§ 2.53 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I beg to move that this Bill be now read a second time. It is some nine years ago that I first became interested in the question of an Ombudsman, and about six years ago that I became convinced that we ought to have an Ombudsman in this country. So I have since done what I can in order to bring it about. Of course, I never thought the day might come when I should actually move the Second Reading of such a Bill, let alone do so in your Lordships' House.
It is a Bill which has three objects. The first object is to increase the powers of the Members of the House of Commons over the Executive. A number of 1365 us have for some time thought, rightly or wrongly, that for some years Parliament has tended to lose control of the Executive and that something ought to be done to correct this state of affairs. Its second object is to provide a remedy for the ordinary citizen who believes that he has been treated unjustly by a Government Department. Its third object is to improve the administration of the Central Government.
I believe that this Bill will achieve those three objects, and I say that at once because, for some reason, during the last fortnight (I do not know whether or not these things are catching) there have been several newspaper articles suggesting—partly, I think, because of a complete misapprehension by the newspapers of the effect of a subsection recently inserted in the Bill in another place—that this Bill is a shadow of its former self and will not achieve the object it was intended to achieve. This really came to a head in a remarkably silly article in a paper for which I ordinarily have regard, namely the Economist. The article was headedStop it. The Lords should throw out the Ombudsman Bill and insist on a better one.It concludes:The Bill should not be passed, but the gutless Labour majority in the Commons has, in defiance of its supposed principles, passed it. This is exactly the sort of legislation that the permanent Tory majority in the House of Lords should now be mustered to resist. They will soon have their chance. What will they do? How much do they care?If I did not think this was a good Bill I should not be moving its Second Reading. It is not a Bill that my Department is responsible for carrying through Parliament. It is just as important that the Parliamentary Commissioner, when he is appointed, should investigate the affairs of the Lord Chancellor's Department as any other. It is for that reason that the Department which has responsibility for the carriage of the Bill is the Treasury, which, for some reason I have never fully understood, is supposed to be a Department with no departmental interests. However, because of my long interest in the subject, my colleagues have kindly allowed me to move the Second Reading, and I do so because I believe this is the Bill for which we have been waiting.
I will deal first, shortly, with the history of the subject, then summarise the con- 1366 tents of the Bill, and then make one or two observations on some criticisms which have been made of it. The year 1809 is rather a long way back, but we have to start there because it was in that year that Sweden appointed the world's first Ombudsman. I have never thought that in this country we can draw any useful conclusion from the Swedish Ombudsman, because the whole constitutional and Parliamentary set-up there is so entirely different. They had then, as they have now, a Council of Ministers which decides questions of policy. They then have a civil service but no Minister is at the head of a department. They have not got Government Departments as we have, and there is no Ministerial responsibility for what the civil service do. There is merely a law which provides that if the civil servants do not act properly, proceedings can be taken against them and they can be fined or suspended or dismissed. They have director generals of what may in a sense be called departments, but the Ministers are in no way responsible for them. Although they have such a thing as a Parliamentary Question, this is simply for providing information, and in the course of an ordinary year only about one question a week is asked; there are 60 to 80 in the course of the complete year. Therefore it has never seemed to me that an officer appointed for the purpose of seeing that the civil servant has done his job—because that was what the Ombudsman was appointed for: to see whether the civil servants were carrying out the policy of the Ministers properly, and if not to take proceedings against them—had any real relevance to our situation.
It was in 1952 and 1953 that we in this country had the Crichel Down case, which was a very bad case of maladministration by civil servants. It was in March, 1955, that Denmark appointed Professor Hurwitz as its Ombudsman. They looked at the Swedish Ombudsman and deliberately rejected it as not being applicable to their situation. The Danish Ombudsman was appointed to consider any complaints made by citizens of maladministration on the part of the central Government and to persuade the departmental head to remedy it, and if he was not able to remedy it, to report it to Parliament, who could then deal with it.
