§ 11.32 a.m.
§ Lord Evans of Temple Guiting
My Lords, I beg to move that this Bill be now read a second time.
The legislation that currently provides for three separate ombudsmen is out of date. The three offices are the Commission for Local Administration in Wales, the Health Service Commissioner for Wales and the Welsh Administration Ombudsman. The current legislation does not allow the ombudsmen to deliver the efficient and effective service to which people in Wales are entitled.
The legislation was enacted at a time when it was assumed that a particular service would be the particular, or even exclusive, responsibility of local or central government or the National Health Service. But that is no longer true. There is increasing emphasis now on the provision of services for people through partnerships between different public bodies. In the fields of health and social care, for example, a person's case may be dealt with by a health body working together with a local authority's social services department. But if that person is not happy with some 1430 aspect of a service provided, it may not be easy to identify which of several public bodies is responsible and, therefore, to which ombudsman a complaint should be submitted. We need to remedy that.
However, differences in the legislation applying to each office inhibit the development of a coherent and effective ombudsman's service in Wales that reflects the ways in which public sector service delivery is evolving. The Bill will address that and will allow a properly integrated ombudsman's service to be created.
I shall explain briefly how this Bill has been carefully developed over the past two years. In March 2001, the then Secretary of State for Wales and the Assembly's First Minister jointly announced that there would be a review of public sector ombudsmen services in Wales. Their provisional view was that all of the offices in Wales should be held by the same person. This reflected a recommendation made by the National Assembly Advisory Group in 1998. In December 2002 the Wales Office, working jointly with the Welsh Assembly Government, published Ombudsmen's Services In Wales: Time for change?, a consultation on the principle of bringing these offices together into a unified service led by one person.
That proposal received unanimous support from a wide range of consultees. It was also endorsed by all parties in the Assembly in plenary debate. So, in October 2003, a second round of consultation on the detailed powers and jurisdiction of the new office, entitled A Public Services Ombudsman for Wales: Powers and Jurisdiction, was initiated. I have both documents here and I shall arrange for every noble Lord who takes part in this debate to receive copies of them before the next stage of the Bill.
Meanwhile, as an interim step to achieving the longer term objective of a unified office, the Regulatory Reform (Local Commissioner for Wales) Order 2004 removed a restriction in the Local Government Act 1974, the effect of which was to prevent one person simultaneously holding the three existing offices in Wales. As a result, Mr Adam Peat holds those three offices now.
But as I have said, to create a properly integrated office, the legislation applicable to the three offices needs to be rationalised and brought together into a coherent whole if the benefits of a unified office are to be achieved. That is what the Bill seeks to achieve. It will bring together the offices of the Commission for Local Administration in Wales, colloquially known as the local government ombudsman, the Health Service Commissioner for Wales, the Welsh Administration Ombudsman and filially, when established in 2005, the Social Housing Ombudsman for Wales into a unified jurisdiction led by one person—the Public Services Ombudsman for Wales.
We believe that the Bill's effect will be cost neutral; this is a Bill about creating a coherent jurisdiction, administered by a team which is already working increasingly effectively together, but which now needs the backing of a sound legislative framework. The Bill will provide a modern, flexible and accessible service 1431 for members of the public who wish to complain about most public service providers operating in relation to Wales.
I said "most public service providers", because services delivered under the auspices of the UK Government—for example, social security—will remain subject to the jurisdiction of the Parliamentary Commissioner. But that is an exception to the general principle that, in respect of public services on which people rely in their daily lives, the new ombudsman's office will provide a single channel for receipt and investigation of complaints.
So, local government, within which we include community councils, health bodies, the Assembly itself, and its sponsored public bodies, will all be within, or may be brought within, the new ombudsman's jurisdiction. The Bill provides powers for the National Assembly to amend the list of bodies within the ombudsman's jurisdiction, to reflect changes in the structures of government in Wales. The Bill gives the ombudsman important powers of investigation in his own right, but it also allows him to seek to resolve disputes between complainants and the relevant public bodies without the need for a formal investigation. This is a new provision for Welsh ombudsmen, but it is one that I hope your Lordships will welcome.
