3 Purpose of the proposal
14. The Welsh Administration Ombudsman holds ex
officio the office of Commissioner of the Commission for Local
Administration in Wales. The WAO is presently prevented from undertaking
investigations as a Local Commissioner of the CLAW. The purpose
of the proposal is to amend section 23(2A) and (3) of the Local
Government Act 1974 ("the 1974 Act") to remove the restriction
preventing the WAO from undertaking investigations as a Local
Commissioner.
15. The proposal also makes consequential amendments
to the 1974 Act, the Government of Wales Act 1998 ("the 1998
Act") and the Health Service Commissioners Act 1993 ("the
1993 Act"). Where one person holds all three offices (or
any two of them) these amendments would allow the disclosure of
information obtained in dealing with a complaint in one capacity
for the purposes of dealing with a complaint by the same person
relating to the same matter in any of the other capacities.
16. The Local Commissioner (sometimes known as the
Local Government Ombudsman) can presently investigate complaints
of local government maladministration in Wales. The matters which
may be investigated by the Local Commissioner are set out in section
26 of the 1974 Act. These include maladministration by local authorities
and certain other bodies. In addition, the Local Commissioner
may investigate complaints of misconduct by a local authority
member (investigated under part III, chapter III of the Local
Government Act 2000).
17. The CLAW has historically consisted of two Commissioners.
One of these commissioners is, ex officio, the Parliamentary
Commissioner for Administration. The PCA is not empowered to undertake
investigations under the 1974 Act. The other commissioner is empowered
to undertake investigations as a "Local Commissioner".
18. The Government of Wales Act 1998 created the
office of Welsh Administration Ombudsman, who is also, ex officio,
a Commissioner of the CLAW but (like the PCA) does not have the
power to undertake investigations. Since the Act was enacted Her
Majesty has always appointed the PCA to the office of Welsh Administration
Ombudsman, so the number of Commissioners of the CLAW has remained
at two.
19. The proposal would therefore enable three of
the four offices of public sector ombudsmen able to investigate
complaints about public bodies in Wales—the Welsh Administration
Ombudsman, the CLAW's Local Commissioner and the Health Service
Commissioner for Wales—to be held by the same individual.
In addition, legislation presently before the House will, if enacted,
create the office of a Social Housing Ombudsman for Wales (OSHOW),
the functions of which are intended to be discharged by the Local
Commissioner. This legislation is discussed further at paragraph
22 below.
20. The proposal would not amend the powers or jurisdictions
of any of the offices affected. The Wales Office has consulted
on the specific powers and jurisdiction which a unified Ombudsman's
office should have.[12]
Implementation of any proposals emerging from that consultation
process would require primary legislation and would be beyond
the scope of the present proposal. The issue of primary legislation
is discussed at paragraph 24 below.
21. Should the order be made, it is intended that
Ms Ann Abraham will relinquish her post as acting WAO in the autumn
of 2004. The Government then intends to appoint Mr Adam Peat to
the post of WAO, since the restriction preventing the WAO from
undertaking investigations as a Local Commissioner of the CLAW
will have been lifted. As PCA, Ann Abraham will remain as a Commissioner
of the CLAW, but will be unable to undertake investigations.
Related primary legislation: the
Housing Bill
22. The Housing Bill, which is presently awaiting
Report Stage in the Commons, would create an Office of Social
Housing Ombudsman for Wales ("the OSHOW"). This officer
would investigate complaints against registered social landlords.
The Bill would provide that the Local Commissioner of the CLAW
would exercise the jurisdiction of the OSHOW. In effect, should
the proposed order be made and the Bill be enacted, one individual
would be able to hold four public sector ombudsman appointments.
23. The Wales Office considers that the Bill, if
enacted, would not affect the arrangements or the case for the
proposed regulatory reform order.[13]
Prospective legislation: a Public
Services Ombudsman (Wales) Bill
24. The Wales Office intends this proposal as an
interim step towards the establishment of a single ombudsman service
for Wales, which will require primary legislation via a Public
Services Ombudsman (Wales) Bill. The Wales Office has stated that
this bill has received cross-party support and will be introduced
"when Parliamentary time allows."[14]
25. The National Assembly for Wales approved the
principle of a Public Service Ombudsman (Wales) Bill in March
2003, as part of the legislative programme the Assembly Government
proposed to submit to the UK Government for inclusion in its legislative
programme for the present Session.[15]
A Bill was not included in the Queen's Speech, and we have received
no indication that one will be forthcoming in this Session. The
National Assembly again approved the principle of a Bill in its
debate on the Assembly Government's legislative programme on 17
March 2004.[16]
26. The Secretary of State for Wales considers that
the interim arrangement for the structure of ombudsmen's services
in Wales which the proposed order would establish is sustainable
"indefinitely".[17]
While this may be so, it is clearly not an ideal alternative
to primary legislation which would provide a proper statutory
basis for a unified ombudsman service in Wales. We recommend
that a Public Services Ombudsman (Wales) Bill, to provide a statutory
basis for a unified ombudsman service in Wales, should be included
in the Government's legislative programme for the 2004-05 Session.
12 The consultation paper A Public Service Ombudsman
for Wales: Powers and Jurisdiction was issued in September
2003, and consultation closed in December 2003: see below, para
58. Back
13
Explanatory statement, para 6, footnote 2 Back
14
Explanatory statement, para 50 Back
15
Official Record, National Assembly for Wales, 12 March 2003, pp
32-56 Back
16
Ibid., 17 March 2004, pp 37-69 Back
17
Appendix A, para 7 Back
|
