Examination of Witnesses (Questions 20-39)
THURSDAY 27 NOVEMBER
2003
ANN ABRAHAM
Q20 Annette Brooke: So if there is an
appropriate time you will come back and debate that with us?
Ms Abraham: If the court decides
on my jurisdiction in relation to the Government Actuary's Department,
that is that. It is a legal point.
Q21 Chairman: Just on that last point,
is there not a point, though, that rather like you wanting reform
of the Ombudsman system so that you can follow complaints wherever
they might lead, is not the same logic here that you really ought
to have the ability to follow complaints across government wherever
they might lead, and not be detained by arguments about whether
something is in or outside jurisdiction or not?
Ms Abraham: I agree in that I
absolutely fundamentally believe that there should be proper coverage
within the jurisdiction of an ombudsman of all of the activities
of public service providers in government, and there should be
clarity, the jurisdiction should be kept up to date, it should
be comprehensive and it should be relevant. There has been a lot
of work undertaken in recent months to update Schedule 2, and
an Order in Council I believe is before Parliament at the moment.
So I am very much of the view that jurisdiction should be comprehensive
and appropriate but if the law says that this is not within my
jurisdiction, and presumably if there was a particular reason
for that which Parliament accepted in 1967, then it is not really
not for me to act differently. But I would like to turn this upside
down. I would like to say that rather than have a list of departments
that are in, there should be a list of the departments that are
out and the reasons for it, and that would perhaps prevent some
of the difficulties that arise when new bodies are created and
the specific action that needs to be taken to bring them within
my jurisdiction is overlooked or happens somewhat belatedly.
Chairman: When we get our fundamental
reform to the system, we shall get that but we may come on to
that a little bit later on.
Q22 Sir Sydney Chapman: The question
I would like to ask has been covered but I would like to come
back to it very shortly. First, though, I think it would be worth
putting on record that Ms Abraham sent us a legal opinion about
a possible impending case where she is the defendant and that,
therefore, the matter was sub judice. We have also received
a legal opinion from the Equitable Members' Action Group to say
that they thought we could ask any question and it was not sub
judice and basically, through a motion passed in our House
in 2001 following a report of the Joint Privileges Committee of
both Houses of 1999, we have to make a decision based on that
report, and I think that detail ought to be known. But I want
to ask one other question: from listening to you, Ms Abraham,
answering both Annette Brooke and the Chairman, you have the power
to investigate any action by a government department. Do you not
think you ought to have the right to investigate any action taken
on behalf of a government department irrespective of, as has been
mentioned, the Government Actuary's Department, as you have said
specifically that the law says you cannot look into that? Do you
not think it is inconsistent, almost unfair, on any constituent
of ours, if you have this what I would have thought was unacceptably
limited privilege to investigate?
Ms Abraham: Can I say two things?
I will come back to the point about action taken on behalf of
a government department because it is very important but, if we
are talking about matters for the record, certainly my legal advisers
did write to the Clerk to the Committee but we did not for a moment
suggest that we would be advising the Committee what was and was
not sub judice, and what was and was not appropriate for
them to be asking me. What my legal advisers did was write and
set out for the information of the Committee the facts of the
legal proceedings, so I very much take the view that it is for
the Committee to decide what is appropriate for the Committee
to do and I will take a view about what is appropriate for me
to do—
Q23 Chairman: Could I make it clear too,
and I thought I had at the beginning, that you had given us legal
advice on this. We did not accept that legal advice; we sought
our own advice from the House authorities. It was out of that
that we came to a position where we wanted to go as far as we
could without causing prejudice to the prospect of legal proceedings,
so to avoid any misunderstanding that is the context.
Ms Abraham: I do not want to be
pernickety about this but I do not believe that we did give you
legal advice at all, or would have presumed to do so. We gave
you information and what the letter said was "the information
contained in this letter", so we told you the facts of the
legal action but we certainly did not presume to—
Q24 Chairman: No, I was not meaning legal
advice in a formal sense. You wrote to us with a description of
what you took the situation to be. We took that further and made
sure that, from the House of Commons side, we could go as far
as we could go and that is the context in which, indeed, we are
having this exchange this morning.
