HL Deb 10 February 2005 vol 669 cc906-27

11.32 a.m.

Report received.

Schedule 1 [Public Services Ombudsman for Wales: appointment etc.]

Lord Roberts of Conwy

moved Amendment No. 1: Page 27, line 6, at end insert "after prior consultation with the Assembly

The noble Lord said: My Lords, I should like to say at the outset that the majority of the amendments in my name and that of my noble friend are simply to remind us of issues raised in Grand Committee to which either the Minister or I promised to return after giving the matters further consideration. The Minister has needed no reminder; he has put down his own amendments and written to us about them. We are most grateful to him.

With regard to Amendment No. 1, we are all aware of the issues involved in this all-important Crown appointment on the nomination of the Secretary of State. The ombudsman must be independent, particularly of those whom he has the power to investigate, and that includes the Assembly. Nevertheless, some of us feel that the Assembly should have some say, but not the final say, in his appointment. He is its servant and it is his paymaster. In practice, we understand that the Secretary of State informally consults the party leaders in the Assembly. In Committee, some doubt was expressed on when this informal consultation should take place. My amendment makes it clear that it should be prior to the Secretary of State's formal nomination.

The Minister agreed that the Assembly should be consulted, and he has put down an admirable amendment to this effect. I shall move my amendment only to hear the Minister speak to his. I beg to move.

Lord Evans of Temple Guiting

My Lords, in Grand Committee we listened very carefully to the arguments put forward for making it a requirement that the Secretary of State consults the Assembly before recommending to Her Majesty the appointment of an ombudsman or acting ombudsman. On hearing these arguments, I undertook to bring forward amendments to that effect at Report.

Government Amendment No. 2 puts it beyond doubt that the Secretary of State can recommend an appointment to Her Majesty only after consulting the Assembly. In the light of that, I hope that the noble Lord, Lord Roberts, will withdraw Amendment No. 1, which is intended to have the same effect in relation to the appointment of an ombudsman although not, I note, in respect of an acting appointment, for which no equivalent amendment has been tabled.

Lord Livsey of Talgarth

My Lords, I thank the Minister and the noble Lord, Lord Roberts, for putting down these amendments. They are certainly desirable in terms of the appointment of the ombudsman. It is clear that the Assembly has to be involved, but it has to be involved in the correct sequence, and this appears to have been resolved in Amendment No. 2.

Lord Roberts of Conwy

My Lords, as I have already indicated, I am totally satisfied with the Government's amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting

moved Amendment No. 2: Page 27, line 6, at end insert— (2) The Secretary of State may recommend that a person be appointed as the Ombudsman only after consulting the Assembly.

On Question, amendment agreed to.

Lord Evans of Temple Guiting

moved Amendment No. 3: Page 27, line 16, leave out "ten" and insert "seven

The noble Lord said: My Lords, it was clear from the amendments that your Lordships proposed in Grand Committee and the level of debate that followed that a considerable amount of thought had been given to the tenure of the ombudsman's appointment. I do not wish to repeat that discussion here, but I shall repeat the basis on which the Government have brought forward an amendment that will provide for a single fixed-term appointment of seven, instead of 10, years, as opposed to a five-year renewable appointment that has been proposed a second time.

The key consideration is maintaining the independence of the office, free from any possible influence or pressure on behalf of the Executive. That is why, under existing provisions, ombudsman appointments are permanent to age 65. Furthermore, it is imperative that the tenure of office is such that it can attract top-quality candidates. In that respect, five years is too short a period, and your Lordships clearly felt that 10 years was too long. A seven-year appointment, we feel, strikes the balance.

However, I am afraid that the Government cannot support the proposal that the appointment should be renewable. It is imperative that the ombudsman is, and is perceived to be, wholly independent of government. An ombudsman who may have to seek reappointment is at risk of having that independence questioned. Also, as my noble friend Lord Rowlands said in Grand Committee, what would be the criteria for renewal? Who would do the renewing, and what would be involved?

In summary, the proposal advanced by the noble Lords, Lord Roberts of Conwy and Lord Luke, represents a break with previous practice, which we feel could have very serious disadvantages. I invite them not to press Amendments Nos. 4 and 5. I beg to move.

Lord Roberts of Conwy

My Lords, I shall speak to Amendments Nos. 4 and 5. Since Committee, I have been able to do a little more research into ombudsmen's appointments across the United Kingdom, with the assistance of the Library. Generally speaking, they are appointed for no fixed term and, subject to good behaviour, continue until retirement at 65 or voluntary resignation. The basic pattern appears to have been set by the appointment of the Parliamentary Commissioner for Administration under the 1967 Act.

There was a break in that practice with the appointment of the Legal Services Commissioner under the 1990 Act. He was appointed for three years, with the possibility of reappointment thereafter. There followed the appointment of the Scottish Public Services Ombudsman under the 2002 Act. That appointment is for a period of up to five years, to be determined by the Scottish Parliamentary Corporation. He can be reappointed for a second term. Indeed, he can be reappointed for a third term, but only if, by reason of special circumstances, such reappointment is desirable in the public interest". It is a Crown appointment on the nomination of the Scottish Parliament.

I believe that the Scottish appointment bears the hallmark of sound thinking and I would like the same procedure to apply to the appointment of the Welsh ombudsman. The Bill originally went too far in proposing a 10-year term, and the Minister accepted the compromise of a non-renewable seven-year term. I do not think that that is quite right either and, therefore, I have no hesitation in asking the Minister to think again.

The advantage of my proposal for a five-year term, renewable for a further five years, is that it allows for the Government's initial wish for a 10-year appointment, but provides a checkpoint at the halfway stage. I suspect that the Government were attracted to the 10-year appointment by their justifiable faith in the present incumbent, Mr Adam Peat. I share that faith, but we must look beyond his tenure and set an acceptable pattern for the future. Nevertheless, I regard a seven-year period as an improvement on the original 10-year period.

Lord Livsey of Talgarth

My Lords, I am pleased that the Minister has proposed a seven-year period of tenure. Having lived in Scotland for seven years and being married to a Scot, I am a great admirer of the Scottish legal system. In this instance, we have to look at the devolution settlement as it affects Wales. We do not have primary legislative powers and, at the present time, our situation is exposed.

