The Ombudsman has highlighted lobbying and the privatisation of essential services, especially in the health and energy sectors, as areas of concern that could negatively affect good governance.

The Annual Ombudsman Report for 2016, which was tabled in Parliament this week, says that these essential services, which were previously delivered by the government, “are now being wholly or partially privatised and are being made available by the private sector through companies in which the government has no controlling interest.”

This means, that the jurisdiction of the Ombudsman in these areas “was being significantly eroded”.

This, the Ombudsman believes, will infringe the right of aggrieved persons to have access to his office.

“The Ombudsman and the Commissioners would no longer be in a position to investigate complaints against the service provider even when these concern the quality of a service that the private company bound itself contractually to provide to government.”

In the health sector, the report says both patients and government employees are “already experiencing a marked diminution of their right of access to the Commissioner for Health and the Ombudsman”

Gozo General Hospital

The report claims that there is even greater concern in the case of the privatization of the Gozo General Hospital, since it means that the whole population of the island is “being practically excluded from direct access to the Commissioner of Health when being treated in the now privately owned general hospital.” This, the Ombudsman says, is an “unacceptable situation that improperly discriminates against a section of the population.”

The Ombudsman recalled that the Commissioner for Health, who had expressed an inability to conduct his own initiative investigations, had sought assurances from the Ministry for Health that public private partnerships for the provision of essential health services would not prejudice the right of patients and employees within the public health care sector; and that the private sector provider have recourse to the Commissioner and the Office of the Ombudsman.

"Little progress was registered on this delicate issue till the end of the year under review."

The Ministry insisted that the contracts and agreements entered into with the private service provider would continue to adequately protect all concerned. 

These developments, in the Ombudsman’s opinion, required attention. He called on Parliament to examine whether he should have a role in the defence of citizens’ rights and correct practices in the management of essential services when delivered to the public by the private sector.

The report says that, in this case, the powers granted to the Ombudsman should be limited only to the provision of the essential service to patients and “would in no way impinge on other activities of a purely commercial nature of the private companies providing the service."

In this context the Ombudsman recommended further reflection on whether there was a need to amend the Ombudsman Act to ensure that citizens were protected by his Office over the delivery of essential services that the State was bound to guarantee.

The Ombudsman and the Commissioner for Health submitted amendments to the Ombudsman Act for the consideration of Government.

Good Governance & Lobbying

The report states that the Ombudsman’s Office was set up specifically to attempt to eradicate a system of political patronage and clientelism that undermines good governance.

However, “in a small, tightly knit society it is not easy to achieve this aim since it takes time to eradicate a culture that seeking favours rather than rights is more effective”

In this respect, the report reads: “the political will to strengthen institutions like the Ombudsman becomes paramount.”

It is also for this reason that the Office of the Ombudsman seeks to instill in the conscience of society that it is not only an alternative means of resolution of disputes between the citizen and public authority but also that it is in a position to act as an honest broker between them.

To ensure good governance, the ombudsman calls for the introduction legislation which will regulate lobbying and how this relates to the right of individuals to receive correct and timely information on the activities of the public administration. 

“Transparency and accountability can only be guaranteed if the public administration performs its duty to provide the public with correct and timely information in order for them to assess and judge the correctness of its actions.”

While the report does acknowledge that lobbying which is open and transparent can be a positive process aimed to influence the government’s decisions, it also warns that when this is not the case it can “give rise to deceit and corruption.”

Following the European Network of Obudsman Conference in Brussels, which specifically discussed the link between lobbying, transparency, and corruption, those in attendance (including the Maltese Ombudsman) reached a consensus on which measures should be employed to ensure open and transparent lobbying which were:

1-The setting up of a Register of Lobbying that would be accessible to the public

2-A Commission be set up to oversee the Standards of Public officers and regulate lobbying

3-That lobbyists are bound to register and to provide regular information on their activities on how, when and with whom they exercise their activities;

4-A code of conduct for lobbyists

"These measures should be binding and affect those who lobby and those who are involved in it."

This code of ethics had, among other things, to ensure that legislators and other public officers would not involve themselves in lobbying for a number of years after they have completed their term of office.

The report did praise the Government for already expressing the view that there should be register of lobbyists that would identify who they were and what were the objectives of their lobbying.