§ 7.36 p.m.
§ The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Belstead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ Clause 1 [Extension of the jurisdiction of the Parliamentary Commissioner]:
Lord Silkin of Dulwich moved Amendment No. 1:
Page 2, line 17, leave out sub-paragraphs (ii) and (iii)
§ The noble and learned Lord said: This clause is the most fundamental part of this Bill, the part which gives effect to the recommendations of the Select Committee on the Parliamentary Commissioner for Administration, 1983–84, on non-departmental public bodies and to the response of the Government to those recommendations, whereby it was agreed on all sides that the functions of the Parliamentary Commissioner for Administration, which up to this time extend to the maladministration of government bodies, should be extended to include a number of what are these days called quangos; in other words, non-departmental public bodies.
§ There is no difference of view about that. The difference which manifested itself in the other place, and which indeed has manifested itself throughout the history of the consideration of this matter, was what the limits should be as to the bodies which would fall within the extension. One can see very clearly, reading from parts of the report of the Select Committee, that there were considerable differences of view.
Paragraph 6 of the Select Committee's report states that the distinguished former civil servant Sir Leo Pliatzky, who gave evidence,
spoke of 'bodies which have a role in the process of Government in the United Kingdom but which are not Government Departments or part of a Government Department'.
The Select Committee commented that the,
bodies in this class are numerous and heterogeneous. The amount of public money they spend varies from little or nothing to millions of pounds per year.
In paragraph 12, adopting the approach of Sir Leo Pliatzky, the Select Committee noted that he had suggested,
in respect at least of the largest, most expensive bodies, that they should all be brought within PCA jurisdiction unless it could be shown that there were good reasons for not doing so. The CSD suggested function as a criterion".
The Parliamentary Commissioner himself, then Sir Cecil Clothier,
suggested a selective approach and gave us in oral evidence a short list of the bodies over which he felt it would be suitable that he should have jurisdiction. Most of them were grant-giving bodies, though a few were involved in licensing".
In the course of his evidence, he drew attention to the fact that sometimes a complaint was brought to
him which at first sight appeared to lie against a government department, but when the initial investigation was entered into it showed that, in fact, it lay against a non-departmental body. He said that in some of those cases there was prima facie evidence of maladministration which he would like to investigate, but he could not, and cannot for the moment, do so because his powers do not extend that far. So we had various criteria put forward. In the other House the matter was discussed in the context of Schedule 2 to the Bill, which sets out those bodies that the Bill suggests should now be subject to investigation—government departments and others.
§ This amendment tackles the problem in a somewhat different way which is very much more akin to the suggestion of Sir Leo Pliatzky. It accepts a number of limitations, such as the limitation that the body concerned should be established by virtue of the prerogative, by an Act of Parliament, by an order or in some other statutory way. It accepts the limitations which are set out in subsection (5) of Clause 1, which are perfectly proper. However, what it does—and this is the vital matter—is as follows.
§ The Bill as it stands provides the limitation that the body concerned should be one at least half of whose revenues derive directly from money provided by Parliament or some other statutory charge, and that it should be one which is wholly or partly constituted by appointment made by the Crown or a government department.
§ It is not easy to see why those limitations should be imposed and, in particular, the limitation with regard to the revenues. The limitation that at least half of the revenues is to be derived from Parliament is bound to create anomalies between one body and another, and indeed in the same body from one year to another, and I am not altogether sure how that difficulty will be resolved.
The basis of that restriction is not too clear. It may lie—and I raised this point on Second Reading—in the concept that, if a body is supported by public funds, then it is open to a Member of Parliament to complain to a Minister to bring the matter before the other House or this House, and so parliamentary control can be expressed. But the Select Committee itself drew attention to the fact that we have reached a stage where the very authority of the Parliamentary Commissioner is normally sufficient. They say in paragraph 16:
The experience of the Health Service Commissioner suggests that compliance can be achieved without any direct sanction, the authority of the Commissioner and the displeasure of Parliament, expressed in the first instance through this Committee, having always proved sufficient to secure the suggested remedy.
This could be done just as well in circumstances where the body concerned does not have at least half of its revenues deriving from public funds.
§ There are, of course, other procedures that would be open, but the reality of the matter, in our view, is that the prestige of the Parliamentary Commissioner after 20 years is such that bodies which are charged by him with maladministration and causing injustice are extremely unlikely to refuse to give a remedy, whether they he government departments or non-departmental public bodies. To deprive the citizen of a remedy against bodies of that kind, because the remedy cannot 966 be a 100 per cent. remedy, seems to be an illogical step and not to go in the direction in which this Bill quite properly seeks to go, which is to ensure as far as possible that the citizen has a remedy against all forms of maladministration causing injustice to the citizen.
§ The amendment has been expressed as it has so that, although the criteria, if the amendment were accepted, would be criteria which could govern the second schedule, in the sense that one could immediately add to the second schedule new bodies that fell within the revised criteria, it would not be necessary to do that because the Government could say, "We accept the new, more limited criteria as from now and we will consider what bodies are appropriate". In the words of Sir Leo Pliatzky, they could all be brought within the jurisdiction unless it could be shown that there were good reasons for not doing so.
§ So it would be for the Government to look at the bodies which qualified, as it were, after the amendment had been carried and decide for the future—one by one, if you like—which bodies should be brought within the operation of the Commissioner. I hope that the Government will take the view that that is a reasonable way of dealing with the matter and will accept the amendment. I beg to move.
§ 7.45 p.m.
§ Lord Belstead
This was indeed a matter which the noble and learned Lord, Lord Silkin, referred to at Second Reading and, if I may say so, I think that the difficulty that the Government see with the amendment which the noble and learned Lord has put forward is this. When the 1967 Act was passed, the Parliamentary Commissioner was appointed to carry out responsibilities on behalf of Members of another place to protect the individual against maladministration by the state. As the White Paper then said, he was seen as developing and reinforcing existing constitutional rights of the individuals.