As the Minister said, we must have a truly independent ombudsman. In that context, it is important that the Welsh ombudsman has one term only. A seven-year term fits the bill, because it would cover almost two elected Assemblies in the four-year cycle. I am sure that the Minister's amendment is the correct amendment, however seductive the amendment of the noble Lord, Lord Roberts of Conwy, allowing two periods of five years, is. I accept the Minister's arguments against that amendment.

Lord Prys-Davies

My Lords, having listened to this interesting discussion, I conclude that there may be no perfect solution. But a seven-year term of office provides a sound basis that will attract top-quality candidates to the post, without offering life tenure. I am grateful to the Government for tabling Amendment No. 3.

11.45 a.m.

Lord Evans of Temple Guiting

My Lords, I am grateful to the noble Lord, Lord Roberts, for sending me a copy of the research done by the Library on ombudsmen throughout the British Isles, if not the world. The noble Lord picked out the Scottish Parliamentary Commissioner for Administration to support his case. That is a matter for the Scottish Parliament. It would not be appropriate for me to make any comment. All I can say is that this Government consider a five-year term to be too short and renewability to be a factor casting doubt on the ombudsman's independence.

The noble Lord, Lord Roberts, asked us to think again, but we have all been thinking again on this issue. The noble Lord clearly has been because in Committee on 25 January (at col. GC 372) he accepted that a seven-year period was a sensible compromise, given that the Government were suggesting a 10-year period and that there were other suggestions.

We have had a full discussion of this issue. I think that the consensus is that a seven-year period is correct. I hope that the noble Lord will not move his amendment.

On Question, amendment agreed to.

[Amendments Nos. 4 and 5 not moved.]

Lord Evans of Temple Guiting

moved Amendment No. 6: Page 28, line 4, at end insert— ( ) The Secretary of State may recommend that a person be appointed to act as the Ombudsman only after consulting the Assembly.

The noble Lord said: My Lords, we have already considered amendments that provide for consultation with the Assembly about the appointment of an ombudsman. This government amendment will align the appointment process for an acting ombudsman with that for the ombudsman. I am sure that your Lordships will be able to support it.

Noble Lords have heard the Government's arguments about why we cannot accept any amendment that would allow ombudsmen to serve a second term of office. At the risk of repeating myself, any proposal that an appointment should be renewable is not one that the Government can support. It is imperative that the ombudsman is, and is perceived to be, wholly independent of government. The proposal advanced by the noble Lord, Lord Roberts of Conwy, would allow for an acting ombudsman to be appointed as the ombudsman, even if he or she has previously held that office. It is not a proposal that the Government can support. I beg to move.

Lord Roberts of Conwy

My Lords, I tabled Amendment No. 7 in the wake of my Amendment No. 4 setting a renewable five-year term of appointment. Amendment No. 7 would allow the ombudsman to be an acting ombudsman where there was a hiatus between his first five-year appointment and the second. Nevertheless, in the context of the improved Bill, I feel that the amendment is superfluous and I shall not be moving it.

On Question, amendment agreed to.

[Amendment No. 7 not moved.]

Lord Evans of Temple Guiting

moved Amendment No. 8: Page 29, line 3, at end insert— ( ) A person is not disqualified under sub-paragraph (1) from being a member of the Assembly. The noble Lord said: My Lords, in moving Amendment No. 8 I shall speak also to Amendment No. 9, which has been tabled by the Government and by the noble Lords, Lord Roberts of Conwy and Lord Luke.

In Committee, an amendment proposed by the noble Lord, Lord Roberts of Conwy, drew our attention to fact that the provisions in the Bill about disqualification were ambiguous and so we have looked at them again. The case covered by the amendment before the House is where somebody holding the office of ombudsman decides to stand for election to the Assembly and is successful in the election.

Amendment No. 8 removes from the Bill the question of whether holding the office of ombudsman disqualifies a person from being an Assembly Member. Instead, the question is left to be governed by the Section 12(1)(c) of the Government of Wales Act 1998, as inserted by the Bill, which will make membership of the Assembly incompatible with holding the office of ombudsman. Section 13(3) of the 1998 Act allows the Assembly to disregard that incompatibility if the ombudsman, having been elected, resigns from the office of ombudsman, and if the Assembly thinks it proper to do so.

I hope that your Lordships can support these Government amendments as, when read together with the relevant provisions in the Government of Wales Act 1998, they allow a serving ombudsman to become an Assembly Member, provided he or she relinquishes office as ombudsman following a successful election. I beg to move.

Lord Roberts of Conwy

My Lords, I am delighted to see that the Minister has put his name to Amendment No. 9, which proposes to leave out sub-paragraph (2). That subsection allows the Assembly to resolve that the disqualification of the ombudsman from being an Assembly Member can be disregarded.

The Minister explained the intention behind the provision in Committee, telling us that it was meant to address a situation where an ombudsman was elected as an Assembly Member and intended to relinquish his office. He promised to give the matter further consideration, and he has done so. I am delighted that the Government have agreed to delete this mischievous subsection. I hope that the government amendment that precedes it achieves its stated purpose. 1 shall move Amendment No. 9 when we come to it, because the Government support it.

Lord Livsey of Talgarth

My Lords, this is obviously a large improvement on what we considered in Committee, where it was clearly not on for the ombudsman to be a sitting Member of the Assembly. This has now rectified that. It still means, however, that the ombudsman can stand for election and would obviously have to resign if he or she became a Member of the Assembly.

What worries me a little—perhaps the Minister can comment on it—is what the ombudsman does about his election campaign if he is sitting prior to an election. He could, if somebody else was in the running, be in a privileged position in wanting to be a Member of the Assembly. Alternatively, he could be in a position where he could not campaign at all. There is an issue that needs resolving. Maybe he would have to resign one month before the election, or something like that. That stands out as a problem to me, and it could be easily resolved. If that is clarified. I can support the amendment.

Lord Evans of Temple Guiting

My Lords, that is an extremely good question. I do not know the answer to it. Obviously, there must be an answer, which I hope is wending its way from the Box. 1 will return to that a little later.