Ms Abraham: As you say. Coming
back to the point about bodies acting on behalf of a government
department, in principle I would accept that but in relation to
the Government Actuary's Department, the Government Actuary's
Department, as we understood the position, had no responsibility
for the exercise of statutory powers on behalf of the FSA or the
Treasury under the Insurance Companies Act, so that is not the
situation that the Government Actuary's Department were in here.
Q25 Sir Sydney Chapman: But at the very
least, and I do not want to put words into your mouth, whatever
powers you think you should have, surely you should have a certain
discretion beyond the very strict powers that may be given to
you, because the world is changing with different issues and it
seems to me that you have been put, or you are claiming you have
been put—and I accept your word for it, in a straitjacket,
in a very limited straitjacket, almost as if you are forbidden
from looking over the wall?
Ms Abraham: I love enabling wide-ranging
legislation and wish there was more of it, and I also very much
take the view when looking at my statutory powers that, if the
legislation does not say I cannot then I will see if I can, but
I think in relation to the Government Actuary's Department there
is so much very specific evidence to support our interpretation
of the jurisdiction here, and I think the notes on clauses that
accompanied the Bill, which made it very clear that the Government
Actuary's Department was not to be within the jurisdiction of
the Parliamentary Commissioner, do seem to me to be very clear.
At the end of the day, however, given where we are now, the question
of whether a complaint has been duly made is a matter for me according
to the statute. Obviously if I am challenged on that as I am being
challenged now in this legal action it will be for the court to
decide whether I have correctly taken a view on my jurisdiction
here.
Chairman: Do colleagues have any further
questions on Equitable Life?
Mr Liddell-Grainger: I do apologise for
being late—I had to go to another meeting—but have
we asked the Ombudsman to come back?
Chairman: Yes.
Mr Liddell-Grainger: And has she agreed
to?
Q26 Chairman: We have done rather more
than asked, I think—we have announced an intention to have
her back.
Ms Abraham: I am happy to come
back.
Q27 Chairman: Perhaps I could just say
listening to your last answer that in some ways it is rather unfortunate,
that you have taken so much flak on this issue when all your instincts
in the rest of your activity is to push against all the boundaries
that you find yourself constrained by, and indeed wanting to remove
some of them, so this is a rather particular case but because
it is one that has such wide-ranging implications and such consequences
for individuals, and indeed for the people we represent, you will
understand why we want to come back to it.
Ms Abraham: I fully understand.
It is an important case and it is a case that obviously is of
enormous concern to many people so I fully understand, and I am
happy to give the assurance that, if invited, I will come back
at the conclusion of the judicial review proceedings as you asked
at the beginning.
Q28 Brian White: A lot of people, when
you do a report that says "We cannot take this any further
generally", have a feeling of helplessness and they do not
know where to turn to. What is your advice to Equitable members
as to where they should turn, following your report?
Ms Abraham: I would not presume
to give Equitable members advice and I think in the circumstances
it would not be appropriate for me to do so. There are clearly
a number of groups who are active in the field and Equitable members
will have to make their own decisions about that, but really it
would not be appropriate for me to give Equitable members advice
in the circumstances, particularly as I am the defendant in legal
proceedings now.
Chairman: That brings us back to where
we started and I think that is probably as far as we can go for
the moment on that. Could we turn to all the other areas of your
work, because there have been some very important issues around
during this first year and I know colleagues will want to explore
some of them.
Q29 Mr Liddell-Grainger: Can I explore
the MP filter? It is something that I was keen to get rid of and
I am not sure now it is such a good idea, because one of the things
MPs have been able to do is see what is going forward to you.
Now, the MP filter, I think most MPs will agree, can be fairly
demanding—and I have had a particular case which you have
been very helpful with where, in fact, I got it wrong and you
got me out of a mess—but having said that the filter does
give us a very clear idea of what you as the Ombudsman are up
to. You have very kindly come in front of us but we are a privileged
few MPs, and there are 600 of us in all. Are you still for the
filter disappearing?
Ms Abraham: The simple answer
is yes.
Q30 Mr Liddell-Grainger: Can we explore
further as to why?
