§ Mr. Speaker
Before we turn to the motion I have a brief personal statement to make.
Before the House honoured me with its trust by electing me to this Chair, when I had the opportunity to serve the public in another office, Sir Idwal Pugh was my chief adviser, and I should like to express my good wishes to him on his retirement.
§ 11.6 a.m.
§ Mr. Antony Buck (Colchester)
I beg to move,
That this House records its appreciation of the services of Sir Idwal Pugh and his predecessors in the offices of Parliamentary Commissioner for Administration (Ombudsman) and Health Service Commissioner, and takes note of the work of the Select Committee on the Parliarmentary Commissioner for Administration, in particular their Fourth Report (The Parliamentary Commissioner for Administration (Review of Access and Jurisdiction)) and their First Report (Independent Review of Hospital Complaints in the National Health Service) in Session 1977–78.
In view of the felicitous way in which you have started our proceedings, Mr. Speaker, perhaps I may at once state on behalf of the Select Committee of which I have the privilege to be Chairman how very much we share the sentiments that you have just expressed. Sir Idwal has served this House with enormous skill and application and has lived up to the very high traditions set by earlier Ombudsmen, Sir Edmund Compton and Sir Alan Marre. We are very grateful.
We should also at the beginning of our debate put on record our very good wishes to the learned Gentleman who is in due course to take over from Sir Idwal. We wish him the very best of good fortune in the high office to which he has been called.
The motion calls attention in general terms to the work of the Parliamentary Commissioner for Administration and to that of the Health Service Commissioner. Any hon. Member who is fortunate enough to draw a place in the Ballot for Private Member's motions is presented with a considerable problem. It is the sort of problem that one has if one draws a place in the Ballot for Private Member's Bills. I once drew 13th place in that Ballot and 895 decided to go for legislation on a nonparty matter. I manged to pilot through the House a Limitation Act, which enables those who suffer from pneumoconiosis and silicosis to bring actions out of time.
Similarly, I thought it right to choose a non-party subject when I was lucky enough to be top of the Ballot for Private Member's motions today. Whilst I believe that party politics is the life blood of liberty, I think that from time to time it is very good for the House to consider a matter such as this, on which I do not think there will be any party divisions. The House is often at its best when it is working as a working party, dealing with issues that have nothing to do with party politics, the sort of matters with which we are dealing, relating to administration and good government. When we are considering such topics, party differences and disputes need not and should not play any substantial part.
It is nice to have so many members of the Select Committee here. Two are away in the Falkland Islands. The islands are not becoming a sort of Botany Bay for members of the Select Committee. Those two hon. Members are extremely hard working members of the Committee, and I know that they regret being away. I did not think it appropriate to try to put any pressure on them to recall them from the Falkland Islands to be present. My hon. Friend the Member for Eastbourne (Mr. Gow) and the hon. Member for Central Ayrshire (Mr. Lambie) both do magnificent work on the Committee, but I must accept that today they are on the other side of the world. There is no party dispute about this matter. I wish to bring the attention of the House to bear on such issues, which are often neglected. We do not debate these issues regularly enough.
Let me set out the background that led up to the establishment of the Parliamentary Commissioner. The last century was a time during which we saw a massive recasting of our institutions, leading to a more effective democratic structure. The great Reform Bill of 1832 started a process whereby we became a truly democratic, elected assembly. That Bill was followed by other legislation, continuing the progress towards true demo-cratisation. In addition, during the last century, as you, Mr. Speaker, will know —being a historian—there was a similar 896 recasting of the structure of local government. The role of the Government in protecting individual citizens from the over-mighty State was made clear through the Factory Acts and much other legislation.
In this century, at least since the measures dealing with House of Lords reform at the start of the century, and since the establishment of our democratic system based upon universal suffrage and the granting of the vote to women, there have not been massive constitutional or institutional changes by way of legislation. There has been nothing to compare with the Reform Bill and the recasting of the whole of our local government structure. There have, however, been useful smaller changes in our affairs and useful alterations in our system, but at a less dramatic level.
Into this less dramatic but highly significant category there falls the office of the Parliamentary Commissioner for Administration—the Ombudsman, as he has come to be known. In brief, he deals with maladministration in Government Departments resulting in injustice to the citizen. Following his creation there was the bringing into existence of the Health Service Commissioner, with a similar role relative to the needs of the Health Service. We have traditional ways of supervising the work of Government and bringing the administration of individual Ministers to book. We can ask Questions and can raise matters in general debate. We can raise specific grievances in Adjournment debates. What we cannot do is to look at the books. We cannot go to the Ministry and find out specifically what happened in an individual case. This is where the Parliamentary Commissioner comes in.
In the usual way, an individual complaint made to us as Members of Parliament can be put to rights by our making representations to the appropriate Ministry, locally or nationally. Many grievances are speedily righted because of the intervention of hon. Members in this way. It has been estimated that about 100,000 cases per year are dealt with in this way. From time to time almost every hon. Member comes across the type of case in which the feeling is that a matter ought to be probed more deeply by examining what happened when a Ministry or public body was dealing with 897 that case. It is here that the Parliamentary Commissioner comes into action. During the time that he has been in existence he has very much proved his worth.
I can best illustrate the work of the Parliamentary Commissioner by referring to two cases, one of almost historical interest and one right up to date. The first case is usually known as the Sachsenhausen case. I trust that the House will forgive me if I summarise the case. Indeed, I know that it would not forgive me if I did not do so because, in the stock work on the Ombudsman by Professor Roy Gregory and Peter Hutchesson, this case has no fewer than 126 pages devoted to it.
Sachsenhausen was one of the most notorious and horrifying of the concentration camps established under the Nazis. Contained within it was an area—contiguous to but arguably not part of the concentration camp—in which were a number of British prisoners of war. Immediately after the war, £1 million was made available for those who had been, as described by the scheme, victims of Nazi persecution. Certain tests were laid down, dealing with the way in which such people should be defined. The key question was whether the victim had been detained in a concentration camp. If the answer was"Yes ", compensation became payable at once.
The key issue in this case was whether the 14 nationals in the sonderlager, the compound, arguably part of Sachsenhausen, were truly in a concentration camp. The Foreign Office decided that these men were not entitled to compensation. A splendid and magnificent campaign was mounted by hon. Members on both sides of the House. It was led by my hon. Friend the Member for Abingdon (Mr. Neave), but it was by no means a party political campaign. The late John Mendelson also took part in that campaign. Although it was a powerful campaign, it did not work.
Compensation for these men was not forthcoming until the matter was referred to the Ombudsman, at that time Sir Edmund Compton. He made a finding that the scheme had not been properly administered. He found maladministration and in due course these gallant men 898 received compensation. That was a historical case in which hon. Members and the Ombudsman together were able to put maximum pressure on the Government, producing a measure of justice for those involved.
That was the first example of the working of the Ombudsman in a dramatic way. The case illustrates the system well I wish to use a more up-to-date and prosaic example as yet a further illustration of the type of case dealt with. This is a case which has been subject to review by our Select Committee. It involved the Inland Revenue. The nature of the complaint was that a man and his wife had had their tax affairs dealt with in the most dilatory way. There was a finding by the Parliamentary Commissioner that there had been maladministration.
It had taken about three years to deal with the tax affairs of this married couple, if I recollect rightly. Indeed, the Ombudsman himself reported quite unconscionable and indefensible delays. As a result of these delays of years, the man and wife in question had had to pay about £644 in additional taxation. So there was a finding of maladministration by the Ombudsman and then, coupled with that, a recommendation by him that an ex gratia payment should be made.
There was a refusal on behalf of the Inland Revenue, ab initio, to make any compensation at all. What happened then was that the chairman of the Board of Inland Revenue gave evidence before our Committee and was subjected to cross-examination—I hope in a courteous manner. I think that those who read the transcript will agree that it was a very firm cross-examination. I am glad to tell the House that within 10 days, the admirable Clerk who serves us so well in our Committee, received a letter from the Inland Revenue saying that an ex gratia payment would be made.
That is an illustration of a case involving high drama and enormous suffering, during one of the most terrible events in our history—the holocaust of a concentration camp and all the horror that went with it. Justice was done by Parliament working together with the Ombudsman, in so far as justice could be done in such circumstances. Then, it came to a case of a wholly undramatic character involving £644. By the pressure of Parliament and 899 the Ombudsman working together, redress was eventually obtained for the taxpayers in question.
This illustrates how the system works. What we did as a Select Committee was to produce a report following the existence of the office of Ombudsman for just over 10 years. This was triggered off, first, by the fact that the office of Ombudsman had been in existence for just over a decade and it was thought appropriate that there should be what in my days in the Ministry of Defence would have been called a sitrep—a situation report—relative to the office. The Committee has worked together—I think that my colleagues would agree—hard and well, across party lines, in devising a report which is before the House and to which my motion calls attention.
What I propose to do is to go through the principal recommendations made by our Committee. We have not yet had the Government's observations on this matter, though we may get some from the Minister. It is nice to see two Ministers here, one to deal with the Ombudsman on the parliamentary side and no doubt the other on. Gentleman to deal with the Health Service side.
I shall go through the principal recommendations and conclusions of our Committee. Hon. Members will be relieved to hear that I shall do so with speed. The first, and the issue which most concerned us, was the recommendation which Justice had made. Justice has a particular significance in the role of the Ombudsman because it was the committee of Justice which was largely instrumental in mounting the campaign which caused that office to be brought into existence.
Justice produced a pamphlet called"Our Fettered Ombudsman ". This contained a recommendation that there should be direct access to the Ombudsman, that the public should be able to go direct to him and that there should not be what has sometimes been described as the parliamentary filter. As everybody in this House knows, references to the Ombudsman go through a Member of Parliament. Therefore, that was one of the main things which we had to consider, and we came to certain conclusions, which I shall run through quickly.
900 First, we came to the conclusion that there was no need for direct access to the Parliamentary Commissioner because of the revised system which, encouraged by the Committee, the Ombudsman has now adopted. It is becoming increasingly known, I am glad to say that if a member of the public wrote to the Ombudsman direct, in the past his letter was merely sent back saying"Sorry, we cannot do anything ". What happens now is that where it is a case that appears to the Ombudsman to be the sort of case that is appropriate for his investigation, he will write back saying that he will send the papers direct to the elector's Member of Parliament. It would be a very strange Member of Parliament who, having received a letter from the Ombudsman saying"You have a constituent who has got a case which looks as though it is appropriate for my investigation ", said"No, sorry, you cannot ". Technically, the Ombudsman would then be placed in a difficulty, and in those circumstances I hope that he would come to our Committee.
Mr. W. R. Rees-Davis (Thanet, West)
I am sorry to be a strange Member of Parliament, but may I make a suggestion for my hon. and learned Friend's consideration? The advantage of such a letter being sent on to the constituency Member, who may have fairly considerable professional knowledge of the matters concerned, is that he can frequently deal with the matter and dispose of it without its having to go on for the consideration of the Ombudsman, if it is sent on to him by the Ombudsman or anyone else.
§ Mr. Buck
I respectfully agree with every word that my hon. and learned Friend has said. That, indeed, is one of the reasons why the Committee—I see some Labour Members nodding—supports the Ombudsman in adopting this type of procedure. As we know, in all our surgeries people constantly come to us complaining about their drains. They say:"Mr. Buck, I want you to take it up with the Ombudsman." We all have our ration of people whose complaints are strange, to say the least. If all these matters were to be dealt with on a national basis, and all of the complaints of people who might be described—I do not want to be unkind—as our 901 " regulars ", whom we all have in our surgeries, were to descend on the Ombudsman, there would have to be a fundamental alteration in his modus operandi. He would be overwhelmed with complaints.
Our Committee investigated this and came to the conclusion that it was not appropriate to adopt the suggestion that there should be direct access. We felt that if there were to be direct access, it would not be possible for the Parliamentary Commissioner to deal with the flow in the thorough and meticulous way that he does at the moment. Indeed, I think it was in the minds of some of us that it would detract from the appropriate role of a Member of Parliament, because one of the roles of a Member of Parliament in our system is as Ombudsmen for our constituents. That is something that commentators sometimes fail to appreciate. I see my colleagues nodding in agreement.
In our travels abroad we found that there was not the same tradition of a Member of Parliament being a personal Ombudsman for his constituency. Of course, with a list system on a national basis, a Member of Parliament does not necessarily have a territorial constituency at all.
§ Mr. Dan Jones (Burnley)
I think that this can be summed up very succinctly. It is not only our desire that the procedure as it is now should proceed: I believe that I am right in saying that it is equally the desire of the Parliamentary Commissioner himself.
§ Mr. Buck
I think that it would be invidious for me to put words into the mouth of Sir Idwal Pugh. There has been, I am bound to remind the hon. Gentleman in all fairness, a disagreement about this among Ombudsmen. Sir Idwal's predecessor, Sir Alan Marre, adopted the same sort of views as I have just been expressing and which received acclamation from the Labour Benches. However, it is true to say in fairness, that since Sir Alan's retirement he has appeared to hold the view that it might be preferable if there were to be direct access.
§ Mr. Kenneth Baker (St.Marylebone)
If my hon. and learned Friend agrees that 902 there should remain a parliamentary filter, why was not a parliamentary filter retained for complaints to the Health Service Commissioner, when our constituents can complain direct to the Health Service Commissioner without our knowing about it? Indeed, in other areas of complaints our constituents can complain not to the Ombudsman but to the Police Complaints Board without our insisting on a parliamentary filter. Does my hon. and learned Friend agree that in most other countries there is direct access for citizens to the Ombudsman?
§ Mr. Buck
I can deal with those matters seriatim, as we say in the law. My hon. Friend asked why there was direct access on matters relating to the Health Service. The Health Service and hospitals are not under the direct control of the House. They are under the direct control of the various area authorities. That situation is different from that of a Government Department in relation to the House. There is a totally different relationship. We are now dealing with maladministration in Government Departments. That is a specific responsibility of the House. Ministers are answerable to the House.
Different considerations apply when one is considering the responsibility of area and regional health authorities and the structure within the Health Service. That is why the legislation is framed in that manner. Before a matter can go to the Health Service Commissioner there must have been a complaint to the authority. There must have been a review of the case before it can go to the Health Service Commissioner in his role as Health Service Ombudsman. There is therefore no immediate or direct access.
I do not think that my hon. Friend the Member for St. Marylebone (Mr. Baker) stated accurately the situation as it applies to the police.
The first conclusion in the report is:There is no need for direct access to the Commissioner as an alternative to the revised system"I have described that system.The second recommendation isThe parliamentary convention which in general inhibits Members from taking up their colleagues' constituency cases should be interpreted flexibly where reference of cases to the Commissioner is concerned.I can illustrate what we had in mind by explaining that living in my constituency 903 is a person who is a good fried of mine. But he is a firm supporter of the Labour Party. He then became a firm friend of an hon. Member of the House who, at that time, was my Labour opponent. In due course he asked me if I would mind if my former adversary took up his case, because they were such close friends. It was reasonable in those circumstances that the matter should be brought up and dealt with in the House by an hon. Member of another party rather than by the constituency Member. That is what we have in mind when we suggest that the convention should be applied in a flexible and reasonable manner.
The next recommendation is:The link between Parliament and the Commissioner should be strengthened by increasing the contacts between Members and the Commissioner and by making Members more aware of the Commissioner's work.We believe that the Commissioner should have an office in the Palace of Westminster.
§ Mr. Clement Freud (Isle of Ely)
The hon. and learned Member has suggested that the Parliamentary Commissioner should have an office. I should like an office myself.
§ Mr. Buck
I shall take a minute to think about that situation. I am sorry to hear that the hon. Member for Isle of Ely (Mr. Freud) does not have an office. I understood that lavish accommodation was available to members of the Liberal Party, bearing in mind their numbers. Clearly, I am wrong about that. In my book the Parliamentary Commissioner takes precedence over the hon. Member for Isle of Ely for any accommodation that is available because he is a servant of the House. However, I am sure that the House will have noted the accommodation problems which are apparently confronting the hon. Member.
We think that there should be a strengthening of the ties between Parliament and the Commissioner. We believe that the reports of the Commissioner and the Select Committee should be debated in the House at least annually. There should be a regular set-piece debate. That would mean that those who were lucky enough to draw a place on private Member's days would be able to discuss other matters. I hope that that recom- 904 mendation will be implemented by successive administrations.
We feel that the Commissioner should make more frequent occasional reports picking out cases which are of public interest. We recommend an extension of his remit to enable him toinvestgate complaints by British citizens about assistance requested from consular offices and overseas posts, including complaints by British citizens abroad.If a consular authority has dealt with a case rather inefficiently we see no reason why that should be excluded from the Commissioner's remit. We hope that that simple recommendation will be implemented speedily.
We recommend thatThe Commissioner should be able to investigate complaints about matters relating to contractual or other commercial transactions.Paragraphs 23 and 24 of the report involve difficult and complicated matters and I do not intend to take up the time of the House on them. I feel that I am already taking up too much time. [HON. MEMBERS:"No ".] That is an admirable response.
§ Mr. Buck
Any remarks about"Big Brother"would be inappropriate at this stage.
The subject that is dealt with in paragraphs 23 and 24 is topical. Paragraph 24 concludes:Your Committee endorse the Commissioner's view that it would not be right for him to investigate a complaint that a firm had been prevented from tendering for a contract simply because it had not observed the Government's pay guidelines, since that is a matter of policy which should be challenged by Members of Parliament rather than by the Commissioner, but your Committee consider that it would be appropriate for the Commissioner to investigate complaints that such a policy was not being applied uniformly or equitably.That is a valuable recommendation, and I look forward to hearing the Government's observations on it.
The Committee also recommends thatThe Commissioner should be able to investigate complaints about public service personnel matters, except complaints from serving civil servants and members of the armed forces about discipline, establishments questions, and terms of service.905 A continuing battle has been waged on this matter by the Select Committee. The Committee frequently recommended that Civil Service personnel matters should come within the remit of the Ombudsman. That suggestion has been resisted by successive Governments. The Select Committee now seeks to focus attention on those parts of the problem on which our case is strongest.
The Committee says that the Commissioner should be able to investigate matters which lead up to a person becoming a civil servant to see if there has been any maladministration in the advertisement for the job or in the processes leading to a person becoming a civil servant. We believe that our case is strongest in relation to matters arising when a person has ceased to be a civil servant, in relation to pensions, for example.
