Examination of Witnesses (Questions 120-138)
MR ADAM
PEAT AND
MR ERIC
DRAKE
17 JANUARY 2005
Q120 Ms Dunwoody-Kneafsey: Could I request
respectfully that you add elected representatives to that list
because we do a lot of the referring as well? Mr Drake, are there
any specific examples that you could give of this kind of public
awareness raising in Scotland?
Mr Drake: As Adam said, our legislation
puts a duty on public bodies to publicise the fact that people
can complain to us. We have done a lot of work making sure that
they have the message right. Unfortunately still we occasionally
have to rap knuckles because people are still dishing out old,
local government Ombudsman leaflets and that sort of thing but
mostly we now have the public bodies in a position where they
are giving the right message. We have done quite a lot of work
with Citizens' Advice Scotland to make sure that the material
they put out to bureaux has information about us. We have also
done quite a lot of work with elected representatives in the Parliament.
We have spoken to parliamentary committees, for example. We have
spoken to clerks of committees collectively and individually.
When we have been out visiting, we have tried to get into constituency
offices and local Citizens' Advice Bureaux to hand out leaflets
and say, "Have you heard of us? Do you know what we can and
cannot do?" It is a big job and we do worry about how far
it is practical to raise public awareness generally. As Adam says,
the best you can hope for is to have a general notion at the back
of people's minds that there is this creature called the Ombudsman
and if they are in a position where they might want to come to
us, if they go along to the Citizens' Advice Bureau, they will
get accurate information.
Q121 Ms Dunwoody-Kneafsey: At the other
end of the scale, do you think the Bill could be strengthened
in any way to assist in the dissemination of the final report,
particularly in section 16(3): "The Ombudsman may send a
copy of the report to any persons he thinks appropriate."
Again, elected representatives are not specified but it is a very
open ended definition. Do you feel it should be more closely defined
or do you think it should have more power to disseminate that
information and report elsewhere?
Mr Peat: What the Bill is providing
for is quite a step forward from where we are now. At the moment,
if I publish as the local government Ombudsman a report about
a local authority, the local authority is obliged to publish that
report. They are obliged to put a notice in the local newspaper.
There are not at the moment parallel provisions for publicising
complaints about the NHS. This Bill for the first time will mean
that NHS bodies too are going to have to publicise any adverse
report that I make. In the case of GPs, it will be the local health
board that has to do that. That is a step forward. Also, the provisions
are modernised because it is not just going to be the local newspaper.
Whenever the body in question has a website, this Bill specifically
says they are going to have to put a copy of the report on the
website and draw attention to it and, pretty crucially, it gives
me a power to give guidance to the bodies about how they are to
do that. Turning to your specific point about my power to send
copies to anybody, I quite like it the way it is. It is a discretion
for me to do that but it is quite clear I can send as many copies
I like to whoever I like. I am not compelled to do it in circumstances
where frankly it would be a waste of time. I do not want to be
wasting the time of elected representatives by making reports
into something comparatively trivial. Reverting to your earlier
question, I do very much recognise the role of elected representatives,
whether they be AMs, MPs or indeed local councillors, in potentially
picking up a complaint and saying, "You have something here
that you need to take to the Ombudsman." I do already get
a lot of complaints that way. I am certainly very mindful of the
need to ensure that elected representatives are as aware as they
can be of the provisions of the new Ombudsman scheme.
Q122 Ms Dunwoody-Kneafsey: I am glad
you said that because the second question related very directly
to that point. Where the appropriateness of your dissemination
of reports happens, how are you aware that it is us who has referred
the individual, because I have specific examples of the dissemination
of a report not coming to me on one of my cases I had referred.
It is that very link between the elected representative and the
report dissemination that is critical.
Mr Peat: I am very sorry to hear
that. That means the system has gone wrong. What is supposed to
happen is the file is very clearly flagged up when the case has
been referred by an elected representative and the drill most
certainly ought to be that that elected representative then gets
a copy of the report when it is issued, so I do apologise.
Q123 Mr Caton: Mr Peat, what is your
understanding of the Bill's position on deputies and their appointment?