Ms Abraham: Absolutely, but I
would like to come back to the whole question of the relationship
of my office with Parliament and how we continue to ensure that
MPs know what my office is up to and what we are doing without
the MP filter. Why I am for its removal is because I believe that
in the 21st Century it really is not defensible for citizens not
to have direct access to a public sector ombudsman and I believe,
apart from the UK, the only other country where this is the case
is France, so I think there is a point of principle here. However,
having said that, I fundamentally believe that there is a huge
amount of very valuable work that goes on by MPs, MPs' offices,
MPs' surgeries in actually referring cases to us and there is
nothing to stop that continuing, but I do not see why it should
be an absolute requirement. I am strengthened in this by some
research that we did jointly with the Local Government Ombudsman
recently looking at public awareness of ombudsman services, looking
at issues of access, looking particularly at disadvantaged communities
and the sort of people who use the office and what came out of
that is a very clear indication that we need to be much more externally
focused as an organisation in ensuring that our services are accessible.
Certainly if you look at the groups of people who are less inclined
to use our services, the unemployed, the unskilled, people in
black and ethnic minority communities, these are the people who
said in that research that if it was a question of putting a complaint
in writing, actually referring it through an MP, that might deter
them from approaching the office. That is obviously something
that we need to be addressing. The fundamental point is, I think,
about accessibility and there are issues as well in joint working
with colleagues in the Local Government Ombudsman scheme where
the MP filter gets in the way of aligning a joint investigation
and a joint report because of particular requirements that come
out of that, so it is a point of principle, I think, in the 21st
Century that a citizen should have direct access to the Ombudsman.
Q31 Mr Liddell-Grainger: The thing that
concerns me exactly on that, and you made a very valid point there,
is that people do not feel that they are going to come to you
if there is an MP in the way. Now, I come from rural Somerset—
Ms Abraham: I know it well.
Q32 Mr Liddell-Grainger: I guarantee
that they are not going to come to you from rural Somerset. They
might come to me to ask me to take it up with you because in Exmoor
they do not particularly like London, with no disrespect to anybody
here, and they do not like government because they see a lot of
bureaucracy, that it is all based somewhere up here and it sort
of happens. Unless there is a rugby tour going on, they do not
come up here. Is that not the problem, that in fact your research
may be flawed because the very people you want to get to are the
least likely actually to come and take part in that research?
Ms Abraham: Well, we went out,
and I am not sure whether we went to rural Somerset, I will check,
but I know rural Somerset well because I have family who live
there, and there are a number of points in here. I think one of
the most important is that the removal of the MP filter does not
mean that MPs will never refer a case to my office again. I would
expect MPs to be a major source of referrals to my office in the
same way as we look to advice agencies, the places where people
go if they have a problem. They go to advice agencies, they go
to MPs and they do not automatically come to us, so we have got
work to do in reaching out to advice agencies, to disadvantaged
communities and we need the help of MPs with that. I am not saying
that this is taking MPs out of the picture. What I am saying is
that it is an inappropriate and unnecessary additional stage.
Can I come back to this point about the relationship of my office
with Parliament because it does seem to me that I was hearing
very recently, in fact when walking up here this morning, that
it was only in 1998 that the remit of this Committee was changed
to having much wider terms of reference and that before that my
predecessors used to come once a week and talk to this Committee.
Now, it seems to me that it is important to think about in those
changed circumstances how my office has an effective way of communicating
clearly with this Committee, but also with Parliament generally
about the work that we do other than on set piece occasions like
today. I am very interested to discuss with the Committee ways
in which we might actually provide more information, put more
information in the public domain about our work and actually ensure
that Parliament does understand what we are doing, what we are
up to and can actually ensure that Parliament is very much aware
of what the office, which has obviously been created to deal with
the problems that citizens have in their disputes with government
on administrative matters, that Parliament is very much aware
of what we are doing, that we are accountable and that we are
giving out a lot of information, so I am interested in exploring
the relationship. One of the things it seems to me is that this
Committee has the overview of these broad issues around ombudsmen,
about ombudsman reform, about what is a proper ombudsman service
in the 21st Century, but there are other committees who are very
interested in some of the specific issues around health, around
work and pensions that we do not have a relationship with at the
moment and we do not provide a lot of information to and maybe
we should, so I want to think about the relationship with MPs
and with Parliament more generally.
