[CCWG-ACCT] [Ws2-ombudsman] IOO WS2 Sub Group first Report to the CCWG-Accountability WS2 for consideration at Sept Meeting

[Nigel Roberts]

The creation and eventual demise of temporary sheriffs is instructive.


Firstly, terminoliy, and for disambiguation purposes:

In the USA, a sheriff is a local criminal law enforcement agent as I 
understand it.

However, in England, a sheriff is an civil (not criminal) officer 
authorised by the court to collect monies on behalf of judgment 
creditors. Sheriffs are  also informally called a bailiff and equivalent 
to the Viscounts in Jersey)

https://en.wikipedia.org/wiki/The_Sheriffs_Are_Coming

Confusingly (to the English, at least) in Scotland, a sheriff is a judge.

The temporary sheriff in Scotland was a creature of statute. Prior to 
the devolution of Scotland the power to appoint temporary sheriffs was 
conferred on the Secretary of State by Parliament in 1981.
ppointment by the executive is consistent with independence only if it 
is supported by adequate guarantees that the appointed judge enjoys 
security of tenure."

See fuller details in the article "The Demise of the Temporary Sherriff" 
at http://www.journalonline.co.uk/Magazine/44-12/1001056.aspx


The upshot of this is that there IS a structural issue with the 
appointment of the Ombudsman, in that he or she holds their office at 
the discretion of the ICANN Board (in practice, senior staff and 
officers). At least one Ombudsman has not had their contract renewed.

The Ombudsman will, therefore, quite likely have an actual conflict of 
interest, in that in the interests of having his or her contract renewed 
he/she will natuarally and possibly unconsciously, give deference to them.

Even if there's no actual conflict of interest (which for the reasons 
set out in Starrs and Chalmers v Ruxton I think there is), I submit that 
there is undoubtedly a perceived conflict of interest. which needs to be 
resolved.


Counterbalancing this, is the actual nature of the Ombudsman, which 
appears to have changed in emphasis under each different office-holder.

The Ombudman is actually not a decision-maker, and the office is not the 
office of an independent tribunal -- it's role is to act as mediator, is 
it not, and seek to promote harmony between disputing parties, rather 
than a quasi-judicial role.