Prisons Ombudsman: Terms of Reference (Hansard, 5 June 1996)

§ The Minister of State, Home Office (Baroness Blatch)
My Lords, my right honourable friend the Home Secretary has not made the Prisons Ombudsman's terms of reference more restrictive; he has clarified them.

§ The Earl of Longford
My Lords, I congratulate the noble Baroness who has, as usual, defended with much charm the totally indefensible; in fact, the ludicrous. Is she aware that under the new plans the ombudsman will not be allowed to criticise any decision made by a Minister? Moreover, is she aware that under the new plans the ombudsman will not be allowed to criticise or discuss any advice given by civil servants to Ministers? Is the Minister further aware that the ombudsman himself has expressed much regret before the Select Committee at these very significant changes?

§ Baroness Blatch
My Lords, the Prisons Ombudsman's task is to consider grievances from prisoners who have failed to obtain satisfaction from the prisoners' complaints system. Indeed, the post of Prisons Ombudsman was created by this Government as a result of the Woolf Report which followed the Strangeways riot. While there was no direct criticism of the complaints system itself, it was thought that a further layer of independent scrutiny would be helpful. That was why the ombudsman was appointed. I am aware that the ombudsman has made one or two complaints; for example, he said that 6 per cent. of cases are not easy to investigate because he believes that his work is thwarted. We have asked him for evidence to support that claim, but to date we have not received it. He also believes that sometimes the files are incomplete or even missing. We have asked him for evidence to substantiate that claim and so far he has failed to present it.

§ Lord Lester of Herne Hill
My Lords, does the Minister agree that in clarifying Sir Peter Woodhead's powers three restraints have been imposed in his previous powers: first, restricting his access to 1250 documents, making him dependent on what the Prison Service chooses to hand over to him; secondly, removing his right to investigate or even check any decisions made by Ministers or advice given to them; and, thirdly, requiring him to provide draft reports for checking by the Prison Service before publication? Does the Minister further agree with the Conservative Member of Parliament, Michael Lord, who commented: It is now a misnomer to describe him as an ombudsman at all in view of his lack of independence. He is really a complaints investigator who does as much as the Home Office wishes him to do"?

§ Baroness Blatch
My Lords, the noble Lord is wrong in the question that he has just put to me. Access to documentation is not restricted. The Director General of the Prison Service will ensure that the Prisons Ombudsman has unfettered access to Prison Service documents, including classified material, and to information entrusted to the Prison Service by other organisations but excluding advice or reports to Ministers which invite or result in ministerial decisions. It is well known to this House that ministerial decisions are subject to judicial review and the process by which they are taken is subject to the Parliamentary Commissioner as another form of scrutiny. So the Home Secretary and Ministers are subject to scrutiny.
As regards ministerial advice, all advice that does not result in a ministerial decision is available to the Prisons Ombudsman as long as it relates to the particular investigation that was within the remit of the Prisons Ombudsman.
As regards the report from the Prisons Ombudsman, it is only fair that if there are criticisms of the Prison Service the service should be allowed at least to see them in advance and to have some view about the accuracy of the reports.

§ Lord McIntosh of Haringey
My Lords, is it not the case that the answer which the Minister has just given is directly contradicted by the letter which the Home Secretary wrote to the Prisons Ombudsman on 7th May? He said: On the question of access to documents to determine eligibility (paragraph 9) I cannot agree that you need unfettered access to papers for this purpose". Is that not—and will not Hansard show it to be—in direct contradiction to what the Minister has just said? Whether or not the changes in the terms of reference are clarification, as the Minister claims, or real changes, as the ombudsman claims, is it not the case that the ombudsman wrote to the clerk to the Select Committee of the Commons on 29th April this year saying: Much of my attention over the past 14 months has been on resolving the differences in interpretation about my terms of reference with the Prison Service and other bodies"? If that is so, surely at the very least that is an example of bad management by the Home Office and the Home Secretary?

§ Baroness Blatch
My Lords, I cannot agree with the noble Lord. In my answer to the noble Lord, Lord Lester, I said that the Prisons Ombudsman has unfettered access as long as the information he seeks 1251 is directly relevant to the case he is investigating. The ombudsman believed that his remit extended to the merits and processes of ministerial decisions. He believed that he did have unfettered access to ministerial advice. He also believed that he could investigate matters which were for the Parole Board. He further believed that he could request information for purposes other than investigation. The noble Lord makes the case very well that the Prisons Ombudsman did have a misunderstanding of his proper remit. The reason that the situation has been clarified is precisely to clear up those points.

§ Lord McIntosh of Haringey
My Lords, I was taught in business that misunderstandings on remit are always the responsibility of the employer and not the employee. If the Minister is right about the relevant documents, who is to decide what is a relevant document and how is the Prisons Ombudsman expected to respond to the invitation which he says has been made to him to give examples of documents that he has not seen?

§ Baroness Blatch
My Lords, it is entirely a matter for the Prisons Ombudsman to decide what is relevant. When he has an individual complaint from a prisoner who is deemed to have exhausted the complaints procedure, the complaint will be a very specific one. The Prisons Ombudsman will ask for all relevant papers, and there is an obligation on the Prison Service to provide all the relevant papers. If the Prisons Ombudsman believes that he has not been given the relevant papers, he must complaint about it. To date we are waiting for evidence from him, but so far we have not received it. If he wishes to have access to advice to Ministers which does not result in a ministerial decision, he also has an entitlement to see that. It will be the Prisons Ombudsman who will determine its relevance.

§ Lord McIntosh of Haringey
My Lords, this is a Catch-22 situation. If the ombudsman does not know that a paper exists, how can he tell whether it is relevant?

§ Baroness Blatch
My Lords, if the Prisons Ombudsman is investigating a specific complaint from a prisoner and if the prisoner has exhausted all avenues for having the complaint investigated by the Prison Service, there is an obligation on the service to provide all the relevant papers on the files. If the Prisons Ombudsman believes that he is not receiving all the relevant information—if he believes that files are missing or that they are incomplete—it is for the Prisons Ombudsman not only to complain to the Home Office but to produce the evidence. So far he has not produced the evidence.

§ Baroness Hollis of Heigham
My Lords, he cannot.