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