There was a recent case in which maladministration was found to exist in relation to a serviceman's pension. Redress has been made. Had the complainant in that case been a civil servant the Ombudsman would not have been able to investigate it and the matter would not have been put right. I hope that the Government and the House will look at that recommendation with sympathy.
We do not believe that a change is needed in the definition of"maladministration"It has been broadly interpreted by successive Select Committees and we do not think that there is any impediment involved in the use of that word.
§ Mr. Wyn Roberts (Conway)
Does my hon. and learned Friend think that the public understand the meaning of maladministration, and does he not think that further steps should be taken to enlighten the electorate about the scope of the Commissioner's work?
§ Mr. Buck
That is the view of the Committee, of myself and also of the Parliamentary Commissioner. He has taken considerable steps, by issuing pamphlets and putting up posters, to call attention to the sort of matters with which he can deal. Maladministration is very difficult to define in parliamentary language. Any"muck-up"is as near I can get to a definition in polite colloquialism. There might be other more graphic expressions to explain it to one's more robust constituents.
§ Mr. Dan Jones rose—
§ Mr. Speaker
Order. The hon. Gentleman, I believe, is hoping to catch my eye, and could no doubt advance his arguments then.
§ Mr. Buck
We think that no change is needed in the definition of maladministration. The Commissioner recommends that Parliament's attention should be drawn to any unforeseen injustice resulting from legislation. Such injustice could arise in a way that was never anticipated by the House, and we feel that in such cases the Parliamentary Commissioner should bring the matter to the attention of Parliament.
We feel it appropriate that the Commissioner should carry out inspections when the Committtee of which I am Chairman approves such a course. We have it in mind that he should investigate an individual case, and if he finds a hornet's nest, maladministration going wider than that case, we feel that, after reference to our Committee, it should be appropriate for us to authorise him to make a full investigation of that whole sphere of activity only upon the fringe of which he has touched. We hope for an immediate and favourable response from the Government on that.
We think, too, that all Crown bodies should be subject to the Commissioner's jurisdiction unless explicitly excluded. That is a simple but important alteration in the balance. We think that the Commissioner should have the right of access to Cabinet papers, except where the Attorney-General certifies that such access would be prejudicial to the safety of the State, or otherwise contrary to the public interest. Our arguments in that respect are set out in paragraph 34. Shortage of time prevents my going into that in detail. It is appropriate, given that safeguard, that the Ombudsman should not be fettered in this way, as he has been to some extent in the past—a point that has been made by Justice.
907 We think that the Select Committee should continue as part of Committee structure of the House of Commons. The suggestion has been made in the report of the Procedure Committee that this Select Committee should be abolished, and that its duties should be diffused among subject Select Committees. It was interesting at the admirable conference which was organised by the Hansard Society, of which my hon. Friend the Member for St. Marylebone (Mr. Baker) is the chairman, to see how strong academic opinion there—not just we parliamentarians who have a vested interest, but professors who study government and politics—took the view, as have successive Ombudsmen, that one of the distinguishing features of our system is the immediate back-up which the Ombudsman gets from the Committee. We found when we toured abroad that that situation does not exist in other countries, and we think that the ability and existence of the Committee to provide a back-up and to keep an eye on the whole operation of the Ombudsman is a valuable and distinguishing feature of our programme.
Therefore, in calling attention to the work of the Parliamentary Commissioner. I refer to these recommendations.
Over the last year the hard-working Select Committee has also undertaken yet another semi-Royal Commission, dealing with the complaints procedure within the Health Service. Because I am conscious of taking too much time I shall not go into that in detail. It is sufficient to say that we recommend that there should be a simple and easily ascertainable procedure for complaints within the Service. It was a great comfort to us in making the recommendations, which in the last resort could involve the Parliamentary Commissioner in matters relating to clinical judgment, to find that Mr. Justice Michael Davies, who had gone into the matter at an earlier stage, agreed with our recommendation. It was a difficult matter.
We are deeply concerned to get the system of complaints within the Health Service right, and the Minister will probably agree that if we get it right that will probably be helpful to the medical profession in preventing it becoming involved in the need for protective medicine, with doctors always looking over their shoulders to see whether a writ will be served. 908 It was as much to protect the medical profession and to prevent that sort of situation that we thought it appropriate to make our recommendations. I hope that this point will be taken by the medical profession. We certainly do not want to interfere with its professional judgment. We stated specifically in the report that a doctor who had made a genuine mistake, as long as he had applied his mind properly to the matter, and there had not been maladministration, would in no way be castigated for a decision which with hindsight could have been shown to be wrong.
We think that it would be appropriate that when such matters arose the Commisioner should sit with appropriate medical assistance appointed by the relevant professional body—for example, the Royal College of Gynaecologists and Obstetricians, if the case involved childbirth —and appropriate professional assistance. The system would be similar to that in the courts of law where the judge sits with experts, for example, in the Admiralty Division, to guide him on maritime matters.
Those are the principal matters that I wish to put before the House. We shall view with great interest the Government's comments on our recommendations, particularly in the sphere of the Parliamentary Commissioner. Let me conclude with a quotation from Milton in his Areopagitica—hoping, at this stage, that I have that pronunciation moderately correct. He said:For this is not the liberty which we can hope, that no grievance ever should arise in the Commonwealth, that let no man in this world expect; but when complaints are freely heard, deeply considered, and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for.We look to redress the grievances of our electors. We are most grateful for what has been done by successive Ombudsmen in helping us in effect to right grievances, and we look forward in the future to doing it even more effectively than we have done in the past.
§ 11.50 a.m.
§ Mr. Dan Jones (Burnley)
I have for the first time in my years in the House written out my contribution in order to prevent the flight of what might otherwise be called a Celtic imagination. The 10 minutes I allotted for myself will now be reduced to five.
909 My contribution will be very brief and based upon common sense. I have no legal training, so I am not prepared to venture into territory to which I am unsuited. I agree substantially with the speech of the present Chairman of the Select Committee, the hon. and learned Member for Colchester (Mr. Buck). I firmly believe that the first principle for that Committee is to bring justice to citizens who without the parliamentary efforts of the Select Committee would be denied that justice.
I see the efforts of the Committee as playing a unique role in the sense that it is one thing to be deliberate in policy and it is another to be deliberate in matters concerning people.
The difference is subtle but not markedly so, and to me it is important. With those qualifications in mind, I listened with great care to our Chairman. On only one small point do I differ from him, When appearing before the Select Committee on Procedure, he observed that it would possibly be a mistake not to appoint an ex-civil servant to be the Parliamentary Commissioner. I interrupt myself here to make the sincere observation that the three civil servants who have been our Parliamentary Commissioners during the years when it has been my privilege to sit on the Committee have all given a first-class example in fulfilling their unique role of dispensing justice.
However, I have a firm view in the direction mentioned by the hon. and learned Gentleman. I do not mind if the Commissioner is an ex-civil servant, a barrister or, for that matter, male or female. What I look for is someone with compassion and with a profound attachment to the civilised practice of justice. But I am not at all convinced that a departmentally related Select Committee would be so effective in the matter of which I have spoken. Experience in the subtleties of human relationship cannot be ignored and I contend that we must preserve the present identity of the Committee and preserve such qualities in the Commissioner's role.
There are those better qualified than I to speak—I speak only because of my personal association as a member of the Committee—but the one point I feel I 910 must make before I sit down concerns the armed forces. Our Committee recently visited Stockholm, Copenhagen and Israel, and, as its members will know, those countries have provision for treating with personnel in the armed forces, With respect, I urge great caution before that step is taken in this House.
I now make two points which arise from an observation made by our Chairman. One concerns direct access. I certainly would not agree with direct access. I know that in my own constituency of Burnley, which contains an above-average number of older citizens, people would find themselves in profound difficulty in preparing a case for the Parliamentary Commissioner. Even so, they are no less entitled to justice. Let us be clear about that. For that reason, I believe that the method now adopted is infinitely preferable to thrusting the onus of direct approach—which could prove far too difficult for them—upon the people concerned.
It has been asked whether people really understand and appreciate the significance of the Parliamentary Commissioner. If they do not, I say that that is the fault of the press more than anything else. If we got the publicity for justice that is given so frequently to matters only distantly related to justice we should, I believe, have less cause for doubt. But in any case I see that as no reason why what I have just said should be affected. I profoundly believe that we should keep the present method. If we continue with regular surgeries, which means our being available at a certain time and place, our constituents will come and ask us what they should do about their problems. My reply is always the same—" You do nothing. Tell me what your problem is and I will do the rest for you ". I believe that to alter that system would be to throw our constituents a burden which they could not adequately carry.
Let each of us, in addition, when we are dealing with our people, use the local press to the fullest extent possible to advertise our policy in these matters, irrespective of which party is in office. The fact is that the Government are prepared when difficulties arise which are beyond the power of ordinary people to solve, or even to understand—they can only suffer them—to see to it that the 911 necessary steps are taken for the good of the people of this nation.
§ Several Hon. Members rose—
§ Mr. Speaker
Order. I wonder whether I may ask, most exceptionally, if the Opposition would mind if I called next another hon. Member from the Government Benches. There is one who has to leave by aeroplane very shortly for India, where he is going in the service of the House. If the House does not mind, I shall call Mr. Ivor Clemitson.
§ 11.58 a.m.
§ Mr. Ivor Clemitson (Luton, East)
Thank you, Mr. Speaker. May I first congratulate the hon. and learned Member for Colchester (Mr. Buck) on choosing this subject for debate and on the way in which he introduced it. I pay tribute also to his chairmanship? I agree with the motion in its expression of appreciation for the work of Sir Idwal Pugh, the Ombudsman for the last two years.
The easiest of targets to criticise and satirise is bureaucracy. Bureaucracy has become a dirty word, and this is a pity because, properly understood, bureaucracy is an essential part of modern society. It is in itself not the enemy. The enemy is size, complexity, lack of adequate controls and lack of proper accountability. This is where things go wrong, and the citizen caught up in them may get lost, overawed, disillusioned or frustrated, or he will drop out entirely.
It is essential not only that we constantly assert the primacy of the individual and his rights but that we actively seek to put that primacy into practice. It seems to me that in this respect the institution of the Ombudsman has been of great significance. It is something which we have learnt from others, notably from our friends in Scandinavia. Yet we have grafted that system very successfully on to our own system, and we have done it by not adopting the Ombudsman system as something apart from our established system of parliamentary representation, with Members of Parliament as the prime defenders of the rights of the citizen. We have enmeshed the Ombudsman system within our own system.
We have done that primarily, I believe, in two ways. First, we have access to the Ombudsman through Members of 912 Parliament. On the face of it, direct access might appear to be an attractive proposition, but the Select Committee, in my view rightly, has come to the conclusion that access through a Member of Parliament—in other words, indirect access—should remain and that the Member should continue to be the sieve for sorting out complaints. In practice, of course, as the hon. and learned Member for Thanet, West (Mr. Rees-Davies) pointed out, many things can often be dealt with more quickly by the Member than they could be by going through the Ombudsman. The sieve, therefore, has substantial practical significance.
Above all, however, I think it right to keep the system of indirect access because it continues to assert the role of the Member of Parliament as the defender of the rights of his constituents and because it is the essential link with the institution of the Ombudsman.
That does not mean that the system works perfectly. Of course it does not. We are 635 different Members with our own ways, our own quirks, our own foibles and so on, but I believe that that problem can be dealt with in other ways. The hon. and learned Member for Colchester referred, for example, to our recommendation that the Ombudsman and Members should come closer together in various practical ways.
Secondly, I believe that we have enmeshed the Ombudsman system successfully into our own system through the work of the Select Committee. As the hon. and learned Member for Colchester said, this seems to be unique in any Ombudsman system throughout the world. It seems that ours is the only country in which the Ombudsman is backed up by a Select Committee exclusively concerned with his work. This provides a vital back-up to the Ombudsman in seeing that his decisions are carried out. The hon. and learned Member mentioned several cases in which that had happened. Moreover, it provides vital pressure on Departments to see that they mend their evil and wicked ways.
I believe that a separate Select Committee for the Ombudsman should continue. If the function of our Committee were to be scattered among a number of specialist Select Committees, the link between the Ombudsman and Parliament 913 would inevitably be weakened. I see that there is disagreement in the Chamber about that, but I believe it to be almost inevitable, in the nature of things, that the Ombudsman's reports and so forth would in practice be shoved to the bottom of the agenda of all the other Select Committees. I remain convinced that a Select Committee solely and exclusively concerned with the Ombudsman gives him an essential back-up and should continue to exist.
The hon. and learned Member for Colchester outlined the conclusions of our recent report on the work of the Ombudsman. That report shows. I suggest, both the value of the Ombudsman's role —that is demonstrated over 10 years of experience—and in which that role can be developed and expanded.
I regard the latter as of considerable importance. The hon. and learned Member for Colchester referred to various areas from which at present the Ombudsman is excluded. I wish to add no comment to that save to say that I seem to be the dissenting voice in the matter of complaints from Service personnel. It seems to me that if we argue that complaints from serving civil servants should not be considered by the Ombudsman because there is adequate machinery for dealing with those complaints already, the same argument cannot be applied to members of the Armed Forces because there is not comparable machinery which is balanced and independent.
§ Mr. Clemitson
I have been on the receiving end of the system, though admittedly as a National Service man. It seems to me that there is not a similar procedure for the armed forces, a procedure which has independence and balance, as there is for the Civil Service. In my view, therefore, logic leads to the conclusion that the Ombudsman's jurisdiction should be extended to include complaints from members of the armed forces.
Another recommendation of the Select Committee which, I believe, is and could be of considerable significance is the recommendation about powers of inspection. Again, this was something which 914 we learnt from the Swedish model, within which, we gather powers of inspection have existed since the institution of the office in the early nineteenth century.
I think it important that the Ombudsman should be able to do more than simply react to and deal with individual complaints. After all, there is in this business always an element of trying to close the door after the horse has bolted. If the Ombudsman had power actually to inspect various establishments and institutions, an important preventive function might well be introduced.
Quangos also ought to be brought within the Ombudsman's jurisdiction. I shall not develop this point at length, but it is plain that more quangos are arising almost daily—they mushroom around us —and it becomes increasingly difficult for Members of Parliament to question these institutions. It seems to me that there is here an area in which the Ombudsman's jurisdiction should not be fettered.
I turn now to the report on the work of the Health Service Commissioner, and, in particular, to our recomendation that his powers should be extended into the area of clinical judgment. Most unfortunately, in my view, the medical profession has reacted very adversely to this recommendation. I believe that reaction to be ill judged. We are not talking clinical judgments reasonably taken in the light of the circumstances, in the light of knowledge and the rest. We are not concerned about clinical judgments of that kind, which, after all, constitute 99.99 per cent. of such judgments; we are concerned to prevent litigation of the sort which has mushroomed in the United States.
We are anxious that, if litigation is the only course open to the citizen, injustice will be done to many who are not able or not willing to engage in litigation. We are convinced that many people are in any case not primarily concerned with financial compensation. I think, with respect, that this is the mistake which some members of the medical profession have made. I do not believe that many people are concerned with financial compensation, but there is a recognition that some kind of injustice has been inflicted and a resolve that brings should be remedied in future.
915 It is not always possible to draw hard and fast lines between, on the one hand, a clinical judgment and, on the other, a matter of administration. Again, there is a tendency among certain members of the medical profession to want to use clinical judgment to cover every action and decision they take, however far removed it may be from clinical judgment. Again, we have heard much evidence about the growth of team work in medicine. There are other professions that make clinical judgments—for example, the midwives at the moment of a child's birth. They would welcome an extension of the Ombudsman's jurisdiction in this respect.
I very much welcome this debate, and I congratulate the hon. and learned Gentleman on introducing it. We need regular and informed debates on the work of the Ombudsman and I hope that this debate will be the first of many.
§ 12.12 p.m.
§ Mr. Kenneth Baker (St. Marylebone)
I, too, congratulate my hon. and learned Friend the Member for Colchester (Mr. Buck), first, on initiating this debate, and, secondly, on giving such distinguished leadership as Chairman of the Select Committee which produced two important reports. Those reports deal not only with cases but with the role of the Ombudsman and his powers.
We are dealing with a developing institution and a developing relationship. When the Ombudsman was set up 11 years ago, considerable anxiety was expressed in the House that his work would supersede, and, indeed replace, the work of Members of Parliament. It was said that constituents would no longer need to come to us and that the Ombudsman would act as a deus ex machina who would redress the grievances—which is one of the prime roles of a Member of Parliament.
Those anxieties have not been realised. I would describe the relationship between the Ombudsman and the Member of Parliament as an alliance—an alliance against the unanswerability and inflexibility of Government. It has been a happy relationship over the years and is developing. But as with all relationships the position cannot stand still. It has to move on, and that is what this debate is all about.
As an institution, it has developed in the hands of the Ombudsman. It has de- 916 veloped in an interesting way. The last Ombudsman, Sir Idwal Pugh, and his predecessor, Sir Alan Mane, were very different from the first Ombudsman, Sir Edmund Compton. Sir Edmund's successors have tended to shed the anonymity that goes with distinguished civil servants, and they have emerged as personalities in their own right. They now hold their own press conferences on reports of Select Committees. I welcome that move because it draws the attention of a wider public to various cases.
The Ombudsman is developing slowly as a public personality. I welcome that trend and I hope that the new Ombudsman, Mr. Clothier, will continue that tradition. Our constituents are becoming much more aware of the Ombudsman as an institution, and indeed as a person. I receive one or two letters a month asking me to refer cases direct to the Ombudsman. Those constituents obviously know that their member of Parliament is a gateway to this institution as a threshold which they have to cross. That was not the position four or five years ago, but it is now happening. As a result of the Ombudsman developing his own personality, more people are now aware of him, and that trend is to be welcomed.
I wish to comment on a number of points in the recommendations. I should like to see the Ombudsman's range of examination extended. Originally, when the institution was set up, the remit covered only Government Departments. Later, the local government Ombudsman was created and complaints into local government can now be examined. Then the Health Service Ombudsman was created and complaints into the NHS can now be looked into. This is a developing range of responsibility.
