Select Committee on Regulatory Reform Sixth Report


5  Assessment of the proposal against Standing Order No. 141(6) criteria

Inappropriate use of delegated legislation

28. Before the Wales Office issued its consultation paper on the proposed order, the Secretary of State for Wales, Rt Hon Peter Hain MP, wrote to the Committee on 4 March 2003 to seek its without-prejudice view on whether the proposed order was likely to be appropriate for delegated legislation.[18]

29. The Committee considered the Secretary of State's request on 18 March 2003. The Chairman subsequently wrote to the Secretary of State indicating that the prospective draft order as described to the Committee would appear to make an appropriate use of the regulatory reform procedure.[19] The Wales Office has referred to the Committee's without-prejudice view in its explanatory statement.[20]

30. There appears to have been no substantive change in the outline of the proposal since the Secretary of State sought the Committee's without-prejudice advice in March 2003. What the proposed order purports to do is to remove a restriction on one individual holding all three posts. But it leaves the existing structure of offices and their jurisdictions intact. This does not appear to pre-empt, or to place any restriction upon, Parliament's consideration of a future Bill intended to make the necessary amendments to primary legislation in order to establish a unified ombudsman service in Wales.

31. The Secretary of State said in his letter of March 2003 that the provisions of the prospective order would be "sustainable indefinitely" pending the introduction of any Bill for a unified service. The Department has also said that the present proposal is in no way dependent upon implementation of proposals for a unified service, although it would provide for "an important interim step."[21]

32. We consider that the proposal appears to be appropriate for delegated legislation.

Removal of burdens

33. The Department considers that section 23(3) of the 1974 Act imposes a burden on the Welsh Administration Ombudsman, in that he cannot undertake investigations as a Local Commissioner of the CLAW.

34. The Department proposes to remove this burden by means of article 2 of the proposed order. This would amend section 23(3) of the 1974 Act to bring the Welsh Administration Ombudsman within the definition of a Local Commissioner able to undertake investigations. The Department considers that this constitutes the removal of a burden within the meaning of section 1(1)(a) of the Regulatory Reform Act 2001.

35. Section 2(1) of the Regulatory Reform Act 2001 excludes from the regulatory reform process any proposal which removes burdens which solely affect a Minister of the Crown or a Government department. In this case the restriction to be removed falls on the incumbent of the post of Welsh Assembly Ombudsman. The holder of the office is appointed by the Crown on the recommendation of the Secretary of State, and the office is entirely independent of Government.

36. We consider that the proposal removes a burden within the terms of the Regulatory Reform Act 2001.

Maintenance of necessary protection

37. In the explanatory statement the Department set out its view that the proposal does not remove any necessary protection from the functions of the Commission for Local Administration in Wales. It has stated that this protection for the CLAW in existing legislation resides in the requirement that there be at least two Commissioners.

38. When the post of Welsh Administration Ombudsman was created, it was theoretically possible for the CLAW to consist of three Commissioners, since the 1974 Act was amended to provide that the WAO should be an ex-officio Commissioner alongside the Parliamentary Commissioner for Administration. But the PCA has since 1998 also held the post of WAO, so there have in effect only been two Commissioners.

39. The proposal, if enacted, would allow the WAO to act as a Local Commissioner. But the restriction preventing the PCA from acting as a Local Commissioner would remain. There would therefore still be two Commissioners of the CLAW. The Department states that, in the event that the positions of PCA and WAO were again held by the same person, another Local Commissioner would have to be appointed.

40. The Department states that the proposed change does not alter the categories of potential complainants to the Ombudsman, does not alter the basis on which complaints can be made and does not add to or remove bodies from the Ombudsman's jurisdiction.[22]

APPOINTMENTS TO THE CLAW

41. There are two aspects of the protection provided by the existing legislation which we found the Department had not addressed in its explanatory statement. Both relate to the appointment of members to the CLAW:

a)  under section 23(4) of the 1974 Act, appointments to the CLAW (in effect appointments as Local Commissioners) are made by Her Majesty on the recommendation of the Secretary of State, after consultation with representatives of Welsh local authorities; and

b)  the CLAW should always comprise a Commissioner appointed under section 23(4) in addition to the ex-officio Commissioners (the PCA and the WAO).

