Appendix D
Letter from the Public Administration and Honours
Unit, Welsh Assembly Government to the Clerk of the Committee
Proposal for the Regulatory Reform (Local Commissioner
for Wales) Order 2004: request for further information
1. Thank you for your letter of 30 March. We were
pleased to hear that the Committee found our briefing on the above
helpful and trust that the following will address the subsequent
concerns that have been raised.
2. Taking each of the Committee's questions in turn:
Whether the proposal continues any necessary
protection (S.O. No. 141(6)(c))
Q 1 Please indicate why the arrangements requiring
the Commission for Local Authorities in Wales to comprise at least
one appointed Commissioner were retained when the legislation
establishing the Welsh Administration Ombudsman was enacted in
1998.
3. The Government of Wales Act 1998 was only concerned
with establishing the new office of Welsh Administration Ombudsman
and ensuring it had equal status to that of the Parliamentary
Commissioner for Administration (PCA) and the "Local Commissioner"
in the field of public sector Ombudsmen's services in Wales.
Provision therefore needed to be made so that if the office of
PCA and Welsh Administration Ombudsman ever came to be held by
different individuals, then the Welsh Administration Ombudsman
would, like the PCA, be a Commissioner of the Commission for Local
Administration in Wales in his/ her own right.
4. It would not have been appropriate to make any
fundamental changes to the Commission for Local Administration
in Wales or the definition of "Local Commissioner" at
that time without full and proper consultation. Reform of UK
public sector ombudsmen was in prospect, but the precise form
it should take in Wales was inevitably a matter on which the National
Assembly for Wales could be expected to have a view, and it would
not have been appropriate for reforms to have been implemented
by the Government of Wales Act 1998 before the Assembly had been
elected and had an opportunity to contribute to the debate. In
any event, the recommendations of the National Assembly Advisory
Group, which first floated the idea of a unified Ombudsman's service
for Wales, only emerged in September 1998, after the Government
of Wales Bill had received Royal Assent.
Q 2 Please indicate whether the present statutory
provision for the composition of the Commission and the appointment
of the Local Commissioner constitute a form of protection, and
if so why.
5. If we have interpreted the Committee's question
correctly we take the Committee's point that there is a form of
protection in section 23 (4) of the Local Government Act 1974.
That is, that the Secretary of State for Wales can only recommend
an individual for appointment as "Local Commissioner"
after consultation with "the appropriate representative body".
This, in Wales, means the Welsh Local Government Association
(WLGA).
6. When the offices of "Local Commissioner",
Health Service Commissioner for Wales and Welsh Administration
Ombudsman fell vacant in 2003 we advertised for a single individual
to take up all three offices under the non-statutory title of
Public Services Ombudsman for Wales (PSOW). The position of PSOW
was advertised subject to this Order being achieved and expressly
stated that should the successful candidate wish to relinquish
any of the offices earlier than statutorily required then the
expectation would be that all three offices would be relinquished
simultaneously.
7. The appointment of Mr Adam Peat to the offices
of "Local Commissioner" and Health Service Commissioner
for Wales were made in accordance with existing statutory requirements.[43]
The WLGA were, therefore, consulted. It is written into Mr Peat's
terms and conditions of service that relief or removal from one
office will necessitate relief or removal from the other two.
8. Technically, it could be argued that this proposed
Order would remove the protection referred to at paragraph five
above but that is dependent on whether the effect of this Order
is interpreted as meaning that the "Local Commissioner"
could also be appointed as Welsh Administration Ombudsman, or
whether the appointed Welsh Administration Ombudsman could act
as "Local Commissioner" without being appointed as a
"Local Commissioner", thereby circumventing the requirement
to consult the WLGA.
9. This technicality will only arise if this Order
is achieved and Mr Peat leaves office before existing statute[44]
has been replaced by a Public Services Ombudsman (Wales) Bill.
It is a statutory requirement that Mr Peat must relinquish each
office in the year in which the age of 65 is attained, that will
be in 2013, but he could, if he so wished, ask Her Majesty that
he be relieved from office earlier.
10. Should such a situation arise, we can confirm
that the Secretary of State for Wales would have due regard to
the statutory requirement to consult the WLGA on the appointment
of whomsoever is empowered to undertake investigations as "Local
Commissioner". That could take the form of:
i. retaining the current position whereby separate
appointments are made to each respective office even though that
would not strictly be required if the Welsh Administration Ombudsman,
who is already a Commissioner of the Commission for Local Administration
in Wales, can also undertake investigation as "Local Commissioner"
- as this Order proposes, or;
ii. mirror the current arrangement for the appointment
of the Health Service Commissioner for Wales and Welsh Administration
Ombudsman whereby party leaders within the National Assembly for
Wales are consulted on the appointments in accordance with a written
undertaking given to the National Assembly for Wales by the Rt.
Hon. Alun Michael when Secretary of State for Wales.