I said I would return to it a little later, and here I am. An ombudsman standing for election would be in the same position as all other candidates. I do not think that answers the question of the noble Lord, Lord Livsey of Talgarth. The question is whether he can stand as a candidate if he remains the ombudsman. Will his election campaign be conducted with him, or her, as the ombudsman, rather than a candidate trying for a seat in the Assembly? I will have to come back to the noble Lord, and all other noble Lords who are interested in that question.

Lord Livsey of Talgarth

My Lords, I thank the Minister for that answer, which I am sure will ultimately be resolved. Having stood in some elections myself, I know that one can find it extremely awkward to get time off—temporarily resigning from a position, and all kinds of things of that nature. I would not wish the ombudsman to be in a position where his salary was still funded by the Crown, which might assist him in his election campaign.

On Question, amendment agreed to.

Lord Roberts of Conwy

moved Amendment No. 9:

Page 29, line 4, leave out sub-paragraph (2).

On Question, amendment agreed to.

Lord Roberts of Conwy

moved Amendment No. 10: Page 31, line 21, after "Assembly" insert "and both Houses of Parliament for their information only

The noble Lord said: My Lords, your Lordships will be aware of how keenly I feel on this point. Both Houses should be kept well informed about the activities of devolved government and, in this case, we should receive the reports of the ombudsman for Wales.

I made the point at Second Reading, and again in Committee. I return to the charge yet again, hopefully not to the annoyance of your Lordships. My amendment would ensure that both Houses got to see copies of the ombudsman's annual and other reports, which are provided to the Assembly. The amendments make it clear that it is for information only. I am well aware that the statutory laying of a report before Parliament normally implies an acknowledgment of the ultimate supremacy and authority of that body. The purpose behind my amendment, however, is more practical and mundane. It is to ensure that the documents are readily available to us in the Printed Paper Offices and the Libraries of each House. There have been difficulties in the past, which we now seek to end.

We are interested in the ombudsman and his activities, and we are entitled to know just how he deals with cases. We have received some welcome assurances from the Minister, but I make no apology for raising the matter again. I do so to ensure that those who should take action to realise those assurances are left in no doubt that they should do so. I beg to move.

Lord Livsey of Talgarth

My Lords, we strongly support the amendment, not only in this place, but in the other place, where a constituency MP might have a difficult situation being resolved by the ombudsman. It might affect a local authority, a school, or possibly the water company or something of that nature, on which the Member in the other place may have been working for a great length of time. The information ought to be made available to Members of both Houses for those sorts of reasons.

Lord Prys-Davies

My Lords, the noble Lord, Lord Roberts of Conwy, has explained that the amendment has been prompted by the difficulties that he has experienced in obtaining copies of reports and information published or received by the Assembly. I have experienced similar difficulties in the past—although I must hasten to add that the staff of our Library have always gone out of their way to trace the copy documents or reports that I have requested.

The noble Lord, Lord Roberts, and the noble Lord, Lord Livsey of Talgarth, have raised an important issue. If we, in this House, are to do our best to scrutinise legislation and policies in the devolved fields, it is vital that we should know to what extent the proposed legislation or polices fulfil the Assembly's requirements. I believe that to be the critical point.

I agree with the reasoning behind the amendment—I agree with one half of the amendment—but I have strong reservations about the constitutional undesirability of placing a duty on the Welsh ombudsman formally to lay his report before both Houses of Parliament. His report is not a parliamentary document. Moreover, to place such a formal obligation before the Houses of Parliament could be seen as inimical to the authority and the responsibility of the National Assembly for Wales. So I believe that another way must urgently be found to produce the results that the noble Lord, Lord Roberts of Conwy, seeks to achieve by his amendments.

Noon

Baroness Gale

My Lords, I agree with my noble friend Lord Prys-Davies. It is true that we have difficulties in obtaining copies of documents that we want from the Welsh Assembly, though it is not impossible. There are ways in which to get those documents, but you have to be proactive. When Rhodri Morgan, the First Minister, met noble Lords not long ago, we told him of our problems, and he was very receptive and said that he would be willing to look at the matter. Perhaps we should pursue the matter further with the First Minister. We are all asking for better communication and better ways in which to get documents from the Welsh Assembly, rather than individuals having to go to the Printed Paper Office or ring the Welsh Assembly. If we could achieve that, it would resolve all our problems.

Lord Evans of Temple Guiting

My Lords, I am particularly grateful to my noble friends Lord Prys-Davies and Lady Gale for saying that we should find another route to arrive where we all want to be and to have a good exchange between the Assembly and the two Houses of Parliament. We all agree on the matter; it is a question of how we achieve what we all want.

The noble Lord, Lord Roberts of Conwy, tabled similar amendments in Grand Committee, but those amendments were not qualified by the words, "for their information only". I accept that there are many in this House and in the other place who have an interest in seeing the ombudsman's reports. As I said in Grand Committee, I am sure that the ombudsman designate will note the purpose of these amendments, which is to ensure that your Lordships and those in the other place who are interested should have access to these reports. Once again, I would encourage him to be proactive in providing copies of these reports to the Libraries of both Houses. Where we disagree is on the need for a statutory requirement for the reports to be laid before both Houses of Parliament. No such provision is in effect in relation to the existing Welsh ombudsmen, and I am not aware of that having been a concern or having caused difficulties for Parliament.

Again, as I indicated in Grand Committee, if there were difficulties and it transpired that there was a need for a formal requirement for annual reports to be sent to both Houses of Parliament, the Assembly may wish to use its power under paragraph 14(6) of Schedule 1 to give directions to the ombudsman in relation to the annual report. But I am absolutely confident that that will not be necessary. The ombudsman must publish his reports, so it is not difficult for Members of either House to obtain the information. They do not have to go to the Assembly; they can go direct to the ombudsman or the Libraries here.

The access to information issue was one that came up in Committee and, as my noble friend Lady Gale, said, when we met the First Minister. We are all aware of the importance of smooth and efficient communication between the Assembly and the Houses of Parliament.

