MALADMINISTRATION (Hansard, 4 March 1998)

§ Mr. Gorrie
I beg to move amendment No. 410, in page 39, line 34, leave out 'to its members'.

The Chairman
With this, it will be convenient to discuss amendment No. 411, in page 40, line 4, at end add— '(4A) The Parliament may, by subordinate legislation, alter the list of authorities within its investigatory jurisdiction in so far as it relates to matters which are not reserved.'.

§ Mr. Gorrie
The purpose of the amendment is quite clear: it is designed to make it simpler and more tidy for the Scottish Parliament to set up its ombuds-system.
As it stands, the Bill suggests that provision should be made for the investigation of relevant complaints made to its members". As I understand it, the system at Westminster is that all requests for investigation to the ombudsman have to go through a Member of Parliament. In the case of local government, it stated that any request had to go through a local councillor, but the system was changed to ensure that requests could go direct. We are suggesting that, in the case of the Scottish Parliament, any form of application can be used, so that people can go direct to the ombudsperson, or to their Scottish Member of Parliament, or to their Westminster Member of Parliament, or to their European Member of Parliament, or to a local councillor.
In that way, people will not be put off or confused about which of the different people they should approach. Some members of the public will not distinguish between powers held at Holyrood—or Glasgow—and powers held here at Westminster. There is confusion among hon. Members of this House, so there is bound to be greater confusion among members of the public. It is much tidier if any route can be used.

§ Mr. Godman
Would it not make better sense to allow the Scottish Parliament itself to determine how complaints should be brought to an ombudsman?

§ Mr. Gorrie
Our amendment would allow that to happen. We suggest removing the words "to its members", so that the clause would read: The Parliament shall make provision for the investigation of relevant complaints made … in respect of any action taken". It would then be up to the Parliament to set out the precise system. Under the Bill as it stands, people would have to contact their Member of the Scottish Parliament.
An additional issue is that in the Scottish Parliament, there will not be the same degree of ownership, if I may call it that, of a complaint by the constituency Member. That is because there will also be the list Members, many of whom will be well-known in the area and who may be approached by the public to pursue a case. We think that our suggestion is extremely constructive and would help to speed matters along the way.

§ Mr. Oliver Heald (North-East Hertfordshire)
The local government ombudsman is able to take complaints direct from the public. Is that the model that the hon. Gentleman prefers and is proposing that the Scottish Parliament should use?

§ Mr. Gorrie
We accept the point made by the hon. Member for Greenock and Inverclyde (Mr. Godman) that 1142 it would be up to the Parliament to determine the precise arrangements, but we have no objection to an individual citizen being able to contact the ombudsperson directly, if that is what is decided.
As I understand it, the view in ombuds-circles is that it would be more helpful if people were able to go direct to the ombudsman, rather than having to go through their Member of Parliament, so we think that that is a good route. However, our main point is that the Bill is too prescriptive: it should be open to the Scottish Parliament to decide what system it wants to use and we should not prescribe that complaints should have to go through a Member of that Parliament.
Amendment No. 411 merely suggests that the Scottish Parliament should be able to alter fairly easily the list of duties covered by the ombudsperson, so that if new duties emerge, there will be no great difficulty in adding to the list. We feel that our amendments are helpful and uncontroversial, and I am happy to commend them to the Committee.

§ Mr. Heald
It is a curious aspect of the Bill that some matters are left so vague, and that is certainly true in respect of the ombudsman for Scotland.
As hon. Members will know from their own experience dealing with the Parliamentary Commissioner for Administration, the local government ombudsman and the health ombudsman, there is already a good deal of overlap between the jurisdiction of the various authorities that have been established. One of my concerns, which prompts the first of my questions to the Minister, is to ask what is going to happen in respect of the various Scottish authorities which are already covered by the parliamentary commissioner, for example, the Scottish Environment Protection Agency, Scottish Homes, the Scottish medical practices committee, Scottish Natural Heritage, the Scottish tourist board and the Sports Council for Scotland? It is not clear from the wording of clause 86(1) whether those bodies come under the terms of the clause and are bodies which act on behalf of … a member of the Scottish Executive". I should be grateful if the Minister could explain what will happen to the various authorities under the new arrangements. He may say that the Government want to leave a good deal of discretion to the Scottish Parliament. What would be the legal effect of the clause without the amendment? Would the Parliament be able to take on the responsibility of having its own commissioner for those important bodies in Scotland?
My second question is whether it is possible for the job done by the health ombudsman for the United Kingdom to be severed so that the Scottish part of the job is dealt with by the Scottish ombudsman. Is that the Government's proposal?
Thirdly, what about the functions of the various other authorities that have responsibilities similar to those of the ombudsman? Fourthly, will it be possible for a Scottish ombudsman to take over a range of responsibilities for various authorities in Scotland, or will scrutiny in an area of devolved responsibility be dealt with by the UK Parliament?
Finally, the Scottish Parliament may take responsibility for tourism in Scotland. Two of the reserved matters in the Bill are the subject matter of the Timeshare Act 1992 and the Package Travel, Holidays and Tours Regulations 1143 1992, which are central to tourism. What would happen if the Scottish tourist board were dealt with by the Parliament, but the UK ombudsman dealt with scrutiny of the Scottish tourist board?