1367 As a result of the Crichel Down case, the Franks Committee was appointed in November, 1955, and in the spring of 1957 a body called Justice was set up. Justice was the English branch of the International Commission of Jurists and it is an all-Party body of barristers, solicitors, and academic lawyers formed to uphold and strengthen the principles of the rule of law in the territories for which the British Parliament is directly or ultimately responsible, and in particular to assist in the maintenance of the highest standards of the administration of justice and in the preservation of the fundamental liberties of the individual.
It was in July of that year that the Franks Committee reported, and their Report is not only a document full of interest to lawyers and Parliamentarians but an important document for us in relation to our whole constitutional procedure. As your Lordships know, they recommended that there should be a Council on Tribunals to supervise the work of tribunals. As they themselves pointed out, their terms of reference were so narrow that, although in a sense their appointment arose out of the Crichel Down case, they had been unable really to deal with mere maladministration, which was accordingly left over. At the beginning of 1958 Justice considered this and appointed a committee to consider how maladministration ought to be dealt with, with special reference to the Scandinavian experience of an Ombudsman. That committee got together a lot of material, but came to the conclusion—they were all busy, part-time members—that since the subject was a very detailed one, involving considerable knowledge of exactly how Government Departments work, in order to be successful such a committee ought to have a full-time research director. That, of course, would have cost money, which Justice could not provide. Later that year the Tribunals and Inquiries Act appointing the Council on Tribunals was passed, giving effect to the recommendation of the Franks Committee.
At the end of 1958 Justice brought Professor Hurwitz to England, where he addressed meetings in London, Manchester, Oxford, Nottingham and Bristol. In the spring of 1959 Mr. Blom Cooper went to Stockholm and Copenhagen and, when he came back, wrote a series of 1368 articles in the Observer to publicise the proposals about an Ombudsman. In June, 1959, Justice at their annual general meeting said that, as soon as they could find the money, they were going ahead with a proper investigation of the subject, and in November the then Administration, in the House of Commons, being asked what their attitude was, said they would wait until the Justice committee had reported.
Credit should be given where credit is due. It was owing to the generosity of Mr. and Mrs. Neville Blond and the Isaac Wolfson Foundation that early in 1960 money was found to appoint a whole-time research director in this field, and Justice was fortunate in obtaining the services of Sir John Whyatt, who had recently resigned as Chief Justice of Singapore, as Director of Research. The chairman of the committee was Mr. Norman Marsh, then Director of the British Institute of International Comparative Law, and the other two members were Sir Sidney Caine, Director of the London School of Economics and Political Science, and Professor H. W. R. Wade, of Cambridge. They reported in October, 1961. I do not think many of your Lordships would have recognised anybody who was then on the Council of Justice, except perhaps the Chairman, the noble and learned Lord, Lord Shawcross, and the Vice-Chairman, Sir Edwin Herbert, whom we now know as the noble Lord, Lord Tangley; a Mr. John Foster was Chairman of the Executive Committee, and I was Vice-Chairman. The other members of the Council included Mr. Hobson, subsequently Attorney General, Mr. Norman Marsh, now a Law Commissioner, Mr. Rawlinson, subsequently Solicitor General, Mr. Jeremy Thorpe, Professor Gower, now a Law Commissioner; and the two honorary treasurers were Mr. Jones, now Attorney General, and Mr. Roderic Bowen, subsequently Deputy Speaker of the House of Commons.
