Grand Committee Report of 25 January 2005

Official Report of the Grand Committee on the

  Public Services Ombudsman (Wales) Bill [H.L.]
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  The Deputy Chairman of Committees (Lord Ampthill): Before I put the question that the Title be postponed, I remind your Lordships of two points of procedure. Noble Lords will speak standing and the House has agreed that there shall be no Divisions in the Grand Committee. Therefore, unless an amendment is likely to be agreed to, it should be withdrawn. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
  Title postponed.
  Clause I agreed to.
  Schedule I [Public Services Ombudsman for Wales: appointment etc.]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 1:
  Page 27, line 6. at end insert "after consultation with the Assembly"
  The noble Lord said: Perhaps I may say at the beginning that, although there are a great many amendments in my name, for the most part they are probing. I may forget to say so on occasion, but that will become quite clear. However, we take a minority of the amendments very seriously.
  The purpose of this first amendment is to ensure that the views of the National Assembly are taken into account before the ombudsman appointment is made. We note that he cannot be removed from office without such consultation and it seems rather inconsistent that there should be consultation at the end but not at the beginning.
  We are all familiar with the argument that the ombudsman must be independent and therefore a Crown appointment in the usual way—by recommendation by the Secretary of State to Her Majesty the Queen. It is particularly important that he or she should be independent of those bodies who are subject to his or her investigation in the event of a complaint against them. Those bodies include the National Assembly. It, too, is a corporate body under the Government of Wales Act 1998 and responsible for all activities carried out in its name by the Assembly Government. Most of us now think that that is not altogether satisfactory and that the Government of Wales Act should be changed to allow more separation between the Government and the Assembly, but this is neither the time nor the place to pursue that line of
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  argument for reform of the devolutionary settlement— except to say that, in practice, some separation occurs now.
  In his reply, I expect that the Minister will say that the Secretary of State will take soundings and consult informally with the Assembly before the ombudsman appointment is made. It is important that he should do so, because the ombudsman is financially dependent on the Assembly and cannot perform his functions satisfactorily without the full backing of the Assembly. Both must therefore tread carefully and respect each other's functional independence, even though that may result in mutual criticism from time to time. To achieve a proper relationship based on mutual understanding, the Assembly must have some say, but perhaps not the final say, in the ombudsman's appointment.
  Consultation is provided for in the Education Bill before the appointment of the Chief Inspector of Schools, also a Crown appointment, and indeed of Her Majesty's Inspectors. I draw the Committee's attention to Clause 18 of the Education Bill, particularly subsection (6), which stales:
  "If the Assembly considers that any of the powers conferred by subsection (1), (2) and (4)(c) ought to be exercised, the Assembly must advise the Secretary of State on any recommendation to be made to Her Majesty as to the exercise of the power".
  The various subsections to which I have referred relate to the appointment of inspectors to the Office of Her Majesty's Chief Inspector of Education and Training in Wales and the removal from office by Her Majesty on the grounds of incapacity or misconduct.
  The Education Bill proposes that the Assembly should advise the Secretary of State before he makes a Crown appointment. It is a good way around the difficulty of enabling the Assembly to advise the Secretary of State before an appointment is made— that is tantamount to consultation. I beg to move.
  Lord Rowlands: Amendment No. 2, tabled in my name, has the same purpose as the amendment tabled by the noble Lord, Lord Roberts. One could make a reasonable case for saying that the National Assembly for Wales should not play any role in either appointment or removal. The comparison that the noble Lord, Lord Roberts, made with the chief inspector of Estyn is slightly different. The National Assembly for Wales, after all, will be subject to the jurisdiction of the ombudsman. The case could be made for not involving the Assembly in either appointment or removal because there is a potential conflict of interest. The Assembly might like somebody more compliant, or it might prefer one particular kind of person. It might be fanciful to suggest it but nevertheless that possibility arises if one involves the Assembly in such an appointment. I am puzzled about why the Bill allows the National Assembly a consultation role in dismissal or removal but not in appointment. Like the noble Lord, Lord Roberts, I am puzzled about why that distinction is made.
  If an ombudsman was threatened with removal for misbehaviour or misconduct, as a result of a particularly contentious or controversial situation in which the National Assembly had been embroiled

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  there is almost a case for arguing that in some respects the Assembly's role in removal would be even weaker than its role in appointment. I await with considerable interest my noble friend's explanation of why there is no formal consultation role for the National Assembly in the appointment but there is in the case of removal, when in some situations an ombudsman's removal could result from a situation in which the National Assembly was already embroiled.
  Lord Livsey of Talgarth: I agree very much with the remarks of the noble Lord, Lord Roberts, and especially with those of the noble Lord, Lord Rowlands, on the Assembly's involvement. I see the distinction between the two amendments as follows. Whereas Amendment No. 1 addresses the question of whether consultation with the Assembly should occur afterwards by the Secretary of State, Amendment No. 2 provides that consultation with the Assembly should occur before the recommendations are made. I prefer Amendment No. 2 because there must be discussion with the Assembly before a decision is made on the appointment. That is important.
  When the noble Lord, Lord Roberts, spoke to Amendment No. 1 in relation to the Education Bill, I noted that he mentioned that there had been consultation as regards the Education Bill. It is a fine point, but I would prefer that the Assembly is consulted before the appointment rather than afterwards. As I see it, that is the crux of the difference between the two amendments. However, both are correct in their approach because there is no doubt that the ombudsman needs to be entirely independent in his role as the protector of the citizens of Wales in relation to the legislature. Some recent appointments have been controversial, and I shall refer to them when we reach later amendments.
  Lord Evans of Temple Guiting: As drafted, the Bill provides that the Assembly should be consulted before the Secretary of State recommends that an ombudsman be relieved or removed from office but, as we have heard, it does not provide that the Assembly either be consulted on or approve the appointment in the first place. That said, the Assembly has in fact been consulted on ombudsman appointments made since 1999. The Secretary of State has consulted the First Minister who, in turn, consulted party leaders in the Assembly.
  Given that practice, and on hearing the arguments made by noble Lords, I accept the principle that the Assembly should be consulted both before and after the appointment, and that the requirement should appear in the Bill. I shall therefore bring forward an amendment on Report. With those words, I hope that the noble Lord will withdraw his amendment.
  Lord Roberts of Conwy: We are most grateful to the Minister for that reply, which certainly takes on board both the amendment moved by myself and that tabled in the name of the noble Lord, Lord Rowlands. I do not agree with the noble Lord, Lord Livsey, that there is a great deal of difference between them. I certainly
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  meant to provide for prior consultation with the Assembly, although I did not actually manage to get the word prior into my amendment.
  As I said, I am sure that we are all most grateful to the Minister for his favourable response. We look forward to seeing the government amendment on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 2 not moved.]
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 3:
  Page 27, line 16, leave out "ten" and insert "five"
  The noble Lord said: This group of amendments deals with the ombudsman's term of office. A single 10-year term seems to be an exceptionally long period. My first question is this: what are the precedents for it? A number of other ombudsmen are mentioned in the Bill and I am almost certain that none of them is appointed for 10 years. A moment ago I referred in passing to the Chief Inspector of Schools, and I note that his appointment is for a term of five years.
  Of course it may well be that in practice some ombudsmen have lasted that long in post and that the 10 years simply recognises what happens in reality. I do not know. Perhaps the Minister will tell us when he comes to reply. We also recognise the need to maintain the ombudsman's independence. He should be beholden to no man. Nevertheless, a 10-year term of appointment is almost a guaranteed job for life, and such longevity has its disadvantages. It does not encourage high performance.
  I am sure that the more usual term of appointment is five years with the possibility of reappointment for a further five-year term, which is what I propose in my Amendment No. 3. I cannot believe that any ombudsman worth his salt would allow his judgment to be affected by the possibility that he might not be reappointed.
  There is also the compromise solution of a seven- year term, which is certainly preferable to a 10-year term, but I shall wait to hear more about that amendment. I beg to move.
  3.45 p.m.
  Baroness Gale: I wish to speak to Amendment No. 4, which, at line 16 on page 27, would leave out the word ten and insert the word "seven". I agree with much of what the noble Lord, Lord Roberts of Conwy, said in that a 10-year appointment is too long. At the briefing meeting that noble Lords had with Wales Office Ministers and the Welsh Assembly Minister, one of the main items of discussion was the 10-year appointment. Even at that stage, we were quite concerned about it.
  Although I think we all accept the need for a fixed- term appointment and that the term should be long enough to attract the right kind of person, the nature of the work undertaken by the ombudsman makes it essential that it should be a fixed term of a reasonable length to ensure the impartiality of the appointee and to ensure that he knows there will be no opportunity for reappointment.

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  I compare the terms of this appointment with that of the Children's Commissioner for Wales, who is appointed for a seven-year fixed term and is not eligible for reappointment upon expiry or earlier termination of the term of office. In a note that I received from the Library after requesting the exact terms of office of the Children's Commissioner, I was informed that he cannot be reappointed but that further provisions relating to filling the vacancy of the office of the commissioner and the commissioner's tenure of office would be made by regulations. I do not think that those regulations have yet been made and so I have no idea what they would contain. Following receipt of that note, it seems to me that the ombudsman's terms are better in that they have been set out more clearly than those of the Children's Commissioner.
  I believe that the ombudsman's terms of appointment allow for an extension of the term in certain circumstances, as set out in paragraph 4(2) of Schedule 1 on page 28 of the Bill. This issue is coupled with the debate on Amendment No. 3. That paragraph states:
  "A person appointed to act as the Ombudsman ('an acting Ombudsman') may have held office as the Ombudsman".
  If my interpretation of that is correct, the ombudsman coming to the end of, say, a seven-year term may be eligible for reappointment for a period which is no longer than two years. I am sure that the Minister will tell me if I am not correct. Therefore, I think that some flexibility might be possible if the need arose in particular circumstances. I believe there is much support for this amendment, which suggests a seven-year appointment, and I look forward to the Minister's response.
  Lord Prys-Davies: I thank the noble Lord, Lord Roberts, for his detailed examination of the Bill which led him to table the many amendments in his name.
  I shall speak in support of Amendment No. 4. It seems to me that there are dangers lurking in both the 10-year term and the five-year term. The danger that I see with the 10-year term has already been mentioned by the noble Lord, Lord Roberts of Conwy. It seems to me that the ombudsman may become too reliant on his 10-year contract—possibly a little complacent— and may pay insufficient attention to the exacting demands of this top post. That could arise if someone were appointed at about the age of 50. That would almost be equivalent to an appointment for the rest of someone's life, which could harm the service.
  On the issue of the five-year term—this could be bracketed with Amendment No. 6—there is a concern that a five-year term might not attract the top qualified people to the top post. The post will require top quality candidates. It seems to me that if top quality candidates cannot be attracted to apply for the post, because the term is too short, that could also harm the service. I believe that Amendment No. 4, specifying a seven-year term, should be supported.
  Lord Livsey of Talgarth: I strongly support Amendment No. 4.I mention in passing that the noble
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  Baroness, Lady Finlay, is unable to be present this afternoon, as she would have liked. She has added her name to Amendment No 4 and supports it.
  I am perhaps a little unusual in thinking that I am a prototype for the twenty-first century in that I have been fortunate enough to have had four separate careers in my life. In the case of an ombudsman, the tenure needs to be worthwhile, but not necessarily a tenure, as the noble Lord, Lord Prys-Davies, said, that could extend for the remainder of a person's life.
  Another factor has to be taken into account. When considering a five-year tenure and a seven-year tenure, one has to consider that the Assembly is elected for four years, so a seven-year tenure would more or less cover two Assemblies. I do not believe that five years is long enough for an ombudsman to be in place, but seven years is about right.
  The other amendment in the group, Amendment No. 5, states,
  "In exceptional circumstances the term of office, as set in sub- paragraph (1), can be extended by one year".
  That takes account of the fact that if, for some unforeseen reason, an appointment cannot be made—in the past, I have known a number of circumstances in different appointments where that has occurred—the ombudsman in situ can continue for another year while that is sorted out. That is a contingency situation. Clearly, I prefer Amendment No. 4, which would mean the ombudsman being in place for a seven-year period. No one has a divine right to a post for a period of 10 years. I do not think that that is right in this case.
  We should remind ourselves that recently a couple of appointments have been made in the Assembly that have been extremely controversial. Fortunately, this is a Crown appointment and, as we decided on the previous group of amendments, the Secretary of State would approve such a matter after consultation. A seven-year period underlines the point. Seven years is about right. I strongly support the amendment.
  Lord Rowlands: I support the seven-year principle. In the other place I served many years on legislation committees, but I was never on such a good listening one as this. We have already had one amendment successfully accepted in principle, which tempts us to suggest more. There is a lot of cross-party opinion against the 10-year appointment. My simple test for the length of service for an ombudsman would be: to what extent does it buttress his or her independence? Five years is too short. Five years plus renewal is also not happy. What would be the criteria for renewal? Who would do the renewing? What would be involved?
  As the noble Lord, Lord Roberts, said, perhaps towards the end of the five years the ombudsman would be looking over his shoulder and wondering. If he or she wanted to be reappointed, that just might influence his or her judgments. Ten years is far too long. The seven-year period—the seven-year itch— seems to me to be very good. Therefore, I support it.
  Lord Evans of Temple Guiting: I have a very good and extensive note here that leads up to the Government's view that they have changed their mind on the 10-year period and accept the seven years as proposed in Amendment No. 4. We feel that this would strike more accurately the balance that we seek to achieve between security of tenure and opportunities to re-invigorate the office. I am delighted that support for the seven-year period seems to be fairly widely shared around the Committee. We will bring forward an amendment on Report.
  Perhaps I may just say that I am not going to agree to absolutely everything. Having accepted—if, indeed, it is accepted—that seven years, as opposed to 10 years, is an appropriate term of office, it does not seem sensible to accept that the term of appointment should be extended by a further year in exceptional circumstances, as proposed in Amendment No. 5. The amendment does not specify whose judgment should determine whether a given circumstance is exceptional. Inevitably, there would be some uncertainty and the possibility of disagreement about that. Given that the Bill makes provision for an acting ombudsman to be appointed to fill any period between one ombudsman and another, the amendment is unnecessary and would be the source of considerable difficulty in practice.
  Again, I have a good and interesting note on the point raised by my noble friend Lady Gale about whether the appointment can last for an extra year. I fear that the answer is no. The Bill does not allow for that and Her Majesty will appoint a new ombudsman. There is no reason for Her to appoint an acting ombudsman. It is only if the office of ombudsman falls unexpectedly vacant due to illness or death that there is scope for appointing an acting ombudsman. In that case, the former ombudsman can fill the temporary gap.
  Given my explanation, I hope that the amendment will be withdrawn.
  Lord Roberts of Conwy: Once again, we are grateful to the Minister. There was clearly no support for the 10-year period and a lot of support for the seven-year tenure. The one thing that the Minister did not make clear is whether the seven-year tenure, which may be proposed by government amendment, or the exceptional period under the amendment of the noble Baroness, Lady Gale, will mean that there will be no further extension—in other words, that there cannot be a second seven-year period.
  Lord Evans of Temple Guiting: Yes; it will be a seven- year period that is not renewable.
  Lord Roberts of Conwy: That prompts me to ask the Minister to consider the matter further, because the one great advantage of my amendment is that it allows for a five-year period and a renewal for a further five years.
  Clearly, within government there have been arguments in favour of a 10-year period, otherwise it would not be in the Bill before us, and there is certainly
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  something to be said for a five-year period which is renewable and can therefore ultimately be extended to 10 years. But the Minister has spoken and I am certainly not one to quibble with a compromise. I am very happy to accept the seven-year period.
  However, we have heard it argued that the ombudsman must be in post for some time in order to learn how to do the job and to cultivate independence and public respect. Once that has been secured, there may well be a great deal of feeling that he should stay in post. Therefore, we await the Government's amendment but, again, I suggest that we give this matter further consideration, perhaps at a later stage. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4 p.m.
  The Deputy Chairman of Committees: Amendment No. 4 in the name of the noble Baroness has been agreed in principle by the Minister but, in the light of what the noble Baroness has said, she may not feel inclined to press it.
  Baroness Galehad given notice of her intention to move Amendment No. 4:
  Page 27, line 16, leave out "ten" and insert "seven"
  The noble Baroness said: Because I am not absolutely certain, perhaps I may ask a question. The Minister asked us to withdraw the amendments but I assume that he did not include Amendment No. 4 because that is the amendment that we want and the amendment to which the Government have agreed. I beg to move.
  Lord Evans of Temple Guiting: I have obviously not agreed to the form of the amendment because that must be worked out between now and Report. However, as I said, the Government accept the principle behind it.
  Baroness Gale: On that basis, I do not intend to move it.
  [Amendment No. 4 not moved.]
  Lord Livsey of Talgarthhad given notice of his intention to move Amendment No. 5:
  Page 27, line 17. at end insert—
  "( ) In exceptional circumstances the term of office, as set in sub-paragraph (1), can be extended by one year."
  The noble Lord said: I warmly welcome the Minister's acceptance of Amendment No. 4. and I totally understand his argument for not extending the term of office for one year. Therefore, I do not intend to move Amendment No. 5.
  [Amendment No. 5 not moved.]
  [Amendment No. 6 not moved.]
  Lord Roberts of Llandudno Lord Roberts of Llandudno moved Amendment No. 7:
  Page 28, line 3, after first "of insert "the National Assembly for Wales and approved by"
  The noble Lord said: There are now two Lord Roberts. We are becoming quite close colleagues as well as living within a stone's throw of one another. We shall probably be confused with each other now and again.
  This amendment—the first in the group—relates to the involvement of the National Assembly in the appointment of an ombudsman. I am sure that, following the spirit of the amendment tabled by the noble Lord, Lord Rowlands, this will also be accepted without much debate.
  I now turn to Amendment No. 9. This amendment leaves me in a little confusion—probably not for the first nor the last time. Paragraph 5 of Schedule 1 refers to disqualification. It states:
  "A person is disqualified from being the Ombudsman or an acting Ombudsman if any of the following applies—

  (a) he is a member of the House of Commons;

  (b) he is a listed authority".

