One of the central tenets of the office of an ombudsman is that of neutrality. This is emphasised in the International Ombudsman Association Code of Ethics which says
“Neutrality and Impartiality
The Ombudsman, as a designated neutral, remains unaligned and impartial. The Ombudsman does not engage in any situation which could create a conflict of interest.”
See http://www.ombudsassociation.org/about-us/code-ethics
The importance of this neutrality is that when a complainant comes to the ombudsman with an issue, the ombudsman cannot forming any opinion until the investigation is completed. In my view it goes further. There must be particular care in an investigation, when information is sought from affected parties, that the questioning does not disclose any particular bias and that the questions are purely a fact or opinion seeking exercise.The requirement for neutrality however, extends beyond the investigations. There is no doubt that as the result of an investigation that an ombudsman may from time to time deliver a strong view about conduct which they regard as unacceptable. That is of course a most important part of the role of an ombudsman.
So the complainants must have confidence in the office of the ombudsman in that they must not be deterred by any views expressed by the ombudsman in other forums. This effectively means that an ombudsman should be very careful not to publicly disclose any particular political preference or views about issues which are likely to come into the office, such as gender or race or sexual orientation. An ombudsman is of course a human being, and may hold political views. But it would be difficult if those views were to be advocated in any official or semi official role.The issue of bias in the context of judicial decision-making has attracted considerable attention in many courts. The English decision of In re Pinochet, [1999] UKHL 1; [2000] 1 AC 119; [1999] 1 All ER 577; [1999] 2 WLR 272 (15th January, 1999) says in ringing terms
“The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.”
It is the second part of this test which is important to the office of an ombudsman. While the first test of course still applies, conduct of an ombudsman which gives rise to a suspicion that they are not impartial may compromise the decision. But an ombudsman seldom delivers a binding decision in any event, and in many instances will not have the power to impose a binding decision. The recommendation or report will often simply have moral authority behind it, and the requirement of neutrality is integral to the necessary moral authority.If the ombudsman is the conscience of an organisation, then they must be seen to maintain no preconceived bias.
So in my view it would be wrong for an ombudsman to make a public statement for or against government policy. This was seen in a dramatic fashion in Australia where the Federal Ombudsman was obliged to resign following his admission that he scripted questions for Australian Greens to ask at a parliamentary inquiry in May. The link to this is at
http://www.theage.com.au/national/embattled-ombudsman-allan-asher-resigns-20111020-1m9hf.html#ixzz25ez8tlpB
In that example, the issue was in fact the funding for the ombudsman's office. He was frustrated by the perceived shortfall in funding created by additional responsibility, a stance which was then raised by members of Parliament, whom he coached to ask the questions. So while his motive was in fact supportive of his office by seeking better funding, by using a member of a political party to advocate his cause he compromised his neutrality.
The same principle applies for an organisational ombudsman or an ombudsman such as the ICANN ombudsman. An ombudsman for a large organisation which among other things manufactured armaments for sale could not become an advocate for pacifism. This might be a genuine and deeply felt belief, but would compromise their work within their company. The correct stance would be to say nothing on the subject, despite personal views.
So, if during the course of an investigation, questions are put to someone they must be carefully framed so that they do not disclose any preconception of bias or of a particular stance having been taken. This requires real skill, and can be frustrating for complainants but is essential to ensure that the essential tenet of neutrality is maintained.