In the present Bill, it is fair to say that we are still effectively dealing with the regulation of relations between the individual and the apparatus of the state, where a body has been authorised, either directly by statute or by administrative decision, to carry out responsibilities which directly affect individuals. In such cases, accountability through Ministers to Parliament is normally retained through ultimate ministerial responsibility for the funding and appointment of members to the bodies, and these are the factors reflected in the criteria in the Bill which the amendment would delete.
In case the Committee feels that I am being too immovable on this matter and that I have not listened to the argument of the noble and learned Lord, perhaps I may go on to make the point that I think that this amendment would have a very difficult result. As I see it, it would bring within potential jurisdiction any corporation or body with any public element, however remote, in its establishment, regardless of whether it affects individuals or the nature of any such relationship.
For example, I have in mind that the amendment would cover all bodies set up by statute, including, incidentally, the commissioner himself; all local and health authorities; and, as I read it, every body 967 established by Royal Charter, however remote from dealings with the ordinary public. For example, it would affect the Royal Ballet, the English Speaking Union, the Royal Shakespeare Theatre, trade associations, livery companies and professional bodies. I am therefore saying that although I have listened to the argument of the noble and learned Lord I think that the amendment goes too far.
The noble and learned Lord ended with a persuasive point when he said that in effect we should keep the schedule as it is but use the amendment for the future. May I put that in a different way to the noble and learned Lord? I should obviously like to keep the schedule as it is. However, in resisting the amendment, for the reasons which I have given, perhaps I may say that if the noble and learned Lord or any other noble Lords can think of individual candidates for listing which our present criteria seemed to omit, then if any noble Lords taking part in the Committee stage put them to the Government before the next stage of the Bill, we shall be glad to look further at individual cases. However, so far as the general principle is concerned, although I realise that the noble and learned Lord feels that we are being restrictive, I feel that this amendment goes too far.
Before the noble and learned Lord responds, may I ask the Minister to elaborate further? Am I to understand that if noble Lords can think of bodies which ought to be included on the merits of their own case, a means will be found of amending the schedule? Surely we should not make amendments to the schedule without first deleting the sub-paragraphs referred to in the amendment of the noble and learned Lord.
§ Lord Belstead
Perhaps I should have been more explicit. I am saying that if the noble Lord, Lord Winstanley, has in mind a body which should be regarded as part of the apparatus of government but whose impact on the individual is such that it is a proper candidate to be in the Bill, we should be very glad to look at it. Where I hoped I made myself clear was in saying that when one has a body which is clearly not part of the apparatus of government, then I feel that such a body is not a suitable candidate. I have to be downright on that point on behalf of the Government.
§ Lord Silkin of Dulwich
I am grateful to the Minister for a clear exposition of the position of the Government on that matter. So far as the latter part of his remarks is concerned, he was clearly seized of a point that the amendments do not force the Government to include any body. We should have to have an Order in Council that Parliament supported.
All the amendment seeks to do is to remove restrictions on the Government and Parliament for the future. In other words, those bodies, which the noble Lord may have objected to quite properly, such as the English Speaking Union, would not be forced to be included. The Government would simply not include them, although they could technically do so if the amendment were carried. They would not be forced to do so because it would be a matter for the Minister to bring forward an order and to say that certain bodies 968 should be included. It would then be a matter for Parliament to decide whether or not to include them. I find it difficult to see why either Parliament or the Government would in any way be handicapped by accepting the amendment.
So far as concerns the other part of the noble Lord's remarks, I can see that the mere deletion of subparagraphs (ii) and (iii) might have consequences or be capable of having consequences which I have not fully worked out. I am only to happy to accept the considerations which the Government have given to possible consequences of the amendment being accepted. I should have thought, however, that the Government logically should follow that part of the noble Lord's speech by saying that they will look at it themselves and see whether they can work out a formula which is not as restrictive as the formula in the Bill, which would cut out automatically certain bodies, so that even if the Minister and Parliament wished to include them they could not be included without a new primary piece of legislation.
They might look at the matter and see whether they can produce a compromise formula which does not go quite so far as that suggested in the amendment but which at least meets the spirit of the evidence before the Select Committee, which I have detailed in moving the amendment. I shall be very happy if the Minister is prepared to consider that. In any event, I shall not seek to divide the Committee at this time of night on this matter. I have ventilated it and I hope that it will be considered. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Lord Winstanley moved Amendment No. 2:
§ After Clause I, insert the following new clause:
§ ("Amendment of 1967 Act.
§ .—The 1967 Act shall be amended as follows—
- (a) in section 5(I)(a) after the word "Commons" there shall be inserted "or House of Lords";
- (b) in section 5(1)(b) for the words "that House" there shall be substituted "one of those Houses";
- (c) in section 6(3) after the word "Commons" there shall be inserted "or House of Lords"; and
- (d) in section 10(5)(b) after the word "Commons" there shall be inserted "or House of Lords".").
§ The noble Lord said: This amendment takes the form of a new clause which seeks to amend the 1967 Act in a variety of ways which may look complicated and which it would be tedious to go through at this hour. However, the aim of the amendment is very simple and direct, and I shall explain that aim.
§ As noble Lords may recollect, the Act of 1967 provides that complaints of maladministration from which it is believed that an injustice may have arisen must be put to the parliamentary commissioner via a Member of the House of Commons. The Act does not specify which Member of the House of Commons must be approached and it does not for a moment have to be a citizen's own Member of the House of Commons. Nor does it have to be the Member of the House of Commons who sits for the area of the country which is affected by the particular decision about which the citizen is aggrieved.