  The listed authorities include the Assembly, a local authority in Wales, a local board, a joint board or a national park. Can the Minister explain how one of those could be an ombudsman? Do the Government mean "a member of" a listed authority? If that is what they mean, that will clear up the matter very well. I beg to move.
  Lord Roberts of Conwy: I rise to speak to Amendments Nos. 8 and 10, which are included in this group. Amendment No. 8 is tied in with my earlier amendments, which sought to provide for a five-year term which was to have been terminable or extendable by a further period of five years. Here we are dealing specifically with the acting ombudsman. My Amendment No. 8 therefore proposes to delete from Clause 4(3) the bracketed prohibition on the ombudsman from holding office as an acting ombudsman if he has previously held the full office.
  Amendment No. 10 is probing in nature and raises a serious question: why should the Assembly ever resolve that one of its Members should not be debarred from being an ombudsman? The Bill establishes quite clearly that Members of the Assembly should not be ombudsmen any more than members of listed authorities or local authorities.
  Clauses 5(1) and 6(1) make it clear that an Assembly Member is disqualified, along with other members of bodies subject to inquiries, those that are listed, and local authorities and their employees. We must ask, therefore, why this special exception is being made. It smacks of jobs for the boys and will be seen as such. It may be that an Assembly Member will show a particular talent for this kind of work, but surely in that event, if he wished to be considered for the post of ombudsman, he could resign his Assembly membership either before or immediately after appointment. Frankly, I see no justification for this subsection.
  Lord Roberts of Llandudno: I apologise if I was initially mistaken about when to rise to speak to the amendments tabled in my name. My Amendment No. 9 seeks to make exactly the same point as that made by the noble Lord, Lord Roberts on Conwy, in Amendment No. 10. For a
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  Member of the Assembly to be allowed to be the Public Services Ombudsman while a Member of the House of Commons is not allowed to hold that post undermines the whole purpose of being an ombudsman; that is, to be as independent and separate as possible. If the ombudsman is to investigate listed authorities, which is what the Assembly wants, surely he should not be part of the Assembly itself.
  I speak in support of my own Amendment No. 9, and again I want to ask the Minister to enlighten us on the listed authorities.
  Lord Evans of Temple Cutting: I shall respond first to Amendments Nos. 7 and 8 before turning to Amendments Nos. 9, 10 and 11.
  Amendments Nos. 7 and 8 concern the appointment of an acting ombudsman. Current provision in the Bill is that where the office of the ombudsman falls vacant, an acting ombudsman can be appointed by Her Majesty on the recommendation of the Secretary of State for a period of up to two years. The effect of the amendments would be to make it a requirement that if the office of the ombudsman falls vacant, the appointment of an acting ombudsman would be made on the recommendation of the National Assembly for Wales, approved by the Secretary of State, to Her Majesty.
  As we have already heard, in practice, substantive appointments to the office of ombudsman are made on the recommendation of the Secretary of State for Wales following consultation with the Assembly. Earlier I agreed to bring forward an amendment to make it a requirement that the Assembly is consulted rather than relying on past practice.
  The appointment of an acting ombudsman should differ as little as possible, if at all, from that of a substantive appointment. The importance of the office is no different, but we must recognise that, in reality, if the office of ombudsman should suddenly fall vacant, that is likely to be due to unforeseen circumstances to which the Secretary of State must react swiftly with the appointment of an acting ombudsman. The imperative is that the ombudsman function can continue.
  I can see no reason why, for an acting appointment, it should be the National Assembly for Wales that makes the recommendation to the Secretary of State for an appointment with the approval of the Secretary of State, especially when, by implication, approval means that the Secretary of State could veto the recommendation. Why introduce yet another different process? In the light of that explanation, I invite the noble Lords, Lord Roberts of Conwy and Lord Livsey of Talgarth, not to press their amendments.
  Amendments Nos. 9, 10 and 11 all relate to the disqualification provisions in Schedule 1. The policy intention is that, while in office, the ombudsman should be disqualified from undertaking certain other public functions, especially any function that falls within his jurisdiction as ombudsman. The ombudsman could not properly consider or investigate a complaint that concerned his actions in that capacity. That is why he is disqualified from being a listed authority or holding a

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  paid appointment to or being a member of a listed authority while he is the ombudsman. That is why Amendment No. 9 is not needed; it is already provided for in paragraph 5(1 )(c) of Schedule 1.
  However, once the ombudsman has left office, the position rightly changes. The Bill provides that where a person has ceased to hold office as the ombudsman or acting ombudsman, he is prevented for a period of three years from holding an office that is a listed authority, from being a member, co-opted member, officer or member of staff of a listed authority and from holding a paid office to which appointment is by a listed authority. However, it makes clear that that does not include offices to which a person is elected or, in the case of the Assembly Cabinet, chosen by the First Minister. We feel that that would be an abuse of the democratic process.
  I am sure that the Committee will agree that disqualification should not extend to positions in a listed authority to which the former ombudsman is democratically elected. The Bill therefore makes clear that a former ombudsman is not disqualified from being, for example, an Assembly Member in the National Assembly for Wales. Amendment No. 11 would remove that clarification.
  The Bill also attempts to address the situation, should it ever arise, in which an ombudsman is elected as an Assembly Member and immediately relinquishes the office of ombudsman. The Bill provides that, in that situation, the other Assembly Members can resolve that he or she is not disqualified from being an Assembly Member by virtue of having been the ombudsman at the time of his or her election. That is the policy intention behind the Bill's provision whereby the Assembly can resolve to disregard the disqualification that would normally prevent the ombudsman being an Assembly Member.
  The Government have sought to give effect to that policy intention by following closely the disqualification provisions in the Government of Wales Act. However, the amendment tabled by the noble Lord, Lord Roberts of Conwy, has caused us further to consider whether we have achieved the desired effect. The related provision in the Government of Wales Act, Section 13(3), provides that the Assembly may resolve to disregard certain grounds of disqualification that would otherwise debar a person from being an Assembly Member, provided, first, that the ground in question has been removed and, secondly, that it is proper so to resolve. That makes it quite clear that the disqualification can be disregarded only where a person—in our example, the ombudsman—has given up the disqualifying office in order to take his place as an Assembly Member.
  The Government will be giving further consideration to whether the disqualification provisions in the Government of Wales Act have been fully replicated, and we thank the noble Lord for bringing that to our attention. In the light of that, I invite the noble Lord to withdraw his amendment while we reflect further on the matter and consider whether an amendment needs to be tabled on Report.
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  4.15 p.m.
  I have a note on the very specific question that the noble Lord, Lord Roberts of Llandudno, asked on Amendment No. 9. Paragraph 5(1)(b) of Schedule 1 disqualifies a person from being the ombudsman—
  The Deputy Chairman of Committees: The sound system seems to have stopped working. I do not think that I can take personal responsibility for that. As it is a small Committee, perhaps we may continue.
  Lord Evans of Temple Guiting: Does Hansard have a recording?
  The Deputy Chairman of Committees: That is a good point; apparently it does not. If we adjourn for five minutes, perhaps Hansard will be able to send two shorthand writers to take down our proceedings. Members of the Committee can relax in the meantime and we will resume then.
  [The Sitting was suspended from 4.17 to 4.27 p.m]
  The Deputy Chairman of Committees: I think that the Minister had almost finished replying to Amendment No. 7. He had just a small point to pick up.
  Lord Evans of Temple Guiting: I had in fact finished replying, but I was mid-way through an answer to the noble Lord, Lord Roberts of Llandudno, on Amendment No. 9.I covered the issue in my speech, but perhaps it would be helpful if I went into a little more detail. Paragraph 5(1)(b) of Schedule 1 disqualifies a person from being an ombudsman if he or she "is a listed authority". The noble Lord's asked how a person can be a listed authority, given the nature of the bodies listed in Schedule 3. Paragraph 5(1)(c) states that a person cannot be the ombudsman if,
  "he is a member … of a listed authority".
  Hence we feel that Amendment No. 9 is unnecessary and the noble Lord's concern is already catered for in the Bill.
  The drafting of paragraph 5(1)(b) derives from the fact that some bodies in Schedule 3 are individuals—for example, the Forestry Commissioners and the Office of Her Majesty's Chief Inspector of Education and Training in Wales. I hope that that satisfactorily answers the question raised by the noble Lord, Lord Roberts.
  4.30 p.m
  Lord Rowlands: I give my full support to my noble friend in resisting Amendment No. 7. It goes too far to suggest that the National Assembly for Wales must approve the appointment of the ombudsman. Such an appointment would give undue influence to the Assembly.
  I should like to clarify that my noble friend intends to amend paragraph 4(1) to make it consistent with the amendment that he proposes in principle on the appointment—in other words, we make the appointment of the acting ombudsman in the

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  consultation process identical to the proper appointment. If he gives that assurance, I think that we would be more than happy.
  Lord Evans of Temple Guiting: I can once again please my noble friend Lord Rowlands by saying that that is precisely our intention.
  Lord Roberts of Conwy: I wholeheartedly agree with the Minister that the appointment of the acting ombudsman should "differ as little as possible"—I think that I have quoted his exact words—from the appointment of the ombudsman. I also thank him for the notice that he has taken of my Amendment No. 10, which relates to paragraph 6(2). As he will appreciate, in the context of this disqualification, sub-paragraph (2) does not read well, in that it implies a power that can be exercised by the Assembly at any time. I see no objection to a former ombudsman becoming a member of the Assembly. I am most grateful to the Minister for having another look at that sub-paragraph.
  Lord Roberts of Llandudno: I thank the Minister for those assurances. What really concerned me was the possibility that a serving ombudsman could also be a serving member of the Assembly. That will not be the case. I look forward to seeing the amended version on Report. For now, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 8 to 11 not moved.]
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 12:
  Page 29, line 30, at end insert "which shall be transparent"
  The noble Lord said: The amendment seeks to emphasise that the terms of the ombudsman's appointment, as agreed by the Assembly, should be transparent, by which I mean that they should be open to public scrutiny. Presumably, such terms would be available under the Freedom of Information Act. I should be grateful for confirmation of that by the Minister if that is indeed the case.
  Amendment No. 13, which is grouped with Amendment No. 12, seeks to clarify the terms under which the ombudsman delegates a function. It is very important that they should be in writing to avoid confusion. That is a difficult point to establish, but the ombudsman has very considerable investigative powers and it is important when he delegates a function. The functionary will be dealing with people outside his own organisation, and it is very important that his credentials should be firmly established. I believe that it would be helpful if that was done in writing. I beg to move.
  Lord Evans of Temple Guiting: We were not certain to what the noble Lord, Lord Roberts, was alluding when he tabled Amendment No. 12. I am grateful to him for clarifying his intention. Both the Assembly and the ombudsman are subject to government accounting rules and audit by the Auditor-General for Wales. These accounts have to be published by the Assembly under the provisions of the Government of Wales Act. Any payment to the ombudsman could not
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  be anything other than transparent. For that reason we do not consider that this amendment is necessary. Of course, under the Freedom of Information Act it would be possible, if necessary, to find out what the salary was, but, as I have said, they will be published in the Assembly's accounts.
  However, I should explain that, on salaries, the ombudsman will be paid in accordance with the appropriate point on the judicial scale and further discussion will be needed on what that point should be. As the noble Lord will know, changes to salaries of this type are perceived in the light of recommendations of the Senior Salaries Review Body, whose reports are published. So, again, there is no lack of transparency.
  Amendment No. 13 would make it a requirement that when the ombudsman, or acting ombudsman, ceases to hold office and the Assembly decides to pay compensation to that person, the payment must be made in writing. I assume that that is an argument for transparency, but, in the Government's view, the amendment is not necessary. The Permanent Secretary of the National Assembly for Wales is the Assembly's principal accounting officer and he is personally responsible for ensuring the proprietary and regularity with which the Assembly's resources are spent. That is the normal mechanism for ensuring that such matters are conducted properly and appropriately. We do not see the need to make any special provision in this context.
  I also believe that we can safely assume that the ombudsman would not delegate one of his functions by word of mouth. In the real world, if the real world exists, it is almost inconceivable to me that that could not be done without writing letters.
  Lord Livsey of Talgarth: The Minister has just made the point that transparency would appear in the audited accounts of the Assembly. Page 29, line 30 of the Bill says:
  "as may be provided for by or under the terms of his appointment".
  Would that imply that, if the amendment tabled by the noble Lord, Lord Roberts, were accepted, the transparency would be in the public domain much earlier than it would be if it were in the Assembly's accounts, perhaps in a rather detailed way, but at a much later date?
  Lord Evans of Temple Guiting: I am not sure that that would be the case. The point of the amendment, which I fully support, is that in the appointment there should be absolute transparency and any member of the public should be able to find out what is the ombudsman's salary. It is perfectly reasonable to look at the accounts or use the rights under the Freedom of Information Act to find that out. We do not see the need to go any further than that.
  Lord Roberts of Conwy: I am grateful to the noble Lord for his comments on these two amendments. Perhaps I may ask whether terms and conditions actually cover more than salary. I should have thought

