economic efficiency. Consequently, the functions of the ombudsman institution and ideas behind it vary a great deal from one country to another. Are we observing the diffusion of the same institution? Marcussen has discussed a similar problem in his research on the diffusion of central banks and related policies (Marcussen 2005); in his view, what matters in the end is the meta-concept and its diffusion, not the actual functionality. In other words, countries are adopting an idea of ombudsman, not necessarily the institutional functions that it has had in its original context. Another perspective on the matter would be that while we may see a diffusion of an idea, it may be the result of a process of translating and editing the idea in a local context (Sahlin and Wedlin 2008). Therefore, the diffusion is hardly a testimony to the power of the idea but rather the transnational actors’ ability to shape it to fit their needs. Transnationally diffusing organizations are also resources of epistemic capital that local actors can use to pursue their agendas (Alasuutari et al. 2015). This offers a perspective for understanding the different functions that the ombudsman has obtained in its new contexts, as well as the motivations for adopting it. Most of the research on the diffusion of the ombudsman aims to uncover the motivations of countries for adopting the institution. There are no comprehensive analyses about the motivations of those promoting the institution. While transnational actors have an increasingly important role in the spreading of the institution, they also have an interest to engage this process, as it further legitimizes their expert position. The ombudsman has an instrumental value for the institutions of development economics as it serves as a policy prescription for countries to follow. The transnational codification of NHRIs has made the ombudsman an apparent model for countries to adopt, but rather than a diffusion of the (single) innovation or idea, we are witnessing re-descriptions of the (meta-)idea. Those international organizations and NGOs that promote the institution are also engaged in the process of redefining it. This has contributed to the varieties in the ombudsman institutions, which again highlight the need for accreditation activities of the GANHRI. The historical narrative on the global diffusion of the institution provides further backing for the policy feed and its assumed causal effects. This entails a shared underlying governmental rationality (Larner and

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Walters 2004; Miller and Rose 1990) that carries normative and causal beliefs typical to epistemic communities in international policy coordination (Haas 1992). But it seems that the core idea of the institution has become less apparent. As the institution spreads globally, its link to democratic governance is becoming weaker.

The Ombudsman and Democracy The world society theory draws attention to decoupling between the global models and their national applications (Meyer et al. 1997; Ramirez 2012; Cole and Ramirez 2013). In other words, the way a model is implemented locally might often not fully correspond with the original idea or model. While it would be difficult to argue for a particular core idea of the ombudsman, its different conceptualizations are linked to democracy. However, the link between the ombudsman institution and democracy seems to be weakening. Figure 2.4 shows the mean scores on the Freedom House political rights and civil liberties aggregate scale for countries.14 Countries are grouped according to the year of adoption with an additional category for countries that have not adopted the ombudsman institution or similar complaint handling body. The mean scores for the countries that adopted the ombudsman institution before 1980 are significantly higher than for the other groups. In fact, for each later group of adopting countries the scores are lower than the ones before. The lowest scoring group is that of countries without such institution.15 We should note that the Freedom House data has been criticized for its narrow conceptualization of democracy as well as its potential biases (Bollen and Paxton 1998, 2000; Piironen 2005; Steiner 2016), but the aim here is not to analyse statistically the effects of the adoption of the ombudsman or the reasons leading to its adoption but to point out that the contexts where these institutions exists are becoming very heterogenic on this mainstream democracy index. In Freedom House’s political rights and civil liberties data for 1980, the countries that had adopted the ombudsman (i.e. before the 1980s) had significantly higher mean scores 14  Freedom House, Methodology [https://freedomhouse.org/report/freedom-world2016/methodology]. 15  An analysis of variance between the groups shows that the differences in the means are statistically significant.

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Fig. 2.4  Democracy and ombudsman or similar complaint handling body (grouped by year of adoption)

in the Freedom House scale than other countries. Here, the relationship of the ombudsman institution to democracy is apparent. This is also the era before the transnational communication of the institution. In the 1990 data, the countries that had adopted the institution before 1980 are separated from those that had adopted the institution between 1980 and 1990. The countries that had not adopted the institution also appear as a separate group. There is a clear difference in terms of democracy between countries that adopted the ombudsman and those that did not. While the countries that have adopted the institution before 1980 received higher scores than those that had adopted between 1980 and 1990, the differences are rather modest. But as the global spread of the ombudsman intensifies in the 1990s, the link between the democratic governance and adoption of the ombudsman or similar complaint handling body is becoming less clear. The Freedom

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House political rights and civil liberties data from year 2000 shows that countries adopting the institution between 1990 and 2000 score significantly lower than the previous groups of countries. The difference is most apparent between those countries that adopted the institution before 1980. Indeed, the countries that adopted the institution between 1990 and 2000 are closer to the group of countries that has not adopted the institution by 2000. The situation in 2010 is shown in the final figure. The same trend continues and the countries that adopt an ombudsman institution or similar complaint handling body between 2000 and 2010 score lower than the previous groups, though there is a small difference in the means compared to the previous group (adoption 1990–2000). Furthermore, there is only some two-point difference in the Freedom House scores between the group of countries that adopted the institution 2000–2010 and those that do not have the institution in 2010. All in all, the link between democracy and adoption of the institution is becoming less apparent. While the above analysis does not aim to assess the effects of the adoption of the institution or the reasons leading to its adoption, it is clear that because of the intensive diffusion of the institution since 1990, it now exists in very heterogenic contexts. The ombudsman institution is no longer an institutional arrangement of democratic states but rather a general policy instrument of global scope. This change has been most apparent since 1990, where the transnational governance intensifies, and there are conceptual shifts concerning the institutions, reflected also in the difficulty of classifying and defining ombudsman institutions. To some extent the weakening link between the institution and democratic governance is commonsensical, as the institution now exists all over the world. But at the same time, there is little reflexivity over this state of affairs by the organizations that are promoting ombudsman globally. The narrative of diffusion makes a seeming claim for democratization and modernization that undoubtedly still are the key motivations for adopting the institution. But at the same time, the symbolic aspects of having the institution in place have risen significantly. As with the global fight against “corruption” (Ivanov 2009) and drive for “transparency” (Erkkilä 2012), international interest in the “ombudsman” seems to have gained strength due to the vagueness of the concept. Nevertheless, the ombudsman as global institution is also increasingly being linked with the UN human rights system and codifications of NHRIs, which also affects the existing ombudsman institutions.

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Conclusions Existing research has explained the global spread of ombudsman in functionalist terms as a remedy to a specific problem, or as an outcome of global democratization process, involving local activism and social movements. There are also cultural explanations for this diffusion that link it to the global models and norms—such as international standards in human rights—that countries adopt in their pursuit to fulfil the international criteria of the “modern state”. While the initial spread of the institution could perhaps be perceived in functionalist terms and as democratization, starting from 1990s many countries have adopted the institution as an attempt to comply with the UN standards. Previously mostly understood as a legal overseer, the ombudsman is now identified as a NHRI. The transnational discourse on good governance promoted by organizations such as the World Bank has also come to embody the institution, drawing it into the debates on government performance and efficiency. On a general level, the case fits well with the world society theorizing, which has highlighted the global diffusion of institutional forms and the role of the international organizations in this process. But there are certain problems with the debate on ombudsman’s global diffusion as echoed by the transnational actors promoting the institution. First, the narrative often portrays the process of diffusion as inevitable and does not reflect enough the actual mechanisms and contextual factors involved. Second, the narratives on diffusion assume a relatively clearly defined institution that is spreading from one context to another. However, the concept of ombudsman is vague and subject to ongoing re-descriptions. In fact, it seems that the vagueness of the concept is closely related to the expansion of the institutional form. The loose conceptualization is not only a result of the spread of the institution to various contexts but also facilitates this, as actors can to certain extent shape it to fit their needs. Third, while the role of international actors in the diffusion process is acknowledged, their motivations and ideational input would need further attention. International organizations have had a major influence in the global adoption of the ombudsman, but also on the ideational shifts of the concept. As scholars have pointed out, national actors often refer to international organizations and their policy recommendations, such as the ombudsman, when seeking legitimacy for their actions. But in similar fashion, references to the global ombudsman model now also legitimize the

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expert position of international policy actors and their policy prescriptions. Following the global diffusion of the ombudsman institution in its different variations, the link between the institution and democracy has become weaker. This is particularly apparent starting from the 1990s, when the codification of the NHRI made ombudsman a perceived model for fulfilling the criteria of a modern state, providing countries an ­additional motivation to adopt the institution. But instead of depicting this solely as a problem of countries adopting the institution, we also need to consider the role of transnational policy actors, ideational shifts in the conceptualization of the ombudsman and historical narratives of diffusion that potentially come to hide them. As I discuss in the following chapters, the global models and imaginaries are also relevant to the institutional development of existing ombudsmen, legitimating institutional choices and giving a sense of orientation.

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PART II

Ombudsman in Finland

CHAPTER 3

Institutional History of the Ombudsman and Chancellor of Justice in Finland

Introduction The international diffusion of the ombudsman institution has often been attributed to the global drive for human rights and the work of international organizations to promote them (Koo and Ramirez 2009). While the focus of existing research on human rights and the ombudsman has been on the global diffusion of the institution, the above ideational shifts and global models have also influenced the way the institution functions in Finland, where it has existed for 100 years. Adopted in 1919 from Sweden, this institution of democratic accountability has evolved over time also relying on transnational ideational shifts, which have had a major impact on how the institution functions and communicates itself to citizens. The intra-institutional context makes the Finnish case particularly interesting. Finland has two legal overseers: the Finnish Parliamentary Ombudsman and the Chancellor of Justice. Their mandates are almost identical, allowing citizens to complain to either institution. In essence, these legal overseers assess the legality of the use of public power based on complaints made by citizens. While the institutions may also launch inquiries on their own, complaints make up the majority of cases by far.1 The 1  The Ombudsman and the Chancellor of Justice investigate complaints and may also launch own investigations to observe the lawfulness of activities by public authorities and officials as well as other actors performing public functions.

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legal overseers are not part of the judiciary like courts, but nevertheless have a major influence through their public decisions. In many ways, the institutions live off publicity and can be seen as potential rivals from the perspective of citizens: in most cases, citizens could complain to either one of the institutions, except in cases concerning the prison system and the military, as these are always handled by the Ombudsman. There is a clear case of institutional rivalry and even a conspicuous interdependence in the number of their cases. Here the Chancellor of Justice provides an interesting test case for the institutional development of the Finnish Ombudsman that becomes entangled in the global ideational shifts around the ombudsman institution. This and the following chapter examine how transnational policy scripts of human rights and the international coordination on the ombudsman grant national actors epistemic capital and international reference points that help them to promote their interests in their own institutional field (cf. Alasuutari et al. 2015). In Finland, the Ombudsman institution becomes a dominant legal overseer with the help of the global discourse of human rights. The Finnish Parliamentary Ombudsman actively adopted the promotion of human rights as its cause, allowing it to communicate its activities to the general public (cf. Schmidt 2010). External factors are equally important, and the collapse of Soviet Union and the end of Cold War appears as a critical juncture in the development of the institution in Finland.

Two Legal Overseers Previous research on the Finnish legal overseers has focused on their interrelations from a legal perspective (Pajuoja and Pölönen 2011). There are studies that focus on the Finnish Parliamentary Ombudsman, exploring its institutional development from a legal historical perspective (Hidén 1970, 1973; Koskinen 1997; Kuusikko 2011) as well as particular aspects of its activities (Laitinen et al. 1985; Väätänen 2011). Previous research has also covered the formation of the position of the Chancellor of Justice in 1917–1919 (Inha 1997). The Chancellor of Justice also commissioned an organizational history, focusing on the holders of its office and cases investigated from 1944–2008, and addressing the relations of the two legal overseers (Seppinen 2009). In addition, the Ombudsman has produced publications to celebrate the 80th, 90th and 95th anniversaries of the institution.

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The Finnish legal and administrative system has its roots in Swedish rule, which is also apparent in the existence of Finnish legal overseers. Like Sweden, Finland has both an Ombudsman and a Chancellor of Justice, though currently the mandates of the Finnish and Swedish variants differ. The “Justitieombudsman” was introduced in the Swedish legal order in 1809 when Finland was still part of Sweden, but the first reference to the term “ombudsman” was made already in 1713 when the position of Chancellor of Justice was adopted (“högste ombudsman”). But in 1719 the language altered to “Justitiekansler”—Chancellor of Justice, associated with the king (Kuusikko 2011, 25–26; Pajuoja and Pölönen 2011). The Chancellor of Justice was nominated by the king, but during the Frihetstiden (“Age of Freedom”, 1719–1772), the right of nomination was for a short period (1766–1772) given over to the Diet, formed by the Estates. During this time, the Chancellor of Justice transformed from king’s legal officer to a more general institution for controlling civil servants, now reporting to the Diet. This period is also identified as the root of the later (parliamentary) Ombudsman institution (Axberger 2009, 2014, 13; Pajuoja and Pölönen 2011, 21), though the institution is also more generally rooted in the idea of complaining to the king (Kuusikko 2011, 26–27).2 At the end of the Frihetstiden era (1766–1772), the Chancellor of Justice also acted as a general attorney, which also led it to oversee the 1766 Press Freedom Act (Pajuoja and Pölönen 2011, 22), the world’s first law to grant access to government information. But starting from 1772 the Chancellor of Justice was again transformed into the King’s institution, solely responsible to the King (Inha 1997, 38–41), becoming very influential with several legal tasks (Pajuoja and Pölönen 2011, 24–25). The so-called Finnish war (1808–1809) between Sweden and the Russian Empire led to Finland’s annexation as an autonomous Grand Duchy of Russia. Defeated in the war, Sweden adopted a new constitution in 1809, which included the Justitieombudsman, the first parliamentary Ombudsman. In Finland, the administrative system of Swedish origin remained largely intact under Russian rule (1809–1917). The work of the Chancellor of Justice was continued in Finland under the title of Procurator, a legal supervisor of Russian tradition that observed legality under and for the 2  This has also added confusion to historical origin of the Ombudsman (Pajuoja and Pölönen 2011, 15–20).

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Governor-General (Seppinen 2009, 40). The Procurator was a general legal overseer and Attorney General embodied in a single institution that was also responsible for legal oversight of the senate. In fact, while the Swedish Chancellor of Justice had been briefly granted the right to oversee the Freedom of Press Act, the Procurator as an agent of the Russian Emperor was made responsible for censorship in Finnish Grand Duchy (Pajuoja and Pölönen 2011, 37–38). After Finland gained independence in 1917, the institution continued as the Chancellor of Justice. During the first two years of independence, 1917 and 1918, the Chancellor of Justice remained rather inactive, but was drawn into political struggles between monarchists and those in favour of a republican form of government, which led to Finland becoming a republic and election of the first Finnish president in 1919, who also had the right to appoint the Chancellor (Inha 1997, chap. 4; Pajuoja and Pölönen 2011, 89–99). Finnish legal and administrative system had its roots in Swedish state tradition and the newly independent country copied its constitution and related institutions from Sweden. The Ombudsman institution, adopted in 1919, stands as an example of this. Consequently, Finland now had two legal overseers, the Chancellor of Justice, an independent institution under the executive powers, and the Finnish Parliamentary Ombudsman, residing with the legislature. The above development where an institution shifts between being a monarch’s means of control to becoming an institution of controlling government is in keeping with the concept of “accountability” that has its root in the royal legal traditions of England before the rise of modern bureaucratic state (Dubnick 2005; Erkkilä 2007, 5). The Nordic countries are seen as representatives of the so-called “classical” ombudsmen, but arguably Sweden and Finland stand out as representatives of its “first generation”, being firmly rooted in the legal order and observing the misuse of power against objective legal criteria, while the Danish and Norwegian Ombudsmen are part of the “second generation” with more limited mandate as legal overseers (Remac 2013, 64–65). Internationally speaking, Finland’s adoption of the ombudsman institution is a separate event, largely to be understood against the history of the country. Sweden and Finland still stand out as similar cases with both countries having an Ombudsman and a Chancellor of Justice.

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In terms of the global history of ombudsman, Finland makes an interesting case as the first country in which the institution was copied. Finland also stands out as a context where the administrative system bears significant similarities to Sweden, making it a likely context for the institution to succeed. Moreover, considering the global spread of ombudsman where various countries are now adopting this legal instrument, the Finnish Parliamentary Ombudsman has existed for 100 years, providing a perspective for analysing its institutional evolution and related ideational shifts. While the global diffusion of the ombudsman is often associated with the global discourse of human rights and, more recently, good governance, I wish to show how these discursive shifts have influenced the institutional development of Ombudsman in Finland. The Finnish case is peculiar as there are in fact two institutions of similar profile in place; both the Finnish Parliamentary Ombudsman and the Chancellor of Justice act as legal overseers in Finland. The institutional history of Ombudsman in Finland therefore is closely linked to that of its peer institution. The joint history of these two institutions therefore provides a further test case for how global discourses of human rights and good governance are adopted by the Ombudsman on a national level.

Ideational Shifts and Institutional Development of Ombudsman in Finland The Ombudsman had a difficult start in Finland. In the second annual report of the Finnish Parliamentary Ombudsman (published 1922), the first Ombudsman himself proposes abolishing the institution (Eduskunnan oikeusasiamies 1922, 38–39). The reason for this was the small number of complaints filed with the Ombudsman. The post was overshadowed by the Chancellor of Justice, which had existed before and was known to the public. The proposal was dismissed and the institution was retained. The Ombudsman eventually found its place next to its institutional peer. In fact, 100 years later, the Ombudsman has become by far more dominant legal overseer, judged by the number of cases. Though the

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7000 6000

Cases

5000 4000 3000 2000 1000

1920 1923 1926 1929 1932 1935 1938 1941 1944 1947 1950 1953 1956 1959 1962 1965 1968 1971 1974 1977 1980 1983 1986 1989 1992 1995 1998 2001 2004 2007 2010 2013 2016

0

Year ObM cases

CoJ cases

Poly. (ObM cases)

Poly. (CoJ cases)

Fig. 3.1  Ombudsman and Chancellor of Justice cases, 1920–2017. (Source: Annual reports of the Ombudsman and Chancellor of Justice. Some additional data was received directly from the two institutions)

­ andates of these two institutions have changed slightly over time, they m remain rival institutions in terms of where citizens lodge their complaints about the misuse of public power. Figure 3.1 shows the number of cases handled by the two institutions between 1920 and 2017. In general, the caseload for both institutions has risen over the decades. Figure 3.1 also contains a linear polynomial trend line that helps to identify the two institutions’ relative increases and reductions of cases over the timespan.3 This shows that the Ombudsman remained above its trend line from the early 1930s until the turn of 1970s, whereas cases filed with the Chancellor of Justice remained below the trend line over the same period. Indeed, there is a clear interdependence between the cases of the two institutions: when the cases for one rise, the 3  It should be noted that the Ombudsman data concerns all annual reported cases, including complaints made by citizens and own inquiries initiated by the Ombudsman, whereas the data on the Chancellor of Justice is restricted on the amount of complaints. This does not really affect the results; in the interviews it was assessed that on average there might be some 20 own inquiries annually by the Chancellor. In 2016 there had been only nine own inquiries.

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cases for the other fall. This is most apparent in 1982 and 1983, when there is a sudden increase in the cases for the Chancellor of Justice and a similar drop in the number of cases for the Ombudsman. The reason for this was a widely publicized corruption case, where the Chancellor of Justice intervened actively (see below). Of particular interest for the analysis at hand is the massive difference between the cases of the two institutions from 1993 onwards, where the caseload of the Ombudsman institution grows rapidly compared to that of the Chancellor of Justice. This indicates public mediation of the institutions and citizens’ increasing awareness of their political rights. Furthermore, people’s willingness to exercise these rights is also linked to the discourses on fundamental rights and human rights (see below). While the parallel trends for the Chancellor of Justice and Ombudsman are largely characterized by harmonious co-existence and occasional rivalry, the Ombudsman institution undergoes a major shift at the turn of the 1980s and 1990s. Internationally, this coincides with the UN codification of NHRIs in the 1990s, linking the Ombudsman with the notion of human rights. As will be argued, the change in Finland is also linked to the global drive for human rights but should be understood against Finland’s legal culture and Cold-War history. Though the UN’s work on NHRIs has had more limited effect on Finland, the global discourses and coordination around the Ombudsman institution are significant in explaining how the Parliamentary Ombudsman has become a dominant legal overseer in Finland. But apart from the contextual and ideational changes, the Finnish case also highlights the role of individuals, as we will see below. This development becomes apparent from Fig. 3.2, which shows the differences in the cases between the Ombudsman and the Chancellor of Justice (N = Ombudsman cases−Chancellor of Justice cases). The Ombudsman had significantly fewer cases in the early years but starts receiving more cases after the activities of these institutions are coordinated in 1934 and the cases related to military and the prison system are moved under the competencies of the Ombudsman. The downward peak of 1983 corruption case aside, the relation of these institutions remains fairly unchanged until the late 1980s, when there is a rapid differentiation between the two institutions. While the discourse on human rights has had a major impact on the global spread of the ombudsman, it has also influenced the ombudsman institutions that were adopted already before. Finland’s Parliamentary

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5000 4000 3000

CASES

2000 1000

1920 1923 1926 1929 1932 1935 1938 1941 1944 1947 1950 1953 1956 1959 1962 1965 1968 1971 1974 1977 1980 1983 1986 1989 1992 1995 1998 2001 2004 2007 2010 2013 2016

0 -1000 -2000 YEAR

Fig. 3.2  Difference between cases of Ombudsman and Chancellor of Justice (1920–2017)

Ombudsman dealt with human rights from the turn of the 1990s, after having existed for almost 50 years (Hidén 1973, 2000; Rautio 2000). Furthermore, at the beginning of the 2000s, the Ombudsman incorporated the notion of good governance and monitoring the running of administrative processes (Arjola-Sarja 2010). Altogether, there has been an expansion of the activities of the institution from traditional legal overseer to guardian of human rights.4 From Early Years to Post-War and Capacity Building The Finnish Parliamentary Ombudsman had difficulties to establish its position. It was overshadowed by the Chancellor of Justice, which had existed before and was known to the population. The weakness of the Ombudsman institution in its early years was due to a lack of public awareness: there had been no proper public debate on the functions of the

4  This expansion is also acknowledged by the Finnish Ombudsman, making the theme of its 95th anniversary. Eduskunnan oikeusasiamies [http://www.oikeusasiamies.fi/dman/ Document.phx?documentId=ks32815102438920&cmd=download]

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Parliamentary Ombudsman (Hidén 1970, 2–3).5 Hence, there were hardly any cases filed with the Ombudsman in its first years. The first appointed Parliamentary Ombudsman even proposed doing away with the office (Eduskunnan oikeusasiamies 1922, 38–39), and in the early 1930s, the Chancellor of Justice proposed the Finnish government to abolish the Ombudsman institution. The Government took the bid to the Parliament, which decided against the proposal allowing the Ombudsman to continue its activities. The extreme right in Finland also wanted to abolish the Ombudsman institution and to transfer its tasks to the Chancellor of Justice. Those in favour of preserving the Ombudsman institution argued that it was exactly the position of the Ombudsman— appointed by Parliament and acting independently of the government and the presidency—that made its existence necessary. (Koskinen 1997, 23–24.) The intention of abolishing the Ombudsman showed a lack of institutional identity. The annual reports of the Ombudsman also contain active reflexivity over the co-relations and rivalry of the Ombudsman and Chancellor of Justice (Eduskunnan oikeusasiamies 1927, 25–26), framing this as a matter of balancing executive and legislative powers (Eduskunnan oikeusasiamies 1934, 9–10). The activities of the two institutions were coordinated in 1934 so that complaints related to the military and prison system were moved to the competencies of the Ombudsman. As a result, the Ombudsman received more complaints than the Chancellor of Justice, though the number remained somewhat constant during the Second World War. Over the years, this specific mandate has proved to be most important to the institutional identity and development of the Ombudsman, tapping into the rise of the human rights discourse in the 1990s (see below). Ironically, the 1934 annual report of the Ombudsman dismisses the proposal, arguing that the coordination of the mandates of the two institutions should be based in their division under the government and Parliament and opposed the proposal of making the Ombudsman solely responsible for cases concerning military and prisons, arguing that such complaints are often of “secondary importance” to the work of legal overseers (Eduskunnan oikeusasiamies 1934, 9–10). In fact, this led to the Chancellor of Justice to propose abolishing the Ombudsman institution, a bid defeated by Parliament (see above). In other words, not only did the 5  It is also important to note that overall public debate was still limited in the early 1920s, also owing to the historical lineages of the public sphere in Finland (Nieminen 2006).

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holder of the Ombudsman office not perceive the future potential of having the prisoners’ affairs as a sole mandate of the Ombudsman, he also was willing to risk the continuation of the institution altogether. This shows the limits of intentionality in the institutional design and institutional actors’ ability to anticipate future contexts. The new mandate of the Ombudsman became apparent in 1945 after the war as there were several retrospective complaints about the use of military law, causing a visible peak in cases. The post-war era is also characterized by a politicization of Finnish society, including student movements and increasing awareness of individual rights. This was reflected in the cases filed to the Ombudsman institution, which are rising during the post-war. Between the 1960s and 1980s, the Finnish welfare state was rapidly growing, which led to an increase in the spheres and scope of regulation exercised over individuals. This also explains the growing number of complaints over these years, as well as a shift in the subjects of complaint, which now concerned more social matters. Institutional (Re)positioning and Rise of Human Rights From the late 1960s and until the early 1990s, there was an increasing institutional competition between the Ombudsman and the Chancellor of Justice. The turn of the 1960s and 1970s was characterized by rising social turmoil due to foreign political pressure on the Finnish political establishment, the radical student movement and structural changes owing to urbanization, labour-based mass emigration to Sweden and the general rise of parliamentarism in Finland. The Ombudsman was better suited to navigate these developments and as the legal overseer associated with the Parliament it even benefited from them, while the Chancellor of Justice was drawn into the critique as an agent of establishment, “the crown lawyer” (Seppinen 2009, 123–26). This further led to attempts at redefining the mandates of the two institutions to “enhance their performance”, a task undertaken by a state committee on constitutional matters that ran from 1970–1974, though this finally failed to reach an agreement due to political conflicts around the matter (Seppinen 2009, 126, 132). But the debate did have the effect that the Ombudsman was now regarded as a legitimate peer of the Chancellor of Justice. The Ombudsman had also gained a position of Deputy Ombudsman (passed into law 1971, effective from 1972), despite the resistance of the Chancellor of Justice (Seppinen 2009, 125).

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The institutional rivalry is also apparent in this era, denoted by the media attention the two institutions received. As already mentioned, the activities of the Chancellor of Justice in a corruption case brought a sudden peak in its cases in 1983. The case in question was related to the building of the subway system in Helsinki. Kai Korte, the Chancellor of Justice at the time, took an active role in the so-called Metro case. After the initial charges were dropped, he took the case to a higher court in 1983, which led to a further increase in the number of complaints to the Chancellor of Justice. Consequently, citizens filed their complaints to the Chancellor of Justice instead of the Ombudsman. In 1983, 2154 complaints were filed to the Chancellor (compared to 1964 in the previous year and 1412 the year before). At the same year the Ombudsman’s number of cases sank to 1231 (from 1355 in the year 1982 and 1531 the year before). In similar fashion, the high media visibility of Jacob Söderman—who acted as Ombudsman from 1989–1995—led to a rise of complaints filed to the Ombudsman.6 This was particularly a result of the impeachment case of Minister Kauko Juhantalo, where the Ombudsman Jacob Söderman acted as the prosecutor amid the economic recession and the banking crisis of the early 1990s (Reinboth 1993a, b; Saari 2014, chap. 13). The court found Juhantalo guilty for attempted bribery, having tried to use his ministerial position to influence financing of his own personal businesses.7 The Chancellor of Justice, Jorma S. Aalto, had previously found no illegality in the case.8 Complaints to the Ombudsman peaked following this event owing to the high media attention of the impeachment hearings. This also undoubtedly affected the public image and credibility of the Chancellor. The above institutional developments can be largely explained by factors pertaining to the Finnish national context, the activities of individual actors and the division of work between the two institutions. But starting 6  Prior to becoming Parliamentary Ombudsman Jacob Söderman had been the governor of Uusimaa Province and a long-term member of Finnish Parliament, acting as Minister of Justice and Minister of Social Affairs and Health. He later became the first European Ombudsman (1995–2003). 7  While the impeachment case of Kauko Juhantalo was a great success of Jacob Söderman as the Ombudsman, it was noted in the interviews that Jaakko Jonkka, at the time working at the Ombudsman’s office, assisted Söderman in the case and had major responsibility over the legal substance of the case. 8  The impeachment was initiated and moved to the Ombudsman by the Constitutional Committee of Parliament.

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from the early 1990s the rise of the human rights discourse was also increasingly influencing the global development of the Ombudsman institution. In Finland, a major step in this process came with the adoption of the European Convention on Human Rights and Finland’s membership of the Council of Europe in 1989. Finland was the last Nordic country to join the Council of Europe, signalling its difficult foreign political situation next to Soviet Union during the Cold War, which led to it distancing itself from West European co-operation and the Council of Europe membership until Mikhail Gorbachev’s coming to power (Wassenberg 2013, 121). Finland’s accession to the Council of Europe and ratification of the European Convention on Human Rights was also closely linked to the development of Finnish Parliamentary Ombudsman. To understand how fundamental this change was, one needs to consider the concept of human rights in its timely context in the 1980s Finland. Finnish political history in this era is often described as “Finlandization”, referring to limited public debate on foreign political matters and Finland’s active work to maintain good relations with the Soviet Union, its powerful neighbour. While all other Nordic countries had joined the Council of Europe and the European Convention on Human Rights by the early 1950, Finland had not. Human rights were not a guiding legal principle in Finnish law and the term was often seen as of foreign origin and perceived as an anti-Soviet discourse (Halme-­ Tuomisaari 2010, chap. 2). Consequently, the Finnish legal profession had no interest in human rights law and any occupation with human rights was seen to potentially compromise the career development of a lawyer. While the legal overseers had had some access to the international debates, for example, Chancellor of Justice Tarjanne and vice Chancellor Manner had gained an insight into human rights already in the 1940s and 1950s (Seppinen 2009, 99–100), these were not pursued in their work. Nevertheless, the legal overseers had referred to the notion of human and fundamental rights in their decisions already before Finland joined the European Convention of Human Rights, leading to debates in Finnish legal scholarship (Tähti 1995; Pöysti 1997).9 This manifests how the Finnish foreign political situation overshadowed the legal culture in Finland. On the other hand, while the Nordic countries are often seen as global champions of human rights at present, there 9  Also in the annual reports of the Ombudsman, there is a reference to “fundamental rights” already in 1947 (Eduskunnan oikeusasiamies 1947, 36–37).

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are also historical tensions between the Nordic welfare state model and the notion of human rights (Vik et al. 2018). While the collapse of Soviet Union in the early 1990s provided a critical juncture in the Finnish legal tradition (cf. Mahoney 2000), the link between the legal overseers and human rights also involved individual actors, who started working with the concept already earlier. In the interviews, several respondents highlighted the role of Lauri Lehtimaja, who worked as the Finnish Parliamentary Ombudsman 1995–2001, following Jacob Söderman. Lehtimaja took an initial interest in human rights in the 1970s when attending a criminal law seminar chaired by the University of Helsinki Professor Inkeri Anttila, who encouraged Lehtimaja to attend the 12th International Congress of Penal Law in 1977, that was on the theme of human rights (see Lehtimaja 1977). Lehtimaja became one of the first human rights lawyers in Finland, an anomaly at the time, who saw his career prospects to take a rapid upward turn in the late 1980s, particularly after the collapse of Soviet Union and Finland joining the European Convention of Human Rights and the Council of Europe (Helsingin Sanomat 2015). Lehtimaja started working for the office of the Parliamentary Ombudsman already in 1988 under Olavi Heinonen, who allowed human rights terminology to be included in the Ombudsman decisions and even forwarded such cases to Lehtimaja. This approach was further continued under Jacob Söderman as the Ombudsman, who also saw the importance of individual rights as a legal principle that also suited Söderman’s public persona as an anti-establishment figure. After Söderman left to become the first European Ombudsman in 1995, Lauri Lehtimaja was his predecessor as the Finnish Parliamentary Ombudsman. Still predominantly a political nomination at that time, the appointment of Lehtimaja was a surprise as political groupings had already agreed on a different candidate who failed to get Parliament’s support, partially due to dismissive comments on human rights at the public hearings. This was now deemed anachronistic. Public values and legal culture in Finland had moved on. The Finnish constitution was duly reformed and the Fundamental Rights Reform in 1995 and the new constitution in 2000 now even specifically named the legal overseers as defenders of human rights. As noted, the arrival of human rights in Finland was difficult and the legal profession stayed away from the domain, mainly due to the Finnish-Soviet relations and its influence on Finland’s political culture. In 1993, the Government Proposal on the Fundamental Rights Reform acknowledges that the

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s­ ections of Finnish constitution concerning fundamental rights are among the oldest in Europe, dating back to 1919, and that these had not been actively pursued by the courts. Interestingly, in legitimating the courts’ limited use of fundamental rights, the Ombudsman is named in the proposal as a locus where fundamental rights have been applied already since the 1960s and also more also recently human rights have been actively referred (Valtioneuvosto 1993). This also shows the importance of the Ombudsman for the Finnish legal culture and establishment that had to adapt to a new operative context in a very short time—indeed, Finland’s EU membership in 1995 also depended on this legal reform. But the Ombudsman’s decision to adopt the discourse of human rights and profile itself as the guardian of human rights in Finland was most important for the institution itself, allowing the Ombudsman to communicate its functions to the general public. This was apparent in the number of complaints filed to the Ombudsman vis-à-vis the Chancellor of Justice where a wide gap opens during the 1990s. While the difference in the number of cases between the Ombudsman and the Chancellor of Justice may have initially widened due to media visibility of Jacob Söderman as the Ombudsman, it intensified after his term and as the Ombudsman embraced human rights issues (see Fig.  3.2). Towards the end of the 1990s and early 2000s, the Ombudsman even adopted a more low-key media policy due to the high number of cases. In the annual reports of the 1990s and early 2000s, the overriding concern was the functionality of the Ombudsman institution before the groundswell of complaints, also related to the new methods of filing complaints by fax, email or internet (Eduskunnan oikeusasiamies 1997, 14, 2002, 18). In these reports, the Ombudsman openly speculates on the possibility of cutting the number of complaints either by limiting the right to complain or by allowing the Ombudsman to resolve cases selectively and to forward them to other institutions (Eduskunnan oikeusasiamies 2002, 18, 20), though this was discussed already in 1980s in comparison to Ombudsman in other countries (Aalto 1986, 652–53). These measures were in contradiction with the fundamental philosophy of the Ombudsman as an institution easily and equally accessible to all citizens, drawing also media attention (Helsingin Sanomat 2002). Figure 3.3 shows some consecutive years in the 1990s and 2000s where there were more cases initiated than cases closed, indicating difficulties with coping with the workload, for which the Ombudsman was also criticized at the time (Helsingin Sanomat 1996).