§ It is a fact that on many occasions a citizen's own Member has perhaps refused or declined to transmit a 969 complaint to the parliamentary commissioner and he has sought the help of another Member in putting the case. The parliamentary commissioner has then been able to look at the case. There are many such cases. The Act therefore does not provide that the citizen's own Member of Parliament or one directly concerned in the matter should be approached.
§ The problem is that there is no provision for such complaints to be put to the parliamentary commissioner on behalf of a citizen by a Member of this Chamber. Frankly, that seems unreasonable. Many noble Lords are in very close contact with many ordinary citizens and with voluntary bodies and other organisations up and down the country. They often deal with matters of injustice and often the attention of noble Lords is drawn to a particular case. Individuals may often feel that they have a case which the parliamentary commissioner should look at, because it may be that there has been maladministration and that the parliamentary commissioner may be able to recommend a remedy. If any of us in this Chamber receive such complaints, we must then suggest to the individual that he or we approach his Member of Parliament in the House of Commons—although we in this Chamber are also Members of Parliament and I should have thought that that should be recognised. I should have thought that we could extend the Bill in this way.
§ This matter has cropped up many times at Question Time and support has been given by members of all parties to the idea of extending the provision to Peers. I fully accept that were we all to be tied to what we happened to say at Question Time on a particular day the whole party structure in your Lordships' House might well suffer cataclysmic effects. We say different things from time to time. I merely make the point that the idea of giving Members of the House of Lords the power that Members of the House of Commons have to pass cases where they deem it is proper to the parliamentary commissioner has had support in your Lordships' House from members of all parties.
§ It may be argued that once one does that many more cases will go to the commissioner. I do not think that that is true. Noble Lords are just as capable of deciding what is an appropriate case to be looked at by the parliamentary commissioner as a Member of the House of Commons. As Members of the Committee are aware, the commissioner himself has many other protections whereby he can decline to look at a case. For example, the complainant must have exhausted his remedies through the law; the case must fall within the various categories prescribed in the Bill; the event complained of must have happened within a certain time limit; it must have happened within the United Kingdom; and there are various other conditions. Noble Lords are just as able as Members of another place to advise complaining citizens about that point. I should have thought that they could assist in the matter.
§ This is a simple amendment. It seeks merely to allow Members of your Lordships' House to pass cases, where they believe it is justified to pass such cases, to the parliamentary commissioner. I should have thought that the Government might accept the amendment. I beg to move.970
§ 8 p.m.
§ Lord Auckland
I hope that the Committee will take note of what the noble Lord has said. There is the obvious objection that your Lordships' House is not an elected Chamber and that therefore complaints going to the commissioner could come from a body of people who are not in any way elected. It may well be that this would have to be done through your Lordships' House through the local Member of Parliament concerned.
I say this because I had an example when I initiated a debate in your Lordships' House on the National Health Service some years ago. I received a number of letters regarding the pay of physiotherapists. One was from the father of a young physiotherapist from the New Forest. I referred the matter to my noble cousin, as he now is, who was then the honourable Member for Bournemouth, West. I received a rocket from the father for doing so because it was a confidential matter, so he said. I made the point that I had to refer it through the elected Member because of the procedure.
The point is that your Lordships' House is now a much more professional House. We work full time. I am sure that the noble Lord, Lord Winstanley, receives much correspondence particularly on matters connected with the health service, and as an ordinary Back-Bencher I do so similarly. There is some substance in the noble Lord's amendment that the commissioners should be able to receive deputations or complaints through your Lordships' House, bearing in mind that it is a very different House from what it was 20 years ago. We are receiving far more correspondence now not only on health matters but on others. With the increased responsibilities of this noble House we should be able to make our voice heard and I think that the country as a whole would benefit. Whether the amendment is adequately drafted is another matter, but I think that the substance deserves serious consideration.
§ Lord Belstead
The noble Lord, Lord Winstanley, made a persuasive case and my noble friend Lord Auckland has supported him. I think it is right just to bear in mind that the Select Committee took the view, which was accepted by the Government, that procedures for referral of complaints against non-departmental public bodies should be the same as for complaints against government departments. The Select Committee made no recommendation that procedures for referral should be widened to include Members of this House.
Why is this so? Both my noble friend and the noble Lord, Lord Winstanley, made the point that sometimes it would be very desirable for a Member of this House to be the recipient of a complaint. Indeed, I yield to no one in my recognition of the fact that there are most certainly occasions (and I have no doubt that these days they have become more frequent) when Members of this House receive approaches of various kinds from members of the public. As I explained at Second Reading an ad hoc arrangement exists under which the parliamentary commissioner, with the agreement of a complainant, can forward a directly submitted complaint to an 971 appropriate Member of another place so that the matter can be pursued further.
Very few complaints are referred to the commissioner by Members of this House. When they are, the commissioner notifies the noble Lord in question and the complainant of the procedures for referral laid down under the 1967 Act and suggests that the complaint should be made through an appropriate Member of Parliament. There is a procedure whereby Members of your Lordships' House can be involved if they have received the complaint.
Why am I being difficult on behalf of the Government about this? It is because I think that there is a matter of principle here. The procedure for referring through a Member of the House of Commons in part recognises the unique relationship which exists between a Member of another place and a constituent. This relationship ensures that referral of a complaint to the commissioner by a Member of another place is a right which is available to everyone in the country. Although it is true, as the noble Lord, Lord Winstanley, said, that there are occasions when individuals may approach their Member of Parliament and find that in the end they need to put their complaint through another Member of the other House, nonetheless that matter of principle was in the mind of the Select Committee which did not make the recommendation being made by the noble Lord. That is in the mind of the Government and it is basically for that reason of principle that I feel I must resist the amendment.