The Bill also provides powers to permit the ombudsman to work jointly with other ombudsmen, including the Parliamentary Commissioner and the Health Service Commissioner for England, for the investigation of cross-jurisdictional or cross-border complaints. As noble Lords will know, cross-border provision of services, particularly in health, is not at all uncommon between Wales and England. The Government have sought to facilitate joint ombudsman investigations to cover precisely that situation.
I give notice now that the Government may wish to table a limited number of amendments. We want to consider, in particular, whether the Bill can be improved by express provision to ensure that, in health and social care, the ombudsman can look across the scene at complaints about the consequences of decisions made by social care professionals who are working alongside clinical colleagues. The Bill may also require minor drafting changes. Naturally, I will keep the House informed of that and give the House as much notice as possible of any changes to be made.
I look forward to listening to noble Lords' views on the Bill. If the Bill is enacted, Wales will have a first-class ombudsman service, fit for the 21st century. It is an aspiration that we can all share. I undertake to give the most careful consideration to suggestions for improving the Bill. I would welcome suggestions from all sides of the House.
§ Moved, That the Bill be now read a second time.—(Lord Evans of Temple Guiting.)
§ 11.41 a.m.
§ Lord Roberts of Conwy
My Lords, I am sure that the whole House is grateful to the Minister for presenting this Bill, which has come before us so soon after the Queen's Speech. It was anticipated when we 1432 approved the order on 16 September this year. I expressed then the hope that the Government would find time for the Bill in due course. They have acted promptly, and here we are with the Bill at the start of the new Session.
My first impression is that it is a good Bill, well assembled and well drafted; but I note what the noble Lord said about tabling government amendments. Having delivered that plaudit I must remind myself that it is the constitutional duty of the Opposition to oppose and criticise the Bill if we suspect that it falls short of our highest aspirations.
As I said when the order was debated, we welcome the proposal to rationalise ombudsman services in Wales and to provide a unified service by abolishing the Commission for Local Administration in Wales and the offices of Welsh Administration Ombudsman, the Health Service Commissioner and the Social Housing Ombudsman for Wales, bringing all their functions under the banner of the Public Services Ombudsman. The holder of that office will be appointed by the Crown on the recommendation of the Secretary of State, and totally independent of all bodies subject to his or her jurisdiction. Whether the Assembly should have a role in the appointment process will, I am sure, be discussed at a later stage.
I welcome the fact that advantage has been taken in the Bill to unify the powers and jurisdictions, which previously were varied and whose scope is now uniformly and clearly defined. The ombudsman can investigate a complaint of "injustice or hardship", maladministration or service failure, or an alleged breach of a local authority's code of conduct by an elected member or an employee. The Bill is also clear in its description of the parameters within which the ombudsman can act. Again, we shall look closely at those parameters in Committee.
One would have thought that there would be immediate financial savings from such an amalgamation of functions, but paragraphs 113 and 114 of the Explanatory Notes suggest otherwise. They refer to initial set-up costs and funding being provided by the Assembly and,a modest increase in resources",being required to deal with the manpower effects of the Bill's implementation. I am sure that noble Lords will wish to know in due course what those extra initial costs amount to and what savings are anticipated later.
We have been told that two of the offices—the Welsh Administration Ombudsman and the Health Service Commissioner for Wales—have not been particularly onerous in the past. Again, I quote the Wales Office consultative paper on the order:In practice, these offices together demand only a very modest time commitment with, on a pro-rata basis, an equally modest salary".That is perhaps surprising, considering the extent of their jurisdiction. The administration ombudsman could consider complaints of maladministration against the Assembly and many of its sponsored public 1433 bodies—a euphemism for the Assembly quangos. The health service ombudsman could investigate complaints relating to the provision of services by the NHS and associated bodies. Those services have been subject to much public criticism. So, prima facie, there has been considerable scope for complaint in both spheres, but the public may not have fully understood the extent of their right to complain, the relevance of ombudsmen's services and the consequences of a finding in favour of the complainant.