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7000 6000 5000 4000 3000 2000 1000

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

0

Ombudsman cases

Decisions

Fig. 3.3  Number of Ombudsman cases and decisions, 1990–2017. (Source: Annual reports of the Ombudsman)

Over the years, the complaints of the first Ombudsmen about the lack of tasks had become a part of folklore in the office of the Ombudsman, often referred to somewhat ironically in the annual reports of the 1990s. Even though the situation eased at the beginning of the 2000s as the institution hired new staff and adapted to its new workload (see Fig. 3.4), the conflict between the rising number of complaints and the excessive investigation measures required of the Ombudsman were still mentioned in the annual report of 2005 (Eduskunnan oikeusasiamies 2006, 25). The backlog of cases pending was cleared after 2011, when the Parliamentary Ombudsman Act was revised and the Ombudsman was given more discretion in the handling of the complaints (Eduskunnan oikeusasiamies 2015, 40–42), visible also number of decisions that clearly exceeds the number of initiated cases in 2012–2014 (see Fig. 3.3). In 1998, the position of the second Deputy Ombudsman was adopted (the first one was passed into law in 1971, effective from 1972), at which point there was also a discussion about the relation of the Ombudsman and the Deputy Ombudsmen (Kuusikko 2011, 155), which resulted in the choice to keep the Deputy Ombudsmen as independent actors ­vis-à-­vis

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70 60 50 40 30 20 10 0

Fig. 3.4  Ombudsman staff, 1983–2004. (Source: Annual reports of the Ombudsman. Note: The figures counted from the annual reports are likely to differ from the actual number of positions, due to vacancies, temporary replacements, part-time work arrangements, etc. Therefore, the graph above should be perceived merely as descriptive trend data and not as exact number of positions)

the Ombudsman, not merely assisting it. Based on the proposal of Parliament, the second Deputy Ombudsman also received a special mandate to focus on matters related to children (Kuusikko 2011, 138). Moreover, it was decided that there would be only one Ombudsman and two Deputy Ombudsmen, highlighting the office holders. In the interviews conducted for this book, the respondents also saw this as influencing how the institution functions, as the personification of the institution helps it to gain media visibility and influence the number of complaints coming to the Ombudsman. This marks a difference with Sweden, where the Deputy Ombudsmen and Ombudsman proper are all called Ombudsmen and the institution is hence less embodied in a single person. The experts I interviewed shared the view that Ombudsman’s active work and profiling with human rights allowed it to communicate its activities to the public and to engage it. In addition to Ombudsman Lauri Lehtimaja, the Deputy Ombudsmen at the time, Pirkko K. Koskinen and Riitta-Leena Paunio, were very active in promoting individual rights, especially concerning social matters, which had become more pressing

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amid the economic recession of the early 1990s (Paunio 2010, 12). At the same time, the Chancellor of Justice, Jorma S. Aalto, continued to hold the traditional perception of legal oversight and remained inconspicuous in media appearances, deliberately not seeking a “media profile”. Combined with the increasing number of complaints due to digitalization, the different public profile of the two institutions is visible in the rapidly growing number of complaints received by the Ombudsman and the somewhat static caseload of the Chancellor of Justice, though this is also increasing (see Figs. 3.1 and 3.2). The rise of the human rights in the work of the Ombudsman was linked to an institutional reorientation, where the staff was required to become sensitive to the issues and recognize the new legal principles and use them actively in their decisions, which the Finnish Parliamentary Ombudsman saw to stem from the European Convention of Human Rights and its impact on Finnish legal culture (Eduskunnan oikeusasiamies 1997, 18, 39, 44). This also influenced reporting tasks and a section on human rights was included in the annual reports, following a 1994 statement of the Constitutional Committee of the Finnish Parliament that proposed both legal overseers to start reporting on human rights violations (Eduskunta 1994, 6). Initially, the section on human rights was very short, only two of pages in 1995, but this has grown over the years to become the longest section of the annual report with fundamental and human rights being explicitly discussed in hundreds of cases (Eduskunnan oikeusasiamies 2017, 60; Lindström 2010, 73). Figure 3.5 shows a steady rise in the references to human rights, fundamental rights and good governance as keywords for the cases dealt by the Ombudsman. There was a steady rise in the number of references, indicating their importance and active use as justifications for decisions—in 2013 some 12% and in 2014 about 10% of all decisions referred to human rights—but we should also bear in mind that the total number of cases was growing rapidly at the same time. The slight decrease in all categories in 2014 was a result of smaller total caseload that year. However, as noted by some interviewees, at present these general legal principles have become so widely agreed upon and internalized that they are not necessarily being specifically mentioned. Moreover, they are underlying more specific acts, for instance, the Administrative Procedure Act, that could be referred instead. Nevertheless, there also is a clear conceptual shift apparent in the justification of the decisions of the Ombudsman.

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800 700 600 500 400 300 200 100

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

0

Human Rights

Fundamental Rights

Good Governance

Fig. 3.5  Reference to human rights, fundamental rights and good governance in decisions of the Ombudsman, 1993–2014. (Source: Finnish Parliamentary Ombudsman, database on decisions)

Due to the developments of the early 1990s, the Ombudsman has become a central actor promoting human rights in Finland, being also perceived as their primary guardian (Hidén 2000; Pölönen 2010). The annual reports of the 1990s already contain reflexivity about the role of Finnish Parliamentary Ombudsman as the champion of human rights in Finland and the institutions impact on the Finnish legal culture (Eduskunnan oikeusasiamies 1996, 13). In 1995, the Fundamental Rights Reform made both legal overseers official guardians of fundamental rights. The Ombudsman managed to take more advantage of this, profiling itself as a legal overseer closer to the citizens, while the Chancellor of Justice profiled itself as a more traditional legal overseer. This was linked to its specific mandate concerning prisons and other closed institutions.

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Some of those interviewed for this book highlighted that the Ombudsman’s specific mandate concerning prisons and other closed institutions taps into the domain of human rights and makes it a logical institution from which to pursue these issues, also by international comparison. As we saw, when the cases involving the prison and the military were moved to the Ombudsman in 1934, the Ombudsman himself opposed the move. When we consider the joint institutional history of two legal overseers, the reorganization of the mandates in the 1930s may have been the most decisive moment in the development of their institutional positions and co-existence, though the actors at the time could not predict this. This also points to the limitations of intentionality in institutional design (cf. Pierson 2000). But there is another ideational addendum in the mid-1990s that needs to be mentioned, also due to its links to international models. In his 1997 annual report, the Ombudsman Lauri Lehtimaja proposes that the Ombudsman should also engage in mediating conflicts between citizens and administration. Here there is an apparent reference to international models of ombudsman as a médiateur, which is common in the Southern Europe and Mediterranean countries. It was also confirmed by those interviewed that increasing international collaboration on the institution has led to greater awareness of such a model of ombudsman, which is now also being explored in Finland. A committee report on reforming the Finnish court system identifies the Ombudsman as one of the first promoters of this line of thinking in Finland’s legal culture (Valtioneuvosto 2003, 326). Differentiation and Renegotiation of Mandate In the present era, the legal overseers have reverse roles compared to the early years of their joint institutional history—the Ombudsman is clearly the predominant legal overseer and the Chancellor of Justice is overshadowed by it. But there are also signs of institutional differentiation during this era as the Ombudsman acquires new international tasks, becoming the UN-accredited National Preventive Mechanism (NPM) against torture, the National Human Rights Institution (together with newly established Human Rights Centre and Human Rights Delegation) as defined in the 1993 Paris Principles, as well as the holder of a statutory special task of protecting and monitoring the implementation of the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

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In addition, the Ombudsman has undertaken mediation, making proposals on retributions in cases where the rights of individuals have been violated. At the same time, and particularly towards the present, the Chancellor of Justice has been focusing increasingly on its special task in pre-examining the government law proposals. There is also active lobbying by the Ombudsman for renegotiating the mandates of the two legal overseers, which also led to the nomination of a working group to assess the matter in 2018 (Oikeusministeriö 2018), as will be discussed in the next chapter. Thematically this era can also be linked to the global drive for good governance that the Ombudsman, as well as the Chancellor of Justice, comes to embrace. The notion of good governance was incorporated into Finnish legislation already in 1995 as part of the Fundamental Rights Reform, tying it into the mandates of the legal overseers that had already come to cover the protection individual rights. But good governance was first codified in the 2004 Administrative Procedure Act, allowing complaints concerning this new legal principle (Arjola-Sarja 2010). There was an increase in the cases filed with the Ombudsman between 2004 and 2005, which seems to be explained by a slight increase in the number of cases taken by the Chancellor of Justice in 2001–2003 that caused the cases of the Ombudsman to decrease, respectively. This peak in the Chancellor of Justice’s cases owes most notably to the EU’s Natura conservation scheme that led to a massive amount of complaints to the Chancellor of Justice, Paavo Nikula (1998–2007).10 In addition, the Ombudsman changed its method of classifying complaints in 2001, meaning that miscellaneous letters sent to the Ombudsman were not automatically classified as complaints, leading to a reduction of 497 cases that year (Keinänen and Määttä 2007, 34). There were also other high media profile cases during Nikula’s term, and he had a more public profile than his predecessor Jorma S. Aalto.11 Nikula’s follower as the Chancellor, Jaakko Jonkka (2007–2017), again held a low media profile, but parted from this to intervene in the election funding scandal following the 2007 parliamentary elections (Oikeuskansleri 10  The Chancellor found no illegality, which even led to some parliamentarians call to investigate the legality of Chancellor’s actions, but the Parliament found no grounds for this (Seppinen 2009, 219–20; YLE 2004). 11  For example, Chancellor of Justice Nikula received media attention for his decision concerning a case on potential publication of the so-called Tiitinen list, a controversial list of names of people potentially to have collaborated with the STASI during the Cold War (YLE 2003a, b).

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4500 4000 3500 3000 2500 2000 1500 1000 500 0 1998

1999

2000

2001

2002

2003

Traditional

2004

2005

2006

2007

2008

Digital

Fig. 3.6  Finnish Parliamentary Ombudsman cases by traditional and digital means of filing, 1998–2008. (Source: Kuopus 2010, 167)

2008; YLE 2008, 2009), which is visible in peaking complaints to the Chancellor in 2008. But the general trend has been the continuing rise of complaints to the Ombudsman, who received 6415 complaints in 2017, almost three times as many as the Chancellor of Justice (2346). We should also bear in mind that around this time the use of email and internet made filing complaints significantly easier than before. Indeed, the development of new technologies (fax, email and internet) has lowered the threshold for making a complaint. In 1998, 2% (49/2528) of the complaints to the Ombudsman was sent by email, whereas in 2005 already 37% (1247/3401) was sent by email (figures given by the Bureau of Finnish Parliamentary Ombudsman).12 In 2008, already some 43% were submitted digitally (using online form or email). Figure  3.6 shows the shift towards using digital means for filing complaints to the Ombudsman between 1998 and 2008 (Kuopus 2010, 167). In 2009, the majority of cases (55%) had been filed digitally (Eduskunnan oikeusasiamies 2010, 32).

12  In fact, the number of electronically filed complaints started to grow rapidly already in 2004, when the Ombudsman received twice as many complaints electronically compared to the year before (968 cases in 2004 against 473 cases in 2003).

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Interviewees reckoned that the use of email and online forms for filing a complaint increased the number of complaints to both legal overseers equally. In other words the gaping difference in the number of complaints filed with the two legal overseers since the early 1990s cannot be explained by use of email as means for complaining. The caseload of the Chancellor of Justice—who equally accepts complaints via email and internet— remains somewhat static, while the number of complaints to the Ombudsman started to rapidly rise in 1993. In 1998, when the use of email was still marginal, the Ombudsman received almost twice as many cases as the Chancellor of Justice.13 Nevertheless, interviewees from both organizations stressed that technological changes had influenced the number of complaints, making the process significantly easier and less time-consuming. This has been particularly visible in cases of media visibility that draw numerous complaints, sometimes also coordinated in online discussions. In addition, both legal overseers had their regular customers, people who would file numerous complaints over different issues or cases that they felt were unsatisfactorily been dealt in the past. For example, the Chancellor of Justice had received from a single complainant 58 complaints in 2017 and 48 complaints in 2018, making up some 2% of total caseload for those years. The interviewees were shown the time series statistics for the two institutions (presented in Fig. 3.1) and asked to comment them. There was a general understanding that the Ombudsman was at present the more dominant legal overseer in terms of cases and public visibility of the institutions.14 The interviewees also knew the historical turning points of the two institutions well and identified them in the statistics—the Ombudsman’s difficult start and first Ombudsman’s proposal to abolish the institution, the Chancellor of Justice’ proposal to abolish the Ombudsman in 1934, and the related reorganization of activities, and the visible personalities holding the institutions such as Chancellor of Justice 13  In 1998, the Finnish Parliamentary Ombudsman had 2528 cases (of which 49 cases were initiated by email) while the Chancellor of Justice received 1330 complaints. 14  There were some questions about the filing of the cases between the two legal overseers, whether additional information to an earlier inquiry would be associated with a pending case or lead to an opening of a new inquiry, but this was not seen to be an explaining factor for the increasing difference in the amount of complaints. There was also a difference in what was classified as a complaint. The Ombudsman had ceased to classify miscellaneous letters that were sent to it as complaints in 2001. This reduced the number of complaints it received by several hundred a year (see above).

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Kai Korte and Ombudsman Jacob Söderman leading to peaks in complaints. Almost all the interviewees linked the rapid growth of complaints to the Ombudsman to the rise of human rights as a legal principle that the Ombudsman had successfully incorporated into its activities, making it the dominant legal overseer, when assessed according to numbers of cases and public visibility. Politics of Nomination Overall, Finland’s legal culture has also evolved towards stronger division of law and politics. In principle, the legal overseers are independent and therefore not linked to any party-political agendas. However, politics has been closely present in the nomination of legal overseers in the past. The nomination of the Ombudsman was for a long time politically influenced, continuing until the 1989 nomination of Jacob Söderman, who was a long-term politician and Member of Parliament (1972–1982), Minister of Justice (1971), Minister of Social Affairs and Health (1982) and Governor of Uusimaa province (1982–1989) before being nominated as Ombudsman. As noted above, Lauri Lehtimaja was Söderman’s predecessor as the Parliamentary Ombudsman along with the rise of the human rights discourse. Parting from the tradition of political nominations still typical at the time, the appointment of Lehtimaja was a surprise as another candidate had initially agreed to be selected by political parties but finally failed to get the Parliament’s support (see above). Lehtimaja himself was an independent candidate with firm legal expertise and subsequent nominations have been merit based.15 In a similar fashion, the selection of the Chancellor of Justice was for a long time politically motivated. In the 1950s, the appointments of C.G.  Möller (acting 1950–1955) and Olavi Honka were influenced by Finnish post-war politics, and in Honka’s case by his anti-communist sentiments (Seppinen 2009, 76–77, 82–83). Olavi Honka even ran as a presidential candidate in 1961 during his term as a Chancellor of Justice, which interestingly enough raised the prestige of the Chancellor rather than the opposite (Seppinen 2009, 88–89), pointing to the blurred lines between legal and political professions at the time. Until the 1980s, during the last term of Urho Kekkonen as the President (1956–1982) and even when his 15  In fact, Lehtimaja’s support also shifted from one nomination to another. While elected into his position as the Parliamentary Ombudsman in 1995 with the support of conservatives and Greens (Helsingin Sanomat 1995), he was the favoured candidate among Social Democrats in an earlier bid for the position of Vice Ombudsman, for which Riitta-Leena Paunio was nominated.

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predecessor Mauno Koivisto took up the post in 1982 (until 1994), the choice of Chancellor of Justice was clearly political, as is still apparent in the process leading to the nomination of Kai Korte (1982–1986) (Seppinen 2009, 161, 2009, 133). However, starting from Jorma S. Aalto (acting 1986–1998) the nomination of the Chancellor arguably became less political (Seppinen 2009, 181), though Aalto’s follower Paavo Nikula (1998–2007) had been active in politics serving as a member of the parliament and even as the Minister of Justice (1978–1979). The drop in political value of the nomination has been linked to diminishing public interest in the matter (Seppinen 2009, 212–13), but the general strengthening of the rule of law as well as the professionalization of legal practice most likely also figured. In 2017, the nomination of the current Chancellor of Justice Tuomas Pöysti was debated, as in his previous position he had been involved in the highly politicized social services reform, raising concerns about his impartiality as the Chancellor (YLE 2017a, b). This rather shows how the expectations for the legal overseers have shifted, now stressing neutrality. However, in perceiving politicization as a shift of perspective that renders existing practices as political and opens new horizons for action (Palonen 2003, 182–84), we should note that the gender balance of legal overseers has been poor. While the Constitutional Committee of the Parliament stressed already in 1971 that women can be appointed as Ombudsman despite the name of the institution (Koskinen 1997, 24–25), there has so far been only one female Ombudsman (Riitta-Leena Paunio, 2002–2009) and three women have served as Deputy Ombudsmen.16 All Chancellors of Justice and Deputy Chancellors have been men.

Conclusions As we saw in the chapter on theoretical approaches to this subject, the adoption of the ombudsman institution is usually related to political conflict and typically occurs in times of crises and junctures of government and political rule. In Finland, the adoption of the institution was done at a juncture of government, but it was not the result of political conflict, also evident in the limited public awareness of the institution in its early years. While the newly established institutions of accountability tend to 16  The three female Deputy Ombudsmen have been Pirkko K.  Koskinen (1988–1995), Riitta-Leena Paunio (1996–2001) and Maija Sakslin (2010–).

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draw public attention through the debate preceding their adoption, the Finnish Parliamentary Ombudsman was for a long time relatively unknown to the public. In Finland, the Ombudsman had adapted itself to the global drive for human rights, becoming an important actor for their adoption and oversight in the country. These ideational changes occur at the time of a critical juncture in Finnish governance, coinciding with the end of the Cold War, economic recession, changes to the Finnish welfare state, Finnish entry into the European Union (cf. Väyrynen 1999; Alasuutari 2006), as well as Finland joining the Council of Europe and the European Convention on Human Rights. However, while external factors and transnational ideational influences are important in understanding the change (cf. Schmidt 2010), also the institutional actors are important (cf. Mahoney and Thelen 2009), as the Ombudsman contributes to the conversion of Finnish legal culture in general. The above analysis shows the link between the major institutional changes of the Finnish Parliamentary Ombudsman—an institution 100 years of age—and the global discourses on human rights and good governance. The institution has embraced both discourses, though in different eras. Particularly the adoption of human rights discourse has helped the Ombudsman to communicate its activities to the public, leading to a “recalibration” of the institution (Thelen 2004). The increasing number of complaints has put pressure on the bureau of the Ombudsman, but the ideational shifts around the institution have also helped it to become the dominant legal overseer in Finland, with its functions also duly changed. This not only concerns the work of the Ombudsman but also the Chancellor of Justice. The current standing of the two legal overseers as well as their relations and intra-institutional development and change are discussed in the next chapter.

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Eduskunta. 1994. 1994 Vp-PeVM 25-HE 309/1993 vp Perustuslakivaliokunnan Mietintö n:O 25 Hallituksen Esityksestä Perustuslakien Perusoikeussäännösten Muuttamisesta. https://www.eduskunta.fi/FI/vaski/mietinto/Documents/ pevm_25+1994.pdf. Erkkilä, Tero. 2007. Governance and Accountability—A Shift in Conceptualisation. Public Administration Quarterly 31 (1): 1–38. Halme-Tuomisaari, Miia. 2010. Human Rights in Action: Learning Expert Knowledge. Boston: Brill. http://ebookcentral.proquest.com/lib/helsinkiebooks/detail.action?docID=593747. Helsingin Sanomat. 1995. Lehtimaja Oikeusasiamieheksi Porvariryhmien Ja Vihreiden Tuella. Helsingin Sanomat, September 23. ———. 1996. Oikeusasiamiehen Ratkaisut Viipyvät Entistä Pidempään. Lehtimaja Ja Paunio Olleet Edeltäjiään Hitaampia. Helsingin Sanomat, July 20. ———. 2002. Lehtimaja haluaa oikeusasiamiehelle oikeuden siirtää kanteluita muille. Helsingin Sanomat, October 5. https://www.hs.fi/kotimaa/art2000004087677.html?share=518dcd41a4d1b3b87331762225620f8d. ———. 2015. Ihmisoikeuksia puolustava Lauri Lehtimaja ehti palvella oikeutta 40 vuotta. Helsingin Sanomat, November 16. https://www.hs.fi/ihmiset/art2000002866562.html?share=299d1273d07ce494c6059a7f15835dde. Hidén, Mikael. 1970. Eduskunnan Oikeusasiamies. Helsinki: Suomalainen lakimiesyhdistys. ———. 1973. The Ombudsman in Finland: The First Fifty Years. Edited by Donald C.  Rowat and translated by Aaron Bell. Berkeley: Institute of Governmental Studies, University of California Press. ———. 2000. Finnish Parliamentary Ombudsman as a Guardian of Human Rights and Constitutional Rights: An Integrated Approach. In Parliamentary Ombudsman of Finland 80 Years, ed. Ilkka Rautio. Helsinki: Parliamentary Ombudsman of Finland. Inha, Jyri. 1997. Valtioneuvoston Oikeuskanslerin Virka-Aseman Muotoutuminen 1917–1919: Tutkimus Valtioneuvoston Oikeuskanslerin Virka-Aseman Muodostumisesta Tasavallan Presidenttiin, Valtioneuvostoon Ja Eduskuntaan Nähden Vuosina 1917–1919. Suomalaisen Lakimiesyhdistyksen Julkaisuja, A-Sarja 214. Helsinki: Suomalainen lakimiesyhdistys. Keinänen, Anssi, and Kalle Määttä. 2007. Näkökulmia Oikeusasiamiesinstituution Vaikuttavuuteen. Helsinki: Yliopistopaino. http://www.oikeusasiamies.fi/ dman/Document.phx?documentId=qh33307092737414&cmd=download. Koo, Jeong-Woo, and Francisco O.  Ramirez. 2009. National Incorporation of Global Human Rights: Worldwide Expansion of National Human Rights Institutions, 1966–2004. Social Forces 87 (3): 1321–1353. https://doi. org/10.1353/sof.0.0167. Koskinen, Pirkko K. 1997. Oikeusasiamies. Helsinki: Laikimiesliiton kustannus.

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Kuopus, Jorma. 2010. Kohti Sähköistä Hallintoa. In Eduskunnan Oikeusasiamies 90, 158–169. Sastamala: Vammalan Kirjapaino Oy. http://www.oikeusasiamies.fi/dman/Document.phx?documentId=hj04110163531424&c md=download. Kuusikko, Kirsi. 2011. Oikeusasiamiesinstituutio. Helsinki: Suomalainen lakimiesyhdistys. https://helka.finna.fi/Record/helka.2395187. Laitinen, Ahti, Allan Michelsen, and Antti Virtanen. 1985. Eduskunnan Oikeusasiamies Ja Perusoikeuksien Loukkauksista Tehdyt Kantelut. Turun Yliopiston Oikeustieteellisen Tiedekunnan Julkaisuja, Julkisoikeuden Sarja A 27. Turku: Turun yliopisto. Lehtimaja, Lauri. 1977. The Protection of Human Rights in Finnish Criminal Proceedings. RikosJa Prosessioikeuden Julkaisusarja/Turun Yliopistonjulkisoikeuden Laitos. University of Turku. Lindström, Ulla-Maija. 2010. Perusloukkausten Hyvittäminen—Esimerkkejä Ratkaisukäytännöstä. In Eduskunnan Oikeusasiamies 90, 70–85. Sastamala: Vammalan Kirjapaino Oy. http://www.oikeusasiamies.fi/dman/Document. phx?documentId=az04110163531467&cmd=download. Mahoney, James. 2000. Path Dependence in Historical Sociology. Theory and Society 29 (4): 507–548. Mahoney, James, and Kathleen Thelen, eds. 2009. Explaining Institutional Change: Ambiguity, Agency, and Power. 1st ed. Cambridge University Press. Nieminen, Hannu. 2006. Kansa Seisoi Loitompana: Kansallisen Julkisuuden Rakentuminen Suomessa 1809–1917. Tampere: Vastapaino. Oikeuskansleri. 2008. Oikeuskansleri Jaakko Jonkka Pyytää Selvitystä Vaalirahoitusilmoitusten Käsittelystä—Meddelanden Och Anföranden— Justitiekanslersämbetet. August 1. https://www.okv.fi/sv/meddelanden/208/ oikeuskansleri-jaakko-jonkka-pyytaa-selvitysta-vaalirahoitusilmoitustenkasittelysta/. Oikeusministeriö. 2018. Ylimpien Laillisuusvalvojien Tehtävien Jaon Selvittäminen Ja Arviointi. VN/5035/2018. https://api.hankeikkuna.fi/asiakirjat/8df7 f292-9fd7-46f4-821d-7259f6a6b1bc/b870e022-75bc-4e10-b737-9300d9 926e7e/ASETTAMISPAATOS_20181015072749.pdf. Pajuoja, Jussi, and Pasi Pölönen. 2011. Ylin Laillisuusvalvonta: Oikeuskansleri Ja Oikeusasiamies. Helsinki: Tietosanoma. Palonen, Kari. 2003. Four Times of Politics: Policy, Polity, Politicking, and Politicization. Alternatives 28 (2): 171–186. Paunio, Riitta-Leena. 2010. Tavoitteita Ja Haasteita—Oikeusasiamiehen Laillisuusvalvontaa 90 Vuotta. In Eduskunnan Oikeusasiamies 90, 7–16. Sastamala: Vammalan Kirjapaino Oy. http://www.oikeusasiamies.fi/dman/ Document.phx?documentId=cz04110163531539&cmd=download.

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Pierson, Paul. 2000. The Limits of Design: Explaining Institutional Origins and Change. Governance 13 (4): 475–499. https://doi.org/10.1111/09521895.00142. Pölönen, Pasi. 2010. Perus- Ja Ihmisoikeuksien Valvonta Oikeusasiamiehen Tehtävänä. In Eduskunnan Oikeusasiamies 90, 45–57. Sastamala: Vammalan Kirjapaino Oy. http://www.oikeusasiamies.fi/dman/Document.phx?docume ntId=ta04110163531553&cmd=download. Pöysti, Tuomas. 1997. Rättsprinciper, formalism och förvaltningsrättens samhälleliga relevans : några synpunkter på Aarre Tähtis avhandling Principer i den finska förvaltningsrätten. Retfærd : nordisk juridisk tidsskrift 20 (1): 70. Rautio, Ilkka, ed. 2000. Finnish Parliamentary Ombudsman as a Guardian of Human Rights and Constitutional Rights: An Integrated Approach. In Parliamentary Ombudsman of Finland 80 Years. Helsinki: Parliamentary Ombudsman of Finland. Reinboth, Susanna. 1993a. Juhantalo Sai Syytteistä Raskaimman Mahdollisen. Helsingin Sanomat, October 12, sec. A. ———. 1993b. Kolmaskin Avaintodistaja Vahvisti Koplauksen. Helsingin Sanomat, October 14, sec. A. Remac, Milan. 2013. Standards of Ombudsman Assessment: A New Normative Concept? Utrecht Law Review 9 (3): 62–78. https://doi.org/10.18352/ ulr.237. Saari, Heikki. 2014. Jacke—Jacob Södermanin Elämä. Helsinki: Siltala. Schmidt, Vivien A. 2010. Taking Ideas and Discourse Seriously: Explaining Change Through Discursive Institutionalism as the Fourth ‘New Institutionalism’. European Political Science Review 2 (1): 1–25. https://doi. org/10.1017/S175577390999021X. Seppinen, Ilkka Tapio. 2009. Tämän Asian Olen Tutkinut. Valtioneuvoston Oikeuskanslerin Historia 1944–2008. Helsinki: Edita Prima Oy. Tähti, Aarre. 1995. Periaatteet Suomen Hallinto-Oikeudessa. Suomalaisen Lakimiesyhdistyksen Julkaisuja. Helsinki: Suomalainen Lakimiesyhdistys. Thelen, Kathleen. 2004. How Institutions Evolve: The Political Economy of Skills in Germany, Britain, the United States, and Japan. Cambridge: Cambridge University Press. Väätänen, Ulla. 2011. Oikein Ja Joutuisasti: Joutuisuus Hyvän Hallinnon Ja Oikeusturvan Takeena Hallintotoiminnassa. Lakimiesliiton kustannus. Valtioneuvosto. 1993. HE 309/1993 Hallituksen esitys Eduskunnalle perustuslakien perusoikeussäännösten muuttamisesta. https://www.finlex.fi/fi/esitykset/he/1993/19930309. ———. 2003. Tuomioistuinlaitoksen Kehittämiskomitean Mietintö. Komiteanmietintö 2003:3. https://julkaisut.valtioneuvosto.fi/bitstream/handle/10024/75857/omkm_2003_3_tuomioistuinlaitoksen_kehittamiskomitean.pdf?sequence=1.

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Väyrynen, Raimo. 1999. Suomi Avoimessa Maailmassa. Globalisaatio Ja Sen Vaikutukset. Helsinki: Taloustieto. Vik, Hanne Hagtvedt, Steven L.B.  Jensen, Linde Lindkvist, and Johan Strang. 2018. Histories of Human Rights in the Nordic Countries. Nordic Journal of Human Rights 36 (3): 189–201. https://doi.org/10.1080/18918131.2 018.1522750. Wassenberg, Birte. 2013. History of the Council of Europe. Council of Europe Publishing. YLE. 2003a. Oikeuskansleri: Tiitisen lista Supon päätösvallassa. Yle Uutiset, September 19. http://yle.fi/uutiset/oikeuskansleri_tiitisen_lista_supon_ paatosvallassa/5148692. ———. 2003b. Nikula: Tiitinen ei toiminut väärin. Yle Uutiset, October 16. http://yle.fi/uutiset/nikula_tiitinen_ei_toiminut_vaarin/5149766. ———. 2004. Nikulan Natura-toimet halutaan selvittää. Yle Uutiset, December 21. http://yle.fi/uutiset/nikulan_natura-toimet_halutaan_selvittaa/5195071. ———. 2008. Jonkka: Vaalirahailmoitusten valvonta huolimatonta. Yle Uutiset, November 6. http://yle.fi/uutiset/jonkka_vaalirahailmoitusten_valvonta_ huolimatonta/6117882. ———. 2009. Oikeuskansleri huolissaan vaalirahaskandaalista. Yle Uutiset, September 25. http://yle.fi/uutiset/oikeuskansleri_huolissaan_vaalirahas kandaalista/5887890. ———. 2017a. Dramaattinen käänne sote-valmistelussa—tuleva oikeuskansleri Tuomas Pöysti jättää perustuslakiin törmänneen lain valmistelun. Yle Uutiset, July 4. https://yle.fi/uutiset/3-9705095. ———. 2017b. Eduskunnan oikeusasiamies: Ei moitittavaa oikeuskanslerin nimityksessä. Yle Uutiset, October 3. https://yle.fi/uutiset/3-9863341.

CHAPTER 4

The Finnish Parliamentary Ombudsman, the Chancellor of Justice and Institutional Change

Introduction This chapter tracks the recent institutional development of the Ombudsman in relation to the Chancellor of Justice and reflects also on the perceptions of the experts interviewed for this study. I conducted the interviews at a time when the debate on the overlapping mandates of the two legal overseers had again become topical, leading to the appointment of a working group on the issue (Oikeusministeriö 2018). This chapter explores the context in which the legal overseers currently find themselves, their interrelations and relations with the public. The chapter highlights ideational and institutional changes concerning the Ombudsman in Finland, which are also related to international collaboration and models concerning the Ombudsman institution. Overall, there has been an institutional differentiation between the two legal overseers, where the Ombudsman now focuses on individual rights, also increasingly on social matters, while the Chancellor of Justice is more concerned with systemic issues, such as the oversight of the courts of law and providing legal advice to the government. But their mandates overlap, which had been negotiated in the past. The institutional change of the Ombudsman is largely linked to the transnational governance of human rights and adoption of institutional ideas related to the ombudsman’s functions elsewhere. In the existing literature this is often referred as the hybridization of the ombudsman, where “classical” ombudsmen a­ ssimilate

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other “models” of ombudsman (Reif 2004, 7–9; Remac 2013, 68), including the tasks of human rights institutions and mediation. However, as I discuss below, the discourse on global models is not only a source of ideas but also of legitimation and a sense of orientation. Perceptions of the ombudsman as a global institution were translated into Finnish institutional debates on the division of tasks between the Ombudsman and the Chancellor of Justice that had been ongoing for 100 years. History and global models were referenced in the Finnish debate on the division of tasks between two legal overseers, legitimizing and explaining institutional developments and interests (cf. Hobsbawm 1987; Meyer et al. 1997).

Overlapping Mandates and Functional Differentiation As we saw in the previous chapter, the Ombudsman’s institutional history is deeply interwoven with the Chancellor of Justice, which has a similar mandate. The two institutions are peers in many respects. From the citizens’ perspective, these often function interchangeably, so that a complaint could be submitted to either institution. However, there are also differences in their mandates, including specifically assigned tasks. Since the start of the 2000s, in particular, there has been an increasing differentiation in the tasks of the two institutions. Previously, the Ombudsman’s profile of dealing with human rights and social issues had influenced the types and number of cases dealt by the two institutions. The Mandates of the Two Legal Overseers The Finnish constitution defines the mandates of the Parliamentary Ombudsman and the Chancellor of Justice. The mandate of the former is defined as follows: “The Ombudsman shall ensure that the courts of law, the other authorities and civil servants, public employees and other persons, when the latter are performing a public task, obey the law and fulfil their obligations. In the performance of his or her duties, the Ombudsman monitors the implementation of basic rights and liberties and human rights.” The Ombudsman submits its annual report to the Parliament (Ministry of Justice 1999, sec. 109.).