I am most grateful to the noble Lord for his careful, thoughtful and considered reply. However, I am bound to say to him that I do not regard it as altogether satisfactory. He has explained that there is a procedure whereby this hurdle can be overcome. There is a procedure only because the hurdle exists. The noble Lord explained the procedure. An aggrieved person writes to a Member of your Lordships' House and that Member decides that it is a case where clearly there has been maladministration and that the most simple remedy for this person is to take the matter to the parliamentary commissioner. If he then sends the case himself to the parliamentary commissioner, there is a procedure, because the parliamentary commissioner has to write back and say that he is very sorry but he is not allowed to take complaints direct from a Member of the House of Lords, only from a Member of the House of Commons. Then, having informed the Member of that, he perhaps writes to a Member of the House of Commons to suggest that he puts the case. Of course there is a procedure. The procedure has been devised by time because of the existence of this constraint. My argument is that the constraint need not necessarily exist.
We have a parallel in a sense. Normally there is a presumption that a complaint to the local commissioner for administration should be put through a councillor. However, there is a provision in the Act whereby the local commissioner has the discretionary power to look at a complaint which is referred directly to him if he considers, in the circumstances, that it is understandable that the 972 complaint has been referred directly to him. Indeed, the complaint could be about the councillor to whom the person might have been expected to put the complaint.
Therefore, if we can have an exception in relation to the local commissioner, why do we need to have this particular constraint here? The noble and learned Lord, Lord Silkin, has an amendment to remove those constraints and allow complaints to go direct to the commissioner from individual complainants. It would not be appropriate for me to discuss that now but I can see that one of the arguments against it would be that it might open the floodgates. That does not mean I accept that argument, but it is an argument that might be advanced against it. However, my amendment does not open any floodgates. It merely recognises what is increasingly recognised in Britain today—that we have two Houses of Parliament. It is often forgotten. I am not suggesting that our Chamber is constituted in the way that everyone wishes. But most of us believe that a second Chamber is necessary and that without one we would be in grave difficulties. A second Chamber is a safety check for society and for the constitution in general. It perhaps prevents the pendulum swinging too wildly. Most of us accept that a second Chamber of government is a necessity and a valuable safeguard.
We have taken great pains recently to persuade the public to understand that there are two Houses of Parliament. We have taken certain steps in this House to help people to understand how this House of Parliament actually works. With the television experiment—it is no longer an experiment; it is reality—there is increasing understanding throughout the whole community of the way in which this House works. There is also increasing understanding of the fact that there are noble Lords in all parties in this Chamber whose own personal experience and knowledge are valuable. Many individual citizens seek the help of those noble Lords. If they seek their help on certain matters, why should they not be permitted to seek their help on this matter? If the noble Lord decides that the appropriate remedy for a complainant is through the parliamentary commissioner, why should he not have the power to do that?
I listened carefully to the noble Lord's reply. I understood it, but it appeared that the Minister justified the existence of this constraint merely by explaining that there was a procedure to dodge it. It would be much better to remove the constraint altogether. I do not intend to press this amendment at the moment but I believe that there are noble Lords in this Committee who would support me if I were to return to the matter at another stage of the Bill. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.15 p.m.
§ Lord Silkin of Dulwich moved Amendment No. 3:
§ Insert the following new clause:
("Widening of sources of complaint.
After the passing of this Act the Commissioner may exercise his power to investigate under section 5 of the 1967 Act (Matters subject to investigation) where a written complaint has been made to him by a member of the public; and if the complaint has not been made to a member of the House of Commons and has not been referred to the Commissioner by a member of that House the
Commissioner shall inform such member of that House as he thinks appropriate that he intends to investigate the complaint; and sections 6(3) and 10(1) of the 1967 Act shall be construed accordingly.").
§ The noble and learned Lord said: Listening to the debate on the previous amendment proposed by the noble Lord, Lord Winstanley, I became more than ever convinced that my amendment is sensible. It embraces much of what the noble Lord said because under my amendment it would be open to a Member of this House to bring to the attention of the parliamentary commissioner complaints made to that Member.
§ However, my amendment goes further. It would formally ratify the procedure to which the noble Lord, Lord Belstead, referred by allowing a citizen to make his complaint direct to the parliamentary commissioner. The parliamentary commissioner would then be empowered—I emphasise "empowered'—to accept the complaint if he thought fit; in other words, if the floodgates were not opened up and he thought there was merit in the complaint. But he would be required by the statute to do that which in practice he does already, or nearly so. He would have to inform a Member of Parliament. It would not necessarily be the Member for the constituency of the complainant—though that would be the normal procedure—but a Member of the other place "as he thinks appropriate". There, I have borrowed the words that appear in Section 10(1) of the existing 1967 Act which requires the parliamentary commissioner to make a report to the Member who referred the complaint or, if he is no longer a Member of that House, to such Member of that House as the commissioner thinks appropriate and inform him. In that, I have followed the words of the existing statute. The difference between the procedure in this amendment and the present procedure in practice is the difference between seeking permission and informing.
§ The Government may well take the view, as I do, that there is no real distinction between the two. I simply cannot see a Member of Parliament who is asked by the commissioner whether he will agree to the commissioner accepting a complaint direct saying, "No, I do not give my consent." Of course he will give his consent. In the rare circumstances where for some reason—perhaps a personal reason connected with the identity of a complainant—the Member of Parliament for his constituency says, "No, I do not give my consent" there are, as we know, over 600 other Members of Parliament whom the commissioner is able to approach and say, "Will you please forward this complaint to me", or, in the case of the amendment, such Members or any one of them can be informed by the commissioner. Therefore, in practice we are not attempting anything very much in this amendment.