Possibly there have been occasions when ombudsmen's decisions and recommendations have been disregarded by the guilty authorities, and aggrieved persons simply ignored. I have known that to happen, but I am told that it has not occurred in the past five years. That is to devalue the ombudsman's role and create an intolerable situation. I hope that the Bill and the stronger ombudsman will prevent such occurrences. It is to be hoped that the Bill will improve the public's understanding of their rights and bring the ombudsman's services and possible remedies closer to the people. We certainly hope that there will be no diminution of ombudsman activity when the new unified service comes into operation.
As the Minister said, at least the principle underlying the Bill has its antecedents in a recommendation made to the Secretary of State for Wales as far back as 1998, when the National Advisory Group recommended amalgamation of ombudsmen services. Since then, there has been extensive consultation and a variety of papers and discussions. We are grateful for the Minister's promise to supply us with copies of those documents. In my experience, it is not easy to get hold of such documents: they should be readily available in the Printed Paper Office or the Library when we are involved in the provision of primary legislation related to those matters. The fault, I hasten to add, does not lie with our servicing bodies in this House, which do their level best to get hold of such material. I suspect that there is, and has been, a hold-up at the Assembly end. I have made the point and shall not hammer it further, but simply say that it is crucial that all relevant public Assembly documents are available to us while this Parliament has responsibility for scrutinising primary legislation applicable to Wales.
The ultimate justification for the Bill and the provision of a unified ombudsman service is that times have changed since the establishment of the separate ombudsmen services under different Acts of Parliament, and there is now more emphasis on joined-up services, provided through partnerships between public bodies.
As the Wales Office consultation paper on the order pointed out:An individual citizen may therefore have dealings with several different public bodies in relation to a particular case. It follows that if an individual is dissatisfied about some aspect of a service provided, it may not be easy to identify … to which ombudsman to submit a complaint".1434 Ombudsmen services are first and foremost for the benefit of complainants and it is right that their interests should be the primary concern throughout the Bill. This we shall test at various stages in Committee.
There is an element of expediency behind the Bill. We understand that three of the offices referred to were due to fall vacant last year, thus providing an ideal moment for amalgamation. That amalgamation has now taken place, and the function of the Bill is to regularise and define the position statutorily. We welcome the Bill and shall give it a fair wind.
We look forward to the later stages of the Bill, when we shall probe some of the detail in the hope that we, like the Government, can improve upon it.
§ 11.51 a.m.
§ Lord Prys-Davies
My Lords, I shall not burden the House with a long speech, but I want to say that I warmly welcome the Bill, which has been so helpfully explained by my noble friend on the Front Bench. Perhaps I may also add a word of thanks to my noble friend for arranging the meeting held on Tuesday last in the famous Gladstone Room with the Wales Office Minister, the National Assembly Minister and the Assembly lawyers and officials. All the trouble they took and the help that they gave was greatly appreciated.
The meeting also provided an opportunity to put points to both Ministers for them to answer, and possibly to consider further. But I fully support the point made by the noble Lord, Lord Roberts of Conwy, that all the documents relating to legislation to come before this House which affect Wales and the Assembly should be available in our Library.
Although the subject of the Bill may lack glamour, it makes up for it in importance. We live in an imperfect world, and the Bill will help a great many people. I am not well up on the number of complaints which are received annually by the three existing commissioners. Perhaps the Minister can give the House some idea of the total number of complaints received last year and the percentage that were found to be justified.
But let us look to the future. By establishing a unified and integrated ombudsman service in place of the three separate existing services, the Bill will ensure that all complaints, in whichever service they arise, will be investigated in the light of the same principles and the same standards. I believe that the benefit of this reform far outweighs the marginal loss of the specialism of the existing separate services which will inevitably arise and that that more than justifies the small additional costs of setting up the office.
We know that the Bill has the full concurrence of the National Assembly and all the political parties in the Assembly. For me, that is a highly important consideration. I confess that I would find it very difficult indeed to support an amendment which was not acceptable to the Assembly Government.
Having said that, I also agree that it would be pretty remarkable if any department or the Assembly had managed to produce a Bill, let alone one of some 1435 45 clauses and seven schedules such as we have before us, which did not stimulate discussions and amendments designed to improve it. Even a good Bill can be made better. I am sure that in the course of this short debate today we shall hear a number of very interesting suggestions as to how the Bill can be improved. I am also sure that our Minister is a listening Minister.
