Mikko Puumalainen: Re-evaluation of inspection practices

30.5.2018

(The commentary was published in the annual report 2017)

The commentaries included in the annual reports of the Chancellor of Justice often discuss the results or findings of the previous year or examine the nature and impact of the supervision of legality from different perspectives. As every year is different, these analyses also vary. Some themes appear to recur: almost every year, including 2017, has seen an increase in the number of complaints filed with the Chancellor of Justice. Last year was similar to many previous ones: a new record high was reached with 2,346 complaints. The number of complaints increased by 359 on the previous year.

However, there are also some notable differences. For several years, statistics have persistently featured certain individual cases that have been going on for a long time, but the situation had happily changed by the end of last year. Despite the high number of complaints, the Office of the Chancellor of Justice had no complaints that were more than a year old at the end of the year. The average processing time of complaints also decreased compared to the previous year, amounting to 8.7 weeks. Another piece of good news was the fact that the high number of complaints did not result in a backlog. In fact, slightly more complaints were resolved than were received: a total of 2,381.

Another significant difference compared to previous years was the fact that the Deputy Chancellor of Justice has not carried out many inspections in recent years. (See endnote 1) To illustrate the point, I carried out 25 inspections when I was Deputy Chancellor of Justice in 2013. So what is my plan for the year 2018? Are inspections a good way to get results from the perspective of the supervision of legality?

Finding the answer requires an analysis of the objectives of the supervision of legality and the effectiveness of different methods, their relationships and the impact of the supervision of legality on the whole.

In short, the supervision of legality can be said to have three kinds of objectives. Firstly, it can be corrective, if the actions of the guardians of the law are capable of rectifying a violation of the law or good governance. Secondly, the supervision of legality can be instructive and preventive, if a more comprehensive, recapitulative and knowledgeable initiative for a lawful procedure or good governance improves the status quo. An opinion expressed in connection with an individual case can also get wider support and visibility if it can be extrapolated to other situations.  The work of the guardians of the law also serves to increase awareness of the existence of supervision and can also act as a kind of deterrent for the authorities. Thirdly, the supervision of legality can increase the public’s trust in the Government and the legal system in general, as only credibly overseen governance can genuinely inspire confidence.

In order to ensure the rule of law and protect human rights and fundamental freedoms as well as to achieve the aforementioned objectives, the guardians of the law investigate complaints, carry out inspections on the authorities and government agencies and conduct studies and investigations out of their own initiative. The supreme guardians of the law also have the right to bring charges for certain offences in office. In addition to the above , the Chancellor of Justice supervises the courts by reviewing sentences passed by them.

Most complaints are filed with the expectation that the guardians of the law will eradicate or alter a situation that the complainant perceives to be contrary to the law. The number of complaints is also a measure of the trust that the public have in the guardians of the law and the legal system. At the same time, complaints help the Chancellor of Justice to perform his supervisory duties. Every complaint is also a test: the reason citizens file complaints is that they trust the guardians of the law to rectify a perceived wrong. And sometimes they do. A decision taken on a complaint or even just an investigation by the guardians of the law can help the complainant to get the documents they want or the administrative ruling that they have been waiting for. In the case of complaints that criticise pending administrative rulings or court judgments, for example, citizens’ expectations are often unrealistic: some think that the guardians of the law have the power to give orders to other authorities or to overrule the courts.

All complaints nevertheless give the guardians of the law information about the actions of the authorities, the effectiveness of regulation and potential problems. However, it is important to keep in mind that the information that becomes available in this manner is not comprehensive. Complaint investigations alone have limited effectiveness as a means of supervision. They depend on the activeness of complainants, and the legal circumstances are usually limited to an individual case. The guardians of the law naturally have the right to investigate cases beyond the facts reported by complainants, and they can choose to answer questions in a manner that can be applied more generally. However, focusing on complaints and resolving individual complainants’ cases does not guarantee efficient supervision of legality.

