The Classical Model Spreads: Denmark and New Zealand
Chapter Three
Syllabus topic 1, "Ombudsman"
Pages 10 to 13 of 1033
In one line
Denmark took the Swedish office in 1955 and changed it into something a modern State could use; New Zealand took the Danish version in 1962 and became the first common law country to have an ombudsman, which is how the institution reached India.
In the wording a student can write in an exam: the modern spread of the institution begins with the Danish Ombudsman established under the Constitution of 1953 and the Ombudsman Act of 1954, who took office in 1955 and, unlike his Swedish counterpart, had jurisdiction over the administration only and worked by recommendation and publicity rather than by prosecution; the New Zealand Parliamentary Commissioner (Ombudsman) Act 1962 adopted that model for a Westminster system and made it the pattern that Britain, and through Britain India, considered.
Why Denmark matters more than the dates suggest
The Swedish office was 146 years old and had been copied once. The Danish office was copied within a decade by New Zealand, Norway, Britain, Guyana, Mauritius, Canada's provinces and, in draft, by India. Something in the Danish version travelled where the Swedish one had not.
Three changes account for it, and a student who can name them has the analytical half of an evolution question already written.
The Dane dropped jurisdiction over the courts. Stephan Hurwitz, the first Danish Ombudsman, supervised the administration and not the judiciary. That single change made the office acceptable in countries with an independent judiciary and a strong tradition of judicial separateness, which is every common law country and, later, India.
The Dane worked by recommendation, not prosecution. His weapons were the report, the recommendation and the publicity that followed. This looks like a weakening and it was in fact what made the office spread: a body that recommends threatens nobody's jurisdiction, so no minister and no judge had a reason to resist it.
The Dane was a lawyer with a public voice. Hurwitz was a professor of criminal law who made the office visible, wrote about it and travelled to explain it. The institution spread partly because he sold it, which is a fact about history rather than about law but is worth a sentence in an answer.
The Danish office in detail
Constitutional footing. Section 55 of the Danish Constitution of 1953 provides for the Folketing to appoint one or two persons to supervise the civil and military administration of the State. The Ombudsman Act followed in 1954, and Hurwitz took office on 1 April 1955.
Appointment and tenure. Appointed by the Folketing after each general election, and removable by it if he loses its confidence. The office is therefore parliamentary in the strict sense.
Jurisdiction. The civil and military administration of the State. Ministers are included. The courts are excluded. Local government was originally excluded and was brought in later.
The Classical Model Spreads: Denmark and New Zealand
Powers. To call for documents, to require explanations, to inspect institutions, to investigate on his own initiative, and to report.
Outcome. A recommendation, a criticism, a report to the Folketing, and in a proper case a recommendation that legal aid be granted so the citizen can litigate.
Access. Direct. A citizen writes to the Ombudsman without a lawyer and without a filter, which is a difference from the British model that the next chapter turns on.
New Zealand: the model crosses into the common law
New Zealand passed the Parliamentary Commissioner (Ombudsman) Act 1962 and Sir Guy Powles became the first Ombudsman outside Scandinavia in the common law world. The Act was consolidated in the Ombudsmen Act 1975.
The significance for this paper is not the New Zealand statute's detail but the fact that it was possible at all. Until 1962 the standard objection in Westminster systems was that an ombudsman would cut across ministerial responsibility to Parliament: if a Minister answers to the House for his department, an officer who investigates the department displaces the House.
New Zealand's answer became the standard one and it is worth learning. The ombudsman does not replace ministerial responsibility; he supplies Parliament with the facts on which ministerial responsibility can actually be enforced. A member of Parliament who receives a constituent's complaint has no power to see the file. The ombudsman has, and reports what he finds to Parliament. The control is strengthened, not bypassed.
Two features New Zealand added that matter for the Indian story. The jurisdiction was drawn to cover departments and specified organisations listed in a schedule, so that the reach of the office is a matter of statutory listing rather than of general words. And the Ombudsman was given the power to investigate a decision, recommendation, act or omission relating to a matter of administration and affecting a person in his personal capacity.
The classical model, stated as a definition
By the middle of the 1960s a recognisable type had formed, and the literature calls it the classical or parliamentary ombudsman. Its features are the ones the First Administrative Reforms Commission had before it when it reported in 1966.
Constituted by statute or by the constitution, and not by an executive order.
Appointed by the legislature or on its advice, for a fixed term, removable only for cause.
Independent in salary, tenure and staff.
Jurisdiction over the administration, usually not over the judiciary and often not over the legislature.
Access by direct complaint from an aggrieved person, free of cost, plus a power to act on his own motion.
