Clause 15: Obstruction and contempt

55.     Clause 15(1) and (2) enable the Ombudsman to certify to the High Court that, in his/her opinion, a person has without lawful excuse obstructed him/her (or a member of his/her staff etc.) in the discharge of his/her functions under Part 2 or that the person has acted in a way that, if the act was done in relation to High Court proceedings, would amount to a contempt of court.

56.     The Ombudsman cannot issue such a certificate if the alleged obstruction or contempt arises merely because the person concerned has taken some further action in respect of the matter under investigation (see clause 15(3) and clause 13(6)).

57.     If the Ombudsman issues such a certificate then the High Court may inquire into the matter and if the High Court finds that the person concerned has obstructed the Ombudsman, the High Court may deal with the person as if he/she had committed contempt in relation to the High Court (clause 15(5)).

Reports of investigations

Clause 16: Reports of Investigations

58.     Clause 16(1) provides that after conducting an investigation the Ombudsman must, unless he/she decides to report under the alternative procedure set out under clause 21, prepare a report on his/her findings and send a copy of that report to the persons specified in clause 16(2).

59.     In relation to a person who is a family health service provider in Wales or independent provider in Wales the Ombudsman is required to send his/her report to the provider (as the listed authority) and to those persons with whom the provider has contracted, undertaken or arranged to provide the services that are the subject of the complaint. The Ombudsman is not required to send a copy of the report to every person with whom that provider has (or had) contracted, undertaken or arranged to provide any services (clause 16(2)(d) and (e)).

60.     The Ombudsman may publish his/her report if the requirements of clause 16(4) are met. The Ombudsman may only publish such a report if he/she considers that it is in the public interest to do so. In reaching his/her view, the Ombudsman must have regard to the interests of the person aggrieved and any other persons he/she thinks appropriate.

61.     Clause 16(7) and (8) provides that when the Ombudsman prepares a report that:

a)     names any person (other than the listed authority concerned); or

b)     includes anything which, in the opinion of the Ombudsman, is likely to identify any person and which, in the opinion of the Ombudsman, can be omitted from the report without impairing its effectiveness,

the Ombudsman may only include such information in the version of the report that he/she is required or empowered to send, or which he/she publishes, if it is in the public interest to include such a name or identifying particulars. In reaching his view, the Ombudsman must have regard to the interests of the person aggrieved and any other persons he/she thinks appropriate.

62.     In the case of the version of the report that he/she is required to send, under clause 16(1)(b), to the person who made the complaint and the listed authority etc., it is not anticipated that it would be difficult for the Ombudsman to show that it is in the public interest to include such information. This is because, in such cases, there is likely to be a strong public interest in those parties knowing the names and identities of persons that the Ombudsman considers it necessary to refer to in his report. Indeed, in many cases such a report is likely to name or identify only the person aggrieved, the listed authority that took the action which is the subject of the complaint and those of its employees that are relevant (e.g. because it is the employee who took the action that is the subject of the complaint).

Clause 17: Publicising reports

63.     Clause 17(1) to (4) require listed authorities that receive a copy of a report under clause 16(1)(b) to make specified arrangements for publicising such reports. The listed authority is required, within specified time-scales, to make copies of the report available at one or more of its offices and via its website (if any). Members of the public have a right to inspect, make copies, require the listed authority to supply copies of the report and to view the report free of charge via the authority's website (if applicable). The right to take copies would include downloading an electronic copy via the authority's website. It is an offence for any person wilfully to obstruct a member of the public in the exercise of these rights (clause 17(7) and (8)).

64.     The Ombudsman may, after taking account of the public interest and the interests of the person aggrieved and any other persons he/she thinks appropriate, direct that the publicity requirements are not to apply in relation to a particular report (clause 17(9) and (10)). The Ombudsman also has the power to give directions with regard to the discharge by listed authorities of their functions under clause 17 (clause 17(5) and (6)).