Lord Roberts of Conwy

My Lords, I am very grateful for the support for the spirit of these amendments expressed by the noble Lords who have spoken, and to the Minister for his concluding remarks and further assurances. I accept that to make this request a statutory requirement would be excessive. In the belief that nevertheless the substance of the amendment, and the desire of Members of your Lordships' House and the other place to know the content of annual and other reports produced by the ombudsman, have been taken on board, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Other excluded matters]:

Lord Roberts of Conwy

moved Amendment No. 12: Page 5, line 22, at end insert— after consultation with the Ombudsman

The noble Lord said: My Lords, in moving the amendment, I shall also speak to Amendment No. 25.

Clause 10 deals with matters that the ombudsman may not investigate, which are specified in Schedule 2. Subsection (2) enables the Assembly by order to add, remove or change an entry in the schedule. In Committee, the noble Lord, Lord Rowlands, argued that it was inconceivable that the Assembly should do that without consultation with, and the agreement of, the ombudsman. I support his contention, but my amendment does not take it quite as far as did the noble Lord, as it provides for consultation only. But that is essential, as any change of entry is bound to affect the ombudsman's work pattern, for which he may have to take on extra staff.

Amendment No. 25 relates to Clause 27, which deals with listed authorities in Schedule 3 and provides for consultation before a change is made with such persons as the Assembly "thinks appropriate". My amendment ensures that the ombudsman is included among such persons. The amendment is not superfluous, as it is not inconceivable that the ombudsman would not be consulted. But the Minister has conceded the substance of both my amendments and spelt out the ombudsman's limited role, too, in education, by being specific in his amendments about excluded matters. I beg to move.

Lord Livsey of Talgarth

My Lords, I found the notes that the Minister sent around in relation to these matters very helpful, and I agree with the noble Lord, Lord Roberts, that we are going in the right direction.

Lord Evans of Temple Guiting

My Lords, I shall speak to government Amendments Nos. 13, 14, 15 and 24 and respond to the interesting comments that have just been made.

The Government are once again indebted to the noble Lord, Lord Roberts of Conwy, as without his probing amendments in Grand Committee we might never have identified the possible unintended consequences at paragraph 6 of Schedule 2. The Government's intention behind the provision was as follows. The particular educational matters set out in paragraph 6 are to be excluded from the ombudsman's jurisdiction and not subject to investigation, just as those matters are now excluded from the jurisdiction of the local government ombudsman. The equivalent exclusion from the jurisdiction of the Local Government Ombudsmen is to be found in paragraph 5 of Schedule 5 to the Local Government Act 1974.

It was not the Government's intention to narrow the ombudsman's jurisdiction in relation to education-related bodies such as Her Majesty's Inspectorate for Education and Training in Wales or the Higher Education Funding Council for Wales. Those bodies are currently within the remit of the Welsh Administration Ombudsman, and there is no exclusion in Schedule 9 to the Government of Wales Act 1998 which is equivalent to paragraph 6 of Schedule 2 to the Bill. The Government, therefore, wish to put beyond doubt our policy intention through the amendments that we have proposed to that paragraph in Schedule 2.

Clauses 10 and 27 provide that the Assembly can, by order, amend the entries for the time being appearing in Schedules 2 and 3 respectively. Your Lordships will recall that in Grand Committee I undertook to give consideration, arising out of an amendment tabled by my noble friend Lord Rowlands, to the possibility of requiring the Assembly to consult the ombudsman if planning to amend, by order, the entries in Schedule 2.

In practice, the Government would expect that to happen, as the ombudsman might well have to plan and prepare for the effect that a change to the schedule may have on delivering the functions of his office, both in operational and resource terms. Amendment No. 13, to Clause 10, will, therefore, make it a requirement that the Assembly consults the ombudsman before making an order amending an entry in Schedule 2 to this Bill. Similarly, the Government's amendment to Clause 27 will make it a requirement that the Assembly consult the ombudsman and any other person it thinks appropriate, if wishing to add, omit or change the description of a listed authority for the purposes of the Bill in Schedule 3.

In the light of the proposed government amendments, I invite the noble Lord, Lord Roberts of Conwy, to withdraw the amendment.

Lord Roberts of Conwy

My Lords, I am perfectly content that the government amendments achieve the purposes behind Amendments Nos. 12 and 25. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting

moved Amendment No. 13: Page 5, line 22, at end insert— ( ) Before making an order under subsection (2), the Assembly must consult the Ombudsman.

On Question, amendment agreed to.

Schedule 2 [Excluded Mutters]:

Lord Evans of Temple Guiting

moved Amendments Nos. 14 and 15: Page 34, line 38, after "Action" insert "taken by an authority specified in sub-paragraph (2) and Page 35, line 2, at end insert— (2) The authorities are—

  1. (a) a local authority in Wales;
  2. (b) an admission appeal panel;
  3. (c) the governing body of a community, foundation or voluntary school;
  4. (d) an exclusion appeal panel."

On Question, amendments agreed to.

Clause 17 [Publicising reports]:

Lord Roberts of Conwy

moved Amendment No. 16: Page 9, line 24, leave out "three- and insert "four

The noble Lord said: My Lords, Clauses 17 and 18 and the amendments deal with the duty of a listed authority to publicise an ombudsman's report by making it available at the authority's offices and website for a period of "at least three weeks". I remain of the view that three weeks is a short time for an ombudsman's report to be publicly available locally—bearing in mind the time that may have elapsed since the complaint was first made and the time taken by the ombudsman to investigate and prepare his report. We could be talking about a year or more.

The report could also be of considerable public interest after the appearance of the local press notice issued under subsection (3). Of course, the ombudsman has some discretion under subsection (5) and could, presumably, give a direction to a listed body to extend the period when the report is to be available. I understand that the Minister, in his letter to us, said that he could extend the period, but I would have thought that he would find it difficult, bearing in mind that the three-week period is specifically stated in the Bill. Perhaps he would give us an assurance and confirmation that the ombudsman could use his discretion to extend the period beyond three weeks. I beg to move.

12.15 p.m.

Lord Evans of Temple Guiting

My Lords, as we have heard, the amendments to Clauses 17 and 18 that the noble Lord, Lord Roberts of Conwy, has tabled, reflect amendments that he tabled in Grand Committee. We had a full discussion at that time. The amendments would increase from three to four weeks the period for which a report under Clause 16 must be made available for inspection by the public.