§ Mr. Dalyell
I shall treasure the collective suggested by the hon. Member for Edinburgh, West (Mr. Gorrie) of ombuds-circles. I like the idea of moving in ombuds-circles.

§ Mr. Menzies Campbell (North-East Fife)
An alternative to crop circles.

§ Mr. Dalyell
Maybe, but we all have a problem. Come the Scottish Parliament, what about our surgeries? Endless people will come to us as at present. When they turn up, it is difficult to say, "That has nothing to do with me, go to your Member of the Scottish Parliament."

§ Mrs. Anne McGuire (Stirling)
That happens anyway.

§ Mr. Dalyell
It will be a difficult situation for all of us.

§ Mr. Godman
I have some sympathy for the amendments, but if the avenue along which complaints are made is widened, how will the ombudsman—or ombudswoman, presumably—deal with vexatious or ridiculous complaints? Constituents currently bring complaints for the parliamentary ombudsman to their Member of Parliament. That is not a bad system. Not so long ago, I had occasion to forward a complaint to the parliamentary ombudsman—I think that it was Mr. Reid at the time—from a pregnant 17-year-old girl who was given no help by the Department of Social Security. Local social workers had also achieved nothing on her behalf. The Department had acted very badly towards her. I forwarded her complaint to Mr. Reid. The then Secretary of State for Social Security, Mr. Tony Newton, came to the Dispatch Box to apologise to my constituent through me.
The fact that a Member of Parliament can forward a complaint carries some weight. The Member of Parliament might have to tell the constituent that their complaint is not one of maladministration. We may have to be more delicate than to say that it is a vexatious complaint, but it really should not be taken to the ombudsman.

§ Mr. Heald
Does the hon. Gentleman agree that the system is well understood? Someone who has a complaint about a public body goes to their Member of Parliament. They both know that the threat of reference to the ombudsman is powerful. Would it not be wrong if confusion crept into the system, with different ombudsmen for different matters? Is not the definition of an ombuds-circle what happens if someone goes to their Member of Parliament, is referred to the Westminster ombudsman and is then told that the matter is one for the Scottish ombudsman, so it goes to the Member of the Scottish Parliament, who sends it to the Scottish ombudsman, who in turn says that it is a matter for the health ombudsman?

§ Mr. Godman
The hon. Gentleman is now referring to this circle. With the creation of a number of ombudsmen 1144 and ombudswomen, the public are gradually becoming aware of the spheres of responsibility of respective administrators.
My concern is that the amendment takes away the involvement of a Member of Parliament. On the matter of a local authority ombudsman, it is reasonable enough to argue, as many of us did, that local authority tenants, for example, sometimes found difficulty in complaining about the local authority housing department to the local councillor who may well have been a member of the housing committee. In all conscience, I believe that, given my experience of the workings of the system—not the circle—the hon. Member for Edinburgh, West (Mr. Gorrie) ought to withdraw his amendment.

§ Mr. Wallace
This is a matter of practicality. I do not know whether the hon. Gentleman is standing for the Scottish Parliament. Assuming that he is not and he is a Westminster Member, would he say to a constituent who came to him with a complaint and who wanted to go to the ombudsman—given that the hon. Gentleman immediately identifies that the matter is within the Scottish Parliament's jurisdiction—"Sorry, I cannot take this complaint to an ombudsman. Go and find your MSP"? The same would apply if the hon. Gentleman received the complaint by correspondence. Would not he be creating an extra layer of correspondence?

§ Mr. Godman
Not at all. People come along to our surgeries every day with complaints about housing, and we have to say that it is not our responsibility but the responsibility of their local councillor. Similarly, if people come along with concerns about social work matters, we have to say, "This is a matter for your councillor." If someone came to me with a complaint of maladministration and I thought that his or her complaint would be best dealt with by my local MSP, I would advise them to go to their MSP's next surgery. The matter would be the MSP's responsibility, not mine.