I should like to see the Ombudsman look into quangos and also maladministration in the nationalised industries. The consumer bodies in the nationalised industries arc toothless wonders. They do not grind their teeth in anger at maladministration in the nationalised industries. There is instead a gnashing of gums. All our post bags tell us that there is a great deal of maladministration in those industries. If a nationalised industry wants to put up the shutters, it is difficult for an hon. Member to pull them down and to force an entry into the books of that 917 industry. Therefore, I hope that in future that area will be open for examination by the Ombudsman. He should certainly be able to examine quangos, because they are responsible to the Government, and that is a natural extension of the Ombudsman's role.
§ Mr. Baker
I am delighted to hear that. I await that report with great interest.
I should like to see the Ombudsman examine possible maladministration in the universities. I dealt with an interesting case recently involving a constituent who was not given a doctorate of philosophy when she believed that she should have been awarded it. She came to see me as her Member of Parliament and, as I was unsuited to judge whether she should be a doctor of philosophy or a bachelor of letters, I wrote to the authorities of Oxford university. The House may like to know that the people who decide these matters are the proctors. I asked the proctors whether there had been any maladministration in my constituent's examination. She alleged that her examiners knew less about the subject than she did. I found it difficult to get the proctors or the vice-chancellor to budge. In other countries Ombudsmen can examine the question of university maladministration. I was concerned in this case not so much with the question whether she was capable in regard to her thesis as with the question whether there had been maladministration in the examination. I was concerned to discover whether certain procedures had been followed.
§ Mr. Charles Fletcher-Cooke (Darwen)
There is an Ombudsman in most universities already. He is called the visitor.
§ Mr. Baker
I shall draw the bishop's attention to this particular case.
The other point mentioned in the report is that the Committee felt satisfied with the definition of"maladministration ". I go along with the Committee in that respect. The definition of"maladministration"is known as"the Cross-man list ". It covers such issues as bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness. That is sufficiently wide to allow the Ombudsman to have a wide remit in examining possible maladministration.
I should like to deal with the subject of direct access. I am disappointed that the Select Committee did not recommend movement towards direct access. In my view this is already happening. It is certainly occurring in the work of the Health Service Commissioner. Those of my constituents who are patients can complain direct to the Health Service Commissioner without coming through me. I am aware of the argument that the hospitals are special and not part of the central administration of government. However, that is a technical argument. Hospitals are responsible to regional health authorities, which ultimately are responsible to the Department of Health and Social Security. The thread is there.
It seems that the principle has been established in our system of government that citizens should have direct access of complaint as regards the Health Service. That also applies to the police. Although the Ombudsman is not concerned with police complaints, citizens may complain direct to the police without Members of Parliament being involved. They are doing so. Members of Parliament are told of their complaints. Again, the principle is established.
In Northern Ireland—it is common now to condemn all constitutional arrangements in the Province of Ulster—citizens have direct access to the local government Ombudsman. There is an absence of local government in Northern Ireland, but complaints could be made through the Northern Ireland Members of Parliament. When local government is restored in Northern Ireland it may well prove difficult to remove the right of direct access now enjoyed by the citizens of Northern Ireland. It is difficult to remove a right 919 when it has been granted. The movement is towards direct access.
I am aware of the argument that direct access cuts out Members of Parliament, but I am not so sure that that is true. The value of the Ombudsman, as my hon. and learned Friend the Member for Colchester said, is that, unlike hon. Members, he has the right to open the doors of Government Departments and to go through the files.
Many of the cases that come to our surgeries are not remotely concerned with maladministration. They are concerned with a whole variety of personal cases. Very often they are at local government level. Such complaints would still come to us even if citizens had direct access as regards the maladministration of central and local government.
It is interesting that the local government Ombudsman in England examined 114 complaints received direct from the public. The complaints had to be returned, with the advice that they should be routed through councillors. Twenty-three of the complaints were resolved by the passage of time between the transmission of the letters and the referrals. Another 68 complainants gave up. The last 18 complaints were forwarded by the complainants to councillors and only five were taken up by councillors. Of 114 complaints that the local government Ombudsman thought reasonable and that he wished to examine, only five were submitted to him at the end of the day. That is a further argument for the House encouraging the concept of direct access.
I welcome the recommendations of the Select Committee that the Ombudsman's powers should extend to clinical judgment. I have a personal feeling because in my own family there was a case involving a member of my family in which clinical judgment in a hospital was involved. We found it impossible to break through the consolidated ranks of the medical profession and to have a proper inquiry. It was not that we wanted compensation. That was not the consideration. We wanted the facts surrounding the particular incident to be clarified to our satisfaction and to our own peace of mind. The present system does not allow that to happen.
I favour the extension of the Ombudsman's powers into the area of clinical 920 judgment. I am well aware that the medical profession will oppose that extension. Any group of professionals will oppose critical examination of their professional judgments. If the Ombudsman were to examine the quality of planning powers at local government level, we could be certain that the Royal Institution of British Architects, for example, would rise up in arms and say that its professional credence and viability were being seriously undermined. I do not believe that groups should shield behind that sort of argument. We are not undermining the professional ability of doctors by saying that in certain circumstances the exercise of their clinical judgment should be examined by the Ombudsman.
Has the Ombudsman been effective? There have been some dramatic cases, such as Sachsenhausen. There have been a whole host of cases involving the Inland Revenue and the Department of Health and Social Security. If we were to draw a balance sheet, could we say after 10 years that, on the whole, the Ombudsman has been effective? I think that the answer is"Yes ", but many would say only marginally so.
To some extent that is where the institution needs further development. There has been a resistance—this was true especially in the early years of the existence of the Ombudsman—by Government Departments to accepting the Ombudsman's recommendations. There has been considerable hostility. The Inland Revenue and the DHSS have dragged their feet. In many instances they were not prepared to recognise that there had been maladministration. They were reluctant to pay compensation. There has been an enormous improvement in the past two or three years.
I do not believe that we should give mandatory powers to the Ombudsman to enforce compliance with his recommendations. However, I hope that Government Departments will be much more responsive and virtually accept the Ombudsman's reports.
In Northern Ireland the pattern is rather ahead of ours. If a citizen in Northern Ireland receives a favourable report from the Ombudsman, he will go to the courts and virtually receive compensation as a result of having a favourable report. That applies to such an 921 extent that the authorities involved usually pay compensation before the legal process takes place. In some of the cases that have come my way there has been an expectation at the end of the examination that compensation should be payable. I am not in favour of setting up a fund—although the French ombudsman now has a fund from which he can grant compensation in certain circumstances—from which the Ombudsman may recommend payments. However, I am in favour of Government Departments being much more responsive to direct recommendations of compensation where they are made, or the implications of recommendations.
Reference has been made to the recommendations of the Select Committee on Procedure about the future of the Select Committee on the Parliamentary Commissioner for Administration. As I was a member of the Select Committee on Procedure, I feel that I should say something about the reasons that led the Committee to make its recommendations.
The Committee felt that if the House eventually decides to have departmental Select Committees—that is a matter for the House to decide in the next year or two—the Committees will probably want to be concerned with instances of maladministration arising in the Departments that they shadow. It would be natural for the respective departmental Select Committees to take such cases as they arise. There might be a tendency for such cases to be pushed down the list of priorities of the Select Committee. However, it would be for the Ombudsman to ensure that that did not happen.
The Select Committee on Procedure recommended that the responsibilities of the Select Committee on the Parliamentary Commissioner for Administration should be carried out by the Select Committee shadowing the Treasury or the Civil Service Department. It may be that an even better suggestion would be to have the Ombudsman report to the Public Accounts Committee and to make it a Public Accountability committee.
In some instances there is an overlap of the responsibilities of the Ombudsman and the Comptroller and Auditor General.
922 I welcome the debate because these two reports are important. They involve responsibility in a range of activities of a developing institution that is concerned with the protection of citizens, or groups of citizens, who feel underprivileged or resourceless against the tremendous weight of bureaucracy. I look upon the institution of the Ombudsman as one of our greatest allies as a Member of Parliament. We have the same task although we have different powers and a different way of fulfilling it. We act together.
§ 12.30 p.m.
§ Mr. Michael Stewart (Fulham)
I join in the congratulations which have been expressed to the hon. and learned Member for Colchester (Mr. Buck) on initiating the debate, and in the tributes which have been paid to the distinguished men who have held the office of Ombudsman. It is an office the authority and influence of which have grown steadily over the years. If I may say so, the hon. Member for St. Marylebone (Mr. Baker) takes too pessimistic a view of its degree of influence at the present time. He seemed to think that on balance it was just worth having. It is very much more than that.
If at first the office did not appear to be having very much impact, we should notice the great speed with which the impact of the office has increased. I think that this is partly due to the existence not only of the office itself but of the Select Committee, because we have been able, together with the Ombudsman and the witnesses who have come before us, to build up, as it were, a growing doctrine on how the office can work and how it can become more effective.
There is, for example, the development of the important doctrine that I have described as the doctrine of constructive maladministration; that is to say, if what has happened is plainly bad, one infers that there must have been maladministration somewhere. That has been an important and useful doctrine. One could give other instances of the way in which authority has been added to the office.
If the job of the Ombudsman reporting to this House were transferred to some other Committee which had large responsibilities in other fields, or if it were fragmented among departmental committees, this impetus would be lost. I hope 923 very much, therefore, that the present Committee will remain in being.
As for the impact of the office, if anyone has any doubts, the cure for that is to read the ordinary reports of the Ombudsman. They appear to deal with very humdrum matters, but each was a matter of great importance to the complainant. Anyone who reads those reports will be astounded at the extent to which injustices, large and small, have been remedied. Compensation and ex gratia payments have been made and—perhaps more important in the long run —changes have been made in procedures in Government Departments to prevent like injustices arising in the future.
It is still true that the public do not know enough about what the Ombudsman actually does. The press is not very helpful, I am afraid, in publicising the work of the Ombudsman. I want to rebut two criticisms of the office of Ombudsman which sometimes appear in the press and have a certain popular currency, but which are, I believe, based on complete misconceptions. The first is the criticism that in the Ombudsman's report the complainant is never identified by name but remains anonymous. It is sometimes suggested that this is some way of concealing from the public what is happening. But surely it must be plain that only one person has a right to divulge the identity of the complainant, and that is the complainant himself or herself.
Many of the complaints are of such a character that the complainant does not want his identity to be known, but if he does he can easily make it known at any stage in the proceedings. A member of the public can write to his Member of Parliament and say"I want you to put this case to the Ombudsman ", and he can then immediately inform the press, nationally and locally, that he has done so. He can inform the public at any stage during the investigation, and when the Ombudsman's report comes out it is open to him, if he wishes, to tell the press that he is the person referred to in case number so-and-so.
There is, therefore, in all these matters as much publicity as the complainant wants there to be. That is, I think, how it should be and how it should remain.
The other criticism sometimes levelled against the office is that the Ombudsman does not have what the hon. Gentleman 924 referred to as mandatory powers. The Ombudsman can make a report saying that a Government Department ought to do something. He cannot issue an order saying that it shall do it. I believe that this criticism is misconceived. The Ombudsman can be regarded, in a case where he has found maladministration, as a kind of prosecutor, pushing the Government Department in question into the dock, but he is not the judge. The final judge of a Government Department must be this House.
I think that successive Committees have been disappointed in that they have never been able to push the Inland Revenue quite as far as they would have liked on the question of what is to be done when tax is either overpaid or underpaid. We did succeed in pushing the Inland Revenue to a certain extent but, after all, public expenditure is involved here. It will be extremely difficult for a Government Department, which tries to plan its expenditure over the year, if suddenly it is to be told that it is to pay compensation in a particular case, because, this, of course, will be a precedent.
If anyone is to order a Government Department to do that, it ought, I think, to be this House, which carries the ultimate responsibility for public expenditure. It certainly is not true that, because the Ombudsman does not have mandatory powers, he is helpless. An adverse report from the Ombudsman, recommending that a certain course of action should be taken, is an impressive thing. The hon. and learned Member for Colchester referred to the Sachsenhausen case. One interesting thing about that case is that, although the Ombudsman could not order the change to be made, the fact that he made it was extremely impressive. When the Department showed some hesitation about making it, Parliament very promptly insisted that the Ombudsman's recommendations should be carried out.
It is always within the power of Parliament, if it feels strongly enough, to turn the Ombudsman's recommendations into mandates. Knowing that, I think that a healthy respect has grown up in Government Departments for the office of Ombudsman. Indeed, at one time we investigated this matter in the Committee. Is there any danger that any Government Department's officials will always ask 925 themselves"What will the Ombudsman say about this?", and that in consequence they will be timid and hesitant and everything will take rather longer to do than it did before?
I am glad to say that we found that that was not so and that a sensible relationship had developed between the Ombudsman and Government Departments. They knew that he was a shrewd observer and, if necessary, a pungent critic. None of the Ombudsmen has ever shown any signs of being a tiresome busybody. That, I think, is one of the reasons why we can properly give the office some of the extensions proposed in the report.
If, at the time the office was first created, it had been suggested that the Ombudsman should have the right not only to point out maladministration of the present law but to suggest injustices in the law itself and to suggest that the law was not doing what Parliament really wanted to be done, I think that that suggestion would have been resented by Parliament. But now, having had some experience of the office, and knowing the sensible relationship that successive Ombudsmen have had with Government Departments, I think it is right to make this extension of the Ombudsman's powers—the more so as we live at a time when we are ceaselessly passing laws, particularly laws which affect the citizen's rights.
Some people say that the remedy for that is for us not to pass so many laws. I think that this is a complete misunderstanding of the age in which we live. We want the system of social security benefits to be sensitive and to be able to apply itself, quite often to particular small groups of individuals. We learn by experience whether this or that benefit is working as it was intended to work, and in what fields it ought to be extended. To do that we have to have successive pieces of legislation.
That means that we are hard worked. We should not be afraid to admit that sometimes we do not get things quite right. In the light of our knowledge of how well the Ombudsman system works, I think we can properly entrust him with the job of saying from time to time—he would not do it often—" I find that the Department administered the law correctly and carefully, but the result is un- 926 satisfactory because the law is not producing what Parliament wanted it so produce ".
For the same reason, namely, my confidence in the way that the Ombudsman works, I think that it is right to extend his powers to occasional inspection of Departments. His usefulness is limited if he is regarded merely as a person who investigates particular complaints. From the investigation of particular complaints there comes a whole body of knowledge of how certain things should be done inside Government Departments. Therefore, I hope that those recommendations of the Select Committee will find favour.
Finally, I turn to the recommendation that there should be regular debates. If my right hon. Friend the Minister of State is ungenerous, he may say"Why this demand for regular debates when there are only a dozen Members in the House for this one?"That argument will not stand up. It is because there are no regular debates that, first, we must have them on Fridays and, secondly, that it is a matter of chance whether we have one. Today is a fortunate chance.
We all know that attendance on Fridays is limited. There is a good reason for that. Hon. Members have many other duties outside attendance in the Chamber and some of them can properly be carried out only at the weekend. That seems to be a reason for an annual debate, at any rate, on the report of the Select Committee on the Parliamentary Commissioner for Administration being fitted into the parliamentary timetable. As, almost certainly, the Government will decide at the beginning that they cannot afford to give more than half a day, I specially recommend that it should be the first half of the day and that the second half be occupied with contentious business which is bound to be followed by a Division.
It does not require much ingenuity to produce that result. I am sure that in the arrangement of the business of the House there is sometimes a good deal of ingenuity. For example, on frequent occasions we have been asked to debate European affairs at times when the European Assembly has been sitting in Luxembourg or Strasbourg. Therefore I conclude that this must in part be the intention of the Government. If the Government can use 927 their ingenuity in that way, they can use it in the way that I have suggested. I hope that the Government will consider my suggestion. We are not so intolerably busy that it could not be done. It would considerably increase knowledge about the nature and purpose of the office of Ombudsman not only of hon. Members, but of the public. I hope that we shall get a favourable reply from the Minister on that matter.
§ 12.44 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
It is a great pleasure to follow the speech of the right hon. Member for Fulham (Mr. Stewart). I followed him into the Chair of the Select Committee on the Parliamentary Commissioner for Administration some years ago. Indeed, he is one of the founding fathers of that office and he is right to be proud of his child.
I think that this is the moment, when for the first time we have a non-civil servant as the new Ombudsman, to take stock. This is a matter in which I have been concerned. I am anxious that there should not be a tradition that the office of Ombudsman should always go to a retired civil servant. From the point of view of appearance, it is important for the public to know that, excellent though the three retired civil servants have been, their appointments were not intended as a cover-up operation by the bureaucracy. We now have a fresh mind on it.
I am delighted, though I do not think it is essential, that the new Ombudsman comes from the legal profession. I think that he will take a little time to understand the workings of Whitehall. It will take him some time to appreciate the different nuances between the different Departments.
It is my experience—I am sure that it is also the experience of the right hon. Member for Fulham and of my hon. and learned Friend the Member for Colchester (Mr. Buck)—that some Departments are more co-operative than others. The two Departments which were most cooperative, despite one or two remarks which have already been made, were those from which, curiously enough, the former Ombudsmen came. The Department of Health and Social Security was extremely co-operative in my time when Sir Alan Marre was the Ombudsman. The Department of the Environment was 928 certainly very helpful when Sir Idwal Pugh was the Ombudsman. The Inland Revenue became more co-operative as the years went by. There was a time when there was a kind of armed neutrality between the Ombudsman and the Inland Avenue. Fortunately, that has broken down.
I regret that there remains one Department—the Home Office—whose intransigence is eternal. I hope that somehow Mr. Clothier, the new Ombudsman, will be able to make a dent in that.
The office of Ombudsman and the Ombudsman idea are becoming increasingly popular. We now have proposals for a multiplication of Ombudsmen. There is a proposal, which I welcome, for a European Ombudsman to look after the bureaucracy in Brussels. However, we must be careful not to over develop the idea so much that the public do not know to which Ombudsman to turn with any particular grievance because jurisdictions are liable to overlap. It is important to get a single post office, as it were, to which complaints can go and be distributed to the correct destination. Otherwise, the complications will become too involved.
I was glad that the right hon. Member for Fulham mentioned the philosophic argument about maladministration. The public do not understand the word. Any member of the public who thinks that a wrong decision has been given wants a right decision. He thinks that the Ombudsman is an excellent person to do that, because he gets his services free. The public often do not realise what they would have to pay for the services of a man in the office of Ombudsman if they had to go to private practice. They are getting enormous services and advice absolutely free, gratis and for nothing.