The Justice Report dealt separately with discretionary decisions and with maladministration. On discretionary decisions it was of the opinion that there might well be more tribunals and perhaps one overall tribunal, and on maladministration it recommended the appointment of an Ombudsman or a Parliamentary Commissioner. In the same year, Norway appointed an Ombudsman of this kind, 1369 and just as the Justice Report was going to Press there arrived a Bill which was then before the Parliament of New Zealand. The New Zealand authorities had been in touch with the Justice committee, and the New Zealand Bill was again very much on the lines which the Justice committee recommended. In November, in answer to a Parliamentary Question in another place, the then Administration said they were still considering the matter. On December 7, my noble friend Lord Silkin raised the matter in your Lordships' House, and, at column 216, the noble and learned Viscount, the then Lord Chancellor, said—and I read only the relevant extracts:That brings me to the subject of the Whyatt Report… First, it deals with complaints against discretionary decisions where the citizen disagrees with the way in which an official has exercised his discretion …The second as again the noble Lord, Lord Silkin, made clear, is formed by complaints against acts of maladministration which are complaints aimed at official misconduct …The remedy suggested by the Whyatt Report for the first type of complaint is, broadly, an extension of the tribunal procedure over a much wider field than at present. The Report suggests that the powers of the Council on Tribunals should be extended so that it can survey those areas where there are no tribunals at the moment … It is further recommended that a General Appeal Tribunal should be established to deal with appeals from miscellaneous discretionary decisions. … For the second type of complaint the Whyatt Report suggests the appointment of a Parliamentary Commissioner."—[OFFICIAL REPORT; 7/12/61, cols. 216–7.]And then at the end, col. 220, the noble and learned Viscount said:the Government must have further time before they can reasonably be expected to be in a position to define their attitude to it.A year later, on November 8, the Government having had sufficient time, their decision was made known in your Lordships' House by the noble and learned Viscount, Lord Dilhorne, and it was as follows (col. 384):My Lords, the organisation known as Justice made two proposals: first, that the Council on Tribunals should survey the area in which there is at present no right of appeal against a discretionary decision made by or on behalf of a Minister, with a view to providing a right of appeal in such cases to an independent tribunal; and secondly, that a Parliamentary Commissioner should be appointed to investigate cases of alleged maladministration. The Government consider that there are serious objections in principle to both proposals and that it would not be possible to reconcile them with the principle of Ministerial responsibility to Parliament. 1370 They believe that any substantial extension of the system of reference to tribunals would lead to inflexibility and delay in administration, and that the appointment of a Parliamentary Commissioner would seriously interfere with the prompt and efficient dispatch of public business. In the Government's view there is already adequate provision under our constitutional and Parliamentary practice for the redress of any genuine complaint of maladministration, in particular by means of the citizen's right of access to Members of Parliament.In 1964, in February, the Young Conservatives said they did not agree with that. They seemed to have agreed with Justice about the Commissioner, but Mr. Heath and the noble Lord, Lord Mancroft, upheld the decision which I have just announced. On April 20, 1964, the present Prime Minister made it plain that he would give favourable consideration to the appointment of a Parliamentary Commissioner, and in the General Election Manifesto of his Party it is stated:New ways must be found to ensure that the growth of Government activity does not infringe the liberties of the subject. This is why we attach so much importance to humanising the whole administration of the State, and that is why we shall set up the new office of Parliamentary Commissioner with the right to investigate the grievances of the citizen and report to a Select Committee of this House.In "Panorama", during the Election, I upheld the proposal for a Parliamentary Commissioner, which was ridiculed by the noble Lord, Lord Mancroft, on behalf of the Conservative Party, and we also had the view of the noble Lord, Lord Byers, on behalf of the Liberal Party. This surprised me a little, because I think the Council of the Liberal Party had passed a resolution in favour of it. However, one understands, I suppose, that once something is in one Party's Manifesto, everybody else has to oppose it on principle. Your Lordships may remember that there was a White Paper in October, 1965, but that it was not possible to introduce the Bill during that Parliament because of the General Election. Now it is before your Lordships.