42. Since the procedure in section 23(4) of the 1974 Act provides that the Crown shall consult with local authorities in Wales before appointing a Local Commissioner to the CLAW, this procedure may be considered a form of protection.

43. Under the proposal, the WAO would be a member of the CLAW, and able to act as a Local Commissioner, without having been appointed under the procedure in section 23(4). There would be no statutory requirement to consult local authorities in Wales before the WAO could act as a Local Commissioner, and it would in future be possible for the CLAW to be constituted with two Commissioners who had been appointed without consultation with local authorities in Wales.

44. We therefore asked the Department why the above arrangements were maintained when the legislation establishing the WAO was enacted in 1998; whether they constitute a form of protection; and, if so, what reason there was for that protection and why the protection is not maintained under the proposals.[23]

THE DEPARTMENT'S RESPONSE

45. The Department has explained the background to the present arrangements establishing the Welsh Administration Ombudsman as an ex-officio member of the CLAW. The Government of Wales Act 1998 established the office of WAO and ensured it had equal status with the offices of the PCA and the Local Commissioner of the CLAW. The Department has explained that the 1974 Act was amended to provide that, if the office of PCA and WAO ever came to be held by different individuals, the WAO would be a Commissioner of the CLAW in his or her own right.[24] The Department explains that it was not considered appropriate to make other changes to the method whereby the CLAW was constituted at that time without full and proper consultation, particularly since the National Assembly was yet to be elected.

46. The Department has accepted that there is a form of protection in the existing legislation which may be removed by the proposal. It nevertheless considers that the existing level of protection is maintained.[25] This is by virtue of the fact that the present Local Commissioner and Health Service Commissioner for Wales, Mr Adam Peat, was appointed under the existing statutory requirements. Mr Peat is required by statute to relinquish each of the ombudsmen's offices he holds in the year he reaches the age of 65. The Department explains that this will be in 2013, although Mr Peat may ask to be relieved from office earlier. The Department states that should he wish to relinquish, or should he be removed from, one of the offices he holds, his terms of service require him to relinquish or to be removed from the other ombudsmen's offices.[26]

47. Should the offices concerned fall vacant before existing statute has been replaced by a Public Services Ombudsman (Wales) Act, the Department has indicated that the Secretary of State would have 'due regard' to the statutory requirement to consult local authorities in Wales, via the Welsh Local Government Association, on the appointment of a Local Commissioner. The Department proposes two ways in which the Secretary of State could ensure that the present level of protection is maintained:

a)  by continuing the practice of making separate appointments to each ombudsman's office. The Department accepts that this would, strictly speaking, be unnecessary, since the person appointed as WAO would be ex officio a member of the CLAW and would be able to undertake investigations as a Local Commissioner should the proposed order be made; or

b)  by following the present arrangements on consultation for appointments to the posts of WAO and HSCW established by the Secretary of State for Wales. Rt Hon Alun Michael MP, when Secretary of State, gave a written undertaking to the National Assembly that party leaders within the Assembly would be consulted on such appointments.

48. Should the relevant posts fall vacant before the introduction of primary legislation, the Department envisages making separate appointments of the same individual to all three posts. The Department considers that this arrangement would maintain the protection contained in section 23(4) of the 1974 Act as respects the appointment of Local Commissioner.

49. The Department has nevertheless stated that the proposed order could be amended 'relatively easily' to ensure that the present statutory arrangements for appointment to the CLAW were maintained, and has advanced two possible ways in which the protection might be maintained.[27]

THE COMMITTEE'S VIEW

50. The Department argues that the present level of protection can be maintained de facto by administrative arrangements and undertakings.

51. We accept that the Department's intention is to secure the proposed order as an interim measure which will take advantage of the opportunity to appoint the same individual to all three ombudsman posts in Wales, pending the passage of primary legislation which will enable the establishment of a unified ombudsman service for Wales. We nevertheless consider that it is preferable for the order to be amended so as to maintain the statutory protection which presently exists in respect of the appointment of the Local Commissioner.

52. We consider that the proposed order should ensure that the Welsh Administration Ombudsman may act as a Local Commissioner only when he or she has been appointed to the CLAW under section 23(4). We recommend that the proposed order be so amended before a draft order is laid before the House.

53. The amendments we have outlined above appear to fall within the scope of the present proposal, and we do not believe that further consultation in this respect is necessary.