11. In order to protect the "Local Commissioner's"
status we envisage separate appointments continuing to all three
offices even if the Order is approved. Thus, if all three offices
fell unexpectedly vacant soon after the Order were made then we
would envisage a successful single candidate being separately,
and if needs be successively, appointed to each of the offices
of "Local Commissioner"; Health Service Commissioner
for Wales and Welsh Administration Ombudsman. That would have
the effect of section 23(4) of the Local Government Act 1974 continuing
to apply. If the Committee so wished, protection of section 23(4)
could be further enshrined in legislation rather than rely on
a commitment that the above procedure would be followed. While
we would need to consult the Office of the Parliamentary Counsel
on the drafting, we consider that the proposed Order could be
amended relatively easily to cater for that. For example, the
proposed Order could further amend section 23 to provide specifically
that a person may be appointed as a "Local Commissioner"
notwithstanding that he/she was also the Welsh Administration
Ombudsman. Alternatively section 23 (2A) could be amended to
provide that the Welsh Administration Ombudsman is only an ex
officio member where he/she is not also appointed as a "Local
Commissioner". While no doubt the Committee would wish to
consider any proposed drafting changes first, we hope that the
Committee would agree that such changes were purely of a technical
nature and not requiring further consultation.
12. We have tried, without success, to ascertain
through Hansard, the policy behind the initial provision in section
23 of the Local Government Act 1974 that there must be a Commission
for Local Administration in Wales consisting of, at a minimum,
the PCA and the "Local Commissioner". Similarly why
in relation to local government, the Ombudsman service is vested
in a Commission, a body corporate consisting of at least two Commissioners,
but in relation to health and parliamentary matters the Ombudsman
service is vested in an individual, a corporation sole.
13. This proposed Order does not, of course, change
the fundamental requirement for the Commission for Local Administration
in Wales to consist of at least two Commissioners. If, however,
the Committee wishes us to pursue the background to the policy
behind section 23 of the Local Government Act 1974 we will do
so with the Office of the Deputy Prime Minister.
Q 3 If the statutory provision referred to
in Q2 does constitute a form of protection, please explain why
that protection is not maintained under the proposals.
14. In light of our response to question two above
we believe that the protection that the appointment of whomsoever
is empowered to undertake investigations as "Local Commissioner"
is maintained.
Estimates in increases or reductions of costs
or other benefits (S.O. No. 141(6)(m))
Q 4 Please indicate what the practical consequences
of the joint appointments will be, in terms of re-location and
co-location of the relevant offices, if the proposed order is
made.
15. There are no practical consequences in terms
of re-location and co-location of the relevant offices by enabling
Mr Peat to hold the office of Welsh Administration Ombudsman as
well as his existing offices of "Local Commissioner"
and Health Service Commissioner if the proposed Order is made.
16. A key feature of Mr Peat's open recruitment was
that he would, "have responsibility for preparing for, implementing
and leading staff through the change that will necessarily come
about as a result of legislation to establish a unified public
sector Ombudsman service in Wales." It is in that context
that Mr Peat has immediately recognised that a seamless transition
to a unified service will not be possible unless the very different
working practices and organisation structure of the offices are
developed into a common culture. Co-location is a prerequisite
to that.
17. Staff of the Commission for Local Administration
in Wales, currently located in Bridgend, are employed by the Commission[45]
which, in practice, means, Mr Peat in his capacity as "Local
Commissioner". The office of the Welsh Administration Ombudsman
and Health Service Commissioner for Wales are co-located in Cardiff
but, in practice, all Cardiff staff are employees of Mr Peat as
Health Service Commissioner for Wales. Schedule 9, paragraph
5 to the Government of Wales Act 1998 provides for any function
of the Welsh Administration Ombudsman to be undertaken by a member
of the staff of the Health Service Commissioner for Wales if authorised
to do so by the Welsh Administration Ombudsman.
18. If this Order is not made it will not affect
any decision Mr Peat and Ms Abraham will need to make now, or
in the future, for the re-location and co-location of these offices.
Ms Ann Abraham fully supports Mr Peat.
Q 5 Please indicate whether there will be
any resulting costs or savings, and if so, what these are estimated
to be.
19. In light of our response to question four above
there no costs or savings arising out of any co-location and relocation
of Mr Peat's offices as that is not dependent on this Order.
20. Please don't hesitate to contact me if you require
any further information.
16 April 2004
43 Mr Peat succeeded to the offices of "Local
Commissioner" and Health Service Commissioner for Wales in
October and November 2003 respectively. Ann Abraham, Parliamentary
Commissioner for Administration, has agreed to stay in office
as Welsh Administration Ombudsman until the Autumn of 2004 in
expectation of Parliament approving the Regulatory Reform (Commission
for Local Administration in Wales) Order 2004. Back
44
Part III of The Local Government Act 1974 and Schedules 9 and
10 to The Government of Wales Act 1998. Back
45
The Commission consists of Mr Peat who as "Local Commissioner"
is Chairman of the Commission and Ann Abraham, who is both PCA
and Welsh Administration Ombudsman. Back
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