I very much hope that the Wales Office Minister will study in detail the Hansard report of this debate and possibly bring forward amendments additional to the ones that the Assembly has in mind. I found it disquieting that the ombudsman should be appointed for a fixed term of 10 years. I am not sure whether that matter can be looked at again.
I also found it surprising that the opportunity has not been taken to give power to the ombudsman to order the payment of damages by an offending authority where the aggrieved citizen has suffered an injustice or hardship as a consequence of maladministration. That point was made very powerfully by the noble Lord, Lord Carlile of Berriew, at the meeting in the Gladstone Room.
I understand from the Welsh Assembly officials that the public authorities that were consulted on this proposal were totally opposed to it. Well, they would be, but I venture to suggest that on this particular issue the Assembly Government were possibly too readily impressed by the response of the public authorities.
I now want to mention briefly two issues which have not been touched on. They both relate to the making of a complaint. After all, the making of a complaint is the start of the procedure.
Clause 5(1) clearly states that the complaint must be in writing. That assumes a degree of articulacy, but some people find it very difficult to put a complaint in writing. Can the Minister confirm whether the ombudsman will have discretion to investigate a complaint which is not in writing? It seems to me that he may have such a discretion when the complaint is referred to him under Clause 2(3). I should welcome guidance from the Minister on that point.
Then there is the separate, and in my view more difficult, issue of the reluctance of an aggrieved person to make a complaint because he or she is afraid of upsetting people to whom he or she may well have to look for services in the future. What can be done about that? I recall that this issue was raised by the late Richard Crossman almost 40 years ago when he was in charge of the DHSS. I well recall Crossman stressing, with conviction and his usual vigour, that a way must be found to surmount that difficulty. The problem has not gone away. Only last week, I heard from a friend of mine of the unwillingness of a relative to lodge a complaint of maladministration because she feared the consequences later on in her life. What can the new ombudsman do about that? I very much hope that he will pay very careful attention to the problem when drawing up the guidance under Clause 31. I believe that Clause 31 has great potential and I hope that the ombudsman will address such problems through Clause 31.
This is a good Bill. I welcome it. But it could be made even better.
§ 12.1 p.m.
§ Lord Roberts of Llandudno
My Lords, I am privileged to follow those who have such a wealth of experience in these matters. Following our debate on 16 September, I am delighted to take part in this discussion today.
The Assembly and this Parliament have already given a general welcome to the integration of the three services, and to the fact that one person will hold the position of public service ombudsman for Wales. He will be empowered to look into so many aspects of possible maladministration—a one-stop shop where people can come to have their complaints dealt with, knowing that they are on the right line and following the right procedure.
When the details of the Bill are examined later, I am sure that a number of questions will he raised. One that has already been mentioned is the appointment of one public service ombudsman for Wales. At the moment it is a Crown appointment. With increasing emphasis on devolution and democratic appointments, is this not an opportunity for the Government to allow the Assembly to make the appointment? The Welsh Assembly already appoints the Children's Commissioner for Wales, so would it not be possible for it to make this appointment as well? There may be an argument against that, but we shall wait to see what can be done and how.
The latest local government report states that 183 allegations were made in the past year, 85 of which were successful. There were 180 allegations made to the Health Service Ombudsman. Those numbers are quite substantial. Can the Minister tell the House whether the staffing arrangements will be financially neutral when the sums are added up and whether the present staff will be sufficient to cope with the large number of allegations that need to be dealt with?
The noble Lord, Lord Prys-Davies, referred to the length of appointment. I am sure that we will discuss whether 10 years is too long and whether the term could be shorter. Would it be possible to extend the term, if required?
In a meeting held the other day, I believe the noble Lord, Lord Carlile of Berriew, mentioned compensation and the awards that should follow from some maladministration appeals. Will the ombudsman now have the power to demand such compensation?