The Classical Model Spreads: Denmark and New Zealand
Investigative powers to call for files and examine officials.
No power to quash or to substitute a decision. The output is a report and a recommendation.
Publicity as the sanction, through an annual report to the legislature.
A worked example
A Danish citizen, Mr Jensen, is refused a building permit in 1958. The refusal is lawful. But the file shows that the officer never told Mr Jensen what objection he had to meet, decided on a ground raised by a neighbour that Mr Jensen was never shown, and took eleven months.
What Mr Jensen writes. A letter to the Ombudsman. No lawyer, no fee, no form.
What the Ombudsman does. He calls for the file. He asks the municipality to comment. He finds that the decision was within power and that the procedure was defective, because a man is entitled to know the case against him.
What the Ombudsman cannot do. He cannot grant the permit, cannot set the refusal aside, and cannot award Mr Jensen a rupee. This is the classical model's central limitation and it is deliberate.
What he does instead. He states his criticism, recommends that the decision be reconsidered on a proper procedure, and records the case in his annual report.
And the practical result. In the great majority of cases the department accepts the recommendation, because a department that refuses one is answering to Parliament for the refusal. That is what is meant by saying the sanction is publicity.
Distinctions worth keeping straight
| Sweden, 1809 | Denmark, 1955 | New Zealand, 1962 | |
|---|---|---|---|
| Appointed by | Riksdag | Folketing | Parliament, on the House's recommendation |
| Courts within jurisdiction | Yes | No | No |
| Main weapon | Prosecution and report | Recommendation and report | Recommendation and report |
| Access | Direct | Direct | Direct |
| Legal system | Civil law | Civil law | Common law |
| Significance for India | The founding idea | The workable modern form | Proof it fits a Westminster system |
What this does NOT mean
It does not mean the classical ombudsman is weak. A body whose recommendations are accepted in the great majority of cases is not weak; it is differently powerful. The Indian argument that an ombudsman needs prosecution powers is an argument about Indian conditions, not a criticism of the model in general.
It does not mean India followed New Zealand. India considered the Danish and New Zealand models, took the two-tier idea from nowhere in particular, and ended in 2013 with a body far more criminal in character than either. The evolution is a line of influence, not a line of descent.
And it does not mean the classical model has no Indian counterpart. The Lokayukta Acts of the States are much closer to the classical model than the Lokpal Act is, because most of them cover grievances as well as allegations and most of them work by recommendation.
The Classical Model Spreads: Denmark and New Zealand
Quick revision
Denmark: Constitution of 1953, section 55; Ombudsman Act 1954; Stephan Hurwitz takes office 1955. Jurisdiction over the administration, not the courts. Works by recommendation and publicity.
Three Danish changes that made the institution travel: no jurisdiction over judges; recommendation instead of prosecution; and an office that explained itself.
New Zealand: Parliamentary Commissioner (Ombudsman) Act 1962, Sir Guy Powles, the first in the common law world; consolidated in the Ombudsmen Act 1975.
The New Zealand answer to the ministerial responsibility objection: the ombudsman does not displace responsibility to Parliament, he supplies the facts that make it enforceable.
The classical model: statutory, appointed by the legislature, independent, jurisdiction over the administration, free direct access, investigative powers, no power to quash, publicity as the sanction.
Test yourself
1. Name three changes Denmark made to the Swedish model and explain why each mattered. Jurisdiction over the courts was dropped, which made the office acceptable where the judiciary is independent; prosecution was replaced by recommendation and publicity, which meant the office threatened no existing jurisdiction and so met little resistance; and the office was made visible and explained publicly, which is why other countries came to look at it.
2. Why is 1962 a more important date than 1955 for a student of Indian law? Because New Zealand's Act showed that the institution could work inside a Westminster system with ministerial responsibility to Parliament, which was the standing objection in every common law country including India. Once that objection was answered, Britain legislated in 1967 and the Indian Administrative Reforms Commission recommended a Lokpal in 1966.
3. State the standard answer to the objection that an ombudsman cuts across ministerial responsibility. The ombudsman does not replace the responsibility of a Minister to the House. He supplies the House with facts it cannot otherwise obtain, because a member has no power to call for a departmental file and the ombudsman has. Ministerial responsibility is thereby made enforceable rather than displaced.
4. List the features of the classical parliamentary ombudsman. Created by statute or constitution; appointed by or on the advice of the legislature for a fixed term and removable only for cause; independent in salary, tenure and staff; jurisdiction over the administration and usually not over the judiciary; free and direct access for a complainant with a power to act suo motu; power to call for files and examine officials; no power to quash or substitute a decision; and publicity through an annual report to the legislature as the operative sanction.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.