I set out the Government's view on this in Grand Committee. Essentially, no problems appear to have arisen as a result of the three-week publicity period. The three weeks cannot start until a notice has been placed in a local newspaper informing the public of their right to view the report and where they can view it. There is precedent for the three-week publicity period. It applies in the cases of both the Commissioner for Local Administration in Wales and the Scottish Public Services Ombudsman.

Crucially, it is also worth noting that Clause 17 contains some flexibility for the ombudsman to issue directions on how authorities should discharge their functions. There could be general directions or directions to a particular authority in respect of a specific case. Such directions can relate to the discharge of any of the functions of listed authorities under the clause. For example, if the ombudsman is not satisfied with the three-week publicity period in a particular case for any reason—perhaps, if it were an incredibly complicated case—he could direct that the period be extended. However, he could not direct that it be made shorter, as the clause provides that the period must be at least three weeks.

It is important to stress that the three-week period is a minimum. The ombudsman, as I have explained, can direct a longer period. The Government are satisfied that the three-week publicity period is appropriate and are content that the ombudsman should have some discretion to issue directions on how authorities should discharge their functions under the clause. For those reasons, we cannot accept the noble Lord's amendments to Clauses 17 and 18. I invite the noble Lord, in the light of my explanation, to withdraw the amendment.

Lord Roberts of Conwy

My Lords, I am content with the assurance given by the Minister. I have now found the copy of a letter sent by the Minister to the noble Lord, Lord Prys-Davies, where he states that this means that if the ombudsman considered that in a particular case, or generally, reports should be made available for more than three weeks, he could issue directions to that effect. He would of course have to exercise that power reasonably. Having read that into the record, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Clause 18 [Publicising reports: health care providers]:

[Amendment No. 18 not moved.]

Lord Roberts of Conwy

moved Amendment No. 19: After Clause 19, insert the following new clause— "NON-ACTION FOLLOWING RECEIPT OF A REPORT

  1. (1) If the ombudsman is satisfied that the condition in subsection (2) is met in relation to a listed authority, he may issue a certificate to that effect to the High Court.
  2. (2) The condition is that the listed authority has wilfully disregarded his report without lawful excuse."

The noble Lord said: My Lords, we had some discussion of the proposed new clause in Committee. Its purpose is clearly to give the ombudsman the support of the judiciary, in the event that a listed body refuses to carry out his recommendations. He is safeguarded in relation to the Assembly, in that he can prepare a special report if the Assembly has failed to satisfy him. His recommendations in that report must be the subject of a Motion, which the Assembly itself must approve or disapprove. With the Assembly First Minister obliged to submit the Motion, the ombudsman's recommendations are very likely to be upheld.

But that procedure applies only where the Assembly itself as a corporate body is the listed body complained against. A whole string of other listed bodies appears in Schedule 3, and the question arises of what happens if the ombudsman is dissatisfied with any of them. It seems to me that all he can do is produce a special report naming and shaming the body concerned. I do not think that that is a satisfactory conclusion or remedy where an individual has suffered an injustice or hardship and the requirements of Clause 21 have not been met. The new clause provides that in circumstances where a listed authority has wilfully disregarded the ombudsman's report without lawful excuse, he may issue a certificate to that effect to the High Court, which would consider the appropriate action to take.

In Committee, the Minister told us: The Government do not believe that it is either necessary or desirable to give powers to the ombudsman to enforce his recommendations through any of the methods envisaged in these amendments. The Government are satisfied that the naming and shaming of listed authorities, including the Assembly, is effective in ensuring that the ombudsman's recommendations are acted upon. This is reinforced by the excellent record of authorities in Wales when it comes to complying with the existing Welsh ombudsman's recommendations. However, I see"— said the Minister— that the noble Lord, Lord Livsey, is shaking his head".—[Official Report, 25/1/05; col. GC 408.]

It is true that over the past five years Welsh authorities have accepted the ombudsman's findings and acted upon them. But they have not always been so compliant and there is no guarantee that they will be in future. The dissenting head shake by the noble Lord, Lord Livsey of Talgarth, suggests that their record has not been as eximious as the Minister may have been led to believe. I checked on the matter this week with the local government ombudsman for England and his office gave me a string of authorities which have declined to provide the remedy recommended by the ombudsman. Some reports dating back to 1999 have still not been acted upon.

Nevertheless, I am prepared to accept that a reference to the High Court would be the last resort and, it is to be hoped, one that would never prove necessary in Wales. At the same time, I think that we would be foolish not to provide against such an eventuality because one recalcitrant authority intent on proving that the ombudsman had no teeth could well undermine the entire system.

There is also the other side of this coin. A listed authority may feel very strongly, and possibly rightly, that the ombudsman has come to a wrong conclusion. It should have the right of appeal—the right to seek a totally independent view. I realise that the new clause is probably imperfect, given that it should spell out the High Court's jurisdiction in this area, but I am sure that the government draftsman could soon remedy that defect. I beg to move.

Lord Richard

My Lords, I have not until now said anything during the proceedings on the Bill but I am bound to say that what the noble Lord, Lord Roberts, is proposing in his amendment is somewhat revolutionary. First, as I understand it, he is saying that if an ombudsman comes to a certain conclusion against a listed authority, the authority should somehow have a right of appeal to an independent adjudicator or arbitrator before the ombudsman makes his report to the Assembly. That seems to me totally to defeat the purpose of the ombudsman. Surely the object of the ombudsman is that he should hear the complaint and report to the Assembly and the Assembly should then decide what it should do about it.

Secondly, it seems to me to be revolutionary because of the notion of an appeal to the High Court. I am not sure what conceivable jurisdiction the High Court would have unless the person aggrieved by the decision of the listed authority went to court using the ombudsman's report as part of the evidence in the action. But the idea that somehow the ombudsman should have the power to refer things directly to the High Court in circumstances which, frankly. at present are a little obscure, invoking a jurisdiction that the High Court does not have, seems to be rather revolutionary and rather difficult.