Preventing exercise of rights or freedoms

54. The Department does not consider that the proposal would prevent anyone from exercising a right or freedom which they might otherwise expect to exercise. It notes that consultees have agreed with this view.

55. Since the proposed change does not, in the Department's opinion, alter the categories of potential complainants to the Ombudsman, does not alter the basis on which complaints can be made and does not add to or remove bodies from the Ombudsman's jurisdiction, we consider that the proposal does not prevent anyone from exercising a right or freedom which they might otherwise expect to exercise.

Adequate consultation

56. The Department published the consultation document on 14 July 2003, and the initial consultation period closed on 26 August, after a brief extension. The period of consultation was therefore six weeks, reduced from the twelve weeks stipulated by the Cabinet Office's Code of Practice on Written Consultation.

57. The Secretary of State indicated in March 2003 that the consultation period on the proposed order was likely to be reduced. In his letter of 18 March 2003, the Chairman reminded the Secretary of State that he should be prepared to justify why the consultation period was reduced.[28]

58. The Wales Office has stated that the consultation period was shortened "in light of an earlier consultation on this issue."[29] A consultation on the principle of bringing together the three offices of the Commission for Local Administration in Wales, the Welsh Administration Ombudsman and the Health Service Commission for Wales, into "a unified service led by a single individual" was launched on 4 December 2002 and closed on 7 February 2003.[30]

59. A subsequent consultation, on the detailed powers and jurisdiction of a unified ombudsman's office, was launched on 8 October 2003 and closed on 19 December 2003.[31]

60. The Department published the consultation document online and publicised it by means of a press release, as well as sending copies to specific consultees. The list of consultees is set out in annex A of the explanatory statement.

61. A total of 28 consultees responded to the consultation. The Department has included in its analysis of responses all responses received after the closing date for the consultation. The Department states that 24 of the responses were in favour of the proposals, and four offered no view. A table summarising the responses received, by sector, is included in the explanatory statement at paragraph 46. A summary of responses received is at annex B of the explanatory statement.

62. When it considered the appropriateness of the prospective order in March 2003, the Committee noted that the object of the consultation on the prospective order was substantively different from that of the Government's initial consultation, which was on establishing the principle of a unified service. It was therefore conceivable that consultees who welcomed the principle of a unified service might nevertheless have believed that the course of action the Government intended to take in establishing a de facto unified service was not the right one.

63. It appears that the Department has consulted widely on the proposal, following on from its initial consultation on a unified ombudsman's service for Wales, and that none of the consultees have raised objections against the proposal either during or after the period for consultation. We therefore consider that the period allowed for consultation on this proposal has been adequate.

64. The acting Welsh Administration Ombudsman and (then) Health Service Commissioner for Wales, Ms Ann Abraham, welcomed the proposals, as did the then Local Commissioner, Mr Elwyn Moseley. The proposals are also supported by the British and Irish Ombudsman Association and the Chairman of the Commission for Local Administration in England.

65. All Members of the Welsh Assembly have been consulted individually on the proposal. Since the proposal does not modify any of the functions of the National Assembly, the formal consent of the Assembly to the making of the order is not required. The Minister responsible is nevertheless required to consult the National Assembly as a body on any proposed order where the provision made by the order would extend to Wales.[32]

66. In this case the Welsh Assembly Government has itself prepared the proposal and has arranged for the Wales Office to promote its passage through Parliament under the provisions of section 41 of the Government of Wales Act 1998.

67. This point was not expressed explicitly in the explanatory statement. We take this opportunity to remind Departments that they should, when preparing explanatory statements, set out in full how the specific requirements of section 5(1) of the Regulatory Reform Act regarding statutory consultation have been fulfilled.

RELEVANT POINTS MADE IN RESPONSE TO CONSULTATION

68. One of the Government bodies likely to be affected by the new arrangements, the Environment Agency, commented that allowing a single official to hold all three Ombudsman posts in Wales would lead to a "more co-ordinated approach" to the investigation of complaints made against the Agency in Wales. It considered this to be a beneficial arrangement, since in its experience a number of complaints made to separate ombudsmen's offices appeared to be mis-directed.

69. Caerphilly Country Borough Council noted that "it would not be realistic to expect the new (combined) Ombudsman to have detailed local government experience", and therefore recommended that "there should be within the new management structure a deputy who possesses . . . detailed legal and constitutional knowledge so that the practical issues that local government monitoring officers are able to discuss directly with Mr Moseley [the previous Local Commissioner] can still be dealt with in the future structure by someone at a senior level in the organisation who has the necessary background knowledge."