Finally, what is the procedure for an appeal against the ombudsman's decision? Suppose there is unhappiness and people are dissatisfied with what the ombudsman has decided. Where does the appeal lie? Will it be an expensive judicial review that may possibly be totally beyond the means of many people, or will there be another way in which people who feel that matters have not been dealt with to their satisfaction can seek redress?
I am a new arrival in the House, speaking at the birth of a new Bill. I know that mighty oaks from little acorns grow. I am sure that we shall have plenty of time to deliberate the Bill in the future.
§ 12.5 p.m.
§ Lord Rowlands
My Lords, like all those who have spoken in the debate, I support the Bill for two reasons. First, for the reasons set out by the Minister, it is a practical, pragmatic, sensible reorganisation of the ombudsman services in Wales.
My second reason for supporting the Bill is that it is a further step in developing the legislative partnership between the Assembly and Westminster. It was my pleasure to serve under my noble friend Lord Richard on what is now popularly known as the Richard commission. That commission considered the further possible powers that the Assembly might take. One area that was explored was how to expand the legislative competence of the Assembly, even within the terms of the original Government of Wales Act and how the capacity of the Assembly to deal with legislation could accommodate those changes and expanded competencies. Within the existing structures, within the capacity of the Assembly as it stands at the moment with no additional Members and within the ability of the Assembly to deal with legislation, the commission looked closely at whether it could expand the legislative competencies of the Assembly.
In Chapter 13, paragraph 15, a recommendation was made, after some debate, that the UK Government would commit themselves to framing Bills to bestow upon the Assembly the widest possible legislative competence within the devolved areas. I strongly supported, and still do, that approach to legislation in a post-devolution world: that this House and this Parliament should draft legislation—Bills and provisions—relating to Wales to maximise the legislative competence of the Assembly. The commission considered that point in some detail.
Therefore, I find myself applying what I call the Richard test. Does the Bill before this House, or Parliament, containing Wales-only clauses, or a Welsh-only Bill, like this one, pass the Richard test? Is it framed in such a way as to maximise the legislative competence of the National Assembly? I find that this Bill passes the test. When looking at some of the provisions in the Bill, I see an attempt to allow the Assembly subsequent power to amend and alter the provisions in the Bill in the light of experience.
Clause 10(2), for example, will allow the Assembly to add, alter to remove matters that fall within the ombudsman's jurisdiction. It will enable the Assembly to alter Schedule 2 to the Bill, which makes provision for excluded matters. The Assembly will have that important area of legislative competence as a result of the passing of the Bill.
I find pleasure in Clause 27(2), which gives the Assembly powers by order to amend Schedule 3 by adding or removing the listed authorities. However, absolutely correctly, one restriction is placed on that competence in Clause 28(1), which provides that the Assembly cannot remove itself from the jurisdiction of the ombudsman. I am sure that we would all agree that that should not be a possibility.
1438 In Clause 41 the Assembly will have the power to modify the application of the Bill in respect of complaints against former family health service providers and others listed in that provision. That very useful and additional competence will be bestowed upon the Assembly. There is a sort of "catch-all" clause in Clause 42 which empowers the Assembly to amend, repeal or revoke any enactment that is consequential upon the Bill.
So, if one looks through the structure of the Bill and applies my Richard test of whether the framework of the legislation offers the Assembly the opportunity to expand its competencies, I find generally that the Bill passes that test.
Some discussion took place within the Richard commission about this matter. Parliament has traditionally been squeamish, and rightly so—and as a long-standing parliamentarian, I share that view—about passing legislation giving sweeping powers of secondary legislation to the Executive. Rightly, both Houses have jealously tried to guard against that. That does not apply in today's post-devolution system, and the Bill allows the Assembly to amend the legislation further if, in the light of experience, it feels it needs to do so.
The power will not be given to the Executive but to a democratically elected National Assembly. The provisions have very elaborate procedures for scrutiny of secondary legislation, which in my view provide sufficient safeguards. There is power, for example, to amend statutory instruments, which the House of Commons does not. So I think that Parliament's traditional squeamishness in granting these wider powers of secondary legislation does not apply.
However, there is one aspect of the Bill which I hope my noble friend will look at. We are bestowing competencies on the Assembly to amend or alter the ombudsman's powers at some subsequent stage or to remove or add to the list of authorities that he can investigate. I think that the ombudsman's agreement should be obtained before exercising such a power. I do not see such a provision in the Bill.