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  that they do, although salary may of course come into them. I am interested in terms and conditions as a whole.
  Presumably, as the noble Lord said, salary and any other expenses would be covered by the audited accounts. But terms and conditions would not necessarily be available to the public. I think that these terms and conditions should be available and possibly might be available under the Freedom of Information Act. So I would be grateful if he could cover that point.
  We require transparency, and I think that the public requires it these days. With regard to the delegation of functions, I hear what the noble Lord has said. But I would ask him to bear in mind when he comes to give further consideration to these matters that the functions the ombudsman delegates may very well be exercised on listed authorities and so on. It should be very clear that the functionary has full authority, and I think that it should be in writing.
  Lord Evans of Temple Guiting: As I understand terms and conditions, the two major items would be the length of contract and the salary. Of course in any job at this level there will be other matters that have to be discussed; for example, secretarial help, expenses, cars and so on.
  I would not expect these matters to be in the public domain. The major items should be in the public domain. Does the ombudsman have access to a computer at home, paid for by the taxpayer? These are important issues in a contract of employment, but I really do not think that they are major enough for us to say, "Yes, we can display all the terms and conditions for this job".
  Having said that, we shall have a look at the matter and, if necessary, I will come back to the noble Lord, Lord Roberts. But I think that salary and contract length are the two critical things in conditions and employment at this level.
  Lord Roberts of Conwy: I am grateful again to the noble Lord and particularly for the further consideration that he is going to give to the point that I made. After all, this is a very important public office and people are entitled to know what benefits holders of such an office actually enjoy. There could be a lot of public pressure to know the terms and conditions of the appointment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 13 not moved]
  The Deputy Chairman of Committees: Before I call the next amendment, I should inform the Committee that it is my understanding that the microphone lights are coming on, which indicates that the Committee is being recorded by Hansard upstairs. That is fine, but it does not mean that we are being amplified. Therefore, bear that in mind. If anybody thinks that they can whisper, it may not be heard by everybody present. But
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  we are a small Committee and I do not think that it means that we need to shout at each other. If that is understood, I call Amendment No. 14.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 14:
  Page 31, line 21, after "Assembly" insert "and both Houses of Parliament"
  The noble Lord said: Amendments Nos. 14 and 15 both ensure that we in both Houses of Parliament are kept informed.
  Members of the Committee are well aware of the difficulties some of us have had in keeping track of Assembly documents and publications. I referred to the point at Second Reading, and I brought it to the personal attention of the First Minister, Mr Rhodri Morgan, when he attended a meeting in this House. I am bound to say that he did not appear to have been previously aware of our difficulty. I attach no blame to him or to his civil servants for that, but it is a fact that is well known to the Library of the House of Lords and to our Printed Paper Office.
  4.45 p.m.
  This is a piece of legislation to which we shall have devoted hours of our time and it will eventually result in annual and extraordinary reports, in which we shall be interested. While the legislation does not provide that either House of Parliament should have a formal role in such reports, nevertheless we are entitled to ask that they be provided to us. Some noble Lords will certainly be interested to see how the ombudsman's work is carried out. The sure way to ensure that is by passing these amendments. There is no obligation other than to supply us with the reports. We cannot rely on assurances. The ombudsman is obliged, under paragraph 14(4) of Schedule 1 to send copies of the reports,
  to any other persons he thinks appropriate".
  This is an order for him in advance of his appointment to supply such papers to ourselves in the House of Lords as "other persons", whom we hope he considers appropriate. I beg to move.
  Lord Livsey of Talgarth: I support the amendment. As the noble Lord, Lord Roberts, says, it has been difficult to get hold of all the relevant information in the Assembly. It is quite clear that the ombudsman in his report will make a number of investigations and outcomes known, but some of the issues raised may be of great interest, not only to Welsh Members of Parliament, but also to Parliament in general. There may be some very important issues and points of principle that people ought to know about early on rather than receiving the information second hand.
  Lord Evans of Temple Guiting: The noble Lord, Lord Roberts, made very strong representations at Second Reading about the difficulties that he and other noble Lords experienced in getting sight of the relevant policy documents that preceded this Bill. As I said at the time, I regret that. On investigation, we

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  discovered that copies of the consultation document had been lodged in the Libraries of both Houses, so the situation was not quite as bad as I had thought.
  We accept the principle that on matters like this, background documents should be available. In this case it appears that they were. I believe it is a matter of whether noble Lords are passive or active. Do they wish papers to be sent to them or should they be expected to make low-level inquiries themselves? The Assembly's website, for example, has all the information that is needed. However, we cannot see any rationale for making it a statutory requirement that the ombudsman must lay a copy of any annual or extraordinary reports that he lays before the Assembly before both Houses of Parliament. No such provision exists for the current offices in Wales and I am not aware of it having been a concern or having caused difficulties for Parliament.
  I also wonder what benefit that would have when there is no requirement for either House to consider or to respond to such reports. That quite rightly rests with the Assembly. One could even argue that the amendment flies in the face of the spirit of devolution, but perhaps that is going a little too far.
  I am sure that the ombudsman will have noted this amendment and I encourage him to be proactive in providing copies of these reports to the Libraries of both Houses. If at some point in the future it is demonstrated that there is a need for this to be put on a more formal basis, then the Assembly may wish to use its power under Paragraph 14(6) of Schedule 1 to give directions to the ombudsman in relation to the annual report. But I am very confident that that will not prove necessary, certainly after the discussions which the noble Lord mentioned with the First Minister.
  Given that explanation, I hope that the noble Lord, Lord Roberts, will feel able to withdraw the amendment.
  Lord Roberts of Conwy: I did not make my complaint at Second Reading without having checked beforehand with the Library and the Printed Paper Office. They verbally confirmed the difficulty that I referred to then and have referred to again now. However, I obviously take the Minister's explanation and comment to heart. I also appreciate the fact that the ombudsman will have heard our words on this subject. As he does have the power to send copies of reports to any other persons he thinks appropriate, I can only reiterate my view that he regards both Houses of Parliament as being appropriate for the receipt of his reports. With that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 15 not moved.]
  Schedule 1 agreed to.
  Clause 2 [Power of investigation]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 16:
  Page 2, line 1, leave out "(but only if)"
  The noble Lord said: Amendment No. 17, which is on much the same lines as Amendment No. 16, and Amendment No. 18, which is slightly different, are grouped with Amendment No. 16. The point of all these amendments is to highlight the concern that we ease the path of the aggrieved person and do not make it too difficult for him to complain.
  The qualification that Amendments Nos. 16 and 17 seek to remove, while questionably necessary, does have a very forbidding look about it. The message seems to be, "Complain only if you must". Similarly, the statement in Clause 2(5), which Amendment No. 18 modifies, gives the ombudsman absolute discretion on whether to begin, continue or discontinue an investigation. He should, I suggest, act within the spirit as well as the letter of the Bill.
  I am sure that the Minister has already grasped the point that I seek to make. We wish the ombudsman to bend over backwards and be helpful to complainants rather than frighten them off, possibly to reduce his own workload. I beg to move.
  Lord Prys-Davies: I should very much like to support Amendments Nos. 16 and 17. The words "but only if have, as the noble Lord, Lord Roberts, has explained, worrying overtones. It seems to me that it is implicit in the words "but only if that there is a constraint and limitation. Surely it should be possible for the ombudsman to consider a complaint that comes to him along a route that is perhaps different from that spelt out in the Bill. If a complaint comes to him along a different route and he believes that an investigation would be justified by the evidence, then he ought to be able to do so.
  While I am on my feet, perhaps I may ask my noble friend the Minister to explain to me what would be the position where the complainant lodges a complaint with a listed authority, and the listed authority takes more than 12 months to consider the complaint and then rejects it. Would it be possible for the complainant then to lodge a complaint with the ombudsman? If the words "but only if remain in the Bill, then it seems to me that he would have no discretion whether to consider such a complaint. Indeed, when one thinks about it, there are numerous situations where a complaint would come to the ombudsman along a different route. So I would be very grateful if my noble friend could offer some guidance on whether those routes are available to him.
  Lord Livsey of Talgarth: I should like to support both what the noble Lord, Lord Roberts, has said and what the noble Lord, Lord Prys-Davies, has said. I think that this provision could limit access to the ombudsman, and that is a very serious matter indeed. The citizen should always be able to gain access to the ombudsman. There should be no barriers in the way of pursuing that access.
  Lord Evans of Temple Guiting: Perhaps I should say at the outset that the Government cannot accept Amendments Nos. 16, 17 and 18. We do not believe that these amendments would improve the Bill. Indeed, we believe that they would introduce an element of uncertainty where it is very important that

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  none should exist. The words "but only if' put beyond doubt that a complaint can be considered by the ombudsman only if it is duly made or duly referred— in other words, only if the requirements of Clause 2(2) or Clause 2(3) are met. The ombudsman has wide powers that are engaged only when a complaint is "duly made" or "duly referred" to him.
  It is therefore important to know beyond doubt in what circumstances a complaint is considered to be duly made or duly referred to the ombudsman. The effect of the noble Lord's amendments would be to open up the possibility of a challenge about when a complaint has been duly made or referred to the ombudsman. That is the sort of argument on a purely procedural issue that we should not encourage. It is a small risk, but a risk none the less.
  I turn specifically to Amendment No. 18. The purpose of the clause to which this amendment relates is to give the ombudsman a wide discretion to decide whether to begin, continue or discontinue an investigation, but only where he is entitled to investigate that matter. The ombudsman could not initiate an investigation of a matter unless a complaint about that matter has been duly made or duly referred to him. That is the effect of Clauses 2(1) and 2(5).
  It is inherent in the Bill that the ombudsman can act only in accordance with the legislation that governs his office. To do otherwise would be a folly, opening up his decisions to judicial review with any consequential loss of faith in the ombudsman service by members of the public and/or listed authorities. For those reasons we believe that this amendment is unnecessary.
  My noble friend Lord Prys-Davies asked what will happen if a listed authority takes unreasonably longer than a year to deal with a complaint made to it. In those circumstances, the aggrieved person can complain directly to the ombudsman, who would be able and likely to disapply the normal one-year time limit. It would, of course, be a matter for the ombudsman in each case.
  In the light of that explanation, I hope that noble Lords will not press these amendments.
  5 p.m.
  Lord Roberts of Conwy: I was trying to make the point that the phrase "but only if frightens people off; it is a forbidding injunction. One is tempted to ask what the words in brackets add to the statement. So far as I can see, they add nothing. The Bill is very clear about what is a "duly made" complaint: it is defined in paragraphs (a) and (b) of subsection (2). A "duly referred" complaint is defined in subsection (3), which states:
  "A complaint is 'duly referred' to the Ombudsman if (but only if)"
  and sets the conditions out in paragraphs (a) and (b). Why should we provide that the complaint is "duly referred" to the ombudsman "if (but only if)"? Not only does it seem superfluous but members of the
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  public reading the legislation would find it rather forbidding. It would make no difference to the content of the subsections if those words were left out.
  Amendment No. 18 relates to subsection (5), which provides:
  "It is for the Ombudsman to decide whether to begin, continue or discontinue an investigation".
  One accepts that, but does it really have to be included in the Bill? It seems a totally unhelpful attitude towards an aggrieved person who may wish to complain. However, I have heard the Minister's view, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 17 and 18 not moved.]
  Clause 2 agreed to.
  Clause 3 [Alternative resolution of complaints]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 19:
  Page 2, line 25, leave out "must" and insert "may"
  The noble Lord said: Clause 3 will be helpful to an aggrieved person, but why must an action be taken in private? Surely there is room for discretion. Why should the ombudsman always have to hide his light under a bushel? It has been said that the danger with hiding your light under a bushel is that you never know when it has gone out. Of course there will be circumstances where the ombudsman must act in private but there will be other occasions when such action in private will be difficult and the certainty of privacy almost impossible to guarantee.
  Let us take, for example, a person with a legitimate grievance against a local authority that the authority readily accepts as an error. The ombudsman may not be able to tell the aggrieved person in so many words because he cannot guarantee that the knowledge he imparts will not become public, in which case the aggrieved person will never know what really went on and how his complaint was settled. The ombudsman should have some discretion in these matters. Therefore, I propose to substitute "may" for "must". I beg to move.
  Lord Evans of Temple Guiting: It is a well established tradition of ombudsmen in the UK that any action taken by an ombudsman in relation to the investigation of a complaint is taken in private. That relates to the formal investigation of a complaint under Clause 13.
  The noble Lord will see that Clause 13(2) makes the necessary provision for investigations to be in private. But it should also apply, in the Government's view, to the more informal methods of resolving a dispute, through discussion and negotiation. We do not believe that those more informal mechanisms will be as effective if the possibility arises that they might be pursued in public.
  The amendment would also introduce an inconsistency between formal and informal dealings with complaints, which the Government believe could not be justified. It might also serve to undermine the effectiveness of the informal mechanisms for resolving

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  disputes, which, we believe, are a very welcome innovation in the Bill. For those reasons, I invite the noble Lord to withdraw his amendment.
  Lord Roberts of Conwy: I am still mystified by the requirement that the ombudsman takes the action in private. How can he guarantee that it will remain private? Others such as the complainant and whoever he has complained against will be involved. Knowledge of the outcome may seep out to the press and the public. Although I am prepared to withdraw the amendment for the time being, I commend my remarks for further consideration by the Minister.
  Amendment, by leave, withdrawn.
  Clause 3 agreed to.
  Clause 4 agreed to.
  Clause 5 [Requirements: complaints made to the Ombudsman]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 20:
  Page 3, line 3, at end insert "or by email"
  The noble Lord said: I am not sure whether e-mail counts as writing in law. For the sake of clarity, the amendment seeks to include such communication on the face of the Bill. These days, most professional people—lawyers, doctors and so on—use e-mails to communicate. I believe that such communications have some legal validity. The same question arises over the writing requirement in Clause 6(1)(c). I should be grateful if the noble Lord would remove any lingering doubt about the efficacy and validity of such communications by e-mail. I beg to move.
  Lord Evans of Temple Guiting: The Government sympathise entirely with the spirit of the amendment but believe it to be unnecessary. A complaint "made in writing" includes those written by hand and submitted by conventional methods—the Royal Mail—and those made by electronic means and submitted via electronic mediums such as e-mail or facsimile. It would indeed be an anomaly to prevent the ombudsman considering a complaint submitted by e-mail, but we are satisfied that that is not the effect of the Bill.
  In any event, I remind the noble Lord that the ombudsman has discretion under Clause 2(4) to dispense with a requirement for a complaint to be made in writing if in the circumstances of the case it would be reasonable to do so. Members of the Committee will remember that the issue arose at Second Reading, when it was pointed out that there might be disabled people who are unable to write. I hope that I made it clear then that the ombudsman could still consider their representations.
  In the highly unlikely event of a court holding that writing excludes e-mail, the ombudsman could still accept e-mail complaints through use of the discretion in Clause 2(4). So we are entirely in agreement with the noble Lord about allowing complaints to be submitted by e-mail but we do not need this amendment to achieve that. In the light of that, I would be very grateful if the noble Lord would withdraw his amendment.
  Lord Roberts of Conwy: I am most grateful to the noble Lord for explaining the position, which I did not
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  know in the detail that he has given, and for reminding us of the ombudsman's discretion. I am satisfied with what I have heard and therefore I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 21:
  Page 3, line 4, leave out paragraph (b).
  The noble Lord said: Amendments Nos. 22 and 23 are also included in this group. These are probing amendments.
  One could think of all kinds of reasons why an aggrieved person might find the one-year requirement difficult to meet. The year begins,
  "on the day on which the person aggrieved first has notice of the matters alleged in the complaint".
  That is very precise and begs the question what is "notice" in this context. Is it when the complainant first brings the matter to the attention of the relevant authority, or when the authority replies in an unsatisfactory way, causing the complainant to object? Or is it still further back in time—the occasion of whatever causes the complainant to approach the authority? There seems plenty of scope for argument here, but the final arbiter is the ombudsman himself and there is no appeal against his decision. I can well understand the need for some sort of time limit but must it be quite so precise and yet imprecise at the same time, and open to question? I shall be interested to hear what the noble Lord says about it.
  Amendments Nos. 22 and 23 deal with the same problem of defining the starting date of a complaint in paragraphs (b) and, to a lesser extent, (d) of Clause 6(1), as in Clause 5(1). Paragraph (d) is clear in that it defines the start of the year as being,
  "the day on which the complaint was made to the listed authority."
  Whatever may have happened to the complaint since the authority had received it, if it does not reach the ombudsman within a year it will be out of time and presumably subject to the ombudsman's discretion as to whether he deals with it or not. Does he have discretion if there has been delay or dilatory tactics used? The noble Lord, Lord Prys-Davies, touched on that point earlier.
  If we work back from Clause 6(l)(d), in which the start day is defined as the day on which the complaint was made to the listed authority, the start date in Clause 6(1)(b) cannot be the same. Similarly, the start date in Clause 5(1)(b) cannot be the same. I need further clarification, but I may be somewhat dilatory myself in understanding the provision. I beg to move.
  5.15 p.m
  Lord Prys-Davies: I had understood the phrase,
  "first has notice of the matters alleged in the complaint",
  to mean the date when he first became aware that he had a cause of complaint. I shall be interested to hear my noble friend's explanation.
  Lord Roberts of Conwy: My point was: when does one become aware of the fact that one has a complaint?