There are five basic points about the Bill. The first is the high status and wide measure of independence of the Parliamentary Commissioner. The second is that his function will be to investigate actions taken on behalf of the Crown. The sphere, therefore, is the Central Government on one side, and the citizen on the other. Thirdly, he is given unprecedented powers to provide for the 1371 examination of documents and obtaining evidence from Ministers, civil servants and private persons. Fourthly, the purpose of the investigation is to bring to light administration which has caused injustice to the citizen. Fifthly and lastly, complaints will be made to him through Members of the House of Commons; and it will be for the House to deal with Ministers where they refuse to remedy an injustice in a way which the Parliamentary Commissioner recommends.
Before actually coming to the Bill, may I say that it departs from the Justice Report in three respects in particular. First of all, as soon as one thinks about it it is obvious that there must be some exceptions—for example, security cases; questions which will involve us in difficulties with foreign countries; and the Queen's Proctor. This led Justice to say that when the Parliamentary Commissioner wrote, as he must do first, to the head of a department to say, "I have had this complaint, and I am coming to see you to investigate it", the Minister was to have an absolute veto at that point. So that in any particular case the Minister could simply say, No.
The Whyatt Report expressed the hope that Ministers would not use the veto often; but being conscious that there were points where it would be clearly wrong that a Commissioner should investigate them, the Report recommended that the Minister should have that power of veto. This Bill throws the veto out of the window. Under this Bill, no Minister can stop an investigation being made, though there are contained in Schedule 3 the cases which the Whyatt Committee had in mind as being unsuitable—for example, prerogative of mercy. There are a number of cases in which it would clearly be undesirable. But they are specified, and it is because they are specified and excluded that it has been possible to throw the veto out of the window and give a Minister no power at all to refuse to allow an investigation to take place.
Secondly, the Whyatt Committee were worried as to exactly what documents the Commissioner should be able to look at. Obviously, all the correspondence in the Government Department. But what about the Minutes? Is it not of the essence of our system of organisation in Government Departments that civil ser- 1372 vants should feel absolutely free to express their opinion in their Minutes to the Ministers, and that Ministers should receive the benefit of the genuine advice of their civil servants, without the civil servants having to fear that their Minutes may one day be published and they may be criticised about them?
On that point, the Whyatt Report speaks of the question as to whether Minutes recording internal discussions between departmental officials should be treated as confidential. The Report says:There is a strong case for the view that they should be so treated, in order that the officials may be able to express their opinions freely and without the personal restraint which would be required if the Minutes were likely to be made public. It should also be borne in mind that, if it were necessary to draft Minutes with a view to defending them against public criticism, the administrative process would be slowed down considerably. On the whole, we think it is in the interests of good administration that internal Minutes should be regarded as confidential, and that unless it can be said that the Parliamentary Commissioner would be unable to carry out his duties efficiently without access to internal Minutes, he should not be entitled to see them.That this Bill throws out of the window. The Parliamentary Commissioner will be able to look at all the documents of a Government Department, including departmental Minutes, while reserving some right to the Minister to object to particular documents being later recorded outside the office of the Commissioner. But the Commissioner will be able to look at all documents, including the Minutes.
The third difference is this. Naturally, the Whyatt Committee exhumed the continued existence of Crown privilege under which any Minister of State, if he signs the document saying that the production of a particular document will be contrary to public interest, can obtain privilege for that document. This, of course, applies in all our courts. There are some of us who do not think that that is right. There are some of us who think that anyhow the judge, who is a responsible sort of person, should at least be allowed to look at the document himself, because it is easy for a Secretary of State—I am sure that Secretaries of State do what they think is right—to sign a piece of paper saying that he thinks the production of a document would be contrary to the public interest.
1373 I think it has always been the law in Scotland that a judge can look at the documents himself, and then make up his own mind. I have always thought that the advantage of that is that a judge, in the responsible position he occupies, naturally has regard to the public interest. But he can do what the Minister cannot do: he can weigh the degree to which the public interest might or might not suffer if the document is disclosed, together with the importance of the document to the parties in the case. He may look at the document and see at once that it would not matter two pence to the parties whether it was disclosed or not. On the other hand, looking at the document he may say, "This is vital to the parties if justice is to be done between them." That, I think, has always been the law in Scotland. I say no more about that, because the Law Reform Committee is considering the whole of our law of evidence, and the question on which it is at present engaged is our law of Crown privilege.