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According to the constitution, the Chancellor of Justice of the Government “shall oversee the lawfulness of the official acts of the Government and the President of the Republic. The Chancellor of Justice shall also ensure that the courts of law, the other authorities and the civil servants, public employees and other persons, when the latter are performing a public task, obey the law and fulfil their obligations. In the performance of his or her duties, the Chancellor of Justice monitors the implementation of basic rights and liberties and human rights”. The Chancellor of Justice submits its annual report to the Parliament and the Government. It is further stated in the constitution that “[t]he Chancellor of Justice shall, upon request, provide the President, the Government and the Ministries with information and opinions on legal issues” (Ministry of Justice 1999, sec. 108.). The division of responsibilities of the two institutions is defined in a separate act (Finlex 1990), according to which the Chancellor of Justice has to transfer certain cases to the Ombudsman. This is done in matters concerning the Ministry of Defense, but excluding the supervision of the legality of government’s or its members’ actions, or civil protection and court martial matters. In addition, the Chancellor of Justice does not investigate complaints that concern the use of force on or deprival of the freedom of individuals or persons in custody or prison or in any other confined institutions, but transfers these cases to the Ombudsman. In addition, both the Ombudsman and Chancellor of Justice have a right to monitor the legality of the government’s actions, but for the Chancellor this is a duty (Eduskunnan oikeusasiamies 2019f). There are also additional specific tasks for both legal overseers, where there also has been some functional differentiation (cf. Chancellor of Justice 2018; Eduskunnan oikeusasiamies 2015a, 26). The Ombudsman has been given special tasks regarding human and fundamental rights and is required to pay special attention to persons with disabilities, older people and children and young persons (Eduskunnan oikeusasiamies 2019a). The Ombudsman also has a special mandate to protect and promote the enforcement of the UN-based Convention on the Rights of Persons with Disabilities (Eduskunnan oikeusasiamies 2019g; Finlex 2002). Some of the Ombudsman’s resources are earmarked to protect and promote the rights of the children and young persons (Eduskunnan oikeusasiamies 2019c) as well as older people (Eduskunnan oikeusasiamies 2019e). As a defender of the human rights, the Ombudsman has been granted the status of National Preventive Mechanism (NPM) of the United

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Nation’s Convention Against Torture (OPCAT) (Finlex 2002). In this capacity, the Ombudsman regularly monitors and inspects the treatment of people in detention (Eduskunnan oikeusasiamies 2019d). According to Finnish law, the Ombudsman has a general responsibility to oversee, and a sole mandate to examine, matters concerning the treatment of prisoners, people confined to institutions, conscripts doing their national service and peacekeeping personnel (Eduskunnan oikeusasiamies 2019b; Finlex 2002). The Ombudsman also has the special task of overseeing the legality of covert intelligence gathering (Oikeusasiamies 2019b). The Chancellor of Justice can investigate all complaints about the authorities, courts or government that do not specifically belong to sole mandate of the Ombudsman (Finlex 1990, 2000; Oikeuskansleri 2019b). The Chancellor attends the plenary sittings of the government and presidential sessions (Oikeuskansleri 2019d). The Chancellor of Justice has the duty to review the legality of government’s proposals, to monitor the legality of decisions made in the plenaries of the government and presidential sessions and to issue opinions on legality for the government (Finlex 2000; Oikeuskansleri 2019e). The Chancellor of Justice also monitors the courts of law based on complaints, own inquiries and through samples of penalty decisions received from the courts (Oikeuskansleri 2019c; Finlex 1958, 2000, 2011). The Chancellor also monitors legal advocates through the decisions taken by the Disciplinary Board of the Finnish Bar Association and may also take them to the Court of Appeal (Oikeuskansleri 2019a). The differing focal points of the profiles of the two legal overseers are worth noting and was something highlighted in the interviews. The Ombudsman’s special tasks increasingly concern individuals, owing to various UN conventions. The Chancellor of Justice has more systemic tasks, concerning also legal advice, reviewing government proposals and monitoring the legality of decisions. Concerning the international profile of their respective tasks, the Ombudsman is increasingly linked to the transnational field of human rights and the coordination work involving ombudsman institutions globally. One sign of this is that the Finnish Parliamentary Ombudsman constitutes a Finnish National Human Rights Institution (NHRI) together with the newly established Human Rights Centre and its Delegation. The UN International Coordinating Committee of National Human Rights Institutions (ICC) accredited the Finnish NHRI, awarding it A status in 2014 to be re-evaluated in 2019 (Eduskunnan oikeusasiamies 2019h).

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As we see below, the international contacts and collaboration structures were also evoked in the debates on reorganizing the mandates of the two legal overseers that led to an appointment of a working group in 2018 (Oikeusministeriö 2018). Here, international expert knowledge and global organizational model of the ombudsman institution are referenced and translated into the Finnish institutional context in arguments favouring institutional reforms (Alasuutari et al. 2015; Sahlin and Wedlin 2008). Also, the Chancellor of Justice actively sought international peers in the area of independent legal advice. There was also concern over a potential tension between the new tasks of the Ombudsman and its traditional duties as a legal overseer. Before moving to these debates, I will briefly assess the case profiles of the two legal overseers and their performance as institutions of public accountability. Case Profiles Despite their overlapping mandates, the two institutions differ concerning their case profiles. Figure 4.1 shows the Ombudsman’s decisions in 2016 by administrative domains. Social and health issues made up a major share of the Ombudsman’s decisions, followed by police matters. This is due to the nature of these activities, where violations of individual rights are more likely to occur than in other administrative contexts. A 2007 study found that the likelihood of Ombudsman taking active measures on complaints was highest in the domain of the military, but also higher than average concerning the police, environment and prison management (Keinänen and Määttä 2007, 51–52). The Ombudsman has sole mandate in the domain of criminal sanctions, making this a high share of cases, along with the general administration of the law. Figure 4.2 shows the complaints (not decisions) filed with the Chancellor of Justice. The combined figure of complaints concerning the different courts of law made up 19% of all cases, being the biggest group of cases (Valtioneuvoston oikeuskansleri 2017, 168–69). It was also argued by the interviewees at the office of the Chancellor of Justice that the oversight of the courts of law had de facto become a specific task of the Chancellor. This observation was also made in relation to the debate on the division of the responsibilities of the two legal overseers that had ensued in 2015 and was still ongoing (see below). The police comprise the second largest group of cases, some 16% of the complaints.

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Social welfare Police Health Administration of law Social Insurance Criminal Sanctions Other administrative domains Domain of the Ministry of Education and Culture Domain of the Ministry of Economic Affairs and Employment Local government Domain of the Ministry of Transport and Communication Enforcement (distraint) Domain of the Ministry of Environment Highest organs of government Immigration and citizenship matters Taxation Domain of the Ministry of Agriculture and Forestry Prosecutors Customs Domain of the Ministry of Justice Guardianship Domain of the Ministry of Defence Domain of the Ministry of Finance Subjects of oversight in the private sector Domain of the Ministry of Interior Domain of the Ministry for Foreign Affairs 0

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Fig. 4.1  Ombudsman decisions by administrative domain in 2016. (Source: Annual report of the Ombudsman 2016 (Eduskunnan oikeusasiamies 2017, 362))

Complaints to the Chancellor concerning the Council of State or ministries comprised the third biggest group of complaints (11%), which also flags a difference to those dealt with by the Ombudsman. Social matters, by then predominantly part of the Ombudsman’s profile, made up a relatively small number of the complaints filed with the Chancellor of Justice. Also, cases concerning the courts of law were a prominent category of the complaints received by the Chancellor of Justice, and its special mandate for monitoring the legal profession is also reflected in the complaints. On the whole, despite the overlap in mandate of the two legal overseers, they do have different case profiles. This was also highlighted in the interviews, particularly those done at the Office of the Chancellor of Justice, where the interviewees held the opinion that while the Ombudsman focused on the individual, the Chancellor’s focus lay more on systemic legal issues. This observation can also be understood in light of the debate on revising the mandates of the two legal overseers that had started in 2015 on the initiative of the Ombudsman (Eduskunta 2015a), and which

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Courts Police The Council of State or Ministries Other cases Municipal Authority Social Care Attorneys, legal advisers and licensed lawyers Health Care Prosecuting Authority Other Administrations or entities serving in public role Regional and Interior Administration Authorities Enforcement (distraint) Matters governed by private law Social Insurance Education Authority Other Judicial Administration Authorities Other Government Finance Authority Job Authority Tax Administration Economic Development Authority Transport and Communication Authority Environment Authority Agriculture and Forestry Authority Occupational Health / the Ministry of Social Services Health Prison Administration Defence Administration Authorities Foreign Affairs Authority Church Administrations 0

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Fig. 4.2  Complaints to the Chancellor of Justice by administrative domain in 2016. (Source: Annual report of the Chancellor of Justice 2016 (Valtioneuvoston oikeuskansleri 2017, 168))

led to the appointment of a working group in 2018 to address the matter (see below). The legal overseers also conduct own inquiries. They were smaller in number but more focused on issues of general concern or on topical matters. In 2016, the Ombudsman initiated 71 such inquiries. The Chancellor of Justice initiated just nine own inquiries in 2016, but this was arguably below average, estimated in the interviews to be about 10–20 inquiries annually.

Publicity and Effectiveness As an institution of “public accountability” (Bovens 2005), the Ombudsman supervises the use and legality of public power, covering public administration and government, but also organizations that now exercise public tasks, such as private companies that provide social services.

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The constitution also acknowledges the legal overseers’ right to receive information from public authorities and those performing public duties (Ministry of Justice 1999, sec. 111), highlighting the importance of transparency for the supervision of legality. The main task of the Parliamentary Ombudsman is the investigation of complaints filed by citizens, the public. As we saw earlier, the citizens’ awareness of the legal overseers, as well as their right to complain to them, is closely linked to the public mediation of these institutions. The Ombudsman and the Chancellor of Justice also derive their authority from the publicity of their decisions that sanction the misuse of power, though without ruling out the possibility of further legal action. They therefore provide an institutional site for the public as an accountability forum, relying on legal expertise of the legal overseers. At the same time, these institutions must safeguard their credibility, which limits their latitude in the publicity arena. Institutions of Public Accountability The institutions’ relationship with publicity was one of the themes I took up in the interviews conducted at the offices of the Ombudsman and Chancellor of Justice. The interviewees generally acknowledged that the institutions rely on publicity and that their media visibility also feeds to the number of their cases. Here the link seems to be rather straightforward, as even news items unrelated to people’s grievances caused spikes in the number of complaints to the institution in question. For example, the recent appointment of Tuomas Pöysti as the Chancellor of Justice had received broad media attention, prompting also a spike in the complaints made to the Chancellor. A similar thing happened with the Ombudsman’s office in the past, most notably in 1995, when the appointment of Lauri Lehtimaja became front-page news (Helsingin Sanomat 1995). Hence, media attention raises awareness of the legal overseers and of citizens’ rights to complain to them, which can also trigger spikes in the numbers of complaints. There are also controversies of public governance that receive much media attention, leading to complaints to two institutions. Some of these might be directly related to the lives of large number of people, who then take action. There are also cases of coordinated complaints.1 1  In addition, both legal overseers have their regular customers—serial complainants— some of whom have tended to act based on media coverage of the institutions.

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Figure 4.3 shows the monthly number of complaints made to the Ombudsman over a three-year period (2016–2018), together with the number of mentions in major news media. This data has been consolidated into a single graph, with the scale on the left-hand side showing the number of complaints (ranging from 316 in July 2016 to 862 in March 2017) and the scale on right-hand side indicating the number of mentions of Ombudsman in major news media (being at its lowest at 41 media hits in July 2016 and peaking at 511 hits in March 2017). There is an annual cycle of cases with numbers of complaints decreasing before and increasing after July and December, when there are fewer complaints. But departing from this cycle, there is a clear correlation between the publicity of the institution as measured by media coverage and the complaints filed by the citizens. This was most apparent in February– March 2017, when the Ombudsman received much publicity in a so-called Terrafame case that concerned potential conflict of interest of the Finnish Prime Minister Juha Sipilä, whose family members owned shares of a company that had provided equipment for a Finnish mining company that had received financial aid from the state. The media reported on the issue already in November 2016 and there was controversy over Finnish Public Broadcasting company, where the 1000

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Fig. 4.3  Complaints and media coverage of the Ombudsman by month, 2016– 2018. (Source: Finnish Parliamentary Ombudsman and media visibility reports by Meltwater (Meltwater 2016, 2017, 2018))

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management was being accused of censorship on the matter (Liimatainen and Sutinen 2016). The case led to complaints to both the Ombudsman and Chancellor of Justice, and even the Prime Minister himself requested the Chancellor of Justice to investigate the matter, though the case was investigated by the Ombudsman as the first complaints were filed there (Hallamaa 2016; Kiviranta 2016). The public attention received by the Ombudsman due to this high-profile case was evident in the media coverage of the Ombudsman in November 2016, but it peaked in January and February 2017, when the Ombudsman investigated the matter and finally decided that there was no conflict of interest (Palojärvi 2017; Seuri 2017; Meltwater 2016, 2017). This media attention is also followed by a peak in the complaints made to the Ombudsman in February and March, but the rise in the number of complaints was mainly related to delayed decisions on base-level income support by the Finnish Social Insurance Institution KELA, which had been made responsible of these benefits starting from January 2017. There was again a spike in the media attention received (Meltwater 2017), as well as in the complaints filed to the Ombudsman, this time mostly by people concerned. A press release issued by the Ombudsman on 8 March 2017 states that by that date the Ombudsman had received over 200 complaints on this matter alone (Oikeusasiamies 2017). There was also a highly mediatized case involving the Ombudsman concerning the prohibition of a Finnish citizen with double nationality from working for the Finnish military, which lead to media hits in January and March (Meltwater 2017). These episodes show the close dynamic between the Ombudsman and the “public”. As an institution existing due to citizens exercising their right to complain, the Ombudsman’s media visibility can have a major impact on its caseload. Interestingly, there are different modalities in this. High-profile cases concerning the political elite can lead to significant hikes in complaints on wholly unrelated matters, but also on systemic problems of governance (such as delays in social benefit decisions), and their mediation can lead to a snowballing of cases from people looking for a channel to vent their frustrations. On a more general level, Fig. 4.3 suggests that there is a correspondence with the number of complaints and the public visibility of the institution. However, we should not exaggerate the impact of media attention on the institution. While there are clear peaks in the complaints, by far the biggest share of the cases is nevertheless coming in a steady cyclical flow.

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Having said that, the institution is dependent of the citizens’ awareness of their right to complain, as well as the public attention received by the decisions of the institution. Politicization is also visible in the cases pursued by the Ombudsman or Chancellor of Justice, as well as their interpretation of law and justification of decisions, on which the legal overseers had also differed. This was most apparent with the impeachment case of Minister Kauko Juhantalo in 1993, where Ombudsman Jacob Söderman acted as the prosecutor. The court found Juhantalo guilty of attempted bribery, whereas the Chancellor of Justice Jorma S. Aalto had previously found no illegality in the case.2 The growth of the Ombudsman’s caseload following this event can be comprehended through the media publicity of the impeachment hearings, as discussed in previous chapter, but it also undoubtedly dented the public image of the Chancellor. In the early 2000s, there was a controversy concerning the EU’s Natura conservation scheme, where the Chancellor of Justice unwillingly became the target of anti-EU sentiments. Paavo Nikula’s (1998–2007) position on the Natura conservation scheme even led to some parliamentarians to call for an investigation of the legality of Chancellor’s actions, but Parliament dismissed this (Seppinen 2009, 219–20; YLE 2004). This also shows how contested cases can also draw the legal overseers into the domain of party politics. In short, prominent media cases can influence the public image of the institutions of accountability, which is apparent in the flow of complaints and to whom they were addressed. The institutions exist due to the public (citizens’ complaints, access to information) but are also in the public eye. Effectiveness The publicity of the legal overseers’ work also concerns their effectiveness. Figure 4.4 shows the measures taken by the Ombudsman based on complaints received. In some 15–18% of cases, the decision led to measures, mostly being reprimands (67  in 2017) and opinions (839  in 2017), though the need for pre-trial investigation may be assessed (2 cases in 2017) with some cases even leading to prosecution (no cases in 2017), the most severe of Ombudsman’s measures. There were also recommenda2  The impeachment was initiated and transferred to the Ombudsman by the Constitutional Law Committee of Parliament.

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7000 6000 5000 4000 3000 2000 1000 0

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Decisions leading to measures

No action taken

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Fig. 4.4  Measures taken by the Ombudsman, 2005–2017. (Source: Annual reports of the Ombudsman)

tions (31 in 2017) by the Ombudsman for redressing the error, to develop legislation, and to provide compensation or reach an agreed settlement. The biggest category of decisions concerns “no action taken” (2778 cases in 2017). This implies that no incorrect procedure was found (171 cases in 2017), or that there were no grounds to suspect illegal conduct (1516 cases in 2017) or for the Ombudsman’s measures (1091 in 2017). The third group—complaint not investigated (2225 cases in 2017)—contained cases that were not within the Ombudsman’s remit (234) or cases still pending with other authorities, or decisions where the possibility to appeal was still open (746 cases in 2017). Complaints were also not investigated by the Ombudsman if they could be transferred to the Chancellor of Justice (40 cases in 2017), to other authorities such as the Prosecutor General (6 cases in 2017), or to the Regional State Administrative Agency (85 cases in 2017). To summarize, there has been relatively steady continuity in the measures taken by the Ombudsman. An earlier study on the effectiveness of the Ombudsman institution found a slight increase in the total percentage of cases leading to measures in 1990–2006, with a significant increase in the number of reprimands issued, which were linked to the rise of human rights as a legal perspective that might draw the Ombudsman’s attention, even if there was no outright illegality (Keinänen and Määttä 2007, 46).

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The relatively high number of complaints not investigated indicates certain limitations in complainants’ understanding of the institution. The Ombudsman also takes measures based on its own inquiries, which involved 81 cases in 2017. In some 62% of these cases the measures taken were decisions (50 cases in 2017), while there was no action taken in 37% of the cases (30 cases in 2017). It is important to note that publicity also plays an important role in the Ombudsman’s own inquiries that often are selected based on media reporting of problems of governance. Also, in the Chancellor of Justice office the lawyers were instructed to follow the media for potential cases to follow up. Figure 4.5 shows the Chancellor of Justice’s cases in similar categories (2005–2017), though there is a slight difference in the classification, containing a class “No wrongful action found”. As with the Ombudsman, opinions and recommendations made up the biggest group of the adopted measures (106 cases in 2017), while prosecution was a seldom-used measure (no cases in 2017) along reprimands (2 in 2017). The Chancellor of Justice has a slightly higher share of cases not investigated (about 50%), where one difference with the Ombudsman seems to be the relatively higher number of cases transferred to the Ombudsman (67 in 2017) than were received from Ombudsman’s office (40 in 2017). 3000 2500 2000 1500 1000 500 0

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Decisions leading to measures

No wrongful action found

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Fig. 4.5  Measures taken by the Chancellor of Justice. (Source: Annual reports of the Chancellor of Justice)

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The legal overseers also habitually transfer cases among themselves, owing to special mandates but also taking account of whether either institution was already working on the case.3 In addition, in 2016 some 7% of the complaints dealt with by the Chancellor of Justice and about 4% of Ombudsman’s complaints fell outside their respective remits, which might partially explain the Chancellor’s slightly higher share of complaints not investigated. The share of cases clearly outside the mandate of both legal overseers is nevertheless small. However, there was also a difference in what was classified as a complaint, as the Ombudsman had ceased to classify miscellaneous letters that were sent to it as complaints in 2001, which reduced the number of its complaints significantly (by several hundred a year). This is also likely to explain why the Chancellor of Justice had more cases that were not investigated. The interviewees at both institutions felt that both were effective and well respected. Their adopted measures were seen to work well, also in line with an earlier study on the effectiveness of the Ombudsman institution, published in 2007, though the study makes critical remarks about trade-­ offs in resource allocation and delays in dealing with cases (Keinänen and Määttä 2007). At the time of the interviews the two legal overseers operated in a changing political climate, where legal expertise was increasingly being challenged, even by prominent politicians, and court decisions were criticized in public (YLE 2018, 2019a, b). The Chancellor of Justice also noted on the development in its annual report, discussing the borders of politics and law, though more in relation to the preparation of laws, where constitutional matters had to be considered and where the experts in constitutional law had been harshly criticized by politicians for slowing down necessary reforms (Valtioneuvoston oikeuskansleri 2016, 12–13). The interviewees at both organizations felt that despite of the challenges to legal system and expertise, the status and prestige of the legal overseers had weathered the turbulence well. Their “voice would carry” even at times like these and there were no indications of their decisions losing authority. However, the legal overseers had to manage their public appearances carefully, evident also in their media profile and communications. 3  In relative terms the Chancellor of Justice transferred some 3% of its complaints to Ombudsman in 2017 whereas the Ombudsman did so in less than 0.7% of its cases. In 2016, the Ombudsman transferred 14 cases to the Chancellor of Justice (0.3%) and in return the Chancellor had transferred 65 cases to the Ombudsman (about 3%).

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Media Profile and Strategic Communications The media profile of the two institutions is slightly different and had been transformed over the years as a result of different personalities holding the office as well as the institutional affiliations of the two legal overseers. As we saw in the previous chapter, the Chancellor of Justice has had a somewhat more traditional image and has often associated with the government, whereas the Ombudsman had profiled itself more as a guardian of individual rights closer to the citizen. We saw, this was also a matter of choice, as several holders of the Chancellor of Justice position had opted for reserved media strategy. We have also seen that there had been a recent change with the new Chancellor of Justice Tuomas Pöysti, who had adopted a more active media profile. Both legal overseers mostly communicate their activities using press releases, though they have recently also joined Twitter, the Ombudsman first and the Chancellor of Justice following Pöysti’s inauguration. The interviewees regarded both institutions as somewhat conservative in their media approach, though for a reason. It was generally perceived to be problematic if the Ombudsman or Chancellor of Justice were to speculate about cases before they were decided. The general opinion on legal matters was seen as being equally problematic, as they might end up on the desk of the legal overseers as cases and any previous statement on the issue might be regarded as an indication of the outcome of an investigation, hence limiting the legal overseers’ room to manoeuvre. Nevertheless, as one interviewee pointed out, the “ownership” of cases often proceeded through publicity, where the institution pursuing the matter also made the fact known to others. This might involve institutions other than the legal overseers and at the time of the interviews the Ombudsman for Children had been very active in various cases that also involved the Parliamentary Ombudsman, and where they co-operate (Eduskunnan oikeusasiamies 2018, 27–29). While the Ombudsman for Children has a limited mandate and did not directly compete with the Ombudsman or Chancellor of Justice, its increasing public appearances had also been noticed at the Ombudsman’s office. One aspect of this concerned the coming parliamentary elections in Spring 2019, where the Ombudsman for Children was a candidate (see below). The legal overseers followed each other through the media. While they would habitually transfer cases among themselves, having access to each other’s case diaries, it was also acknowledged that monitoring the media

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also served the purpose of not stepping on each other’s toes. Nevertheless, there were concerns about pursuing the same cases, and in the Ombudsman’s office it was stated explicitly that there had been cases where the Ombudsman would learn from the media that the Chancellor of Justice was working on a same case as they were. This was also stated as one of the motivations for seeking to reorganize the mandates of the two legal overseers. To summarize, the legal overseers live off publicity, both in terms of their visibility and citizens’ awareness of their rights to complain to them, as well as in terms of the effectiveness of their decisions. This also relates to the politicization of these institutions and their work. The politicization of the Ombudsman has been previously discussed in terms of crossing the border of law and politics or moving between fields of political, administrative and legal activities (Gammeltoft-Hansen 2008; Magnette 2003). Politicization can be understood as a process where issues are contested and new horizons for action are opened up (Palonen 2003). This might on the one hand grant the institution public visibility, hence having a positive effect on its functionality. But excessive politicization can also undermine the very independence and functionality of ombudsman (Gammeltoft-Hansen 2008). Both institutions had a relatively conservative media strategy, though their public image also differed. It was also noted in the interviews that there was general interest towards the institutions and that the media basically took up all press releases announced by the legal overseers. There had also been change in the media presence of the Chancellor of Justice after Tuomas Pöysti had taken office and the Chancellor was making headlines again. The change in profile also coincided with increasing institutional tensions concerning the overlapping mandates of the two legal overseers in Finland.

Differentiation, Ideational Shifts and Institutional Tensions Both institutions have their own special tasks that had developed over time and with some significant recent additions in the Parliamentary Ombudsman’s case. In the domain of human and fundamental rights, since November 2014 the Ombudsman acted as the National Preventive

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Mechanism (UNOPCAT) while being responsible for the rights of persons with disabilities (UNCRPD) starting from 2016, both tasks stemming from the UN human rights system and also associated with the Ombudsman’s status as the National Human Rights Institution (together with the Human Rights Centre and the Human Rights Delegation). The Parliamentary Ombudsman also controlled how police employs coercive measures (telecommunications and undercover missions). The Ombudsman also had special tasks in monitoring children’s and young persons’ rights as well as the rights of older people. In addition, the Ombudsman was also the responsible overseer for the treatment of prisoners, people confined to institutions, conscripts doing their national service and peacekeeping personnel. As its specific tasks, the Office of Chancellor of Justice was responsible for reviewing government’s proposals, monitoring advocates as well as monitoring the courts of law. Recently, the Chancellor of Justice has increased the preliminary reviews of new statutes, naming it as one of its priorities in 2018. In a commentary that was originally published in the 2017 annual report, Chancellor Pöysti links the above initiative to the division of responsibilities between the Ombudsman and the Chancellor of Justice (Chancellor of Justice 2018). As we will see, the special tasks and the functional differentiation of the two institutions had become pronounced in the debates on revising the mandates of the two institutions that had again become topical since 2015. This also concerned international collaboration and transnational policy scripts that influenced the two institutions and especially the Ombudsman, who refers to its new UN-related tasks as a justification for reconsidering the division of tasks. Here the international organizational models appear as epistemic capital that the actors can use in promoting their interests nationally (Alasuutari et  al. 2015), also apparent in the Chancellor of Justice’s attempt to identify new international models for its activities. At the same time, the reflexivity over the global models and the relations of the two legal overseers also contained an element of historical narrativity that now also explained and legitimized the activities of the institutions at present (Hobsbawm 1987; Koselleck 2004). Specific Duties and Institutional Tensions The Ombudsman’s role as the guardian of human rights in Finland has evolved since the early 1990s, and though both legal overseers are named

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as responsible for the promotion of human and fundamental rights in the Finnish constitution (Ministry of Justice 1999), the Ombudsman had taken an active profile in this. Globally too, the ombudsman institution has become associated with human rights, owing to the United Nations’ Paris Principles (adopted in 1993) that define the criteria for national human rights institutions (NHRIs) (Cardenas 2014; Koo and Ramirez 2009; Goodman and Pegram 2011). The Finnish NHRI consists of the Parliamentary Ombudsman, the Human Rights Centre and its Delegation. The Chancellor of Justice is not part of the institutional structure, but it is represented in the Human Rights Delegation as its permanent member. The process leading to the founding of the Finnish NHRI had begun already in the early 2000s, but it is interesting to note that the proposal for a NHRI law was made by Jacob Söderman (Eduskunta 2008), who was acting in his capacity as a Member of Parliament, having returned to Finnish politics from his post as the European Ombudsman in Strasbourg. The working group preparing the adoption of NHRI discusses the legal overseers’ work in Finland and points out that complaints are often an insufficient method for protecting against human rights violations (Oikeusministeriö 2010, 25–26). It is stated that though the Finnish legal overseers do make inspections, their resources are limited, also owing to the high volume of complaints that the legal overseers are obliged to investigate. This tension had been indicated by the Ombudsman already in the early 2000s (Eduskunnan oikeusasiamies 2002, 17–18), when the backlog of cases was mounting (see previous chapter). Also, an earlier study on the Finnish Parliamentary Ombudsman as a potential National Preventive Mechanism in Finland found the Ombudsman already to fulfil the criteria of OPCAT, but observed that the frequency of site visits should be increased as the OPCAT protocol required “regular” visits to places of detention and the European Committee for the Prevention of Torture (CPT) of the Council of Europe had already criticized Finland for infrequent site visits in the past (Pirjola 2008, 166–68, 174). This also taps into the trade-off in the allocation of resources between the investigation of complaints and the inspections and visits—a potential tension between the tasks as legal overseer and a human rights institution. The proposal for adopting the NHRI is coupled with the proposal for revising the Ombudsman Act to increase the efficiency of case handling (Oikeusministeriö 2010), which was done in 2011, granting the Ombudsman more discretion in its handling of cases.

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In November 2014, the Ombudsman also becomes the National Preventive Mechanism (NPM) under the UNOPCAT convention, emphasizing its role as a human rights institution and increasing the number of visits to sites where individuals are held in detention. This change also came at the time, when the Ombudsman manages to free resources from its investigation of complaints, largely thanks to the revision of the Ombudsman Act in 2011 that gives Ombudsman more discretion in the handling of the complaints (Eduskunnan oikeusasiamies 2015a, 40–42). A backlog of cases pending over a year was cleared in 2012–2014 (see Fig. 3.3 in previous chapter). After Finland ratifies the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol (into force on 10 June 2016), the Parliamentary Ombudsman—together with the Human Rights Centre and its Delegation—was given the task to promote and protect the rights of these individuals and monitor the implementation of the convention (Oikeusasiamies 2019c). This was done through the investigation of complaints, own inquiries and inspection visits. According to their mandate, the legal overseers regularly conduct inspections in public institutions that they supervise. The new NPM tasks have influenced the resource allocation of the Ombudsman, which is visible in the number of visits that peak after the Ombudsman adopts the NPM function (see Fig.  4.6). There had been peaks in the inspections already in 2011 and 2012, around the time that the Ombudsman started to clear the backlog of cases. In 2013 the number of inspections sank because of high number of incoming complaints (Eduskunnan oikeusasiamies 2014, 46), showing the trade-off between the two tasks. But overall the inspection activities appear to have increased together with the new NPM tasks, as anticipated already in 2011 annual report (Eduskunnan oikeusasiamies 2012, 37). The Chancellor of Justice also conducted inspections, but their number was lower, assessed at about 20–30 annually in the interviews. However, there had been significantly smaller amount of inspections conducted by the Chancellor in 2014–2017, with about ten visits or less each year (Valtioneuvoston oikeuskansleri 2018, 179). The increasing number of on-site visits by the Ombudsman was also reflected in interviews and some interviewees perceived tensions between the different obligations of the Ombudsman, arguing that the new NPM tasks and related site visits drew resources from the traditional tasks in legal oversight. On the other hand, the NPM function was seen to bring prestige with it, described as the “crown jewel” of international human

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160 140 120 100 80 60 40 20 0

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Inspections and other visits

NPM visits

Fig. 4.6  Inspections and visits by the Ombudsman, 2001–2017. (Source: Annual reports and NPM reports of the Ombudsman)

rights regime. But others argued that this was rather narrow perspective, as the NPM only concerned closed institutions. Together with the increasing number of inspections, the NPM and UNCRPD tasks were likely to set new demands for expertise of the Ombudsman (Eduskunnan oikeusasiamies 2012, 37). Interviewees stated that the office might need to consider this in its staff policy, basically complementing legal expertise with other kinds of specialists. Relating to its UNCRPD and NPM tasks, the Ombudsman may now also use external expertise in addition to its own resources (Oikeusasiamies 2019c). This shows how the additional tasks acquired by the ombudsman may change the institution from within. The Ombudsman had also adopted new mediating tasks (Kuusikko 2011, 147–52), involving proposing compensation for those whose rights had been violated. This had become increasingly involved, related to work of the European Court of Human Rights, which had repeatedly ruled against Finland in cases concerning delays in Finnish courts of law (Helsingin Sanomat 2018a). Mediating activities were also named as a potential source of tension between the traditional position as a legal overseer and the new tasks adopted by the Ombudsman. It is interesting to note that the Ombudsman’s potential role as a mediator had been dis-

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cussed already in the 1990s when Lauri Lehtimaja was Ombudsman (Lehtimaja 1999), though Jacob Söderman had been also interested in the model. The Ombudsman’s international collaboration had drawn attention to the médiateur function that the ombudsman institution has in certain countries. Not everyone shared the above concerns of new tasks undermining the legal overseer’s role, though the criticism was generally understood. As a remedy to the resource conflict, it was stated that the Ombudsman should not be the first actor to go into the field, except in NPM matters, when it was its duty to do so. As an example of this, the Finnish Ombudsman had refused to enter the field in the European Ombudsman’s initiative on co-­ operation in Frontex return flights (see Chap. 6), arguing that it is not the first actor to do so. Here the role of legal overseer was evoked—the responsible actors should intervene first and the Ombudsman should act as the overseer of their work. The Ombudsman would be the supervisor of the supervisors. The second Deputy Ombudsman, adopted in 1998, received a special mandate to focus on matters related to children, based on the proposal of the Parliament (Kuusikko 2011, 138), corresponding with the UN Convention on the Rights of the Child that had come into force in Finland already in 1991 (Oikeusasiamies 2019a). The oversight of the rights of children also involved inspections and institutional visits. This had become more pressing at the time of the interviews, as there had been media cases concerning the rights of children, but also because the institutional arrangements in Finland had been evolving since the 2004 adoption of the Ombudsman for Children, who shared the duty of promoting the UN Convention of the Rights of Child with the Parliamentary Ombudsman, but lacked the investigative competencies of the legal overseers. In addition, the acting Ombudsman for Children had been much present in media, also commenting matters that belonged to the mandate of the Parliamentary Ombudsman (see above). While the potential conflict of remit was somewhat downplayed in the interviews, certain problems of co-operation between the institutions were discussed in a commentary by the Deputy Ombudsman in the 2017 annual report, which also stressed that the Parliamentary Ombudsman was responsible overseeing the bodies such as the Ombudsman for Children (Eduskunnan oikeusasiamies 2018, 27–28), further adding to the complication. Moreover, the acting Ombudsman for Children was also running as a candidate in the 2018 Finnish parliamentary elections and made a promi-

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nent proposal for adopting a special Ombudsman for older people, relating to severe problems being reported in institutions of elderly care prior to the election. This was opposed by an acting member and Speaker of the Parliament representing another party, who expressed the opinion that these tasks should be vested with the Parliamentary Ombudsman, who also had competencies on the matter (Helsingin Sanomat 2018b; Eduskunta 2019). As a consequence, additional funds earmarked for the oversight of the rights of older people were channelled to the Parliamentary Ombudsman. This shows the delicate balancing act that the existing institutions are compelled to do—on the one hand, it is not necessarily in their interest to have new institutional actors in their field of activities, but simply adopting additional tasks or prioritizing existing ones differently also comes at a cost. In the interviews it was nevertheless argued that the existing structures should be used instead of adopting new ones, which was also an argument for integrating the Finnish NHRI with the Parliamentary Ombudsman, while also marking further expansion of tasks. The Chancellor of Justice was responsible for reviewing the government’s proposals, monitoring advocates and monitoring the courts of law. The Chancellor of Justice also attended the plenary sittings of the government (59 in 2017) and presidential sessions (25 in 2017). The Chancellor of Justice has the duty to review the legality of government’s proposals, to monitor the legality of decisions made in the plenaries of the government (1425 issues in 2017) and presidential sessions (416 issues in 2017) and to issue opinions on legality for the government (92 inquiries in 2017). The Chancellor of Justice also monitored the Courts of Law based on complaints, own inquiries and through samples of penalty decisions received from the Courts (4279 decisions in 2017). The Chancellor also monitored legal advocates, mainly through the decisions taken by the Disciplinary Board of the Finnish Bar Association (631 cases in 2017). A team of four lawyers and two notaries working on governmental matters mostly did the above tasks. The complaints made up a far bigger share of the workload of the Chancellor of Justice with some 20 people working on them. In 2018, the Chancellor of Justice had also increased the preliminary reviews of new statutes, linked to the division of responsibilities between the Ombudsman and the Chancellor of Justice (Chancellor of Justice 2018), which had again become topical since 2015, as the Parliamentary Ombudsman published a commentary in its 2014 annual report, calling for revision of the mandates of the two legal overseers (Eduskunnan

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oikeusasiamies 2015a, 25). The Ombudsman’s proposal came at the time when the institution celebrated its 95th anniversary. Moreover, along with the argument for efficient use of resources and potential pitfalls of two institutions not being consistent in their interpretations of law, the Ombudsman’s proposal also stresses functional differentiation and the new tasks of the Ombudsman owing to the UN human rights system. The debate that ensued shows reflexivity of history as well as international models and collaboration. Global Models, Politicization and Institutional Change Institutional change is often perceived as resulting from a political conflict or juncture in the practices of government. Politicization may also owe to contextual factors during periods of social turmoil and outright crisis. Such a political climate is also linked to the attempts to renegotiate the mandates of the two legal overseers. Over the years, these mandates have been renegotiated in several occasions, leading to incremental changes in their overlapping tasks. One interviewee at the Parliamentary Ombudsman’s office stated in early 2019 that the division of labour of the two institutions had been in the making for 100 years and something should be done. Indeed, there had been previous attempts at change. For example, in the 1930s the mandates of the two legal overseers were debated in a starkly polarized political climate: the extreme right in Finland wanted to abolish the Ombudsman and to transfer its tasks to the Chancellor of Justice, while those in favour of preserving the Ombudsman highlighted its independence of the government (Koskinen 1997, 23–24). Both institutions were kept in place, but the Ombudsman was given the sole mandate to handle cases concerning prisons and the military. In the late 1940s and 1950s, the aftermath of war was evident in the increasing activities of the Ombudsman, which also handled cases retrospectively (see previous chapter). In Finland, as elsewhere in Europe, the rise of political student movements in 1960s and the more general social turmoil in 1970s amid the context of Cold War posed also challenges for the legal overseers, particularly for the Chancellor of Justice. While the 1960s radical student movements tested the limits of legal order, this did not pose major problems for Chancellor of Justice in terms of cases (Seppinen 2009, 106–10). Along strengthening of parliamentarism, the changing political atmosphere challenged the Chancellor who was stuck in an image of being a government

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agent—“the crown lawyer”.4 Consequently, the Chancellor of Justice lost prestige in relation to the Parliamentary Ombudsman at the end of 1960s and 1970s without any changes to their mandates (Seppinen 2009, 126– 29). The development also led to a proposal in 1966 for adopting a new position of a Deputy Ombudsman (founded in 1971, came into effect in 1972), which the Chancellor of Justice opposed in vain. There is also reflexivity over the international development and models of Ombudsman, which is used as base of argumentation for developing the institution in Finland. Already in 1966, as a new position of Deputy Ombudsman was being proposed, there were references to limited resources of the Finnish Ombudsman as pointed out by international scholarship (Gellhorn 1966, 346; Seppinen 2009, 123–25).5 As we saw in Chap. 2, there was at the time growing international interest in the Ombudsman as a Nordic institutional feature that was adopted in the Anglophone world, which was also the motivation for American scholars to start publishing articles on the Finnish legal overseers. But while such academic articles served to spread awareness of the institution and pave way for its adoption in Anglophone world, they also served as means of argumentation on the national level in Finland, now used to promote the Ombudsman and improve its resources vis-à-vis the Chancellor of Justice. The international models and expert knowledge hence became epistemic capital that the actors used in promoting their interests on national level (cf. Alasuutari et al. 2015). Later, the international comparisons were linked to a narrative of the global spreading of the institution. For example in 1986 proposals for the development of the Finnish Ombudsman institution are already done in contrast to newer international models of ombudsmen, also recounting the ombudsman institutions’ rapid spreading all over the world (Aalto 1986). The Constitutional Law Committee discussed the legal overseer’s division of labour in 1985 and 1987

4  Owing to structural changes due to urbanization and Finns’ work-based emigration to Sweden also led to the rise of agrarian populist movement spearheaded by Finnish Rural Party (SMP) whose chairman Veikko Vennamo actively challenged the Chancellor of Justice (Seppinen 2009, 126–29). 5  The proposal by Member of Parliament Kristian Gestrin contained a reference to an international research article on the Finnish legal overseers by an American legal scholar who pointed out that they operated with most limited resources (Gellhorn 1966, 346; Seppinen 2009, 123–25), which was used as an argument supporting the new position of Deputy Ombudsman (founded in 1971).