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  It could be when one writes to the authority or it could be when one receives an unsatisfactory reply from the authority. Those will be different dates.
  Lord Prys-Davies: Yes, I am grateful for that. Surely one cannot be absolutely certain of the date when one appreciates that one has a cause of complaint, but I had understood it to mean when he or she appreciated that the service that he or she had received was defective and could, on grounds of maladministration, lodge a complaint with the ombudsman.
  Earlier—possibly at the wrong stage—I raised the case of an aggrieved person who makes a complaint to the listed body within the time limit but the listed body rejects it after the expiration of the time limit. Perhaps my noble friend can confirm whether the ombudsman would be able to receive that complaint.
  Lord Evans of Temple Guiting: Amendment No. 21 would remove the general requirement that the complaint must be made to the ombudsman before the end of one year after the date that the person aggrieved first had notice of the matter alleged in the complaint. We must define the word "notice" as, "knows or ought reasonably to have known what was happening". With that explanation of the word "notice", we can see that, if necessary, the ombudsman can use his discretion.
  It is entirely reasonable to expect a person who believes he has suffered injustice or hardship as a consequence of the action of a listed authority and wants to make a complaint to the ombudsman to do so within a reasonable time. We believe that a period of one year from the date that the person aggrieved first has notice of the matter that gives rise to the complaint is reasonable.
  The ombudsman is expected to consider or investigate a complaint in a way that is fair and equitable to all parties concerned. He is neither for nor against the citizen or the listed authority. That will help to ensure that all parties can still respond fully to a complaint as the matter should be within recent memory and records should still be available. However—this point is crucial—the ombudsman is not prevented from considering a complaint the genesis of which is more than one year old. The ombudsman may accept such a complaint made outside the normal time limit if he or she decides that, in the particular case, it is reasonable to do so. That important protection for the citizen is provided for in Clause 2(4).
  Another important protection for the person aggrieved is that the one-year time limit runs from the date that he or she first has notice of the matter giving rise to the complaint and not from the date of the event itself. The argument for retaining the time limit in Clause 6(1)(b) is essentially the same as the one that I adduced for complaints that are made directly to the ombudsman—that is, to ensure finality in relation to decisions or actions of listed authorities and to ensure that complaints are made within a reasonable time of the events giving rise to them so that the risk of fading memories and lost or damaged documents and so on is minimised.
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  The time limit does not relate to complaints to listed authorities generally. It does not prevent a listed authority considering a complaint, even if the complaint is made 50 years after the events giving rise to it. Whether the listed authority accepts the complaint—for example, for consideration under its own complaints procedure— is a matter for the listed authority.
  The time limit in Clause 6(1)(b) applies only in the context of complaints made to listed authorities, which are then referred by that listed authority to the ombudsman. The time limit is entirely reasonable and appropriate for the reasons I have explained. Furthermore, the ombudsman has discretion under Clause 2(4) to accept a referred complaint even if the time limit has not been complied with if he considers it reasonable to do so.
  The noble Lord, Lord Roberts of Conwy, asked whether the start dates of the time periods in Clauses 6(1)(b) and 5(1)(b) are different. It could be the case that the aggrieved person makes a complaint to a listed authority, but that the listed authority acts in a dilatory manner, so there is an unreasonable delay. It is true that the time period in Clause 6(1)(b) starts on the date the complaint is made to the listed authority, but the person aggrieved can always complain directly to the ombudsman, who would look at the case on its facts. If the delay of the listed authority has taken the aggrieved person outside the time limit set in Clause 5(1)(b), he may well disapply that time limit and accept the complaints. As I have said, it is a matter for the ombudsman in each case.
  Before I sit down, I must apologise to my noble friend Lord Prys-Davies. I gather that the answer to his question is, "Yes", but I have forgotten what the question was.
  Lord Prys-Davies: The question that I asked earlier and perhaps prematurely was: if the aggrieved person had made a complaint to the listed body and the complaint was rejected after the expiration of the 12 months, would the ombudsman be in a position to accept the complaint and, if he thought it appropriate, launch an investigation?
  Lord Evans of Temple Guiting: He would be able to under the provisions in Clause 2(4).
  Lord Roberts of Conwy: I am again grateful to the noble Lord for his detailed explanation. I think that we are all saved by the ombudsman's discretion. In his further consideration of the Bill, the noble Lord may wish to note the differences in Clauses 5 and 6 in the definitions of that year's start. There are three definitions and it may be possible to reconcile them. Leaving the noble Lord with that thought, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 5 agreed to.
  Clause 6 [Requirements: complaints referred to the Ombudsman]:
  [Amendments Nos. 22 and 23 not moved.]
  Clause 6 agreed to.
  Clauses 7 and 8 agreed to.
  Clause 9 [Exclusion: other remedies]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 24:
  Page 4, line 44. leave out paragraph (b).
  The noble Lord said: Again, this is a probing amendment. I should be grateful if the Minister would remind us of instances and the context where a member of the public has a statutory right of appeal to a Minister or to the Assembly.
  There is the whole area of planning law and inquiries of various kinds where a Minister or the Assembly can appoint inspectors or other persons to act in a judicial or quasi-judicial capacity. Is that what is meant by paragraph (b)?
  In my experience, it is often after such inquires that problems arise, along with feelings of injustice as a result of evidence being ignored or misinterpreted. The Children's Commissioner for Wales, who has already been mentioned, has felt it necessary to re-open certain cases that many thought were closed. He has re- opened them because the complaint arose post hoc.
  It may be that the ombudsman too will come under public pressure to re-examine certain matters that have been subject to an appeal to Ministers or the Assembly. Is he to be debarred from doing so? That is the point of Amendment No. 24.
  In this group we are also considering Amendments Nos. 25, 26 and 27. Amendment No. 25 to Clause 10 deals with other excluded matters the ombudsman may not investigate. Schedule 2 lists them. Amendment No. 25 refers to subsection (2) which empowers the Assembly to add or remove an entry or, indeed, to change an entry in Schedule 2.
  The purpose of Amendment No. 25 is to probe the circumstances under which a current entry might be changed. We can all envisage a change in legislation which might require an amendment to the wording of the schedule. Are other circumstances anticipated where a change might be required? Clearly, care has to be taken to ensure that this power is not abused and is not used as an escape hatch to avoid or stifle complaints.
  Amendment No. 26 belongs to the noble Lord, Lord Rowlands. I shall listen to him with great interest. However, while I am on my feet perhaps I may comment on Amendment No. 27, which seeks to discover what aspects of education are left for the ombudsman to investigate after all these exclusions relating to teaching in our schools.
  Of course, we shall be told that these are properly matters for the inspectorate of schools, which some Members of the Committee have been dealing with in the Education Bill. My attention will also be drawn, no doubt, to Clause 10(3), which does not prevent the ombudsman investigating action by a local education authority or any other listed body in operating a procedure to examine complaints or review decisions.
  Education is a very important area and a fertile ground for complaints. I hope that the noble Lord will be able to tell us of the role anticipated for the
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  ombudsman in education, which traditionally has been regarded as a preserve of the educational experts. Could the ombudsman, for example, examine a procedure for the appointment of teachers or head teachers—an issue which in Wales has from time to time leapt into the news in a plaintiff fashion? I beg to move.
  5.30 p.m.
  Lord Rowlands: Before addressing Amendment No. 26, tabled in my name, I should like to make one or two observations on the amendments in the name of the noble Lord, Lord Roberts of Conwy. I consider Clauses 10 and 27 to be two of the most useful and important clauses in the Bill because they transfer legislative competence to the National Assembly potentially to amend the powers of the ombudsman, in this case either to change or alter the schedule of exclusions and, in Clause 27, to alter the listed authorities. I think that that is a useful and important transfer of legislative competence. I have been a strong supporter of building up the legislative competence of the National Assembly for Wales, and it is clear that Clauses 10 and 27 take another step forward in that direction.
  I understand that the amendments of the noble Lord, Lord Roberts, are probing in nature, but the consequence of one of his amendments would be to limit the competence of the National Assembly to alter or amend in respect of Schedule 2, covering excluded matters. I am a little puzzled because the powers proposed in Clauses 10 and 27 were reviewed by our own Select Committee on Delegated Powers and Regulatory Reform. On Clause 10(2), which the noble Lord, Lord Roberts, seeks to amend, at paragraph 34 the committee concluded that:
  "It is considered that this power of delegated legislation is reasonable. It will provide desirable flexibility as the matters which should be excluded from investigation by the PSOW may need to change over time as the ways in which services delivered to [the] public in Wales alter".
  The committee has endorsed this useful additional order-making power for the Assembly.
  Turning to Amendment No. 26, tabled in my name, I find it impossible to believe that the National Assembly would seek to exercise the power of altering or amending Schedule 2 without consulting the ombudsman. Not only would it consult him, it would seek his agreement. After all, if the Assembly proceeds to alter the schedule, that would affect the operation of the ombudsman in a very direct and immediate way, placing either extra responsibilities on him to further investigate or taking away some of that investigative responsibility. Therefore it would be incumbent on the National Assembly not only to consult with, but also probably to seek the agreement of, the ombudsman before exercising its power—a power I fully support— to change or alter Schedule 2.
  On looking at Schedule 2, it is hard to see what alterations would take place. I assume—although perhaps my noble friend could confirm the point—that the list in the schedule comprises a honed and well established series of exclusions. Nevertheless, situations

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  could arise in the health service or in education which may lead the ombudsman himself to recommend or suggest that the schedule should be altered. That would be perfectly reasonable. Indeed, I suspect that it would be through his experience that any alterations to the schedule would be made. However, if the National Assembly wanted to proceed not by the process of heeding a recommendation from the ombudsman to alter or amend his powers, then I think that there should be an obligation for the Assembly to both consult and seek the agreement of the ombudsman before exercising its order-making power.
  Clause 10 does not contain even the modest provision set out in Clause 27. In the latter clause, at least when the Assembly exercises its order-making power, it will have to
  "consult such persons as it thinks appropriate".
  Clause 10 does not even provide for that. I do not think that that is good enough; it is not good enough even with the extra provision in Clause 27, which we shall consider in detail on a later amendment. The ombudsman is to occupy a very specific and special position. If the National Assembly changes or seeks to change his powers and jurisdiction, either by changing the exclusions or by altering the listed authorities, surely both consultation and agreement should be sought.
  I hope that my noble friend will consider this point sympathetically.
  Lord Prys-Davies: I support the contribution made by my noble friend Lord Rowlands. The clauses which the noble Lord, Lord Roberts of Conwy, proposes to amend will empower the Assembly to pass delegated legislation.
  I am particularly grateful to the Wales Office for submitting a very helpful memorandum to the Select Committee on Delegated Powers and Regulatory Reform. Further, it is worth noting the advice of the committee that there is nothing about the delegated powers being conferred by this Bill to which it wishes to draw the attention of noble Lords. That is a valuable finding and I thought that we should be made aware of the committee's judgment.
  My only question is one that I direct to my noble friend Lord Rowlands on his Amendment No. 26. In another clause the Bill provides for consultation by the Assembly, but not specifically with the ombudsman. I am not sure whether that ought to be spelt out in the Bill. However, I would be concerned if it was necessary for the Assembly to obtain the approval or agreement of the ombudsman before it could exercise its powers under Clause 10.
  Lord Evans of Temple Guiting: We have come to a very interesting set of amendments, which I shall spend a little time addressing.
  Subject to the ombudsman's discretion in Clause 9(2), the general approach is as follows. Where, in relation to a particular matter that is the subject of a complaint to the ombudsman, there is already provision for an appeal,
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  reference or review mechanism, or a remedy by way of proceedings in a court of law, the ombudsman should not be able to intervene. That other mechanism should be used.
  The purpose of Clause 9(1 )(b), which Amendment No. 24 seeks to delete, is to ensure the proper use of other appeal mechanisms by ensuring that generally the ombudsman cannot tread where, for example, Parliament has laid down an appropriate appeals mechanism. The type of appeal which this clause is intended to capture concerns, for instance, planning decisions where in some cases an appeal lies to a Minister of the Crown rather than to the Assembly. I cannot see the justification for removing the general bar on the ombudsman investigating a matter that is subject to an appeal mechanism to a Minister or the Assembly.
  In relation to Amendment No. 24, the noble Lord, Lord Roberts of Conwy, pointed out that often it is after an appeal of the kind referred to in Clause 9 that a person believes that he or she has suffered an injustice. The ombudsman does not provide a right of appeal. For example, where a person has a remedy by way of court proceedings, the appeal must be left to the court system. Similarly, if there is a right of appeal to a tribunal, but the tribunal interprets the law wrongly or otherwise reaches a decision that is appealable, that is a matter for the courts and tribunal system. The ombudsman is not a right of appeal.
  The intention of Clause 10(2) is to give the Assembly flexibility in relation to entries in Schedule 2. As we have heard, it allows the Assembly to add, change or remove an entry in the schedule. Clause 10(2)(c) allows the Assembly to change an entry that appears for the time being in Schedule 2. The noble Lord's Amendment No. 25 suggests that subsection (2)(c) should be deleted. That would take away the Assembly's flexibility to amend the description of an excluded matter in Schedule 2.
  Let us take, for example, the exclusion in paragraph 6(b) of Schedule 2, which prevents the ombudsman considering, among other things, complaints arising from the internal organisation or management of a local authority school. The Assembly might in future wish to bring such complaints within jurisdiction and could do so by order under Clause 10(2)(c), simply changing the entry to delete that part which refers to internal organisation and management and leaving the remaining provisions of paragraph 6(b) in place. The effect of the noble Lord's amendment would be to deny the Assembly that flexibility.
  The Bill needs to allow the ombudsman's jurisdiction to develop to reflect new circumstances and new ideas as to what it is appropriate that he or she should investigate.
  I have some sympathy with Amendment No. 26, which provides that if the Assembly wants to add, remove or change an entry in Schedule 2, it should do so only after consulting the ombudsman. As I said at Second Reading, I am happy to consider any suggestions from noble Lords that would improve the

