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Ombudsman’s independence

Ombudsman Arlene Brock has every right to launch investigations off her own bat if it is the public interest.

So Environment Minister Marc Bean was wrong to criticise her when he took her to task for her report on Government's Special Development Orders last week.

Indeed, he looked desperate when he questioned her right, and when he suggested she could be biased.

The Minister, and this is a point all politicians should heed, would be better to focus on the merits of the debate and less on the personalities.

Indeed, Ms Brock has shown little sign of bias in her time as Ombudsman and the subjects she has tackled have been varied and that in itself suggests she does not carry a bias.

That she is not universally popular is neither here nor there; if she was, it would suggest she was not doing her job. It is a job where you make more enemies than friends.

Still, when an Ombudsman and other independent officials like the Auditor do decide to do a report on a subject of their own volition, it should be a serious matter.

Few would disagree that SDOs are a serious matter. Their widespread use in previous administrations led to the fear they were being abused.

The challenge, as has been pointed out in a letter today, is that the Ombudsman is not supposed to delve into areas of Ministerial discretion.

But Ms Brock is right to note that even though Bermuda's planning rules do give Ministers wide discretion on both SDOs and planning appeals, Bermuda is also bound to the UK Environment Charter.

The Charter requires that an Environmental Impact Assessment be carried out when considering a major development, and there are also legal precedents for this.

There is an argument that Ms Brock should not be criticising civil servants for failing to ensure their Ministers were fully informed prior to making the decision,

Given the autonomy that Ministers had over SDOs, that may seem unfair. But in fact it gives civil servants a greater ability to carry out their responsibilities as independent and unbiased advisers, because they can now point not only to the need for EIAs under binding commitments made by the Bermuda Government, but also to the spectre of further criticism by the Ombudsman, a worrying thing for any politician.

In fact, SDOs are no longer able to be granted by the Minister alone acting at his or her discretion. They must now be approved by the House of Assembly, which is a welcome development.

But Ms Brock is right to say that this adds to the pressure on civil servants to ensure that legislators are fully informed before making a vote.

That Parliament must now approve the SDO is welcome, but in the House, such a decision will be a foregone conclusion if the governing party exercises the whip, as would be expected. On that basis the need for all MPs to be fully informed is even greater.

Ms Brock has done Bermuda a service by intervening in this case. Not only has she pointed out an omission in the Tucker's Point SDO, but she has laid down a marker for the future.

It is not entirely clear what Ms Brock's report means for the Tucker's Point SDO. While she has stated she believes it was granted unlawfully and explained why, her report does not carry the force of law.

But it is open for concerned citizens to now challenge the decision in court. Given Tucker's Point's apparently parlous financial statute, that's a risk in these recessionary times, but as a matter of principle, it would be worth seeing this point established in law.

Arlene Brock

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Published February 20, 2012 at 7:00 am (Updated February 19, 2012 at 5:05 pm)

Ombudsman’s independence

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