I think that the service is becoming more popular because people are beginning to realise what they are getting. However, they do not like it when they are told"Although we do not like this decision, we cannot say that there was any delay, that there was any concealment or that any of the steps taken were improper ". A member of the public receiving such a decision feels that his appeal, as he thinks of it—wrongly—has not been heard.
929 Therefore, as the right hon. Member for Fulham said, it is important to develop the ingenious concept of"the bad decision "—a decision so bad that, as is said in the courts, no reasonable man could have come to it. That in itself is a point of law rather than of fact and is therefore maladministration. It is a philosophic argument which may be difficult always to justify, but I believe it to be on the right lines.
The origin of this Ombudsman idea stems not only from the article in the New Statesman by the right hon. Member for Fulham but from the experiences of Crichel Down. It was clear at the time of Crichel Down that the old doctrine of vicarious ministerial responsibility was out of date, in the sense that no Minister could be expected to take responsibility where there are such myriads of decisions and such scores of bad decisions that inevitably come out of these enormous Departments.
The last Minister to resign for vicarious responsibility, not personal responsibility, was, of course, Sir Thomas Dugdale, later Lord Crathorne. Ever since then, it has been thought that that was impossibly unfair on Ministers. As a result, the academics, politicians and theorists tried to devise a means of pinpointing responsibility for decisions at the right level within the bureaucracy.
It was envisaged at the time of the passage of the legislation that, in suitable cases, the man who was really responsible, particularly for a flagrantly bad piece of maladministration that had caused great injustice, should be named. That was envisaged because the public's view of the grievances is often not that they want money but, in the words of the old song, that"somebody ought to be summonsed ". If the name is not given, it may be a rather Old Testament feeling, but the person who has had a grievance does not feel that justice has been done. Although this has not occurred in Ombudsman inquiries, it has been done in many ad hoc inquiries that have been set up to investigate cases of singular maladministration.
I instance the Templeman inquiry into the collapse of the Vehicle and General Insurance Company, where Mr. Michael 930 Jardine was named. Although it was very hard on him and there was a lot to be said for him and for what he did, one could not expect the public who had lost their money to accept that this was the responsibility of some faceless and unnamed civil servant. After all, when there is an inquiry into a train crash, Aberfan or something like that, the driver of the train or someone else responsible is named.
It should be impossible to protect the civil servant from being named when much humbler people who have caused troubles are named. I am surprised that successive Ombudsmen have never found fit to name the civil servant whom they think is responsible. In small cases, where it is merely a matter of delay, that may be justifiable. Where there is a serious case of grievance, injustice and flagrant maladministration, I do not believe that the anonymity rule should apply any more.
I would like to say a word about two matters where I think this great machine is not working properly. The first is where a Minister is found guilty of maladministration. This has happened two or three times. It happened in the case of Court Line and it happened, as a by-blow, in the Ducchio painting and Sachsenhausen cases—
§ Mr. Fletcher-Cooke
And television licences. Almost always, in such cases—I am talking about personal responsibility of the Minister, not vicarious responsibility—the Minister immediately stages a debate and pre-empts the work of the Committee, and so the work of the Committee thereafter is useless. Once the Minister has made his statement and almost inevitably exonerated himself, it is not possible for the civil servants under him to give any useful evidence before the Select Committee.
Ministers must not fall for the temptation to make a personal exoneration at an early stage before the Select Committee has had a chance to do its work. It behoves the Select Committee, in those circumstances, to work exceptionally fast and to put everything else aside because it is not fair that the Minister should have this blame hanging over him for 931 long. I am sure that the Select Committee will do that, but it has not been given that chance in the past. The Minister has come to the House and said,"The Ombudsman is all wrong and I reject his report." That really puts an end to any useful work by the Select Committee afterwards.
The second matter to which I refer is the vexed question of inquiries into grievances relating to personnel, whether they are putative civil servants, existing civil servants or ex-civil servants, and the same goes for the armed forces. I have heard this argument by the bureaucracy over and over again. I have never been convinced by it. Even in the case of existing civil servants and members of the armed forces, I believe there should be a right of recourse to the Ombudsman.
Such has been the complete blank wall of granite over 10 years by the Civil Service and each successive Government against that being done. That I am prepared to settle for the compromise, perhaps the thin end of the wedge proposed in the report that we are discussing. I hope that there will be some favourable words from the Minister when he comes to discuss the report. After all these years of battering at the walls. I think that successive Select Committees deserve a little success.
§ 12.57 p.m.
§ The Minister of State, Civil Service Department (Mr. Charles R. Morris)
At the outset, I wish to associate myself with those who have expressed appreciation to the hon. and learned Member for Colchester (Mr. Buck), for the opportunity that his motion provides to debate the work of the Parliamentary Commissioner for Administration and Health Service Commissioner. Equally, I am conscious that the hon. and learned Gentleman has, over a number of years, made a signal contribution to the work of the Select Committee on the Parliamentary Commissioner, both as a founder member and latterly as Chairman of the Committee itself. I am delighted also to see so many other founder members of the Select Committee present for the debate.
The PCA and Health Service Commissioner has over the years proved himself to be a valuable weapon in the armoury of the individual citizen, in what some may regard as the unending struggle 932 against injustice and maladministration by unthinking bureaucracy.
These words may sound somewhat odd coming from a Minister with responsibility for the Civil Service, but the benefit that Government draws from an effective Parliamentary Commissioner for Administration system derives not just from the handling of the individual cases investigated by the Commissioner but from the lessons for good administration of a more general kind which can sometimes be learned and applied from such cases. This is one of the main reasons why individual PCA cases are taken so seriously and given such priority by Civil Service Departments.
I am aware of the suggestion that too much time and effort is devoted to particular investigations. The Government believe that although while obviously the amount of time given will vary according to circumstances, there is a great advantage in dealing with cases in the most thorough and careful manner.
The hon. and learned Member for Dar-wen (Mr. Fletcher-Cooke) referred to the need for the active co-operation betweeen the individual civil servants of a Department and the Parliamentary Commissioner. He referred to what he thought was the unusual situation that individual commissioners who had a Civil Service background seemed to get more co-operation from the Department from which they emanated. I should like to think that that was a happy coincidence rather than an intention, because I hope that every Department's civil servants would actively co-operate with any Commissioner.
The principal officer of individual Departments of State is directly involved in PCA cases and he takes the responsibility for considering any wider implications for his Department The benefit of this is that he can judge whether individual cases reveal more general shortcomings in administration and, with the backing of his Minister, can take steps to put the matter right.
The time is certainly right for the kind of thorough review of fundamental aspects of the system that the Select Committee has undertaken. It is over 10 years since a Labour Government set up this system under the Parliamentary Commissioner Act of 1967. They saw it 933 then as a significant step in our constitutional arrangements and believed that it would provide an important safeguard for the citizen who felt that he had sustained injustice or hardship as a result of administrative action by Government Departments.
As was said by the hon. Member for St. Marylebone (Mr. Baker), at that time there were many critics, and during the early years of the PCA's operations some thought that the Commissioner would not provide an effective instrument for dealing with complaints. It was argued then that he would not be able to stand up to powerful Government Departments, but as the system has developed over the last decade it has demonstrated beyond any doubt that those early misgivings have been wholly misplaced. The office of the PCA has clearly established itself as a formidable defender of the interests of the individual citizen and a valuable supporter of Members of Parliament in their vital task of representing their constituents and ensuring that they receive equitable treatment from Government Departments. It is therefore right that the system should be reviewed from time to time. There will always be a need to see whether there is scope for strengthening and improving it. This is an appropriate point to recognise the success to which the imaginative move to establish a PCA has led.
The background to the establishment of an Ombudsman was the increasing concern, in the late 1950s and the 1960s, about the impact on the individual citizen of the widening scope of Government activity and a greater volume of complaints about the insensitivity of departmental administration. Parliament had always been seen as the main channel for representing the citizens' interests, but notice was also being taken at that time of the ombudsman system in Scandinavia, especially in Sweden.
The Whyatt Report of 1961 by Justice helped focus public discussion of this question. That report centred on the best way to adapt the ombudsman system to fit our constitutional arrangements, and particularly the key role of Parliament as the vehicle for redress of grievances of the citizen. The scheme introduced in 1967 was designed to meet this objective, and, as was made clear during the 934 Second Reading debate on the Bill, it was envisaged that the Commissioner should supplement rather than supplant Members of Parliament as protectors of the rights of individuals. The importance of Members acting as a screen for complaints was emphasised. I will return to this question shortly, but it is important that we bear in mind this background and, in particular, the parliamentary nature of our version of the Ombudsman when we consider proposals for change.
A great deal of the credit for the successful development of the PCA office must go to the three successive Commissioners, and I am grateful to the honourable and learned Gentleman for making specific reference in the terms of his motion. In different ways, each has made a notible contribution to the enhancement of the office and its effectiveness in its work on behalf of the individual citizen.
This is an excellent opportunity to pay tribute to the work that each of those Commissioners has done, and particularly to support the tribute that Mr. Speaker paid this morning. I also support the comments of the Prime Minister and his tribute to the present Commissioner, Sir Idwal Pugh, who will be retiring at the end of this year. Equally, I wish to join those who have congratulated Mr. Clothier on his appointment to succeed Sir Idwal as Commissioner and to wish him well in his arduous and challenging role.
Mr. Clothier's appointment is significant, because it is the first under the new procedures outlined by the Government in the White Paper of March 1977. The appointment also reflects the Government's undertaking in that White Paper that as, to date, the three appointees have been from the Civil Service, the next Commissioner should be someone with substantially different experience. The Government believe that the appointment of the new Commissioner achieves the objective that successive holders should bring to the office diverse but relevant experience.
The Government welcome a strong and effective Parliamentary Commissioner as a key element in helping to ensure fair and efficient departmental administration. The hon. and learned Member for Colchester referred to the conclusion in the Select Committee's report that the PCA 935 should be given more general powers of inspection of particular areas of departmental administration, so that general improvements can be achieved. The Government will consider that point along with the others made by the Select Committee—[HON. MEMBERS:"When?"]—and those that have been made during this debate. The Government will comment in due course.
§ Mr. John Cope (Gloucestershire, South)
The Minister was a little vague about when the Government hope to do this. They have had four months to consider this report and a great deal longer to consider the report on the Health Service Commissioner.
§ Mr. Morris
There was no vagueness on my part. I hope that the Government's response will be published towards the end of January. That is no greater a time lapse than was experienced the last time that the Select Committee reported.
During this debate, I felt it right to place on record the fact that under the existing arrangements the Government see it as an important by-product of investigations by the Commissioner that, wherever necessary, not only should any shortcomings related to the individual case be put right but any improvements in administrative procedures and practices of a more general kind should be achieved.
Perhaps the most fundamental question dealt with in the Select Committee's report is whether access to the Commissioner should be solely through Members of Parliament. I have listened to the conflicting views voiced during the debate today. I am equally conscious that a great deal has been written about this issue by observers of the PCA system in general, both inside and outside this House. I am grateful that the Select Committee has now presented a careful analysis. It has concluded that while arrangements for facilitating access of the complainant, along the lines already introduced by the Commissioner, should be encouraged, access should continue to be channelled through Members of Parliament.
Access to the Parliamentary Commissioner for Administration raises in a fundamental way the traditional role of 936 the individual Member of Parliament. The question at issue is whether the PCA should continue to be seen as an instrument—a very powerful and effective instrument—to assist Members in the exercise of their important task of ensuring that the interests of the individual citizens are properly represented, or whether the present exclusive link with Members should be broken and the citizens encouraged to bring complaints direct to the PCA.
The implications of change would be far reaching, as the Select Committee pointed out. Cases of complaint from individual citizens dealt with by the Parliamentary Commissioner represent only a small proportion of those handled every day by individual Members of Parliament. The PCA cases at present tend naturally to become complex where detailed investigation of departmental files is called for.
As the hon. and learned Member for Colchester indicated in his opening remarks, literally thousands of cases are brought forward by constituents to Members which they handle themselves directly with Ministers or their Departments. In many instances they are simple and straightforward matters which can be resolved readily but which none the less represent very real points of concern to the individual citizen.
It is by no means clear what the consequences of a move towards direct access would be, but obviouslyif, over a period of time, significant numbers of the cases now dealt with with by Members were transferred to the PCA, that would materially affect the nature of the Commissioner's office and the role of the Member.
One question that must be considered before a change is contemplated is whether the Commissioner's investigative machinery would be a more effective and efficient method of handling the complaints at present dealt with by Members. Clearly there would be consequences for the relationship between Members and their constituents, and for the way the PCA office now operates.
The PCA office is designed as a high-powered office inquiring into relatively few complex cases. With direct access it would become a much larger organisation, dealing in addition with substantial numbers of relatively simple and straightforward 937 questions. It might mean that it would not be possible for the PCA himself to look at all cases under investigation by his office.
The position of Departments also would have to be considered. They could not give the high priority and immense detail of attention that they do at present to PCA cases. These would greatly multiply in number and include the more straightforward cases that one might expect to be dealt with by a single letter or telephone call.
The Government, as I have indicated will in due course wish to express a view on this most important issue when offering observations on the Select Committee's report. Certainly, we shall take careful note of the views expressed during the debate. This is essentially a question on which each individual Member must make his own judgment, drawing on his individual experience and view of the proper role of a Member.
I do not intend to delay the House today because I recognise that many hon. Members still wish to speak. It is right that they should do so on a subject which, as Members on all sides recognise, is directly related to their role as Members of this House. The Government will take careful note of the views expressed today in considering their observations on the Select Committee's report on access and jurisdiction, but the House may be assured that, whatever the view taken on particular suggestions, the Government's overriding objective will be to see that the PCA system can continue to develop in the most effective manner possible.
I was very impressed by the shrewd observations of my right hon. Friend the Member for Fulham (Mr. Stewart) and the points that he made about anonymity, the relationship of the Ombudsman to Parliament and the need for regular debates in this House. I listened closely to his suggestions on the way in which we can ensure that the PCA debates receive their rightful public attention. I remembered the years that I spent in the Government Whip's Office, and felt that had he not taken over his distinguished role in the then Labour Cabinet he would have made an effective Chief Whip of that Administration. I acknowledge his point about regular debates. It is one 938 aspect of this question that will be considered by the Leader of the House. I am sure that the views of my right hon. Friend will be given most careful and serious consideration.
§ Mr. Baker
The House is rather disappointed by the Minister's speech and the fact that the Government have not come to a decision on any of the substantial matters in this report. The Government have had the report for three or four months and clearly the Minister's Department has been considering these issues for some time. I hope that the Government, in coming to their conclusions on the various recommendations, will not be tempted to spend a great deal of time debating the pros and cons of direct access or throwing a sop to the House of a few more debates. The important recommendations in this report concern the extension of the Ombudsman's powers. I hope that when the Government consider this, the general attitude of negative and neutral thinking that has permeated the Minister's speech today will not prevail.
§ Mr. Morris
I understand the disappointment of the hon. Gentleman at what he describes as a negative ministerial response to the debate, but I hope that his view is not shared by hon. Members generally— [HON. MEMBERS:"It is ".]—Allow me to finish the point. The hon. Gentleman has rightly expressed his disappointment, but I think it would be valuable for the Government to consider the points that have been made during the debate before we announce our observations on the recommendations of the Select Committee.
The Civil Service Department has been considering the implications of the Select Committee's recommendations, which are vital. Their importance is such that one would not want a hasty response from the Government. This debate gives hon. Members the opportunity to have an input to the Government's thinking before the Government announce their observations.
§ Mr. Morris
My hon. Friend the Under-Secretary of State for Health and Social Security will be dealing with that.
I noted the point made by the hon. Member for St. Marylebone about the possibility of establishing a Select Committee on what I think he described as public accountability. Again, the debate has provided the hon. Gentleman with a forum in which he can express a view which the Government will seriously consider.
I have also noted the point made by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) about those cases in which Ministers have a direct responsibility. That matter will also be given careful consideration.
The debate has been extremely valuable. It has certainly been valuable to me, as a Minister. The views expressed will be given the most careful consideration.
§ 1.22 p.m.
§ Mr. John Cockcroft (Nantwich)
I should like to add my appreciation of the services of Sir Idwal Pugh. In my experience as a Back Bencher, I have found that he has great humanity and great conscientiousness in fulfilling his duties. Many of my constituents are delighted to know that he has addressed himself to their problems, even when he is not able to help directly. They are, of course, even more delighted when he can do so, but they are pleased that someone has taken notice of their individual problems, often after they have grappled with faceless bureaucracy at national or local government level. It can be very difficult to obtain a name to write to, a name at the end of a telephone, or the name of someone to see if one calls at an office.
I believed that the establishment of the office of Ombudsman to watch over administration was long overdue, and subsequent events and the efficacy of the institution have proved that. The question now is whether the Ombudsman's powers should be extended and what the nature of his experience should be. I am glad that a barrister is to be appointed to the position, but I hope that the appointment will not create a new tradition. I hope, too, that from time to time former civil servants will be appointed to this 940 high position, because by virtue of their past careers and experience they bring invaluable advantages, in particular through their knowledge of the workings of Whitehall and Westminster.
There is also the question of direct access to Members of Parliament, who these days are to a large extent do-it-yourself Ombudsmen. There are obvious advantages in a filtering system with complaints going through Members of Parliament, but it would help if the work of the Ombudsman were more widely publicised. He would be more effective if more people knew how to approach him and knew the nature of his work. A small sum of public money might be used to advertise further and make known what he does and how he should be activated to do his job.
In addition, there is the matter of direct access by the Ombudsman to Cabinet papers, which would be a step in the right direction. He would then have for his own use all the relevant information in important cases. Even though it would not be made known to the general public, it would bolster his position in the eyes of the public if they knew that he had that extension of the sources of information available to him.
Recent Ombudsmen have rightly been outspoken on important occasions when it was appropriate to be so. They have rightly sought to broaden the scope of their office, and therefore presumably their work load and the work load of all those who work so ably for them. I agree that the scope could and should be widened further. In this context I think particularly of quangos and the nationalised industries, those industries whose detailed activities are so closely guarded from the attention of the House at Question Time and from the occasionally baleful gaze of the Select Committee on Nationalised Industries, on which I am honoured to sit. There is considerable scope there for widening the Ombudsman's activities.