§ In replying to the amendment of the noble Lord, Lord Winstanley, the Minister suggested that it was a matter of principle that these complaints should go through a Member of Parliament. I do not know whether that is the view of the Select Committee, or whose view it is, but I do not believe that it is the reason why the provision was made in 1967 requiring 974 the complaint to be made in the first instance through a Member of Parliament or any Member of Parliament. I mentioned on Second Reading that I took part in the debates on the Bill as it went through the other place and the argument which was always put forward for that restriction was that in this country, at the beginning of the new system of the ombudsman—and the parliamentary commissioner was the first of the various commissioners that were established—nobody knew whether or not the floodgates would open and the intercession of a Member of Parliament was to avoid, as far as possible, that happening.
§ It is interesting that when we came to the health service commissioner—who is today the same person as the parliamentary commissioner but dealing with health service matters and not with maladministration by government departments—Parliament did not think it necessary to impose such a restraint, and that restraint does not apply. A citizen can go direct to the health service commissioner, who, as I said, is the same man as the parliamentary commissioner, but he still cannot go direct to the very same man in his capacity as parliamentary commissioner. I confess that I do not follow what basic principle is involved in that distinction.
§ The noble Lord, Lord Winstanley, has already referred to the position of the local commissioners. Therefore, even though the Select Committee did not come forward with this proposal—understandably, and no doubt having in mind the certain jealousy of the House it represents—I hope that the Government will take the view that it is a very small change from the practical change which was, in effect, forced upon the parliamentary commissioner by the fact that so many people wrote direct to him and he felt that it was absurd to reply saying, "I cannot deal with this until you go through a Member of Parliament". Therefore, he put the matters to Members of Parliament himself. It is a very small change and it seems to me it would be unnecessarily rigid for the Government to refuse to accept it. I very much hope that this time they will accept. I beg to move.
§ Lord Belstead
It is absolutely true, as the noble and learned Lord says, that in practice this amendment would do little more than formalise the current ad hoc arrangements for handling complaints from the general public submitted to the commissioner. The current arrangements seem to work satisfactorily, but perhaps that is rather a lame answer to a very well, characteristically expertly presented case.
Perhaps I may draw one or two other points to my aid in resisting the amendment since, for a reason which I shall come to finally, I feel it needs to be resisted. The first of the supplementary reasons which I would call to my aid is that the Select Committee took the view when it reviewed access to the commissioner in 1978 that direct access would be of no great benefit to the public. I know that is some time ago. The noble Lord said "Look at the health service" but, when one comes to look at the health service, the citizen cannot go direct the the health service commissioner. With respect, the complaint must go first to the local health authority for consideration. As the noble and learned Lord well knows, the situation 975 in the health service is a little different from the complaints coming to the parliamentary commissioner, in the sense that the complaints coming through the hospital service go to the commissioner eventually. The family practitioner service is in a rather different position.
§ Lord Silkin of Dulwich
If the noble Lord will allow me to intervene, I accept that. But surely the Minister would agree with me that the best practice, at any rate in relation to a complaint against a government department or one of the new bodies which will be added to the list is for the complaint to go first of all in exactly the same way to that body for a reply. It is only if the reply is unsatisfactory in the normal way that a complaint is then made to the parliamentary commissioner. In the same way as if the reply from the body complained about is unsatisfactory, the complaint goes to the health service commissioner direct.
§ Lord Belstead
With respect, I am not entirely sure I agree. That is why I added the last few words that the position in the health service as far as the health service commissioner is concerned is rather different from the position as far as the parliamentary commissioner is concerned. The parliamentary commissioner covers a very, very much wider area.
The noble and learned Lord has also called in aid the point which was made by the noble Lord, Lord Winstanley, about the local commissioner. I hope noble Lords will not think I am being evasive when I say that I am well aware of the Widdicombe recommendation, but we must wait for the Government response on Widdicombe, which it is for my right honourable friend the Secretary of State for the Environment to give.
Not only should decisions on Widdicombe not necessarily be considered to be a precedent for the parliamentary commissioner, but one needs to bear in mind that, in geographical terms, the position of the individual citizen vis á vis local government is rather different from that of the individual vis á vis a government department. Geographically the individual citizen stands much closer to local government: he can go and talk to them, even if he is preparing a complaint, whereas the individual citizen may be hundreds of miles away from a government department.
In addition, with respect to the noble and learned Lord, there is a defect here, in that the amendment does not contain a provision for the parliamentary commissoner to consult the complainant before referring the complaint to another place. That could be put right if the Government were accepting the amendment.
I come to the final point, and I fear we do not agree on this. I think this is a matter of principle, I hesitate to say this, as the noble and learned Lord was present in another place and took a leading part when the legislation was going through another place and I was not present. I only know this at second hand, but my understanding is that Parliament took the view that it was right that the individual citizen should be able to avail himself or herself of a right which everyone in the country has—that if the individual citizen feels he has 976 a complaint of maladministration against a government department he can, as the 1967 Act provides, go to his Member of Parliament, because everybody has a Member of Parliament. I feel the Government would not wish in this Bill to breach that principle.
It is because of that final reason that I am so resistant to what is otherwise a very reasonable amendment.
§ Lord Elwyn-Jones
I recollect the debates in another place on this matter in which I also took part. We were worried at that time about the floodgate fear—the fear that a flood of applications would come in from the individual citizen and that MPs might resent it and feel that they would be bypassed. However in practice what has been the experience of countries like New Zealand which have allowed direct access, as I believe to be the case, from the citizen to the ombudsman? We drew a great deal on the experience of New Zealand when we evolved this concept of the ombudsman, so I am not asserting that it has worked very well, but, if the Minister had any information on that, it might be of value and of great interest. Has there been such an indication that there would be a flood, if the citizen were to write directly to the ombudsman or approach him directly, I wonder? I doubt it very much.
I think that my noble and learned friend Lord Silkin has rendered a service in opening this issue and it would be interesting to hear of the experience in other countries. I am bound to say, very cautiously, that as between one MP and another there is a good deal of difference. There is a certain reluctance of some constituents, so I am told, to make an approach through the Member of Parliament when an intelligent constituent with a grievance can perfectly well put it forward himself by direct approach. However, I may be treading on very dangerous ground in advancing that argument.