Q33 Mr Liddell-Grainger: Is that not
the problem you have got? We live with these problems the whole
time as MPs. It does not matter which part of the country or what
you represent, it is the same problem. The same problem goes for
Scottish MPs and all the rest of it, it is the same principle.
When you come back once a week, I think we will get bored of each
other fairly rapidly, but the point you make is a valid one. Surely
the relationship with Parliament has to be one that steers you
and your organisation, your body, in a direction that can actually
help and surely we have a very good insight into what goes on.
The CABs, district councils, county councils and all the rest
of it can point you, but yet we tend to cross a much broader spectrum
of organisations given what we do. Perhaps the answer would be
that a minister has to come before the House on a yearly basis
to give us a synopsis of exactly what the Ombudsman has been up
to and you commit yourself to coming here to purge yourself of
your crimes for the year maybe or whatever.
Ms Abraham: Well, I certainly
would not see it in terms of purging myself of crimes, but I do
think that there is much more that my office can do to put into
the public domain, the parliamentary domain and the government
domain feedback about what we have been doing. One of the things
that my Local Government Ombudsman colleagues are exploring is
what they call an `annual letter to councils' in that as well
as the individual cases on which they report, the Commission for
Local Administration in England actually writes to each local
authority to say, "In the year just closed, there have been
this many cases. These were the issues, these were the themes
and these are the things we think you ought to be addressing".
Now, I could develop perhaps an annual letter to permanent secretaries
along those lines which actually says, "These are the cases
we have looked at which are of particular interest", if we
start with the serial poor performers who give us a lot of work,
and that out of that comes not just a very dense annual report
with lots of detailed casework, but some fundamental issues about
how public administration across government, across departments
is failing and the lessons that need to be learned. Now, that
is information that we could share more widely. I would just like
to explore, I think, with the Committee what the Committee would
find interesting, helpful and necessary in order to ensure that
there is far more information available about the work of my office.
Q34 Chairman: Just tell us who the serial
poor performers are.
Ms Abraham: Well, I think the
Department of Work and Pensions probably gets the prize at the
moment.
Q35 Mr Liddell-Grainger: Tony is absolutely
right because that is where the crunch comes, is it not? Your
increase in the people you have had referring to you this year
has been quite phenomenal. There is no reason to say that is going
to get better and in fact you will probably get more as filters
are removed, et cetera. Therefore, is it not up to ministers and
secretaries of state now actually to be accountable for what you
are doing, so you should be pushing it down and it is perhaps
for us or other organisations to get people to stand up in Parliament
to justify what on earth has been going on. As you say, Work and
Pensions are serial offenders. We know that because of the letters
we get. Do you think we need to be as tough as that or that you
need to be as tough as that?
Ms Abraham: I think we all need
to be as tough as that. I think I have very much set out my stall,
that my objective in life is to have a lot less work rather than
a lot more and that would be because public services are improving
and public service providers are better at handling complaints
themselves rather than having situations where people have to
go through this very extended process in order to get things sorted
out. However, I think that we have got more work to do in actually
analysing the trends and the themes and doing the feedback, you
need to be aware of that, and what I need to do, when there are
serial poor performers who are not getting better, is to come
here and say, "These people need to be called to account".
Mr Liddell-Grainger: Very interesting.
Q36 Sir Sydney Chapman: Obviously the
MP filter is part of the recommendations in the Collcutt Review
of Public Sector Ombudsmen—
Ms Abraham: That is right.
Q37 Sir Sydney Chapman: —published
three and a half years ago now.
Ms Abraham: At least.
Q38 Sir Sydney Chapman: And of course
the single commission was the main proposal, I think I am right
in saying, although I was not a member of the Committee at the
time, but in 2001 we agreed, I think, with the single commission.
I get the impression, I think, from the evidence you gave us last
March that you have gone rather cold on that. Now, you are two
parts of these three commissions, yourself, so if we give you
the third part, would you accept a single commission? Very seriously,
am I right in saying, and I believe you are quoted as saying,
that you believe in the Collcutt principles, but you do not need
to have the Collcutt institutions? I am rather disappointed to
hear you say that.