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(Eduskunnan oikeusasiamies 2017, 21), followed by an act on the division of their responsibilities (Finlex 1990). The early 1990s’ economic recession also influenced the work of legal overseers, affecting the general satisfaction and future prospects of individuals and lowering the threshold to complain (Paunio 2010, 12). Overall, the 1990s appear as a critical juncture in Finnish politics (Peters et al. 2005), where the practices of governance, legal culture, as well as the public values changed rapidly (Väyrynen 1999; Alasuutari 2006). While fundamental rights had been acknowledged in the Finnish constitution and were relevant for complaints to the Ombudsman (Laitinen et  al. 1985), they were not referred to systematically. Hence, the turn towards human rights also politicized the rights of individuals, rendering it as issue of concern and also shifting the focus from overly legalistic argumentation. It is in this context that the second Deputy Ombudsman is adopted (in 1998), mainly as a reaction to growing number of cases (see previous chapter), but the responsible working group also came to discuss the overlapping mandates of the legal overseers more generally, though this did not lead to further changes (Kuusikko 2011, 137). Interestingly, the attempt to renegotiate the mandates of the two institutions again concurs with times of global political turmoil in the post-­ financial crisis era. In 2018, the Ministry of Justice again appointed a working group to assess the relationship between the two institutions (Oikeusministeriö 2018). The initial argument for revising the mandates—presented in 2015 by the acting Parliamentary Ombudsman Petri Jääskeläinen in annual report—is directly linked to the new international tasks of the Ombudsman as the NHRI and NPM, as well as the coming ratification of the UNCRPD. The Ombudsman argues that the new ­expertise related to these new tasks as well as the potential problems in the overlapping mandates of the two legal overseers should be taken into account in their division of labour (Eduskunnan oikeusasiamies 2015a, 25–26). Moreover, the commentary argues that there has been also functional differentiation between the two institutions that needs to be acknowledged. The proposal was echoed by the parliament’s Constitutional Law Committee (Eduskunta 2015a, 2–3, b, 4, 2016a, 4, b, 3, 2017a, 2), which had already earlier argued for enhancing the efficient use of resources in the field of fundamental and human rights (Eduskunta 2014, 5). In its annual report for the year 2016, the Ombudsman again raised the issue (Eduskunnan oikeusasiamies 2017), now making an even stronger case about the potential inefficiency in the use of resources following from

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the overlapping mandates of the two legal overseers, but the international tasks are again mentioned with now also the new UNCRPD-related tasks belonging to the Ombudsman. The Ombudsman also lists the historic attempts to renegotiate the mandates starting from the Chancellor’s 1931 proposal to move the cases concerning prisoners to sole mandate of the Ombudsman, whose opposition led to the government’s proposal to abolish the Ombudsman institution, at the initiative of the Chancellor (Eduskunnan oikeusasiamies 2017, 21). As problems of the current dual system, the Parliamentary Ombudsman lists problems in loss of time in the administration, the uncertainty among complainants and the general public, consistency of decisions and the decision-making process (Eduskunnan oikeusasiamies 2017, 22–25). History is again present in the discussion of the roots of the institutional arrangement and comparisons are made with Sweden, where the system has been reformed and the Chancellor of Justice arguably has only a few remaining tasks as legal overseer. The Ombudsman argues that the handling of complaints could be moved to one legal overseer, to which the Ombudsman would be most suited, handling already the vast majority of the complaints. While it is acknowledged that the new OPCAT tasks as such do not require the reorganizing of responsibilities as the Ombudsman already has the sole mandate in this domain, but the UNCRPD tasks are seen to add to the problem, as the work on the rights of people with disabilities should be in the sole competence and expertise of the Ombudsman (Eduskunnan oikeusasiamies 2017, 26). Here the global organizational model appears as a point of reference that is evoked in national debates. This is most apparent in the Finnish Parliamentary Ombudsman’s ­reference to the global model of ombudsman as an argument for the revision of mandates: In the most extensive form, the reform of the division of responsibilities could mean that all complaints would be directed to one overseer of legality. In my understanding, it should be the Ombudsman, who already handles the majority of all complaints. If general oversight of legality were to be performed mainly by only one overseer, it should in my view be an organ of Parliament, the highest institution of state with legislative powers. For example, those of the UN’s human rights conventions that require establishment of national mechanism to safeguard the rights guaranteed in the conventions consider it essential that this mechanism be independent of governmental power. An overseer of legality that is an organ of the executive

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power, such as the Chancellor of Justice, would not fit very well with this requirement. The fact that the model for oversight of legality that has spread across the world is particularly the model based on the Ombudsman chosen by Parliament also indicates the same philosophy. Almost 100 countries currently have an Ombudsman, although the selection procedure and the powers of the Ombudsman vary between different countries. Internationally, a model of two supreme overseers of legality is a speciality that exists only in Sweden and Finland. Sweden, too, has developed the responsibilities of the Chancellor of Justice and, in practice, Sweden’s Chancellor of Justice currently has very few general tasks remaining in the oversight of legality. (Parliamentary Ombudsman of Finland 2017, 19)

It was apparent from the interviews done at both institutions, that the general lines of arguments were neatly divided between the two organizations. The staff of the Ombudsman office shared the above concerns about the overlap of mandates and identified problems in the current practice. First, there is the potential problem of too many hands, so that neither one of the legal overseers acts on a case, anticipating the other organization to do so. This concern was to a certain extent understood by the staff at the Chancellor of Justice office, though this was not seen as a great risk. Second, the possibility of both legal overseers working on a same case unaware of each other was particularly seen as a problem in the Ombudsman’s office, where the staff members also referred to learning from news (and not from direct collaboration) that the Chancellor was working on a same case or specific subject matter than the Ombudsman. The interviewees in the Chancellor of Justice Office did not perceive this as a pressing problem but acknowledged that it might happen occasionally. Finally, it was pointed out by the Ombudsman staff who were interviewed that having differing interpretations of same subject matters from two legal overseers would dent their credibility. This concern was not equally shared in the Chancellor of Justice office and it was even argued that there can be different interpretations of law and that this was a bigger problem for courts of law than the legal overseers. It was also stressed that the Chancellor of Justice already has a different orientation in cases, focusing mainly on systemic matters, whereas the Ombudsman was more oriented towards protecting the rights of individuals. This position was in principle shared by the interviewees at the Ombudsman’s office. In the 2016 commentary on division of responsibilities of the two legal overseers, the Ombudsman proposed that the Chancellor of Justice profile

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itself more as an independent legal advisor to the government, pointing to the historical differentiation in the functions of the two institutions (Eduskunnan oikeusasiamies 2017, 27). The Constitutional Law Committee of the Parliament again shares the Ombudsman’s view about the need to reassess overlapping mandates (Eduskunta 2017b). The Chancellor of Justice’s response came initially from Chancellor Jaakko Jonkka, who just before retiring published a commentary in 2017, and argued that removing the legal advisor tasks from the tasks of legal oversight would significantly weaken the effect of the former. In other words, the weight of the legal opinion of the Chancellor of Justice would be significantly undermined, as would the whole institution (Valtioneuvoston oikeuskansleri 2017, 22–23). However, the above response from the Chancellor of Justice appears as part of a longer text that discusses the preliminary legal reviews done by the Chancellor. In 2018, the new Chancellor of Justice, Tuomas Pöysti, also took part in the debate, and announced increasing the preliminary reviews of new statutes as a priorities in 2018, linking this to the potential division of responsibilities between the Ombudsman and the Chancellor of Justice (Chancellor of Justice 2018). This now also includes a new kind of preliminary review of acts prepared by ministries, where they would be encouraged but not obliged to seek legal counselling from the Chancellor of Justice particularly on constitutional matters. What is remarkable about the Chancellor’s proposal is its lengthy discussion of international models that would be of relevance to the Chancellor. The commentary, initially published in the 2017 annual report and later translated into English (Chancellor of Justice 2018), presents different European arrangements for independent legal assessment and advice in legislative process: Independent legal assessments in the context of the legislative process and the provision of independent legal advice in the context of the actions of the highest executive organs are not an exclusively Finnish feature. Each European country has arranged the role in accordance with their respective constitutional laws and administrative structures. In France, for example, the non-judicial departments of the Council of State (Conseil d’État), which also acts as the supreme court for administrative justice, issue statements in a manner that is very similar to the preliminary reviews carried out by the Chancellor of Justice in Finland. The consultative role of the French Constitutional Council (Conseil constitutionnel) also features these elements, although the Constitutional Council has more similarities with the Constitutional Law Committee in Finland. It is therefore not exclusively a

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constitutional court. […] The institutional solution adopted in the Netherlands is largely similar to that of France: the Dutch Council of State (Raad van State) provides consultancy and issues statements, and it also acts as the supreme court in administrative matters. Its consultative role is organisationally separate from its role as an administrative court, and emphasis is given to the independence of the consultancy provided by the Council of State. […] In Sweden, the duty to pronounce on the legal validity of legislative proposals lies with the Council of Legislation (Lagrådet). The procedure involves the Council of Legislation examining similar issues to those covered by the preliminary reviews of new statutes carried out by the Finnish Chancellor of Justice. […] The Swedish Chancellor of Justice is responsible for producing reports for the Government upon request and for issuing statements in the course of the legislative process, but performing preliminary reviews on new statutes is not among her principal tasks. (Chancellor of Justice 2018)

The above quote, along with a neat summary of institutional arrangements on legal advice in various European countries, shows the importance of international reference points in domestic institutional debates. But it also shows the heterogeneity of available models for the Chancellor of Justice. Whereas the Ombudsman taps into the global organizational model of the ombudsman—now spread to over 100 countries—the Chancellor of Justice is compelled to explore various institutional arrangements that have functional similarities but different name. Indeed, the international collaboration networks that had evolved around the ombudsman institution also appeared as a mechanism of inclusion and exclusion that treated the Finnish legal overseers differently. The working group appointed by the Ministry of Justice to assess the relationship between the two institutions issued a report in early June 2019. The justifications for revising the mandates are expressed largely along the lines presented above with the arguments of both institutions acknowledged (Oikeusministeriö 2019, 32–40), though the general perspective is that of effective and efficient resource allocation. There is also a comparison of institutional practices in Sweden, Denmark, Norway and Estonia. It is notable that while the tasks owing to the international treaties and activities of the Ombudsman are mentioned, the discussion itself gravitates towards the functional differentiation of the two institutions, which is a more context-specific matter. It is also acknowledged that the proposed changes would have to comply with the constitution, which sees the institutions to have equal standing as legal overseers and the group

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hence proposes further developing the division of their tasks instead of granting the complaint handling to only one of them (Oikeusministeriö 2019, 44). The proposal for the actual division of tasks is largely in line with the existing case profiles of the two institutions (Oikeusministeriö 2019, chap. 4). The complaints concerning the courts of law, national courts administration and prosecuting authority would belong to the remit of the Chancellor. The cases concerning the self-government and autonomy of the Åland Islands would be the remit of the Chancellor. The same would apply to cases concerning the right to environment and the automatization of the government and systemic use of algorithms, as with corruption and public procurement cases. According to the proposal, the cases concerning the preliminary investigation would be handled by the Ombudsman, except for the cases concerning the passivity of authorities in handling such cases, where both legal overseers could still intervene. The cases concerning covert information gathering and intelligence would be mainly handled by the Ombudsman, though the strategic level of intelligence could still be overseen by the Chancellor. The cases concerning self-determination and persons confined into institutions would be handled by the Ombudsman. Also, cases concerning social welfare, social insurance (statutory insurance) and health issues would be moved to the Ombudsman, which has already profiled itself in these matters. Similarly, the Ombudsman would be solely responsible for cases concerning children, people with disabilities, older people, refugees and cases concerning guardianship. The cases concerning endogenous Sami people as well as Roma and other minorities such as sexual minorities would belong to the sole mandate of Ombudsman. The matters concerning the police are significant for both legal overseers (see above), and these complaints are hence not to be appointed to either one of the institutions according to the proposal. In addition, the proposal notes that the citizens would still have the right to complain to either one of the institutions and the proper allocation of cases would be the task of the institutions (Oikeusministeriö 2019, 77). As is apparent in the above debate, the heart of the matter concerns resource allocation and efficiency. While the possible changes in the law are still unknown, the report proposes significant changes to the division of tasks between the two institutions, while they both would continue to handle citizen complaints. This shows a certain path dependence in activities, and the report of the working group mostly highlights incremental development in the

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activities of the two institutions. Nevertheless, the whole debate has been launched based on the new OPCAT and UNCRPD tasks acquired by the Ombudsman, demonstrating the value of international models for local actors. International Collaboration As one of the justifications for revising the mandates, the Parliamentary Ombudsman argued that through its tasks related to UN human rights system and international collaboration networks of Ombudsmen, it has significantly more international activities than the Chancellor of Justice (Eduskunnan oikeusasiamies 2017, 23). It is noteworthy that the debate on the responsibilities of the two institutions emanated from a report discussing activities in the field of fundamental and human rights in Finland (Eduskunta 2014), framing the policy problem accordingly (cf. Bacchi 1999). While both legal overseers are responsible for promoting and monitoring human rights in Finland, this has historically been associated with the Ombudsman and is now increasingly becoming acknowledged through the specific tasks relating to the UN human rights system, also associated with the global model of Ombudsman (Koo and Ramirez 2009; compare Meyer et al. 1997). While the Finnish Parliamentary Ombudsman would have fitted this model, the Chancellor of Justice was a different case. The Chancellor of Justice was a member of the International Ombudsman Institute (IOI) and the European Network of Ombudsmen (ENO) (see Chaps. 2 and 5), just like the Finnish Parliamentary Ombudsman. But the myriad of associations that had evolved around the ombudsman institution otherwise did not necessarily include the Chancellor. On the contrary, the interviewees with the Parliamentary Ombudsman revealed that the Ombudsman had a wide choice or even “excess” of possible venues for international collaboration and that it had even chosen to step down from at least one of them (the European Ombudsman Institute during Lauri Lehtimaja’s term as Ombudsman). International collaboration was mainly seen as a social activity that gave a perspective on how things were done elsewhere, being also a potential source of institutional ideas such as the mediating activities of the Finnish Ombudsman. The interviewees at the Ombudsman office saw that such collaboration was more in the interest of newly established institutions, who would actively try to learn from experiences elsewhere. The added

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value for established institutions, such as the Finnish Ombudsman, was seen limited. In addition to the associations, there were also plenty of institutional visits as well as regional collaboration, where the Nordic Ombudsmen would meet. Also the Swedish and Finnish Chancellors of Justice had regular contacts and there had also been close collaboration between the Finnish legal overseers and their Baltic counterparts when their activities were started in the late 1990s and early 2000s. In a similar fashion, there had also more recently been closer contacts with Dutch Ombudsman office, who had been actively engaging its European colleagues. Both institutions acknowledged that the international collaboration mostly had very limited practical implications. The European Ombudsman’s ENO would occasionally ask countries to collect data or even collaborate on parallel inquiries such as the Frontex case (see Chap. 6), and the national ombudsman institutions would get their queries on EU law forwarded to the Commissions through the network, but otherwise the ENO also rather served as an venue for sharing experiences. The Ombudsman had also recently joined the European Network for NHRIs as the sole representative of Finland. At the Chancellor of Justice’s office, international collaboration was being actively developed, including with the organizations that the Chancellor names as potential models of independent legal advice. Most notably, following the example of the French Constitutional Council, the Chancellor of Justice had translated a French act on algorithmic g ­ overnance in Finnish and promoted it as a model for Finland (Chancellor of Justice 2019; Pöysti 2018). In addition, privacy issues were also on the agenda of the Chancellor, linking also to the EU regulation on the matter.6 However, it was acknowledged that while the Ombudsman had plenty of international forums and models for collaboration, the Chancellor of Justice— apart from the IOI and ENO—had to create its network by itself. All in all, the international collaboration had a significant value as a reference point that could be used in national debates. Moreover, global models helped to explain and legitimize activities and historical institutional developments.

6  The Ombudsman and Chancellor of Justice had also collaborated on the matter and had joint staff training related to the EU’s General Data Protection Regulation (GDPR).

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Reflexivity over History and Global Ombudsman Models It has become commonplace to discuss the ombudsman institution and its functions in terms of a historical narrative on the institutions global spreading and its different models (see Chap. 2). Such historical narratives were also referred to in the interviews with the Finnish actors, giving a sense of orientation and legitimizing decisions at present. For example, some interviewees stressed the historical roots of the ombudsman institution, referring to the eighteenth-century Swedish history. In relation to renegotiating the mandates of the two institutions, it was pointed out that the roots of the Parliamentary Ombudsman institution lay in the institution of the Chancellor of Justice, which was briefly nominated by the Estates assembled in the Swedish Diet in 1766–1772 (see previous chapter). Also the increased interest in the information rights and digital governance of the Chancellor of Justice was linked to the institutions’ historical task as the overseer of the 1766 Freedom of the Press Act. On the other hand, when asked why an established Ombudsman institution like the Finnish one would be so keen on achieving “A” status in NHRI accreditation, it was argued that this was in line with the Finnish tradition in the rule of law stemming from the joint institutional history with Sweden. Such historical explanations demonstrated reflexivity over institutional traditions that in many ways were attempts to orient towards the future (Hobsbawm 1987). In addition, the typologies of ombudsmen existing in different countries as well as their institutional trajectories were also highlighted by several interviewees. These also legitimized the changing mandate of the Finnish Parliamentary Ombudsman, which has adopted new tasks in mediating and human rights issues that link to global models of Ombudsman. The relation to the Swedish model was somewhat ambivalent. On one hand, the joint history of Finland and Sweden and the similarities in legal and administrative history were seen in positive light and granting Finland a long institutional history of rule of law and stable institutions such as the Ombudsman. At the same time, the Swedish Justitieombudsman was seen as a somewhat conservative institution that had been more reluctant to embrace human rights. Furthermore, it was also pointed out that while the ombudsman was a Swedish innovation, it was the Danish model that had spread globally.

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There was a shared sentiment that the somewhat traditionalist attitude held by the Swedish Justitieombudsman, focusing on legality, was also visible in international collaboration.7 In a way, the Swedish institution was seen to have taken a path of its own with its persistent focus on legality and not including the human rights issues in its mission to the similar extent, as was the case in Finland. Here the global models and developments elsewhere came to legitimate the institutional orientation of the Ombudsman in Finland. In the interviews, there were also references to the global diffusion of ombudsman and the role of Finns promoting the institution. This global narrative is also referred to in the public speeches of Finnish politicians, legal experts and the actors themselves. For example, the speeches held on the 95th anniversary of the Finnish Parliamentary Ombudsman in February 2015 highlight continuity and the global models that influence the work of the institution (Eduskunnan oikeusasiamies 2015b). In his celebratory address, the Speaker of the Parliament Eero Heinäluoma identifies the ombudsman as a “Nordic constitutional innovation that has thrived on all continents”. He further highlights Jorma S. Aalto, a long-term Parliamentary Ombudsman (1974–1986) and later Chancellor of Justice (1986–1998), for his work in promoting ombudsman institution in Latin American countries, most of which have now adopted the institution (Heinäluoma 2015, 18.) In similar vein, the Finnish Parliamentary Ombudsman is portrayed (by the acting Ombudsman) as an instance of the global diffusion process, the second ombudsman after Sweden, which now stands out globally as a guardian of fundamental and human rights, even compared to its Nordic peers (Jääskeläinen 2015, 8, 10). Moreover, the Ombudsman is seen to have “responded to a global development”, where Ombudsman institutions are increasingly responsible for oversight of human rights (Kuusikko 2015, 37). Here the global models and narrative of global diffusion of the ombudsman legitimize institutional developments in Finland. Also the incorporation of good governance into the work of the Ombudsman is exemplified with the help of models, as the Finnish Parliamentary Ombudsman is seen to have promoted good administrative 7  This was seen to have led to isolationism in some historical turning points where the Swedish model could have been promoted. For example, Jacob Söderman’s autobiography identifies the election of the first European Ombudsman as a case in point, as Söderman became elected largely with the help of Southern European countries where there were existing contacts from Söderman’s previous years as a Finnish Parliamentary Ombudsman, while the Swedes failed to find a candidate and support (Saari 2014, 239–48).

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practices with the help of this transnational concept, just like the Danish Ombudsman (Kuusikko 2015, 40). In addition, the Finnish Parliamentary Ombudsman’s shift towards mediation is explained through the international médiateur model that is now emerging in Finland (Kuusikko 2015, 37). At the same time, the Finnish Parliamentary Ombudsman is “a unique institution that has served as a model internationally” (Lardot 2015, 45). As the above accounts show, there is a keen reflexivity over international models and the global diffusion of the ombudsman that now also helps to explain and legitimate the institutional changes in Finland. In many ways, the institutional development in Finland can be understood against the global model of ombudsman and the collaboration venues, most notably related to the transnational governance of human rights. This global policy script largely bypasses the Chancellor of Justice and is also visible in the attempts to renegotiate the mandates of the two institutions, based on the functional differentiation as well as global models and imaginaries.

Conclusions The Finnish legal overseers are institutions of “public” accountability in different modalities of the concept. First, they receive their complaints from citizens whose awareness of the institutions and their right to complain to them is also as result of the public mediation of the legal overseers’ work. Indeed, the legal overseers also live in the public eye with the media keenly following their work. As I have shown, there is a close dynamic between media visibility of the Ombudsman and the complaints filed with the institution. The institutions hence communicate themselves in the public sphere but also claim ownership to cases and issues vis-à-vis other institutional actors. Also, own inquiries are often initiated based on media coverage on issues of concern. Moreover, the effectiveness of the institutions rests largely in their credibility and public image, compelling them to control their media profile. Despite of the contentious times where legal institutions found themselves challenged, the two legal overseers in Finland have been able to guard their prestige and effectiveness, though there were concerns about showing dissonance and differing legal interpretations in public that might undermine institutional credibility. The ideational shifts around the ombudsman institution discussed in the previous chapters is also apparent in the Finnish case, where the institutional change of the Ombudsman is largely linked to the transnational

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governance of human rights and adoption of institutional ideas related to ombudsman’s work elsewhere, as well as new tasks owing to international treaties. However, what is noteworthy in this process is not so much the convergence between the different “models”, “types” or “traditions” of ombudsmen, but the role that such classifications play in the process. The Finnish legal overseers have co-existed for the past 100 years with similar mandates. There has been functional differentiation as well as a coordination of tasks between the two, with the Ombudsman now focusing more on individual rights and social matters and the Chancellor of Justice more inclined towards systemic issues. Yet their mandates still overlap, which had again become a policy issue. Though their division of tasks has also been negotiated in the past, with reference to international models starting already in the 1960s, there is currently an intensive referencing to a global model and history of ombudsman, which is not only a source of institutional ideas but grants legitimation and sense of orientation to actors, explaining also institutional developments and interests. Here, the two legal overseers are positioned differently, with the Parliamentary Ombudsman being verified against the global blueprint and the Chancellor of Justice having to explore different kinds of institutional models.

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PART III

European Ombudsman

CHAPTER 5

European Ombudsman as a Supranational Institution of Accountability

Introduction This chapter analyses the institutional development of the European Ombudsman and the attendant role of transnational norms, policy discourses and actors. The European Ombudsman is interesting as a rare instance of a supranational ombudsman institution that has profiled itself as an institution of good governance. This chapter highlights the ability of actors to translate transnational norms and policy discourses to promote their own agenda and explores how promoting good governance and transparency has become a strategy to advance the institution in the inter-­ institutional setting of the EU. The global drive for “good governance” and “transparency” (Blomgren and Sahlin 2007; Erkkilä 2012) coincided with the establishment of the European Ombudsman in 1995 and resonated with the crises of EU governance (Cini 2007). While the discourse on fundamental rights is relevant to the European Ombudsman, its profile and mandate, to some extent, exclude it from the semantic field of human rights (cf. Koselleck 2004). The European Ombudsman has been regarded as a hybrid agent in EU governance, placed between parliamentary control and the rule of law (Magnette 2003). Previous research has assessed the European Ombudsman as an institution of accountability and good governance in the EU system (Vogiatzis 2017; Hofmann and Ziller 2017). Also, the relationship between the European Ombudsman and the Court of Justice

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of the European Union has been studied (Remac 2014). In the standing literature, the European Ombudsman is discussed as an instance of a “Danish model” of the ombudsman (Heede 2000; cf. Reif 2004, chap. 11). The institutional history and evolution of the European Ombudsman has been strongly linked to the evolving discourses on “maladministration”, “good governance” and “transparency”, which the European Ombudsman has been actively codifying (Leeuw 2011; Tsadiras 2015; European Ombudsman 2005). The concepts of good governance and transparency have been essential to the institutional boundary work of the European Ombudsman (Gieryn 1983; Erkkilä and Kauppi 2017). The European Ombudsman has profiled itself as an institution of good governance, allowing it to promote this cause and itself in the EU institutional system (Harden 2017). Most of its annual cases concern transparency of EU governance. This chapter examines the institutional development of the European Ombudsman, highlighting the importance of transnational ideas, discourses and “models” linked to the ombudsman institution and their interplay in the context of the European Ombudsman’s institutional evolution and change. Moreover, the inter-institutional setting is considered, including institutional peers and rivals of the Ombudsman. I also discuss the role of actors in establishing, institutionalizing and changing the Ombudsman institution over time (see also next chapter). So far, the office has been held by three individuals, Jacob Söderman from Finland (1995–2003), Nikiforos Diamandouros from Greece (2003–2013) and Emily O’Reilly from Ireland (since 2013).

Institutional Evolution of the European Ombudsman Established by the Maastricht Treaty (1992), the European Ombudsman began operations in 1995. The status and duties of the European Ombudsman were defined in the so-called Ombudsman statute that was adopted by the European Parliament on 9 March 1994 (European Union 1994), and has been amended twice in 2002 and 2008 (European Union 2002, 2008). At the time of writing this book, there was again a proposal for amending the Ombudsman statute (European Parliament 2018d), as will be discussed in the following. The current legal basis of the European Ombudsman in set out in articles 20, 24 and 228 of the Treaty on the Functioning of the European

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Union (European Union 2012b). Article 228 stipulates that the “European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them” (European Union 2012b, Article 228). Article 228 further defines that “in accordance with his duties, the Ombudsman shall conducts inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be informed of the outcome of such inquiries”. The effectiveness of the Ombudsman’s work lies largely in the complaints of the public and the publicity of its inquiries into these matters. The Ombudsman may also conduct own-initiative inquiries and according to the current implementing provisions, the European Ombudsman “shall conduct own-­ initiative inquiries for which the Ombudsman finds grounds” (European Ombudsman 2016). Here, the procedures that apply to the inquiries on complaints are also applied to the extent they are relevant. Since the Treaty of Lisbon (signed on 13 December 2007), the European Ombudsman institution is closely linked to the rights of EU citizens, who according to Articles 20 and 24, have the right to “to apply to the European Ombudsman”. The European Charter of Fundamental Rights (European Union 2012a) further underlines this link, and its Article 43 defines the right to refer to the Ombudsman on cases of maladministration as a fundamental right. In addition, the right of access to documents is acknowledged as a fundamental right of European citizens (European Union 2012a, Article 42). The regulation 1049/2001 further codifies the public access to European Parliament, Council and Commission documents (European Union 2001), being of key importance to the European Ombudsman whose cases frequently concern transparency and

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access to information. Overall, the discourse of good governance and transparency is closely linked to the institutionalization of the European Ombudsman. Transnational Policy Discourses and the Institutionalization of the European Ombudsman The institutionalization of the European Ombudsman involved an interplay of political momentum and intra-institutional setting and discourses. Most notably, the adoption of the European Ombudsman institution was largely a question of timing (Gammeltoft-Hansen 2005). The European Parliament had discussed the adoption of the Ombudsman already in 1979, without effect. Adopted in the Maastricht Treaty of 1992, it was in 1995 that the European Parliament appointed the first European Ombudsman, Jacob Söderman. In the discussions prior to the creation of the European Ombudsman’s office, some European Parliamentarians (EPs) voiced concerns of the Ombudsman becoming a political tool of Parliament, rather than an independent institution. Denmark was active on this issue, both in 1979 and 1992, and insisted that the European Ombudsman should not be a politician (Biering 2005, 45). While the first Ombudsman, Jacob Söderman, had previously acted as an Ombudsman in Finland, he was perhaps better known for his political career, acting as Member of Parliament (1972–1983), Minister of Justice (1971), Minister of Social Affairs and Health (1982) and County Governor (1982–1989) before becoming the Finnish Parliamentary Ombudsman (1989–1995). The European Ombudsman Söderman emphasized that the institution is non-political and extra-judicial in nature, which is also apparent in the institutional development of the European Ombudsman. Since its initial defeat in 1979, there were many developments working in favour of the idea of the European Ombudsman before 1992. Most notably, the question of human rights was high on the agenda in EU countries in the early 1990s, and it became the domain of the Ombudsman. As we saw in Chap. 2, by the early 1990s, all EU member states had adopted the ombudsman institution on a national level. There was general awareness and political acceptance of the institution in the 1990s, unlike in 1979. Also, EU law had become an independent legal system, which called for European mechanisms of control. The ombudsman institution falls outside the main traditions of EU law, but its Nordic origins may have helped its adoption, since it did not resonate with established disputes

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within EU law. Moreover, the EU institutions have few direct contacts with the European citizens, whom the Ombudsman primarily serves, and there was no strong opposition for the proposal among the EU institutions except for the European Parliament’s Committee on Petitions that perceived the Ombudsman as a potential rival (Gammeltoft-Hansen 2005) The adoption of the Ombudsman took place at a time when questions of democratization and transparency were high on the EU agenda (Cini 2007). Both the Santer and Prodi Commissions tried to reform European institutions following these principles. Transparency, or public access to the information held by the institutions, was officially acknowledged for the first time by the Maastricht Treaty in 1992. Apart from the mounting criticism towards the opaque decision-making procedures in the Council of Ministers, general concerns were expressed about the state of democracy in the EU and its implications for its legitimacy in the member states at this time. Héritier has called the EU transparency programme a “substitute element of democratic legitimation” (Héritier 1999, 271), as it was adopted after unsuccessful wider institutional reform (Héritier 2003, 822). Cini further explores the conditions where the initiative came to be accepted, seeing the Ombudsman as an item of a continuing administrative reform fundamentally motivated by institutional politics (Cini 2008; cf. Peters 2001). There was an increase in the powers of the European Parliament after the 1990s and an emphasis on creating a “citizen’s Europe”. Analogously, the European Parliament argued that an increase in its power would bring more openness to the EU (Lodge 2003, 100). The resolution to create the Ombudsman institution was reached in the Treaty on the EU following a Spanish initiative based on a Danish proposal (Biering 2005; Moreiro González 2005). The key challenge for the European Ombudsman in the early years was to define the discourse of “good governance” and “maladministration” (Söderman 2005). The first European Ombudsman, Jacob Söderman, stipulated that “maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it” (European Parliament 2015, para. F). Over the years, the main sources of complaint have been the lack of transparency and access to documents and staff matters (see later in the chapter). The Ombudsman institution also adapted itself to an evolving institutional environment, evident in complaints to do with contractual matters. The national ombudsmen did not deal with these complaints because they were considered as being commercial disputes (Söderman 2005, 91). In the European context, they became one of the staples of the Ombudsman.

