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Ombudsman welcomes court's ruling

Ombudsman Arlene Brock

Ombudsman Arlene Brock has welcomed a landmark court ruling backing her right to hold Government to account.Puisne Judge Ian Kawaley's decision yesterday in favour of veterinarian Susann Smith also gave his backing to the way the Ombudsman handled Dr Smith's case. Ms Brock has jurisdiction under the Ombudsman Act 2004 to investigate complaints of maladministration and recommend that offending public authorities reconsider inappropriate decisions.When Dr Smith complained that her complaint to the Human Rights Commission had been mishandled, Ms Brock recommended the HRC re-open it.The HRC agreed to do so, but Acting Minister of Cultural Affairs Michael Scott said it had no power to reopen a closed case, even if the Ombudsman had recommended it.Yesterday, Mr Justice Kawaley said that was wrong in law.“The Act must be construed as empowering the HRC to reconsider complaints which it has previously dismissed, especially where it appears that the original decision was invalid,” he said in a written judgment.“This principle, which has never before been considered as a matter of Bermudian law, is of general application and is likely to apply to administrative decisions made by public authorities generally.”The issue came to light when Ms Brock heard of Dr Smith's case by chance, and intervened to protect her own powers as an independent watchdog.The judge said: “The court is indebted to the Ombudsman and her counsel [Narinder Hargun] for the light they have shed on an important area of public law.”Responding to the ruling, Ms Brock told The Royal Gazette: “I was concerned to protect the authority of our office to make recommendations as we see fit.“It is an impeccably thought through and brilliant judgment and I think it puts to bed questions about whether or not the Ombudsman can recommend that a Government department or board reverse a decision.”She added: “I think it might be the first case in Bermuda, so it may be a pretty important case in other parts of the world.”