Ms Abraham: I think it is about
pragmatism rather than principle. What I said last time and what
I said in my memorandum last time was that I thought that things
had moved on somewhat since Collcutt and because it is as old
as you say it is, there have been developments. There have been
developments in Scotland and there have been and there still are
developments going on in Wales and there is a review going on
in Northern Ireland. I think the complexity that I see institutionally
is how the UK Parliamentary Commissioner for Administration actually
comes together in an institution with the Health Service Commissioner
for England, the Health Service Commissioner for Wales, the Commissioner
for Local Administration in Wales, a Scottish Public Service Ombudsman,
how you do that joining up, so it is not just a question of joining
up the UK Parliamentary Commissioner and Health Service Ombudsman
for England with the Local Government Ombudsman for England; it
is more complicated than that. I think my view about this is that
whereas I would love to start with a nice, big legislative slot
and a blank piece of paper to create public sector ombudsman arrangements
in the UK which were fit for purpose, comprehensive, joined up,
all the things we want them to be, that is a complex wiring diagram
now that developments in Wales and Scotland have gone the way
they have gone for very good reasons which I support and I do
not want us to stop trying to make progress with this while we
work on an institutional solution. Therefore, I have not gone
cold on the idea of the College of Ombudsmen, which came from
Collcutt. I suppose I am trying to get there almost by the back
door, if you like, by working with public sector ombudsmen colleagues
on joint working, joint investigations and talking to government.
I have provided information to the Committee about the discussions
we have been having with ministers and officials in the Cabinet
Office and the Office of the Deputy Prime Minister about removing
what I and my Local Government Ombudsman colleagues see as the
absolute legislative constraints to joint working, whether that
is by regulatory reform or whatever or not, so I am absolutely
committed to the principle of joined-up ombudsmanship and if somebody
walked in tomorrow and said, "Right, there is a legislative
slot. Please would you work on a draft Bill with us", I would
be in there like a shot, but I am trying to make progress towards
the concepts in Collcutt of a single point of reference for complainants
with or without the legislation because I do not detect that this
is legislation that is top of the list.
Q39 Sir Sydney Chapman: Just on this,
first of all, Mr Liddell-Grainger said that his constituents hate
London. My constituency is in London. I am tempted to say that
a lot of my constituents hate London as well, and I hope I will
not be misunderstood on that point. You have mentioned Scotland,
Northern Ireland and Wales, but they have got devolved powers
now, so I want to concentrate somewhat naturally on England, if
not London. It seems to me that the very arguments you have used
for saying that the MPs' filter system is anachronistic, and that
is the word this Committee used, surely the one thing that would
help simplify the work of the ombudsmen and encouraging people,
where they feel a maladministration has taken place, is that you
have one organisation so that you do not have to write to the
Health Commissioner or the Parliamentary Commissioner or the Local
Government Commissioner, but you actually write to one person
at one address.
Ms Abraham: I agree and if I thought
there was a real prospect of that happening, then I would be,
as I say, in there like a shot, working to do whatever was necessary
to make it happen and I have not given up on it. It is important,
I think, for me to make clear that I have not given up on that,
but what I and my colleagues are trying to do is bring about exactly
what you describe which is that you go to an office that says,
"Ombudsmen", and even if you have turned up in the wrong
place, the ombudsmen will make sure that your complaint is dealt
with appropriately by whichever ombudsman it ought to be dealt
with by and that we will sort that out. That is not saying that
people cannot work these things out for themselves, but if somebody
takes a complaint to my office in Millbank Tower and actually
what they want is the Local Government Ombudsman, what we will
do is we will walk downstairs and we will talk to the person and
say, "Actually this is one of yours, Mary. Would you now
take it on", and they will then contact the complainant,
so we will not send people away and say, "You've rung the
wrong number", but we will take it off them and make sure
it gets dealt with appropriately and that is where I want to get
to. I think in terms of what we want to achieve, we are at one
and I would love to have the institution that would do that, though
I am not optimistic about getting legislation in the next year
or two, but I will still continue to argue for the Collcutt principles
and maybe one day we will get the institution.
Chairman: I think Kelvin wants to move
on to the NHS.
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