Therefore I conclude—I have spoken briefly, as is my wont—by welcoming this debate on a most important and ever-topical subject. I also congratulate my hon. and learned Friend the Member for Colchester (Mr. Buck) on being able to initiate it.
§ 1.27 p.m.
§ Mr. Charles Morrison (Devizes)
Echoing the final comment of my hon. Friend the Member for Nantwich (Mr. Cockcroft), I believe that the House is doubly grateful to my hon. and learned Friend the Member for Colchester (Mr. Buck). The first reason is that he chairs the Select Committee on the Parliament-any Commissioner for Administration and does it excellently. The high quality of the Committee's reports and reviews is a reflection both of his own ability and that of his colleagues on the Committee. The second reason is that he has decided to use the time made available to him, through his good fortune in the Ballot for Private Member's motions, to initiate a debate on the work of the Ombudsmen.
In its Fourth Report, the Committee rightly recommended that the reports of the Commissioners and the Select Committee should be debated at least annually. The right hon. Member for Fulham (Mr. Stewart) emphasised that. But, given the amount of work undertaken by the Ombudsmen for hon. Members, and above all for Back Benchers, it is perhaps particularly appropriate that this debate should have been initiated by a Back Bencher, albeit in the shape of the important figure of the Chairman of the Select Committee. Nevertheless, looking to the future, I think that the Government, of whatever persuasion, should not assume that those fortunate in the Ballot will opt for debates on the work of the Ombudsmen at suitably regular intervals, because the time for Private Member's motions is so limited and the matters that hon. Members wish to raise are so many and varied.
If the House owes a debt to my hon. and learned Friend, it owes an equal or greater debt to those who fill the post of Parliamentary Commisisoner for Administration and Health Services Commissioner with such great distinction. They have been of unending help to hon. Members and, more important, to those many hundreds of people who have successfully sought redress against incompetence in bureaucracy or clumsiness involving injustice perpetrated on behalf of what one might perhaps describe as a well-meaning State.
The hon. Member for Luton, East (Mr. Clemitson) pointed out that bureau- 942 cracy is a necessary part of modern life. So it may be, but so also is its proper oversight. The acceptance by the Minister of State of the help and value of the Ombudsman is very encouraging, particularly today.
The House and individual hon. Members have expressed their thanks, as you have done, Mr. Speaker, to Sir Idwal Pugh, who will be retiring shortly. His period of service has been notable both for the manner in which he has dealt with individual cases brought to his attention and for the constructive and stimulating comments that he has made in his reports on the role of the Ombudsman and the scope of the work.
The House has also welcomed Sir Idwal's successor, Mr. Clothier. He creates a precedent as the first Ombudsman from outside the Civil Service, and that is particularly welcome to my hon. and learned Friend the Member for Dar-wen (Mr. Fletcher-Cooke). Mr. Clothier's experience as a lawyer, as a member of the Royal Commission on the Health Service and as a legal assessor to the General Medical Council and General Dental Council fits him perfectly for the new role that he is about to assume.
The appointment of a new Ombudsman does, however, raise again the manner of his appointment. It is very helpful, and entirely proper, that the Chairman of the Select Committee should be consulted, as he was on this occasion for the first time. Consulting Parliament about appointments, perhaps especially in the world of quangos, is a principle which could well be extended, and I have a feeling that it will be extended in the fullness of time.
When the office of Parliamentary Commissioner for Administration was first established 11 years ago there was some doubt about its value. There was even some derision. There was certainly scepticism about its power to achieve anything, as my hon. Friend the Member for St. Marylebone (Mr. Baker) remarked. It was also interesting to be reminded that the origin of the appointment went right back to the time of Crichel Down.
The reservations and doubts which were expressed some 11 years ago would not be expressed today. As the Minister of State said, the Ombudsman has proved to be a supplement to Members of Parlia- 943 ment. The alliance, to which my hon. Friend the Member for St. Marylebone referred, between Members of Parliament and the Ombudsman has developed, and I believe that it will continue to develop. There are, of course, arguments about his powers. These arguments will continue, and no doubt there will be further developments as time goes on, but we now know for sure that there is no opposition to this concept.
The work of the Ombudsman is not dramatic, as my hon. and learned Friend the Member for Colchester said, but it is, none the less, far reaching. Almost alone amongst institutions created during the past 20 years, it is a success. Perhaps that is because it is a check on bureaucracy and not an addition to it. In the world of"them"and"us"it is a relief to find one institution which is wholeheartedly and unsparingly on our side.
The more all-enveloping the State becomes, the more important it is that the citizen should have an extra avenue of redress and the more important it is that he or she should be aware of its existence. Thus the emphasis on publicity and increasing the knowledge of the public about the role of the Parliamentary Commissioner for Administration, as set out in the first chapter of the Ombudsman's report for 1977 is well placed indeed. So often it is those who are in the greatest difficulty who have least knowledge of their avenues of redress and how to set about obtaining it.
That brings me to the question of access. Should there be direct access? My hon. Friend the Member for St. Marylebone believes that there should be. Thanks are due to Justice for its encouragement of the Ombudsman and to the Select Committee for considering this issue. The conclusions drawn by the Select Committee seem to me to be entirely sensible. The comment by the Speaker of the Knesset, referred to in the Fourth Report, thatIn your country, each Member of Parliament is an Ombudsman for his own constituentsshould be both a fact and a compliment.
Given also the figure mentioned by my hon. and learned Friend the Member for Colchester of about 100,000 cases being taken up annually by Members of 944 Parliament, it can be argued that there is much to be said for the Member of Parliament filter, and the use made of Members of Parliament in constituency cases is precisely why the Member of Parliament-constituency relationship is so valued in this country.
At this stage I tend to take the view that direct access would gradually change the nature of a Member of Parliament's job as well as that of the Ombudsman. The compromise that has been arranged and is working seems to be adequate to cope with any case which, unusually, the constituency Member of Parliament has not had drawn to his attention or which a constituent does not wish to draw to the attention of his Member of Parliament. However, more experience will tell whether the compromise is adequate. No doubt the Select Committee will wish to keep a close eye on the question of access.
In particular, perhaps, the value of the Member of Parliament filter is shown by the fact that in only 5 per cent. of the cases which came directly to the attention of the Ombudsman in the first few months of operation of the compromise system did he consider he could usefully intervene. Lack of jurisdiction may have excluded others—but more of that in a moment.
Finally on the issue of access, the establishment of an office for the Ombudsman in the Palace of Westminster could do nothing but good.
With regard to jurisdiction, it would be nice to learn today when the Government propose to legislate to amend schedule 3 to the Act in line with the Select Committee's sensible recommendations. There is much to be said for all those recommendations. They have received general approval during the course of today's debate, so I shall not spend much more time on them.
The Minister's speech was a considerable disappointment. He asked the right sort of questions. He asked questions which we might all ask and discussed matters in the way that the Select Committee has done. I believe that the Government should have used this opportunity to show their reaction and to demonstrate that they had reached conclusions on at least some of the recommendations, instead of just saying that 945 they had taken note, as the Minister said he had.
I must add that if the Government's conclusions on the recommendations of the report are unfavourable they will have to initiate another debate to explain how they have reached their decisions.
An independent review of complaints in National Health Service hospitals was undertaken by the Select Committee at the invitation of the Secretary of State for Social Services, with the agreement of the Secretaries of State for Wales and for Scotland. That it was a delicate task is clear from paragraph 47 of the report, where the Committee notes:The Secretaries of State gave us a difficult brief, which your Committee were reluctant to accept.Nevertheless, the Committee went on to say:We have found the subject both complex and absorbing and we are unanimous in our opinion that change is necessary.Furthermore, it is of enormous credit to the Committee and to the good sense of its members that paragraph 44 says:From the evidence we have received there is unanimous support for change and near-unanimous support for change on the lines we suggest.On the other hand, the Committee says:There is however the substantial exception that the medical profession maintain their strong reservations about our recommendations involving the extension of the Health Service Commissioner's remit to include cases involving clinical judgment. Such cases they wish to see excluded from any review.It is clear to me from my inquiries, quite apart from the evidence in the report, that the medical profession has a genuine fear that involvement of the Health Service Commissioner in clinical judgments will have a counter-productive effect. It is clear that there is no desire for over-protection, which would be contrary to natural justice, but there is a fear that the medical profession will be put in a straitjacket, to the disadvantage of the patient.
I should like to refer briefly to some parts of the evidence. I refer particularly to the memorandum submitted by the British Medical Association. Paragraph 19 states: 946the importance of the basic trust and respect of the patient for a doctor, and the doctor for the patient, is still the fundamental ingredient for the practice of good medicine. The professions profoundly believe that this invaluable relationship is likely—nay, is certain—to be damaged if either party, or both, should constantly be aware of a third party liable to enquire into and criticise the operation of the relationship.It may be that the genuine worry of the profession is unjustified and unnecessary. But it exists. In dealing with jurisdiction on clinical judgment by the Ombudsman, he wrote in paragraph 9 on page 5 of his report for 1977–78:It is evident that the wholehearted cooperation of the professions including the medical profession would be necessary, not least in nominating members of their professions as expert advisers.If there is not that wholehearted co-operation, clearly it will be difficult for this question of clinical judgment to be dealt with effectively by the Health Service Ombudsman.
Therefore, perhaps the final word on this issue should lie again with the Committee itself. In paragraph 44 of its report, it said on this matter:If a mechanism can be worked out along the lines we suggest, we believe that it will prove to be a protection for clinical freedom not an encroachment upon it.I should like to express the hope that no effort will be spared in an endeavour to work out a mechanism that will have the effect of removing the fears of the medical profession, whilst ensuring that the worries that are sometimes felt and expressed by the public have a better opportunity of being allayed.
§ Mr. Rees-Davies
Before my hon. Friend leaves that point, and for the sake of completeness of the argument that he is putting, perhaps I may draw his attention to paragraph 29 on page 15 of the report, where the matter was considered by the Royal College of Nursing. It says:We should like to see such matters investigated in a much more open way than has been the practice up to now.That covered the whole question of clinical judgment.
In paragraph 28, the chairmen of the regional health authorities, in their memorandum, went on to say:the willingness of staff exercising clinical judgment to have a complaint submitted to independent review is calculated to increase confidence both between patient and clinician 947 and between the public and the profession as a whole.Does my hon. Friend agree that we ought to make the greatest effort to ensure that the medical profession does come behind the views of the regional health authorities and, indeed, the views of the nursing profession?
§ Mr. Morrison
I am grateful to my hon. and learned Friend. The two extra quotations that he has produced from the report emphasise the differences of opinion which exist over this matter. However, I reiterate the hope that it will be possible, after further discussion, for progress to be made towards the objectives of the Select Committee so that both the medical profession and the public can feel confidence about the future, on the basis of the recommendations made.
Lastly, I come to the question of the future of the Committee. The Select Committee on the Parliamentary Commissioner for Administration has stated that it should continue as part of the Committee structure of the House. On the other hand, as we heard from my hon. Friend the Member for St. Marylebone, the Procedure Committee wants to incorporate its work into that of the single Government Department Committees which the Procedure Committee proposes. The House may know already of the general undertaking which has been given by my right hon. Friend the Member for Cambridgeshire (Mr. Pym) that the next Conservative Government will present Parliament with proposals based on the Procedure Committee report, with particular reference to the establishment of Select Committees to cover Government Departments.
§ Mr. Morrison
However, very properly at this stage, my right hon. Friend has not been too specific, as he will wish, as will others, to learn more of the reactions to the Procedure Committee report. However, the debate today has been weighted in favour of the continuation of the Select Committee on the Parliamentary Commissioner for Administration.
I cannot help wondering whether the Procedure Committee may to some extent have misinterpreted the evidence of the Chairman of the Select Committee. Para- 948 graph 5.33 of the Procedure Committee's report states:Although the chairman of the Committee, Mr. Anthony Buck, stressed in his evidence the need for ' a follow-up to see that things are done about the recommendations that the Ombudsman makes ', he was uncertain whether there would be any significant loss if the Committee's functions were transferred elsewhere, and did not think it was 'very valid' to say that the Committee had become experts in complaints '.The words"uncertain"and"uncertainty"are the complete opposite to the conviction with which my hon. and learned Friend the Member for Colchester spoke today about the continuing need for a Select Committee on the Parliamentary Commissioner for Administration.
§ Mr. Buck
I gave evidence before the Committee and it put that interpretation upon the matter. In order to make the position clear, after I had given evidence I caused representations to be made to the Parliamentary Commissioner who then submitted a memorandum to the Committee so that the Committee had before it the full case for the preservation of the Select Committee. Certainly it is the view of successive Ombudsmen that the important independent character of the Select Committee should be continued in futuro.
§ Mr. Morrison
I am grateful to my hon. and learned Friend for that. He has confirmed my opinion that that undoubtedly was a misinterpretation of his evidence. In addition, I am glad that he has drawn attention to the evidence that was given by the Ombudsman and others.
Obviously no decision will be reached solely on the basis of today's debate. But a fundamental question remains to be answered. How best can the citizen be protected against malpractice and maladministration from time to time by the State, and what are the best avenues of redress? It must never be forgotten that though most of the cases dealt with by the Ombudsman may be of minor interest in national terms, they are usually of overwhelming importance to the individual or group of individuals concerned. The Departmental Select Committees will largely be concerned with major policy matters and with overall administration. Will there be time to spare for individual 949 cases, except on the rare occasions when they involve questions of principle?
My hon. and learned Friend the Member for Colchester drew our attention to the Revenue case which involved £644. Clearly that sum was of the greatest importance to the two individuals concerned, but in the national context it was a tiny fraction. One wonders whether a departmental Select Committee could pay adequate attention to that kind of case. On balance, there are strong arguments for keeping the Select Committee under the Parliamentary Commissioner.
I should like to end by stressing again the gratitude of the House to my hon. and learned Friend the Member for Colchester. According to my research, this is the first time in the history of the Ombudsman that the work that he does has been debated in general terms by the House. Over the years there have been a number of Adjournment debates and other similar debates in connection with specific cases dealt with by the Ombudsman, but, according to the information that I have received from the Library, there has been no earlier general debate since the establishment of this important office.
We are grateful to my hon. and learned Friend. Equally, we are disappointed that the Government have not so far reached any conclusions. We hope that those conclusions will be arrived at in the near future. In the meantime, we all hope that the work of the Ombudsman will continue with its usual efficiency and success.
§ 1.55 p.m.
§ The Under-Secretary of State for Health and Social Security (Mr. Eric Deakins)
I welcome this opportunity to respond to the reference to the jurisdiction of the Health Service Commissioner made by the hon. and learned Member for Colchester (Mr. Buck) in moving his motion today.
Before doing that, I endorse all that my hon. Friend the Under-Secretary of State said in tribute to the work of Sir Idwal Pugh, who is to retire from the offices of Parliamentary Ombudsman and Health Ombudsman at the end of this year. I also endorse my right hon. Friend's welcome to the appointment of Mr. Cecil Clothier as Ombudsman from 950 1st January. Mr. Clothier is already well known to us in the NHS and we all wish him well in his new joint appointment.
In moving his motion today the hon. and learned Member for Colchester drew attention to the report"Independent reviews of hospital complaints"submitted to this House by the Select Committee on the Parliamentary Commissioner for Administration, of which he is Chairman. This report was the outcome of an inquiry into the jurisdiction of the Health Ombudsman undertaken by the Select Committee at the request of Ministers. I shall explain the background to the Select Committee's inquiry.
The subject of hospital complaints procedures was looked into by a committee under the chairmanship of Sir Michael Davies—now Mr. Justice Michael Davies. This committee was appointed in 1971 by the then Secretary of State, the right hon. Member for Leeds, North-East (Sir K. Joseph) and reported in 1973. The committee's recommendations proved controversial, in particular its recommendations about complaints concerning the exercise of clinical judgment.
These complaints had been excluded from the jurisdiction of the Health Service Commissioner when the office was first established in 1973. The Davies Committee found that they were the most difficult complaints that NHS authorities have to handle. It recommended that these complaints—like all other complaints—should be subject to independent review when the management authorities were unable to resolve them satisfactorily. The Davies Committee recognised that complaints about clinical matters were unlike most other complaints and that doctors were especially vulnerable to any mishandling of such complaints because of the possibility of litigation or unfair damage to professional reputation. The committee therefore recommended that regional investigating panels should be established to investigate these complaints. The panels would have been largely professional in composition, under an independent legally-qualified chairman, and would have had at least one other lay member. Patients would have been able to ask the panel to investigate a complaint. Doctors would have been able to ask the panel to take over investigation of a complaint that they felt was being mishandled by a health authority.
951 When the Davies Committee's report was published the recommendations about investigating panels were criticised from two viewpoints. First, it was said that bodies representing the interests of hospital doctors and dentists opposed independent review of clinical judgment other than in the courts. Secondly, it was said that many people—including the Select Committee on the PCA—were concerned about possible confusion to people who wanted to complain, arising from overlapping jurisdiction between the Health Service Commissioner and the regional investigating panels. Ministers therefore asked the Select Committee to review the jurisdiction of the Health Service Commissioner in the light of the Davies Committee's proposals for investigating panels.
The Select Committee carried out a thorough review of the problem, taking evidence from a large number of witnesses, and produced a very helpful report. My right hon. Friend the Secretary of State for Social Services wrote earlier in the year to the hon. and learned Member for Colchester, as Chairman of the Select Committee, to say that the Department was already taking action to produce a simple and straightforward procedure at hospital and health authority levels that would be easily understandable by people who wished to complain and by staff involved in handling complaints. This was the first of the Select Committee's recommendations. The Department sent out for consultation a document on these lines in April of this year. We have received many helpful comments and, early in 1979, the Department hopes to send firm guidance to health authorities on handling complaints in the initial stages.
The Select Committee's other recommendations are that health authorities should not set up ad hoc inquiries into complains where the complainant is not satisfied with the outcome of the initial investigation by its officers. These ad hoc inquiries are not truly independent, and sometimes they cause justified resentment to staff as well as to complainants. Instead, the Select Committee suggests that all complaints—including clinical judgment complaints—should be referable to the Health Service Commissioner, whose jurisdiction should be changed accordingly.
952 The Government have not yet reached a conclusion about these recommendations. The Department has been having meetings with representatives of the joint consultants committee to discuss all the Select Committee's proposals. These discussions are still continuing and my right hon. Friend will be meeting representatives of the joint consultants committee shortly to review the position, before conclusions are reached on behalf of the Government on the Select Committee's proposals.