§ Mr. Ernie Ross (Dundee, West)
The hon. and learned Member for Orkney and Shetland (Mr. Wallace) clearly wants to defend his hon. Friend the Member for Edinburgh, West (Mr. Gorrie), but he is not thinking clearly. He knows that, at the minute, if one of the constituents of my hon. Friend the Member for Greenock and Inverclyde (Mr. Godman) wanted him to pass a complaint to the local authority ombudsman, my hon. Friend could not do so. He would have to see a councillor, who would send it on. That is the way that it works.

§ Mr. Godman
That regulation was of course changed not so long ago, and I agreed with that change. There were times when the local councillor might have been involved directly in the decision making against which the complaint was being made. That does not happen with Members of Parliament, unless they are Ministers. I do not see the problem that the hon. and learned Member for Orkney and Shetland (Mr. Wallace) raised about referring a complaint made in a Westminster Member's surgery to a Member of the Scottish Parliament.
There is good sense in a Member of Parliament channelling the complaint to the ombudsman. I have made a number of such complaints. In most cases, 1145 the ombudsman has said that they were not cases of maladministration. However, I have given the example of the young pregnant girl who was treated very callously by the local social security department, which forced Mr. Tony Newton—who was only too willing to do so—to apologise to her at the Dispatch Box. He was a first-class Cabinet Minister, despite being a Conservative. He also wrote to me saying that he agreed with the ombudsman finding against his Department. That is a powerful tool that is used by Members of Parliament on behalf of their constituents. We should leave clause 86 as it is, yet allow for the Parliament to decide in the course of time to modify the system if it wishes. I like the idea of a Member of Parliament being involved in such complaints.

§ Mr. McAllion
I had not intended to intervene in the debate, but a certain confusion is evident on the part of everyone who has taken part so far. I think that we have all agreed that it is wrong that councillors, for example, should have to refer complaints against the council to the local government ombudsman, because there is an obvious conflict of interests when councillors complain against their own council.
However, exactly the same applies to Members of this Parliament as applies to Members of the Scottish Parliament. The complaint may be against a Housing Minister or a Health Minister in the Scottish Parliament, and that person may be a Labour Minister. If one's local Member of the Scottish Parliament happens to be Labour too, do we not see a conflict of interests? A Labour Member of the Scottish Parliament would have to put forward a complaint against a Labour Minister in a Labour Government in the Scottish Parliament. The same conflict of interest arises there as arises now with councils.
Therefore, there is an element of confusion. I would have no objection to taking the phrase "to its members" out of the clause, because that would leave the Scottish Parliament to draw up its own code of guidance about how the right could be exercised by individuals throughout Scotland.
In the modern age, we always have to beware of the party system. We must remember that this Parliament is dominated by the party system. The Scottish Parliament is likely to be less so; none the less, it will still be evident—

§ Mr. Heald
Was the possibility that the hon. Gentleman had in mind that in a regional list system, if someone who was No. 1 on the list misbehaved, he might be No. 9 next time?

§ Mr. McAllion
To be No. 9 in a list would be a big step up for me. The lesson applies both ways. It is not only list Members to whom pressure can be applied. Pressure can also be applied to Members who stand in constituencies, and that is done most effectively, I can assure the hon. Gentleman.
My point is serious. If members of the public have the right to complain against an Executive in Parliament, the road for making the complaint should not lie solely through the Members of that Parliament, because the party 1146 system will come into play and there will be pressure on Members not to further the complaint if to do so would work to the detriment of their party. I am speaking not about the Labour party alone, but about whichever party happens to be in power at the time.
This is an interesting debate. I would like to hear why we should not open up the ways in which people can complain about the activities of Ministers in Parliament, because I am in favour of individuals having the maximum right to complain about Governments.

§ Mr. Davidson
My hon. Friend the Member for Dundee, East (Mr. McAllion) does himself and his colleagues something of an injustice when he says that most Members would have reservations about sending something to the ombudsman if it might embarrass their party. The ombudsman is empowered to deal not with policy matters, but only with maladministration, and the overwhelming majority of Members would completely disregard the party loyalty of the Minister involved when deciding whether to put forward a particular case.
Nobody seriously believes that any Minister directly, himself or herself, does all the administration on individual social security or housing cases, or on anything else, so I do not believe that problems would be put directly at the door of individual Ministers, as my hon. Friend suggested.
However, I still have reservations about what is being proposed, because I worry that if a complaints procedure is open to all and sundry, it leaves the system open to what are described as vexatious litigants. I have several constituents who come to me at the moment wanting matters to be pursued with the ombudsman—or the ombudsperson, or even ombuds-circles, to coin a phrase.