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  Bill. A requirement to consult the ombudsman in these circumstances is such a suggestion. I shall take it away for further consideration.
  I am less sympathetic to the suggestion that the Assembly should be able only to add, remove or change an entry in Schedule 2 with the agreement of the ombudsman. It is the government of Wales in the form of the Assembly rather than the ombudsman which should be accountable to the public for the delivery of public services in Wales, and that includes ensuring that we have an ombudsman service that is fit for purpose. So the final decision on which matters should be within the ombudsman's jurisdiction should be for the Assembly.
  While I would hope that such a situation would never arise, if it did the ombudsman could, under the provisions of paragraph 14 of Schedule 1, prepare and publish an extraordinary report with respect to his functions as he feels appropriate. He would be able to make his displeasure publicly known, which would provide a powerful inducement to the Assembly to give full and proper regard to his views. Ultimately, however, the decision on the precise scope of the jurisdiction must be for the Assembly.
  Finally, I turn the attention of noble Lords to Amendment No. 27. The effect of this amendment would be to allow the ombudsman to investigate, but only in relation to those persons or bodies that are listed authorities, action relating to the giving of instruction by teachers in schools or other educational establishments that are maintained by local authorities in Wales.
  The intention of paragraph 6 of Schedule 2 is to replicate the effect of paragraph 5(2) of Schedule 5 to the Local Government Act 1974 as it currently applies in the context of the jurisdiction of the Local Government Ombudsman in Wales. If the intention of this amendment is to bring within the remit the giving of instruction in such schools and other educational establishments, that would be a very significant departure from the current position and one for which the Government are not aware of any appetite, including that of those in receipt of instruction or other stakeholders. There are already other mechanisms available to deal with such matters.
  Furthermore, the amendment would not have the effect that the noble Lord may have intended. The amendment would simply remove the exclusion in the context of the existing list of listed authorities in the Bill. Maintained schools and other educational establishments maintained by local authorities in Wales are not listed authorities and therefore the giving of instruction in those schools and establishments would not be directly within the remit of the ombudsman, even with this amendment.
  I invite the noble Lord to withdraw his amendment. However, his bringing it forward has caused us to look again at paragraph 6 of Schedule 2. As I said previously, the intention was to replicate the effect of the equivalent restriction in Schedule 5 to the Local Government Act 1974. However, we now think that paragraph 6 of Schedule 2 has some unintended
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  consequences. As currently drafted, it would apply across the board and have a limiting effect on the ombudsman's jurisdiction in the context of an investigation by the Office of Her Majesty's Chief Inspector of Education and Training in Wales. This is not something that we intended and we will consider the matter further before the Report stage.
  Before I sit down, I shall answer two questions asked by the noble Lord, Lord Roberts of Conwy. Would appointment of teachers be within the jurisdiction? The short answer is no. That is because individual schools are not bodies within the jurisdiction, although local education authorities are. It is individual school governing bodies that make such appointments. In what circumstances might the Assembly use the power in Clause 10(2)(c) to change an entry in Schedule 2? The noble Lord is interested in circumstances other than legislation and I have answered that point in my speech.
  Given that rather lengthy explanation—my last lengthy explanation—I hope that the noble Lord will withdraw his amendment.
  5.45 p.m.
  Lord Rowlands: I am grateful to my noble friend for his positive response to my amendment. I certainly do not want to push my luck further but I was anyway convinced by his case that there should be an obligation on the Assembly to get the agreement of the ombudsman. I am grateful to him for considering the idea that the formal consultation process will be recognised before the National Assembly exercises such power.
  It has been a marvellous afternoon: I think that that is the fourth amendment to which we have agreement in principle. As someone who comes from the other place and never saw Ministers give anything away, it is a pleasure to be here.
  Lord Roberts of Conwy: Perhaps I should begin by congratulating the noble Lord, Lord Rowlands, on his success in the Committee and his influence on the Government. Having said that, and although I am of course delighted with his success in gaining further government consideration of his amendment, I must point out that I began by saying that the amendments tabled in my name in this group are probing. I am grateful to the Minister for the enlightenment that he has given on several of them.
  However, I refer him again to the fact that it is often after appeals and inquiries that complaints arise. The recent experience of the Children's Commissioner for Wales is relevant. He has had to reopen certain cases that we all thought had been fully dealt with. Such matters may well be referred to the ombudsman. I note that the Minister said that the ombudsman is not a further appeal, as it were. Perhaps not, but he should surely have the power to take up a complaint, if he thinks it justified, that may arise subsequent to an appeal to the Minister or the Assembly. I hope that that matter will be further considered by the Government.

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  I am also grateful for the Minister's comments on education. The point of my Amendment No. 27 was, as I said, simply to discover what aspects of education are left for the ombudsman to investigate after all the considerable exclusions. In discussions on the Education Bill, we were told by the noble Lord, Lord Filkin, that there would be scope for the ombudsman to deal with educational matters. However, as I do not have the precise quotation from him to hand, I shall rest on his assurance and the assurance that we have received from the Minister today that he will further consider the whole area of education in relation to the ombudsman. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 agreed to.
  Clause 10 [Other excluded matters]:
  [Amendments Nos. 25 and 26 not moved.]
  Clause 10 agreed to.
  Schedule 2 [Excluded matters]:
  [Amendment No. 27 not moved.]
  Schedule 2 agreed to.
  Clause 11 [Decisions taken without maladministration]:
  Lord Evans ofTemple Guiting moved AmendmentNo. 28:
  Page 5, line 26, leave out "clinical judgement" and insert "professional judgement which appears to the Ombudsman to be exercisable in connection with the provision of health or social care"
  The noble Lord said: This is the first government amendment. There are one or two of them. The Committee may remember that I said previously that we would be tabling one or two.
  Clause 11 sets out the general principle that the ombudsman,
  "may not question the merits of a decision taken without maladministration by a listed authority in the exercise of a discretion".
  It also sets out an exception to that rule: namely, that the merits of a decision,
  "taken in consequence of the exercise of clinical judgement",
  may be questioned by the ombudsman. I gave notice at Second Reading that a government amendment on the clause might be tabled. I tabled it last week and wrote to the noble Lord, Lord Roberts of Conwy, explaining my reasons for doing so. I copied that letter to several noble Lords who took part in the debates and have a strong interest in the Bill. I also placed a copy of the letter in the Library. I should be happy to provide further copies of that letter on request to any noble Lord who may find it helpful.
  The ombudsman designate, Mr Adam Peat, has pressed for amendment to the clause. He is concerned to ensure that he will have adequate powers to consider the consequences for individuals of decisions made as a result of the exercise of professional judgment across
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  a wider arena than matters of clinical judgment, narrowly conceived. The Government believe that the amendment will give him those powers.
  As I explained in the letter, the amendment would extend the ombudsman's powers, enabling him to question the merits of a decision taken without maladministration in consequence of the exercise of professional judgment in connection with the provision of health or social care. Such professional judgment will of course include clinical judgment, but it will go wider.
  The provisions in Clause 11 as drafted reflect the position in the Health Service Commissioners Act 1993. That Act makes provision for the powers and jurisdiction of the Welsh and English Health Service Commissioners. The Health Service Commissioners are entitled to investigate complaints about service failure and failure to provide a service, as well as complaints of other maladministration against health bodies within their jurisdiction.
  The Bill entitles the ombudsman to investigate maladministration, failure to provide a service and failure in a service provided across the whole range of the ombudsman's jurisdiction. The specific provision in Clause 11 broadly reflects Section 3 of the Health Service Commissioners Act. Section 3 of that Act places a limit on the Health Service Commissioners by providing that a commissioner may not question the merits of a decision taken without maladministration in the exercise of discretion by a relevant body. However, that limitation does not apply to the merits of the decision to the extent that it was taken in consequence of the exercise of clinical judgment.
  As the Committee will be aware, the jurisdiction of the Public Services Ombudsman for Wales is much wider than that of the Health Service Commissioners, covering a wide range of authorities providing services in the public sector in Wales. In particular, local government falls within the ombudsman's remit and is responsible for the provision of most social care services in Wales. The fields of social and health care are becoming increasingly integrated and it is a reasonable precedent to consider whether other types of professional judgment in the health and social care arena should be treated in the same way as clinical judgment for these purposes.
  The Government have concluded that in this context there is no reason to differentiate between clinical judgment and other professional judgment exercised in connection with the provision of health or social care to individuals. Social care, like health, is an area where users of public services are likely to complain of service failure as well as, or in addition to, maladministration, and where decisions based on the judgment of professionals are likely to have a significant impact on the service provided to individuals. It seems inconsistent and illogical that the judgment of doctors can be called into question, even where there has been no maladministration, but that the judgment, for example, of social workers or occupational therapists working alongside clinicians in an individual's case cannot.

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  The government amendment, therefore, makes clear that decisions taken by a listed authority in consequence of professional judgments that appear to the ombudsman to be exercisable in connection with the provisions of health or social care would, for these purposes, all be treated in the same way. We think that that is a reasonable and fair approach. It would be very odd for clinicians and other professionals working together, for example, in relation to health and community care services, to be treated differently in the case of a complaint to the ombudsman about decisions made in relation to the care of the individual. I beg to move.
  Lord Livsey of Talgarth: I welcome the amendment. Social care is a very hot topic in Wales. Local authorities have had their policies—and, on some occasions, their lack of delivery—examined very carefully. This is a distinctly positive move forward, especially as it reflects maladministration, which is particularly relevant.
  Lord Roberts of Conwy: I, too, welcome this significant amendment. We are grateful to the Minister for explaining the reasons behind the change. It takes the remit of the Welsh ombudsman way beyond that of the Health Service Commissioner under the 1993 Act. We are also grateful to him for supplying a note on the change before Committee stage.
  I was particularly impressed with paragraph 7 of the note, which states:
  "as the new Ombudsman's jurisdiction is much wider than the Health Service Commissioner's, the question arises whether there are other types of professional judgement in the increasingly integrated field of health and social care which might form the basis of decisions that the Ombudsman should be able to question, just as he can question decisions taken in consequence of the exercise of clinical judgement".
  One can think of a variety of such judgments in the area of social care, as the noble Lord, Lord Livsey, said. They are usually taken by professionals at case conferences, are they not?
  I think that I am right in saying that the ombudsman is not empowered to question the judgment itself but he is entitled to investigate the subsequent decisions and actions taken or not taken. I would be glad if the noble Lord would confirm that. The professional judgment referred to includes clinical judgment. I cannot imagine that the ombudsman would try to second-guess a clinician's judgment in the health service, but I may be wrong.
  The immediate implication for listed bodies is that they must take a careful note for the record of any such judgments, and the decisions and action that flow from them, which may be subject to subsequent scrutiny; otherwise, they may find themselves at fault. I hope that they will be advised of that.
  Lord Prys-Davies: The noble Lord, Lord Roberts, has raised an important question arising from my noble friend's presentation of the amendment. Does it in fact mean that, henceforth, clinical judgments can be questioned by the ombudsman?
  6 p.m.
  Lord Evans of Temple Guiting: I gather that since 1993 matters relating to clinical judgments have been questioned by the ombudsman. The amendment simply takes that wider.
  Lord Prys-Davies: This is really a re-enactment of a particular clause.
  Lord Evans of Temple Guiting: Yes. The Bill as drafted is a re-enactment of existing legislation.
  On Question, amendment agreed to.
  Clause 11, as amended, agreed to.
  Clause 12 [Decisions not to investigate or to discontinue investigation]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 29:
  Page 6, line 21, leave out subsection (9).
  The noble Lord said: Clause 12 relates to decisions not to investigate or to discontinue an investigation and the ombudsman's duty to prepare a statement of his reasons and disseminate that statement to interested parties. The final subsection of the clause— subsection (9), which is the subject of this probing amendment—requires him to send a copy to the Assembly First Secretary. A similar requirement is imposed in Clause 16(9)—the clause that deals with reports of investigations—and in subsection (10) of Clause 20, which deals with the alternative procedure available to the ombudsman. My Amendment No. 39 deals with the last procedure, and I shall say a word about it in a moment.
  Is the submission of such statements and reports to the First Secretary instead of the Assembly per se simply a convenient means of ensuring delivery to a focal point in the Assembly set-up and ensuring that the First Minister at least knows what is happening? Any Assembly Member can request a copy of the ombudsman's statement or report under Clause 16, but it may well be that the matter dealt with will not be of sufficient interest for such a request to be made. Nevertheless, there is an obligation on the ombudsman to send a copy to the First Minister so that he can answer any question that may arise. Is that the thinking behind this subsection?
  I think that much the same relates to Amendment No. 39. As I said, Clause 20 deals with the alternative procedure available to the ombudsman, and subsection (10) deals with his report on it, which goes to the Assembly First Secretary rather than to the Assembly under subsections (4) or (6).
  It is not absolutely clear to me under what circumstances this subsection would apply. Under subsection (4), the ombudsman must send a copy of his report to the complainant and the listed authority but not necessarily to other persons—that is optional. Similarly, subsection (6) is optional. Therefore, subsection (10) implies that if the ombudsman does not consider that he should make a copy of his report generally available, he must nevertheless send a copy to the First Minister for information, I imagine, or in

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  the event of questions arising after a complaint. I should be grateful for the Minister's comments on these probing amendments. I beg to move.
  Lord Prys-Davies: I support subsection (9). I should have thought it was particularly important for the attention of the First Secretary to be drawn to the ombudsman's decision. We heard earlier at a meeting how the noble Lord, Lord Roberts of Conwy, and others had considered it essential to draw the attention of the First Secretary to the difficulties we were experiencing in obtaining documents from the Welsh Assembly. Therefore, I think that in this case it is important that at least one person at the Assembly receives notification of the ombudsman's decision.
  Lord Evans of Temple Guiting: The purpose of Clause 12 is to ensure that, where the ombudsman decides not to investigate a complaint or decides to discontinue an investigation, he sets out his reasons for doing so and makes any such decision and reasons known to the appropriate parties. In the case of the Assembly, Clause 12(9) makes it clear that such a statement that is to be sent to the Assembly—for example, because the Assembly is the listed authority concerned—must be sent to the Assembly's First Minister. The noble Lord's amendment would omit that subsection from Clause 12.
  Similarly, the purpose of Clause 20(10) is to ensure that, where the ombudsman prepares a report under that clause and intends to send it to the Assembly—for example, because it is the listed authority concerned— the report must be sent to the Assembly's First Minister. The noble Lord's amendment would omit that requirement from Clause 20.
  Members of the Committee may be wondering why the Government have considered it necessary to make such specific provision in the Bill. The reason is that, as currently constituted, the Assembly contains both legislative and executive components in a single corporate body. This subsection seeks to prevent any confusion arising from that dual nature.
  An ill-advised ombudsman might send the statement to the Assembly's presiding officer, representing the Assembly's legislative aspect, rather than to the First Minister, who is responsible for the discharge of executive functions and should properly receive it. That is consistent with provisions elsewhere in the Bill—for example, in Clause 16(9) —requiring reports of investigations of complaints against the Assembly to be sent to the First Minister. The Assembly's standing orders then make robust provision for considering ombudsman reports where an investigation upholds or criticises the Assembly government. The relevant Assembly Subject Committee considers the First Minister's proposed response to such reports and has an opportunity to comment on and inform that response.
  The effect of the amendments would, however, be to leave the Bill silent on to whom the ombudsman should send a statement setting out his reasons for deciding not to investigate a complaint or discontinue an investigation or a report under the alternative
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  reporting procedure. It would mean that the handling of such statements and reports would have to be left to administrative arrangements. In the Government's view, that would be an insecure foundation for the ombudsman's relationship with the Assembly. On the basis of that explanation, I invite the noble Lord to withdraw the amendment.
  Lord Roberts of Conwy: I am very grateful to the Minister for his elucidation and his answer to these probing amendments. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 12 agreed to.
  Clause 13 [Investigation procedure]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 30:
  Page 6, line 28, after "opportunity" insert "within a reasonable time"
  The noble Lord said: I should perhaps mention that there is an error in the amendment in that the words "within a reasonable time" would be better placed after the word "comment" rather than after "opportunity".
  Clause 13 deals with the ombudsman's investigation procedure, and the amendments proposed are designed to ensure that those who are given an opportunity to comment do so in reasonable time and that there is no unreasonable delay.
  Members of the Committee will be aware that aggrieved persons are particularly time-sensitive and wish their complaints to be dealt with as fast as possible. Any tendency for investigations to drag on interminably is anathema to them, and understandably so.
  At the same time, we must recognise that those complained against must, in all fairness, have sufficient opportunity to prepare their case fully and as best as they can. But there must be no intentional delays or postponement on their part. That would be an abuse of procedure and, alas, there have been instances of it in the past. The amendments would enable the ombudsman, in giving the opportunity to comment, to indicate when he expected to receive such comments. I beg to move.
  Lord Evans of Temple Guiting: I think that the intention behind the amendment is to require the ombudsman to give the listed authority a reasonable opportunity to comment on the allegations contained in the complaint. If that is the intention, with respect, I do not think that the amendment has that effect.
  The amendment would require the ombudsman to give the listed authority the opportunity to comment, within a reasonable time, on allegations contained in the complaint. An amendment having that effect is unnecessary because the ombudsman will always pursue a complaint as expeditiously as possible.
  As Clause 13 is currently drafted, there is no express reference to the time within which the listed authority, or any other person alleged in the complaint to have taken the action complained of, must respond to the