In other words, if, for example, the Assembly comes forward at a future date with a proposal to alter or amend the listed authorities, surely that should be after consultation with and the agreement of the ombudsman. He or she should be a party to any such proposal. I see a reference to people having to be consulted. I believe that there should be specific provision after consultation to obtain agreement from the ombudsman if one intends to amend or alter his powers. I cannot see that on the face of the Bill. Therefore, I ask the Minister to think about that as a possible amendment.
I have another area for possible amendment. The Secretary of State has the right to appoint the ombudsman but he has to consult the National Assembly if the ombudsman is dismissed. In the Bill at present the Secretary of State does not have to consult the National Assembly on the appointment of the ombudsman. That is a rather curious anomaly. If one has to consult the National Assembly on dismissing the person concerned, surely there should be a provision for consulting the Assembly on the appointment itself.
1439 The noble Lord who has just spoken made a reference to how that appointment should be made. That area should be explored. However the appointment is made, I think that there should be a process of consultation between the Assembly and the Secretary of State, albeit that the Assembly itself is going to be subject to the ombudsman's jurisdiction.
Therefore, I very much welcome the Bill. I think that it is part and parcel of a further development in the evolution of the legislative partnership. We have already seen precedents within this Parliament for framework legislation. The health legislation that came before both Houses two or three years ago was framework legislation that has given the Assembly considerable legislative competence. The Education Acts since devolution also expand the legislative competence of the National Assembly. This Bill will also do so. I therefore warmly welcome it.
§ 12.14 p.m.
§ Lord Livsey of Talgarth
My Lords, I, too, thoroughly welcome the Bill. I should like to pay tribute to the noble Lord, Lord Rowlands. I did not hear his maiden speech, but I read it in some detail. His speech was typical of him, showing a great social conscience and care for people. I believe that he has addressed this legislation in the same way. We must ensure that people are treated fairly and have the fundamental right to redress.
This has been a useful debate. However, before commenting on it, I should like to put forward a number of principles that I hope and trust are embodied in the Bill. They seem to be, but I think that we may secure even better legislation by amending the Bill in Committee. It is vital to protect the independence of the ombudsman from the government machinery. The issue of the appointment system used to select the ombudsman and whether he should serve a 10-year term is contentious. We will almost certainly pay attention to how the matter can be refined in some way.
As for the length of tenure, the post should not be a type of sinecure. The person should be there for a reasonable but not excessive length of time. As for integrating the existing ombudsmen—the local commissioner in Wales, the health service commissioner and the social housing ombudsman—it must be right to integrate those three bodies into one. We have heard from the Minister that all of that has been considered.
The related issues, including local government, the NHS and housing, are all very important public sector issues in Wales. What concerns me very much is that, when investigating allegations, the ombudsman must have the ability to expedite cases rapidly, effectively, efficiently and transparently. Although that is a difficult set of objectives, I believe that, in the public interest, they must be met.
The system of administration, in particular, must be very good and not bogged down in bureaucracy. The ombudsman must be fair and close to the people and receive support from all sections of society. Everyone must have confidence in him. That has not always been the case in the past—and I am being constructively 1440 critical here. The constituency MPs, of whom I was one, sometimes took good cases to the local commissioner but the commissioner refused to investigate them for very technical reasons.
I often encountered that unsatisfactory situation. Some of the cases were outwith the commissioner's remit due to sometimes arcane restrictions, at times causing the complainant and myself much grief. I think that most constituency MPs have suffered that kind of frustration. Sometimes there were long delays. That supports some of the comments noble Lords have made about the staffing needed to support the ombudsman for Wales. I believe that people's rights must not in future be sidelined. Given those aspirations, how does the Bill measure up? There are, of course—though I shall not go into them now—the cross-border issues in the health service which affect all of us who live near the border. There may, for example, be complaints from Welsh patients attending hospitals in Shrewsbury or Hereford. The Bill provides for arrangements to cover that issue, but it is a matter of great concern to those who are affected.