70. The Department has responded to the point by indicating the responses received to its consultation on the principle of establishing a unified service. It states that the responses received indicated an over-riding concern that the unified ombudsman service should have access to specialist advice from the health, local government and parliamentary sectors.[33]

Costs and benefitsand benefits

71. A regulatory impact assessment has been prepared and is attached to the explanatory statement.[34]

Costs

72. The Department states that there are no cost implications arising from the implementation of the proposal. The remuneration to be paid to the individual who holds all three posts is to be set at that currently received by the Local Commissioner. The three posts were advertised in March 1999 at a combined salary of £102,999 per annum, rising to £107,408 from 1 April 2003. The Department does not intend to increase the salary payable to the Local Commissioner to reflect the additional time commitment to the offices of WAO and HSCW.[35]

73. The Department considers that the alternative option to the regulatory reform order, that of making three separate appointments and waiting for primary legislation, would not have been viable. It would also have resulted in nugatory expenditure, since another competition for the unified ombudsman post would have been required following the passage of primary legislation.[36]

74. The Department did not set out in the explanatory statement whether there were any costs involved in the practical reorganisations consequent on the appointment of the same individual to all three posts. We therefore asked the Department what the practical consequences of the joint appointments would be, if the proposed order were made, and whether there would be any resulting costs.

75. Staff of the CLAW are located in Bridgend, while staff of the WAO and HSCW are located on the same site in Cardiff. In practice staff of the HSCW may undertake any function of the WAO if authorised to do so by the WAO.[37]

76. The Department has stated that the passage of the proposed order will have no practical consequences in terms of relocation or co-location of offices.[38] But, although staff of the three offices will not be required to relocate following the passage of the proposed order, the Department states that the present Local Commissioner and HSCW, Mr Peat, will undertake to develop "the very different working practices and organisational structure of the offices . . . into a common culture." It considers that co-location of the three offices is a prerequisite to this, although such co-locations or relocations are not dependent on the passage of the proposed order.[39]

Benefits

77. The Department identified the following benefits from the proposal:

  • The proposal would allow progress to be made towards the establishment of a unified ombudsman service in Wales, which is an approach strongly endorsed by responses to consultation on the subject;
  • The arrangement whereby one individual would hold three posts would provide "a greater consistency of approach to investigations and a more co-ordinated response to all complaints";
  • One individual would better be able to raise the overall profile of the ombudsman service.

78. The Department states that where the posts of PCA, WAO and/or HSCW are held by the same person, existing legislation prevents the PCA drawing a salary for the offices in Wales. The three offices have historically been held by the same individual. Since the establishment of the WAO and the National Assembly, the amount of time the PCA has spent on Welsh matters as WAO or HSCW has been charged to the Assembly on a pro-rata basis. The Department indicates that there are therefore no savings to be made in this area.

79. We consider that the proposal has been the subject of, and takes appropriate account of, estimates of increases or reductions in costs or other benefits which may result from its implementation.


18   Appendix A Back

19   The Chairman's letter is printed at Appendix B. Back

20   Explanatory statement, para 48 Back

21   Explanatory statement, para 51 Back

22   Explanatory statement, para 33 Back

23   Appendix C Back

24   Appendix D, para 3 Back

25   Appendix D, para 14 Back

26   Appendix D, para 7 Back

27   Appendix D, para 11 Back

28   Appendix B Back

29   Explanatory statement, para 45 Back

30   Explanatory statement, para 13: Ombudsmen's Services in Wales: Time for Change?, Wales Office and Welsh Assembly Government, December 2002 Back

31   Explanatory statement, para 14: A Public Services Ombudsman for Wales: Powers and Jurisdiction, Wales Office and Welsh Assembly Government, October 2003 Back

32   Section 5(1)(d) of the Regulatory Reform Act 2001 Back

33   Explanatory statement, annex B, response F2 Back

34   Explanatory statement, annex C Back

35   Explanatory statement, annex C, para 12 Back

36   Explanatory statement, annex C, para 8.2 Back

37   Government of Wales Act 1998, schedule 9, para 5 Back

38   Appendix D, paras 15, 19 Back

39   Appendix D, para 16 Back


 
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