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  ombudsman and comment on the allegations made in the complaint. That is because the ombudsman is already required by the public law requirement of fairness to give the listed authority, and any person alleged to have taken that action, a reasonable opportunity to comment on the allegations. Therefore, it was not considered necessary to include in the Bill an express provision to that effect. I hope that the noble Lord finds my explanation persuasive and that he will withdraw his amendment.
  Lord Roberts of Conwy: As ever, I am grateful to the Minister for his comments. As I said at the outset, I think that my amendment has been badly drafted and perhaps the words "within a reasonable time" should have come after the word "comment". But, as I said, I am grateful and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 31 not moved.]
  Clause 13 agreed to.
  Clause 14 [Information, documents, evidence and facilities]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 32:
  Page 7, line 20, leave out "any person he thinks appropriate" and insert "a person he thinks is able to supply information or produce a document relevant to the investigation"
  The noble Lord said: Amendment No. 32 relates to Clause 14(3). The policy intention behind that subsection is to ensure that the ombudsman will not be hampered in understanding the content of information or documents that have been provided to him because he does not have the equipment or facilities that he needs to be able to access them.
  An example would be where certain information relevant to a complaint had been stored electronically, but the ombudsman did not have the appropriate computer hardware or software to be able to view or print that information. Clause 14(3) gives the ombudsman the power to obtain the relevant hardware or software, or other facilities, from an appropriate person.
  Under the current draft of the clause, it is arguable that the ombudsman might have the power to require any other person, even if they had no control over the relevant information, to provide the required software or hardware. So, for example, the ombudsman might seek to require an IT company that has no connection at all with the complaint to provide the software that he requires in order to view the information.
  Although the ombudsman might well be unlikely to go that far in practice, we consider that the power is too wide and that it goes beyond our policy intention. As a result, the Government are seeking to amend Clause 14(3) to restrict its application to persons from whom information or documents may be required under Clause 14(1). I beg to move.
  6.15 p.m.
  Lord Roberts of Conwy: I wholly endorse this amendment. I agree that the original wording was too
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  broad and that, indeed, it might have incorporated the wrong people. The new wording is infinitely better and more to the point.
  On Question, amendment agreed to.
  Clause 14, as amended, agreed to.
  Clauses 15 and 16 agreed to.
  Clause 17 [Publicising reports]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 33:
  Page 9, line 22, leave out "three" and insert "four"
  The noble Lord said: In moving Amendment No. 33, I shall speak also to Amendments Nos. 34 to 36. Amendment No. 33 refers to the period for which a listed authority which has been the subject of an investigation must make the report publicly available at its offices or on its website. Perhaps at this point I should add that this is not a probing amendment— unless the Government answer the points that I wish to make.
  The Bill as it stands specifies,
  "a period of at least three weeks".
  That suggests to me that those who composed the Bill thought that the period was on the short side. And indeed it is. The more I think about it, the more I believe that the period should refer to months rather than weeks.
  The report of an ombudsman's investigation is important. It will be featured in the local press under subsection (3), which requires a press notice to be issued within a fortnight of receipt of the report. That press report—if it appears—may give rise to local comment. If the report is critical of the listed body, that will certainly give rise to publicity and people will want to see the report for themselves rather than rely on second-hand accounts. The availability of the report locally is therefore of paramount importance.
  I suggest that the Government consider this aspect again. The timing of a notice in the press within two weeks, coupled with three weeks for the availability of the report publicly in the area of the listed authority, is not right. It might mean that a person who sees the press notice has only one week to see the report locally. In my view, an availability period of three months would not be excessive.
  What I have said about Clause 17 is broadly applicable to Clause 18, which deals specifically with healthcare providers. As I understand Clause 18(5), the previous clause applies with only the modifications stated. Therefore, the requirements regarding the publicising of reports by the ombudsman, including the press notice within two weeks of receiving the report, also apply.
  If that is so, my criticism of the inadequacy of the three-week period for the report to be available to the public is equally valid in the case of healthcare providers. Again, I ask the Government to think again. The period of four weeks that I have suggested is an improvement but, if I may be critical of myself, it also is too brief.

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  The intention behind Amendments Nos. 35 and 36, which are probing amendments, is clear. It is to elicit the Government's thinking and suggest an alternative approach. The Government want a rapid reaction to the ombudsman's report, including the action that the listed authority has taken or proposes to take and when it intends to do so. That must be done within a month, or longer if permitted by the ombudsman.
  My guess is that the pleas for extra time will be the rule rather than the exception. A month is not a long time for a local authority. Local authority officers, for example, will wish elected members to approve their response, but their meetings may not fall within the month specified. As a result of the brevity of the time allowed, the nature of the response may also be tentative, kicking the issue into touch.
  Therefore, to avoid an inadequately considered response and pleas for extra time, in the long run might it not be better to fix a period of two months with no exceptions or extensions permitted? If the remedial action proposed in the report is achievable in less time, such time could be specified in the report itself. I am sure that the Government have considered such an approach. I beg to move.
  Lord Evans of Temple Guiting: I shall deal, first, with Amendments Nos. 33 and 34, amending Clauses 17 and 18 respectively, before turning to Amendments Nos. 35 and 36, which amend Clause 19.
  The Government have given very careful consideration to the content of these clauses, which reflect the naming and shaming provisions that apply in respect of the existing Welsh ombudsman and, indeed, other British ombudsmen as well. There is a precedent for the three-week publicity period. For example, three weeks is the period specified in this respect in the Scottish Public Services Ombudsman Act 2002, which established the Scottish Public Services Ombudsman. It is also the period for which reports of the Commissioner for Local Administration in Wales must be publicised under the Local Government Act 1974.
  The length of the publicity period does not seem to have created any problems in terms of the effectiveness of the naming and shaming provisions. In Wales, all recommendations of the Welsh Administration Ombudsman and Health Service Commissioner have been complied with and, since 1991, there have been only two occasions when a recommendation of the Commissioner for Local Administration has not been complied with.
  The Government are satisfied that the three-week publicity period is appropriate and they are also content that the ombudsman should have some discretion to issue directions as to how authorities discharge their functions under this clause.
  I turn to Amendments Nos. 35 and 36. The first of the noble Lord's amendments—Amendment No. 35— would increase the period within which the authority must notify the ombudsman of its response from one month to two months. The effect of Amendment
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  No. 36 would be that the ombudsman would not have discretion to specify a longer period within which the authority would be required to notify the ombudsman of the action that it was taking in response to his report.
  The noble Lord's concern appears to be whether it would be simpler and clearer to specify in the Bill a longer period for the authority to notify its response and to do away with the ombudsman's discretion to extend the period. The Government have good reasons for specifying a one-month period within which the authority must notify the ombudsman of the action that it intends to take in response to a report. There appears to be no reason why in most cases an authority should not be able to set out within one month what its response to the report will be. The authority will have known for some time that the investigation was under way and will have a good grasp of the factual background and the actions that have been investigated. It seems reasonable, therefore, to set a one-month period as the norm.
  Some of the ombudsmen with whom the Public Services Ombudsman might work jointly—for example, the Parliamentary Commissioner for Administration—allow one month for authorities to notify them of their response to a report. In cases where there is a possibility of joint working and reporting, it makes sense for the Public Services Ombudsman for Wales to be able to work to the same timetable as the other ombudsmen involved. The Government also consider it reasonable to allow the ombudsman discretion to extend the period within which the listed authority must give notification of its response. In individual cases, there may be good reasons why the authority should be allowed longer to notify; for example, in the case of illness of key personnel in the authority.
  It is very unlikely that the ombudsman would exercise that discretion in anything but a reasonable manner. Any decision of the ombudsman to extend the period, like any other decisions he makes in the exercise of his powers, would be subject to judicial review if he exercised his discretion in an unreasonable way. Therefore, I do not consider that the power to extend the period would be used to the detriment of the person aggrieved; it would be used only where it was reasonable to do so.
  On Amendment No. 33, the noble Lord, Lord Roberts of Conwy, said that the authority has two weeks to ensure that the press publicises the report but the authority must make it available for three weeks— perhaps only one week after the press notice. The three- week period during which the listed authority must make the report publicly available begins only on the date specified in the advertisement placed in the newspaper. It would always be three weeks from notification.
  I hope that my explanation satisfies the noble Lord, Lord Roberts of Conwy, and that he will be able to withdraw his amendment.
  Lord Prys-Davies: I am very grateful that the noble Lord, Lord Roberts of Conwy, has scrutinised the three-week period in Clauses 17 and 18. I note the

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  Minister's point that there is good precedent for it. What would be the position if a bank holiday fell within the prescribed period—for example, Christmas and the New Year, or Good Friday and Easter Monday? Is the three-week period adjusted to take account of bank holidays?
  Lord Evans of Temple Guiting: I am advised that bank holidays do not count but, as there seems to be slight uncertainty, I shall check the matter and write to my noble friend. I am sure that public holidays are excluded.
  6.30 p.m.
  Lord Roberts of Conwy: I am grateful to the Minister for his comments. But, in reply to what I said about my first two amendments, he said that, of course, the three-week period in which the report has to be publicly available at the listed authority's office will not begin until the date specified in the press advertisement. Where is that stated in the Bill? I have seen nothing by way of specific reference to that description of the time.
  Lord Evans of Temple Guiting: I am advised that Clause 17(4)(a) will give the noble Lord the answer.
  Lord Roberts of Conwy: I am grateful to the Minister for drawing my attention to that subsection. That is extremely helpful. I still feel that a three-week period for the report to be available locally is very short. I know that there is a Scottish precedent but there is no reason why the period should not be longer. As I have said, if the report is controversial and critical of the listed authority, the public will want time to study the press reports and the documents and to voice their views accordingly. I still think that three weeks is too short a period, but I am grateful for the assurance given.
  Lord Evans of Temple Guiting: It might be helpful to the noble Lord, Lord Roberts, if I remind him that I believe I mentioned that, although a three-week period is referred to, the ombudsman could issue directions to make it a longer period if he or she so wished. There is flexibility in the Bill.
  Lord Roberts of Conwy: I am grateful to the Minister. I turn to the final two amendments in the group and the period of one month given by the ombudsman to the listed authority to respond. I found that certain Members of the Committee were nodding approval when I said that a month was a short time to a local authority. My guess is that the pleas for an extension of time will be unending. Perhaps the noble Lord, in his informative way, can tell the Committee whether there have been complaints in the past about any brevity of time in which to respond.
  Lord Evans of Temple Guiting: There have been no complaints.
  Lord Roberts of Conwy: I am surprised to hear that. On the assumption that things are better than I anticipated, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 17 agreed to.
  Clause 18 [Publicising reports: health care providers]:
  [Amendment No. 34 not moved.]
  Clause 18 agreed to.
  Clause 19 [Action following receipt of a report]:
  [Amendments Nos. 35 and36 not moved.]
  Clause 19 agreed to.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 37:
  After Clause 19, insert the following new clause—
  "NON-ACTION FOLLOWING RECEIPT OF A REPORT
  1 If the Ombudsman is satisfied that the condition in subsection (2) is met in relation to a listed authority, he may issue a certificate to that effect to the High Court.
  (2) The condition is that the listed authority has wilfully disregarded his report without lawful excuse.
  The noble Lord said: In moving Amendment No. 37, I shall speak also to Amendments Nos. 40 and 48. It is fair to say that we have all been concerned about the possibility that a listed authority might choose to defy the ombudsman and wilfully disregard his report without lawful excuse. This new clause provides that, in that event, the ombudsman may have recourse to the High Court.
  We have been assured that there has been no such case of defiance over the past five years and that it is now the practice for authorities to accept the ombudsman's recommendations and act accordingly. There have been cases in the distant past when authorities have not been so accommodating and it is conceivable that such cases might arise in future. As the Bill stands, the ombudsman has no sanction against a totally recalcitrant listed authority.
  The amendment provides that if the Assembly is unhappy with the ombudsman's recommendations in a special report in respect of itself, the matter can be resolved by a resolution laid before the Assembly. Such a resolution, if affirmed, would oblige the Assembly to act. But Clause 23, which spells out the procedure, is limited to special reports relating to the Assembly. It does not cover all listed authorities, some of which may be tempted to take a firmly independent line. That is why I believe that the ombudsman should, as a last resort, be able to seek the view of the High Court and the sanctions available to it.
  I stress that that would be a last resort, but nevertheless, it should be available in case the need arises. Without it, the ombudsman is left powerless in an extreme case where his recommendations are rejected and an authority goes to extreme lengths to avoid implementing them.
  Amendment No. 40 refers to Clause 23, which in turn refers to the special reports that relate to the Assembly and the steps to ensure that the Assembly respects the recommendations contained in them. It is, of course, very important that the Assembly does so; if the Assembly does not respect the ombudsman's recommendations, it is unlikely that other listed bodies will respect them.

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  Unless the Assembly takes action or proposes to take action that is satisfactory to the ombudsman, the First Minister has to give the Assembly notice of his intention to move that the Assembly resolve to approve the recommendations in the report. Subsection (3) seeks to ensure that there can be no undue delay in moving such a Motion.
  My amendment seeks to buttress the procedure further by ensuring that the recommendations are not amended in the Motion itself. They are thus guaranteed the Assembly Government's support. I would not presume to seek to prevent the Assembly itself amending the Motion; it may have a valid reason or cause to do so. But the initial thrust of all this must be to support the ombudsman's recommendations. I am anxious that integrity should be preserved as regards the Motion laid before the Assembly.
  Amendment No. 48 refers to the compensation clause. I believe we are all agreed that that is very important, especially from the standpoint of the aggrieved person. As drafted, Clause 33 is curious in that the power of a listed body to make payment is optional and almost ex gratia. It appears to be dissociated from the ombudsman's investigation as far as possible and independent of him. As described, the power has the disadvantage of appearing as an attempt to buy off the complainant and, incidentally, a possible investigation.
  I can well understand the thinking behind it and the anxiety to make the listed body entirely responsible for its own actions, especially in the financial area. But, as my amendment suggests, the ombudsman has the power to make a recommendation of a compensatory nature, so surely, in that event, there must be an obligation on the listed body to carry it out. Its decision to do so would still be its own responsibility. It can refuse, in which case the aggrieved person can, and probably will, resort to legal proceedings with the knowledge that he has the ombudsman's recommendation behind him. I beg to move.
  Lord Prys-Davies: I support the thrust of Amendments Nos. 37 and 48. The Bill does not contain an enforcement procedure if the listed body fails to implement the ombudsman's recommendations. It seems to me that a clause giving the ombudsman the right, ultimately, to trigger court proceedings for non- compliance could clearly play a useful role in bringing about the necessary improvements. That could have a salutary effect. So the amendment is valuable for that element alone, but the strongest argument for the amendment—of course, they are not in competition—is that it would improve accessibility to justice for the aggrieved party. It would give access to relief without having to commence litigation, which can be costly, and without facing the delay that inevitably attends such proceedings. Delay itself can be the cause of a just complaint.
  I recall that when the Assembly Minister was asked, in the Gladstone Room, why these powers were not incorporated in the Bill, the answer appeared to be because the listed bodies did not want them in the Bill.
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  They were opposed to the change. That is not surprising. That is often the case when such an approach is introduced but, as in the past, they would come to terms with the new provision. It seems to me that, if that is the principal argument against the amendment, that should not be allowed to prevent the powers from being incorporated in the Bill.
  I have listened carefully to what my noble friend the Minister has said in response to the amendment, but I very much hope that the Government will give further consideration to the merits that have been pointed out by the noble Lord, Lord Roberts of Conwy.
  Lord Livsey of Talgarth: I strongly support the new clause brought forward by the noble Lord, Lord Roberts of Conwy. My experience as a constituency Member in the other place of the expeditiousness, or lack of it, of listed authorities, which I know are listed here, has not been at all satisfactory in my view. If the ombudsman is to have real power and if he is to bring in rogue elements in a few listed authorities, this will give the ombudsman the greater power which is required in this area.
  If these powers had been available previously, and if we had had an ombudsman, I can think of at least a dozen cases in which I was involved where I was most frustrated by their progress. Under this provision they would have had to be expedited. The people concerned very often come from poorer communities and do not have the power to achieve redress. However, under the powers in this suggested new clause, they would be able to do so. Further, the ombudsman would be given more teeth. As an independent ombudsman, surely that is what is required in these circumstances.
  The citizen must be able to get redress. This clause would strengthen the powers of the ombudsman, which for me would be a very good thing.
  6.45 p.m.
  Lord Evans of Temple Guiting: The common thread running through this group of amendments is that they appear to be aimed at the issue of enforceability of the ombudsman's recommendations. It may assist noble Lords if I first set out the Government's general views on the issue of enforceability.
  The Government do not believe that it is either necessary or desirable to give powers to the ombudsman to enforce his recommendations through any of the methods envisaged in these amendments. The Government are satisfied that the naming and shaming of listed authorities, including the Assembly, is effective in ensuring that the ombudsman's recommendations are acted upon. This is reinforced by the excellent record of authorities in Wales when it comes to complying with the existing Welsh ombudsman's recommendations. However, I see that the noble Lord, Lord Livsey, is shaking his head.
  I turn first to Amendment No. 37, which seeks to insert a new clause after Clause 19. The effect of the proposed clause would be to enable the ombudsman to certify to the High Court that a listed authority has