The Parliamentary Commissioner will be responsible for a huge number of complaints about the public services. But we have to remember that a whole raft of public services outside the Assembly—in social security, pensions and many other matters—also are investigated by the Parliamentary Commissioner. The problems in the health sector and cross-border issues surfaced in relation to Alder Hey Hospital in Liverpool and what happened to children in Bristol Hospital.
The contributions that we have heard today have been extremely supportive of the Bill, but have also defined issues that I am sure will be converted into amendments during the Bill's passage. We had an excellent briefing the other day, but it is important that we are able to view the Explanatory Notes earlier. The public also need information about the ombudsman and how to make a complaint.
The noble Lord, Lord Prys-Davies, made some important points. In particular, he asked how many cases the ombudsman can deal with in a limited time. Richard Crossman, when he was a Minister, addressed the whole problem of people's unwillingness to lodge complaints. That must be clarified. We support the Bill, although I give notice now that the noble Baroness, Lady Finlay, and I will table an amendment to limit the tenure of the ombudsman to seven years, rather than 10. We can have a useful debate about that but, on the whole, the Bill takes us forward. As the noble Lord, Lord Rowlands, said, it passes the Richard test: it will improve accountability for the Assembly to legislate in an area for which it will have total competence.
§ 12.22 p.m.
§ Lord Evans of Temple Guiting
My Lords, I warmly thank those noble Lords who have taken part in the debate. The Bill has been well received, although it appears that there will be one or two issues for us to discuss in Committee. One of those is the tenure of the position: whether it should be 10 years or less.
1441 As I said at the beginning of our debate, we are keen to listen and to improve the Bill if necessary. My noble friend Lord Prys-Davies, in welcoming the Bill, said that it is a very good Bill but that it can be improved. That is what we want and we will rely on the help of all your Lordships to ensure that, at the end of the day, we have the best possible Bill.
I shall now attempt to answer some of the questions that have been asked. Second Reading is significant because we are laying out the boundaries and parameters for Committee. I thank the noble Lord, Lord Roberts of Conwy, for his welcome for the Bill. He successfully attempted to find criticisms of the Bill—as he said, he is in opposition and must oppose—but it was absolutely clear from his generous comments that, on the whole, he welcomes the Bill. He asked about savings and additional costs as a result of the Bill. I am told that the proposal is cost-neutral and that there are minimal extra costs. However the question in his mind and mine is: what do we mean by "minimal costs"? I undertake to come back to the noble Lord on that point.
He also asked about the extent of public awareness of ombudsmen's services in Wales. One reason for creating the unified office is to allow for a more proactive approach to publicising a coherent set of services. Your Lordships may also want to note that Clause 32 places obligations on listed bodies to publicise the fact that they are subject to the ombudsman's jurisdiction.
The noble Lord, Lord Roberts, and a number of other Peers, also asked why the consultation was not made available to the House, either in the Library or to individual Peers. That is a very good point. There may have been an oversight. I accept the principle that if we are considering legislation coming from the Assembly, we must see all the documents. Officials will ensure that we do not make that mistake in future. In apologising for that, I accept that that point is well made. We will ensure that that does not happen again.
My noble friend Lord Prys-Davies, in welcoming the Bill, asked several questions about the complaints that the ombudsman has received and how many were upheld. In a way, the noble Lord, Lord Roberts of Llandudno, has answered many of those points because he gave us some of the statistics, but I have all of them in front of me. I will just cite one and then pass the note to my noble friend after the debate. The Health Service Commissioner received 209 complaints; completed 11 investigations; upheld five; partially upheld three; and dismissed the remaining three.
My noble friend Lord Prys-Davies and other Peers asked about the 10-year fixed appointment. A 10-year period will allow for stability of office, yet allow a regular injection of new blood to reinvigorate the office. Not having to seek renewable appointments protects the office from any perception that its independence could be compromised. That is the answer that I am giving today. I see from the expressions on various noble Lords' faces that that may not be wholly satisfactory; and I am sure that we will return to the matter in Committee.