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According to interviews conducted for this study, the very first annual report was used as an opportunity to set out Söderman’s vision of the institution. In Brussels, people only conceived of national ombudsman institutions. Many perceived the European Ombudsman merely as a postbox that would receive and forward complaints without investigating them. Access to documents became important in the institutional boundary work of the Ombudsman. In 1993, the Council and the Commission reached an agreement on a joint code of conduct governing public access to official documents that named the Ombudsman as a special remedy for transparency (The Council of European Union 1993, Article 7). This was used by the Ombudsman as a reference in arguing in favour of its role in handling the complaints. The global drive for good governance concurred with the establishment of the European Ombudsman in 1995. The Ombudsman established its position in the inter-institutional setting by adopting good governance and transparency as its causes to promote, defining and identifying maladministration in European governance. This also involved public controversies with the European Commission and a subtler boundary work vis-à-vis the existing Committee on Petitions of European Parliament (Erkkilä and Kauppi 2017). Here the newly established European Ombudsman actively sought to challenge the European Commission and the EU’s institutional practices, such as its lack of transparency (Black 2000). In 1999, Romano Prodi was elected president of the European Commission after the resignation of Jacques Santer’s Commission. Prodi’s ambitious statement on the objectives of the Commission was reflected in the White Paper on European Governance (European Commission 2001), building apparently on the World Bank’s definition on good governance. However, there was a discrepancy between Prodi’s ambitions and the political realities. In 2000, there was a much publicized incident, where Romano Prodi clashed with Jacob Söderman, who had criticized the Commission for its opacity (Black 2000). There was also a North-South division evoked in the conflict, referring to different administrative cultures in the countries of origin of the two men and arguably in their understanding of good governance and transparency. The clash was later settled over a breakfast in the presence of media (Saari 2014, chap. 15). From the perspective of the newly established institution, this media event was important, because it helped the Ombudsman to promote itself in the intra-institutional setting of the EU.

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Here, transparency also worked as a coordinative discourse (Schmidt 2010), helping the European Ombudsman to communicate not only a key administrative principle to other institutions, but also the institution itself and its mission. In the interviews I conducted, it was stated that Söderman as a seasoned politician was comfortable in such disputes and was undoubtedly also aware of the effect that the media attention would have on the Ombudsman institution, having also observed such dynamics during his term as the Finnish Parliamentary Ombudsman (see Chap. 3). But while the clash with Prodi made headlines, there was no similar impact as in Finland, where such publicity would probably have had immediate effects on the numbers of incoming complaints. Indeed, as I show later, the dynamic with the public seems to work differently for the European Ombudsman, highlighting its specific mandate and limitations of European public sphere (cf. Risse 2010). In the post-Lisbon Treaty era, the European Ombudsman has been associated with fundamental rights (cf. Mastroianni 2017). The Lisbon Treaty brought the Charter of Fundamental Rights of the EU into force, stating that any citizen of the Union (and any natural or legal person) has the right to refer to the Ombudsman of the Union in cases of maladministration. Also, citizens’ right to access European Parliament, Council and Commission documents was added to the Charter of Fundamental Rights of the European Union. Here, the entry of good administration as a right of European citizens as well as the citizens’ right to complain to the Ombudsman into the Charter has shaped the understanding of “rights” in the European Union (European Union 2012a). For the Ombudsman, this is also important with respect to the global Ombudsman model, as the European Ombudsman had in the EU context belonged solely in the domain of good governance, but was now associated with the semantic field of “rights” (Koselleck 2004), even if not “human rights” but “fundamental rights”. The new codifications of “good administration” and the right to complain to the Ombudsman on occurrence of “maladministration” in the Charter for Fundamental Rights bring the Ombudsman to the domain of “rights” also in the EU context. The European Ombudsman Nikiforos Diamandouros used this as a backdrop for stretching the Ombudsman’s mandate to explore good governance outside outright illegality, arguing that the Ombudsman should also consider “life beyond legality”. This included proactive work to

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­ romote good governance (cf. Mastroianni 2017), also in the form of p visits to the EU agencies that were mushrooming at the time. Life beyond legality is now seen by some observers as the European Ombudsman’s “paradigm” (Tsadiras 2015), but as I show later, it has to a certain extent moved the institution from its core functions in observing legality, a development that has continued also during Emily O’Reilly’s term as the European Ombudsman. In autumn 2018, the European Parliament’s Committee on Petitions announced its draft Opinion on amending the Ombudsman statute (European Parliament 2018d).1 This would further broaden the mandate of the European Ombudsman, giving it a right to make binding decisions on access to information cases, similar to an information officer in the Anglophone countries, and also codifying strategic initiatives (not formal inquiries) that had been launched during O’Reilly’s term. This debate captures many of the institutional ideas currently associated with the European Ombudsman, as I discuss in the next chapter. To understand the dynamics behind the institution, which are also relevant for the aspirations for its reform, one needs also to consider the role of actors in interpreting and renegotiating the mandate of the European Ombudsman. Actors and Institutional Evolution of the European Ombudsman The European Ombudsman is the only single-person EU institution, being both an individual and an institution, which greatly influences its institutional development. In the standing literature and interviews conducted for this study, the office holders’ interpretation of the institution and its mandate was also linked to the choice of activities (cf. Hofmann 2017, 3–4). Furthermore, the person of the European Ombudsman stood out prominently in the interviews. Corresponding with the office holder, the institutional development of the European Ombudsman was summarized under different office holders as establishment, growth and continuity, and conversion. 1  The proposed amendments concerned the Ombudsman’s relation vis-à-vis the judiciary, references to secrecy and discretion in handling documents, conflict of interest cases, strategic inquiries, Ombudsman’s presence in parliamentary hearings, Ombudsman’s additional duties (whistleblowing, harassment cases), Ombudsman’s qualifications and the seat of the European Ombudsman.

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Concerning the three Ombudsmen as actors and their potential differences as office holders, the interviewees highlighted their personal background.2 This arguably influenced their understanding of the institution and the work at the European Ombudsman office. There was Jacob Söderman, a lawyer, who was engaged in developing the European Ombudsman into a legal institution; Nikiforos Diamandouros, a professor of political science, whose term was characterized by the eastern enlargement of the EU, establishing contacts with national actors and creating a formal structure in the bureau of the Ombudsman; and Emily O’Reilly, an investigative journalist, who worked to turn the institution into a watchdog. But equally important is the context in which they entered the office. The institution was established during Jacob Söderman’s term as the European Ombudsman (1995–2003). As we saw, the timely context of the Söderman term was very much (post-) crisis period for European governance. In retrospect, Söderman was described as a person who initiated the institution, putting it on track and basically starting all the basic activities that are still ongoing. Arguably, he helped to make the European Ombudsman into an “institution”. This also involved fights in the intra-­ institutional setting.3 One of the major achievements of the Söderman era was the creation of the Code of Good Administrative Behavior, first endorsed by the European Parliament in 2001, and last updated in 2015 (European Ombudsman 2015). Nikiforos Diamandouros, who was previously the first Greek Ombudsman before becoming the European Ombudsman, was said to have inherited a well-functioning institution and his term as the European Ombudsman (2003–2013) was characterized by continuity of activities on the one hand, and rapid growth in the number of complaints due to the 2004 EU eastern enlargement on the other. The development in the number of cases was also reflected in the growth in the number of staff in the office (see later). The Diamandouros era also coincided with the

2  Compared to the Finnish case, the role of individuals was emphasized much more in the EU context. In Finland, the talk was about the institution and the people acting as the Ombudsman were part of a longer continuum to which they had undoubtedly contributed to but were still regarded less influential than in the EU context, where the respondents at times reduced the whole institution to office holders. 3  In the interviews, it was stated that initially the institution made a mark through infringement cases, own initiatives and work involving procedural rights. This also led to their acceptance by the EU Commission.

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increase of EU agencies and bodies. The main activities of the institution remained unchanged. There were also changes though, as Diamandouros took a more active position in the Ombudsman’s own inquiries and started to proactively promote good governance (Diamandouros 2017). This reinterpretation of the mandate followed the adoption of the Lisbon Treaty and European Charter of Fundamental Rights, that by then acknowledged the “right to good administration” (European Union 2012a, Article 41) that was used by the Ombudsman as a vehicle for being more proactive in promoting good governance in EU institutions and bodies, also involving visits to them. While maladministration implied wrongdoing in a legal sense, good administration was regarded a broader concept that was not simply tied to outright illegality, referred to as “life beyond legality”. There is a notable shift in the activities during the O’Reilly’s term with the institution adopting a role as a watchdog of EU governance with prominent media visibility. It was pointed out in the interviews that O’Reilly was an investigative journalist, coming from an Anglophone ombudsman tradition, and that her previous occupation as the Irish Ombudsman also involved acting as an information officer responsible for information access cases in Ireland. When assessing O’Reilly’s term as the European Ombudsman, it is also important to acknowledge that this coincided with the European financial crisis, rising Euroscepticism, Brexit and the decline of democracy and the rule of law in some EU member states. I next will discuss the case-handling activities of the European Ombudsman that is also in keeping with the aforementioned summary of the office holders, echoed by the interviewees, and related narrative on the institutional development of the European Ombudsman.

Handling Complaints: European Ombudsman as a Supranational Institution of Accountability As a supranational institution of public accountability, the European Ombudsman’s mandate is limited to investigating potential maladministration by the European institutions. This very much influences its handling of cases based on citizens’ complaints. Moreover, the institutional evolution of the European Ombudsman also reflects general trends in European integration, particularly the EU’s eastern enlargement. As always, analysis on institutions of public accountability should be

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c­ ontextualized in an “accountability system” (Erkkilä 2007), concerning also surrounding institutions of public accountability. The European Ombudsman functions in a broader context of supranational accountability that exceeds the EU institutions and bodies. As an organization handling complaints from citizens, the European Ombudsman bears certain similarities to institutions such as the European Parliament’s Committee on Petitions and the European Court of Human Rights, and even some UN committees that handle complaints. To be sure, these are not similar institutions and have different mandates, but their functioning helps to set European Ombudsman’s performance in comparison. In addition, despite the different mandates of the above institutions, they nevertheless may appear to the citizens as exchangeable venues for filing complaints, often meaning venting frustration and expressing concerns over possible misuse of public power. This implies limited knowledge of the actual mandate of these institutions, also apparent in the type of cases filed to them. Complaints to the European Ombudsman By definition, the Ombudsman investigates complaints about maladministration in EU institutions, bodies, offices and agencies.4 Complaints can be filed by citizens and residents of the EU as well as by any business, association or other body with a registered office in the EU. Since 1995, the caseload of the Ombudsman was first on a steady rise, but the years 2004 and 2005 saw a clear increase in complaints. This was a result of EU’s eastern enlargement and ten new member states entering the Union. Although the cases, mainly consisting of complaints, have increased from 298 in 1995 to 4416 in 2005, the amount of yearly decisions has been steady, mostly under 400 (see Fig. 5.1). As can be seen in Fig. 5.1, there is a significant drop in the overall number of cases starting from 2007, currently being just over 2000 cases annually. A clear majority of the complaints are not within the mandate of the Ombudsman, that is, they have been addressed to the wrong institution (Fig.  5.1). The biggest share of the cases outside the mandate of the European Ombudsman concerns complaints on national institutions and authorities. This discrepancy between the complaints and the resolutions indicates that there is little public knowledge concerning the Ombudsman’s mandate and functions. 4  Problems with the EU? Who can help you? https://www.ombudsman.europa.eu/en/ publication/en/11134

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Fig. 5.1  The European Ombudsman’s total number of complaints, the number of complaints that are within the mandate of the Ombudsman and the number of decisions following inquiry (1995–2017). (Source: Annual reports of the European Ombudsman)

As Fig.  5.1 shows, some 70% of complaints issued to the European Ombudsman are not within its mandate, concerning often national level cases instead of EU institutions. This indicates the difficulty of adopting this policy instrument to supranational level. EU citizens seem to have major difficulties in acknowledging the institutional mandate of European Ombudsman and its relationship with national institutions, which is evident from the peak in complaints accompanying the 2004 EU enlargement, when ten new member states joined the Union. This was followed by a drop in the number of cases, which some interviewees attributed to the European Ombudsman’s adoption of an interactive guide that instructed the complaint process and pointed out the limitations in the mandate of the European Ombudsman, as well as alternatives for where to file the complaint. However, as others pointed out, the initial high number of complaints also presumably shows the venting of frustration with and distrust of national institutions in the new EU member states. And, vice-versa, a diminishing interest towards the institution and Union at large seems like a plausible explanation for the diminishing number of complaints over time. On the whole, the massive amount of complaints that fall outside the mandate of the European Ombudsman reflects the relatively poor

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Table 5.1  Citizens’ awareness of European institutions Institution European Parliament European Commission European Central Bank Court of Justice of the European Union The European Council The Council of the European Union The European Court of Auditors The European Ombudsman The European Economic and Social Committee The European Committee of the Regions

Have heard of (%) 93 86 84 73 70 58 52 40 39 29

Source: European Commission (2018, 84–88)

k­ nowledge of the European Union and its institutions. Table 5.1 shows citizens’ awareness of European institution based on the Eurobarometer survey (2018). While almost everyone has heard of European Parliament (93%) or Commission (86%), many other EU institutions are somewhat unknown. The European Ombudsman ranks relatively low, with only 40% of the respondents being aware of the institution, well below the European Court of Auditors (52%) and about the same as the European Economic and Social Committee (39%). Awareness of European Ombudsman varies by countries, however, and in 13 EU member states, at least 50% of the respondents had heard of the institution (e.g. Finland 79%, Slovenia 76% and Malta 73%). Yet, in 15 member states, the score was lower than 50%, with remarkably low scores in France (18%) and Germany (24%) (European Commission 2018, 84–88). The relatively low awareness of the European Ombudsman is also reflected in the high number of cases that fall outside its mandate. The number of such complaints has changed only slightly over the years, remaining at around 75% for a long time, while peaking at 82% in 2005. One could see this as a major problem for the institution and its development, particularly as the number of decisions has remained rather constant over the years. While the interviewees acknowledged this problem, they nevertheless argued that the institution is effective in its handling of complaints. It was argued that the European Ombudsman provides a human face for the Union and allows people to vent their frustration, even in cases when the complaints are not with mandate. However, it is also worth

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­ oting that as the overall number of cases has been decreasing, the share n of cases outside the mandate has also diminished, being at about 65% over the last few years.5 Some interviewees further stressed the relevance of cases within the mandate and inquiries closed. Here, the caseload had remained somewhat constant throughout the years, including a gap between the cases within the mandate and closed inquiries. This was explained by the so-called “no grounds” cases that were within the mandate, but where the Ombudsman found no grounds to conduct an inquiry. The high share of these types of cases was seen to be problematic for two reasons. First, the Ombudsman office’s work put into them went unacknowledged in the number of inquiries closed, and, second, they often implied no maladministration by the institution concerned, also unacknowledged. The Ombudsman’s implementing provisions were changed in 2016 (European Ombudsman 2016), and aimed to include more of these cases among those for which inquiries could be closed. Concerning the relation of publicity and number of complaints received by the institution, there was no strong link. There were complaints reported to have come in concerning cases of media attention, such as the European Commission President Jean Claude Juncker’s comments on Catalonia’s aspirations for independence (Reuters 2017) or the cases concerning EU authorities’ actions in a case related to a Cyprus-based online trading firm (European Ombudsman 2017; Finance Magnates 2017). In addition, the visits of the European Ombudsman to EU member states were also said to have occasionally drawn complaints by citizens from these countries, indicating the effect of media visibility. However, compared to the Finnish case (see Chaps. 3 and 4), the relationship between publicity and the institution seems fundamentally different, at least as far as the number of complaints is concerned. Whereas the publicity of the Finnish Parliamentary Ombudsman and Chancellor of Justice would have clearly observable effects on their case load, the European institutional context and public sphere seem to work differently. Indeed, despite the increased public visibility of European Ombudsman during Emily

5  In 2018, there was an increase in complaints that were within the mandate of the European Ombudsman (about 40%), which the Ombudsman herself interpreted as a result of higher awareness of her office’s work (European Ombudsman 2019). The total number of complaints is almost the same as in 2017.

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450 400 350 300 250 200 150 100

Number of complaints

Not known

Other countries

Latvia

Estonia

Malta

Denmark

Cyprus

Lithuania

Sweden

Slovakia

Luxembourg

Croatia

Slovenia

Hungary

Czech Republic

Austria

Finland

Greece

Ireland

Netherlands

Romania

Bulgaria

Portugal

Italy

United Kingdom

France

Poland

Belgium

Spain

0

Germany

50

Number of inquiries opened

Fig. 5.2  European Ombudsman: complaints and opened inquiries by country of origin in 2017. (Source: European Ombudsman 2018a)

O’Reilly’s term, the number of complaints has declined slightly or been static. Figure 5.2 shows the complaints by country of origin in 2017. By far the highest number of complaints are coming from Spain, which also include cases concerning Jean Claude Juncker’s comments on Catalonia’s independence that caused a peak in the Spanish complaints that year. Indeed, the slight increase in cases in 2017 may have been linked to the comments by the president of European Commission concerning Catalan independence. Otherwise, the number of cases largely seems to respect the size of countries, though Belgium clearly stands out in this respect and, to some extent, also Portugal and Bulgaria. However, this is explained by the fact that most EU institutions and employees reside in Brussels, making it a home location for many potential complainants, particularly in the cases concerning EU staff matters that make a major share of the complaints overall (see later). It is also noteworthy that an inquiry was opened on 54% of cases concerning a Belgian complainant, marking a remarkably higher knowledge of the mandate of the European Ombudsman but also high number of actual contacts with the EU institutions (for instance in staff and recruitment matters). There are also a relatively high number of

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complaints from Ireland, which might reflect the awareness of the current Irish European Ombudsman. European citizens not only seemed to have a limited knowledge of the Union and the European Ombudsman, but they had very little contact with EU institutions that could have potentially led to legitimate complaints. This shows the limitations of the “Citizen’s Europe” discourse, which is also related to the adoption of the European Charter of Fundamental Rights. As a supranational actor, the European Ombudsman has no mandate over national-level cases, dealt by the national Ombudsmen. This had led to collaboration with national Ombudsmen and in the annual reports of the European Ombudsman there have been specific mentions about cases “within mandate of the European Network Ombudsmen”, a collaboration body coordinated by the European Ombudsman. Though it might be difficult to make sound statistics of the cases that fell outside the mandate of the European Ombudsman but which were successfully forwarded and dealt by someone else, the Network nevertheless obtained a function for the handling of the European Ombudsman’s complaints and helped to legitimatize the work on misfiled complaints. At the same time, interviewees pointed out that the Network had also obtained a more institutionalized status in handling cases collaboratively in the so-called parallel inquiries (see next chapter). Table 5.2  Inquiries closed by the European Ombudsman in 2017 by subjecta Type of complaint

N

%

Transparency/accountability (e.g. access to information and documents) Culture of service (e.g. citizen-friendliness, languages and timeliness) Respect for procedural rights (e.g. the right to be heard) Proper use of discretion (including in infringement procedures) Respect for fundamental rights Recruitment Good management of EU personnel issues Sound financial management (e.g. concerning EU tenders, grants and contracts) Other Ethics Public participation in EU decision-making

75 61 60 49 44 43 38 23

20.6 16.8 16.5 13.5 12.1 11.8 10.5 6.3

16 13 7

4.4 3.6 1.9

a The total percentage is above 100% because the Ombudsman may have closed inquiries concerning several subject areas (see European Ombudsman 2018a, 40)

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Looking at the types of cases on which inquiries have been closed (Table 5.2), transparency and accountability issues (particularly access to information) make the biggest group in 2017 (20.6%), followed by cases concerning the culture of service (16.8%), procedural rights (16.5%) and use of discretion (13.5%). The limited contacts between EU citizens and the institutions are also reflected in the number of cases on fundamental rights that make the fifth biggest group of cases (12.1%), while such cases often are at the core of activities of national-level Ombudsmen. However, the EU citizens bound to have direct contacts with the European Institutions are those working for them or aspiring to do so, making the recruitment (11.8%) and management of EU personnel issues (10.5%) relatively voluminous groups of cases. In fact, considering these two categories combined, staff matters amounted to highest share of cases in the year 2017.6 While the cases of transparency had been at the heart of activities of the European Ombudsman throughout its existence, being in many ways its most prominent cause to defend, there had been recent changes in practices. In February 2018, the European Ombudsman introduced new fast-­ track inquiries on information access cases with stricter timelines for the EU institutions concerned to reply and explain why information was not given. This new practice aimed to have the Ombudsman deciding on a matter within 40 working days (European Ombudsman 2018b). The logic behind the fast-track inquiries was that a citizen or a legal person asking for a document is likely to need the information now, and the standard procedure where EU institutions had three months to answer to the Ombudsman’s inquiries may be unreasonably long from the complainants’ point of view (European Ombudsman 2018c). Therefore, the information access cases were expedited. One interviewee, who had worked in the institution during its early years, felt that the slow responses to information access cases in the past had been a shortcoming in the work of the Ombudsman, now rectified. Some interviewees also acknowledged that the fast-track procedure posed a tight time constraint to the institutions concerned.

6  The presentation of statistics on staff matters in the European Ombudsman’s annual reports has changed over the years, mostly being separated in two categories. They appear as a single group in the 2016 report, Good Management of EU personnel issues is the second biggest case group (28.2%) after Transparency (29.6%).

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While the transparency cases were treated with special interest during O’Reilly’s term, the staff matters were approached in a more reserved manner. In the interviews, it was argued that these had often little public relevance. Hence, the Ombudsman was being more selective about them, basically meaning that it was closely observed if the preliminary administrative steps according to the staff regulations had been thoroughly and exhaustively concluded. But it was also acknowledged that the people working for the EU institutions were effectively the sole group of EU citizens in constant contact with the EU, hence qualifying them to complain to the European Ombudsman. During its early years, the Ombudsman had even profiled itself in staff cases, most notably leading to abolishing age discrimination in recruitment (European Ombudsman 2002).7 Apart from cases based on citizen complaints, the European Ombudsman can also open own-initiative inquiries that nevertheless mainly have been based on citizen complaints or theme raised in them. In 2017, there were 14 own-initiative inquiries opened and 15 closed (European Ombudsman 2018a, 34–35). Recently under O’Reilly, the Ombudsman has initiated the so-called strategic inquiries that often involve “systemic issues” that are of public interest. There were four such inquiries opened in 2017, for instance, on Council transparency. In addition, there are the so-called strategic initiatives that are requests of clarification and not formal inquiries. There were eight strategic initiatives opened in 2017, involving topics such as European Council lobbying transparency, Brexit transparency and revolving door rules at EU institutions (i.e. potential conflict of interest when individuals move from EU institutions to work elsewhere). While these cases are low in number, they are a very visible part of the Ombudsman’s work and closely linked to the public profile of the institution that has also been changing (see next chapter). To summarize, as a supranational institution of accountability, the European Ombudsman’s mandate is limited to cases concerning EU 7  In the interviews, also the European Ombudsman’s positioning in the EU’s legal system was emphasized when discussing its establishment. Arguably, it is difficult to bring a case to European Court of Justice due to its locus standi restrictions, making the European Ombudsman a focal point for certain kind of conflicts, often in trade, environmental and consumer law.

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i­nstitutions, and not national-level actors. European citizens have difficulties understanding this, which is apparent in the large share of cases landing outside the mandate. Also, limitations in the European public sphere (Risse 2010) and public mediation of the European Ombudsman explain this. The general development in the number of cases reflects major events in European integration, most notably the EU enlargement. While the peak in the complaints in 2005 and 2006 is an indication of mistrust and frustration with national governments in the new EU member states, the persistent high number of complaints falling outside the mandate of the European Ombudsman is an indication of the institutions’ problems in communicating its activities to the public. This seems to be a more general problem of supranational institutions of public accountability, however. Comparison with Other Institutions of Supranational Accountability In looking at the matter from the perspective of the European citizen, we can see that the decision to complain to a European instance could involve a choice between the European Ombudsman, European Parliament’s Committee on Petitions and the European Court of Human Rights (ECHR). Hence, when assessing the gap between the total complaints to European Ombudsman and the number of decisions, it is important to compare it with the Committee on Petitions and the ECHR. Moreover, often the same complaints are filed to all three of them at the same time. To be sure, the mandates of these institutions do not overlap, but citizens nevertheless might not see the difference. A citizen of the European Union and a natural or legal person residing in the EU have the right to address a petition to the Parliament on a “matter which comes within the European Union’s fields of activity and which affects him, her or it directly” (European Parliament 2018c, 128; European Union 2012b, Article 227).8 The Committee on Petitions then investigates the admissible petitions and can intervene and mediate in the matter. On average, the Committee receives some 1500 complaints annually. In the figure, the time series for the European Parliament’s Committee on Petitions shows a similar trend as with the European Ombudsman, where 8  Similar to the European Ombudsman, the right to petition to the European Parliament is acknowledged in the Charter of Fundamental Rights of the European Union (European Union 2012a, Article 44).

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3500 3000 2500 2000 1500 1000 500 0

Registered petitions

Admissable petitions

Fig. 5.3  Committee on Petitions, cases 2000–2016. (Source: Annual reports of the Committee on Petitions)

the number of admissible petitions filed by citizens is significantly lower than the figure of total submissions (Fig.  5.3). The share of admissible petitions remains between 50–70% each year, which is relatively high compared to the European Ombudsman. The mandate of the Committee on Petitions is not as clear-cut as that of the European Ombudsman. Whereas the European Ombudsman can only consider cases that concern EU institutions, the Committee on Petitions’ mandate is less specific. Considering matters that come “within the European Union’s fields of activity”, the Committee has plenty of discretion on what counts as an admissible petition. The admissibility of petitions is decided by the MEP members of the Committee upon a recommendation by the secretariat (European Parliament 2018b). Petitions that are deemed inadmissible are often quite clearly outside the scope of the Committee—for instance, concerning private matters of individuals— but it is important to note that due to the loose definition of the mandate, the petitions pursued need not meet EU’s competencies or institutions. Also, the definition of a petition is important, as the Committee on Petitions is obliged to process them all (cf. Court of Justice of the European

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Union 2011). The admissible petitions are typically forwarded to the European Commission for comments as well as the national government potentially concerned. The complainants get to present their petitions before the Committee, providing further evidence and reacting to the responses from the institutions concerned. Overall, the process can be lengthy, with matters repeatedly appearing on the agenda of the Committee. The success of petitions rests on the public pressure for the European Parliament to handle a case, as felt by the institutions concerned, but the personal activity of the complainant, as well as the Committee members’ support for it, is often equally decisive.9 When the European Ombudsman was adopted, the European Parliament had a reserved attitude towards it, as there were fears that the Ombudsman would come to compete with the Committee on Petitions (Perillo 2005, 56–58). In addition, it was feared that the Committee on Petitions would try to steer or subordinate the Ombudsman, but the relationship between these two institutions has grown into a complementary co-existence, with little overlap in their actual work (Neuhold 2017, 59–60). There are no formal constraints for the Committee on Petitions to process a petition on a case already pending by the European Ombudsman, but the interviewees acknowledged that the Committee was likely not to proceed in cases that were investigated by the Ombudsman; these would be held open but not actively pursued. For example, in recent years, the Committee on Petitions has investigated petitions concerning José Manuel Barroso’s move to an investment bank and Martin Selmayr’s appointment as secretary-general of the European Commission (European Parliament 2016, 2018a), also prominently investigated by the European Ombudsman (see next chapter). Providing a direct link between the citizen’s and the European Parliament, the Committee also allows the MEPs to address issues that concern their constituents, even if it might be a predominantly domestic matter. Hence, the petitions pursued are often not directly linked to the activities of European Union per se, but might be of high political significance in their national context. For example, one of the prominent cases of the Committee on Petitions concerned abduction of children in Spain during the Franco era (European Parliament 2017). In short, while the 9  Cases can remain open for years and may be repeatedly discussed by the Committee. Also the decision to declare a case closed is not always clearly defined and is often a matter of interpretation by the Committee.

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work of the European Ombudsman is strictly limited to European institutions by its mandate, the Committee on Petitions enjoys a greater flexibility, allowing it to focus on national-level cases instead. Like the Ombudsman, the mandate of Committee on Petitions is relatively poorly known by the public, which is also reflected in the large share of petitions deemed inadmissible (see Fig. 5.1). There are also major differences between member states in knowledge regarding the institution as well as number of petitions filed, with countries such as Germany, Spain, Italy and Greece being the major source of complaints. The number of petitions by country of origin also reflects the national institutional traditions and countries with a standing tradition of a similar institution (e.g. Petitionsausschuss in Germany) producing more cases, while citizens of countries with strong ombudsman institutions tend to file their complaints to the European Ombudsman, if applicable. We can see a similar trend with the cases of the European Court of Human Rights. Figure 5.4 shows the Court’s cases and decisions between 1990 and 2017. The allocated applications refer to the number of applications that have become pending before the Court in each year. The total 160000

140000

120000

100000

80000

60000

40000

20000

0 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Total caseload

Allocated applications

Applications decided

Applications decided by decision

Applications decided by judgement

Fig. 5.4  European Court of Human Rights, cases and decisions 1990–2017. (Source: Annual reports of the European Court of Human Rights)

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number of pending applications shows a significant backlog of cases that peaks in 2011 with 151,600 applications. In 2010, the Court took action to reduce the backlog by introducing a single-judge decision procedure (Council of Europe 2010), where applications that are clearly inadmissible can be assessed by a single judge instead of a three-judge Committee or a Chamber consisting of seven judges.10 This has expedited the procedure significantly, leading to the rapid decline in the number of pending cases, also apparent in the total caseload. Already in 2004, the ECHR introduced a so-called Pilot-Judgement Procedure (European Court of Human Rights 2013, 2) that allowed it to address applications that stem from systemic problems in national judiciaries leading to repetitive cases against countries (European Court of Human Rights 2018, 1). In other words, in a decision on a single case, the Court seeks to find a solution that extends beyond the case in question, and which can be applied to all similar cases raising the same issue. This could involve cases that were simply similar in nature but also applications that were basically filed in mass, concerning a single case. For example, in 2017, the Court assessed the so-called Burmych case against Ukraine, basically evoking issues already examined in a previous (Ivanov) pilot judgement, leading to striking out of some 12,000 applications (European Court of Human Rights 2017b; Raimondi 2018). The adoption of single-judge and pilot-judgement procedures has effectively led to the reduction of the massive backlog of cases. Of interest to our analysis here is the number of applications decided that duly peaks after the introduction of the aforementioned measures. This is further divided into two categories: applications decided by judgement and applications decided by decision. The applications decided by decision are either inadmissible or “struck out”, meaning that they were, for instance, decided following a Pilot Procedure in an earlier, similar case or a friendly settlement was reached with regard to them. Though there is no specific data available to separate the number of inadmissible cases and cases struck out of the court lists, the applications declared as inadmissible undoubtedly had the biggest share within the group of applications decided by a decision. In 2017, some 82% of cases were decided by decision, while only some 18% of cases were decided by judgement. In other words, only some 10  Inadmissibility often results from the applicant’s failure to follow the full legal path in national judicial system before lodging an application with the Court, the application being out of scope of the ECHR, or been filed too late.

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18% of the cases decided by the European Court of Human Rights were clearly admissible and a judgement could be passed on them. Compared to the European Ombudsman, this is about the same as the share of European Ombudsman’s complaints upon which a decision was made (some 17% in 2017). As pointed out in the interviews, the European Court of Human Rights was previously criticized for having given no explanation for decisions to reject applications by a single judge due to inadmissibility. Some respondents at the European Ombudsman office referred to this when arguing for the necessity to duly address the complaints falling outside the European Ombudsman’s mandate. However, the criticism on the European Court of Human Rights’ single-judge decisions led to a change of procedure and starting from June 2017 the Court has included a statement on the specific grounds of inadmissibility (European Court of Human Rights 2017a). This comparison shows that all three European institutions of public accountability share the same problem of inadmissible cases that fall outside their mandate. EU citizens apparently do not clearly understand the role of these institutions vis-à-vis national institutions. What makes this even more interesting is the fact that some of the cases were in fact filed to several if not all of the aforementioned institutions. This indicates how confusing the European field of “rights” looks like from the perspective of an EU citizen. However, it is also worth noting that the European citizen also has the opportunity to complain to various UN committees and bodies such as Human Rights Committee, Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against Women (CEDAW), Committee against Torture (CAT), Committee on the Rights of the Child (CRC), Committee on the Rights of Persons with Disabilities (CRPD) and Committee on Enforced Disappearances (CED) (OHCHR 2018).11 For example, there had been recent complaints from Finland to the UN committees that indicated a change of venue for 11  The individual complaint mechanism to Committee on Migrant Workers (CMW) is not yet entered into force. Subcommittee on Prevention of Torture (SPT) does not provide a complaint mechanism, but it may visit sites where persons are held captive. It also assists states on establishing National Preventive Mechanisms (NPM), required by the UN Optional Protocol to the Convention against Torture (OPCAT), advising also the work of established NPMs.

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c­ omplaints, though limited in number (Helsingin Sanomat 2018).12 While it was not clear what had caused this, it was pointed out by a Finnish interviewee that lawyers assisting in cases were heedful of where their clients were likely to get the most positive result. This shows how citizens perceive the supranational institutions of accountability often as a source of interchangeable or even multiple sites for pursuing their case. Looked from a legal perspective, there might be a clear division in the mandates, but from the citizens’ perspective, this division is less clear. This sets the European Ombudsman’s problems in communicating its mandate in a context, pointing to the general confusion about supranational accountability. Nevertheless, the problems are tangible and influence the functionality of these institutions. As will be discussed in the next chapter, they are also compensated by emphasizing other measures available for the Ombudsman, implying also its changing focus from handling complaints to conducting own-initiative inquiries and launching strategic initiatives.

Conclusions This chapter has explored the institutional development of European Ombudsman, highlighting the importance of transnational discourses of good governance and transparency, but also the role of “fundamental rights” in its institutional evolution, as it shifts towards a “life beyond legality”. The “models” linked to the European Ombudsman institution largely stem from the European national contexts, with the “Danish model” being finally adopted in 1992, after initial defeat of the proposal in the 1970s. This again highlights the global narrative of diffusion and discourse of “models” that now explain and communicate the institution in its different modalities and historical eras, affecting its adoption and mandate. However, also the supranational context of the European Ombudsman has greatly influenced its institutional evolution and transformation. The inter-institutional setting of the European Ombudsman has been particularly important, also because the institution has difficulties in explaining its mandate to the citizens. Here the role of actors in establishing, institutionalizing and changing the institution over time has become 12  In July 2018, there were 12 cases from Finland pending before UN committees (Helsingin Sanomat 2018).

