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annual report 2010
allowed to forbid that citizens bring in dogs (Ugeskrift for Retsvæsen (Weekly
Journal of Legal Affairs) 1988.731/2Ø) and a vocational training centre was
entitled to expel a student who failed to observe the centre rules (Ugeskrift for
Retsvæsen 2001.83H). In both cases, the citizens’ affairs were regulated on the
basis of institution status.
What is difficult to establish is what authority institution status provides. First
of all, the decree must be based on objective considerations and not go further
than necessary in view of the institution’s purpose and activities. Secondly, the
ordinary principles of administrative law still apply, including proportionality and objective reasons for differential treatment. Thirdly, citizens’ civic and
human rights, as laid down primarily in the Constitution and the European
Human Rights Convention, may result in significant limitations of how their
affairs may be regulated on the basis of institution status.
Furthermore, many important areas which were historically regulated by
institution decrees are now governed by statute. This is especially true of areas
involving significant interference with citizens. For instance, confinement and
other force in psychiatric institutions used to be regulated by an institution
decree before the Mental Illness Act 1938. Today, it is difficult to imagine such
an area not being governed by statute.
However some areas are still not governed by statute and the authorities therefore have to regulate them on the basis of institution status. Some recent Ombudsman cases show that these particular areas give rise to uncertainty about
the authorities’ application of the law.
CORRECT AND COMPREHENSIVE AUTHORITY
Where there are no written rules, it is important that an authority first establishes which unwritten rule of law applies, then establishes the detailed content
of this rule and finally investigates which other – written or unwritten – rules
apply to the case.
A local authority had decided to limit the visiting hours for a nursing home
resident (Annual Report of the Parliamentary Ombudsman, 2010, Case No.
20-7). Some close family members were thus only allowed to visit for an hour
a day at particular times. The local authority had not established which rules
applied to the visiting restriction. Initially, it believed its decision was authorised by ‘the personnel’s working environment’. However, this is not an unwritten rule of law, although no doubt a consideration which can in some contexts
be both legal and relevant. The local authority then believed that the visiting
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