Brock: I was well within my rights to launch SDO probe
Ombudsman Arlene Brock has insisted she was entirely within her rights to launch an inquiry into special development orders (SDOs), despite Environment Minister Marc Bean describing her decision to do so as “peculiar”.
And she told
The Royal Gazette it was widely recognised around the world that the power to launch “own motion” investigations was as an indicator of an independent ombudsman.
“When governments are upset, that does generally mean the Ombudsman is doing their job properly,” said Ms Brock.
The Ombudsman tabled a report in Parliament on her probe into SDOs on Friday.
A press release sent out by her office that day said Government “acted unlawfully” by failing to carry out an environmental impact study before the controversial Tucker’s Point SDO went before MPs.
Government must formally respond to the report, Today’s Choices: Tomorrow’s Costs, by May 1.
But Mr Bean issued a statement last Friday which said SDOs were the “purview of Ministers, the Cabinet and the Legislature” and it was “somewhat peculiar, therefore, that an Ombudsman would seek to enter into what is essentially a political process”.
Ms Brock said: “I don’t think I have sought to enter into a political process. I have looked into what the Civil Service does. That’s the law.”
She said her probe focused on the information gathered by civil servants before the Tucker’s Point SDO was tabled in Parliament.
Her conclusion was there was a collective failure on their part to ensure Bermuda met its international legal obligation to carry out an Environmental Impact Assessment (EIA).
The report details how Government challenged Ms Brock’s authority to “investigate the actions of civil servants that are intended to advise the Minister and Cabinet”.
But legal advice she obtained said information-gathering and analysis carried out by civil servants with a view to advising a Cabinet Minister was “not excluded from the Ombudsman’s jurisdiction”.
Ms Brock writes in her report: “An open, cogent EIA process would insulate civil servants from public criticism that they are bureaucratic and are intimidated by Ministers.”
She adds: “Given the nature of hierarchy, it would be all too human if a kind of ‘constructive intimidation’ is sometimes at work a civil servant may refrain from pressing a point that is contrary to what people more senior may appear to prefer.”
Mr Bean’s statement said “numerous assessments” were done prior to the SDO going to Parliament; Ms Brock said they were not given to her.
And the Minister said it was doubtful whether the results of the Ombudsman’s inquiry were “without bias” since it was based upon an ‘own-motion’ rationale, rather than a complaint from a member of the public.
Mr Bean said there were “no guidelines in Bermuda law” regarding such own motion inquiries.
Ms Brock responded: “There are no guidelines in any law for how the own-motion powers should be exercised anywhere in the world because the Ombudsman is supposed to be flexible and supposed to determine the process according to each case and as he or she sees fit.”
She cited the protection afforded her role as independent government watchdog in the Constitution, which states: “The Ombudsman shall not be subject to the direction or control of any other person or authority.”
Ms Brock was elected to the board of directors of the International Ombudsman Institute and is regional vice president for Latin America and the Caribbean.
“One of our tasks on that board is that we review applications for membership,” she said. “[To decide], we look at if it’s a constitutional appointment and we ask: does the Ombudsman have own-motion powers?
“That tells us that the Ombudsman is absolutely independent from political or any other interference. It’s becoming a good, modern tool but is also becoming key proof of independence.”
She has helped Ombudsman Ontario teach a course in other jurisdictions on how to conduct systemic investigations and said: “I think that speaks to a certain amount of respect for my capacity to understand these things.”
Ms Brock said she’d tried to ensure everyone in Bermuda understood her role, including by hosting meetings for overseas ombudsmen on the Island and ensuring the public had the opportunity to speak to them.
“I’m perfectly happy for someone to say to one of our colleagues ‘our Ombudsman doesn’t have a clue what she’s doing’ because I actually do have a clue what I’m doing,” she said.
She added the reason she launched her probe last April should be obvious: the “public furore and the allegations all around and all sides” regarding the Tucker’s Point SDO.
“An Ombudsman is neutral with respect to gathering the information but not neutral in recommending justice and fairness and good governance. That’s our job.”
Useful website: www.ombudsman.bm.