Tynwald Commissioner for Administration
Who is the Tynwald Ombudsman?
The formal title of the Tynwald Ombudsman is the Tynwald Commissioner for Administration, who is appointed by Tynwald under the Tynwald Commissioner for Administration Act 2011.
Malachy Cornwell-Kelly was appointed to the office by Tynwald in November 2017. Malachy is a former Clerk of Tynwald and in his earlier career spent five years as a Director of Investigations for the Parliamentary Commissioner for Administration at Westminster; his last job was as a tax appeal judge in London, before retiring in 2016.
What does the Tynwald Commissioner do?
The Commissioner’s function is to investigate complaints from members of the public who claim to have sustained injustice or hardship as a result of service failures by, or the administrative actions of, the Government Departments (including action taken on their behalf).
The 2011 Act and the Appointed Day Order made in June 2017 lay down what Tynwald has decided that the Commissioner can do and what the powers and duties of the office are. The Commissioner must operate within this framework. What follows is a general explanation of how the 2011 Act works; it is not intended to be definitive or exhaustive, and reference must always be made to the legislation itself.
Who can make a complaint?
A complainant must normally be someone who is resident in the Isle of Man. Under the Appointed Day Order, matters are only eligible for possible investigation if they relate to complaints to the Commissioner the basis for which has arisen on or after 31 December 2017 (see below).
There is no prescribed form for complaints to the Commissioner, but the complaint must be made in writing by an identifiable person, or body of persons, or be made by a person authorised in writing by the complainant(s) to make the complaint. Anonymous complaints will not be accepted.
What is the procedure?
Any complaint must first be made in writing to the Department concerned and they must be given an opportunity to take what they consider to be all reasonable steps to deal with the complaint; if the complainant remains dissatisfied, she or he may then complain to the Commissioner within six months of the Department’s final decision.
The complainant may choose to request the Department to conduct an investigation into the matter complained of and report their conclusions within 28 days (or up to three months if the Commissioner agrees). If they don’t do so, or if the investigation is not considered by the Commissioner to be a “proper” investigation, the complainant may complain to the Commissioner within six months of the Department’s final decision.
The fact of a complaint being accepted for investigation does not necessarily mean that fault will be found with the actions of a Department; the Commissioner may conclude that the Department has not been at fault, or that the complainant has not suffered injustice or hardship.
What can the Commissioner not investigate?
There are certain things which the Act inhibits the Commissioner from investigating.
Police investigations or public security matters generally.
An investigation by a specially authorised investigator.
An issue already being investigated by a committee of Tynwald.
The taking or pursuing of proceedings before a court or tribunal.
Action in the court or tribunal administrations by a person acting under judicial authority.
Actions taken under the Criminal Injuries Compensation Scheme.
Personnel matters generally.
Teaching and related matters in schools.
Contractual or commercial issues, except those relating to the compulsory acquisition of land, or where the procedures prescribed in law have not been complied with.
Issues where there is by law a right of review or appeal such as to a tribunal or adjudicator, or a right to take proceedings in court, unless in any case the Commissioner considers it unreasonable to expect such a right to be exercised.
The Commissioner cannot look at proceedings of the Council of Ministers or its committees, or have access to documents in the custody of a Member or officer of Tynwald, the House of Keys or the Legislative Council.
How does an investigation take place?
All investigations must be in private and the procedure is, broadly, within the Commissioner’s discretion and will fit the needs of the case: face to face interviews may take place, site visits may be required or matters may be dealt with in writing.
The complainant will be kept informed about the progress of the investigation. Both the Department being investigated and the complainant will be given an opportunity to comment on the Commissioner’s proposed findings of fact.
The Commissioner is empowered to require the production of documents and the attendance of witnesses to the same extent as the High Court. There are strict provisions about the disclosure of confidential information, especially that relating to a person’s tax or customs affairs.
Does an investigation stop the contested decision going ahead?
Not automatically, but the Commissioner may request the Department to put it on hold if satisfied that the decision is likely to cause serious harm to the complainant. The Department then has a discretion whether or not to do so.
What happens if hardship or injustice to the complainant is found by the Commissioner?
After the full facts of the case have been established, the Commissioner will consider whether any remedy for hardship or injustice is appropriate if there has been a service failure or maladministration. The Commissioner will, after discussion with the Department, recommend whatever remedy the Commissioner considers is called for.
Has the Commissioner got power to enforce the remedy recommended?
No. But, in parliamentary ombudsman jurisdictions throughout the British Isles, it is rare for an investigated authority to refuse to accept such a recommendation. If a Department does refuse, then it is a matter for Tynwald to decide whether or not to take the case further.
What happens after the investigation?
The Commissioner’s report is finalised and anonymised, so that it discloses neither the identity of the complainant nor that of any official involved in the case. It is then sent to the complainant, the Department and the Council of Ministers, and it is laid before Tynwald and made available publicly.
What if the Commissioner refuses to investigate a complaint?
The Act of Tynwald prescribes that accepting a complaint for investigation, refusing to investigate it or deciding to discontinue an investigation, is a matter for the Commissioner’s discretion. In the case of a refusal to investigate or a decision to discontinue an investigation, the Commissioner will give reasons. An anonymised summary of such cases, and of the reasons given, will be laid before Tynwald.
How do I contact the Commissioner?
Complaints have to be in writing, so you should use either of these methods to make contact:-
By email email@example.com
By post PO Box 2, Port Erin, Isle of Man IM99 8JQ