Clause 18: Publicising reports: health care providers

65.     Clause 18 makes provision for the application of clause 17 with modifications in relation to persons who are listed authorities by virtue of being family health service providers in Wales or independent providers in Wales. The effect of the modifications is that it is the person with whom the provider contracted or made arrangements (or to whom he/she undertook) to provide the relevant services on whom the publicity requirements fall, rather than on the listed authority (i.e. the family health service provider or independent provider).

Clause 19: Action following receipt of a report

66.     Clause 19 provides that if, following an investigation, the Ombudsman reports (under clause 16) that the person aggrieved has sustained injustice or hardship as a consequence of the action investigated, the listed authority concerned is required to consider the Ombudsman's report and notify him/her of the action that it has taken or proposes to take in response and also of the time within which it will take any action that it proposes to take. The listed authority must make the notification within one month starting on the day that it receives the report or such longer period as the Ombudsman in his/her discretion specifies.

Clause 20: Non-action following receipt of a report

67.     If the Ombudsman is satisfied that the listed authority has wilfully disregarded his/her report without lawful excuse, the Ombudsman may under clause 20(1) issue a certificate to that effect to the High Court.

Clause 21: Reports: alternative procedure

68.     The full reporting procedure under clauses 16 to 19 does not apply if the Ombudsman decides to report under the alternative procedure set out in clause 21.

69.     If, after an investigation, the Ombudsman concludes that the person aggrieved:

a)     has not sustained injustice or hardship as a consequence of the action investigated; or

b)     has sustained such injustice or hardship and the listed authority concerned agrees within the permitted period (as defined in clause 21(3)) to implement the Ombudsman's recommendations,

then the Ombudsman may decide to report under the alternative procedure under clause 21 but only if he/she is satisfied that the public interest does not require him/her to report under the full reporting procedure set out in clauses 16 to 19.

70.     A report under the alternative procedure in this clause is subject to the same restrictions with respect to naming or identifying individuals as a report under clause 16 (clause 21(9) and (10)).

Special reports

Clause 22: Special reports

71.     Under clause 22, the Ombudsman may issue a special report if the listed authority has failed to take the steps required in response to a report made under clause 16 (full reports), a report made under clause 21 (alternative procedure reports) or following a resolution of the complaint under clause 3. For example, a listed authority may fail to notify the Ombudsman, within one month of receiving a clause 16 report, of the action that it has taken or proposes to take in response to the report. In such cases, the Ombudsman may issue a special report (clause 22(2)(a)). The Ombudsman may also, for example, issue a special report if a listed authority has given the notification under clause 19 within the time-scale set out there but the Ombudsman is not satisfied:

a)     with the action taken or proposed by the listed authority; or

b)     with the period within which the listed authority has stated that it will take that action; or

c)     that the listed authority has taken the action that it stated that it would take within the specified period.

72.     The Ombudsman may make whatever recommendations he thinks appropriate in a special report with respect to the action he/she thinks should be taken to remedy the injustice or hardship suffered by the person aggrieved and to prevent similar injustice or hardship being caused again (clause 22(8)(b)).

73.     Clause 22(9) sets out to whom the Ombudsman is required to send a copy of a special report. The requirement depends on whether the original report was a full report under clause 16, a report made under clause 21 (alternative procedure reports) or a statement made following a resolution of the complaint under clause 3.

Clause 23: Special reports: supplementary

74.     Clause 23 makes further provision with regard to special reports. In particular, a special report is subject to the same restrictions with respect of naming or identifying individuals as a report under clause 16 (clause 23(4) and (5)) and clause 23(7) applies clauses 17 and 18 (requirements as to publicising reports) to special reports.

Clause 24: Special reports relating to the Assembly

75.     A special report relating to a complaint against the Assembly must be laid before the Assembly by the First Minister and, unless action to the satisfaction of the Ombudsman has been taken or proposed, then the First Minister must give the Assembly notice of his intention to table a motion asking the Assembly to approve the Ombudsman's recommendations as contained in the special report. The First Minister is able to delegate this function to, for example, another Assembly Minister, under section 62(5) GOWA.