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highlighted, where the institutional actors translate and edit (Sahlin and Wedlin 2008) transnational policy ideas such as “transparency” and “maladministration”. While the Ombudsman has spread globally as a human rights institution, the European Ombudsman quickly chose good governance and transparency as its cause, coinciding with the transnational drive for transparency and the crisis of European governance. This was a deliberate strategy to promote the institution in the inter-institutional setting of the EU, while the European Ombudsman has had less impact through the complaints of EU citizens that mostly fall outside its competencies. The transnational discourse on “rights” has nevertheless influenced the institutionalization of the Ombudsman, as the EU citizens’ right to complain to the Ombudsman about “maladministration” was further acknowledged in the Lisbon Treaty and Charter of Fundamental Rights. Global discourses of rights and good governance have been essential to the European Ombudsman’s institutionalization process. In the compound polity of European Union, the aforementioned policy discourses have served as a “coordinative discourse”, communicating the institution to other institutional actors and political elite (cf. Schmidt 2010). However, this has not worked equally well as a “communicative discourse”, raising awareness of the institution among the European citizenry. Indeed, while the European Ombudsman has been influential in promoting good governance on its own initiative, it has had less of an impact through the complaints of EU citizens, which mostly fall outside its competencies, though this concerns also other supranational institutions of accountability. However, while the citizens have somewhat little dealings with the EU institutions, the transnational discourse of “rights” has nevertheless influenced the institutionalization of Ombudsman, as the EU citizen’s right to complain to the Ombudsman about “maladministration” was further acknowledged in the Lisbon Treaty and Charter of Fundamental Rights. The Ombudsman used this to justify the move from supervision of legality to more proactive work on good governance. This marks a move from the initial mandate and institutional model of the European Ombudsman that mainly observed the legality of EU governance (cf. Mastroianni 2017), a development that has since deepened, as we will now see.

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Hofmann, Herwig C.H. 2017. The Developing Role of the European Ombudsman. In Accountability in the EU. The Role of the European Ombudsman, ed. Herwig C.H.  Hofmann and Jacques Ziller, 1–27. Cheltenham, UK: Edward Elgar Publishing. Hofmann, Herwig C.H., and Jacques Ziller, eds. 2017. Accountability in the EU: The Role of the European Ombudsman. Cheltenham, UK: Edward Elgar Publishing. Koselleck, Reinhart. 2004. Futures Past: On the Semantics of Historical Time. New York: Columbia University Press. Leeuw, Magdalena Elisabeth de. 2011. The European Ombudsman’s Role as a Developer of Norms of Good Administration. European Public Law 17 (2): 349–368. Lodge, Juliet. 2003. Transparency and EU Governance: Balancing Openness with Security. Journal of Contemporary European Studies 11 (1): 95–117. https:// doi.org/10.1080/14782800305483. Magnette, Paul. 2003. Between Parliamentary Control and the Rule of Law: The Political Role of the Ombudsman in the European Union. Journal of European Public Policy 10 (5): 677–694. https://doi.org/10.1080/13501760 32000124032. Mastroianni, Roberto. 2017. New Perspectives for the European Ombudsman Opened by the Lisbon Treaty. In Accountability in the EU. The Role of the European Ombudsman, ed. Herwig C. H. Hofmann and Jacques Ziller, 178– 197. Celtenham, UK: Edward Elgar Publishing. Moreiro González, Carlos. 2005. The Spanish Proposal to the Intergovernmental Conference on Political Union. In The European Ombudsman: Origins, Establishment, Evolution. Office for Official Publications of the European Communities. Neuhold, Christine. 2017. ‘Monitoring the Law and Independent from Politics?’ The Relationship between the European Ombudsman and the European Parliament. In Accountability in the EU. The Role of the European Ombudsman, ed. Herwig C.H.  Hofmann and Jacques Ziller, 53–73. Cheltenham, UK: Edward Elgar Publishing. OHCHR. 2018. Human Rights Bodies. https://www.ohchr.org/en/hrbodies/ Pages/HumanRightsBodies.aspx. Perillo, Ezio. 2005. The Process of Drafting the European Ombudsman’s Statute. In The European Ombudsman. Origins, Establishment, Evolution, 52–82. Luxembourg: Office for Official Publications of the European Communities. Peters, B.  Guy. 2001. From Change to Change: Patterns of Continuing Administrative Reform in Europe. Public Organization Review 1 (1): 41–54. https://doi.org/10.1023/A:1011568911704. Raimondi, Guido. 2018. Solemn Hearing of the European Court of Human Rights. In President Guido Raimondi’s Opening Speech. European Court of Human Rights.

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Reif, Linda C. 2004. The Ombudsman, Good Governance and the International Human Rights System. Leiden: Martinus Nijhoff Publishers. Remac, Milan. 2014. Coordinating Ombudsmen and the Judiciary: A Comparative View on the Relations between Ombudsmen and the Judiciary in the Netherlands, England and the European Union. PhD Thesis, Utrecht University, Utrecht. Reuters. 2017. Juncker Says Does Not Want Catalan Independence. Reuters, October 13. https://www.reuters.com/article/us-spain-politics-cataloniajuncker/juncker-says-does-not-want-catalan-independence-idUSKBN1CI133. Risse, Thomas. 2010. A Community of Europeans?: Transnational Identities and Public Spheres. Cornell University Press. Saari, Heikki. 2014. Jacke—Jacob Södermanin Elämä. Helsinki: Siltala. Sahlin, Kerstin, and Linda Wedlin. 2008. Circulating Ideas: Imitation, Translation and Editing. In The SAGE Handbook of Organizational Institutionalism, edited by Royston Greewood, Christine Oliver, Roy Suddaby, and Kerstin Sahlin, 218–242. London: SAGE Publications. Schmidt, Vivien A. 2010. Taking Ideas and Discourse Seriously: Explaining Change Through Discursive Institutionalism as the Fourth ‘New Institutionalism. European Political Science Review 2 (01): 1–25. https://doi. org/10.1017/S175577390999021X. Söderman, Jacob. 2005. The Early Years of the European Ombudsman. In The European Ombudsman. Origins, Establishment, Evolution, 83–105. Luxembourg: Office for Official Publications of the European Communities. The Council of European Union. 1993. 93/731/EC: Council Decision of 20 December 1993 on Public Access to Council Documents. OJ L. Vol. 340. http://data.europa.eu/eli/dec/1993/731/oj/eng. Tsadiras, Alexandros. 2015. Maladministration and Life beyond Legality: The European Ombudsman’s Paradigm. International Review of Law 2015 (3): 11. https://doi.org/10.5339/irl.2015.11. Vogiatzis, Nikos. 2017. The European Ombudsman and Good Administration in the European Union. 1st ed. 2018 edition. London: Palgrave Macmillan.

CHAPTER 6

The European Ombudsman and Institutional Change

Introduction This chapter explores how the individuals acting as the European Ombudsman have sought to establish, but also change, the position of the institution vis-à-vis other EU institutions and bodies. Ideational shifts concerning the institution may facilitate institutional changes (see previous chapter), but the European Ombudsmen also appear as carriers of knowledge, including ideas stemming from their native context and past expertise.1 Hence, the European Ombudsman institution is potentially affected by various ideational influences, while the actors are equally important in shaping the institution. However, institutional context, resources and political climate also condition their activities (Mahoney and Thelen 2009, 18–19, 28). Here the EU legal and institutional context, itself drawn from various traditions, sets limitations for the adoption of new institutional ideas and practices. The political status of an institution depends not only on its structural features such as its legal mandate but also on constant symbolic boundary work by the institutional actors to define and reaffirm the limits of the institution’s legitimate authority (cf. Erkkilä and Kauppi 2017; Bourdieu 1989; Gieryn 1983). This boundary work involves public conceptions of 1  The office has been held by three individuals, Jacob Söderman from Finland (1995– 2003), Nikiforos Diamandouros from Greece (2003–2013) and Emily O’Reilly from Ireland (since 2013).

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institutional identity and profile that are partly negotiated with other institutions, but also public visibility and recognition that are critical for institutions of public accountability such as the Ombudsman. To a certain extent, such institutions also depend on institutional confrontation to keep up their legitimacy in the eyes of the public. Moreover, such conflicts between the Ombudsman and other European institutions can provide the institution with publicity that allows it to communicate itself to other institutions and the general public (cf. Schmidt 2008). But while conflicts can become defining moments (see also previous chapter), the Ombudsman may have to “choose its battles” to guard its legitimacy as an independent legal institution. The conflicts help the Ombudsman to manifest its position in the institutional system of the EU. The intra-institutional positioning and competition between institutions can be understood as ongoing bargaining for power and role. While politics is often reduced to party politics and commitment to the positions of an existing political group, it is important to consider politicization in a broader sense, as an act of bringing to light potential conflicts and contesting and rethinking existing practices (Palonen 2003, 181–83). However, political conflicts also create a tension in the core functions of the ombudsman as an independent legal institution (Gammeltoft-Hansen 2008; Neuhold 2017, 59). This may also mark a potential opening for deinstitutionalization that involves political pressures, both outside and within the institution (Oliver 1992, 567–70).

Redefining the Mandate: Own Inquiries, Politics and Public Conflicts Shifting Activities: Own-Initiative Inquiries, Strategic Inquiries and Strategic Initiatives In addition to handling complaints filed by the citizens, the European Ombudsman may conduct own-initiative inquiries (European Union 2012, Article 228).2 While handling the complaints filed by the citizens is 2  Similar to the Ombudsman’s handling of complaints, the own-initiative inquiries are defined in Article 228 of the Treaty on the Functioning of the European Union (European Union 2012, Article 228). The current implementing provisions of the European Ombudsman state that the Ombudsman “shall conduct own-initiative inquiries for which the Ombudsman finds grounds” (European Ombudsman 2016d).

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the central function of the Ombudsman, the inquiries launched on own initiative are often more important for establishing and expanding institutional boundaries and mandate. The institutional and political contexts condition the use of own-initiative inquiries, but they also draw attention to the person of the Ombudsman, making the Ombudsman appear as an institutional entrepreneur rather than the bureaucratic organization investigating complaints filed by citizens. The establishment of the institution dominated the agenda of Söderman era, and in the initial years, the Ombudsman used own-initiative inquiries on maladministration to push other institutions, especially the Commission, towards reforms regarding good administration and transparency, carving a space for the Ombudsman institution and communicating it to other actors (Erkkilä and Kauppi 2017). During Diamandouros’ term, the Ombudsman conducted more own-initiative inquiries and engaged in visiting EU agencies in different countries as part of this work. This served the purpose of spreading the practices of good governance. Interviewees stressed the change in the legal basis of the European Ombudsman that had allowed a more proactive approach to promoting good administration instead of observing mere illegality. In the Ombudsman office, this was interpreted as an opening for extending its institutional mandate and competence, allowing it to propagate good governance, instead of functioning through the category of maladministration (see “life beyond legality” in previous chapter).3 Though the own-initiative inquiries were conducted by all office holders, there is a notable shift in the activities during the Emily O’Reilly’s term. The Ombudsman not only engaged in own-initiative inquiries, but also introduced “strategic inquiries” that addressed structural matters of EU governance, mostly focusing on transparency of decision-making. A separate unit was dedicated to strategic inquiries, which now also engaged the so-called “strategic initiatives” that were not formal inquiries but were more general assessments of EU governance. What is significant here is the shift from cases that are based on complaints to those that are simply

3  Initially codified in Article 228 of the Treaty on the Functioning of the European Union, the European Ombudsman was supposed to fight “maladministration” in the European institutional system. However, the adoption of the European Charter of Fundamental Rights defined the right to good administration as a fundamental right of EU citizens (art. 41).

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topical media cases and which are taken up by the European Ombudsman without a complaint. Previously the own-initiative inquiries were often started based on complaints on specific issue. During the O’Reilly era this had shifted more towards inquiries and initiatives that were commenced on issues chosen by the Ombudsman office itself. To clarify the relations of own-initiative inquiries, strategic inquiries and strategic initiatives, a thematic paper on own-initiative inquiries was published by the European Ombudsman in 2017 (European Ombudsman 2017e). Providing historical background for the use of own initiatives, the paper ties the shift towards strategic inquiries and initiatives to the Towards2019 strategy of the Ombudsman (cf. European Ombudsman 2014a), further clarifying the differences between these own-initiative activities. According to the thematic paper, own-initiative inquiries have mainly been used in cases where complaints have not been fully admissible, for instance, due to complainants’ background as non-EU citizen, or in cases where there have been several complaints on the same subject (European Ombudsman 2017e). By contrast, strategic inquiries are launched on “what appear to be systemic problems” of “significant public interest” in “key areas, such as EU governance, empowerment of citizens and fundamental rights”, where the European Ombudsman aims “to bring about change”. The strategic initiatives are described as complementary measures to the strategic inquiries, mostly being public letters to the institutions concerned, addressing “important topics” without opening an actual inquiry, though one can be opened later (European Ombudsman 2017e). Several interviewees acknowledged that the strategic inquiries and particularly strategic initiatives potentially stretch the mandate of the Ombudsman, causing tensions in the previous emphasis of the European Ombudsman as a legal institution. On the other hand, the European institutional setting was described as a competition between different institutions and agencies. Though there is no direct competition with the European Ombudsman, European Court of Auditors and more recently established actors such as OLAF (established in 1999), European Banking Authority (2011), European Food Safety Authority (2002) and European Chemicals Agency (2007) were cited as indirect competitors, being institutions of public accountability similar to the European Ombudsman. Public visibility and “how institutions are perceived” in the EU system were seen crucial in how the institutions faired in the EU’s intra-institutional setting. From this perspective, the media visibility raised by the strategic inquiries and

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initiatives of the European Ombudsman was seen to be important in terms of its position in the EU’s intra-institutional context. Two principle cases serve as examples of the move towards strategic inquiries, signifying broadening of the Ombudsman’s mandate. First, the European Ombudsman, based on a complaint, had encouraged the Eurogroup to improve the transparency of its meetings. The background for demanding these documents was the alleged use of the Eurogroup meeting in preparing issues to be discussed in the meetings of the Economic and Financial Affairs Council (Ecofin) without publishing the minutes. This led to the Eurogroup’s decision to publish complete draft agenda of the Eurogroup meetings, the summing-up letter (i.e. what was discussed in the meeting) and programme-country documents before decisions, including notes presented after the meetings, positively received by the European Ombudsman in her communication with the Eurogroup’s president (European Ombudsman 2016a, c). Second, in March 2017, the European Ombudsman had opened a strategic initiative inquiry on the transparency of the Council of European Union decision-making (European Ombudsman 2017c). At the heart of the matter was the standing practice where the positions of individual member states are classified as non-public.4 The European Council responded that the European Ombudsman had overstretched its mandate and that the political work of the co-legislators was not within the competence of the European Ombudsman, while nevertheless responding to its query (European Ombudsman 2017d; Council of the European Union 2017). Unsatisfied with the Council’s response, the European Ombudsman recommended changes to recording of discussions in Council’s preparatory bodies and classifying documents (European Ombudsman 2018e). The Council dismissed this and did not respond within three months, leading to the European Ombudsman’s Special Report to the Parliament (European Ombudsman 2018a). Special Reports are described in the literature as the European Ombudsman’s ultimate weapon (Neuhold 2017, 58). However, the interviewees saw the Special Report as a last resort by the Ombudsman, signalling a failure to reach results by other means. Already earlier in 2015, the European Ombudsman had opened a strategic investigation on the informal meetings of the European Commission, the European Parliament and 4  This standard diplomatic practice that also influences the publicity of EU documents handled by the national administrations (Erkkilä 2012, 191–99).

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the Council of the European Union in the EU legislative process, also known as trialogues, leading to a decision containing various proposals to improve transparency (European Ombudsman 2016b; EUobserver 2015). These accounts show a partial success in the strategic work of the Ombudsman, but also a failure to bring about clear change. In the interviews, the conflicts were often discussed as a matter of choice—of choosing battles. Choosing Battles Jacob Söderman and Emily O’Reilly have been the most visible office holders in the history of the European Ombudsman, often compared in the interviews. It is also important to note that the recent cases of high media visibility mostly concerned transparency, a theme that had been prominently on the agenda of the European Ombudsman earlier. Söderman used it effectively in establishing the institution, but now it was again used in the institutional boundary work, and transparency has topped the agenda of the current Ombudsman. There nevertheless has been a significant change during O’Reilly’s term as the institution and its mandate has become more politicized, as also noted in previous research (Hofmann 2017, 3–4). Moreover, there seems to be significant differences in the interpretation of the scope and nature of the European Ombudsman’s mandate. As one interviewee who had worked under several Ombudsmen pointed out, Söderman found the mandate to be very narrow while Emily O’Reilly found it broad. Söderman was said to have been able to shift between different roles, acting as a legalistic bureaucrat most of the time, but using his political skills if necessary to carve out an institutional space for the Ombudsman vis-à-vis other EU institutions. O’Reilly was seen to be driven by an ethos of promoting public interest and good governance that was also shifting the legal institution towards being a watchdog of public interest. In the interviews it was said that the elected Ombudsmen come with a vision. With O’Reilly, media visibility and effectiveness are highlighted in the strategy of the European Ombudsman, Towards 2019, adopted in November 2014 (European Ombudsman 2014a). There were attempts to promote good governance through media by launching the European Ombudsman’s Award for Good Administration,

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but most notably the newly adopted profile of the European Ombudsman as a watchdog of EU governance has been performed through cases, with high media visibility targeting the EU political elite. These had included cases that were based on complaints such as the 2014 alleged unlawful state aid to four Spanish football clubs and its handling by the European Commission’s Directorate General and Commissioner of Competition Almunia (European Ombudsman 2014b). O’Reilly was also active in the so-called Selmayr case, where Martin Selmayr was nominated as the European Commission’s secretary-general in a process that drew much criticism from the European Parliament, which saw this as stretching the law (Brunsden 2018). Following two complaints from MEPs, the European Ombudsman concluded its inquiry stating it had found instances of maladministration, such as a potential conflict of interest, procedural failures and secrecy, leading to artificially created situation of urgency to fill the post (European Ombudsman 2018g). The Ombudsman further made a recommendation for European Commission’s appointment of a new secretary-general (European Ombudsman 2018d). In 2016, European Ombudsman criticized sharply the EU Commission’s handling of its former President José Manuel Barroso’s move to Goldman Sachs and asked the Commission for further details on its position on the matter, while simply referring to it as a “much-publicized” event that has raised general concern (European Ombudsman 2016e). Following a 2018 meeting between Barroso, now a Goldman Sachs employee, and Commission Vice President Jyrki Katainen, the European Ombudsman asked the Commission’s Ethics Committee to reassess Barroso’s employment at the bank (European Ombudsman 2018b; EUobserver 2018; Barker 2018). Barroso responded by denying that he had lobbied former colleagues at the Commission and, in a letter to O’Reilly, called the Ombudsman’s intervention a personal political attack and accused O’Reilly for using her office for this (Reuters 2018; Barker 2018). This shows the political character of the newly adopted approach, where the European Ombudsman is using publicity to draw attention to perceived problems of European politics and governance. The shift in activities is also reflected in the European Ombudsman’s position on the European Central Bank (ECB) President Mario Draghi’s membership in the so-called Group of 30 (G30), a private Washington-­ based group of invited actors from central banks, regulatory agencies, financial sector and academia. Already in 2012, under Diamandouros’

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term, the European Ombudsman investigated a complaint on the matter, but found the ECB President’s membership of the Group of 30 not “incompatible with the independence, reputation and integrity of the ECB”; the Ombudsman hence found no “maladministration” by the ECB, but recommended that the membership is noted on the ECB website and encouraged the ECB to improve its “communication with the public” (European Ombudsman 2013). However, in 2017, a similar complaint by the same complainant (Corporate Europe Observatory) to the European Ombudsman led to the opening of another inquiry. As noted in the Ombudsman’s justification for the inquiry, the “complainant argues that the context in which the ECB now operates is quite different to that which prevailed at the time of the 2012 Ombudsman inquiry”, calling for a reconsideration “of the issues relating to the ECB and the G30” (European Ombudsman 2017a). In its 2018 decision on the matter, the Ombudsman found “maladministration” and that the “ECB President’s continued membership of the G30 could undermine public confidence in the independence of the ECB”, while further recommending the European Central Bank (ECB) that its President Mario Draghi should suspend his membership of the G30 for the rest of his term and to make sure that the next president of the ECB does not become a member of G30 (European Ombudsman 2018f). The decision mainly refers to problems of the transparency of G30 meetings, which in the European Ombudsman’s opinion, do not meet the standard of “open, transparent and regular dialogue” set out in the Lisbon Treaty (Article 11, TEU), and includes recommendations on how to improve this (paragraphs 13–15). The ECB responded by evoking the previous 2013 decision by the European Ombudsman that came to an opposite conclusion, that is, finding no maladministration (paragraph 21). In assessing the ECB’s responses after its recommendations, the European Ombudsman restated the complainant’s argument that the “legal and regulatory framework within which the ECB operates has […] profoundly changed since 2013” (paragraph 48). However, the contextual changes in the legal and regulatory framework and their exact implications to the ECB president’s G30 membership are not elaborated in the decision. Instead, the European political climate following the financial crisis is referred: In parallel, the expectations of EU citizens, in a general political context that has transformed dramatically in the past five years, have grown significantly.

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The Ombudsman, whose advice the ECB states that it values, considers it her duty to sound the alarm and say that practices, that could have been tolerated previously, can no longer be condoned. If the ECB is to maintain and enhance its legitimacy and credibility, it must constantly seek to adapt its behaviour to the dynamic and sensitive environment it inhabits. It should seek to abide by the strictest rules and highest ethical standards of today, and not those of yesterday. (European Ombudsman 2018f, para. 48)

The legal basis evoked in the 2018 decision seems not to have changed since 2013. Rather the decision hinges on the changes in legal and regulatory framework as well as the sensitivity of general political context. This shifting “logic of appropriateness” (March and Olsen 1989, 23–25) also signifies changes of the European Ombudsman institution, as it now seeks to establish itself as a watchdog of EU governance, “sounding the alarm” on practices that no longer are deemed appropriate. This effectively also recalls the earlier decision by the previous Ombudsman. Yet the desired effects of this were at least not immediately seen, as the ECB declined the Ombudsman’s proposal on suspending Mario Draghi’s membership. In a press release, European Ombudsman regretted this, while noting “basic improvements” in transparency of the G30 since the start of the inquiry (European Ombudsman 2018c). One interviewee pointed out that the case had also failed to attract the media attention that one could have hoped for. The case, with all its twists and turns, seems to have been somewhat difficult for the media to grasp. There had been a shift from own-initiative inquiries to the so-called strategic initiatives. While the own-initiative inquiries were previously based on complaints that raised an issue, the strategic inquiries and initiatives were commenced on issues prioritized and chosen by the Ombudsman office itself. Though the selection of own inquiries was already earlier often weighed against the possible yield of the inquiry, these activities were more directly linked to complaints in the past. Moreover, letters of opinion, addressed to institutions as “strategic initiatives”, do resemble some earlier public communications of the Ombudsman. Most notably, in February 2000, Söderman had a public dispute with Romano Prodi, the then president of the European Commission, over transparency of EU governance, initiated by a text by Söderman published on opinion pages of The Wall Street Journal (Black 2000; Söderman 2000). This was in many ways a turning point in the intra-institutional relations as well as in the transparency of EU g ­ overnance.

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But what used to be rather an exceptional and a remarkable event in the Söderman era, making one full chapter of Söderman’s Finnish-­language autobiography (Saari 2014, chap. 15), had now become more routine. Another observable shift is the move towards conflict-of-interest cases, which have risen in prominence along with the initiatives on transparency. In addition, the perception of transparency had also shifted, as the cases were now concerned with not only access to documents but also publicity in a broader sense. It was argued in the interviews that the information access rules were defined in the 1990s, and technological means for disseminating information and expectations to do so had grown since. Nevertheless, the recent high-visibility cases were seen to have promoted the institution mainly in the Brussels circles; the link to the “public” was less clear, as the institution remained somewhat unknown to the EU citizens. There were also concerns about the strategic work coming to overshadow the handling of complaints, though they arguably still were the firm core of the Ombudsman’s work. But the increased public visibility of Ombudsman aside, it is important to ask what long-term effects the at-times confrontative dialogues between the EU institutions and the Ombudsman may yield. Most notably, there is a potential trade-off between the new political edge of the institution and the objectivity, consistency and legality of its decisions as perceived by other EU institutions (cf. Gammeltoft-Hansen 2008; Hofmann 2017; Neuhold 2017, 59). Regarding the recent cases, the impacts of the publicly mediatized cases were inconclusive, something also admitted by interviewees. Though the cases granted the Ombudsman high media visibility, the institutions concerned were somewhat dismissive of the proposals of the Ombudsman. There was also an argument that the effectiveness of the more confrontative strategy of the Ombudsman could not be measured by assessing merely compliance with a decision, but rather by the fact that “all institutions” now knew that they would have to respond to the Ombudsman, if they do not act according to standard. From this perspective, the Ombudsman was also described as a “critical friend” sparring with the institutions. Asking a question regarding what it tells about the relationship if this critical friend is rejected too often, it was acknowledged that a more persuasive approach might even lead to more lasting results, as all actors would be committed to them. In other words, the EU institutions would acknowledge that it is in their self-­interest to serve the public the best they could.

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One word frequently used in the interviews was “trust”, referring not only to citizens’ trust, but also to other institutions’ trust in the Ombudsman. One interviewee who stressed trust on a process level pointed out that Söderman was a champion of transparency but also supported the EU institutions when confidentiality was justified. It was further argued that particularly in transparency cases, it was of utmost importance that the Ombudsman was a trusted partner and no information was leaked when handling the documents in question. There seemed to be a shared understanding that public conflicts with other institutions are nevertheless, at times, unavoidable and perhaps even in the interest of the Ombudsman. In other words, such struggles, often related to own-initiative inquiries, were formative moments that potentially helped to strengthen the Ombudsman institution and promote its cause. But the perceptions differed on how to choose your battles. Some interviewees argued that there should not be too many such cases running parallel, and the Ombudsman should guard its independence at all costs and avoid entering politics. It was argued that sometimes it may be even wise not to engage in some battles. For instance, it was pointed out in interviews that Söderman had steered around complaints concerning expenses of the European Parliament and that of the MEPs by arguing that the European Court of Auditors was already looking at the matter. Diamandouros opened an inquiry on the pension schemes of the MEP’s but ultimately lost the battle at the Court. He then admitted his defeat by writing a public letter to the parliamentarians. This incident gained him enemies, but it did not eventually hinder his re-election. However, it was also suggested that the Ombudsman is now strong enough to engage in battles that can be lost. In other words, the institutional evolution and strengthening of the Ombudsman had granted it a position that could now be used differently from that used in the early years. Here, the continuity and the strengthening of the institution make a somewhat surprising justification for its gradual change. From this point of view, there were no no-go areas for the Ombudsman, as refraining from conflicts would compromise its independence. “Independence” was also referred to in relation to another concept of significance, “politicization”. In the interviews, the theme of politicization of the Ombudsman institution was generally addressed with mixed responses. Some assessed that ultimately the new strategic initiatives of the

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Ombudsman would create the risk of it becoming politicized. One interviewee said that in the current political climate all EU institutions were bound to be more politicized, referring to the aftermath of the European financial crisis and the rise of Eurosceptical political forces. This respondent adopted a more harmonious view of the potential tension between the legal and political emphasis of the institution, arguing that both are possible at the same time; while it was questioned if it is necessary for the European Ombudsman to give speeches on Brexit (O’Reilly 2018; European Ombudsman 2017b), its other activities were seen appropriate, that is, what complaints to take into account and how to go beyond the identification of maladministration (negative interpretation) to positive interpretation of good governance and active attempts to promote it. Furthermore, it was stated that the engagement in new initiatives “should be spelled out”. Consequently, the European Ombudsman would be firm in integrity but at the same time taking novel initiatives. It was argued that the fast-track inquiries on complaints regarding information access was a case in point (see above), expediting activities in favour of the citizens, rather than acting as an outright activist for transparency. Many interviewees emphasized the legal roots of the institution, the “classical” Ombudsman model, stating that its credibility rests on its impartiality and other institutions’ and citizens’ trust in this. It was also pointed out that the European Union is a community of law. But if the Ombudsman would cease to be a legal institution or if it were to become significantly less so, would it still count? Overall, politics and politicization received predominantly negative connotations in interviews, and it was stated that the Ombudsman does not accept the claims of “being politicized”. However, here politics was reduced to party politics, to promoting the interest of a certain grouping. But if we understand politicization as an act of bringing to light potential conflicts and opening a horizon for alternatives (Palonen 2003, 181–83), the recent developments around the European Ombudsman would certainly qualify.

The Office While the Ombudsman is often conflated with the person of the office holder, it is fundamentally an expert organization. As any organization, the work of European Ombudsman is largely constrained by its financial resources, staff, facilities and organizational structure. This influences the effectiveness of the core functions of the bureau, but also the office

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­ older’s ability to pursue a personal strategic agenda. The changes within h the institution are also reflected in the size and profile of the Ombudsman’s staff, the budget of the bureau and the division of activities between Strasbourg and Brussels offices. When assessing the activities of the European Ombudsman, it needs to be pointed out that the institutional conditions where the three Ombudsmen had worked were most different, not least for the size of the office. Starting initially with a small office of about ten people, Jacob Söderman left an office of 30 employees in 2003. The team grew to 70 people during the Diamandouros era (2003–2013), and by 2017, O’Reilly headed an office of some 80 people. As shown in Fig. 6.1, there was a rapid rise in the number of staff following the EU eastern enlargement of 2004 and the massive increase in the number of complaints (see previous chapter, Fig. 5.1 on number of complaints). To cope with the growing workload, the EU Ombudsman’s office had to hire new employees, and the number of staff was doubled within few years (31 in 2003, 57  in 2006). There has since been a steady increase in the European Ombudsman’s staff. One important milestone in the establishment of the office was its independent budget. Without this, the funds allocated to the Ombudsman office were budgeted initially under the European Parliament. The 90 80 70 60 50 40 30 20 10 0

Fig. 6.1  European Ombudsman staff, 1995–2017. (Source: Annual reports of the Ombudsman)

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12,000,000 10,000,000 8,000,000 6,000,000 4,000,000 2,000,000 0

Fig. 6.2  Budget of European Ombudsman (in euros), 1996–2016. (Source: Annual reports of the Ombudsman)

European Parliament decided on the budget of the European Ombudsman based on an estimate made by the Ombudsman office. In addition, the Parliament provided technical services. In December 1999, the Council agreed to grant the Ombudsman a budget of its own, an important turning point in the institutionalization and independence of the European Ombudsman. Since 2000, the Ombudsman’s budget has been an independent section of the EU budget, being 10.9 million euros in 2017. The budget follows closely the development of staff (see Fig. 6.2), which obviously makes the biggest cost share of the organization.5 It is also interesting to note that while the number of staff in the European Ombudsman’s office has been growing steadily, the number of cases has been declining following their peak in 2006 (4422 complaints). In fact, since 2014, the European Ombudsman has had about 2100 complaints annually, the same as in 2000 and 2001, when the bureau had some 25 people to handle them. In other words, the European Ombudsman now has over three times the staff that handled the same number of cases in years 2000 and 2001. Apparently, this allows latitude for other activities and probably has also freed resources for strategic investigations. Hence, 5  However, the changes in the EUs multiannual financial frameworks (2007–2013 and 2014–2020) may also have influenced this development.

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the conversion in the institutional activities is also facilitated by human resources that grew rapidly in response to the EU enlargement and a surge of cases that has since sunk to a level that some interviewees regarded as “normal”. It was also pointed out in one of the interviews that the workload may have been initially too high. Moreover, sorting out cases that are clearly outside the mandate is not a demanding task, and the focus should be rather on those cases that lead to an inquiry. Hence, the workload had not declined relative to the number of complaints. Another major aspect of the work of the European Ombudsman secretariat is the primary location of its activities. During the Söderman era, the Ombudsman office was still mostly based in Strasbourg, though the Brussels side-office was set up already at that time. However, the Brussels office kept growing over the years, as more staff in Brussels were needed, particularly during the Diamandouros term. This also indicated the need to be with the major players, most apparently the Commission, usually the focus of the European Ombudsman’s activities. Under Emily O’Reilly, the strategic importance of Brussels office had grown even further, with about half of the staff (some 40 people) and most heads of units now placed there.6 Bureaucratization progressed under Diamandouros as a necessary response to the rapid growth of staff, meaning the introduction of units and a secretary-general. Also the contracts of the staff were made increasingly permanent during his era. Under O’Reilly, the formal codification of the work at the European Ombudsman office went also further and the Ombudsman adopted an internal code of conduct, mostly focusing on the independence and impartiality of the person acting as the Ombudsman (European Ombudsman 2015a). Under O’Reilly, the organizational structure has further changed, most notably through the introduction of a strategic inquiries unit. While the introduction of a unit for strategic inquiries may have its benefits their concentration in a single unit can also be potentially problematic, as such cases were more interesting than the more ordinary 6  In fact, the 2018 European Parliament’s PETI Committee’s proposal on changes to the Ombudsman statute included an amendment to the seat of the Ombudsman institution, proposing detaching it from the seat of the European Parliament and moving it to Brussels (European Parliament 2018, 6). The justification was that half of the staff is already there.

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inquiries, putting the units in a somewhat unequal footing, also in terms of career development. The changes in the perceived mandate and new activities of the institution above had also caused tensions with the legal profession. Some staff members had found the change more difficult than others, often also a matter of how an individual is personally affected by the changes. There had also been changes of staff linked to legal professionals’ desire to develop and seek new challenges. This can also be seen against the perceived movement away from the legal core of the institution that had been somewhat unchallenged in the past. Indeed, the fact that the Ombudsman is predominantly a legal institution is visible in the number and profile of the staff, mainly consisting of lawyers. The changing profile of the institution was also visible in the recruitment strategy that now emphasized including personnel with more diverse backgrounds.7 Moreover, the job titles had been changed, as the personnel previously working under the title “legal officer” were now recruited as “case handlers”, downplaying the legal nature of the work. There were some concerns expressed about its potential effect on recruitment. On the other hand, Emily O’Reilly’s media presence was said to have attracted new case handlers to come to seek work in the office. To summarize, the development of the European Ombudsman’s office provides a perspective on the functioning and different phases of the institution. The changes in the outlook of the institution, new strategic initiatives and reconsideration of the legal root of the institution had caused tensions with the legal profession. In addition, the growing focus of high politics and Brussels-based institutions also influenced the balance of the two bureaus of the European Ombudsman, and the Brussels office had now come to grow faster in size and importance compared to Strasbourg, the official home location of the European Ombudsman. In short, the changes in the institution were also visible on an organizational level.

7  There had also been a court case on one of the European Ombudsman’s recruitment processes concerning the acknowledgement of the qualifications of a candidate. The court ruled the case in favour of the European Ombudsman (Court of Justice of the European Union 2018).

