House of Commons - Regulatory Reform

Select Committee on Regulatory Reform Tenth Report

3 The report on the proposal

4. We issued our substantive report on 27 April 2004, early in the 60 day period for Parliamentary consideration. On 25 May 2004 we made our formal report to the House, in which we recommended that the proposal should be amended before a draft Order was laid.[4]

5. The Department has responded to the findings of our previous report in the explanatory statement laid with the draft Order.

Eventual primary legislation

6. The Government intends that the draft Order should be an interim step on the road to the eventual establishment of a Welsh Ombudsman's office. The office would amalgamate the present functions of the WAO, the Local Commissioner of the CLAW, and the Health Service Commissioner for Wales ("the HSCW"). The new Ombudsman would be able to investigate complaints across the range of public services in Wales.

7. The only legislative restriction on the same individual holding all three of the above offices would be removed by the draft Order. The creation of a single Welsh Ombudsman's office would require primary legislation. The Wales Office has stated that the principle of a Public Services Ombudsman (Wales) Bill has received cross-party support and will be introduced "when Parliamentary time allows".[5] A bid for such a Bill was included in the Assembly Government's programme of primary legislation in both 2003 and 2004, but there has been no firm indication that any such Bill will be included in the Government's legislative programme.

8. While the Government considered that the interim legislative and organisational arrangement for the structure of ombudsmen's services in Wales to be established following the passage of the draft Order would be sustainable "indefinitely", we considered that this would not constitute an ideal alternative to primary legislation which would put the unified service on a proper statutory footing.[6] We therefore recommended that the Government should include a Public Services Ombudsman (Wales) Bill in its legislative programme for the 2004-05 Session.

The Department's response

9. The Wales Office states that it has noted the Committee's recommendation on this point.[7] We recognise the convention that the Government does not make statements which may anticipate its sessional legislative programme contained in the Queen's Speech. We are nevertheless concerned that primary legislation should be introduced as soon as possible in order to place the new ombudsman service on a proper statutory footing.

10. We repeat our earlier recommendation that the Government should introduce a Public Services Ombudsman (Wales) Bill in the 2004-05 Session.

Necessary protection: appointments to the Commission for Local Authorities in Wales

11. We considered that the proposal maintained the necessary protections contained in existing legislation in all respects but one. Under the proposal as drafted, it would have been possible for the WAO to undertake investigations as a Local Commissioner, without being appointed under the procedure laid down in section 23(4) of the Local Government Act 1974 ("the 1974 Act"), which provides that the Queen shall appoint Commissioners to the CLAW only after consultation with representatives of local authorities in Wales. This also meant that the CLAW could be constituted without such consultation having taken place.

12. The Department argued that since the person whom the Government intends to appoint to the post of WAO, Mr Adam Peat, had already been appointed to the post of Local Commissioner under the provisions of section 23(4) of the 1974 Act, the necessary protections in respect of that appointment would in effect be retained until Mr Peat retired at the statutory retirement age of 65 or relinquished or was removed from all his ombudsmen's offices at an earlier date.[8] It assured us that should the three offices fall vacant before primary legislation constituting the unified Ombudsman's office was in effect, the Secretary of State would have "due regard" for the requirement to consult representatives of local authorities in Wales before recommending to the Queen a candidate for appointment to the CLAW.

13. We nevertheless considered that the provision constituted a necessary protection. We therefore recommended that the draft Order should be amended to ensure that the protection was maintained.

The Department's response

14. The Department has accepted the Committee's recommendation and amended the draft Order, which now provides that the WAO may act as a Local Commissioner of the CLAW only when he has also been appointed to the CLAW following consultation with representatives of local authorities in Wales.

15. We are content that the draft Order, as amended, maintains all necessary protections.

Consultation with the National Assembly for Wales

16. In our report on the proposal we noted that the Department had, in its explanatory statement, not made it sufficiently clear how it had met the requirement to consult with the National Assembly for Wales under section 5(1)(d) of the Regulatory Reform Act 2001 before laying the proposal. We reminded Departments of the need to set out clearly in explanatory statements the way in which the requirements of the 2001 Act have been met.

17. The Department accepts that the way in which the requirements of the 2001 Act had been met could have been set out more clearly in the explanatory statement. We are content with the Department's acknowledgment.

18. We are satisfied that the responsible Minister has had due regard to our previous report on the proposal for the draft Order.

4 Votes and Proceedings, 25 May 2003 Back

5 HC (2003--04) 553, para 24, citing the explanatory statement on the proposal, para 50 Back

6 HC (2003-04) 553, para 26 Back

7 Explanatory statement on the draft Order, para 8 Back

8 Mr Peat is due to reach retirement age in 2013. Should he wish to relinquish office earlier, his terms of service require him to relinquish each of the ombudsmen's offices he holds. Back