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  wilfully disregarded the ombudsman's report— presumably a report made under Clause 16—without lawful excuse.
  Amendment No. 40 would amend Clause 23 which makes provision in the case of a special report issued by the ombudsman in relation to a complaint against the Assembly. In such a case the First Minister must lay the report before the Assembly. Further, unless action is taken to the satisfaction of the ombudsman, or has been taken or proposed, the First Minister must give the Assembly notice of his intention to table a Motion asking the Assembly to approve the ombudsman's recommendations as contained in the special report.
  The policy intent of Clause 23 is absolutely clear. It is that where the Assembly has failed to respond satisfactorily to the ombudsman's report, the ombudsman's special report is required to be brought to the attention of the whole Assembly in plenary session. This would bring extra pressure to bear on the Assembly to comply with the ombudsman's recommendations by ensuring that all Assembly Members are aware of the actions complained of, and further publicising the Assembly's failure to respond adequately.
  It appears that the intended effect of the noble Lord's amendment was to ensure that the First Minister's Motion must ask the Assembly to approve the ombudsman's recommendations as set out in the special report; in other words, the Motion itself could not ask the Assembly to approve anything other than the full set of recommendations made by the ombudsman without any amendments to them. However, the Government are confident that the clause as drafted achieves this. Clause 23(2)(b) already requires the First Minister to give notice of his intention to move that the Assembly resolves to,
  "approve the recommendations contained in it";
  that is, in the copy of the report laid before the Assembly. If the Motion sought the Assembly's agreement to anything other than the recommendations as they appear in that copy of the report, the Motion would not comply with the duty set out in Clause 23(2)(b).
  When speaking to Amendment No. 48, the noble Lord, Lord Roberts of Conwy, stated that the power in Clause 33(2) is a curious one. Perhaps it would help if I explained the intention behind the provision. This subsection would ensure that all listed authorities have the power to make compensation payments. Some may not have such a power in the case of an ombudsman's report. The noble Lord regards this as a power to buy off the complainant, but under Clause 2(5) the ombudsman has complete discretion to continue the investigation if he so chooses.
  I hope that noble Lords will find my explanations convincing, and I ask the noble Lord to withdraw his amendment.
  Lord Roberts of Conwy: I am grateful to the noble Lords, Lord Prys-Davies and Lord Livsey of Talgarth, for their words in support of my proposed new clause. I certainly appreciate the argument against it in that, according to the Government, over the past five years the record of the listed authorities has been extremely
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  good so far as ombudsmen's recommendations have been concerned. However, in my view there is always the possibility of a recalcitrant listed body which refuses to observe the ombudsman's recommendations. While for the time being I am prepared to withdraw the new clause, I may return to it at a later stage.
  I am glad of the noble Lord's assurance with regard to the Assembly. His clear implication was that the First Minister would not change in any way the recommendations of the ombudsman when the Motion is brought before the Assembly for its approval. I am content with that assurance.
  However, I am not so happy with the situation regarding Amendment No. 48, covering the payment of compensation as a result of the ombudsman's recommendation. As things are, and if my understanding is correct, it is for the listed body to make any compensatory payment irrespective of the power or influence of the ombudsman. Therefore, while I am again prepared to withdraw the amendment, once we have had an opportunity to consider in rather more detail what the Minister has so helpfully set out, we may come back to it at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 20 [Reports: alternative procedure]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 38:
  Page 11, line 28, leave out "an agreed period" and insert "a period agreed with the person aggrieved"
  The noble Lord said: The intention behind this amendment is to bring the consent of the person aggrieved into any agreement between the listed body and the ombudsman, and into decision-making by the ombudsman himself. At present the aggrieved person is noticeably absent, not only from this clause but also generally throughout the Bill. Everything seems to be decided for him or her between the ombudsman and the listed body or by the ombudsman alone.
  Clause 20 refers to the alternative, abbreviated procedure available to the ombudsman, and subsection (2) refers to its use in the specific circumstances of where the person aggrieved has sustained an injustice or hardship and the listed body has agreed to implement the ombudsman's recommendations,
  "before the end of an agreed period".
  I take that phrase to mean a period agreed between the ombudsman and the listed body; then the alternative procedure may be used.
  The aggrieved person does not feature at all. It may be argued that it does not matter to him whether the full procedure or the alternative procedure applies, so long as his injustice or hardship is acknowledged and such remedies as are available are agreed. On the other hand, the aggrieved person may take a very public- spirited view and wish to ensure that what happened to him should not happen to others. He may therefore wish to see the body that has wronged him subjected to the rigours of the full procedure and the ensuing publicity. As the Bill stands, the aggrieved person has

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  no say in the matter. He might make representations to the ombudsman when he receives the report, but by that time it will be too late. I beg to move.
  Lord Evans of Temple Guiting: The effect of the amendment tabled by the noble Lord, Lord Roberts of Conwy, would be to expressly state in the Bill that, where the ombudsman has concluded that the person aggrieved has suffered injustice or hardship in consequence of maladministration or service failure, and the ombudsman has agreed with the listed authority the period within which the authority must implement any recommendations that he has made, the aggrieved person must be a party to that agreement.
  The Government's view is that it is implicit in the clause as currently drafted that the period is agreed between the ombudsman, the person aggrieved and the listed authority. However, we accept that it may be helpful to state clearly in the Bill the parties to the agreement. We will consider that point with a view to tabling an amendment on Report. With that undertaking, I invite the noble Lord to withdraw the amendment.
  Lord Roberts of Conwy: I am grateful to the Minister for his very helpful reply. With the assurance that he has given us, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 39 not moved]
  Clause 20 agreed to.
  Clauses 21 and 22 agreed to.
  Clause 23 [Special reports relating to the Assembly]:
  [Amendment No. 40 not moved.]
  Clause 23 agreed to.
  Clause 24 [Consultation and co-operation with other ombudsmen]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 41:
  Page 15, line 6, leave out subsection (6).
  The noble Lord said: Subsection (6) prohibits joint investigation, joint reporting and publishing with the Scottish Public Service Ombudsman. The simple question is: why, when such joint activity is possible with all the other ombudsmen listed in subsection (7)? I beg to move
  Lord Prys-Davies: It is a very fair question, because the Wales Office's memorandum to the Select Committee on Delegated Powers and Regulatory Reform explains all the provisions of Clause 24 apart from subsection (6).
  Lord Evans of Temple Guiting:: Officials of the Wales Office have had detailed discussions with their counterparts at the Scottish Executive on the application of the provisions of this clause to the Scottish Public Services Ombudsman. The arrangement already in place between the Scottish Public Services Ombudsman and other ombudsmen relies on consultation and co- operation rather than joint working.
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  In practice, we agree, it is highly unlikely that circumstances will arise necessitating joint working between the Welsh and Scottish Public Services Ombudsmen, whereas joint working between the Welsh and English ombudsmen could be quite easily envisaged, for example, on a health services matter.
  It is consistent with this approach for the arrangement between the Public Services Ombudsman for Wales and the Scottish Public Services Ombudsman to rely on consultation and co-operation. As such, we have agreed with the Scottish Executive to disapply subsection (5) in respect of the Scottish Public Services Ombudsman. So there is no specific power to work or to report jointly with the Scottish ombudsman. Conversely, such provision is made in respect of the English ombudsmen.
  In the light of that explanation which, I put to the Committee, reflects the reality of the situation, I invite the noble Lord, Lord Roberts of Conwy, to withdraw his amendment.
  Lord Roberts of Conwy: At least we have had an explanation of this somewhat mystifying subsection. For the time being we shall certainly rest with it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 24 agreed to.
  Clause 25 agreed to.
  Clause 26 [Disclosure prejudicial to safety of State or contrary to public interest]:
  7 p.m.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 42:
  Page 16, line 43, leave out "or otherwise contrary to the public interest"
  The noble Lord said: In most of the Bill the decision as to what is or is not in the public interest is for the ombudsman. For the first time we have a reference to a Minister of the Crown and his ability to give notice to the ombudsman that the disclosure of a document or information may be contrary to the public interest.
  I have no objection to a Minister giving notice that disclosure of certain information may be prejudicial to the safety of the state, which is also mentioned. That is entirely and quite properly a matter for Ministers. Further, the occasions when the ombudsman will have information which may affect the safety of the state will be minimal.
  However, information of public interest is a broader and more extensive sphere altogether. The question of whether to disclose arises on more than one occasion in the Bill. It is a matter for the ombudsman to decide every time, except here. Under this clause a Minister may step in and give notice that disclosure of certain information is against the public interest. The ombudsman is immediately relieved of his responsibility for deciding the issue.
  It is not unknown to Members of the Committee for such power to issue notices to be abused by Ministers from time to time, and it may be particularly tempting to do so in matters where the Government and the

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  ombudsman are involved and Ministers wish to avoid public criticism. Slapping on a notice may seem to be the easy answer. It seldom is because eventually the truth will out.
  I think that the Bill would be much improved by the acceptance of my amendment and the omission of this potentially corruptive power. I beg to move.
  Lord Rowlands: I rise briefly to ask the Minister how this fits with the Freedom of Information Act. Presumably, a person could seek to obtain any of these documents under that Act. Would the procedure then follow?
  Lord Evans of Temple Guiting: Clause 26 makes provision for those cases where the ombudsman, in the course of carrying out an investigation, becomes aware of information or documents that would be prejudicial to the safety of the state or contrary to the public interest if it were disclosed to other persons or for any other purpose. In such cases, a Minister of the Crown can specify that information or those documents in a notice to the ombudsman under this clause.
  The ombudsman and those working for or assisting him will then not be authorised or required under the Bill to disclose the specified information or documents even if, otherwise, the ombudsman would have had the power to do so.
  The effect of the noble Lord's amendment would be to take away the option for a Minister of the Crown to specify in a notice under this clause that the disclosure of a document or information for the purposes of the ombudsman's functions would be contrary to the public interest. The Minister would only rarely feel it necessary to issue a notice stating that the disclosure of a document or information would be contrary to the public interest.
  However, the Bill confers wide powers on the ombudsman to obtain relevant information, documents and evidence for the purposes of an investigation. In the Government's view, it is right that the ombudsman should have those wide powers so that he can satisfy himself whether the complaint is justified.
  Also in the Government's view, it is right that this Bill should contain the power set out in this clause which replicates provisions in existing ombudsmen legislation. It is right because the ombudsman and his staff should not be entitled to disclose information or documents under the Bill where to do so would prejudice the safety of the state or would otherwise be contrary to the public interest. I stress the word "would" because that makes it clear that the intention is that the test is not whether disclosure "may" or "could" have that effect, or even that it "would be likely" to have that effect; the test is intended to be whether disclosure "would" have that effect.
  I take, for example, a situation which involves the Assembly's functions, discharged through the Care Standards Inspectorate for Wales, of inspecting and regulating registered care settings in Wales, such as nursery care. A complaint may be made to the ombudsman about the manner in which the inspectorate has conducted an inspection. The ombudsman might, in
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  the course of his investigation and in the exercise of his powers to obtain information and documents, gain access to sensitive information. It might be that the inspection had been initiated as a result of a confidential tip-off that young children in the nursery were at serious risk of physical or sexual abuse by a particular person employed in the nursery.
  That matter could still be under active police investigation at the same time as the ombudsman is investigating the allegation of maladministration or service failure. The disclosure by the ombudsman or by his staff of such information, either directly or indirectly, to the person under police investigation would be contrary to the public interest. A certificate could be issued in such circumstances to prevent the disclosure of such information.
  We are aware that very few such notices have been issued, for example, in relation to the Parliamentary Commissioner for Administration and the Health Service Commissioners, under equivalent powers in existing legislation. However, as I have said, we can envisage that there might exceptionally be a need for such notices even in the context of the Public Services Ombudsman for Wales. Any unreasonable use of the power to issue such notices could be challenged by judicial review.
  Before I sit down, perhaps I may answer the question of my noble friend Lord Rowlands about the Freedom of Information Act in relation to Clause 22. The clause would not prevent the ombudsman disclosing information requested under the Freedom of Information Act 2000, if the ombudsman is required to disclose it under the Act. I invite the noble Lord, Lord Roberts of Conwy, to withdraw his amendment.
  Lord Roberts of Conwy: I am grateful to the noble Lord for his explanation and for the example he gave in which this particular requirement by a Minister would be necessary, knowing, as he said, that judicial review is always available in the event of abuse of the power. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 26 agreed to.
  Clause 27 [Listed authorities]:
  Lord Rowlands Lord Rowlands moved Amendment No. 43:
  Page 17, line 12, at end insert—
  "( ) Before making an order under subsection (2) the Assembly must consult and obtain the agreement of the Ombudsman."
  The noble Lord said: It is with some trepidation that I rise to move the amendment; I fear that my good run may come to an end. On the other hand, it replicates an amendment to Clause 10.I said on Clause 10 that I was convinced by my noble friend's argument that the Assembly should not have to obtain the agreement of the ombudsman, but that he might concede that the Assembly should consult the ombudsman before

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  exercising powers under Section 2. He agreed in principle on Clause 10, so I tempt him to do so for Clause 27 as well. I beg to move.
  Lord Roberts of Conwy: I rise to speak to Amendments Nos. 45 and 46, but, in passing, let me say that the amendment moved by the noble Lord, Lord Rowlands, is eminently sensible.
  Clause 28 deals with restrictions on the power to add to the category of listed bodies that may be subject to the ombudsman and exemptions from such a restriction in subsection (3)(c). In effect, that means that a person or body at least half of whose expenditure in Wales is met by the Assembly or other listed authorities could be added to the schedule. Amendment No. 45 would substitute, "a substantial part" for the words "at least half to avoid the need for precise calculation and consequential argument.
  We know that many private sector bodies in Wales are contracted to provide public services and thus are in receipt of substantial funds from public sources. We touched on that in our discussion on the Public Audit (Wales) Bill. As a matter of principle, private sector bodies that accept public funds must also accept the public responsibilities which accompany them and, if there are complaints of injustice or hardship from the recipients of such funds, the ombudsman should be able to investigate them. The same applies to voluntary bodies in receipt of substantial public funds. Where the Auditor General for Wales can step in, the ombudsman should also be able to investigate.
  On Amendment No. 46, subsection (4) deals with those who may be added to the list of authorities to fall within the ombudsman's scope for investigation. I wonder whether the Bill has got it absolutely right. Many authorities established by or under an enactment now impose charges for their services, as well as precepts or levies. There is no danger of the private sector generally being caught by the inclusion of charges, because the subsection refers specifically to bodies established by enactment. The final amendment is probing.
  Lord Livsey of Talgarth: I shall be as brief as I can, but, speaking to the lead amendment, I strongly support what the noble Lord, Lord Rowlands, has said. Clause 27(2) states:
  "The Assembly may by order amend Schedule 3 by—

  (a)adding a person;

  (b)omitting a person;

  (c)changing the description of a person".