This is a most difficult and delicate matter, as the hon. and learned Member for Colchester and the hon. Member for Devizes (Mr. Morrison) recognise. To be fair, in its report, the Select Committee recognised some of the difficulties. I draw attention of the House to paragraph 46 of the report, which said:Several recent examples convince us that legislation is counter-productive if one of the groups primarily affected is not prepared to make it work. Some people take a different view but we see no realistic alternative in a democratic society. If change in the law can be brought about by consent, it is in our view much more likely to achieve its objective. It is not our task to negotiate or persuade but we hope the Secretaries of State will be helped in their negotiations with the medical profession by the unanimity of our views.The House will, I am sure, appreciate that there is nothing further that I can say on the subject of these recommendations pending the outcome of the discussions, including those that will be held by my right hon. Friend. I note from hon. Members' comments about the work of the Health Service Commissioner that they are well aware of the difficulties.
I should like to deal with one matter that has not been dealt with, although the the hon. and learned Member for Thanet, West (Mr. Rees-Davies) drew attention to evidence from the British Medical Association. Let me draw attention to the recent annual general meeting of the BMA, reported in the British Medical Journal on 22nd July 1978, where two resolutions were carried. These were, first:That this meeting totally rejects the intrusion of the Health Service Commissioner (Ombudsman) into the field of clinical judgment.That resolution was carried, as was a second, which stated:That this Conference deplores the use of medical assessors in relation to the investigation of clinical judgment by a Health Service 953 Commissioner and any doctor accepting such an appointment would forfeit the confidence of his professional colleagues.I think that in those circumstances the House will appreciate our difficulties, but we hope that we shall be able to report shortly. Meanwhile, I can assure the hon. and learned Member for Colchester and other hon. Members that we shall take note of the valuable points that hon. Members have made in the debate.
§ 2.3 p.m.
§ Mr. John Cope (Gloucestershire, South)
I wish to deal first with the Minister's comments about the Health Service Commissioner. I sat on the Select Committee at the time that the report was prepared, and I still do so. It was a difficult matter, as we said in the report and as the Minister emphasised. We eventually reached our conclusions unanimously, but not easily.
Reflecting on the matter in the year since the report was published, it seems to me that part of the problem with which we did not successfully deal was finding a clinical expression the equivalent of"maladministration ". As a result we may have given doctors the impression, wrongly, that the Ombudsman would give a sort of second opinion, with hindsight and all the rest of it, on the judgment that a doctor had made in particular circumstances. That is not what is intended.
Doctors know—they will all admit it —that from time to time they make mistakes. Of course they do. So do Members of Parliament, and so do accountants. I am an accountant. We all make mistakes. We should be better than human if we did not.
The purpose of allowing the Health Service Commissioner to look into matters of clinical judgment would be to enable him to look for definite mistakes the equivalent of maladministration, not merely something that had arisen in a situation in which a doctor or surgeon had a number of courses open to him and chose, as it turned out with hindsight, the wrong course. Had we been able to use the expression"clinical mistakes"we might have been able to reassure the doctors a little more, or set off less opposition to our proposals
The doctors must consider what they want. We and they are agreed that the 954 ad hoc inquiries are not satisfactory. Some doctors, and still, I believe, the BMA, believe that the only independent review of complaints should be through the courts. I believe, as did the Select Committee, I think, that that is a dangerous position for the future. The evidence that we had from America emphasised that particularly. Doctors there are practising defensive medicine because of their fear of review in the courts.
There are other factors relating to American circumstances, particularly the American way of paying lawyers. But if that were the only way in which one could get an independent review of a complaint, I feel that in modern circumstances and in the years to come that would lead to more defensive medicine and to a less satisfactory arrangement.
I wish to deal mainly with the Parliamentary Commissioner for Administration—the central Ombudsman set-up. We tend to think of the idea of a Parliamentary Commissioner as being essentially a foreign one which has been introduced into Britain. One of the points that I realised clearly in the course of membership of the Select Committee and while producing the review is that we have adapted the institution considerably in importing it to Britain. Although we use the foreign word"Ombudsman ", here he is definitely a British institution.
The real difference lies in the strength of the parliamentary link, in particular, because of indirect access, the involvement of MPs in the referral of cases, and the work of the Select Committee. Some Parliaments are more involved in the appointment of Ombudsmen, and the Ombudsman is seen more as a parliamentary officer, more the equivalent of the Speaker or the Serjeant at Arms, although I realise that the latter is an officer of the Royal Household.
The Parliamentary Commissioner for Administration in this country is an officer not of Parliament but of the Crown. He is independent, and does not act only at the suggestion of this House or its Select Committee. He makes his own judgment of the cases, and that is important. In that he differs in some respects from some of the overseas examples, though not by any means from all of them.
955 The big difference between most, if not all overseas Ombudsmen and ours is in respect of indirect access. I strongly believe that if we were to move over to direct access we would alter the role not only of the Ombudsman, but of the Member of Parliament. I think that most of us feel very strongly about that aspect of our role which involves our personally handling the cases of our constituents. I assume that we all have what we call surgeries, although perhaps in using that term we should be careful in case we offend the doctors. We all have our postbags, which bring us the individual cases.
From talking to some hon. Members more experienced than I am I am led to think that this aspect of the Member of Parliament's role has grown a great deal since the war. This is largely a response to changed circumstances, though due partly to an increase in the extent to which the Government interfere with the individual and the response of Members and the public to that.
I checked before the debate and found that in 1939 there were 163,000 non-industrial civil servants, whereas today there are well over ½ million, as the Minister of State knows. Another relevant figure is that in 1939–40 there were 4 million people paying income tax, and there are now over 21 million. That is a large part of the reason why our surgeries have grown and our postbags also have grown.
I believe it to be very important that Members of Parliament go on being central to the sorting out of constituents' complaints, not only because it occasionally brings us back to reality but because in the complaints brought to us there are frequently messages for us—messages concerning national policy and Government organisation. That is not why they are brought, but they do contain such messages.
I am sure that many hon. Members regularly find, as I do, that perhaps an old-age pensioner or some such person will appear in the surgery with starkly simple financial affairs and but the smallest complications, but he or she will produce six or eight hand-written notices of coding from different tax inspectors adding and subtracting bits and bobs which they are incapable of sorting out. I, as an accountant, sometimes have great 956 difficulty in sorting them out, too. There could be no clearer message to me in cases like that about the state of our income tax system. This is an important part of the role of Members of Parliament that I would not wish to see altered, as I think it would come to be over the years if direct access to the Parliamentary Commissioner were involved.
It is usually said that the main purpose and effect of the"MP filter ", as it is called, is to filter out—that is why the phrase is used—complaints which are outside the jurisdiction of the Ombudsman. In fact, if we look at the number of complaints which Members of Parliament refer to the Ombudsman and which turn out to be outside the Ombudsman's jurisdiction, we can see that we are perhaps not so good a filter as we might like to think. But there is consolation for us in the fact that when there was some publicity about direct access and the Ombudsman received a larger number of direct complaints, very few of them —49 out of more than 1,000—were within his jurisdiction on the face of it. That is so partly because his jurisdiction is too narrow—a point I shall argue—but partly also because we are effective as a filter in that respect.
To my mind, the principal importance of indirect access through Members of Parliament and the principal effect of it is to process complaints which can be dealt with simply. We know that an exchange of letters or a telephone call often produces the answer to a problem quite quickly. A Department perhaps realises its mistake or perhaps explains more fully what it has done and why it has arrived at a certain conclusion. The constituent is then satisfied and does not wish to pursue the matter further. Many complaints flow from a fairly simple lack of explanation by the authority concerned of a decision and the reasons for what it is doing.
Members of Parliament can help in that way, as can other institutions, such as the citizen's advice bureaux, and it would be inappropriate for the Ombudsman to deal with all these complaints as well, particularly if he had a high percentage of the 100,000 complaints referred to in our report which at present go through Members of Parliament to the Government. Incidentally, my memory is that that figure of 100,000 is 957 in any case of items going to the central Government and not those which go from Members of Parliament to local offices of the DHSS, for instance, or to local tax inspectors, which would add a great deal to that figure. We know that many complaints are referred to local offices. If any substantial bulk of those 100,000 complaints, let alone the ones to local offices, went to him, it would fundamentally change the character of our Ombudsman.
The example of some of the overseas Ombudsmen where direct access applies is not persuasive to me because many of these countries are much smaller than Britain and many have a different system. In particular many have forms of proportional representation involving multi-Member constituencies or, in the case of Israel a national list system where people have no particular Member of Parliament that they can call their own. There Dr. Nebenzahl, Commissioner for Complaints from the Public combines that task with the job of State Comptroller—we should probably call him Comptroller and Auditor General—and deals with all kinds of complaints which in this country would come to us.
I pass to the question of jurisdiction. It is my opinion that the Ombudsman should cover any part of the government machine which is not covered by other complaints procedures. He should be the repository of complaints not catered for by the government machine. Further, he could well replace some of the existing complaints procedures. The nationalised industry consumer councils have been mentioned by my hon. Friend the Member for St. Marylebone (Mr. Baker). I agree with him. There is, however, one aspect which is particularly appropriate for discussion. That is the restriction on the discussion of commercial and semi-commercial decisions of the Government. The restriction on the Ombudsman's power is very widely drawn. It is a very sweeping restriction which covers a lot of actions which I do not think it should, even if one takes the view that the Ombudsman should keep out of the Government's genuinely commercial decisions. But many of the actions are only semi-commercial, and the case of Western Ferris, which is described in the letter in the appendix to our report, is an im- 958 portant one. There, the Government those to support, with a subsidy evidently, a nationalised firm which took over some of the operations of Western Ferris which was a private concern. The nationalised company, supported by the Secretary of State for Scotland, was not in any ordinary sense of the word operating commercially. It was a subsidised service. That may have been right or wrong, but the decision to back that service was not a totally commercial decision on the part of the Government; it was at best a semi-commercial decision, and I argue that it was a completely Government decision and should have been open to be referred to the Ombudsman which at present it is not.
It is also relevant to consider whether the Ombudsman should or should not be able to look into questions of possible unfair blacklisting. The case of the Ford Motor Company is obviously much in our minds. There is an element of discretion involved in this which the Ombudsman is excluded from looking at, quite apart from the commercial restriction. It is within the Government's discretion whether or not they buy from one firm or another, but if such a decision might be based on wrongly handled information by the Government machine, it seems to me that the Ombudsman should be able to investigate it.
It has been suggested that the Ford settlement might be within the guidelines and that it will achieve the productivity as a result of changes in procedure which it is making to keep the claim within Government guidelines. If that is a fact, it would change the Government's decision and would mean that Ford had been unfairly treated. As present we, as Members of Parliament, have no way of knowing whether that is a fact. Ford may argue it and the Government contradict it, but if the Ombudsman were able to examine commercial judgments it would be a good area for him to examine, so that he could give us independent advice on whether Ford were in that way being unfairly treated.
I wish, in conclusion, to consider the future of the Select Committee. The Procedure Committee argues in its report that the Public Accounts Committee is different and should be retained, but that the Select Committee on the Parliamentary Commissioner for Administration 959 should be wound up, or at least that its role should be distributed among the other committees.
My hon. Friend the Member for St. Marylebone, on the other hand, said that the duties were in some way similar and that the two Committees might be combined into one. That is an interesting suggestion, but my hon. Friend used different arguments from those employed in the Procedure Committee's report. I do not see where the Procedure Committee was attempting to draw a distinction between the two. It says in its report that the function of an audit is an indispensable specialised role distinct from the more general scrutiny of administration and expenditure that is now undertaken by the Expenditure Committee and its Standing Committees. That is true, but how does it differ from the work undertaken by the Select Committee on the PCA? That seems to me to be a specialised role distinct from the general scrutiny of expenditure which the Expenditure Committee undertake.
I do not think that the function of audit and the backward-looking scrutiny of financial affairs is very different from the backward scrutiny of apparent maladministration, which is dealt with by the Select Committee on the PCA. My hon. Friend the Member for St. Marylebone said that the departmental Committees which were set up—I am in favour of that move—might wish to take over examination of PCA reports covering their Departments. I think that in due course that might happen and I do not rule out the idea that the work of the Select Committee on the PCA might gradually be transferred from that Select Committee to individual specialised Committees, or indeed that the two would work together. It would be a mistake at this stage to wind up the Select Committee on the PCA before that happens in implementing the changes that I should like to see.
There is another important factor to be considered. There are certain common threads which run across the Departments and which we see in our Select Committee as we examine the various reports. There are certain themes in the sense that, unfortunately, Departments do not always provide adequate or understandable information. We hear criticism of such lack of information against the various 960 Departments. There are also common matters such as the payment of interest on sums overdue for payment by the Government to individuals. This has come before us in the case of tax refunds and compensation through the Department of the Environment. It has also covered back payments of benefits from the DHSS and other matters.
There is a common thread which we pick up in the work of the Select Committee and which would be lost if the Select Committee's functions were scattered over new Committees. I am sure that those who have had longer experience than I in serving on these Committees will confirm that.
I believe that the Select Committee provides the teeth for the Ombudsman. The reason that he is often more effective than many foreign Ombudsmen is due to the close relationship given to him by the Select Committee, and the fact that the Department knows that if it goes against the Ombudsman's advice and does not do as he suggests, its permanent secretary will find himself having to explain matters to the Select Committee. Contrary to what was said on this matter by my hon. Friend the Member for St. Marylebone, I believe that this is why most of the recommendations of the Ombudsman are carried out. There are few occasions when the Departments refuse to carry out recommendations. In many cases it may not do the complainant much good because all the Department can do is to apologise. However, in most cases Departments do as the Ombudsman suggests, and frequently it leads to no help being given to the constituent, but certainly it may lead to a change in administration and in the way in which matters are handled.
That is a tribute to the Select Committee and also to the three gentlemen who have carried out the office of Parliamentary Commissioner for Administration. They have all carried out distinguished work, have been hard working and outspoken and have pushed their powers as far to the limit as they could. I believe that they have served the public well. That is not a compliment but a statement of fact. We are right to record that tribute in this debate. My hon. and learned Friend the Member for Colchester (Mr. Buck) has given a service to the 961 House in introducing this debate—a service which the Government have not supplied adequately in respect of the PCA.
§ 2.28 p.m.
§ Mr. John Ryman (Blyth)
I wish to dwell on one aspect of the debate, namely, the consequences following a finding by the Parliamentary Commissioner of mal-administration.
I wish to join in the tributes that have been paid to the initiator of the debate on this important topic, but I wish to inject a note of realism. The results of a finding of maladministration have been glossed over on the basis of"Leave it to the Select Committee and in due course all will be well ".
Let us examine the realities of the situation. Nobody goes to the Ombudsman through his Member of Parliament unless there is a history of dissatisfaction of one kind or another. Few cases go to the Ombudsman through the parliamentary representative unless, in addition to the history of dissatisfaction, there is money at stake in one form or another. In other words, the person who seeks the intervention of the Ombudsman feels aggrieved because the normal channels of complaint have been exhausted, because legal remedies are impracticable, for one reason or another, and because there is a loss, or continuing loss, in financial terms in respect of which that complainant seeks redress. Therefore, it is most important to understand clearly what happens when the machinery of the Parliamentary Commissioner investigates a complaint and eventually, sometimes after a long delay, makes a finding of maladministration.
The hon. Member for Gloucestershire, South (Mr. Cope), in an excellent and ingenious speech, said en passant that such investigations may not do the individual constituent much good. Unfortunately, that is the case time and again. I suggest that machinery should be set up to enable a finding by the Parliamentary Commission of maladministration to have an effective result and thus to satisfy the grievance which has been proved.
The present powers are extremely limited They are contained in section 10 of the Parliamentary Commissioner 962 Act 1967. Section 10(1) places a mandatory duty upon the Parliamentary Commissioner to send a report to the Member of Parliament who made the original complaint. Subsection (2) incorporates a mandatory provision that he shall also send a report to the principal officer of the department of the Civil Service in question. Subsection (3) imposes only a discretionary provision whereby the Ombudsman can, if he wants to—the word is"may "—lay before each House of Parliament a special report upon the case ".Applying that law as it stands to the facts of the average case that comes before the Parliamentary Commissioner, it is little consolation to a pensioner or taxpayer who has been wrongly deprived of a payment to which he or she is due that in due course a report will be made to either House of Parliament, or to an individual Member of Parliament, and that he or she has to wait a further period for representations to be made to the Select Committee and for the Select Committee, in due course, to impose pressure on the Minister, who, as a result of that, one hopes will put pressure on his civil servants to rectify the wrong that has taken place, and has been found to have taken place by the finding of mal-administration.
That procedure is cumbersome and slow. It does not get the person who has a legitimate grievance a fair and fairly swift result on the finding of his grievance. Once the matter has been investigated by the Parliamentary Commissioner and he has found as fact that there has been maladministration, there should be machinery by which the person who has been a victim of maladministration does not have to wait an inordinately long time for the whole paraphernalia of the Department of State, the Minister and the Select Committee to churn away, in the hope that in the end he or she will receive some compensation.
Why cannot the matter be referred as a finding of fact to a High Court judge? We would merely create a new division of the High Court. It could be called the Ombudsman division, or the Parliamentary Commissioner division. Once there had been a finding of fact of mal-administration the High Court judge would have the finding before him, and without any of the formality that one 963 normally associates with litigation he would, in effect, have to assess the damages.
The procedure would be the same as in the commercial division of the High Court. Disputes between shipowners are dealt with with the minimum of delay and with an absence of pleadings. What is wanted is a quick and efficient method of settling commercial disputes. Once the Parliamentary Commissioner had made a finding of fact, that would be an agreed finding. The person with the complaint would appear before the judge, together with a representative of the Government Department in question and the judge would have the job of making a proper assessment of damages on the evidence before him and on the report of the Parliamentary Commissioner.
I hope that the Minister will consider that proposition. My right hon. Friend has said that the Government are thinking and have been thinking for four months since the publication of the Select Committee's report.