Lord Roberts of Conwy

My Lords, perhaps I may speak across the noble Lord on his first point concerning the reference to the Assembly. There is an entire procedure here for the ombudsman to deal with a listed authority. He produces a report and, in certain circumstances, he can go further and produce an additional special report. The Assembly does not really come into it except where the complaint is against the Assembly itself as a corporate body. In the case of another listed authority—

Baroness Farrington of Ribbleton

My Lords—

Lord Roberts of Conwy

My Lords, may I finish?

Baroness Farrington of Ribbleton

My Lords, unfortunately there is a procedure here too. At this stage, the noble Lord can intervene to make a single point of clarification but at the end of the debate, after the Minister has spoken, the noble Lord, Lord Roberts of Conwy, and only the noble Lord, Lord Roberts of Conwy, may speak. However, I think that we are in danger of entering a slight dialogue and noble Lords who are speaking seem to be very keen on accurate procedure.

Lord Thomas of Gresford

My Lords, I agree with the noble Lord, Lord Richard, that at present there is no procedure for the High Court to take any action if a certificate of this kind is sent to it. But I also think that the noble Lord pointed the way—that is, it would be for the complainant who had initially made the complaint to the ombudsman to take proceedings for an injunction or order against the listed authority and, in so doing, a certificate from the ombudsman that the listed authority had simply refused to act upon his report could be a very useful piece of evidence in those proceedings. I understood the noble Lord, Lord Roberts of Conwy, to be moving in that direction. It may be a little unusual to use a certificate of this kind in evidence; nevertheless, it would be a perfectly rational and proper way of enforcing the ombudsman's report.

Lord Livsey of Talgarth

My Lords, I see this in the context of citizens' rights. I accept many of the points made by the noble Lord, Lord Roberts, about a listed authority, but what does a citizen do if he has been wronged, the ombudsman has made his report and the report has not been acted upon? There must be more force behind the ombudsman's report for the listed authority to take action.

Sadly, in Grand Committee—the noble Lord, Lord Roberts of Conwy, referred to this—I did not agree that everything in the garden was exactly rosy when one looks at the listed authorities and the areas that they cover. For example, there could be problems with the Environment Agency or even a flood defence committee, which might have been investigated by the ombudsman. Unfortunately, I have had experience of severe flooding. I can think of one place in the Neath Valley where promises were made by the Environment Agency to solve the problem but no action was taken, even though the residents were continually flooded by water polluted by sewage. That was a very serious situation. Police authorities, health boards, trusts managing hospitals are all in this listed area. There are many controversial areas where citizens feel that they have been wronged, with cases appearing in newspapers every day. This amendment gives some force should the complainant wish to take the matter to the High Court. Rightly, lawyers are getting involved in this debate. I am not a lawyer but I feel that a complainant must surely have some power to obtain redress against a listed authority which has ignored an ombudsman's report. To leave this unresolved would be very serious.

Lord Prys-Davies

My Lords, in Grand Committee it seemed to me that the Minister relied heavily on the past excellent compliance record of the listed authorities. That is all very well but it may not be the case in the future. If a listed body should say to the ombudsman, "No, we will not agree your findings. We will not implement your recommendations", then in those circumstances, unless the complainant can take it further, it appears to me that the findings of the ombudsman are almost worthless. If that is the position, then it is unsatisfactory.

Baroness Finlay of Llandaff

My Lords, the noble Lords, Lord Prys-Davies and Lord Livsey, have put their finger on it in terms of the population in Wales. They need to have faith that an ombudsman's report will have teeth. The amendment before us now is a means of providing that reassurance to those who may be aggrieved and who may feel that the lives of themselves or others are potentially in danger through inactivity. By the time the ombudsman gets involved the situation almost certainly will be potentially quite serious. The thought of an ombudsman's report gathering dust will bring the whole ombudsman system into disrepute. We have to consider very carefully any mechanism to ensure that no ombudsman's report can be ignored by the authority to which it relates.

Lord Evans of Temple Guiting

My Lords, I am fully aware of the strength of feeling on this issue. As the noble Lord, Lord Roberts of Conwy, explained, these amendments concern the enforceability of the ombudsman's recommendation and of compensation payments by listed authorities to aggrieved persons. I have to say at the outset that the Government's general views on the issue of enforceability have not changed and are the same as I outlined at Grand Committee. I hope that I shall be able to convince your Lordships that that is the correct view.

We do not believe that it is necessary or desirable to give powers to the ombudsman to enforce his recommendations through any of the methods envisaged in these amendments. As I said previously, the Government are satisfied that the naming and shaming of listed Authorities, including the Assembly, is effective in ensuring that the ombudsman's recommendations are acted upon. I know that some of your Lordships are concerned that listed authorities might drag their feet when responding to the ombudsman's recommendation. The noble Lord, Lord Livsey, referred in Committee to some cases where complaints were put before an ombudsman and was frustrated by their progress. The noble Lord, Lord Roberts of Conwy, is also very concerned that there might be some recalcitrant authorities which will not heed the ombudsman's recommendation.

The noble Lord, Lord Roberts, did some research into complaints to the Local Government Ombudsman in England, but we are not talking about England, we are talking about Wales. The position in Wales is infinitely more encouraging. My officials have researched the record of authorities in Wales in complying with the existing Welsh ombudsman's recommendation. This research has shown that all recommendations of the Health Service Commissioner for Wales and the Welsh Administration Ombudsman have been complied with.

Since 1991 there have been only two occasions when the recommendations of the Local Government Ombudsman for Wales have not been complied with. Since the reorganisation of local government in Wales in 1996, all of the Local Government Ombudsman's recommendations have been complied with.

The Government's position on the issue of enforceability of the ombudsman's recommendations was set out in our joint consultation with the Assembly on the powers and jurisdiction of the ombudsman, issued in October 2003. No-one responding to the consultation thought that the ombudsman should have the power to enforce his recommendations. Indeed, the Parliamentary Commissioner, Ann Abraham, and the Public Services Ombudsman for Wales designate, Adam Peat, supported the Government's position on this.

