Select Committee on Liaison First Report


APPENDIX 18

SELECT COMMITTEE ON THE PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION 1992-97

Report by Mr James Pawsey, Chairman of the Committee

Introduction

  1. The Select Committee on the Parliamentary Commissioner for Administration ("the Committee") is appointed under Standing Order No. 126 "to examine the reports of the Parliamentary Commissioner for Administration, of the Health Service Commissioners for England, Scotland and Wales and of the Parliamentary Commissioner for Administration for Northern Ireland, which are laid before this House, and matters in connection therewith".[111]

  2. The Committee consists of nine Members and is staffed by a Senior Clerk in the Committee Office, a Committee Assistant and a secretary. The Ombudsman[112] and his staff also aid the Committee in its consideration of the Ombudsman's reports, the Ombudsman normally attending the Committee and sitting alongside the Members, during the taking of evidence.

  3. In discussing the Committee's work and the recent recommendations of the Trade and Industry Committee and the Public Service Committee, the distinctive nature of the Committee should be borne in mind. It has much more in common with the Public Accounts Committee (the PAC) than the departmental select committees. Like the PAC, the Committee examines the reports of an Officer of the House, appointed by statute, who is charged with the investigation of Government departments and agencies. The Committee takes evidence from relevant officials and then produces its own report. This affects any discussion both of the subjects investigated by the Committee and its powers.

The Work of the Committee in this Parliament

  4. The Committee was nominated on 2 December 1992. This contrasts with the Public Accounts Committee, nominated on 22 May 1992, and the departmental select committees, nominated on 13 July 1992. In its First Report of Session 1992-93 the Committee stated that "it is quite unacceptable that there should be such delay in establishing a Select Committee whose task is to report on failures of Government in its service to the individual"[113]. The Ombudsman also regretted the delay[114]. It is hoped that in the next Parliament the Committee will be nominated as soon as possible and no later than other select committees.

  5. Details of the Committee's work in this Parliament are given in the separate statistical summary. This Parliament has witnessed a significant increase in the work of the Committee. In the first four sessions of the previous Parliament the Committee met on 59 occasions and produced 10 Reports. In the first four sessions of the current Parliament the Committee met 99 times and produced 19 Reports and 10 Special Reports. In addition, the Committee visited France in connection with its inquiry into the Powers, Work and Jurisdiction of the Ombudsman and Australia and New Zealand in connection with its inquiry into Open Government. Three debates took place in the House on Committee Reports[115]

  6. The Committee has continued its `traditional' work of taking evidence from the Ombudsmen on their Annual Reports. In the case of the Reports of the Parliamentary Ombudsman, the Committee then selects a few Departments and agencies for further examination inviting the relevant permanent secretaries and chief executives to appear as witnesses. In the case of Reports of the Health Service Ombudsman, the Committee invites selected hospital trusts and health authorities mentioned in the Ombudsman's published investigations. The Committee asks why the maladministration took place, what steps have been taken to ensure that similar failures do not recur and what redress or compensation has been offered to those harmed.

  7. The increase in workload has been a result of two additional types of investigation now undertaken by the Committee. In this Parliament the Ombudsman has begun to publish many more `special reports', in which a particular case, or group of cases, is highlighted because of its seriousness, or because of the issues of redress or administrative practice which arise. The Committee has conducted a number of inquiries on these special reports, taking evidence from such bodies as MAFF, the Driver and Vehicle Licensing Agency and the Child Support Agency.

  8. The Committee has also undertaken some `thematic inquiries', taking a subject which relates to the Ombudsman's work and looking at relevant points of policy. The three investigations of this type in this Parliament have been `The Powers, Work and Jurisdiction of the Ombudsman'[116], `Maladministration and Redress'[117], and `Open Government'.[118]

  9. The Committee's work is the consideration of complaints against the Executive. It also examines the Ombudsman's reports on access to official information. The Committee thus has a particular interest in both the accountability and the openness of Government. Many of the recommendations of the Committee in its `Open Government' Report were then repeated by the Public Service Committee in its Report on `Ministerial Accountability and Responsibility'. These include recommendations for the revision both of the Code of Practice on Access to Government Information and of the `Osmotherly Rules'. The Committee will continue to monitor and examine the progress of open government.