The Government have felt that in this special field of the Parliamentary Commissioner Crown privilege ought not to apply, and therefore no Minister will be able to object to the production to the Commissioner of a document on the ground that it will be contrary to the public interest that they should disclose it to him. Your Lordships will see, therefore, that in these three respects the Bill in fact goes further than the recommendations of the Whyatt Committee.
Turning to the Bill, itself, Clauses 1 to 3 provide for the independence of the Parliamentary Commissioner. It is modelled largely on the precedent of the Comptroller and Auditor General who, for this purpose, and most successfully, has been a sort of financial Ombudsman for this country for quite a long time. As the Bill was drafted, the Parliamentary Commissioner, apart from having to retire at the age of 65, could be removed only by a Resolution of the House of Commons, but the Government have accepted an Opposition Amendment to enlarge this to removal only on an address from both Houses of Parliament. This applies to the Comptroller and Auditor General, and there is no reason why it should not apply to the Commissioner. So there he is, completely independent. These clauses also provide 1374 for his remuneration and his pension and, of course, for the appointment and remuneration of his staff.
Clause 4 lists in Schedule 2 the Departments and authorities which are to be subject to investigation, and includes, I think, all Departments with which members of the public are likely to be in contact. It does not, for example, include the Public Works Loan Board, because obviously only local authorities have dealings with the Government in relation to that body. Clause 4(2) provides for the addition of future or other Government Departments to be made, without further legislation, by an Order in Council subject to annulment procedure. On the Committee stage of the Bill your Lordships will be asked to add to the list the Land Commission, which could not be included until the Land Commission Bill had become an Act. There are some notes dealing with specific offices not to be included. There is reference to the Lord President of the Council's Office as not including the Privy Council Office; and to the Treasury as not including the Cabinet Office. But again an Order can at any time be made taking any of those out, if Parliament thinks fit to do so.
The provisions of Clause 5(1) are central to the scheme. They make clear, first, that any investigation must be into the administrative action of a Department listed in Schedule 2, and that all that is necessary for an investigation is that, with the consent of a constituent, a Member of another place reports the case to the Commissioner as being one in which the constituent is complaining that he has suffered an injustice as a result of maladministration by a Government Department. Experience has shown that any attempt to define "maladministration" would be a great mistake. It covers negligence, ineptitude, dishonesty. It is a thing which, like an elephant, one recognises, but which is difficult to define, and it must be appreciated that the Commissioner most of the time will not know the size of the task he has before him until he starts investigating it.
As your Lordships know, if a man is permanently injured, the fact whether he gets an invalid carriage or not depends on the decision of a civil servant in the Ministry of Health. The complaint to the Commissioner may be, "I am a badly 1375 injured man and have been turned down when applying for an invalid carriage. The man next door, who is not nearly as badly injured as I am, has an invalid carriage". In fact the difference of treatment may be due to all sorts of causes. It may be, though it is wildly unlikely, that the civil servant has been bribed by the man next door, or perhaps he is a pal of his. Or it may be that the man who is less badly injured can do a job if he can get a vehicle in which to get to work. In such a case the Ministry may feel, quite sensibly, that a carriage should be provided to the man who is capable of going out to do a job of work rather than to a man who cannot go out. Or it may be that the two cases have been dealt with by two civil servants, each of whom has construed differently an ambiguous instruction from the Permanent Secretary. So half the time, until the Commissioner actually goes into the matter, he will not know whether this is maladministration or not, or, if it is, what kind of maladministration it is.