I should like to read a little of the evidence that Ms Abraham gave to the Commons Welsh Affairs Select Committee. As your Lordships know, she is the Parliamentary Ombudsman. When asked, If there were a statutory enforcement provision, other than the naming and shaming approach, would this be a good thing? She said, The present situation is working well and there is nothing to be achieved by making a significant shift. There is, she goes on to say, A tendency to go for a much more legalistic and formal approach to the whole question of investigations. I think this is dangerous territory. What Adam Peat said about this legislation is squarely in the tradition of British ombudsmen and it is exactly how I see it. It is based on the benefit of experience so it is an opportunity to improve and modernise but it is not a dramatic, radical shift away from that tradition which has worked very well for many years.

Amendment No. 19 would insert a new clause after Clause 19 of the Bill. The effect would be to enable the ombudsman to certify to the High Court that a listed authority has wilfully disregarded the ombudsman's report without lawful excuse. I cannot agree to the amendment for the reasons I have already outlined.

Amendment No. 23 amends Clause 23, which makes provision in the case of a special report issued by the ombudsman in relation to a complaint against the Assembly. The intended effect of this amendment is to ensure that the First Minister's Motion, as provided for under this clause, must ask the Assembly to approve the ombudsman's recommendations as set out in the special report. In other words, the Motion itself could not ask the Assembly to approve anything other than the full set of the ombudsman's recommendations, without any amendments to those recommendations.

In the Government's view, Clause 23(2)(b) already achieves this. The Motion must relate to all the recommendations in the special report, otherwise it will not comply with Clause 23(2)(b).

Amendment No. 26 amends Clause 33. The effect of this amendment is to make it a requirement that the listed authority pays compensation as recommended by the ombudsman. In other words, this gives the ombudsman a power to order a listed authority to make a compensation payment. We cannot accept this amendment, as again it would have the effect of making the ombudsman's recommendations, in this case in relation to compensation payments, enforceable.

It may be helpful if I explain the reason for the inclusion of Clause 33(2) in the Bill, as the noble Lord, Lord Roberts described it in Committee as "curious". The provision is included in the Bill to ensure that all listed authorities will have the power to make compensation payments to a person aggrieved. Otherwise, some authorities may not have that power, except where a court or similar authority orders payment. The Government want to ensure that there are no technical barriers to the swift progression of redress—albeit voluntary redress—for an aggrieved person.

We do not intend that the ombudsman should be able to order a listed authority to make payment. That would be inconsistent with our overall policy on enforcement and, indeed, with the very concept of an ombudsman. The value of an ombudsman to the citizen is that she or he can help that citizen to obtain justice much more quickly and cheaply than through the courts and can do so where the courts would be powerless because there is no cause of action as such.

It is worth taking a moment to consider what would happen if we made ombudsmen's orders enforceable. If we did so, we would assimilate the ombudsman to a court, with all that that implies for procedural rights. For example, what powers of enforcement of the orders should apply? Should not the authority concerned have the power to appeal against the order? Should not the person aggrieved also have a power of appeal, if he or she thinks that the ombudsman has ordered too little redress?

I am grateful to my noble friend Lord Richard for highlighting some of the problems of the route taken by the amendments. If we go down that route, we will undermine the very purpose of an ombudsman, and the Government are unwilling to do that. Those who have a claim at law can assert it in the courts if they so choose. If they do not so choose and the ombudsman considers it reasonable to assist them, they have chosen a quicker and less expensive route in preference to a slower, more expensive but enforceable route. It is good that the citizen has that choice. Claims that the law does not recognise but which the ombudsman can pursue should not be the subject of an enforceable order.

I strongly urge your Lordships not to accept the amendment. It would insert a provision that has no teeth. It does not provide for what the High Court is expected to do if the matter comes before it. The noble Lord, Lord Roberts, is concerned about the enforceability of the ombudsman's recommendations. A provision without teeth such as this would not take the Bill any further forward in that respect.

Lord Roberts of Conwy

My Lords, I am grateful to the Minister for saying a few words about Amendments Nos. 23 and 26, to which I neglected to speak—perhaps in my enthusiasm for Amendment No. 19. I am also grateful to other noble Lords who participated in the debate.

It is worth pointing out that Amendment No. 26 highlights again the weakness of the ombudsman's position. Although the listed authority has power to make compensation where injustice or hardship has occurred, the ombudsman is left out of the clause and out of the picture altogether. He has no power of enforcement, although it is clearly true that a claimant who has a recommendation made by the ombudsman for compensation will be well armed, should he take the matter to court.

We are dealing primarily with enforceability. The noble Lord, Lord Richard, was wrong to say that the listed authority or the ombudsman could take the matter to the Assembly. That is not provided for in the Bill. So the ombudsman is in a weak position and can be defied by a listed authority, as has happened in England. I have before me a list of authorities in England that have defied the Local Government Ombudsman and left a very unsatisfactory situation with no action taken. That is no answer where injustice or hardship has occurred. Therefore, on the issue of enforceability, I beg to test the opinion of the House.

12.45 p.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 86.