§ Mr. Charles R. Morris
When I said that the Government are thinking and are considering the recommendations of the Select Committee I was, being an agreeable fellow, accepting the point made by the hon. Member for St. Marylebone (Mr. Baker), that the Government had had the recommendations of the Select Committee for four months. I have checked with my officials, and I find that the Government have had the report for two months. When it is borne in mind that the Select Committee took 12 months to produce the report, I do not think that two months is an unreasonable span. I have indicated that in January 1979 the Government will be making and publishing their response.
§ Mr. Ryman
I am much obliged for that indication. If that timetable is not kept, I am sure that somebody will complain to the Ombudsman. The fact remains that no one can accuse the Government of acting in these matters with inordinate speed. One hopes that there will be a speedy conclusion in due course.
In common with many hon. Members, in the past few months I have been involved in many complaints that have been referred to the Ombudsman. I have been struck by the efficient performance of that Department. I have also been struck 964 by the slowness with which matters are investigated. No doubt that is due to the many other demands upon the time of the Department. I have a case in mind where the time limit set by the Parliamentary Commissioner upon himself for delivering the eventual report has been extended on four occasions. I appreciate that the matter is complicated and that it involves a good deal of time, but that is no consolation to my constituents to whom time means a great deal.
One example that comes to mind is that of the Commissioners of Inland Revenue. I disclose an interest in the sense that my example is based on professional experience. However, I can well recall a number of cases where taxpayers have, as it eventually turned out, been treated wrongly by the inspector of taxes. Those taxpayers did not have expensive accountants experienced in negotiating with the inspector of taxes. They were simple people who accepted the decision of the inspector of taxes, which upon investigation, and without recourse to appeal to the general commissioner, proved to be wrong in law. In those circumstances an investigation was called for, and in the end it showed that the original complaint of the taxpayer was proper and that there had been an error on the part of the inspector of taxes or somebody in his department.
Often these are simple issues involving small sums. But even if only small sums are involved they are important to those who do not have much money. I represent principally a working-class constituency and on many occasions I have had to complain about the conduct of the commissioners of Inland Revenue through the local tax inspectors when advantage has been taken of ordinary people who are without the services of accountants. In some instances the claims that they could have made have not been pointed out to them, on the ground that it is not the job of the inspector of taxes to advise an individual taxpayer what he should claim. However, injustices have been done.
There are many other examples involving, for instance, the Department of Health and Social Security. It would be a good idea—I hope that the Government will consider the proposal—if my right hon. Friend were to propose new 965 machinery for the enforcement of decisions of the Parliamentary Commissioner. It is as plain as a pikestaff to me that the present machinery—I have no doubt that everyone is doing his or her best to make it work—is not working effectively. It is not working efficiently. More than that, it is not working nearly fast enough.
There was the tragic case of the former Service officers. It was a classic example. Those brave gentlemen had to wait for years before their grievances were investigated. The investigation took a long time. They would have had to wait for a far longer period after the finding of maladministration was made. Civil servants are not merely incompetent at times, and they are not merely overworked. Unfortunately, they sometimes make serious errors of judgment against a member of the public with whom they are dealing.
The sheer volume of work of Members of Parliament makes it difficult to spot errors of judgment and injustices when it is necessary to fight a great army of bureaucracy without access to the relevant papers. In nine cases out of 10 litigation is out of the question because of the expense and the impracticality of the time scale and the difficulties of getting all the proper documents, even on an order for discovery.
What is wanted is fairly swift machinery for implementing the decision once the Parliamentary Commissioner, having gone into the matter very carefully indeed, decides that there is something seriously wrong. It is wrong after that to wait for another period of time while all this machinery has to be invoked to assist the individual constituent.
§ Mr. Buck
We shall all study with great interest what the hon. Gentleman has said, but, with respect, I do not think that he has given a fair picture of the usual working of the office. There is a fairly speedy investigation by the Ombudsman in the usual case. Where, in the usual case, he finds maladministration, it is usually accepted at once by the Government Department. One must say this in fairness to the Government Departments. There may occasionally be cases where it is not accepted at once, but in the usual case, as soon as there is a finding of maladministration, it is accepted 966 by the Government Department and remedial action follows swiftly.
§ Mr. Ryman
That may well be so in the experience of the hon. and learned Gentleman, but I know of cases in which people have had to wait for months and months to get what they deserved to get years earlier. When we are dealing with matters such as pensions and arrears of tax, it may well be that usually the course is followed to which the hon. and learned Gentleman referred, but that depends upon the decency of the Department concerned. It is not imposed upon it as an obligatory duty. It is a purely voluntary duty and a particular civil servant may not seek to enforce it in a particular case.
I am suggesting that there should be a machinery of management which will ensure that something has to happen when there has been a finding of mal-administration. The person who has been aggrieved, and been found to be aggrieved by the finding of maladministration, would then, as a matter of right, not as a matter of grace, be entitled to compensation in as short a time as possible.
The question of delay is most important because no one goes to an Ombudsman initially. It is only after there has been a long delay that that happens. People do not seek redress at the hands of the Ombudsman except as a cry of despair. They go to the Ombudsman when they have exhausted the avenues of the citizen's advice bureau, the lawyer and the Member of Parliament. They go to the Ombudsman because there is no other remedy left, apparently. But meanwhile time has been going on, and therefore it is most important to deal with the matter as expeditiously as possible at that stage.
§ 2.43 p.m.
§ Mr. Tony Durant (Reading, North)
I am also pleased to take part in the debate, and I congratulate my hon. and learned Friend the Member for Colchester (Mr. Buck) on bringing the subject to the House. In following the speech of the hon. Member for Blyth (Mr. Ryman), I should like to support what my hon. and learned Friend has said. The hon. Member for Blyth was exaggerating the position somewhat. In most cases, which are of a fairly routine nature, once a fault is found the Departments are generally 967 fairly quick in trying to put matters right. Very often, when civil servants come before the Select Committee, the matter has already been dealt with in the sense that the grievance has been put right, so that we are only talking to the civil servants about precedent for future cases.
The hon. Gentleman said that the grievances of most people were based on money. I am not sure that that is entirely right, either. Many people feel that an injustice has taken place. They also often accept that there is not much that they can do about it, but they would like to have the matter investigated so that other people do not suffer the same injustice. I do not think, therefore, that everyone necessarily complains merely because of some financial reason behind the complaint. While I agree with the hon. Gentleman's general premise about delay and time—I think it was a reasonable point to make—I think that the hon. Member is slightly exaggerating some of the points in relation to the work of the Parliamentary Commissioner.
I regret that the Under-Secretary of State for Social Services is not here at the moment. I should have liked to thank him for his contribution, which I felt was helpful. He understood the problems faced when we are dealing particularly with hospital complaints and the question of clinical judgment. I echo the words of my hon. Friend the Member for St. Marylebone (Mr. Baker). I was a little disappointed with the Minister of State, Civil Service Department, who is now on the Front Bench. I felt that he could have been a little more forthcoming in dealing with some aspects of our report. I felt that somehow he might at least have gone a little beyond saying that everyone was doing a good job, that we were all marvellous chaps, and saying"Thank you very much." That was really all he said and I was slightly disappointed.
I support what my hon. Friend the Member for Gloucester, South (Mr. Cope) said about the question of clinical judgment. I think that the doctors have over-reacted in relation to this matter. If they had looked at our report a little more carefully they would have seen that we understand their difficulties. We understand that there are times when clinical judgment has to be used in making a 968 decision suddenly at the operating table, when doctors are faced with a new set of circumstances. It may be the wrong judgment that is made, but who are we to criticise? That is not the aspect with which we are concerned. We are looking at the case in which a surgeon leaves half his equipment inside somebody's stomach. We are not questioning the skill of the surgeon. There is, I believe, an over-reaction in this matter on the part of doctors, and therefore I support a great deal of what my hon. Friend has said in that respect.
I have been very pleased to be on the Select Committee. I rate is very highly in my parliamentary activities. I came into Parliament partially motivated by the desire to help the little citizen who feels that he is crushed by the bureaucracy and by the enormity of our society at the moment, with its nationalised industries, multinational concerns, and so on. I was delighted, therefore, when I was put on the Committee.
I well remember the time when I was working as a young bank clerk in a bank in London. At that time, Festival Hall was being built. I used to pass the site every day. There was a little woman who had a house on the site. As the work went on and the site became bigger and bigger, she stayed there. There were great piles of earth and dirt, but she still stayed there. Indeed, she put out a fresh placard every day on which she stated"I will not move until I get the right compensation." It stood next to the Union Jack. That kind of attitude is a great characteristic of the British nation. That little woman, whose rights were affected, was holding up the entire development. That incident taught me a great lesson about the rights of the citizen. She had a right to do it. That was one of the reasons why I have always been very keen to he involved in work of this sort.
As a young Conservative, I was involved with a pamphlet in which, some years ago, we suggested that there should be an Ombudsman, based on the experience of Scandinavia. We sent our report to the then Home Secretary, Henry Brooke, who is now Lord Brooke. I remember that he said that he was concerned that this might do away with a great deal of the work of Members of Parliament. He was concerned that the appointment of an Ombudsman would 969 be damaging to the work of Members of Parliament.
As the debate has shown, and as experience has shown, this fear has not necessarily been justified. In fact, our work as Members of Parliament seems to increase, and I do not think that many of us have lost any cases through the work of the Parliamentary Commissioner. But that anxiety was expressed at the time. Over a period of time, therefore, the Parliamentary Commissioners, as my hon. Friend the Member for Gloucester, South pointed out, have gone as far as they could at each stage of development in order not to break the very good relationship which exists between a Member of Parliament and his constituents. The Ombudsmen have tried to be a right arm to the Member of Parliament, rather than taking anything away from him. That is the way in which all the Parliamentary Commissioners have tackled the job, and that is the right way to do it.
The size and growth of bureaucracy, the amount of legislation and the complex nature of the legislation which we pass in this House necessitate very much this activity on the part of the Parliamentary Commissioner. It is interesting that in all the reports of Parliamentary Commissioners that I have studied, certainly since I have been involved, for nearly five years, the DHSS has always been at the top of the list of cases which have had to be investigated. This is a reflection of the very complex nature of our social security benefits. Many people do not know what they are entitled to get. Very often they find out too late, so that there is then some complication in the local office. This is, as the hon. Member for Blyth said, one of the most important areas of complaint. It is in this area, in which we are dealing with people who have not much money and feel particularly aggrieved at some injustice, that the Commissioner has an important job to do.
What are some of the effects? One of my causes on the Select Committee has been to talk to the top civil servants about the leaflets that they publish. A number of our cases start at the post office when the person takes the leaflet down from the rack. He may not understand it and may set off on a course of action in the wrong direction. That is 970 the result of not understanding this very woolly leaflet which has complicated wording and is most unattractive. I have recently noticed that the leaflets appear to be a little brighter and more exciting and written in simpler terms. It may be that I am having some effect. I usually raise this matter at every meeting. Therefore, the penny may be beginning to drop. It would be helpful if people got the correct information so that they could make the right claim and obtain the right pension or aspect that they want to undertake.
The civil servants were nervous of the institution when it started. They thought that it would undermine them. They are now finding that it provides a useful service. It brings to their attention anomalies of which they were not aware. It is useful for them to know about these anomalies in order that they may try to put them right. That is most helpful. Many of the higher echelons in the Civil Service now appreciate that there is some usefulness here for their Departments. However, as one of my hon. Friends said, some civil servants are too stubborn still to appreciate that. Indeed, we have some quite prickly interviews with certain Departments. I shall not reveal their names. Some Departments have yet to learn that the Parliamentary Commissioner can be of help to them if only they will approach the service from the right point of view.
We have heard talk today about whether the Select Committee should continue. I feel that it has a vital role to play. It is important that we have a close liaison between the Parliamentary Commissioner, the Health Service Commissioner and Parliament. Only through the Select Committee can the day-to-day work of the Parliamentary Commissioner be examined and be given the necessary support.
§ Mr. Wyn Roberts
Does my hon. Friend agree that there should also be a great deal of co-operation and liaison between the Parliamentary Commissioner and the Local Government Commissioner?
§ Mr. Durant
It is strange that my hon. Friend should raise that matter, because it is my next point. I am rather critical of the Local Government Commissioner. I do not think that he is doing as good a 971 job as the Parliamentary Commissioner. This service has not gone right so far and there is a need to change it. The problem lies partially in the fact that he has no one to whom to report. There is no coordinating committee to which the Local Government Ombudsman can report and which can look at and try to strengthen his work.
I do not think that councillors are good at passing on cases. I have the feeling that some councillors in my area feel that they have failed in their task if they have to pass on reports, and that may be a criticism of them. Sometimes I have quite a job to get a local councillor to pass on such a report. We should look at the work of the Local Government Commissioner, because it is not very satisfactory.
What improvements should there be? One aspect at which I should like to look concerns the tribunals dealing with health and social security matters. People can appeal to tribunals. However, if they do, they find themselves in a difficult position. If they have been to a tribunal, the Parliamentary Commissioner cannot investigate. The case is dead. That is a pity, because the tribunal obviously looks at the facts placed before it and makes a judgment. However, there may have been some aspect of maladministration before the case got to that stage. I always advise my constituents to go to the Parliamentary Commissioner first and to go to the tribunal later, because the die may be cast and there may be no opportunity to go back.
§ Mr. Durant
Not necessarily. It depends on the timing. I have found industrial tribunals fairly tolerant about time. They are not rigid on this matter. It may be that the hon. Gentleman has had bad luck. Most of the tribunals with which I have dealt have been fairly lenient. I accept that under the law there is a certain time, and they can make it arbitrary, but people can appeal and the tribunals can allow the time to run. The danger is that someone may go to the tribunal, the die is cast, and the matter is finished. I am not always satisfied that in such cases there is not some 972 element of maladministration. I am not criticising the tribunals. They can deal only with the information before them. However, this matter should be considered.
Mention has been made of the BMA and its anxieties. I do not want to labour that point. All of us, regrettably, are under judgment. We are all examined regularly, whether we like it or not. Members of Parliament in particular have to face the electorate every now and again, so their records are examined.
I do not see why doctors should he so sentive about this matter. After all, an airline pilot has an enormous responsibility when he carries a large number of passengers in his plane and has to make a judgment. Most inquiries into plane crashes generally exonerate the man if there has been a genuine human fault. They probably say that he did his best in the prevailing climatic conditions, and so on. It is only when there has been obvious maladministration and inadequate training that the judgment goes against him. I cannot see why doctors should be so sensitive, but there it is.
I favour a Parliamentary Commissioner for the nationalised industries. Indeed, I have proposed two Ten-Minute Bills, and I intend to raise the matter again in this Session for the third time: it saves printing costs. That is one of the advantages of raising a matter three times. This is an area in which some useful work could be done.
The consumer councils do their best, but they are looked upon by the electorate as adjuncts to particular industries. They are not trusted to be impartial. That is understandable, because many of them are appointed by the Minister or the industry. Therefore, there is a suspicion of consumer councils, and they do not have the teeth necessary to deal with genuine complaints.
It is interesting that every time I introduce my Ten-Minute Bill I get taken out to lunch by the consumer councils immediately afterwards, because they get extremely jumpy. I do it once a year in order to get another lunch. However, I still maintain that I am right and they are wrong.
§ Mr. Durant
They will obviously now read Hansard and that will be my last lunch.
I congratulate the three former Parliamentary Commissioners and wish good luck to the new one. It will be an interesting development. In the long run, it might not be a bad idea to try a leading ex-politician as a Parliamentary Commissioner. That would be an interesting departure. He might know his way round many places other than the Department. That suggestion might be considered on a future occasion.
I maintain that we should retain the Select Committee. We help the service to grow and develop as people need it and support the work of an important aspect of our parliamentary system, which is to help the little man who often feels crushed by the weight of bureaucracy and large organisations. For that reason I support this move to discuss this interesting matter.
§ 2.58 p.m.
§ Mr. Cyril D. Townsend (Bexleyheath)
My hon. Friend the Member for Reading, North (Mr. Durant) was right to draw attention to the complexity of some Government forms. Often, this very complexity leads to matters being referred to the Ombudsman. My wife, who was expecting a baby, went to St. Thomas's hospital and asked for the maternity allowance form. Although she happens to have two degrees, she was not given the form—on the grounds that she would not understand it and it would just cause trouble. As things turned out, when she eventually brought the form home and we studied it over dinner we found that it was, indeed, incomprehensible to both of us.
I welcome this debate, though I regret that this is our first debate on the Parliamentary Commissioner. We have devoted many days to constitutional changes such as devolution to Scotland but have never previously discussed this significant constitutional innovation.
I regard the Ombudsman as a successful transplant from Scandinavia. I agree with my hon. Friend the Member for St. Marylebone (Mr. Baker) that he is becoming well known. This leads to a slight danger. Some of my constituents regard the Ombudsman as a sort of constitutional Father Christ- 974 mas. If they do not get much joy from me or from the letters that I receive from Ministers, they want to appeal to this little god. Small children are sometimes confused when there are too many Father Christmases in the High Street at this time of the year, and there is a danger of having too many Ombudsmen.
I welcome the appointment of a Parliamentary Commissioner without the traditional Civil Service background. I hope that the Government will make their choice in future from the range of the professions. Bad government is frequently the result of too much government. We should not always blame the civil servants. Our civil servants are probably the best in the world, with the possible exception of the French. I do not say that just because the man from Whitehall happens to live in Bexleyheath.
I want to draw attention to one con-plaint which concerns a late claim for compensation for those living by Rochester Way in Bexley. My right hon. Friend the Member for Sidcup (Mr. Heath) wished to be here, but he is speaking in Scotland today.
On 11th May 1977, my right hon. Friend and I submitted a case to the Ombudsman. On 25th July 1978, the Ombudsman presented a special report—the sixth report for the Session 1977–78. That was too long a delay. It is a good report, and goes into the matter in great detail, but it is only 10 pages long. Any competent journalist could knock something together in weeks, rather than taking over a year.
Members of Parliament have a duty constantly to kick all Administrations to reduce such delays. We must not accept that a ministerial reply can take over a month, or that an Ombudsman's report can take over a year.