It was never intended that the Commissioner should be a superior House of Lords to overrule your Lordships' House in matters of law or, for that matter, to overrule administrative tribunals, from whom in many cases there is an appeal to an appeals tribunal. Accordingly, Clause 5(2) excludes cases in which the citizen has a right to go to a court or to a tribunal. But it has been felt that there may be cases in which, although theoretically he could go to a court, because one can so often ask for a declaration in the Chancery Division or something of that kind, the Commissioner ought to have a discretion to say: "Well, although technically he has a legal right to go to a court, it would be unreasonable in the circumstances of the case to expect him to do so". The Bill, as originally drafted, contained no such exception for those who had a right to go to a tribunal, but the Government have accepted an amendment by which the Commissioner will also have a discretion in relation to a tribunal. Clause 5(5) provides again that the classes in Schedule 3 which are at present excluded, like the prerogative of mercy, and so on, may at any time be deleted by an Order in Council, subject only to the Negative Resolution procedure; so that those things which are excluded by Schedule 3 can be re- 1376 duced but cannot be increased. There can be no additional exclusions, but such exclusions as there are can be reduced.
The subsection which I think has been greatly misunderstood by the Press is one which is inherent in the Bill throughout, and which was put in only as a suggestion to make the thing clear. That is Clause 5(4), which says:Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decision taken by a government department or other authority in the exercise of a discretion vested in that department or authority.It was never intended that a Parliamentary Commissioner or Ombudsman should be a one-man court of appeal against every policy decision or discretionary decision of a Minister. From the Whyatt Report on, that has always been the case. In regard to discretionary decisions, the Whyatt Report recommended an extension of the powers of the Council on Tribunals to a wider class of case, and that your Lordships did only a few months ago. Nobody has yet put forward the constitution of a sort of general appeal tribunal from other discretionary decisions, but, as I have said, it has always been clear, from the Whyatt Report onwards, that the whole idea of a Commissioner or Ombudsman is not to act as a court of appeal. That is why it excludes a review by way of appeal from decisions of Ministers in regard to questions on which, of course, they are responsible to Parliament.
If I may turn to the matter of maladministration, when we were considering, the Companies Bill I took as an example the position of the Board of Trade, which had the responsibility of saying whether or not somebody was to be allowed to start an insurance business. We considered whether or not it might be a hardship to him that he would not be told exactly what the Board of Trade had against him. Your Lordships came to the same conclusion as another place, that a distinction should be drawn between cases in which the Board was closing down an already established business, which it could not do without telling the person concerned what there was against him, and, on the other hand, where he was merely being refused leave to start a business when, on balance, it was thought they should not have to tell him. Obviously if they did tell him they 1377 would render that source of information useless for the future. But I did say then, and it is correct, that this will not in any way prevent the Commissioner from investigating such a case.
No doubt the question whether somebody ought to be allowed to start an insurance business is a matter of opinion on which two honest men might differ, and for a decision on which the Minister will be responsible to Parliament, and the Commissioner will not be able to review that decision by way of appeal. But the Commissioner will be able to cross-examine the President of the Board of Trade and his officials, and look at all the documents, and report that the Minister had only one source of information, and that a rather doubtful one; that he made no attempt to check the information outside; that there were, in fact, relevant documents in the Department at the time and that he did not have them in front of him when he came to make his decision.
Clause 5(6) makes clear the independent position of the Commissioner. Neither Parliament nor the Executive will have power to tell him how he is to do his work. Clauses 6 and 7 show who may make complaints and how investigations are to be carried out. They are to be informal. Anybody can make a complaint against public sector bodies— that is to say, one Government Department cannot complain against another, nor can a local authority; but, subject to that, any person or body living in the United Kingdom or on a visit here when something takes place can complain to the Commissioner. Investigations will be conducted in private. There will be no need for the formal taking of evidence, though the Commissioner, if he thinks fit, can take evidence on oath. There is no provision for legal aid, but the Commissioner's power to pay expenses under Clause 7(3) will include payment of legal expenses, if he decides to allow legal representation under his discretion in Clause 7(2).