The objectives cannot be achieved without taking the initiative and being proactive, and inspections are a key way to do just that. They are a means of seeking wider social impacts for the supervision of legality. Inspections are an important source of information, and they provide a better opportunity than complaints to examine the national cohesiveness of official practices and to intervene in legislative weaknesses and systemic procedural errors. Inspections also sometimes provide a direct resolution to a problem. Experience has taught us, for example, that asking government agencies to provide statistics on their work ahead of an inspection tends to motivate them to resolve any cases that they have been mulling over for an unnecessarily long time.

Inspections also give the authorities an opportunity to express their views. Anssi Keinänen and Kalle Määttä have studied the authorities’ views on the usefulness of inspections. (See endnote 2) Almost 87% of the surveyed authorities considered inspections important. The respondents identified the feedback that inspections give them on their own work as one of the most important objectives of inspections: “Inspections help organisations to maintain transparency from the perspective of the fair application of the law and equal treatment. They give organisations up-to-date information on the evolution of the laws that affect them. Discussions with inspectors are educational and can help to steer organisations’ work.” Many respondents concluded that inspections carried out by an independent party are crucial for maintaining the credibility and trust enjoyed by public authorities.

In other words, inspections are not only important from the perspective of the guardians of the law but also from the perspective of the authorities that they supervise. They provide an opportunity not just for guidance but also for interaction, mutual learning and dialogue. Inspections also have a preventive effect. It is naturally important to avoid overlaps with the authorities’ own controls and to focus on the core function of the supreme guardians of the law, which includes oversight of the Government’s internal audits.

However, what really matters is the mutually complementary nature of the various actions of the guardians of the law: complaints, inspections and initiatives are not independent entities but form a system of supervision where the different elements support each other. The best way to evaluate the legality of the authorities’ actions is to combine different means flexibly and comprehensively. This also allows for different perspectives to be taken into account: decisions on complaints are inherently retrospective and focus on events in the past. Inspections provide an opportunity to carry out a more flexible examination of the structure of contentious procedures, horizontal issues affecting an entire government department, organisational culture and the background of events. Both complaints and inspections can give the guardians of the law ideas for their own initiatives. These provide an opportunity to look into the future and bring about tangible changes. Initiatives are based on informed, well-rounded and pragmatic evaluations of the impacts of legislative or governmental reforms on, for example, the rule of law, human rights and fundamental freedoms.

The Chancellor of Justice has a special advantage when it comes to influencing the legislative process. The role that the Chancellor of Justice has in supervising the legality of the Government’s acts in office imposes on him a constitutional obligation to attend the Government’s plenary sessions and participate in governmental meetings as well as to review the Government’s presentation agendas and express his opinions on any legal issues involved. The Constitution also obligates the Chancellor of Justice to provide the President, the Government and the Ministries with information and opinions on legal issues upon request. 

The strengths of the Chancellor of Justice in supervising the legality of the Government’s actions are effectiveness and timeliness as well as the possibility of proactiveness. The Chancellor of Justice has a long history of proactively ensuring the legality of new statutes by reviewing the Government’s and the President’s presentation agendas. As the Chancellor of Justice states in his commentary for this annual report, the aim at the moment is to increase the supervision of the legality of the Government’s actions by means of more systematic and proactive preliminary reviews of new statutes and government proposals in particular.

Preliminary reviews also have an impact on the supervision of governance and especially inspections. They allow the supervision of governance and the Government to be tied more closely together. This is another way to increase the cohesiveness of the supervision of legality carried out by the Chancellor of Justice. Reviewing government proposals allows the Chancellor of Justice to identify issues that are important from the perspective of human rights, fundamental freedoms and the rule of law and use this information to choose themes for inspections, while new knowledge and experiences of the effectiveness of reforms learnt from inspections can be useful in the supervision of the Government.

The question of whether the supervision of legality is effective, i.e. whether the objectives are being met, is difficult to answer, as it would require the ability to measure results objectively and comprehensively. The very existence of the institution, the decisions of the guardians of the law in individual cases, their suggestions and opinions, inspections, initiatives, publications and communications all contribute to effectiveness, and it is difficult to discern the impact of an individual element. The combined impact is the sum of many parts. (See endnote 3)

The Chancellor of Justice has a unique constitutional role, an established status as a guardian of the law and extensive powers. These allow him to defend the rule of law and democracy and thereby add value to society. Thanks to his broad mandate, the Chancellor of Justice always has a comprehensive picture of the status of human rights, fundamental freedoms and governance as well as citizens as the customers of the Government and is able to use this information in his work. The Chancellor of Justice uses the supervision of legality as a means of identifying wider contexts and reacting before mistakes in the legislative process, for example, become problems for citizens and the authorities. The Chancellor of Justice intervenes in any potential problems promptly and systematically. This allows him to reinforce the status of fundamental rights and the Constitution and promote good governance.