  The amendment moved by the noble Lord, Lord Rowlands, affects subsection (3). Reasonably, it asks only that the Assembly must consult and obtain the agreement of the ombudsman. That is essential in this situation and I am glad to see that that has been highlighted.
  7.15 p.m.
  Lord Evans of Temple Guiting: The Assembly has a power by order to add, omit or change the description of a listed authority in Schedule 3. The amendment relates
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  to that order-making power. The clause already provides that the Assembly must consult such persons as it thinks appropriate before making an order. The Government consider that the requirement in Clause 27(4) for the Assembly to consult such persons as it thinks appropriate will ensure that the ombudsman is consulted, as there can be no doubt that the ombudsman is an appropriate person for these purposes.
  I cannot accept that the Assembly must obtain the ombudsman's agreement before making an order under the clause. It would not be acceptable for the ombudsman to have a power of veto on which bodies should be subject to his jurisdiction, nor on those that should be taken out of his jurisdiction. The decision about which bodies should be within his jurisdiction is probably one for the authority that has overall responsibility for the efficient operation of public services in Wales; namely, the Assembly.
  Amendments Nos. 45 and 46 affect Clause 28, which places restrictions on the Assembly's power to make orders amending the list of authorities in Schedule 3. The amendments make changes to the descriptions of categories of authorities that can be added to the list in Schedule 3. Amendment No. 45 affects the first category, which is a body established by enactment or by the Crown, the UK government, the Assembly or other listed authority, some or all of whose members are appointed by the Crown, the UK government, the Assembly or another listed authority that is at least 50 per cent funded in respect of its functions in Wales directly by the Assembly or other listed authority.
  The amendment would change that description, so that only "a substantial part" of its funding would have to come from the Assembly or another listed body. That contrasts with the present drafting, which requires "at least half of its funding to come from one of those sources. The reference to at least half of an authority's funding being met by certain bodies is in fact a familiar formulation.
  Although we have not slavishly followed precedent for the purpose of the Bill, there is merit in sticking with the formulation that states that at least half of the body's expenditure must be met by the Assembly or other listed authorities. That has the advantage of clarity. Half of the body's expenditure is an amount that is easily discerned. The interpretation of "a substantial part" of the expenditure, on the other hand, is not clear. If a dispute ever arose about the Assembly's power to add a body to the remit of the ombudsman, public money could be wasted in argument about the meaning of the words in that context.
  Amendment No. 46 amends the second category of body; namely, a body established by enactment that can also issue a precept or levy. That is the type of body currently subject to the jurisdiction of the Commissioner for Local Administration in Wales. The commissioner's jurisdiction is governed by the Local Government Act 1974. Section 25(2) of that Act provides that an authority established under Act of Parliament that has power to levy a rate or issue a precept can be added to the commissioner's jurisdiction by Order in Council. The Government

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  consider that it is appropriate for there to be a similar power for the Public Services Ombudsman for Wales to add bodies that can add a precept or levy.
  We do not think that there is a need to give the Assembly the power to add to the ombudsman's jurisdiction bodies that can charge. A huge range of public bodies have the power to charge for certain services, if only for photocopying and information, for example. Therefore, such an amendment would give the Assembly far too wide a power to add public bodies to the ombudsman's remit. For instance, the power would be wider than the power to make an Order in Council adding authorities to the local commissioner's jurisdiction. We see no need to extend the power in that way.
  I therefore cannot accept any of the amendments and I invite noble Lords not to press them.
  Lord Rowlands: I knew that the run would come to an end. On the other hand, I have been convinced by my noble friend's argument that it is not right for the ombudsman to exercise a veto over the Assembly's powers to alter the listed authorities. However, I still doubt the phrase on which he rests his case, that the Assembly must "consult suitable persons". I think that the ombudsman is in a different position from any other person. The ombudsman will have to operate the proposal and therefore there is a case for identifying in the Bill the very specific obligation to consult the ombudsman rather than treat him as just another person. Perhaps my noble friend will keep an open mind about that point. It would be consistent with what he is proposing to do in Clause 10, and I hope that in that way we shall be able to keep our winning run going.
  Lord Roberts of Conwy: I rise to say a few words in response to the Minister's comments on Amendments Nos. 45 and 46, which 1 shall not press. However, I am bound to say that I thought the phrase "at least half" would be subject to more dispute and argument than that of "a substantial proportion". I accept what he has said that the phrase "at least half is the familiar formulation. However, if it results in less potential for dispute than my proposal, so be it.
  Again, I accept that my inclusion of the word "charge" in Amendment No. 46 is not helpful in that it would extend quite considerably the range of bodies which might be listed authorities.
  Lord Rowlands: In the light of our discussion, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 27 agreed to.
  Schedule 3 [Listed authorities]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 44:
  Page 35, line 40, leave out "mainly" and insert "partly"
  The noble Lord said: In moving Amendment No. 44 I shall speak also to Amendment No. 49. These are essentially technical amendments to the descriptions of regional flood defence committees both in this Bill
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  and in the Local Government Act 1974. However, while they are technical, they are necessary to remove the risk of a gap in ombudsman jurisdiction relating to these committees, between the Public Services Ombudsman for Wales and the Commission for Local Administration in England.
  The intention of these amendments is to ensure that residents living on either side of the England/Wales border have access to an ombudsman if they have a complaint relating to the regional flood defence committee in whose area they happen to live.
  I wrote in detail on this point in my letter last week to noble Lords. In view of that, I do not propose to speak at length about the amendments. I beg to move.
  Lord Roberts of Conwy: This is an important brace of amendments which, as the Minister has made clear, will ensure that there is no gap in ombudsman jurisdictional coverage of regional flood defence committees along the borders of England and Wales. Rivers are no respecters of national boundaries. Successive governments have recognised that in the cross-border scope they have given to the Wales regional and Severn-Trent regional flood defence committees. These government amendments will make the Bill consistent with the definitions applicable to internal drainage boards, which is highly desirable.
  Cross-border issues can be controversial in areas where they arise. The fact that, under Clause 24, the Welsh ombudsman can consult and co-operate with the relevant English ombudsman should be helpful in this context because while each may investigate matters only in relation to his respective country, it is conceivable that the matter being investigated may have wider implications requiring joint action on their part.
  It is worth saying a little about these important amendments because I know that they address matters which arouse considerable interest in cross-border areas.
  On Question, amendment agreed to.
  Schedule 3, as amended, agreed to.
  Clause 28 [Restrictions on power to amend Schedule 3]:
  [Amendments Nos. 45 and 46 not moved.]
  Clause 28 agreed to.
  Clauses 29 to 31 agreed to.
  Clause 32 [Publicity for complaints procedures]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 47:
  Page 19, line 43, leave out "take reasonable steps to"
  The noble Lord said: Clause 32 deals with publicity by listed authorities for complaints procedures and the amendment would strengthen the requirement by removing the qualifying phrase "take reasonable steps to", because that can be variously interpreted by different bodies. Some will use small print, some large and so on. It seems to me that this is an area where the ombudsman might issue guidance about how the

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  public is to be adequately informed. That the public should be so informed when dealing with a listed authority is beyond question. I beg to move.
  Lord Evans of Temple Guiting: Clause 32 makes it a requirement that a listed authority must include information about the ombudsman in any literature that it provides on its provision of services, in its procedures for dealing with complaints and in its response to a complaint. But it further provides that a listed authority must take reasonable steps to draw a person's attention to his or her right to complain to the ombudsman.
  The Government's view is that the amendment, which will remove the qualification that a listed authority must take reasonable steps to provide information to the public on the role of the ombudsman, has the potential to narrow the requirement. I am sure that the Committee will agree that there are many ways in which information can be provided. A public information leaflet that is one of many different such leaflets available from a listed authority's reception area, if one happens to be passing through, is different from using another media if it is available to the authority. For example, if a listed authority has a website and publishes information on it, it would be reasonable to expect it to publish information on the ombudsman and not just put a leaflet in reception. The ombudsman has power to issue guidance on that and that is demonstrated by Clause 32(3). I hope that the noble Lord will feel able to withdraw the amendment.
  Lord Roberts of Conwy: I accept the Minister's explanation and comment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 32 agreed to.
  Clause 33 [Compensation for the person aggrieved]:
  [Amendment No. 48 not moved.]
  Clause 33 agreed to.
  Clause 34 agreed to.
  Schedule 4 agreed to.
  Clauses 35 and 36 agreed to.
  Schedule 5 agreed to.
  Clauses 37 and 38 agreed to.
  Schedule 6 [Consequential amendments]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 49:
  Page 43, line 39, leave out "mainly" and insert "partly"
  On Question, amendment agreed to.
  Schedule 6, as amended, agreed to.
  Schedule 7 agreed to.
  Clauses 39 to 41 agreed to.
  7.30 p.m.
  Clause 42 [Consequential, transitional provisions etc]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 50:
  Page 25, line 35, leave out subsections (2) and (3).
  The noble Lord said: This amendment deals with an almighty provision that gives power to the Assembly to "amend, repeal or revoke" any previous enactment or any future enactment passed in this Session. I am right in thinking that the power is limited to giving effect to the provisions of this Act. I am sure that I am right on that. The futuristic element is interesting. I wonder whether the Minister can tell us which Bills outlined in the Queen's Speech at the opening of this Session should be amended to take account of this Bill, but I shall not press him for an answer this evening.
  Amendment No. 51 refers to Clause 43(2)(a). I do not recollect ever having seen such a provision as this one before, enabling an Assembly order to,
  "make different provision for different purposes".
  What on earth does that mean? Is its scope as broad as it appears within the ambit of the Bill? I can understand the need for the rest of the clause, but that is a catch-all subsection. Perhaps the Minister can give us an idea of what might be done under this provision. I am bound to say that the more I see of this kind of provision, the more distrustful and suspicious of unforeseen consequences 1 become. Either the subsection has a definite purpose in view or it does not, in which case it is unnecessary and should be removed. I beg to move.
  Lord Prys-Davies: Again I found the memorandum from the Wales Office to the Select Committee on Delegated Powers and Regulatory Reform to be helpful. It is my understanding—I think that it is fairly clear from the memorandumthat—that the operation of subsection (1) is not confined purely to this Act but to all primary legislation which has consequences for this Bill.
  I was at first attracted by the amendment to delete subsection (2) because it is quite clear that by virtue of this provision the Assembly would not have the power to amend any future legislation. I therefore found it attractive to strike that out of the Bill. However, if it is to stay in the Bill, as it probably will, then it places a duty on the Welsh Assembly, and indeed on Westminster, to ensure that in future legislation there are no consequences that could in any way damage the role of the commissioner under this legislation. We have previously been concerned about primary legislation that comes before us which could be in some way damaging to the legislation. The Assembly and Westminster have to ensure that there are no such consequences in future legislation.
  Lord Evans of Temple Guiting:I should start by saying that the Delegated Powers and Regulatory Reform Committee raised no objection to this clause. As my noble friend has just said, the clause does not appear in all Bills but it is certainly used sometimes. The effect of this amendment would be to remove Clause 42(2); that is, the Assembly's ability by order to amend, repeal or

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  revoke an enactment, whether primary or secondary legislation, where the amendment is consequential on the provisions of the Bill.
  As we all know, this is the Henry VIII power. As I said, it is not unusual to have such a provision in the Bill. While it is intended that the Bill itself should deal with most minor and consequential amendments to other Acts, there is no guarantee that it will have picked up all such amendments. A power is therefore given by order to make such amendments or repeals after the Bill is enacted. The power will not, however, extend to an enactment in an Act of the UK Parliament which is passed in a Session after that in which this Bill is passed. So the power is limited in that respect.
  As I said, this is not an unusual provision. I therefore hope that the noble Lord will withdraw his amendment. Before he considers doing so, however, I must again acknowledge that his amendment has caused us to reflect further—this time in relation to the precise wording of Clause 42(3) and, in particular, whether the words "or under" should properly appear in the Bill. We will consider that further and, if necessary, bring back an amendment on Report.
  I spoke to Amendment No. 51 with Amendment No. 50 to Clause 42. As I said then, the purpose of Clause 43 is to give the Assembly the widest flexibility in relation to the making of orders or regulations under powers conferred by the Bill. The effect of deleting Clause 43(2)(a) would be to restrict the flexibility of the order and regulation-making powers of the Assembly under the Bill by removing the power to make different provision for different purposes.
  The noble Lord, Lord Roberts, asked which Bills will be affected by this after the Queen's Speech. Certainly the national offender management and sentencing Bill may require amendment under this power because it contains provision for a prison ombudsman. I hope that the noble Lord is satisfied with the answer I have given and that he will feel able to withdraw the amendment.
  Lord Roberts of Conwy: I am satisfied by the noble Lord's reply. I am grateful to him not only for what he said in reply to these terminal amendments of our Committee stage but also for what he said, which has been helpful to the Committee, on other amendments put before him. Incidentally, I am grateful to all noble Lords who have contributed to our debate.
  Lord Livsey of Talgarth: I, too, should like to thank the Committee for the way in which this business has been expedited. I associate myself with the other remarks of the noble Lord, Lord Roberts of Conwy.
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  He has himself worked extremely hard at producing the amendments, many of which have been very relevant. I thank him for that. I also thank the noble Lord, Lord Rowlands, and other noble Lords for their contributions.
  I particularly appreciate what the Minister said. However, I have picked up one drafting matter. Reference has occasionally been made in the Bill to the Assembly First Secretary; yet, in responding, the Minister has referred to the Assembly First Minister. I assume that the same situation pertains. Was there a specific reason for the reference? I do not want an answer now. However, perhaps the terminology could be straightened out and corrected between now and Report. I should like to know the answer as there appears to be a divergence between the Bill and the Minister's remarks. I shall leave it at that.
  I thank the Minister very much for the way in which the Bill has gone through. I also thank the Lord Chairman and his predecessors for the way that it has been conducted. I am very grateful.
  Lord Evans of Temple Guiting: Perhaps I may very briefly add my thanks to everyone. I should like in particular to thank those sitting behind me who have done a wonderful job in getting the file together under great pressure and worked late and got up early. They have really done a terrific job. I am very conscious of the fact that I have this support whereas my noble friend- and I will call him that—Lord Roberts of Conwy, who has produced a very considerable number of interesting amendments, does not have the support mechanism that I have had.
  Lord Livsey of Talgarth: We have even less.
  Lord Evans of Temple Guiting: It is a tribute to all of you. Thank you all for the spirit in which the Bill has been approached. It is terrific that we can all go home on Thursday lunch-time rather than come back to the Moses Room. Thank you all very much indeed.
  Lord Roberts of Conwy: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 42 agreed to.
  Clause 43 [Orders, regulations and directions]:
  [Amendment No. 51 not moved.]
  Clause 43 agreed to.
  Remaining clauses agreed to.
  Bill reported with amendments.
  The Committee adjourned at eighteen minutes before eight o'clock.