76.     Clause 24(3) requires that the Assembly's standing orders must include provision for any such motion to be moved as soon as reasonably practicable except in cases where action to the satisfaction of the Ombudsman is taken or proposed.

Consultation and co-operation

Clause 25: Consultation and co-operation with other ombudsmen

77.     Clause 25(1) and (2) requires the Ombudsman to consult another specified ombudsman whenever he/she thinks that a complaint is about a matter that could be the subject of investigation by that other ombudsman. The other ombudsmen that the Ombudsman is required to consult are specified in clause 25(7). There is power for the Assembly, by order, to amend this list of specified ombudsmen (clause 25(8) and (9)).

78.     Where the Ombudsman is required to consult with another ombudsman on a matter, he/she may also co-operate with that other ombudsman on that matter (clause (25(3)). The consultation and co-operation may extend to anything relating to the matter. Examples of matters on which there may be consultation and co-operation are set out in clause 25(4), namely:

a)     how an investigation into the complaint should be conducted;

b)     the form, content and publication of a report following an investigation.

79.     Clause 25(5) and (6) provides that, where such consultation takes place, the Ombudsman and any of the specified ombudsmen (other than the Scottish Public Services Ombudsman) can conduct joint investigations and publish joint reports.

80.     In cases of consultation on a complaint, the Ombudsman will be able to use his/her supplementary powers in paragraph 21 of Schedule 1 to the Bill to forward a copy of the complaint to the other ombudsman. Furthermore, the Ombudsman could use those supplementary powers to inform the person who has made the complaint how he or she can make a complaint to the other ombudsman.

Disclosure

Clause 26: Disclosure of information

81.     Clause 26(1) provides that information obtained in relation to or in connection with complaints about a listed authority is to be kept confidential except in limited circumstances.

82.     Clause 26(2) provides for the exceptions where such information may be disclosed, namely:

a)     for the purposes of deciding whether to investigate a complaint; for the purposes of an investigation; for the purposes of resolving a complaint and for the purposes of reporting on an investigation;

b)     for the purposes of consulting, co-operating, working and reporting jointly with other ombudsmen in accordance with clause 25;

c)     for the purposes of certain proceedings or for inquiries with a view to taking certain proceedings;

d)     where the Ombudsman considers it is in the public interest, for the purposes of protection from or avoiding or minimising etc. any threat to the health or safety of any person or persons;

e)     in the case of information within clause 26(3) to (5) to the Information Commissioner.

83.     Clause 26(6) provides that no person can be required in any proceedings (except proceedings specified in clause 26(2)) to disclose information coming to his knowledge in deciding whether to investigate a complaint; during an investigation of a complaint; in resolving a complaint; or in consulting, co-operating, working or reporting jointly on a complaint with another ombudsman.

Clause 27: Disclosure prejudicial to the safety of the State or contrary to the public interest

84.     Clause 27(1) provides that a Minister of the Crown may give notice to the Ombudsman that disclosure of any document or information or class of document or information specified in the notice would, in the opinion of the Minister, be prejudicial to the safety of the State or otherwise contrary to the public interest.

85.     Where such a notice is given this Bill neither authorises or requires the Ombudsman, a member of his/her staff or any other person acting on his/her behalf or assisting him/her, to disclose such specified information.

86.     Where the Ombudsman or a member of his/her staff etc. is obliged by virtue of some other legal requirement to disclose the information then nothing in this clause prevents that person from complying with that obligation.

Clause 28: Listed Authorities

87.     This clause introduces Schedule 3, which lists the persons (in the Bill referred to as "listed authorities") who are liable to investigation by the Ombudsman. In the main, the listed authorities set out in Schedule 3 are subject to investigation by one or other of the existing Welsh ombudsmen.