Inspections in 2018

Inspections will recommence in 2018. Inspections are one of the ways to supervise the legality of the actions of the courts and other authorities as well as other persons and bodies with public duties.  The aim of inspections is to collect information on, for example, compliance with the law, administrative reforms, the organisational cultures of public authorities and the impact of the work of the guardians of the law. Inspections also support the wide range of other means of supervising legality, which together allow the guardians of the law to address broader themes and phenomena relating to the state sector.

The link between inspections and the other duties of the Chancellor of Justice is demonstrated by Section 4(2) of the Act on the Chancellor of Justice, which imposes on the Chancellor of Justice a duty to respond to complaints by taking any actions that he deems necessary in order to ensure regulatory compliance, the rule of law and the protection of human rights and fundamental freedoms. These same principles also apply to inspections.

Inspections are planned and the organisations to be inspected chosen in advance in order to increase the impact of the inspections and their coordination with other legality controls. The organisations to be inspected are chosen on the basis of one or more of the following factors:

- Scope: Inspections can focus on a specific administrative phenomenon, a single government department or both at the same time. The theme can be horizontal, such as the processing times of different units within a single government department, or vertical, such as the status of local, regional and central units of one government department.

- Timing: Inspections can focus on a specific time and therefore constitute a one-off control or intervention. However, the Chancellor of Justice does not, as a rule, carry out inspections without advance notice. On the other hand, the Chancellor of Justice can choose to focus inspections on the emergence of a significant phenomenon and its development over a longer period of time.

- Vulnerable customer groups: The organisations to be inspected can be chosen on the basis of the vulnerability of their customers, such as elderly people who require care, customers of child welfare services or undocumented migrants, as this also affects the special characteristics of the authorities that serve these customer groups and the risks involved in their work.

- Ties to the supervision of the Government: One of the ways in which the Chancellor of Justice ensures that his inspections are proactive and address structural phenomena is to choose organisations to be inspected on the basis of themes that have been identified as important in connection with preliminary reviews of the Government’s work and apply the lessons learnt from the reviews to inspections.

- Previous policies of the supreme guardians of the law: Organisations can be chosen to be inspected and the inspections planned on the basis of previous policies, such as opinions, outcomes of complaints and initiatives.

The aim is to increase the effectiveness of inspections by combining themes into wider concepts based on the aforementioned criteria. Not only will the Deputy Chancellor of Justice carry out more inspections, but presenting officials will also be given a bigger role by increasing the number of inspections carried out exclusively by them. Inspections carried out by presenting officials will be coordinated with the inspections carried out by the Deputy Chancellor of Justice. Presenting officials will also be responsible for choosing themes for the Deputy Chancellor of Justice’s inspections, for following up on the inspections and for analysing problems, but the Deputy Chancellor of Justice will still have the final say. The possibility of using videoconferencing technology to improve efficiency and reduce environmental impacts is being investigated. Some themes of inspections have a strong international or European dimension, in which case the practices, findings and know-how of international colleagues and research organisations can also be consulted. If an inspection warrants further action, such action will be taken in the form of a separate initiative.

The Chancellor of Justice intends to make more extensive use of various media to communicate information about inspections and their outcomes in a more transparent manner where possible.


Endnotes:

1. According to the commentary written by Deputy Chancellor of Justice and Chancellor of Justice Risto Hiekkataipale for the 2016 annual report, this was a conscious choice.

2. Anssi Keinänen and Kalle Määttä: Views on the effectiveness of the Ombudsman institution, 2007, p. 139

3. Riitta-Leena Paunio: Foreword, p. 5; Keinänen and Määttä, 2007

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