Clause 8 gives the Commissioner his unprecedented power of access to departmental information, and it makes it clear that Crown privilege is not to apply. Clause 9 gives him power to take action against anybody seeking to obstruct an investigation. Clause 10 provides that he will be the investigator. While he 1378 will have no executive power, experience has shown elsewhere—for example, in New Zealand—that it is only about once a year that a Minister does not do what the Commissioner says he ought to do to remedy something which has not been done rightly. Ministers, I suppose, do not want to be reported against. Although the Commissioner has no power to make orders, it is thought that it will be very rare in practice that a Minister will not do what the Commissioner advises and that the Commissioner will have to report to the House of Commons, where a Select Committee will be appointed. That Select Committee will have no power to control the Commissioner, or to tell the Commissioner what he is to do. The only function of the Select Committee will be to deal with any Minister who does not comply with the recommendations of the Commissioner.
Clause 11 makes the necessary provisions for confidentiality, which are, of course, important. Information disclosed in the Commissioner's reports may also be controlled, where Ministers consider this to be essential for the particular circumstances described in Clause 11(3). This is really a necessary corollary of the waiving of Crown privilege, when the documents are seen by the Commissioner and his staff. This, as I have said, gives effect in substance to the recommendations of the Whyatt Report, though in the three respects which I have mentioned it goes further.
Criticisms of the Bill have been mainly, I think, that certain things have not been included, particularly nationalised industries and local authorities. It has never been any part of the Government's case that it would not be a very good thing if every local authority in the country had its own Ombudsman. But to suggest that the Parliamentary Commissioner should take under his wing local authorities would be quite contrary to the whole conception of the Parliamentary Commissioner. He is really an extension of the powers of Members of the House of Commons to deal with the grievances of the citizens. Neither he nor a Select Committee of the House of Commons has any control over local authorities. They could not enforce in any way any recommendation which any such Commissioner might make.
1379 Of course, the same applies to the nationalised industries, except in so far as general control is concerned. The real test for seeing whether or not something comes under the Commissioner, subject to the Schedules, is to ask, "Could a Parliamentary Question be asked about it?" As we know, there is a limit to the extent to which Parliamentary Questions can be asked about nationalised industries, the detailed administration of which is not subject to Government control, and the same applies here.
There are other matters which have been excluded and which might have been included. For example, there are personnel matters in the Armed Forces, and Civil Service. The civil servants themselves said they did not want to be included, because they are satisfied with their system of Whitley Committees, and they did not wish to call on the services of the Ombudsman. In general, where the relationship between the complainer and the Government is not that of central Government and citizen but that of employer and employee, it has been excluded. It could always be included later, but at present the one danger or difficulty which appears to those who have thought a good deal about appointing a Parliamentary Commissioner or an Ombudsman in this country has always been this point, which we have always had to face.
It is true to say that in Denmark and, I believe, in Norway, and certainly in New Zealand, that wherever such an officer has been tried he has been enormously successful. It has depended partly on the fact that he more or less deals with everything himself. I do not mean that he has no staff, but the complaints are not so many that his personality, known to the public, has not been of the greatest value. But it has never been done in a country with a population of more than 6 million, and here we are trying to apply the same idea to a population of 50 million. We have always had to face that fact, and that is why everybody who has been most anxious to see the establishment of a Parliamentary Commissioner has always said, "For goodness' sake! do not let us try to overdo the thing to start with". It is a sensible English habit to start things on a reasonable scale, and if they 1380 work they can always be extended. For example, after four years the scope of the Danish Ombudsman was extended in some way to include local government.