88.     Clause 28(2) gives the Assembly power, by order, to amend Schedule 3 by adding or removing listed authorities or changing their entries. Before doing so the Assembly must consult the Ombudsman and any other persons it thinks appropriate (clause 28(4)). Clause 28(3) provides that an order adding a person to Schedule 3 as a listed authority may apply the Bill to that person with modifications. The power to make an order under this clause is subject to certain restrictions set out in clauses 29 and 30.

89.     An order under clause 28(2) is to be made by statutory instrument (see clause 44(1)) and is Assembly general subordinate legislation (clause 44(3)). Consequently, such an order will be subject to the Assembly's subordinate legislation procedures.

SCHEDULE 3 LISTED AUTHORITIES

90.     This Schedule lists the persons who will initially be subject to the remit of the Ombudsman. Under clause 28, the Assembly may by order add to, remove or amend an entry appearing for the time being in this Schedule.

Clause 29: Restrictions on power to amend Schedule 3

91.     Clause 29(1) prevents the Assembly from changing its own status as a listed authority.

92.     Clause 29(2) to (5) sets out the criteria that a person must meet before the Assembly may add that person as a listed authority under clause 28(2). Thus, additions to the list in Schedule 3 may only be made if the person to be listed:

a)     discharges functions in relation to Wales ("in relation to Wales" does not mean that the function has to be performed physically in Wales, although in most cases that will be the case). It does not matter that the person also discharges functions otherwise than in relation to Wales; and

b)     has functions some or all of which are in a field in which the Assembly also has functions. For example, if a person's functions are in the field of agriculture then it is eligible for listing (assuming the other criteria are met) because the Assembly has functions in that field. However, if the person has functions directly in relation to prison services (and no other functions in a field in which the Assembly has functions), then that would not be the case, as the Assembly does not have such functions in that field. The scope of this restriction will vary over time as the fields in which the Assembly has functions change; and

c)     falls within clause 29(3), (4) or (5).

93.     Clause 29(6) prevents the Assembly adding to Schedule 3 by order:

a)     a Special Health Authority which discharges its functions only or mainly in England; or

b)     a nationalised industry or undertaking.

Clause 30: Provisions in orders adding persons to Schedule 3

94.     Clause 30(1) provides that when adding a person to the list, the Assembly must, in the order, specify which of the person's functions fall within the Ombudsman's remit.

95.     Clause 30(2) and (3) provides that in the case of every person to be added to Schedule 3 by order, the Assembly must be satisfied that the function(s) of that person which are to fall within the Ombudsman's remit are in a field in which the Assembly also has functions. Clause 30(3) further provides that in the case of a person falling within clause 29(5) the functions to be within the Ombudsman's remit must also be functions of a public nature. Consequently, if a person only falls within clause 29(5) and discharges functions some of which are functions of a public nature and some of which are not, the Assembly cannot specify all of that person's functions as being functions within the remit of the Ombudsman.

Miscellaneous

Clause 31: Power to issue guidance

96.     Clause 31(1) gives the Ombudsman power to issue guidance to listed authorities about good administrative practices. This will enable the Ombudsman to set bench marks for listed authorities. The Ombudsman has a further power to issue guidance to listed authorities under clause 33(3). Clause 31(3) provides that listed authorities are required to have regard to the Ombudsman's guidance under clause 31 when discharging their functions. Listed authorities should not depart from that guidance unless there is good reason to do so. When discharging his/her functions in relation to a complaint under this Bill, the Ombudsman can take into account whether or not and to what extent a listed authority has complied with his/her guidance under clause 31.