I think this deserves to be looked at again, particularly in the light of experience in other countries of similar standards of democracy, education and good public practice.
I have no wish to prolong the discussion but from this Bench I should like to confirm every word which the noble and learned Lord has said regarding the debates and discussions in 1967, in which I too took part. I am absolutely certain that the considerations which led another place at that time to take this decision are no longer valid. It was taken because of the fears of what might happen rather than what has actually happened and because of feelings about the rights of MPs. The fear was that as a Member one was suddenly going to be bypassed. I believe the objections to this procedure advanced at that time are certainly not valid now and would not be advanced now were the Bill to be brought in in a new situation.
§ Lord Belstead
I am grateful to the noble Lord, Lord Winstanley, for his intervention and also to the noble and learned Lord, Lord Elwyn-Jones, who put three points to me. The first was: are the Government really saying that the floodgates would be opened? As I understood the noble and learned Lord, that was a fear in the mind of the Government as they were legislating 977 in 1967 and it was one of the reasons—although there was also the reason of principle, as I understand it—why this matter was confined to complaints through Members of another place. I have received no advice that it is believed that the floodgates would be opened. On the other hand, as I understand it, we have no evidence that the current arrangements operate other than satisfactorily, nor do we have evidence—except the eloquent evidence of this evening—that there is great pressure for change from the general public so far as that is concerned.
The second question that the noble and learned Lord put to me concerned what happens in other countries and in particular New Zealand. I have to admit that I do not have that information with me this evening. It occurs to me that the population of New Zealand is a little different from the population of this country. Therefore I think that it is fair for me to argue that the effects of a direct complaints system in New Zealand would be rather different in New Zealand than they would be here. If the noble and learned Lord will allow me, I shall try to obtain more information and write to both him and the noble Lord, Lord Winstanley, on this point before the next stage of the Bill.
That leads me to the third point that was made by the noble and learned Lord. He said that frankly there was a thought in the minds of those legislating, and maybe of Members in another place generally when the original Bill was passing through Parliament, that this was the preserve of Members in another place. I confess that the Government feel that. I must be honest and admit that I should be very hesitant indeed about wanting to urge within the Government that in this Chamber we should make such a change to the parent legislation. Perhaps the Committee will think that I should not say that and that it is not right for me to do so; nevertheless I am hesitant on that point.
I hope that the Committee will allow me to write about the situation in New Zealand, and I ask the noble and learned Lord whether he will consider withdrawing his amendment.
§ 8.30 p.m.
§ Lord Silkin of Dulwich
I listened with very great care to the Minister's remarks. I hope he will forgive me when I say that of all the points that he made the last was the only one that I found had any great force in it and the question of whether we might be thought to be trespassing on the preserves of a Chamber which at the moment has a monopoly rather exercised my mind before I put down this amendment. Certainly that is so after the noble Lord, Lord Winstanley, withdrew his amendment.
If I withdraw my amendment at this stage, as I intend to do, without prejudice to the future, I cannot help feeling that it may perhaps give an opportunity to the Government to consult the Select Committee on whether it has any strong views of the kind suggested by the Minister. Indeed, the parliamentary commissioner himself may have a view—I have a fairly strong recollection that his predecessor did—about the question of the intercession of a Member of Parliament. It becomes a little unreal at times.
978 When I was in the other place from time to time I received letters from people who were not my constituents saying, "I should be very grateful if you would take this matter up with the parliamentary commissioner". I would write back and say, "You are not my constituent. Why don't you take it to your own Member of Parliament?" Back would come the reply: "I have been to him before but I don't trust him", or "He has a different political persuasion than I have and I do not want to go through him", and so on. That is why, when the Bill was passed into law, it did not state "the complainant's Member of Parliament"; it simply said "a Member of Parliament". There are over 600 of them and any one of them can be invited to take up the matter.
Having said that, I agree with the remarks of my noble and learned friend Lord Elwyn-Jones about other jurisdictions. I may be quite wrong, but I believe that we are the only country that has the ombudsman system with the fence or sieve of the Member of Parliament; but that matter can be looked at and reviewed by those who advise the Minister. If it is so, and I appreciate that this concerns different countries and different people, at least it is some evidence that the principle on which the Minister rests is not considered to be a principle elsewhere and also that the flood has not made it necessary for such a filter to be introduced.
I think that this point is perhaps the most important matter that we shall be discussing and I am sure that it will be given very careful attention before the next stage of the Bill. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Lord Belstead moved Amendment No. 4:
§ After Clause 2, insert the following new clause:
("Delegation of Parliamentary Commissioner's functions to officers.
At the end of section 3(2) of the 1967 Act (which provides that any function of the Commissioner under the Act may be performed by any officer of the Commissioner authorised for that purpose by the Commissioner) there shall be added the words "or may be performed by any officer so authorized—
§ The noble Lord said: When the original legislation establishing the health service commissioners was passed, there was a provision that a health service commissioner could authorise not only his own officers but those of any other health service commissioner or the parliamentary commissioner to act on his behalf, thus allowing the most effective use of the total staff. For example, if a joint investigation were required into a complaint which turned out to relate to both jurisdictions, it might be sensible for the same staff to work on both aspects of the complaint.
§ We believe that the Bill provides a useful opportunity to introduce the parallel provision by allowing the commissioner, when he considers it appropriate, to delegate authority to staff on the health service side to carry out PCA functions. I beg to move.979
§ Lord Silkin of Dulwich
I am very sorry but I am not sure whether the Minister is moving Amendment No. 4 separately from the others?
§ On Question, amendment agreed to.
§ Lord Belstead moved Amendment No. 5:
§ After Clause 2, insert the following new clause:
("Consultation and disclosure of information.