1442 My noble friend also asked: why are there no enforcement powers for the ombudsman's recommendations? That follows from existing arrangements. The only ombudsman's recommendations that have been legally enforceable are in Northern Ireland, where different considerations apply. No doubt we will return to that matter, but your Lordships will be aware that legal enforcement of ombudsman's recommendations would be an extremely radical move.
My noble friend also asked: why does the Bill require complaints to the ombudsman to be made in writing? He asked whether that does not disadvantage someone who, for whatever reason, is unable to write and whether there is scope for some discretion on the ombudsman's part. Clause 5(1)(a) indeed requires complaints to be made in writing. That reflects existing law, but Clause 2(4) allows the ombudsman to investigate a complaint even if the requirements of Clause 5(1) have not been met, provided that the ombudsman thinks it reasonable to do so. For example, if a disabled person is unable to submit a written complaint, it will still be open to the ombudsman, if he thinks it reasonable in the circumstances, to dispense with the requirement and investigate the matter anyway.
Finally, my noble friend Lord Prys-Davies asked: what can be done to facilitate complaints from persons who are afraid of upsetting the authorities about whom they are complaining? The ombudsman will be sensitive to such issues, but it is also right that the ombudsman must act fairly to the complainant and the listed authority concerned. My noble friend is correct: the ombudsman has a wide power to issue guidance to listed authorities under Clause 30. However, that provision relates to good administrative practice by listed authorities. The ombudsman can use the supplementary powers in paragraph 21 of Schedule 1, if he or she wishes to issue public guidance on how the ombudsman intends to approach investigations.
The noble Lord, Lord Roberts of Llandudno, asked why it was a Crown appointment, not an Assembly appointment. The brief and, I hope, convincing answer is that making it a Crown appointment reinforces the status of the office and its independence from government. The noble Lord also asked whether the ombudsman for Wales would have sufficient staff. The PSOW is accountable for delivering the functions of the office, which means that it must be properly resourced. The Assembly must fund the office, but, if it is minded not to agree an estimate of expenses, it must consult the Secretary of State and lay the estimate, as amended, before the Assembly. That important control prevents the Assembly limiting investigations through underfunding.
The noble Lord also asked whether there could be an appeal against the ombudsman's decisions. The ombudsman's decisions are subject to judicial review in the normal way. It must be said that it is likely that the courts will not intervene lightly in a decision properly taken by the ombudsman. Legal aid is available, if the relevant means and merits tests are met.
1443 My noble friend Lord Rowlands made an interesting contribution. I think that it was the noble Lord, Lord Livsey of Talgarth, who paid tribute to my noble friend's excellent maiden speech the other day. I join the noble Lord, Lord Livsey of Talgarth, in acknowledging it. My noble friend made some interesting points, and I am sure that we will return to them in Committee. He asked why there was no requirement for the Assembly to consult the ombudsman on proposals to add or remove persons from his jurisdiction. Clause 27(4) provides that the Assembly,must consult such persons as it thinks appropriatebefore making such an order. The ombudsman would be an appropriate person, and the Assembly is therefore obliged to consult the ombudsman before making such an order.
The noble Lord, Lord Roberts of Llandudno, also asked about the need to consult the National Assembly before appointing the ombudsman. We will consider that. In practice, appointments procedures for recruiting the ombudsman will be run by Assembly officials on behalf of the Secretary of State. In the longer term, splitting the Assembly between its executive and legislative elements, as the Richard report recommends, would allow for the possibility of the National Assembly advising Her Majesty on the appointment.
The noble Lord, Lord Livsey of Talgarth, asked several questions and made it clear that there were issues to which he would return in Committee. With the noble Baroness, Lady Finlay of Llandaff, who could not be present today—I think that she is in Holland—he will table amendments. The noble Lord expressed concern about the way in which the Bill would operate in cross-border situations. The consultation and co-operation powers and duties in Clause 24 are designed to ensure that the new ombudsman can and will work effectively and seamlessly with other ombudsmen or commissioners with an interest in the case, whether they are in Wales, England or even Scotland.
I hope that I have dealt with most of the questions that have been asked. Obviously, there will be an opportunity in Committee to discuss the points that need further attention.
On Question, Bill read a second time, and committed to a Grand Committee.