Clause 32: Protection from defamation claims

97.     Clause 32 provides that the following are absolutely privileged for the purposes of defamation, namely:

a)     any publication (which will bear its usual meaning within the law relating to defamation) of any matter by the Ombudsman, a member of his/her staff or another person acting on his/her behalf or assisting him/her in the discharge of his/her functions under the Bill;

b)     any publication of a matter in any report published by a person in the discharge of its functions under clause 17 (requirement on listed authorities to publish the Ombudsman's report of an investigation); and

c)     any publication in certain communications concerning a complaint, namely:

(i)      communications between a listed authority (including a member or co-opted member, officer or member of staff or another person acting on behalf of or assisting in the discharge of the functions of that authority) and the Ombudsman (or his/her staff or persons acting on his/her behalf or assisting him/her in the discharge of his/her functions);

(ii)      communications between the person aggrieved or the person making the complaint on behalf of the person aggrieved and an elected member of the Assembly; and

(iii)     communications between the person aggrieved or the person making the complaint on behalf of the person aggrieved and the Ombudsman (or his staff, persons acting on his behalf or assisting him in the discharge of his functions).

98.     This provision generally replicates similar protection under the legislation relating to other ombudsmen.

Clause 33: Publicity for complaints procedures

99.     Clause 33 imposes (and makes further provision in relation to) a duty on listed authorities to provide information to the public about:

a)     their right to make a complaint to the Ombudsman;

b)     the authority's own right to refer a complaint that has been made to it, to the Ombudsman; and

c)     how members of the public may contact the Ombudsman.

Clause 34: Compensation for the person aggrieved

100.     This clause confers a power on listed authorities to pay compensation to a person by or on behalf of whom a complaint has been made to the Ombudsman in respect of the matter, which is the subject of the complaint. Some listed authorities may have existing powers that would be wide enough for this purpose (see for example the power available to various local government bodies acting under section 92 Local Government Act 2000). Clause 34 will ensure that all listed authorities will have such a power. It is not dependent on the Ombudsman actually investigating and reporting on the complaint and so, for example, could be used where the Ombudsman has assisted in negotiating an amicable resolution of the complaint.

PART 3: MISCELLANEOUS AND GENERAL

Conduct of local government members and employees

Clause 35: Conduct of local government members and employees

101.     Clause 35 introduces Schedule 4. That Schedule amends Part 3 of the Local Government Act 2000 on the conduct of local government members and employees. Until this clause and Schedule come into force it is the responsibility of the Local Commissioner for Wales (established under Part 3 of the Local Government Act 1974) to investigate alleged breaches by a relevant authority in Wales of its code of conduct. Clause 35 and Schedule 4 makes provision so that it will now be for the Ombudsman to discharge those functions.

SCHEDULE 4: CONDUCT OF LOCAL GOVERNMENT MEMBERS AND EMPLOYEES

102.     This Schedule makes amendments to Part 3 of the Local Government Act 2000. That Part deals with the investigation of complaints as to the standards of conduct of local government members and employees. Until this Schedule comes into force the function, in Wales, of investigating such allegations is vested in the Local Commissioner for Wales, but in England that function is vested in the Standards Board established under that Part 3 of that Act. The Ombudsman is now to take over the investigative functions of the Local Commissioner for Wales and this Schedule makes the necessary amendments to Part 3 of the 2000 Act to give effect to that.

103.     There is one substantive change in these amendments. Paragraph 22 of Schedule 4 to this Bill amends section 81(7) of the 2000 Act. Section 81 makes provision for the disclosure and registration of members' interests. Section 81(7) requires the monitoring officer of each relevant authority, whether in Wales or in England, to send a copy of that authority's register to the Standards Board in England, but not to the Local Commissioner for Wales. That was an unintended effect of that legislation. The opportunity is being taken now to correct that. In future, monitoring officers of all relevant authorities in Wales (including police authorities in Wales) will be required to make copies of the register available to the Ombudsman (but in the case of police authorities in Wales they will still be required, also, to make a copy available to the Standards Board in England).

Abolition of existing bodies and offices

Clause 36: Abolition of existing bodies and offices

104.     This clause provides for the abolition of the Commission for Local Administration in Wales (which will include the abolition of the office of Local Commissioner for Wales) and of the offices of the Welsh Administration Ombudsman, the Health Service Commissioner for Wales and the Social Housing Ombudsman for Wales.