.—(1) In section 11 of the 1967 Act (provision for secrecy of information), the following subsection shall be inserted after subsection (2)—
(2A) Where the Commissioner also holds office as a Health Service Commissioner and a person initiates a complaint to him in his capacity as such a Commissioner which relates partly to a matter with respect to which that person has previously initiated a complaint under this Act, or subsequently initiates such a complaint, information obtained by the Commissioner or his officers in the course of or for the purposes of investigating the complaint under this Act may be disclosed for the purposes of his carrying out his functions in relation to the other complaint.".
(2) The following section shall be inserted after that section—
|"Consultations between Parliamentary Commissioner and Health Service Commissioners.||11A.—(1) Where, at any stage in the course of conducting an investigation under this Act, the Commissioner forms the opinion that the complaint relates partly to a matter within the jurisdiction of the Health Service Commissioner for England, Wales or Scotland, he shall—|
|(a) unless he also holds office as that Commissioner, consult about the complaint with him; and|
|(b) if he considers it necessary, inform the person initiating the complaint under this Act of the steps necessary to initiate a complaint under Part V of the National Health Service Act 1977 (Health Service Commissioner for England and for Wales) or, as the case may be, Part VI of the National Health Service (Scotland) Act 1978 (Health Service Commissioner for Scotland).|
|(2) Where by virtue of subsection (1) above the Commissioner consults with the Health Service Commissioner in relation to a complaint under this Act, he may consult him about any matter relating to the complaint, including—|
|(a) the conduct 'of any investigation into the complaint; and|
|(b) the form, content and publication of any report of the results of such an investigation.|
|(3) Nothing in section 11(2) of this Act shall apply in relation to the disclosure of information by the Commissioner or any of his officers in the course of consultations held in accordance with this section.".|
(3) In section 118 of the 1977 Act (consultations between Health Service Commissioners and Local Commissioners)—
(a) the following subsection shall be inserted after subsection (1)—
(1A) Where, at any stage in the course of conducting an investigation under this Part of this Act, the Commissioner conducting the investigation forms the opinion that the complaint relates partly to a matter which could be subject of an investigation under the Parliamentary Commissioner Act 1967, he shall—
(1B) Where, at any stage in the course of conducting an investigation under this Part of this Act, the Commissioner conducting the investigation forms the opinion that the complaint relates partly to a matter within the jurisdiction of another Health Service Commissioner (whether under this Part of this Act or under Part VI of the National Health Service (Scotland) Act 1978), he shall—
(4) In Schedule 13 to that Act (provisions as to investigations by Health Service Commissioner for England and for Wales), the following paragraph shall be inserted after paragraph 16—
16A.—(1) Where the Commissioner also holds office as a relevant commissioner and a person initiates a complaint to him in his capacity as such a commissioner which relates partly to a matter with respect to which that person has previously initiated a compliant to him in his capacity as the Commissioner, or subsequently initiates such a complaint, information obtained by the Commissioner or his officers in the course of or for the purposes of the investigation under Part V of this Act may be disclosed for the purposes of his carrying out his functions in relation to the other complaint.
(2) In this paragraph "relevant commissioner"—
(5) The following section shall be inserted after section 95 of the National Health Service (Scotland) Act 1978—
|"Consulting other Commissioners.||95A.—(1) Where, at any stage in the course of conducting in investigation under this Part, the Commissioner forms the opinion that the complaint relates partly to a matter which could be the subject of an investigation under—(a) the Parliamentary Commissioner Act 1967; or|
|(b) Part V of the National Health Service Act 1977,|
|he shall, if he considers it necessary, inform the person initiating the complaint of the steps necessary to initiate a complaint under the Parliamentary Commissioner Act 1967 or, as the case may be, Part V of the National Health Service Act 1977.|
|(2) In the circumstances described in subsection (1), the Commissioner shall consult the Parliamentary Commissioner or the Health Service Commissioner for England or for Wales, as appropriate, about the complaint (unless he also holds office as that other Commissioner) and such consultation may extend to any matter relating to the complaint, including—|
|(a) the conduct of any investigation into the complaint; and|
|(b) the form, content and publication of any report of the results of such an investigation; and the application by section 95 of section 11(2) of the Parliamentary Commissioner Act 1967 shall not extend to the disclosure of information by the Commissioner or any of his officers in the course of such consultations.|
|(3) Where the Commissioner also holds office as any of the other Commissioners mentioned in subsection (2) and a person initiates a complaint to|
§ The noble Lord said: This amendment is designed to fulfil an undertaking given by my right honourable friend the Minister of State in another place, which I repeated in this Chamber, that some provision should be made for consultation and exchanges between the parliamentary commissioner and the health service commissioners if the offices were not all held by a single person, as they are at present. Perhaps I may stress that the Government do not have in mind that there should be a change to the present plan of having the same man responsible but are simply bringing this measure forward as what they believe to be a prudent procedure. The only trouble is that the prudent procedure has turned into an immensely long amendment.
§ Very briefly the amendment has the following effect. Subsections (2), (3) and (5) so far as Section 95A, subsections (1) and (2) are concerned, provide for consultation and the exchange of information between commissioners where offices are held separately, and they deal in turn with the parliamentary commissioner, the Health Service Commissioners for England and Wales and the Health Service Commissioner for Scotland. Each subsection provides that if the relevant commissioner receives a complaint that seems to him to involve the responsibilities of another commissioner, he should consult the other commissioner about the complaint and if necessary inform the complainant of the possibility of making a second linked complaint. The commissioners would then be able to co-operate over the further conduct of the investigation, and that is provided for as well.