§ Mrs. Eleanor Laing (Epping Forest)
rose—

§ Mr. Davidson
Let me give my examples, and then I shall let the hon. Lady intervene.
One lady is especially upset because the Benefits Agency does not provide additional benefit for people with dogs. She believes that a supplementary payment should be made to those with dogs. I have tried to indicate to her that this is a policy matter, and not an administration matter; it seems clear to me that the elected Member of Parliament has a responsibility to cut such matters out of the system.
Similarly, a lady told me that she wanted to see her referendum paper. She wanted to know where it was, and she believed that the fact that she was not allowed to see it was an example of maladministration which she wanted pursued. That sort of thing could easily clutter up the entire system unnecessarily.
Another constituent asked me how she knew that I had been elected. It is a good point, which has had me somewhat confused. I explained that she could write to the returning officer, but she had done so. He had written back, but she asked how the returning officer knew that I had been elected. How did she know that the votes cast were cast for me? How did she know that the counters counted the votes correctly? I can see this being an issue that would take up considerable time of the ombudsman, whatever system was used. It would clog up the system. We should leave the system as it is and look to see how the matter progresses in future.

§ Mrs. Laing
I would like to ask the Minister whether he is taking seriously the new vocabulary being used 1147 during our discussions on the Bill. We are quite used to the idea of an ombudsman—it is the title given to someone who looks at alleged maladministration. The word comes from German. [HON. MEMBERS: "Swedish."] Members of the Scottish National party say it comes from Swedish. It is from that sort of language.

§ Mr. John Swinney (North Tayside)
European?

§ Mrs. Laing
European, but not Latin-based—that is the point I am making. It has been brought into our language and accepted.
Is it not taking gender balance too far to start talking about ombudspersons? I do not know the Swedish word for woman, but if one was going to be perfect about it, one would have to have an ombudsfrau rather than an ombudsman. The whole point about an ombudsman is that it is not a man or a woman—it is someone who carries out a certain duty. I suppose that Labour Members would like twinned ombudspersons, so that if there were one ombudsman, there would have to be one ombudsfrau. If they want to use that system in the Parliament, they must want it to be used in all aspects of public life. It is nonsense.

§ Mr. Desmond Swayne (New Forest, West)
The point about the gender balance is to engender a new politics of consensus, but we all know how bogus that is. Indeed, Mr. Martin, you will remember that, only three weeks ago, when we had the debate on the Foreign Secretary's diary secretary, the worst offenders in terms of the most disgraceful politics were the new Labour women.

§ The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)
Order. The hon. Lady must not pursue that matter. I hope that the hon. Gentleman in future will not draw the Chair into his arguments.

§ Mrs. Laing
I will not pursue that matter.
The serious point is that, once again, we have considerable confusion. The hon. Member for Dundee, East (Mr. McAllion) said that people would be confused about which ombudsman to go to, and about which cases go to which ombudsman. One will not know to whom to complain—the Member of Parliament, the Member of the Scottish Parliament, the Member of the European Parliament or the local government representative.
Moreover, the duties that Members of Parliament currently carry out for all their constituents will be discharged either by themselves, MSPs or someone else. That highlights the fact that Members of Parliament representing Scottish constituencies at Westminster will not have a full job when half their work is done by MSPs.

§ Mr. McLeish
I shall first comment on the points that the hon. Member for North-East Hertfordshire (Mr. Heald) raised on how the various bodies will be affected by the advent of the Scottish Parliament. Conservative Front Benchers always want to make life more difficult than it will actually be. We should return to the first principles that we have talked through in our consideration of various clauses. There are reserved bodies and cross-border bodies, and we are now specifically talking about investigations into maladministration in parliamentary activities. It should be 1148 obvious that such a wide range of bodies that will be accountable to the Holyrood Parliament will fall into the three categories that I have mentioned.
The important point about commissioners is that the Scottish Parliament will be able to establish a body responsible for examining maladministration. It will be able to develop the roles of the health service and local authority ombudsmen—the specifics will be taken care of in that instance.
9 pm
Hon. Members have asked about the practicalities of the relationships between MSPs and Westminster Members of Parliament. Again, that will inevitably work itself out with experience—that has happened with local councils just as, before local government reorganisation in Scotland, it happened with regional and district councils. I never had any problems sorting out where responsibilities lay and, given the common sense of the participants, I do not foresee problems arising when the new system is established.