  10. One other inquiry deserves particular mention. For only the second time in the history of his Office, the Ombudsman laid a Report before Parliament in which he stated that the injustice identified had not been remedied by the department concerned -the Report was `The Channel Tunnel Rail Link and Blight'[119] and the relevant department was the Department of Transport. The Committee took evidence from both the Permanent Secretary and the Secretary of State on why the Department refused to accept the Ombudsman's conclusions. The Committee then produced its own Report supporting the Ombudsman and recommending that the Government consider compensating those suffering exceptional hardship as a result of the rail link.[120] In response the Government agreed to consider compensation "out of respect for the PCA Select Committee and the office of the Parliamentary Commissioner, and without admission of fault or liability".[121]

  11. In summary, the work of the Committee in this Parliament has demonstrated the importance of a committee dedicated to the consideration of the Ombudsman's reports. Redress has been achieved for many harmed by maladministration and improvements in administration secured. Furthermore, the work of the Committee has helped publicise the Ombudsman's Office.

Resources

  12. Current staffing levels are adequate for the Committee's workload. The Committee is served by a Senior Clerk, a Committee Assistant (a Chief Office Clerk also working for the Procedure Committee and the Standards and Privileges Committee) and a Secretary (also working for the Procedure Committee, the Works of Art Committee and the Private Bill Office). It is most important that current levels of staffing are maintained, and, when necessary, increased. Earlier in the Parliament the Clerk also had other responsibilities in procedural offices. This was not compatible with the Committee's increased workload.

  13. The Committee has the power to appoint specialist advisers but has not done so in this Parliament. Specialist advice is in effect provided by the Ombudsman and his staff.

Issues raised by the Reports of the Public Service Committee and the Trade and Industry Committee

Scrutiny of Agencies and other non-departmental bodies

  14. For those agencies which come within his jurisdiction, the Ombudsman enjoys the same powers of investigation as for Government departments. These powers include access to all papers, apart from Cabinet and Cabinet committee papers, and the right to sub poena witnesses. There are occasions where the Ombudsman is unable to examine a complaint of maladministration because of the limitations to his jurisdiction as set out in the Act. If the Committee considers the restriction to be unjustified, its practice is not to consider the complaint itself but rather to argue for an extension to the Ombudsman's jurisdiction.

  15. The Ombudsman and the Committee have examined a number of agencies during this Parliament, taking evidence from the relevant Chief Executive and other officials. There remain, however, a number of non-departmental public bodies outside the Ombudsman's jurisdiction. They include the Atomic Energy Authority, the Monopolies and Mergers Commission, the Civil Aviation Authority, the Crown Prosecution Service, the Bank of England, the National Curriculum Council, the Broadcasting Standards Council and Training and Enterprise Councils.[122] The Committee has recommended that Departments, agencies and non-departmental bodies come automatically within the Ombudsman's jurisdiction unless explicitly excluded in a Schedule to the Act.[123] The Government has to date refused to accept this recommendation, claiming such a proposal is too complicated to implement[124]. We consider that the Ombudsman's, and the Committee's, scrutiny of maladministration in Whitehall is severely hindered by the present omissions from his jurisdiction.