§ There is a little more to it than that. There are the remaining subsections, subsections (1) and (4) and Section 95A(3) in subsection (5), which relate to the present use of information when the different offices of commissioner are held, as they are, by a single person. I hope that I do not need to spell out the effect of these subsections. They simply have very much the same effect as regards the exchange of information when that situation occurs. This is all contained in what is an exceedingly long amendment, for which I must apologise, and which I now beg to move.
Lord Silkin of Dulwich moved, as an amendment to Amendment No. 5, Amendment No 6:
In subsection (1), in the inserted subsection (2A), line 8, after ("may") insert ("with the consent of that person").
§ The noble and learned Lord said: With the leave of the Committee, it may be convenient to take Amendments Nos. 6, 7 and 8 together. They all raise the same point. I begin by echoing what the Minister said and express my regret that what seemed to be in the other place and earlier here a very simple matter should apparently take three pages of the statute book to give effect to it. It is unfortunate. I never like to hold 982 myself out as being better at parliamentary drafting than the parliamentary draftsmen, but one wonders whether it could not have been reduced to simpler language.
§ The amendments are intended not to raise some great point of principle, because in a sense that has already been given away in earlier legislation as between the health service commissioner and the local commissioner, but to query whether it is right that information deriving from a complaint taken by the commissioner, in one capacity the health service commissioner, should, as it were, be passed to the second gentleman or a different gentleman, if it should happen to be so, investigating a different complaint in a different capacity. On the face of it, that seems to be going against the rules of privacy to which all governments in recent times have given effect.
§ The sort of case that one has in mind is a complaint made to the health service commissioner as a result of which he discovers that at some previous time the complainant had been a psychiatric patient. This may affect the mind of the same gentleman acting as parliamentary commissioner dealing with some other complaint of the complainant as to the reality of a complaint that he makes. Is that right? That is the point that I put to the Government rather than dogmatically asserting one view or another.
§ It does not look as though the particular point has been considered before. At any rate, it did not come up in the debates in the other place or in the reports at which we are looking for the purposes of the Bill. I wonder whether it has been considered; if so, whether any view has been taken about it or whether, as would be perfectly natural—I would not complain—it has simply been overlooked. If it has been considered, no doubt the Minister will give a view about it. If it has not been considered, no doubt he will look at it between now and the next stage.
§ Lord Belstead
The amendments of the noble and learned Lord, Lord Silkin of Dulwich, refer to the case where the commissioner is, as he is at present, holding all the positions in the person of one man. The government amendments make clear that the commissioner not only can hold information jointly in carrying out his offices but may also use it. I say that only because I rather slurred over the effect of the last part of our amendments.
The noble and learned Lord is saying to the Government: but have the Government thought of the fact that some confidentiality is needed so far as the complainant is concerned? If I may say so, there are three matters here. First, the complainant will have lodged both complaints with the commissioner, will presumably be anxious to see them pursued and can be presumed to be willing to be wanting to co-operate fully to ensure this. That of course does not prove the matter. What the noble and learned Lord has said remains to some extent open.
In answer to the main thrust of the noble and learned Lord's remarks, I stress that we are not discussing open publication here. The noble and learned Lord will recall that the disclosure of the information is only to those directly involved and to the extent necessary to carry forward the investigation.
983 Indeed, the commissioner's reports are well vetted before publication to avoid publication of sensitive material or identification of the complainant. Thirdly, however, with respect, I know that administrative convenience is never a good argument, but this would unnecessarily complicate the process of investigation. It would require the commissioner to seek the consent of the complainant at a number of stages in the investigation as new information becomes available.
That is another, though subsidiary, reason why with respect I think that the amendment—though I well understand why the noble and learned Lord has brought it forward—is unnecessary.
§ Lord Elwyn-Jones
I am concerned about the element of difficulty in added time that would be involved in what my noble and learned friend proposes; namely, the requirement of consent in this odd situation where, almost inevitably, the rule for the protection of privacy is being overruled by virtue of the same man performing different functions. I wonder whether the suggestion of requiring consent would complicate matters unnecessarily, ultimately possibly to the detriment of the person complaining. Perhaps that might be thought about.
§ Lord Belstead
I shall look at what the noble and learned Lord, Lord Elwyn-Jones, has said on the matter before we come to the next stage of the Bill.
§ Lord Silkin of Dulwich
I am grateful for that. I have done what I intended. In consideration of what the Minister has said—that this will be looked at in general before the next stage, although I understand of course that he gives no undertaking—I feel that my duty has been done. I beg leave to withdraw the amendment to Amendment No. 5.
§ Amendment to the amendment, by leave, withdrawn.
§ [Amendments Nos. 7 and 8, as amendments to Amendment No. 5, not moved.]
§ On Question, Amendment No. 5 agreed to.
§ Clause 3 [Reports by Health Service Commissioners: further provision]:
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Baroness Robson of Kiddington
First, I apologise to the noble Lord, Lord Belstead, and to the Committee for my inability to be present at Second Reading. I was unavoidably detained elsewhere. Had I been present, I should have made a speech indicating my desire to increase the powers of the health service commissioner to investigate complaints regarding clinical judgment.
It seems to me that Clause 3 is the only clause that deals with a slight extension of the powers of the health service commissioner. As I was not present at Second Reading, I did not feel I could table an amendment in Committee, but I propose to do so on Report. I felt that it was correct that I should so inform the Minister. I do not of course expect an answer today; neither do I object that Clause 3 stand part.
§ Lord Belstead
I am grateful to the noble Baroness for giving me warning of her intention to table an amendment regarding clinical judgment. I am aware that this matter was debated at some length in another place, and I was interested that it was not to be debated here. My interest has been met with clarification because it clearly will be debated, and the noble Baroness has kindly so warned me. I will endeavour on behalf of the Government to be ready to reply on that occasion.
§ Clause 3 agreed to.
§ Remaining clauses agreed to.
§ Schedules agreed to.
§ House resumed: Bill reported with the amendments.