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The European Ombudsman and Cross-National Collaboration As a supranational institution, the European Ombudsman has a mandate limited to investigating the cases concerning the EU institutions, but not national administration. However, through its European Network of Ombudsmen (ENO), the European Ombudsman also acted as a hub for cross-national collaboration of the ombudsman institutions in Europe, lending the European Ombudsman influence on national level and creating an ideational link to human rights, otherwise absent in its work. Created in 1996 by Söderman, the ENO aims to enhance exchange of information about EU law and policy. Along with the European Ombudsman and the Committee on Petitions (PETI) of European Parliament, its members include national and regional ombudsmen or similar institutions in EU member states as well as the candidate countries and countries in the European Economic Area.8 The ENO also adopted a statement on its activities (October 2007), concerning the role and purpose of the ombudsmen as well as the service to the public (European Ombudsman 2007). This also implies shared principles and values in public service and accountability. While it may have initially served as a forum for supporting national-­ level actors, the ENO had also become useful in the handling of cases that were outside the mandate of the European Ombudsman, which mostly consisted of cases concerning national institutions, belonging hence to the national ombudsmen. Ideationally, the Network also provides a link between the European Ombudsman and human rights, as the national ombudsmen participating in the Network are occupied with human rights issues and some of them even act as National Human Rights Institutions (NHRI) or National Preventive Mechanisms (NPM) as defined by the UN. The interviewees considered the Network to be valuable as a hub for the ombudsmen acting on different levels of governance in Europe. Arguably, being an ombudsman can be a very lonely position and any support from peers is welcome. But the ENO has also had the function of reassuring the collaboration and trust of the national ombudsmen, as the 8  For instance, the Finnish Chancellor of Justice and the Finnish Parliamentary Ombudsman are both members. The German Committees on Petitions (Petitionsausschuss) on national and regional levels are also seen as having a similar function, and are hence accepted as members of the ENO.

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adoption of European Ombudsman had raised fears of creating an institution competing with or acting as superior to the national-level actors, which was not the case. Though the mandates of the European Ombudsman and the national ombudsmen were clearly defined with no overlap, the Network was still seen as building trust and allowing collaboration between the different institutions in Europe instead of competition. In addition, the ENO actively organizes various trainings and thematic meetings. For example, recently, there had been meetings on communications work of the ombudsman. According to an interviewee who had been participating actively in the Network since its launch in 1996, the intensity of its activities had varied over the years. It was particularly active in the beginning, aiming for a sharing of best practices and establishing networks between European actors. The participating organizations had defined liaison officers as contact points. Through its Intranet, the ENO had conducted various queries on legal frameworks and complaints handling practices. While these served in sharing information, they were also work-intensive. Another interviewee who had followed the network closely within the European Ombudsman regretted that the ENO had not been used and developed more, mainly due to the limited resources of the European Ombudsman office. The year 2007, when the ENO statement was issued, was identified as a watershed in the development of the Network, marking a window of opportunity for making it more central in the work of the European Ombudsman. However, this had not materialized, mainly due to lack of resources, which was now deemed as a missed opportunity by the interviewee. The ENO is also involved in legal assistance as Network members were able to send the European Ombudsman queries on issues concerning EU law. They are then forwarded to the concerned EU institutions, mainly to the European Commission. In this respect, the European Ombudsman provides a similar link to the EU law as the national courts had in the EU courts that provided them assistance on the interpretation of EU law. As pointed out by a Finnish interviewee, the European Ombudsman acts rather as a letterbox, forwarding the queries. Despite investigations into the possibility of creating a direct connection to the European Commission, the national ombudsmen still proceeded through the European Ombudsman to receive the European Commission’s opinion on a legal matter.

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Under O’Reilly the ENO activities have also been broadened to include parallel inquiries, meaning co-operation potentially between several national ombudsmen and the European Ombudsman on cases that concern both national and EU institutions. A cited case of parallel inquiries concerned the European Ombudsman’s own-initiative inquiry on Frontex joint return operations (European Ombudsman 2015c; Hofmann 2017, 23), that is, joint return flights of asylum seekers. The flights were organized by Frontex, but the member states themselves made the decisions on granting asylum. Based on this experience, in April 2015, the European Ombudsman proposed exploring the possibilities of parallel inquiries more systematically (European Ombudsman 2015b). In the interviews, parallel inquiries were seen to be a successful means for controlling such multilevel cases. Since the introduction of the measure, there had been, at the time of writing, some two cases of parallel investigations in a year. These were often initiated by the European Ombudsman, and a Finnish interviewee pointed out that a more bottom­up kind of approach might have also been explored, also allowing the national ombudsmen to make initiatives for parallel inquiries. There had also been recent investigations of a more general kind initiated by the European Ombudsman, for instance, tracking the inclusion of human rights standards as criteria for member states’ loans to foreign countries. While the ENO has been active in cross-national collaboration, there was also acknowledgement that the mandates of the European Ombudsman and the national ombudsmen differed. While the European Ombudsman as a supranational institution has focused on good governance, most national ombudsmen and members of ENO network were first and foremost human rights institutions, some of them also officially NHRIs according to the UN criteria. To some extent, the ENO hence included the component of human rights to the work of the European Ombudsman, but mostly these differing mandates, though acknowledged, were not actively addressed in the activities of the Network. Overall, the specific mandate of the European Ombudsman has influenced its collaboration with the UN and the national ombudsmen outside the network. There had been communications with the UN bodies and the leading officials of the European Ombudsman office. In April 2013, a meeting was held between the European Ombudsman, the Geneva Representative of the International Coordinating Committee (ICC) of National Human Rights Institutions (NHRIs) and the Head of the National Institutions and Regional Mechanisms Section of the Office of

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the UN High Commissioner for Human Rights (OHCHR) to discuss the relationship of the European Ombudsman, the ENO members and the Paris principles that define NHRIs. However, there had been no further development and the UN work on the NHRIs or Optional Protocol to the Convention against Torture (OPCAT) and National Preventive Mechanisms (NPM) was not linked to the work of the European Ombudsman in practice. This also seems to have excluded the European Ombudsman from preparing the European Union’s global strategy on human rights and democracy and European Instrument on Democracy and Human Rights (see also Chap. 2). While the European Ombudsman was not actively included in the EU’s current strategies on promoting the ombudsman institution as a guardian of human rights, the European Ombudsman has acted as a carrier of ideas in the process of spreading the institution in Europe. When Söderman was the European Ombudsman, he actively promoted the institution in the Mediterranean countries, which has been seen of critical importance for the institution to spread to Greece, Cyprus and Malta (Ladi 2011). This is particularly interesting given that Diamandouros was the first Ombudsman in Greece before becoming the European Ombudsman. Diamandouros himself promoted the institution on a national level, and his term was characterized by visits to various countries to meet the local ombudsmen. In the interviews, this was also linked to the attempt to present the institution better in member states to reduce the number of complaints filed to wrong address. Diamandouros was also said to have been actively involved in promoting the ombudsman institution in Turkey. The Turkish Ombudsman institution was adopted in 2012 after a constitutional amendment in 2010, being closely related to the Turkish interests to join the European Union (Karasoy 2015). However, as we saw in Chap. 2, the European Union’s work on promoting human rights defenders has largely bypassed the European Ombudsman, whose expert opinion had not even been sought when planning the related policies and instruments.

New Statute for the European Ombudsman? In September 2018, the European Parliament’s PETI committee published a draft opinion on the proposal for amending the Ombudsman statute (European Parliament 2018). Initiated by the Green Group of the Parliament, the proposal can be read as an idea paper or a wish list of what

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the European Ombudsman could be. It describes many of the ideas that were linked to the institution in 2018. The position of the European Ombudsman’s cabinet seems to have been somewhat cautious and even reluctant towards changing the mandate. In the interviews with and outside the European Ombudsman office, it was stated that the Ombudsman was rather focused on taking full advantage of the current statute rather than hoping to change it. In addition, as pointed out in the interviews at the European Parliament, the timing was not ideal, as the coming European Parliament elections also meant that O’Reilly had to seek re-election. In addition Also the conflicts over Council transparency—which led to a special report—made changing the Ombudsman statute a delicate matter. It was reported in the interviews that the European Ombudsman’s cabinet had stressed that any changes to the statute should enjoy the broad support of the Parliament and not be associated with a particular political group. Though the Committee on Constitutional Affairs (AFCO) was responsible for the proposal for amending the statute, it was the committee for opinion, PETI, that published a draft opinion on the proposal for amending the statute. This is also in keeping with the role of the PETI committee that is often regarded as less prestigious than some of the other European Parliament’s committees, but at the same time somewhat rebellious, also apparent in the draft opinion. The most noteworthy change proposed in this document was the proposal to grant the European Ombudsman the power to make binding decisions on access to document cases in accordance with Regulation 1049/2001 on access to documents of European Institutions (European Parliament 2018, 17).9 The proposed amendment in the statue does not specifically mention that this would effectively put the European Ombudsman in a position of an information officer, a person overseeing the access to government information in many Anglophone countries, but the Committee’s justifications for this proposal actually acknowledged this by stating that “[t]here are countries where the Ombudsman is also an Information Officers” (European 9  “The Ombudsman and their staff shall deal with requests for public access to documents in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001. With regards to complaints regarding the right of public access to official documents, the Ombudsman shall, following due analysis and all necessary considerations, issue a binding decision concerning the release or else of said documents, which the concerned institution, agency or body shall deliver within the time frames provided for by Regulation 1049/2001” (European Parliament 2018, 17).

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Parliament 2018, 17). This is most notably the case with Ireland and there is an apparent link to the Irish model of the Ombudsman. Another justification for the proposal is that the European Court of Justice “cannot proactively force institutions to give access to institutional documents, but can only eventually invalidate the refusal of access, after time and resource-consuming proceedings” (European Parliament 2018, 17). According to the proposal, the Ombudsman should be allowed to make binding decisions to ensure “good administration”. As acknowledged in the interviews, this effectively would have implied amending Regulation 1049/2001 on access to documents of European institutions (European Union 2001). In relation to this, the PETI committee draft proposal also recommends removal of various reference to restrictions on the access and handling of documents in the current Ombudsman statute, noting that this is already covered in Regulation 1049/2001. This proposal is much in line with the developing profile of the Ombudsman, now increasingly aiming to raise the profile of the institution through cases on transparency. Nevertheless, it was stressed in the interviews at the European Ombudsman’s office that they have not been active in the matter. It was also acknowledged that the likelihood of the proposal passing would be limited. One interviewee outside the Ombudsman office was of the opinion that the Council of European Union would never allow the Ombudsman to take binding decisions on accessing documents. The draft opinion also addresses the Ombudsman’s relationship competencies vis-à-vis the judiciary, proposing that the European Ombudsman could intervene in cases before the European Court of Justice (European Parliament 2018, 8) and could make recommendations to institutions that are not applying a court ruling properly, defining this as maladministration (European Parliament 2018, 9). There are also other amendments that echo the ongoing development of the Ombudsman institution. Referring to the recent cases of conflict of interest as a justification, the draft proposal contains an amendment stating that “the Ombudsman may identify and assess possible instances of conflicts of interest at all levels within the Union institutions, agencies and bodies, which could constitute maladministration”, reporting on these to the Parliament (European Parliament 2018, 19). Also a mention of the Ombudsman ability to conduct “strategic inquiries” concerning promoting good administrative practices and combating potential maladministration

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of more structural nature is included in the draft, with the justification that such inquiries are being already conducted (European Parliament 2018, 11). The Ombudsman’s increased presence in the Parliament is also proposed and there is an amendment noting that the European Ombudsman should have the right to “request where appropriate to appear before the responsible committee of the Parliament in relation to an ongoing inquiry” (European Parliament 2018, 14), which was also linked to the strategic inquiries (European Parliament 2018, 3). There is also a proposal for the Ombudsman to “appear before the plenary of the Parliament”, and in the justifications it further specified that particularly the European Ombudsman’s special reports “should be presented before the plenary” (European Parliament 2018, 15). These proposals are linked to the new profile of the Ombudsman as a watchdog of EU governance, linking it more to conflict of interest matters and issues of a more structural nature, while calling for the Ombudsman’s increased presence in parliamentary hearings and plenary sessions. Furthermore, the PETI proposal includes amendments that would grant the European Ombudsman more competencies as an overseer of whistleblowing, providing also guidance to individuals concerned (European Parliament 2018, 18). Following the MeToo—movement and related controversies over sexual harassment and gender equality, including in the European Parliament (Guibert and Salvestroni 2018)—the draft opinion also proposes establishing an anti-harassment body within the EU Ombudsman secretariat, which in the justification is not only linked to the proactive monitoring of potential harassment cases in the institutions, but also for issuing advice and “mediation” in these cases, provided that additional resources are made available for this function (European Parliament 2018, 21–22). This would potentially further expand the mandate of the Ombudsman, giving it new special tasks. There are also proposed changes to the qualifications of the Ombudsman. In the current statute, the Ombudsman is expected to “meet the conditions required for the exercise of the highest judicial office in their country or have the acknowledged competence and experience to undertake the duties of Ombudsman” (European Parliament 2018, 20). The above passage in italics was proposed to be omitted, leaving only the mention of having “acknowledged competence and experience to undertake the duties” as the qualifier of the person considered for the position. The justification calls the definition “outdated” and notes that the current Ombudsman has a different background (i.e. not legal) but is fully competent to act as

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the European Ombudsman. The above omission would nevertheless further remove the institution from its legal roots. Concerning the location of the institution, the draft proposal states that the seat of the Ombudsman should be moved from that of the European Parliament (i.e. Strasbourg) to Brussels, arguing that half of the staff is already located there. Arguably, detaching the institutions’ seat from the Parliament would also “symbolically reinforce […] Ombudsman’s independence from any political or administrative influence” (European Parliament 2018, 6).10 Overall, changes proposed in this draft opinion are largely in line with the current emphasis and profile of the European Ombudsman. They highlight the shift from a primarily legal institution to being a more general watchdog of EU governance. As stated earlier, the proposed changes originated from the European Parliament, though the Ombudsman’s Office was also consulted. The position paper of the Committee on Petitions can be read as an idea paper on what the institution could look like. Here the perceptions of different Ombudsman “models” were again apparent. Though drafted in a very short timeline, there were consultations with experts of the political groups, helping also to identify the information officer model of Ireland. Again, the Danish model seems to have been an inspiration, with the Committee on Petitions rapporteur (Margarete Auken) coming from Denmark. The former Danish Ombudsman, Hans Gammeltoft-Hansen, also provided comments on the PETI draft opinion. In the interviews at the European Parliament, the respondents also discussed the institution through models, which also helped to reduce the complexity of the topic at hand: how and why to revise the statute of European Ombudsman. The Committee on Constitutional Affairs (AFCO), committee responsible for the proposal for amending the statute, took a more critical stand on the proposed changes. AFCO asked the European Parliament Research Services to draft a report on the functioning of the European Ombudsman and its current mandate (Kotanidis 2018). In addition, the Legal Service 10  On the other hand, it could be argued that it is often the link to the Parliament that lends the Ombudsman institutions their credibility in the eyes of the citizens (see, for example, the Finnish case in Chaps. 3 and 4). Indeed, the success of the European Ombudsman has also been linked to its position between parliamentary control and rule of law (Magnette 2003).

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of the Parliament was asked to draft the so-called non-paper that assessed the legal constraints of the PETI proposal (European Parliament 2019a). The non-paper found that the proposal on granting the European Ombudsman rights for binding decisions on information access matter would not be possible under the current EU treaties (Article 228 TFEU). Similarly, the Ombudsman’s ability to intervene in cases before the Court of Justice was deemed not possible legally. Furthermore, allowing Ombudsman to support and advice whistleblowers was also seen as being in contradiction with Article 228 TFEU. In the end, only modest changes to the European Ombudsman’s mandate were passed by the AFCO and the Parliament’s plenary, including amendments on confidentiality, guiding whistleblowing, own-initiative inquiries of a more strategic nature, structured and regular dialogue with EU institutions, as well as the handling of harassment cases (European Parliament 2019b, c). The preparation of the Council’s decision on the Ombudsman statute concurred with the Finnish EU Presidency and the Finnish governments communications to the Finnish Parliament on the matter revealed that the statement of the European Commission contained “critical remarks” and that it is “unclear” how the newly elected European Parliament would be willing to make changes to the proposal and whether “political links to other issues” would evolve, further complicating the matter (Valtioneuvosto 2019a, b, 5). It is further stated that according to “unofficial information”, the European Ombudsman has reservations about some aspects of the proposal (Valtioneuvosto 2019a, 6). While the Ombudsman statute was still pending with the Council at the time of writing this book, the institutional realities seem to have worked against the ideas grouped in the PETI committee’s initial proposal. But the institutional ideas themselves are important, as they show perceptions and aspirations associated with the Ombudsman at present. Moreover, as the early institutional history of European Ombudsman shows (see Chap. 5), failed proposals may also return and prevail. But the effects of the debate on European Ombudsman’s mandate were visible in the process of re-electing Emily O’Reilly as politicization of the institution became leading issue in the campaigning ahead of the vote (Gonzalez 2019; Auken 2019). In their public hearings before the European Parliament’s PETI Committee, all three top candidates presented different views of the institution (European Parliament 2019d). Cecilia Wikström, a former MEP, described the institution as a mediator. Julia Laffranque, a judge at the European

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Court of Human Rights, stressed the Ombudsman as a legal institution. Emily O’Reilly, the serving European Ombudsman and re-elected on the third round of votes in January 2020, defined the institution as a “complaint handling whatchdog”.

Conclusions In addition to transnational norms and policy discourses in the institutional development of the European Ombudsman, this chapter highlights actors’ ability to act as change agents. The holders of the European Ombudsman office have been able to use the transnational ideas of good governance and fundamental rights to promote the institution to become an ­influential actor in the EU institutional system, despite the limitations of its mandate in dealing with citizen complaints. The European Ombudsmen also carry ideas stemming from their native context and past expertise. The actors’ cultural and professional background was highlighted in the interviews—Söderman, a Finnish lawyer and politician; Diamandouros, a political science professor from Greece; and O’Reilly, an investigative journalist from Ireland—as well as their ability to act in different roles. Here also the timely context is relevant. Söderman and O’Reilly were acting in a context of (post-)crisis, while Diamandouros’ term coincided with a period of EU enlargement and the growth of bureaucracy. At present, the Ombudsman finds itself at a turning point, where its basis as a legal institution is being complemented with other activities and initiatives that have also come to politicize the work and mandate of the Ombudsman. As a supranational institution of accountability, the European Ombudsman is a unique interpretation of a global “model”, showing both its potential and limitations. Moreover, the specific mandate of the European Ombudsman disconnects it from the global models of the ombudsman related to human rights and NHRIs. While the European Ombudsman Network does provide a link between the European Ombudsman and the human rights, promoted by the national members of the network, the European Ombudsman is excluded from the EU’s own strategic work that promotes the ombudsman institution globally. Lately, the institution has profiled itself as a general watchdog of EU governance, focusing on high-profile cases concerning transparency and conflict of interest. Significant here are the strategic inquiries comple-

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menting the earlier own-initiative inquiries. Moreover, the institution now stretches its mandate to engage strategic initiatives that draw attention to general issues of EU governance without actual inquiries. Also the public profile of the institution is becoming very active and involves close media attention. But as also acknowledged, the results of the confrontative strategy were at times inconclusive, and there were even concerns that the Ombudsman may run the risk of compromising its legal core. There were institutional tensions not only outside the institution, but also with the legal profession, of which its staff mostly consisted. Though the institution itself stressed that it was to make full use of its current mandate rather than try to get the Ombudsman statue changed, there was nevertheless an attempt to revise the Ombudsman’s mandate stemming from the European Parliament. The timing was undoubtedly linked to the coming EU elections. Even if this proposal would not materialize, it is itself revealing concerning the ideational aspirations that are associated with the institution that now has life beyond legality. The ideational disparities and conflicts around the institution were also visible in the process of electing the Ombudsman in January 2020.

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———. 2016c. Follow-up Response from the European Ombudsman to the Reply of President Dijsselbloem to Her Letter Concerning Eurogroup Transparency. August 30. http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/70708/html.bookmark. ———. 2016d. European Ombudsman Implementing Provisions. September 1. https://www.ombudsman.europa.eu/en/legal-basis/implementing-provisions/en. ———. 2016e. Letter to President Juncker Outlining the Ombudsman’s Concerns Regarding the Recent Move by Former Commission President, Mr Barroso. September 5. http://www.ombudsman.europa.eu/en/cases/correspondence. faces/en/70847/html.bookmark. ———. 2017a. Inquiry into Complaint 1697/2016/ANA Concerning the ECB and the ‘Group of 30’. January 18. http://www.ombudsman.europa.eu/en/ cases/caseopened.faces/en/75199/html.bookmark. ———. 2017b. Ombudsman Urges Appropriate Brexit Transparency. Press Release No. 3/2017, March 2. http://www.ombudsman.europa.eu/en/ press/release.faces/en/76558/html.bookmark. ———. 2017c. Ombudsman Opens Inquiry into Transparency of Council Legislative Work. March 14. http://www.ombudsman.europa.eu/en/press/ release.faces/en/76964/html.bookmark. ———. 2017d. Reply from the Council to the Ombudsman’s Strategic Inquiry on Access to Documents Received on 26/07/2017. July 26. http://www. ombudsman.europa.eu/en/cases/correspondence.faces/en/83029/ html.bookmark. ———. 2017e. Own-Initiative Inquiries. Thematic Paper, October 9. https:// www.ombudsman.europa.eu/en/thematic-paper/en/84478. ———. 2018a. Special Report of the European Ombudsman in Strategic Inquiry OI/2/2017/TE on the Transparency of the Council Legislative Process. European Ombudsman. http://www.europarl.europa.eu/meetdocs/2014_ 2019/plmrep/COMMITTEES/CJ35/DV/2018/07-11/201700213Specia lReportCouncil_EN.pdf. ———. 2018b. Ombudsman Asks Commission to Reassess Barroso Appointment. March 15. http://www.ombudsman.europa.eu/en/press/release.faces/ en/91185/html.bookmark. ———. 2018c. Ombudsman Expresses Disappointment at ECB Response on President Draghi’s ‘Group of 30’ Membership. April 18. http://www.ombudsman.europa.eu/en/press/release.faces/en/93639/html.bookmark. ———. 2018d. Recommendation of the European Ombudsman in Joint Cases 488/2018/KR and 514/2018/KR on the European Commission’s Appointment of a New Secretary-General. May 8. https://www.ombudsman. europa.eu/en/recommendation/en/102651.

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———. 2018e. Decision in Strategic Inquiry OI/2/2017/TE on the Transparency of the Council Legislative Process, May 15. https://www.ombudsman.europa. eu/en/decision/en/94896. ———. 2018f. Decision of the European Ombudsman on the Involvement of the President of the European Central Bank and Members of Its Decision-Making Bodies in the ‘Group of Thirty’ (Case 1697/2016/ANA). July 3. http:// www.ombudsman.europa.eu/en/cases/decision.faces/en/98547/ html.bookmark. ———. 2018g. Commission Should Develop New Procedure for Appointing Its Secretary-General. Press Release 7/2018, September 4. https://www.ombudsman.europa.eu/en/press-release/en/102716. European Parliament. 2018. Draft Opinion of the Committee on Petitions for the Committee on Constitutional Affairs on the Proposal for Amending Parliament’s Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties (2018/2080(INL)). European Parliament. http:// www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+ COMPARL+PE-623.941+01+DOC+PDF+V0//EN&language=EN. ———. 2019a. NON PAPER on Some Questions Concerning the Proposed Statute of the European Ombudsman. ———. 2019b. A8-0050/2019. Report on a Draft Regulation of the European Parliament Laying Down the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties (Statute of the European Ombudsman) and Repealing Decision 94/262/ECSC, EC, Euratom (2018/2080(INL)–2019/0900(APP)). http://www.europarl.europa.eu/ doceo/document/A-8-2019-0050_EN.pdf. ———. 2019c. P8_TA-PROV(2019)0080. Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties (Statute of the European Ombudsman) European Parliament Resolution of 12 February 2019 on a Draft Regulation of the European Parliament Laying down the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties (Statute of the European Ombudsman) and Repealing Decision 94/262/ECSC, EC, Euratom (2018/2080(INL)–2019/0900(APP)). http://www.europarl.europa.eu/doceo/document/TA-8-2019-0080_ EN.pdf. ———. 2019d. “Hearings|Election of the European Ombudsman.” Ombudsmanelection. 2019. http://www.epgenpro.europarl.europa.eu/ static/ombudsmanelection/en/hearings/hearings.html;jsessionid=07EAB1C 9F1BF629EB77F22C2DEAF18DF. European Union. 2001. Regulation (Ec) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 Regarding Public Access to European Parliament, Council and Commission Documents. http://www. europarl.europa.eu/RegData/PDF/r1049_en.pdf.

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———. 2012. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Text/html; charset=UTF-8. Official Journal C 326, 26/10/2012 P. 0001–0390; 2012. https://eur-lex. europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E/ TXT&from=EN. Gammeltoft-Hansen, Hans. 2008. The Ombudsman as a Marker of the Limits of Politics. Unpublished conference paper presented in Tallinn, 7 March 2008. Gieryn, Thomas F. 1983. Boundary-Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists. American Sociological Review 48 (6): 781–795. https://doi.org/10.2307/ 2095325. Gonzalez, Cristina. 2019. “The Political Proxy War Driving the Race for EU Citizens’ Champion.” POLITICO, December 2, 2019. https://www.politico. eu/article/the-political-proxy-war-driving-the-race-for-eu-citizens-championemily-o-reilly/. Guibert, Christelle, and Justine Salvestroni. 2018. #MeToo Blog Allows Victims at European Parliament to Speak Freely. Euractive (blog), October 10. https:// www.euractiv.com/section/politics/news/metoo-blog-allows-victims-ateuropean-parliament-to-speak-freely/. Hofmann, Herwig C.H. 2017. The Developing Role of the European Ombudsman. In Accountability in the EU. The Role of the European Ombudsman, ed. Herwig C.H.  Hofmann and Jacques Ziller, 1–27. Cheltenham, UK: Edward Elgar Publishing. Karasoy, H. Alpay. 2015. Ombudsman in Turkey: Its Contributions and Criticism. European Scientific Journal, ESJ 11 (22). https://eujournal.org/index.php/ esj/article/view/6043. Kotanidis, Silvia. 2018. The European Ombudsman: Reflections on the Role and Its Potential: In-Depth Analysis. European Parliament. http://www.europarl. europa.eu/RegData/etudes/IDAN/2018/630282/EPRS_IDA(2018)630 282_EN.pdf. Ladi, Stella. 2011. Policy Change and Soft Europeanization: The Transfer of the Ombudsman Institution to Greece, Cyprus and Malta. Public Administration 89 (4): 1643–1663. https://doi.org/10.1111/j.1467-9299.2011.01929.x. Magnette, Paul. 2003. Between Parliamentary Control and the Rule of Law: The Political Role of the Ombudsman in the European Union. Journal of European Public Policy 10 (5): 677–694. https://doi.org/10.1080/13501760320 00124032. Mahoney, James, and Kathleen Thelen, eds. 2009. Explaining Institutional Change: Ambiguity, Agency, and Power. 1st ed. Cambridge University Press. March, James G., and Johan P.  Olsen. 1989. Rediscovering Institutions: The Organizational Basis of Politics. New York: The Free Press. Neuhold, Christine. 2017. ‘Monitoring the Law and Independent from Politics?’ The Relationship between the European Ombudsman and the European

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Parliament. In Accountability in the EU. The Role of the European Ombudsman, ed. Herwig C.H.  Hofmann and Jacques Ziller, 53–73. Cheltenham, UK: Edward Elgar Publishing. O’Reilly, Emily. 2018. A Revolving Door for Brussels Lobbyists Damages Trust in the EU. Financial Times, March 19. https://www.ft.com/content/38f96 af2-277d-11e8-9274-2b13fccdc744. Oliver, Christine. 1992. The Antecedents of Deinstitutionalization. Organization Studies 13 (4): 563–588. https://doi.org/10.1177/017084069201300403. Palonen, Kari. 2003. Four Times of Politics: Policy, Polity, Politicking, and Politicization. Alternatives 28 (2): 171–186. Reuters. 2018. Barroso Slams EU Watchdog over Probe of His Goldman Sachs Role. Reuters, March 15. https://www.reuters.com/article/us-eu-ethics-barroso/eu-watchdog-calls-for-review-of-barrosos-goldman-role-idUSKC N1GR12R. Saari, Heikki. 2014. Jacke—Jacob Södermanin Elämä. Helsinki: Siltala. Schmidt, Vivien A. 2008. Discursive Institutionalism: The Explanatory Power of Ideas and Discourse. Annual Review of Political Science 11 (1): 303–326. https://doi.org/10.1146/annurev.polisci.11.060606.135342. Söderman, Jacob. 2000. The EU’s Transparent Bid for Opacity. The Wall Street Journal, February 24. Valtioneuvosto. 2019a. VNEUS2019-00379 PERUSMUISTIO.  Ehdotus Oikeusasiamiehen Ohjesääntöä Koskevaksi Asetukseksi. https://www. eduskunta.fi/FI/vaski/Liiteasiakirja/Documents/EDK-2019-AK255579.pdf. ———. 2019b. VNEUS2019-00424 E-KIRJE.  Ehdotus Oikeusasiamiehen Ohjesääntöä Koskevaksi Euroopan Parlamentin Asetukseksi, June 14. https:// www.eduskunta.fi/FI/vaski/Kirjelma/Documents/E_13+2019.pdf.

PART IV

Conclusions

CHAPTER 7

Global Organizational Model and Institutional Change of Ombudsman

This book has explored the institutional development of the ombudsman, focusing on transnational ideas, discourses and models linked to this global institution, context of the ombudsman’s institutional evolution and change, inter-institutional setting of the ombudsman—including its institutional peers and rivals—and the role of actors in establishing, institutionalizing and changing the ombudsman institution over time. Moreover, in empirical chapters, I have highlighted the ombudsman’s role as an institution of public accountability and its relationship with the “public” in different modalities of the concept. I have also discussed politics and the politicization of the ombudsman, evident in attempts to revise and reinterpret the mandate of the institution as well as potential political conflicts through cases pursued by the ombudsman. To summarize, the institutional history of the ombudsman is in many ways characterized by distinctive institutional trajectories, path dependencies and institutional evolution (cf. Mahoney 2000; Thelen 2004), which are increasingly coming together under a global organizational model. The sociological variant of institutional analysis provides a basis for understanding the global dissemination of the institutional ideas surrounding the ombudsman, including the cultural aspects and rationalities of this process (Meyer et al. 1997; Koo and Ramirez 2009). But there are also clear ideational changes around the institution linked to global discourses (cf. Schmidt 2008). The ombudsman institution has been shifting

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between the semantic fields of administrative law, human rights and good governance, which has influenced its institutional development, as the empirical cases reveal. The institutional changes observed have occurred at junctures of governance (cf. Pierson 2000), highlighting agency and political conflict. This has led to changes of the ombudsman as institution of public accountability.

Global Organizational Model A global organizational model now frames the activities of the ombudsman. Though not always coherent, these ideational influences are accommodated by an institutional context and carried by individual actors, whose role is often decisive in the development of the institution. The ombudsman is a peculiar institution of public accountability—both as an institution and as an individual—operating at the juncture of law and politics. The institution observes changes in the general political climate but also engages in a constant renegotiation of its intra-institutional position, also involving conflicts over its institutional mandate. The ombudsman institution has become global not only in terms of its diffusion, now covering most independent states, but also through the global coordination of its activities, often discussed as “models” or “types” of ombudsman. While these converge with the UN classification of National Human Rights Institutions (NHRI), there are several other ideational sources that meet in the debate on the ombudsman models, such as the Ombudsman as a mediator or an institution of good governance. These ideational models are accommodated by a discourse and historical narrative on the global diffusion of the ombudsman shared by policy actors when they discuss the institution and how it should work (cf. Schmidt 2008; Hobsbawm 1987). The models are hence a source of organizational ideas, legitimacy and sense of orientation. As discussed in Chap. 2, the transnational communication around the ombudsman institution started cross-nationally, involving initially learning from the Swedish model, but the Danish Ombudsman became the model to be copied globally, thanks to various actors and associations—both professional (law associations) and organizational (ombudsman associations)—promoting and debating the institution in Anglophone world. A major factor in global diffusion of the ombudsman has been the international effort to codify National Human Rights Institutions (NHRI) as defined in the 1993 Paris Principles of the UN (cf. Cardenas 2014; Koo

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and Ramirez 2009; Reif 2004). International ­organizations of development economics such as the World Bank have also been active in promoting the ombudsman under the discourse on good governance, and European Union has promoted it through its policy programmes and instruments. These initiatives have contributed to the spread of the institution but also influenced its conceptualization, mandate and functions. The conceptualization of the ombudsman has shifted from the semantic field (Koselleck 2004) of administrative law to human rights and good governance. These ideational shifts have contributed to the global spread of the ombudsman institution but also influenced its mandate and functions in different contexts. As global institution, the ombudsman currently has a high symbolic value for countries that are adopting it but also for the organizations promoting it. However, as shown by the explorative analysis of time series data as well as global indicators of good governance and democracy, while the global interest towards the institution is gathering pace, the ombudsman’s relation to democratic governance is becoming less apparent and the institution now exists in various national contexts all over the world. There are also institutional developments linked to the aforementioned ideational changes in contexts where the institution existed before. The joint history of the Finnish Parliamentary Ombudsman and the Chancellor of Justice (Chaps. 3 and 4) highlights how the global discourse of human rights is adopted by the Ombudsman on a national level, helping it communicate itself to the public (cf. Schmidt 2008). While the institutional history of these two legal overseers has been characterized by rivalry between the two institutions, the Ombudsman underwent a major shift at the turn of 1990s and became a more prominent legal overseer assessed in number of complaints. This came in a juncture of Finnish governance, where human rights enter the Finnish legal culture, also through the activities of the Ombudsman. While this coincided with the UN codification of the National Human Rights Institutions in the 1990s, the Finnish development can be explained by the end of Cold War and Finland’s foreign political reorientation. However, the references to the global models of the ombudsman emerged already in the 1960s and have been actively used by actors in arguing for revising the mandates of the legal overseers, also owing to functional differentiation between the two institutions.