  16. The Committee conducted an inquiry into the Child Support Agency after the publication by the Ombudsman of a special report in which he stated that he had received an unprecedented number of complaints concerning the Agency.[125] The Committee took evidence not only from the Permanent Secretary and Chief Executive, but also from the Minister, on the establishment and administration of the Agency. It may be helpful to quote in full a relevant paragraph from the Committee's subsequent Report:

    "The Committee took evidence from Mr Alistair Burt MP, Parliamentary Under-Secretary of State, Department of Social Security. This was the first occasion that a Minister had been questioned by this Committee on the contents of an Ombudsman Report. The custom has always been to take evidence from the relevant Permanent Secretary or Chief Executive. The reason is clear. It is the Permanent Secretary who is responsible for the efficient administration of the Department. He or she will have made many of the important administrative decisions and will be aware of the detailed administration of the department. The Committee has never believed, however, that Ministers cannot be held to account for the administrative actions of their department. Indeed the Committee has in another recent case criticised Ministers for administrative failure. Furthermore in 1968, in the first Report this Committee ever laid before the House, it emphasised that "Ministers are not exempt from examination by the Commissioner or Your Committee.."."[126]

  17. The Report went on to claim that Ministers were partially responsible for deficiencies in the preparation for the new Agency. The Committee referred to a section from the Government White Paper, `Taking Forward Continuity and Change', which stated that Ministers were responsible for "the policies of the department, for the framework through which those policies are delivered, for the resources allocated, for such implementation decisions as the framework document may require to be referred or agreed with him, and for his response to major failures or expressions or parliamentary or public concern".[127] This should not necessarily be taken to indicate acceptance of the Government definition of Ministerial responsibility. The Committee made clear in this Report that it would judge the extent of Ministerial responsibility for maladministration on a case by case basis. There would be no presumption that Ministers were not responsible.

Access to Government papers

  18. The Committee has not had any difficulty in gaining access to papers required during the course of a specific inquiry. In practice, the Committee's investigations concentrate on the facts of the case as outlined in the reports of the Ombudsman and rely on his quotation from Government papers. Under the Parliamentary Commissioner Act 1967 the Ombudsman has access to all government papers, bar those of Cabinet and Cabinet committees, and there is thus ordinarily no obstacle to a full analysis of relevant documents.

  19. The Committee has, however, commented on limitations to the Ombudsman's jurisdiction which, by extension, inhibit the Committee's ability to consider maladministration in Departments and agencies. As has been mentioned above, the Ombudsman has no access to Cabinet and Cabinet Committee papers. The Committee had recommended in the Report of a previous Parliament that this prohibition be removed, with appropriate safeguards.[128] The issue arose again in the current Parliament in relation to the Ombudsman's jurisdiction over Open Government matters. A request for information to the Lord Chancellor's Department was refused and the requester appealed to the Ombudsman. The Ombudsman began a formal investigation but was then forced to discontinue it when he was told that the papers in question were Cabinet committee papers.[129]

  20. In its Report on `Open Government', the Committee repeated its recommendation that the Ombudsman be allowed access to such Cabinet papers.[130] The Government in its response rejected the recommendation.[131] The Committee considers this to be an unacceptable omission from the Ombudsman's powers and thus a limitation both on the individual's right to redress and to Parliament's duty of scrutiny.

  21. It should be noted that under section 11 (3) of the Parliamentary Commissioner Act 1967 a Minister can give notice to the Ombudsman in writing that the disclosure of a document or information "would be prejudicial to the safety of the State or otherwise contrary to the public interest". In such a case the Ombudsman is prevented from publishing the relevant information. This provision has been used, but rarely. The Ombudsman has never told the Committee of an occasion where he has considered the use of this power to be improper. Were he to do so, the Committee would pursue matters with the Minister concerned.

 22. Mention should also be made of an exchange between the Chairman of the Committee and the Secretary of State for Transport which took place during the inquiry into the `Channel Tunnel Rail Link and Exceptional Hardship'. The Secretary of State was examined on the internal discussion within the Department of Transport on the issue of compensation for generalised blight. He invited the Chairman of the Committee, but not the other Members, to examine confidential papers at the Department of Transport. The Chairman responded in a letter dated 23 May 1995, as follows:

    "In your evidence this morning you offered me the opportunity, as Chairman of the Committee, to examine on a confidential basis certain policy documents relating to your Department's internal consideration of blight during the time covered by the Ombudsman's report. You did not indicate whether any of the documents to which you refer are ones which had not been provided to the Ombudsman's office during the course of his investigation. If any of them cast any doubt on the statement in paragraph 45 of his special report, the Committee would expect them to have been drawn specifically to his attention by the Permanent Secretary when the draft report was sent to the Department. Sir Patrick Brown's memorandum at Appendix 4 to the report suggests that the Department's consideration of blight was not concerned with the possibility of compensation falling outside the scheme of general application.