As a result of painstaking investigation by his staff, the Ombudsman felt that an injustice had been done. In the last paragraph of his report, he said:I have concluded that there was a defect in administration that has caused injustice to those residents who did not claim compensation to which they were statutorily entitled. I remain of the view that, even though the Act itself gives no discretion to pay late claims, it is open to the Department to make an extra-statutory payment in certain cases and that this is such a case. The Department have taken the position that the circumstances of this case were not sufficiently exceptional to justify their doing so. I must report, therefore, that in 975 my view, the complainants have thereby sustained injustice which has not been and will not be remedied.I have never respected those who are not wiser tomorrow than they are today, but I was genuinely astonished, as I know was my right hon. Friend, when, on 17th November, we received a letter from the Ombudsman, which, in brief, said that because of the discovery of one tiny press notice in our local paper and the manner in which paragraph 25 of the report had been worded, he did not now consider that certain of my constituents had sustained injustice through maladministration after all.
The Ombudsman stated:My criticism of the Department remains, but since the local press did in fact include this item I cannot now maintain that the people affected ' sustained injustice through maladministration ' I am therefore not empowered to call on the Department to provide a remedy in this case.With all due respect to a most distinguished man—and we are all indebted to him for what he has done for our constituents—I regard this change of heart as indefensible and unacceptable.
I shall give four reasons for my criticism. First, it was never part of the case for late compensation that the local press had not drawn attention to the compensation terms, only that the general publicity was hopelessly inadequate.
Secondly, the so-called new evidence consists of 60 words. As you can see, Mr. Deputy Speaker, it is a tiny press item, which measures about 1in. by 2in. One would not think that that scrap of paper was sufficient to get the great British Ombudsman to change his mind in this affair. That particular press item had a misleading headline, and it did not give the address from which claim forms might be obtained.
Thirdly, the main defence of the Department of Transport was not that its publicity was without fault. Indeed, it admitted to grave mistakes. However, after taking legal advice and that of the Treasury, the Department concluded that as the Act clearly laid down a time limit for claims, the Department could allow claims beyond that limit only in cases that were clearly exceptional.
Fourthly, it is very rare for the Ombudsman to submit special reports to Parlia- 976 ment. I am told that it is without precedent for him to follow a special report four months later with a brief note saying basically that he had got it wrong. At the very least, the Select Committee and the House should be entitled to a more detailed and comprehensive statement to explain this remarkable change of heart.
There is a danger that the public will jump to the wrong conclusion and cast doubt on the total independence of the Ombudsman—
§ Mr. Buck
This has caused concern to those of us who follow these matters. As Chairman of the Select Committee, I shall suggest to my colleagues that we consider this matter as soon as possible. It is very fresh and very new, and I am sure that it will be on our agenda for consideration in the next few weeks.
§ Mr. Townsend
I am most grateful for that intervention. My constituents will be equally encouraged by it. I do not accept that the initial case put forward by my constituents has been significantly weakened. A wrong has been committed by the Department of Transport, and I shall fight in every way open to me as a Member of this House to have those grievances met sympathetically by the Government, in the knowledge that it is open to the Government to make extra payments in such cases.
§ 3.4 p.m.
§ Mr. W. R. Rees-Davies (Thanet, West)
This debate, introduced by my hon. and learned Friend the Member for Colchester (Mr. Buck), has been valuable. It is a pity that the Government have not been a little stronger and clearer in indicating their intentions. From what has been said, and reading between the lines, I gather that the Government Front Bench have every intention of coming forward with clear and explicit proposals.
These debates always tend to become discussions in which only those who are Members of the Select Committee participate. This is true of Public Accounts Committee debates. It is true to quite a large measure today, although one or two of us speaking at the end of the debate are not members of the Committee.
The reason is that if one is to take part in such a debate one has a great deal 977 of reading to do. I happen to have the opportunity of initiating the Adjournment debate later, today, a debate that is also on a matter that should have been debated and has not. I had plenty of time yesterday, after I had considered what I wanted to say later, to read the two reports, one dealing with the Parliamentary Commissioner and the other with the Health Service Commissioner, and to see to what extent I subscribed to the views of my colleagues who served on the Committee. I can honestly say that I have been through both reports.
It is a truism to say that every Member of Parliament is an Ombudsman. He is the first local Ombudsman. Certainly, for many years, when we did not even have anyone to refer matters to, we were usually able to sort out a problem, if need be by direct access to a Minister or otherwise.
I probably have the largest number of those on supplementary benefit in any constituency in the United Kingdom. That was certainly true when I represented the whole of the Isle of Thanet, when there were 12,000. With such numbers, my postbag of correspondence with the Department of Health and Social Security is considerable. I estimate that in the course of a year I deal with between 500 and 1,000 problems. Not a week passes in which I do not have a hot line open to the Department.
I should like to pay tribute to the remarkably able work that the DHSS does locally, at any rate in my constituency, and I am sure in many other places, too. It investigates the matters that are raised, and it is not often that they need to be taken further. Many other matters involving other Departments do not require to be taken further. The most difficult problems are certain aspects of the Health Service that are not really within the province of the DHSS and are dealt with in the report on the Health Service Commissioner.
Having carefully considered the Select Committee's recommendations, I see no reason why they should not all be adopted as proper and reasonable. I am sure that we should do our best to see that Members of Parliament have to clear up the matters that are raised before they go to the Parliamentary Commissioner. I 978 shall have something to say about that when we consider the question of the Health Service Commissioner, where that requirement does not apply.
It is right to a call for an annual debate. Both main parties should agree on that. The Government should see that there is an opportunity once a year to have a debate, even though it be brief, such as has had to be initiated on this occasion by a Back Bencher, albeit that he is the Chairman of the Committee concerned.
I also agree with the recommendation that those who are abroad, people in the consular and other services, should have their opportunity to refer matters. They, too, should probably find a Member of Parliament to whom they or a relative can refer matters, so that they have to go through the same filter as everyone else.
I shall not trouble the House with the rest of the recommendations, because I have said that I think they are sound and that the reasons that prompt them are sound. It is clear that the work done by the Commissioner is valuable.
The Commissioner must have a power greater than we as Members of Parliament have, in rare but occasional cases when it might be necessary for him to have access to Cabinet papers. There are also rare cases in which the Health Service Commissioner may believe that he needs to go into hospital records. That is an even more sensitive area, but the power should be given in a proper case, on the fiat of the Secretary of State for Social Services and those in his Department, or of the Attorney-General, as recommended in the report.
I turn to the matters with which I am mainly concerned, namely, hospitals and hospital administration. I have been fairly closely concerned, particularly in the last year, in the work in this field. I am on record as saying that there should be a large reduction in the heavy over-administration throughout the whole of that service. What concerns me is that the Health Service Commissioner should have rather wider powers than he has and that he should have the opportunity of investigating the complaints that are made.
It is absolutely right, as the Select Committee reported, that the present procedure there has been cumbersome and 979 prolix, and that there have been far too many avenues along which people could try to pursue their complaints without success.
Almost the best quotation in the whole of these reports is that at page xv, paragraph 30, from the National Association of Health Authorities. I am bound to say that I could not have written it better myself. This is what it says:In the present set-up without this independent avenue of appeal the patient is in a somewhat defenceless situation. To the ordinary patient, and I am not thinking of the patient who has knowledge of administrative and legal procedures, the whole hospital set-up, and particularly the medical side "—and I stress those words—could appear to be a bureaucracy. The fact is that patients have got to take whatever the consultant tells them, or for that matter whatever the authority tells them, and there is a certain amount of mumbo-jumbo which they do not understand. One of the most frequent complaints we have is that the patients of the relatives cannot find anything out. They ask for appointments with a consultant and they are not told anything or are not told anything that they can get hold of so that they know what is wrong with the patient or what has happened to the patient. Therefore the existence of an independent avenue of approach, if people are not satisfied, is something which I feel cannot help but assist the patient/doctor relationship.I think that that puts perfectly the principles that we must try to follow. How one does that is not quite so easy.
The Select Committee put forward certain ideas, and I adopt certain of the early ones. It said that there should be a simple, straightforward system for handling complaints. Where this is not clear, one has the district administrator. That is sound enough. Where there are further complaints, it says that we should avoid, like the plague, ad hoc inquiries. I agree with that. The difficulty is when one comes to the matter about which the Minister was talking, which is whether, apart from the serious cases other cases about which there is a complaint should go to the Health Service Commissioner, and, if so, through what procedure.
I want to go into my own professional background, because it is directly relevant. At one time I had a large practice in running down what the Americans would call"hospitalisation cases "—very large indeed. I used to work with Roy Fox-Andrews, who is now deceased but whose son is a well-known member 980 of the Bar. During the course of that work I never once succeeded in establishing negligence against either a doctor or a dentist.
The fact is that it is almost impossible to get the evidence to establish a claim for personal injuries and damage due to the negligence of a doctor or dentist, or other person involved. There is a camaraderie which far exceeds that of my hon. Friends and myself in the House. It far exceeds anything at any public school, or indeed, in any regiment. The close-knit camaraderie in the medical profession is dangerous to the patient and to the future of the profession.
I suppose that we in the House are most liable to be attacked because we stand up and ask to be attacked. We stand up and ask to be re-adopted to stand for Parliament and we ask to be voted here under a democratic procedure. But if we have a National Health Service, as we have, it is the responsibility of the Minister to see that there is not negligence and that there are not cases where people have suffered by virtue of negligence in the National Health Service in any way.
The Royal College of Nursing, in the robust manner that one would expect of it, has stated in terms that it feels there should be a much more open procedure altogether for dealing with these matters. The chairman of the regional health authorities agrees with that view. I do not accept that the matter is so sensitive that we cannot speak about it. I certainly intend to. The House is wasting its time if it does not tell the medical profession in terms that there can be a full and careful examination in any proper case. It does not follow that one would aim in every case to prove negligence. However, it means that one would find out that proper procedures had been followed in most cases and that in rare cases there had been negligence.
Late last night I came to the conclusion, after giving the matter further thought, that it would he worth giving up common law rights. That is a view which I had many years ago. This matter does not need to be dealt with in the courts. We should need legislation, but I believe that we should take away the right to sue doctors for negligence in the National Health Service in the High Court. Outside the Service is another matter. Those 981 who pay for their own specialists outside the Service could go to the courts if they wanted to because they would be in a different position.
All those who use the National Health Service should have a guarantee from the Government that they will be compensated should they be treated negligently. If that happened, one would not have the danger of"double jeopardy "."Double jeopardy"occurs when it is suggested that a particular case is investigated in the National Health Service. A Commissioner is appointed to investigate it and he obtains the evidence that there is negligence. The person involved is then entitled to go to the court and claim damages, because that person is not bound by that evidence.
I can imagine that there would seldom be a complaint under such circumstances but, if the matter can be dealt with, as I think it should be throughout the National Health Service, by establishing investigating panels along the lines of the suggestion in appendix 3 of the evidence, a properly qualified legal chairman, sitting with qualified medical people, could investigate all these cases, including those which would lead to civil damages liability.
I understand that nobody has yet considered it in that way. I do not think that judges or members of the Bar Council have been asked to consider it. However, I am sure that the majority of those who are at the Bar and solicitors would agree that it is difficult to sue this branch of professional men whether or not they are liable. Such cases are unsatisfactory. They receive all the publicity attached to special cases at the High Court. It would be better if such cases were heard by panels.
I invite the Minister to take the bull by the horns and say categorically to the medical profession"We must resolve this one way or the other ". We recognise that the profession feels that there must be justice and fairness. But in ensuring that there is justice and fairness we must assist in the doctor-patient relationship. We must ensure that nurses and others who are involved see that there has been fairness in the handling of the case. The person concerned, and his relatives, must feel that the matter has been considered properly. When patients 982 die, or suffer for a long time in hospital, relatives sometimes feel, quite wrongly, that the patient has been maltreated. This also happens in many cases with alleged criminals where relatives think that the criminals have been unfairly treated by the police.
It is plain, however, that the decision now falls to be made by the Government. They have had the advantage of the Select Committee report of my hon. and learned Friend the Member for Colchester and his colleagues. They have pinpointed the problems. It is not, in the final analysis, for my hon. and learned Friend or my hon. Friend the Member for Devizes (Mr. Morrison) to tell the Government what their decision should be. Their job is merely to indicate the scope and nature of the principles that should be pursued.
All trade unions are far too powerful. That applies whether we are discussing the anarchy in Fleet Street, where the unions are clearly much too powerful, or whether we are discussing the activities of NUPE in causing the troubles which have created such headaches for the Secretary of State for Social Services and his colleagues on the Government Front Bench, as they have for the patients. The fact is that the decisions have to be made to ensure that the new Commissioner, who has experience of the Health Service, has the power to deal with them.
I should like the Government to consider to what extent the Commissioner's power can be widened, not purely into administrative matters. Let us consider the cases of discipline. The serious breakdown in discipline in the Health Service today arises because matron is no longer in control of her hospital. I am not suggesting that that is in itself what we are discussing, but it is the background. Until we give matron power over her hospital back so that she can get rid of a porter she finds insubordinate we shall not succeed in getting the Health Service to work along the right lines.
Suppose that the Health Service Commissioner receives a complaint that at the Margate general hospital one of the porters has been grossly insubordinate and has walked out of his job, resulting in the failure of the lifts and in the inability of the staff to attend to the 983 patients. That did not happen in Margate, but it did happen in London. Surely that is a matter which the Health Service Commissioner should be able to consider. He should be able to consider, too, whether there has been a breach of discipline. He should be able to recommend that action should be pursued.
I do not suggest that it should be for him to state the punishment, or anything of that kind. But he should pinpoint the area of trouble that causes that danger. That is most relevant to consideration of the Health Service today. I am therefore arguing that the scope and extent upon which the Commissioner can consider these matters should be somewhat widened. I think that we should find such an approach invaluable.
My hon. Friend the Member for Devizes drew attention to the Select Committees which it is the policy of the Conservative Party to set up when we are returned to power. They will monitor the various Government Departments. I believe that it will be necessary to establish one for the Department of Health and Social Security. I am anxious that if that happens, there should not be a dichotomy and a conflict between the Select Committee that would be responsible for considering policy matters in that Department and the Select Committee dealing with the Ombudsman.
Obviously, no firm decision can be made on those matters, but I hope that we can keep them sufficiently apart to maintain the present Select Committee in being. If that cannot be done, it ought certainly to be done for at least that part of the work covering the Health Service so that the whole of the Health Service jurisdiction would come under the one Select Committee.
The Minister knows that probably 75 per cent. to 80 per cent. of the effective complaints—I mean complaints justified for examination though not necessarily proved to be correct in the end—arise in the National Health Service rather than in all the other services put together. This is why it is necessary to take a broader view in that context.
The reason for the bulk of complaints coming from the Health Service lies, no doubt, in the fact that so many people suffer illness of one sort or another, but it is not usually those who are ill or suffering who bring the complaints. The 984 complaints come from friends, from relatives, from people on the periphery, as it were, who feel that there is ground for complaint. The reasons were indicated in the passage I quoted earlier from the chairman of the National Association of Health Authorities.
The facts have been stated. The picture is known. The Select Committee has given us a clear identification of the problems involved. I hope now that my hon. and learned Friend the Member for Colchester will have an opportunity to tell us anything else that he wants the Government to do before we conclude what seems to have been a most valuable debate.
§ 3.31 p.m.
§ Mr. Buck
I am grateful to my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) for what he said. I detained the House at some length in opening the debate, and hon. Members will be glad to know that I shall now exercise my right of reply in much briefer fashion.
I thank the Government for having arranged for there to be two Ministers on their Front Bench today to deal with the debate, and I thank my hon. Friend the Member for Devizes (Mr. Morrison) for what he said from the Opposition Front Bench. I was particularly grateful for my hon. Friend's indication of the way in which the thinking of our Front Bench is going regarding possible implementation of the Procedure Committee's recommendations for the organisation of Select Committees.
At our recent conference on the Ombudsman, it was a source of amazement to witness the strength and depth of feeling among academics about the need to retain the separate identity of a Select Committee concerned solely with backing up—or, perhaps, supervising—the work of the Ombudsman. In fact, backing up forms 99.9 per cent. of what we do—indeed, I do not think that we have done anything but back him up—but the occasion could arise when we might disagree with him. It is therefore appropriate—the academics agree and politicians, or most of them, agree—that we sould have a particular Select Committee identified with the work of the Parliamentary Commissioner for Administration.
985 I promised earlier that I should set one matter right. The Government have had our report in their hands now for about two months, and I do not quarrel with the timetable which it is envisaged they should follow, namely, that they will give their observations on our report on the work of the Parliamentary Commissioner for Administration in January. That seems to me reasonable.
One theme which has today proved itself to be well founded is that there is scope for at least an annual debate. I gather that there is unanimity across the Floor on that. I hope, therefore, if I am fortunate in the Ballot again, that I shall not have to devote what might be regarded as my time to deal with a House of Commons matter, since this will, I hope, have become the accepted convention.
I hope that, when the Government give their reply, they will suggest speedy implementation of most of the easy recommendations in our report relating to the Parliamentary Commissioner for Administration. However, I must enter a note of dissent here. I was a little disappointed that we did not receive at least some indication that the Government looked favourably on most of our recommendations. Nevertheless, I take some comfort from the amiable way in which the Minister spoke, indicating a certain goodwill towards what the Committee recommends. I am glad to see the Minister nod when I say that.
As for the National Health Service, the responsible Minister has my sympathy. 986 There are extremely difficult matters here. For example, the whole question of clinical judgment gave my Committee great concern. Doctors must be reassured that we do not seek to condemn anyone through hindsight. We seek to do no such thing. We wish to try to protect the medical profession from the possibility of having to indulge in what has been described as protective medicine, with lawyers constantly looking over the doctor's shoulder and all the rest of it. It is in the interests of the profession that the complaints procedure should be properly sorted out. It will provide a defence to the profession against vexatious litigation.
I wish to conclude by expressing our gratitude to successive Ombudsmen, and particularly to Sir Idwal Pugh who is about to retire. Mr. Clothier has the universal good will of this House in his most worthwhile task. I also wish to thank the Chair and those who have participated in the debate. Certainly one recommendation has been proved to be correct—and that is that there is a place for an annual debate on these matters.,
§ Question put and agreed to.
§ That this House records its appreciation of the services of Sir Idwal Pugh and his predecessors in the offices of Parliamentary Commissioner for Administration (Ombudsman) and Health Service Commissioner, and takes note of the work of the Select Committee on the Parliamentary Commissioner for Administration, in particular their Fourth Report (The Parliamentary Commissioner for Administration (Review of Access and Jurisdiction)) and their First Report (Independent Review of Hospital Complaints in the National Health Service) in Session in 1977–78.