But there are men who have written once a week to the Lord Chancellor for the last ten years, and since the 1959 Mental Health Act there are a great many people about with bees in their bonnets. They are not dangerous, and if they are not dangerous we are all glad that they are at large and not in some mental hospital. When they are dangerous some of us think that really they ought to be secured somewhere. There are also borderline cases under that Act, where one appreciates the psychiatrist's view that a man is better off at home but if he is as borderline as that it places a very great weight on his wife and children. We have always recognised that there are people of that kind, and many Members of another place have—I do not know whether any of your Lordships have—already had letters from shoals of people of that character waiting for the Commissioner to be established. Therefore, as to bodies like the Armed Forces and the Civil Service, I would urge upon your Lordships the view that it is wise not to try to do too much at first. These can always be added by a simple Order in Council without further legislation, and in those respects the present field of the Bill is quite wide enough.
Finally, my Lords, there is a matter of obvious interest to your Lordships, and that is the fact that a citizen can go to the Commissioner only through a Member of the House of Commons—not necessarily his own Member, but through a Member. The question which may interest your Lordships—I do not know; perhaps it may not—is whether Members of your Lordships' House should not have been included. There is a certain amount to be said about this, both ways, although the Government have come to the conclusion that it should be limited to Members of the House of Commons. One can say, on the one hand, first, that it seems rather discourteous not to include Members of your Lordships' House; and, secondly, that if it is so limited to the House of Commons the Ombudsman ought really to be called a House of Commons Commissioner and 1381 not a Parliamentary Commissioner, because Parliament has two Chambers. On the other hand, of course, the basic conception is that of an extension of the powers of the ordinary Members of the other place, who are historically the proper receptacle for the grievances of people.
I should have thought it was rather an awful life being a Member of the House of Commons. It is very destructive of domestic life, and for years one has no real control of whatever Government are in power. Then, after years your Party gets in, and you either get an office or you do not. Even if you do, you may find yourself returning at short notice to the Back Benches. The real attraction, as it seems to me, is that inevitably they spend a great deal of their lives as welfare officers, at their weekly or fortnightly "surgeries". They really are the people who are told by the ordinary people all over the country just where the shoe pinches. Any human being who can do a good turn to another human being is, I think, happier than he was before he did it, and it may be that that is the real attraction.
Although there was no very detailed evidence, some Members have kept careful records, and they all seemed to be agreed that the average number of constituency problems a year is between 250,000 and 300,000;and all the Ministers said that it was very rare indeed for any Minister to get what one might call a constituency letter from a Member of your Lordships' House. Therefore, on balance, it was felt better to restrict the provision to Members of the House of Commons. That, as I say, is a point which may or may not interest your Lordships at a later stage of this Bill.
My Lords, there is nothing wrong with this Bill. I do not know why, in the last fortnight, it seems to have been depreciated. I can certainly recommend it to your Lordships' House. It has, I think, been needed for a very long time. 1382 It will be an additional weapon to the Member who puts down a Question—when, of course, the Answer is written by the civil servant who made the mistake; and, although one can raise the matter on an Adjournment debate, that very often does not carry it very much further. Here, indeed, is a further weapon for Members of the other House to use. It will, I am sure, remedy the grievances of citizens, not necessarily dramatically.
The experience of Commissioners shows that very often it is, for example, a question of delay. I remember one or two cases in Denmark, I think, of small claims for income tax refund. One gets a postcard acknowledging it after about a month, and then nothing at all happens. One writes again, and they say they have been busy. In Denmark this led to a complete overhaul of the administration of that particular department of the Revenue, and all applications for refunds are now dealt with in a week. Or, very often, the real trouble is that the citizen would have understood exactly what had happened and the reason for it if only he had been told the reason. In such a case the Commissioner says to the Minister concerned, "For goodness sake instruct your people to tell them the reason in future. They are entitled to know it".
I am quite sure that this Bill will achieve its object of, in many cases, remedying the grievances of the citizen, and also, of course, improving our administration. We have, as we all know, a very fine Civil Service, but there is nothing that cannot be improved; and the fact that somebody can always walk in and look at all your documents, including your Minutes, and cross-examine you may have a valuable effect. It is on those grounds that I commend this Bill to your Lordships' House, and I beg to move that it be read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)