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The Finnish Parliamentary Ombudsman has been associated with the UN human rights system and the global institutional models of NHRI, NPM and UNCRPD, which has been used as a rationale in national debates on the division of tasks of the legal overseers that has been ongoing since the adoption of the Ombudsman. Here the global organizational model of the ombudsman bypasses the Chancellor of Justice, who lacks the global epistemic capital granted by the ombudsman model and is seeking different kinds of functional peers (cf. Alasuutari et al. 2015). There are also apparent differences in the international collaboration networks of the two institutions, where the Ombudsman has an abundance of international venues, while the Chancellor is included in only some of them. In short, the global policy models and classifications of the ombudsman appear as exclusive mechanisms against which the Finnish Parliamentary Ombudsman is validated. There are also institutional tensions stemming from the aforementioned development, apparent in the attempts to renegotiate the division of tasks between the two legal overseers that has persisted despite previous efforts. Moreover, the NPM tasks as well as the new mediating tasks were seen to be in a potential tension with the Ombudsman’s traditional role as a legal overseer. This is also a question of resource allocation, apparent in trade-offs between handling complaints and inspections (see Chap. 4), which nevertheless both belong to the realm of bureaucratic accountability (see later). Chapters 5 and 6 analysed the role of transnational norms and policy discourses in the institutional development of the European Ombudsman. The chapters highlight the actors’ ability to translate the norms and policy discourses to promote their own agenda. The global drive for good governance coincided with the establishment of the European Ombudsman in 1995 and resonated with the crises of EU governance. The European Ombudsman established its position in the inter-institutional setting by adopting good governance and transparency as its causes to promote, defining and identifying maladministration in European governance. This also involved public disputes with the European Commission. The European Ombudsman has actively sought to challenge the European Commission, the Council of European Union and the European Central Bank over lack of transparency. But while the European Ombudsman has been influential in promoting good governance on its own initiative, it has had less of an impact through the complaints of EU citizens, which have mostly fallen outside its competencies. This indicates

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the difficulty in adopting the ombudsman institution on a supranational level. EU citizens have major difficulties in acknowledging the institutional mandate of the European Ombudsman and its relationship with national institutions, a problem shared by the EU Parliament’s Committee on Petitions and the European Court of Human Rights. Moreover, the global model of the ombudsman as a human rights institution largely bypasses the European Ombudsman, which can only investigate citizens’ complaints concerning dealings with EU institutions, which are limited. However, while the European Ombudsman as a supranational institution is excluded from the global blueprint of the ombudsman as a human rights defender, the European Union has adopted this “model” in its global strategy and its activities in promoting democracy (see Chap. 2). The European Ombudsman is not a stakeholder in this process, despite being a hub for the European Ombudsmen through its ENO network. Here, the global policy script on the ombudsman as human rights defender again functions as a mechanism of inclusion and exclusion. However, while European citizens have little dealings with EU institutions, the transnational discourse of “rights” has nevertheless influenced the institutionalization of Ombudsman, as the EU citizens’ right to complain to the Ombudsman about “maladministration” was further acknowledged in the Lisbon Treaty and Charter of Fundamental Rights. This has also paved the way for considering the notion of “life beyond legality”, marking a shift from assessments of legality towards proactive work on good governance, and, currently, the institution becoming a more general watchdog of EU governance. This has led to clashes between the Ombudsman and the institutions and actors involved, leading to allegations of the Ombudsman being politicized. There are also other signs of institutional transformations, including within the office, where the profiles of staff, traditionally consisting of lawyers, have been changing. Moreover, there was also a perceivable trade-off between the handling of complaints and the own inquiries and initiatives. The strategic initiatives adopted by the European Ombudsman are stretching its mandate, framing the Ombudsman increasingly as an institution of political accountability.

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The Ombudsman as an Institution of “Public” Accountability In defining accountability as a process, Richard Mulgan identifies three questions that define its core sense: accountable to whom, for what and how (Mulgan 2000, 555). The most important question here is how— what is the actual mechanism of accountability? As an institution of accountability, the ombudsman provides an institutional mechanism for bureaucratic or legal accountability, but acts as a facilitator for the public as an “accountability forum” (Bovens 2005). In addition, the ombudsman—both an institution and an individual—is also a public figure with media profile. The ombudsman potentially touches upon different types of accountability—political accountability, bureaucratic accountability, personal accountability, professional accountability, performance and deliberation (Erkkilä 2007). This classification of accountability, derived from previous scholarship, is also not static, and the weighting of different types of accountability tends to shift over time within an accountability system that is responsive to its external context and ideational changes, often occurring in juncture of governance but also incrementally. We can observe changes in the ombudsman institution against this typology, showing how the institution is evolving and moving from its legal roots, or at least acquiring additional tasks. In general, there has been a shift from being an institution of bureaucratic and legal accountability to activities as an expert organization (professional accountability), as a mediator (deliberation) and promoting public values associated with human rights and good governance (personal accountability). In addition, the case of the European Ombudsman shows how the institution in that context is also increasingly obtaining advocacy tasks in cases concerning transparency and conflicts of interest that are more in the realm of political accountability. Concerning the ombudsman as an institution of accountability, there is a dynamic relationship with the “public”. Mark Bovens’ (2005) concept of “public accountability” is helpful here as it allows us to consider the ombudsman’s work in various senses of the term “public”.1 Though the  According to Bovens the account holder or the “accountee” can be a person or an agency, but it can also be seen as an “accountability forum” such as the general public (Bovens 2005). Bovens defines the social process of “account giving” in terms of three 1

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institutional dynamics differ from one context to another, as also observed in this book, supervising the use of public power and its legality, the work of the ombudsman in its classic form is based on complaints filed by citizens, the general public. This is linked to bureaucratic accountability where the ombudsman, particularly in its classic form as a legal overseer, supervises the compliance with public law and regulations as well as the respect for individual rights. This remains the main activity of institutions covered in this book (see Chaps. 3, 4, 5 and 6), but the institutional dynamics of the Finnish legal overseers as institutions of public accountability differ significantly from that of the European Ombudsman. The ombudsman derives its effectiveness from the publicity of its decisions that sanction the misuse of power. It hence provides an institutional form or site for the public as an accountability forum, while also relying on the potential measures of the ombudsman. Furthermore, the ombudsman as both an institution and an individual is also a public figure with media profile, influencing how this institution of accountability functions. In Finland, the legal overseers receive complaints from the public in certain cases somewhat interchangeably and their number of cases is interrelated, visible in the peaks of complaints for either one of the institutions, when the number of complaints for the other legal overseer decreases. Here the public mediation of the institutions is most relevant, implying the citizens’ awareness of their right to complain. As discussed in Chaps. 3 and 4, the cases of high media visibility have marked significant peaks in the number of complaints for both Finnish legal overseers. Moreover, the adoption of the human rights discourse has a significant effect on the flow of complaints to the Finnish Parliamentary Ombudsman as the institution communicates itself to the public through the discourse of human rights. The contrast with the European Ombudsman is apparent, as its public activities seem to have very limited effect on the number of complaints. Despite the active media profile of the current European Ombudsman, the number of complaints has been decreasing in recent years. Also, the big news headlines concerning certain high-profile cases of the Ombudsman concerning the political and administrative elite of the EU have not always had an observable effect on the number of complaints. The dynamic with the public appears to be fundamentally different in the absence of a single elements: the accountor’s obligation to give account to the accountability forum, the forum’s ability to interrogate the accountor and the forum’s ability to pass a judgement and impose sanctions (Bovens 2005).

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European public sphere (cf. Risse 2010). The fact that over the years, some 60–80% of all complaints to the European Ombudsman have somewhat consistently fallen outside its mandate indicates a problem with the institution’s ability to make its activities known to the general public, though this seems to be a general problem with supranational institutions of accountability. While handling complaints remains the core function of all the institutions covered in this book they have different case profiles owing to their specific mandates and institutional context. However, there have also been increasing attempts to revise the institutions’ mandates, which links to debates and conflicts in their native institutional contexts but also to the scope of transnational governance around the ombudsman institution. In Finland, the Ombudsman has taken a strong profile concerning human rights cases, acquiring recently new UN-related tasks that have increased the number of inspections and emphasized its role as an expert organization in this field. The Chancellor of Justice of Finnish government explores new tasks in independent legal advice. The changes are linked to the rise of good governance and human rights discourses that have introduced values and ethical considerations to the work of the legal overseers. Such cultural aspects of public governance are often discussed within an emphasis on personal accountability, stressing the public administrations’ commitment shared through common values and ethics. To a certain extent, the shift towards human rights also marked a move away from strictly legalistic considerations in decisions on cases, bringing in the perspective of the individual concerned, as highlighted by the Finnish case (see Chaps. 3 and 4). In the EU context, the Ombudsman has strengthened its profile in own-initiative inquiries and has launched the so-called strategic initiatives that have also framed it as a watchdog of EU governance in a more general sense. Value statements were strongly pronounced in the recent strategic initiatives and inquiries of the European Ombudsman, pointing out conflicts of interest, problems in lobbying and the “revolving doors”, and transparency in unofficial decision-making venues and legal preparation. While the ombudsman’s traditional work in investigations on potential misuses of public power might involve politically sensitive cases or concern

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politicians directly—as we saw with the case in Finland of the impeachment of Minister Juhantalo (see Chap. 3)—we should not confuse these with one another. The key here is the actual mechanism of accountability, whether it is through an assessment of legality, typical for bureaucratic accountability, or through elections and a political chain of accountability, typical for political accountability (cf. Erkkilä 2007). The European Ombudsman also wanted to send out the message that all EU institutions would have to answer to the Ombudsman about their actions, if stepped out of line (see Chap. 6). But it remains unclear what the actual mechanism of accountability is here. The European Ombudsman’s recent inquiries and initiatives on the conflict of interest cases of high-level EU officials and Council transparency are not always directly linked in legal assessments, but rather aim to politicize certain existing practices of EU governance. This also includes a clear tendency to advocate for certain practices, such as the accelerated processing of information requests. Indeed, the ombudsman institution is in many ways entangled in transparency and the right of access to public documents, an institutional practice that has spread globally along the diffusion of the ombudsman. It would be difficult for the institution to function without such preconditions, but at the same time the ombudsman appears as a guardian and promoter of transparency, as the case of European Ombudsman demonstrates. The European Ombudsman has advocated an increase of transparency in the EU system in the past, but the discussion on the ability for the Ombudsman to acquire tasks as an information officer (see Chap. 6) highlights the ideational changes around the institution, where the Ombudsman is associated with various institutional aspirations, again referencing national Ombudsman models. Such changes to the profile of the institution would also imply changes to it as an expert organization. Professional accountability rests on expert scrutiny and peer review as its mechanisms, and the ombudsman may function as an expert organization in legal matters, whose interpretation of law might have relevance for the legal system and culture more broadly, as the Finnish Ombudsman’s work on human rights and the European Ombudsman’s work on access to information and maladministration highlight. Moreover, the Finnish Ombudsman is also a watchman of agencies with oversight tasks. The Chancellor of Justice is also increasingly

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engaged in independent legal advice and reviewing government proposals, making it an institution of constitutional peer review. Some classifications of the Ombudsman link the institution more closely with accounting and anti-corruption work, closely linked to market activities and performance in the economic sense (see Chap. 2). While performance as a type of accountability is less linked to the ombudsman, its work also concerns the responsiveness of public organizations, such as the European Ombudsman’s initiative on fast-track inquiries in transparency cases and the Finnish Ombudsman’s work on the swift and efficient running of the process. The Finnish Parliamentary Ombudsman’s mediating activities also often concerned access to law cases, where individuals had not received decisions on pending cases on time. The ombudsman is also engaged in deliberation, operating within the hub of citizens, media, public administration and politics. It prompts public debate but also acts as a channel for citizens to vent their frustrations. The experts interviewed for this book highlighted this function of the ombudsman, even if it would “give hope to the hopeless” as one Finnish interviewee stated, reflecting on the high hopes that people had for the Ombudsman to help them with their grievances, even if there was nothing that could be done to assist them. In Finland, the Ombudsman had also acquired new tasks as a mediator in disputes over violations of individuals’ rights, involving also financial compensations. Here the international mediateur model was adopted to engage new institutional activities. To summarize, the profile of the ombudsman as an institution of accountability has, to a certain extent, shifted or expanded from bureaucratic accountability and legal supervision. The Finnish Parliamentary Ombudsman changes its profile within bureaucratic accountability, seeking to balance its traditional tasks in handling complaints with the increasing number of inspections, though this comes with demands for a new kind of expertise as an institution of professional accountability. At the same time, the European Ombudsman is acquiring new tasks that are, to certain extent, profiling it as a more general institution of political accountability than as an institution of bureaucratic or legal accountability. The Chancellor of Justice, not directly concerned by the global models of the ombudsman, has remained somewhat unchanged

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over the years despite its functional differentiation vis-à-vis the Finnish Parliamentary Ombudsman.

Actors and Ideas While the research on the diffusion and ideational change of the ombudsman might not always stress the role of actors, the former Danish Ombudsman, Stefan Hurwitz, is highlighted in accounts on the institution spreading in the Anglophone world (see Chap. 2). On the other hand, the actor’s perspective is more present in the accounts on institutional evolution of individual ombudsman institutions, where the institutional histories run the risk of being reduced into personal biographies of individuals holding the office (Baudot and Revillard 2011, 196). The prevailing narrative on the institutional development of the European Ombudsman highlights the persons holding the office (see Chaps. 5 and 6), explaining also the shifting focus of activities of the institution— Söderman, the lawyer (rule of law, transparency); Diamandouros, the political science professor (good governance); and O’Reilly, the journalist (transparency, conflict of interest). But it is also important to understand the institutional context in which such actors function, which conditions their abilities and also their motivation for action (Mahoney and Thelen 2009). As we saw in Chaps. 5 and 6, the European Ombudsman’s resources and institutional position have changed significantly since its establishment, apparent also in its recent activities in strategic inquiries and initiatives that have involved high-­ profile cases concerning the Council, the Commission and the European Central Bank, often simply explained away by Emily O’Reilly’s background as investigative journalist. The increasing focus on own initiatives and inquiries certainly also links to the European Ombudsman’s specific mandate in case-handling as well as the decreasing number of incoming complaints. In the Finnish case, the long institutional history of the Ombudsman and the Chancellor of Justice also involves actors that have influenced the institutions significantly. In the interviews, these were identified as office holders with pronouncedly public profile, often involved in controversial cases of high media interest, such as Kai Korte and Jacob Söderman. But also actors with a specific field of expertise and an agenda were pointed

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out, among them being Lauri Lehtimaja, who was a key figure in promoting human rights in and outside the Ombudsman’s office in Finland. It is also important to consider the actors and agency in a historical context— what was possible for the institutional actors to think and argue at their time (Skinner 1969), what were institutional boundaries of their actions (Mahoney and Thelen 2009) and to what extent can we establish intentionality in the later effects of these actions (Pierson 2000). This is most apparent in the history of the Finnish Parliamentary Ombudsman that exists despite the first office holder’s proposal to abolish the institution in the early 1920s, and has become a national human rights institution in charge of NPM tasks despite the Ombudsman categorically opposing, in the 1930s, the cases concerning prison system to be moved to the Ombudsman’s sole responsibility. Obviously, personal characteristics and competencies also matter. For example, Jacob Söderman’s ability to switch between the roles of a politician and a lawyer was mentioned in the interviews. But there were also frequent references to less prominent individuals working for the institutions studied, whose expertise had been critical for the organization at some point. Indeed, important institutional actors do not necessarily make headlines or cause peaks in the numbers of complaints, but simply participate in the maintenance of their organization as well as in the process of translating new institutional ideas and bargaining the institutional boundaries with other actors. Here, the ombudsman institution and its development also border on legal profession, to which it has been traditionally closely linked—also the spreading of the institution initially proceeded in international associations of legal scholars (see Chaps. 2 and 3). As the institution shifts towards new tasks, this link may be weakened, as the case of the European Ombudsman shows. In Finland, the new NPM and UNCRPD tasks were also seen to require a new kind of expertise, marking a potential source of institutional change. This is also indicative of how the ombudsman is becoming transformed as an institution of accountability.

Institutional Change and Politicization In previous literature, the adoption of the ombudsman is often associated with political conflicts, as well as attempts to improve citizen trust and efficiency of government and to promote human rights (Baudot and Revillard 2011, 197; Pegram 2008; Bennett 1997), visible also in the adoption of

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the European Ombudsman (see Chap. 5). But the politics and politicization of the ombudsman may manifest itself in different forms and contexts (Bakewell 1986; O’Hara 2011; Abraham 2008). It is present in the selection of the holder of the institution, as the nomination of an ombudsman may be a politically influenced or contentious matter. This is also reflected in the official requirements for the position—for example, if the person concerned needs legal training in order to qualify—or informal rules, such as a consensus on not appointing politicians as ombudsman. The nomination of legal overseers in Finland—the Ombudsman and the Chancellor of Justice—was, until the early 1990s, closely linked to party politics (see Chap. 3). In a similar fashion, the selection of the European Ombudsman has involved political bargaining and candidacies of former politicians. In these viewpoints, political conflict is understood as the underlying conditions according to which the institution functions and is established. However, these views also point to a rather narrow understanding of politics and fail to see its role in institutional change where the institutions are being constantly renegotiated (cf. Thelen 2004) and engage in defining the demarcation lines of their institutional boundaries (cf. Erkkilä and Kauppi 2017; Gieryn 1983). The concept of politicization helps to understand political conflict around the ombudsman institution and its role in institutional change that is often incremental. Politicization can be understood as the ability to contest issues and open a new horizon for action (Palonen 2003). Nothing is political by nature, but instead needs first to be politicized through contestation, opening alternative horizons for thinking and acting (Palonen 2003). In the cases discussed in this book, politicization becomes most apparent in the debates concerning the mandate of the ombudsman—what could the mandate of the ombudsman look like, alternatively? Here, both the European Ombudsman and the Finnish Parliamentary Ombudsman and the Chancellor of Justice currently find themselves in a situation where their mandates are being renegotiated, implying also politics in attempts to change the institutions mandate vis-à-vis other institutional actors. The Finnish Ombudsman largely draws its ideational influences from global models of the ombudsman as a human rights institution. The European Ombudsman does not fit the model of a human rights institution and is rather converting to institutional activism in good governance, while the handling of complaints is undoubtedly still its main task. Another occasion where the institution and its activities are becoming politicized is in the choice of cases by the ombudsman that involve its

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mandate or decisions that challenge the conventions of the prevailing legal culture. In the European Union, particularly the own-initiative inquiries pursued by the Ombudsman have defined its mandate but also notions of “maladministration”, “good governance” and “transparency” in European governance. In the Finnish case, the Ombudsman’s promotion of human rights came to pave the way for a major conceptual and cultural shift in Finnish law. Here the interpretations of law by the Ombudsman may be of great importance for the legal and administrative culture. Cases concerning political actors, such as politicians and high-­level civil servants, always carry potential of politicization of the ombudsman’s work and the institution itself, which might grant the institution public visibility, potentially even having a positive effect on its functionality, but also run the risk of making the institution appear as a proxy for particularistic interests. As has been discussed, the European Ombudsman has been questioned about its agenda concerning recent high-profile conflicts of interest cases. This also touches upon the nature of the ombudsman as an institution of public accountability; to what extent should it also be actively promoting public interest? The ombudsman has been described as a “marker of the limits of politics” or as an agent between the fields of law, administration and politics (Gammeltoft-Hansen 2008; Magnette 2003), pointing to its balancing act in maintaining independence while controlling the use of public power. Politicization can hence be perceived in the cases pursued by the ombudsman, even in terms of interpretation of law and justification of decisions. But it is argued that the issues dealt by the ombudsman are potentially politically contentious, and this highlights the need to concentrate on their legal aspects (Gammeltoft-Hansen 2008). It might be more straightforward to focus on the legal aspects of contentious issues in cases where the ombudsman acts based on citizen complaints, which the ombudsman is usually obliged to investigate. But the choice of cases to pursue (or not pursue) as own inquiries contains potential for politicizing a matter, revealing conflicts that are related to existing practices of governance. As we saw in the chapter on the European Ombudsman, the strategic inquiries and initiatives entail conflicts between the Ombudsman and the administration and political elite that have been of significance for the administrative practices but are currently also significantly shaping the profile of the European Ombudsman.

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Finally, the ombudsman may also be drawn into the political debates and ambitions of other actors without its consent. This can occur in a context of political elections, as the institutional cases discussed in this book show, but the ombudsman also observes general shifts in political climate, where trust towards political institutions is being tested through the rise of populism. As the empirical cases show, this might lead to perceptions that “all institutions” are politicized. This challenges the work of legal overseers that easily become lightning conductors of the social critique but at the same time need to guard their institutional space while keeping up their legitimacy in the eyes of the citizens, administration and politicians alike. This is also where the global institutional models become indispensable, legitimizing the changes in the activities of these organizations, granting institutional ideas and giving sense of orientation. To a certain extent, the models come to hide the institutional tensions and political conflicts involved. The conceptual shifts around the ombudsman institutions, as well as the transnational discourses to promote it, have contributed to its global spreading and institutional development, also in contexts where it has a significant institutional history. The conceptual shifts between the semantic fields of administrative law, human rights and good governance not only indicate new activities of the ombudsman, but also its changing profile as an institution of public accountability. As I have argued, the role of actors is essential in defining, translating and editing the institutional ideas, discourses and narratives that now frame the ombudsman. But such global organizational blueprints also treat actors differently, working as mechanisms of inclusion and exclusion. This underlines the interplay of institutional context, actors and ideas in understanding the dynamics of transnational governance and accountability.

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Bakewell, R.D. 1986. The Ombudsman and Politics. Australian Journal of Public Administration 45 (1): 47–59. https://doi.org/10.1111/j.1467-8500.1986. tb01038.x. Baudot, Pierre-Yves, and Anne Revillard. 2011. Le Médiateur de La République Au Prisme de La Démocratie Administrative. Revue Française d’administration Publique 137–138: 193–207. https://doi.org/10.3917/rfap.137.0193. Bennett, Colin J. 1997. Understanding Ripple Effects: The Cross-National Adoption of Policy Instruments for Bureaucratic Accountability. Governance 10 (3): 213–233. https://doi.org/10.1111/0952-1895.401997040. Bovens, Mark. 2005. Public Accountability. In The Oxford Handbook of Public Management, ed. Ewan Ferlie, Laurence Lynn, and Christopher Pollitt. New York: Oxford University Press. Cardenas, Sonia. 2014. Chains of Justice: The Global Rise of State Institutions for Human Rights, Pennsylvania Studies in Human Rights. Philadelphia, PA: University of Pennsylvania Press. Erkkilä, Tero. 2007. Governance and Accountability—A Shift in Conceptualisation. Public Administration Quarterly 31 (1): 1–38. Erkkilä, Tero, and Niilo Kauppi. 2017. From Human Rights to Good Governance and Back: The Institutionalization of the European Ombudsman. In The Challenges of European Governance in the Age of Economic Stagnation, Immigration, and Refugees, ed. Chip Carey, 239–251. Lanham, MD: Lexington Books. Gammeltoft-Hansen, Hans. 2008. The Ombudsman as a Marker of the Limits of Politics. Unpublished conference paper presented in Tallinn, 7 March 2008. Gieryn, Thomas F. 1983. Boundary-Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists. American Sociological Review 48 (6): 781–795. https://doi.org/10.2307/ 2095325. Hobsbawm, Eric. 1987. Introduction: Inventing Traditions. In The Invention of Tradition, ed. Eric Hobsbawm and Terence Ranger, 1–14. Cambridge: Cambridge University Press. Koo, Jeong-Woo, and Francisco O.  Ramirez. 2009. National Incorporation of Global Human Rights: Worldwide Expansion of National Human Rights Institutions, 1966–2004. Social Forces 87 (3): 1321–1353. https://doi.org/ 10.1353/sof.0.0167. Koselleck, Reinhart. 2004. Futures Past: On the Semantics of Historical Time. New York: Columbia University Press. Magnette, Paul. 2003. Between Parliamentary Control and the Rule of Law: The Political Role of the Ombudsman in the European Union. Journal of European Public Policy 10 (5): 677–694. https://doi.org/10.1080/13501760 32000124032.

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Mahoney, James. 2000. Path Dependence in Historical Sociology. Theory and Society 29 (4): 507–548. Mahoney, James, and Kathleen Thelen, eds. 2009. Explaining Institutional Change: Ambiguity, Agency, and Power. 1st ed. Cambridge University Press. Meyer, John W., John Boli, George M. Thomas, and Francisco O. Ramirez. 1997. World Society and the Nation-State. The American Journal of Sociology 103 (1): 144–181. Mulgan, Richard. 2000. ‘Accountability’: An Ever-Expanding Concept? Public Administration 78 (3): 555–573. https://doi.org/10.1111/1467-9299. 00218. O’Hara, Glen. 2011. Parties, People, and Parliament: Britain’s ‘Ombudsman’ and the Politics of the 1960s. Journal of British Studies 50 (3): 690–714. Palonen, Kari. 2003. Four Times of Politics: Policy, Polity, Politicking, and Politicization. Alternatives 28 (2): 171–186. Pegram, Thomas. 2008. Accountability in Hostile Times: The Case of the Peruvian Human Rights Ombudsman 1996–2001. Journal of Latin American Studies 40 (1): 51–82. https://doi.org/10.1017/S0022216X0700363X. Pierson, Paul. 2000. The Limits of Design: Explaining Institutional Origins and Change. Governance 13 (4): 475–499. https://doi.org/10.1111/09521895.00142. Reif, Linda C. 2004. The Ombudsman, Good Governance and the International Human Rights System. Leiden: Martinus Nijhoff Publishers. Risse, Thomas. 2010. A Community of Europeans?: Transnational Identities and Public Spheres. Cornell University Press. Schmidt, Vivien A. 2008. Discursive Institutionalism: The Explanatory Power of Ideas and Discourse. Annual Review of Political Science 11 (1): 303–326. https://doi.org/10.1146/annurev.polisci.11.060606.135342. Skinner, Quentin. 1969. Meaning and Understanding in the History of Ideas. History and Theory 8 (1): 3–53. Thelen, Kathleen. 2004. How Institutions Evolve: The Political Economy of Skills in Germany, Britain, the United States, and Japan. Cambridge: Cambridge University Press.

Index1

A Aalto, Jorma S., 77, 80, 83, 86, 90, 107, 120, 130 Accountability bureaucratic accountability, 12, 212, 214, 215, 217, 218 deliberation, 12, 214 performance, 12, 214 personal accountability, 12, 214, 216 political accountability, 12, 213, 214, 217, 218 professional accountability, 12, 214, 217, 218 public accountability, v, 4, 5, 11–13, 22, 101, 103–107, 131, 152, 153, 161, 166, 176, 178, 209, 210, 214–219, 222, 223 Africa, 25, 29, 33 African Ombudsman and Mediators Association, 34

Almunia, Joaquín, 181 Anglophone, 31, 32, 120, 150, 152, 195, 210, 219 Anti-harassment, 197 Asian Ombudsman Association, 34 Association of Mediterranean Ombudsmen, 34 Association of Ombudsmen of Member Countries of the West African Economic and Monetary Union, 34 Auken, Margarete, 198 Australia, 25, 32, 33 B Barroso, José Manuel, 163, 181 Boundary work, 6, 7, 12, 44, 144, 148, 175, 180 British-Irish Ombudsman Association, 34

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 T. Erkkilä, Ombudsman as a Global Institution, Public Sector Organizations, https://doi.org/10.1007/978-3-030-32675-3

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INDEX

C Canada, 28, 32, 33n4 Committee on Constitutional Affairs (AFCO), 195, 198, 199 Committee on Petitions (PETI), 147, 148, 150, 153, 161–164, 191, 194–199 Communicative discourse, 10, 11, 168 Conflict of interest, 105, 106, 150n1, 160, 181, 184, 196, 197, 200, 217, 219 Coordinative discourse, 10, 11, 149, 168 Corruption, 51, 73, 77, 126 Council of Europe, vi, 5, 13n1, 46, 47, 78, 79, 91, 114, 165 Council of European Union, 148, 179, 196, 212 Crisis, 10, 13, 44, 77, 119, 121, 151, 152, 168, 182, 186, 200 Critical juncture, vi, 10, 68, 79, 91, 121 Cyprus, 194 D Danish model, 28, 31, 32, 129, 144, 167, 198 Deinstitutionalization, 176 Denmark, 25, 125, 146, 198 Diamandouros, Nikiforos, 144, 149, 151, 152, 175n1, 177, 185, 189, 194, 200, 219 Draghi, Mario, 181–183 E Epistemic capital, 8, 48, 68, 113, 120, 212 EU enlargement, 154, 161, 189, 200

European Banking Authority, 178 European Central Bank (ECB), 181–183, 212, 219 European Charter of Fundamental Rights (Charter of Fundamental Rights), 6, 145, 149, 152, 158, 161n8, 168, 177n3, 213 European Chemicals Agency, 178 European Commission, 44, 45, 148, 155–157, 163, 179, 181, 183, 192, 199, 212 European Court of Auditors, 155, 178, 185 European Court of Human Rights (ECHR), 116, 153, 161, 164–166, 165n10, 213 European Court of Justice, 160n7, 196 European External Action Service, 45, 46 European Food Safety Authority, 178 European Instrument for Democracy and Human Rights (EIDHR), 45 European Neighbourhood Policy (ENP), 46 European Network for Ombudsmen (ENO), 46, 127, 128, 191–194, 191n8, 213 European Ombudsman Institute, 34, 127 European Parliament (EPs), vi, 13n1, 45, 46, 144–151, 153, 155, 161–163, 161n8, 179, 181, 185, 187, 189n6, 191, 194–199, 201 EU’s Annual Human Rights and Democracy in the World Report, 44 EU’s Treaty of Lisbon (Lisbon Treaty), 6, 45, 145, 149, 152, 168, 182, 213

 INDEX 

F Finland, 5, 11, 14, 25, 31, 33, 36, 67–91, 97, 112–117, 119, 120, 123, 124, 127–131, 144, 146, 149, 151n2, 155, 166, 211, 215–218, 220, 221 France, 124, 125, 155 Freedom of information, 22, 40, 41, 43 access to information, 41, 107, 146, 150, 159, 217 freedom of information act (FOIA), 29 Freedom of Press Act (1766), 70 Frontex, 117, 128, 193 G Gammeltoft-Hansen, Hans, 12, 44, 112, 146, 147, 176, 184, 198, 222 Gender equality, 197 Germany, 43, 155, 164 Global Alliance of National Human Rights Institutions (GANHRI), 34, 35, 37, 48 Good governance, v, 3, 5–7, 9, 11, 13, 21, 22, 24, 29, 34, 36–41, 43, 44, 47, 48, 52, 71, 74, 83, 84, 86, 91, 130, 143, 144, 146–150, 152, 167, 168, 177, 180, 186, 193, 200, 210–214, 216, 219, 221–223 Greece, 33, 144, 164, 194, 200 Group of 30 (G30), 181, 182 H Hautala report, 45 Hong Kong, 37 Human rights, 3, 21, 35–36, 44–47, 67, 76–85, 97, 143, 191, 210 Hurwitz, Stephan, 31, 31n3, 32, 219

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I Ibero-American Federation of Ombudsmen, 34 Impeachment, 77, 77n7, 107, 217 Information officer, 150, 152, 195, 198, 217 Inquiry own inquiry/own-initiative inquiry, 72n3, 100, 103, 109, 115, 118, 131, 152, 176–186, 213 parallel inquiries, 128, 158, 193 strategic initiative, 150, 160, 167, 176–180, 183, 201, 213, 216 strategic inquiry, 160, 176–180, 183, 189, 196, 197, 200, 219 Inspection, 114–117, 212, 216, 218 Institutional entrepreneur, 177 Institutionalization, 6, 9, 39, 146–150, 168, 188, 213 International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), 34–37, 100 International Ombudsman Institute (IOI), 22, 33, 34, 127 Intra-institutional, 7, 12, 67, 146, 151, 176, 178, 179, 183, 210 Investigation of complaints (case-­ handling), 104, 114, 115, 152, 219 Ireland, 34, 144, 152, 158, 196, 198, 200 J Jääskeläinen, Petri, 121, 130 Jonkka, Jaakko, 77n7, 86, 124 Juhantalo, Kauko, 77, 77n7, 107, 217 Justitieombudsman, 69, 129, 130 K Korte, Kai, 77, 89, 90, 219 Koskinen, Pirkko K., 68, 75, 82, 90, 90n16

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L Latin America, 25, 29, 33 Lehtimaja, Lauri, 79, 82, 85, 89, 89n15, 104, 117, 127, 220 Life beyond legality, 149, 150, 152, 167, 177, 201, 213 Logic of appropriateness, 183 M Maladministration, 28, 47, 144, 145, 147–149, 152, 153, 156, 168, 177, 177n3, 181, 182, 186, 196, 212, 213, 217, 222 Malta, 155, 194 Mediation, 73, 86, 98, 104, 106, 131, 161, 197, 215 N National human rights institution (NHRI), 4, 8, 21–23, 30, 34–36, 46, 48, 51–53, 73, 85, 100, 113, 114, 118, 121, 128, 129, 191, 193, 194, 200, 210–212, 220 National Preventive Mechanism (NPM), 85, 99, 112, 114–117, 121, 166n11, 191, 194, 212, 220 New Zealand, 25, 30, 32, 33, 39 Nikula, Paavo, 86, 86n11, 90, 107 Norway, 25, 32, 125 O OECD, 41 OLAF, 178 Ombudsman for Children, 111, 117 Ombudsman model, 6, 32, 37, 52, 129–131, 149, 210, 212, 217 anti-corruption, 29, 37, 218 auditing, 37 classical (classic), 21, 24, 37, 70, 97, 186, 215

human rights defender, 44–46, 194, 213 hybridization (hybrid, hybridizing), 21, 97, 143 legal overseer, 3, 5, 21, 24, 28, 44, 46, 52, 68–71, 73–76, 83–86, 88, 89, 91, 97–104, 107, 111–113, 116–118, 120–123, 125, 126, 132, 211, 212, 215, 216, 221, 223 mediateur (mediating), 85, 116, 117, 127, 129, 131, 212, 218 O’Reilly, Emily, 144, 150–152, 157, 160, 177, 178, 180, 181, 186, 187, 189, 190, 193, 195, 200, 219 P Paris Principles, 4, 22, 30, 35, 36, 46, 47, 85, 114, 194, 210 Path dependence, 126 Paunio, Riitta-Leena, 82, 83, 89n15, 90, 121 Petitionsausschuss, 164, 191n8 Politicization, v, 4, 13, 76, 90, 107, 112, 119–127, 176, 185, 186, 209, 220–223 Post-communist countries, 29, 41 Pöysti, Tuomas, 78, 90, 104, 111–113, 124, 128 Prodi, Romano, 147–149, 183 Public sphere, v, 6, 10, 75n5, 131, 149, 156, 161, 216 R Russia, 69 S Sakslin, Maija, 90n16 Santer, Jacques, 147, 148

 INDEX 

Selmayr, Martin, 163, 181 Söderman, Jacob, 6, 77, 77n6, 77n7, 79, 80, 89, 107, 114, 117, 130n7, 144, 146–149, 151, 180, 183–185, 187, 189, 191, 194, 200, 219, 220 Spain, 157, 163, 164 Sri Lanka, 31 Sweden, 5, 29, 31, 41, 67, 69–71, 76, 82, 120n4, 122, 123, 125, 129, 130 T Trajectory, 7, 129, 209 Transparency, v, 11, 22, 34, 39–44, 51, 104, 143–149, 159, 159n6, 160, 167, 168, 177, 179, 180, 182–186, 195, 196, 200, 212, 214, 216–219, 222 Turkey, 33, 194 U UN High Commissioner for Human Rights (OHCHR), 46, 166, 194 United Kingdom (UK), 25, 32–34, 43

231

United Nations (UN), 4, 5, 8, 11, 22, 30, 31, 34–36, 44–46, 45n13, 51, 52, 73, 100, 113, 114, 117, 119, 122, 127, 153, 166, 166n11, 167n12, 191, 193, 194, 210–212 United Nation’s Convention Against Torture (UNOPCAT, OPCAT), 100, 114, 115, 122, 127, 166n11, 194 United Nation’s Convention on the Rights of Persons with Disabilities (UNCRPD), 99, 113, 115–117, 121, 122, 127, 212, 220 United States, 28, 32, 33, 33n4, 41 V Venice Commission, 46 Venice principles, 46, 47 W Watchdog, 151, 152, 180, 181, 183, 197, 198, 200, 213 Whistleblowing, 150n1, 197, 199 World Bank, 5, 11, 22, 36–39, 41, 52, 148, 211