§ Mr. Dominic Grieve (Beaconsfield)
As I know from experience, people bring local government matters to the surgeries of Members of Parliament, partly because they believe, perhaps mistakenly, that Members of Parliament have extra clout to deal with the problem because, ultimately, they can go to the top of the particular tree that is directing administration. When the Scottish Parliament is established, however, Westminster Members of Parliament will have no remit in certain matters—Members of Parliament representing Scottish constituencies will not have the clout to deal with those matters. That will give rise to some confusion.

§ Mr. McLeish
I appreciate the hon. Gentleman's point—he has made some good arguments in the debate. Arrangements must be worked out in practice. When the Scottish Parliament is established, there will still be councillors and Members of the Westminster Parliament, as well as constituency MSPs and list system MSPs. I have no doubt that that will work out—there is no reason why it should not. Every time local government has been reorganised, problems have arisen because the participants have had to deal with different problems.
As to clout, many of my constituents mistakenly believe that their Member of Parliament can open doors and wave a magic wand. Sometimes the timing of the Member of Parliament's involvement can seem to do that, but I am sure that it has more to do with due process than with my efforts. I believe, in good faith, that the systems will work and that there will be clarity. Custom and practice will work matters out in each of the Scottish constituencies.
I shall deal with the more narrowly focused amendments. I cannot accept amendments Nos. 410 and 411, although I sympathise with the points that hon. Members made about them. The Bill imposes a duty on the Parliament to make provision for the investigation of certain complaints made to MSPs of maladministration by the Scottish Administration. That parallels the arrangements that apply to complaints made through Members of the House of Commons.
The provision does not preclude the Scottish Parliament from making arrangements for complaints received via other routes to be investigated. That should properly be 1149 left to the Scottish Parliament to consider. [Interruption.] The hon. Member for Edinburgh, West (Mr. Gorrie) seems to be saying that the amendments would do that, but I shall explain in a minute that there will be a minimum statutory requirement for the Parliament. I hope that the Parliament will be able to stay with that, or indeed to develop it in the spirit of the amendments.
The Scottish Parliament may indeed think it right that its arrangements for the investigation of complaints of maladministration should enable members of the public to make complaints directly to a Scottish ombudsman, or to whatever office or body the Parliament sets in place. There is nothing in the Bill to prevent that.
On the other hand, the discipline of providing only for the investigation of complaints made to Members has its advantages. That arrangement has worked well here: it ensures that Members of Parliament are aware of their constituents' problems and are regularly informed about the actions of Departments. It also gives us a chance, where appropriate, to resolve the complaints ourselves without the need for a formal investigation by the Parliamentary Commissioner for Administration.
There is often a frustration in the community that complaints have to be processed through the Member of Parliament. That said, we have heard comments about vexatious or trivial complaints, and the filter often acts as a discipline. There are arguments for and against, but the main point is that the Parliament should be able to deal with a complaint and take it further if it wishes, or stick with the statutory requirement if it does not.
I am sure that hon. Members agree that it is important for any arrangements for the investigation of maladministration by the Scottish Administration to be effective and efficient. The provision in the Bill should go some way towards ensuring that, but the clause lays down only the minimum statutory requirement. I would expect the Scottish Parliament to want to build on that requirement to develop a system appropriate to Scottish circumstances.
Indeed, that system could be better than the one that currently operates at Westminster. In developing its system, the Parliament must have regard, among other matters, to the Parliamentary Commissioner Act 1967, but it is important that the detailed arrangements should be left for the Parliament to consider.
I am afraid that, again, the Government cannot accept amendment No. 411. The clause places a duty on the Parliament to make provision for the investigation of certain complaints of maladministration arising from the action of the Scottish Administration. It does not refer specifically to the investigation of complaints made against other bodies or authorities.
The Bill sets out the Parliament's minimum duty. I am certain that the Parliament will want to consider what other bodies it should make provision for. The United Kingdom ombudsman currently investigates complaints against a range of bodies, including bodies wholly concerned with matters that are to be devolved. The Scottish Parliament will be able to provide for complaints about such bodies in future.
I think it appropriate, however, to allow the Scottish Parliament to make its own arrangements. There is no need for amendment No. 411, as the Bill gives the 1150 Parliament the desired flexibility to make arrangements for the investigation of complaints against other bodies. I hope that, with that clarification, the hon. Member for Edinburgh, West will withdraw the amendment.

§ Mr. Gorrie
I am obliged to the Minister for his explanation. If the Bill means what he says it means, that is satisfactory from our point of view and we will not press the matter to a vote. My hon. Friends are more concerned to vote on judicial circles than on ombudsman circles. I therefore beg to ask leave to withdraw the amendment.