Division No. 1
CONTENTS
Addington, L. Liverpool, E.
Allenby of Megiddo, V. Livsey of Talgarth, L. [Teller]
Alliance, L. Luke, L.
Ampthill, L. Maclennan of Rogart, L.
Astor, V. McNally, L.
Attlee, E. Maddock, B.
Barker, B. Maginnis of Drumglass, L.
Beaumont of Whitley, L. Mar and Kellie, E.
Biffen, L. Masham of Ilton, B.
Blaker, L. Mayhew of Twysden, L.
Bonham-Carter of Yarnbury, B. Miller of Hendon, B.
Bridgeman, V. Montrose, D.
Brooke of Sutton Mandeville, L. Mowbray and Stourton, L.
Brougham and Vaux, L. Murton of Lindisfarne, L.
Carnegy of Lour, B Neuberger, B.
Chalker of Wallasey, B. Northbrook, L.
Cope of Berkeley, L. [Teller] Northesk, E.
Craig of Radley, L. Northover, B.
Dean of Harptree, L. Norton of Louth, L.
Dholakia, L. Oakeshott of Seagrove Bay, L.
Dixon-Smith, L. Park of Monmouth, B.
Dykes, L. Plummer of St. Marylebone, L.
Elliott of Morpeth, L. Roberts of Conwy, L.
Elton, L. Roberts of Llandudno, L.
Ferrers, E. Rogan, L.
Flather, B. Roper, L.
Garden, L. Rotherwick, L.
Gardner of Parkes, B. Russell-Johnston, L.
Geddes, L. Sandberg, L.
Glasgow, E. Scott of Needham Market, B.
Goodhart, L. Seccombe, B.
Hamwee, B Selborne, E.
Hanham, B Sharp of Guildford, B.
Hanningfield, L. Shrewsbury, E.
Harris of Richmond, B. Shutt of Greetland, L.
Higgins, L. Skelmersdale, L.
Hodgson of Astley Abbotts, L. Soulsby of Swaffham Prior, L.
Hooper, B. Taverne, L.
Hooson, L. Thomas of Gresford, L.
Howard of Rising, L. Thomas of Swynnerton, L.
Howe, E. Thomas of Walliswood, B.
Kingsland, L. Thomson of Monifieth, L.
Laidlaw, L. Trumpington, B.
Lawson of Blaby, L. Ullswater, V.
Lewis of Newnham, L. Walmsley, B.
Windlesham, L.
NOT-CONTENTS
Acton, L. Christopher, L.
Ahmed, L. Clinton-Davis, L.
Andrews, B Condon, L.
Bassam of Brighton, L. Craigavon, V.
Berkeley, L. David, B.
Bhattacharyya, L. Davies of Oldham, L. [>Teller]
Boothroyd, B. Dean of Thornton-le-Fylde, B.
Borrie, L. Desai, L.
Brett, L. Donoughue, L.
Brooke of Alverthorpe, L. Dubs, L.
Brookman, L. Elder, L.
Burlison, L. Evans of Temple Guiting, L.
Campbell-Savours, L. Falconer of Thoroton, L. (Lord
Carter, L. Chancellor)
Carter of Coles, L. Farrington of Ribbleton, B.
Faulkner of Worcester, L. Morris of Manchester, L.
Finlay of Llandaff, B. Ponsonby of Shulbrede, L.
Gale, B. Puttnam, L.
Golding, B. Ramsay of Cartvale, B.
Goldsmith, L. Rees-Mogg, L.
Graham of Edmonton, L. Rendell of Babergh, B.
Greengross, B. Richard, L.
Grocott, L. [Teller] Rooker, L.
Harris of Haringey, L. Rosser, L.
Haworth, L. St. John of Bletso, L.
Henig, B. Scotland of Asthal, B.
Hollis of Heigham, B. Simon, V.
Howells of St. Davids, B. Stone of Blackheath, L.
Howie of Troon, L. Symons of Vernham Dean, B.
Hylton, L. Taylor of Blackburn, L.
Janner of Braunstone, L. Tenby, V.
Jordan, L. Tomlinson, L.
King of West Bromwich, L. Triesman, L.
Macdonald of Tradeston, L. Truscott, L.
McIntosh of Haringey, L. Tunnicliffe, L.
McIntosh of Hudnall, B. Turner of Camden, B.
MacKenzie of Culkein, L. Uddin, B.
Mackenzie of Framwellgate, L. Walpole, L.
McKenzie of Luton, L. Warner, L.
Marsh, L. Wedderburn of Charlton, L.
Massey of Darwen, B. Whitaker, B.
Merlyn-Rees, L. Wilkins, B.
Morgan of Drefelin, B. Williams of Elvel, L.
Williamson of Horton, L.

Resolved in the affirmative, and amendment agreed to accordingly.

12.55 p.m.

Clause 20 [Reports: alternative procedure]:

Lord Evans of Temple Guiting

moved Amendment No. 20: Page 11, line 28, leave out "an agreed" and insert "the permitted

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 21 and 22.

In Grand Committee, the noble Lord, Lord Roberts of Conwy, tabled an amendment to Clause 20, which deals with the alternative procedure for reports. The amendment sought to clarify the parties who would agree the period within which listed authorities would implement the ombudsman's recommendations. The noble Lord, together with the noble Lord, Lord Luke, has tabled an identical amendment, Amendment No. 21, on Report.

The amendment tabled by the noble Lord in Grand Committee caused the Government to reconsider the provision in this clause. Our intention has always been that the period would be agreed between the ombudsman, the person aggrieved and the listed authority. As that was not specified in the Bill, we saw that it could lead to some confusion.

As a result, I have tabled Amendments Nos. 20 and 22, which make the parties involved in agreeing the period clear in the Bill. Amendment No. 22 also makes provision for a situation where the three parties cannot agree on the length of the period. If the ombudsman thinks that agreement cannot be reached, he can specify the period in writing.

I believe that the noble Lord, Lord Roberts of Conwy, was concerned to ensure that the person aggrieved would have a part in agreeing the period. Bearing that in mind, I hope that he will be able to accept the amendments that I have tabled, as they make it clear that the person aggrieved would be involved in agreeing the period.

It follows from that that I cannot accept Amendment No. 21, tabled by the noble Lord, Lord Roberts of Conwy. However, as I have explained, I hope that the amendments that I have tabled deal with the point of principle that the noble Lords are concerned about. I invite the noble Lord not to move his amendment. I beg to move.

Lord Roberts of Conwy

My Lords, I shall not move Amendment No. 21. The Government have explained clearly that Amendments Nos. 20 and 22 will achieve the objective that we were after in Committee. I am glad to say that the Government have seen the light and accepted the substance of our amendments in Committee. They have tabled an excellent pair of amendments that achieve our purpose.

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

Lord Evans of Temple Guiting

moved Amendment No. 22: Page 11, line 31, at end insert— ( ) The permitted period is—

  1. (a) a period agreed between the Ombudsman, the listed authority and the person who made the complaint, or
  2. (b) if the Ombudsman thinks that no such agreement can be reached, the period specified by him in writing."

On Question, amendment agreed to.

Clause 23 [Special reports relating to the Assembly]:

[Amendment No. 23 not moved.]

Clause 27 [Listed authorities]:

Lord Evans of Temple Guiting

moved Amendment No. 24: Page 17, line 13, leave out "such persons as" and insert "the Ombudsman and any other persons

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Clause 33 [Compensation for the person aggrieved]:

[Amendment No. 26 not moved.]

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