    Moreover any documents that I might see could not be considered evidence to the Committee as a whole and could not therefore have any bearing on the Committee's deliberations. In those circumstances I am sure you will understand why I must decline your offer. The Committee as a whole would be happy to receive on a confidential basis any documents which demonstrate that the Department gave specific and active consideration to the possibility of compensation in instances of exceptional suffering from generalised blight caused by the Channel Tunnel Rail Link project."[132]


Other matters

  23. Other matters raised by the Trade and Industry Committee and the Public Service Committee are not considered directly relevant to the Committee's work. No difficulties, beyond those mentioned above, have been encountered in the calling of witnesses and access to information. The Committee has taken note of work by the PAC when relevant to its own inquiries but for the most part the work of the Ombudsman and the PCA Committee is complementary to that of the Comptroller and Auditor General and the PAC. The Committee has no comment to make on the concept of Parliamentary Commissions or the "crown jewels" procedure.


111   Standing Order No. 126 (1) Back

112   The posts of Parliamentary Commissioner for Administration, and Health Service Commissioners for England, Scotland and Wales are currently all held by the same individual, commonly known as `the Ombudsman'. The Northern Ireland Parliamentary Commissioner for Administration is known as `the Northern Ireland Parliamentary Ombudsman'. Back

113   First Report from the Select Committee on the PCA, Session 1992-93, HC 387, para. 3 Back

114   PCA Annual Report for 1992, Session 1992-93, HC 509, p. 1 Back

115  15.12.94, Estimates Day debate on the Committee's Report on the Powers, Work and Jurisdiction of the Ombudsman and the Report of the Health Service Commissioner for 1992-93; 24.4.96, Wednesday morning debate on the Child Support Agency; and 10.12.96, Estimates Day debate on Open Government. Back

116   First Report from the Select Committee on the PCA, Session 1993-94, HC 33 Back

117   First Report from the Select Committee on the PCA, Session 1994-95, HC 112 Back

118   Second Report from the Select Committee on the PCA, Session 1995-96, HC 84  Back

119   Fifth Report of the PCA, Session 1994-95, `The Channel Tunnel Rail Link and Blight', HC 193 Back

120   Sixth Report from the Select Committee on the PCA, Session 1994-95, `The Channel Tunnel Rail Link and Exceptional Hardship', HC 270 Back

121   Fifth Special Report from the Select Committee on the PCA, Session 1994-95, HC 819, p. iv Back

122   Second Report from the Select Committee on the PCA, Session 1995-96, `Open Government', HC 84, para.112 Back

123  First Report from the Select Committee on the PCA, Session 1993-94, `The Powers, Work and Jurisdiction of the Ombudsman', HC 33, para.50 Back

124  First Special Report from the Select Committee on the PCA, Session 1996-97, HC 75, p.xiv Back

125   Third Report of the PCA, Session 1994-95, HC 135 Back

126  Third Report from the Select Committee on the PCA, Session 1994-95, `The Child Support Agency', HC 199, para.25 Back

127   Third Report from the Select Committee on the PCA, Session 1994-95, `The Child Support Agency', HC 199, para. 27 Back

128   Fourth Report from the Select Committee on the PCA, Session 1977-78, HC 615, para. 34 Back

129   Second Report from the Select Committee on the PCA, Session 1995-96, HC 84, para. 113 Back

130   ibid. Back

131   First Special Report from the Select Committee on the PCA, Session 1996-97, HC 75, p.vii Back

132  Appendix 9 to the Sixth Report from the Select Committee on the PCA, Session 1994-95, `The Channel Tunnel Rail Link and Exceptional Hardship', HC 270 Back


 
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Prepared 13 March 1997