Mr Peat: The Bill's position is
that there are no deputies as such. However, the Bill gives me
a very wide ranging discretion to delegate my powers, not only
to members of my staff, but indeed to anybody. I think that is
very important and very valuable. It means, for example, that
I could engage an independent expert to undertake part of a particular
investigation and they could do so using the full panoply of powers
available to me. There is no provision for deputies as such and
I personally see no need for that to be so, given the wide power
of delegation that I have.
Q124 Mr Caton: Mr Drake, what was the
rationale behind the power to appoint deputies in Scotland?
Mr Drake: I think it came out
of a concern that arose in consultation. There was a general welcome
for bringing the previously separate Ombudsmen together and having
the one stop shop, as it was billed. The concern was that that
might lead to some loss of the expertise that the individual offices
had built up in their areas of jurisdiction. My understanding
is that the Parliament introduced the post of deputy, appointed
in the same way as the Ombudsman, with that concern in mind. The
three deputies who have been appointed each have a background
in different areas of the jurisdiction so it has addressed that
point. I do not see that it is necessary to have that and, to
my knowledge, our office is the only public sector Ombudsman certainly
in the British Isles that has that provision for the appointment
of deputies as part of the legislation.
Q125 Mr Caton: Has your experience of
being in operation found that specialist deputies have in any
way undermined the one stop shop approach?
Mr Drake: We have worked very
hard to make sure they do not. I do not feel they have but equally
I do not think it was necessary to have those appointments to
make sure that the office would work. I think it could have been
done equally well by the Ombudsman appointing appropriate people
in the way that Adam has just described.
Q126 Chairman: Does the Scottish Ombudsman's
office have a statutory advisory board?
Mr Drake: No, it does not.
Q127 Chairman: Do you think you should
have one?
Mr Drake: We are considering setting
up a board, which would not be statutory because it is not provided
for in the statute, but we think it might be helpful to have what
the Ombudsman tends to refer to as a body of critical friends.
Q128 Chairman: Mr Peat, would you like
a body of critical friends?
Mr Peat: Yes but as with my other
friends I would prefer that they were friends of my choosing.
Q129 Chairman: That means they may not
be as critical as they should be perhaps.
Mr Peat: Maybe. I think there
will be some risks in having an advisory board provided for in
statute. The situation I would prefer is to go along the path
that the Parliamentary Ombudsman has gone down and indeed that
Professor Alice Brown was thinking of going down and consider
an advisory board on a voluntary basis. I think the statutory
board risks the possibility of conflict and it would particularly
risk the possibility of conflict if the members of that advisory
board were in any way to misinterpret that role and perhaps come
to think of themselves more in the mode of the board of a quango.
Q130 Mr Davies: I want to ask questions
about lessons learned so I suppose they are primarily directed
at Mr Drake. We have covered the lessons learned in a lot of specific
areas and there has been a lot of discussion of cooperation between
you and Wales but are there any other areas where you have lessons
or experience that might be helpful to us, particularly in terms
of the initial changing over to a unified system?
Mr Drake: A general lesson—we
have alluded to it in our written evidence—is that it is
not a straightforward process, even though we are fairly small
organisations. We have a staff of 36 now and you might think that
bringing those numbers of people together should be fairly straightforward,
but in reality it is quite a complex process and one that requires
quite a lot of effort in terms of bringing about that culture
change at the same time as continuing to deal with the complaints
that are coming through the door. The main lesson to be learned
from our experience is that you do need to be aware that it is
going to take some doing. The way a lot of it is being done in
Wales, where a lot of the work that we had to do after our legislation
had been passed, is ahead of the legislation and that should help
you in that way because we had a run in of about three weeks before
we were up and operative, which made life interesting for us in
those early stages certainly.
Q131 Mr Davies: Has there been any formal
evaluation of how things have gone or is there intended to be
any formal evaluation? I suppose you are inevitably learning as
you go along and there is always going to be an element of continuing
informal evaluation but it would be useful if you have a point
at which you look back to see how it went. In a sense, it is how
you learn lessons yourself.
Mr Drake: Yes, you are right.
There is a continual process of informal evaluation and, in a
sense, each of our annual reports is an exercise in how it is
going. We are just about to produce our second one. I think it
would be useful after two or three years to have something rather
more formal. We are thinking about that. We have not reached the
stage of formulating what form that might take.
Q132 Mr Davies: Have you thought in Wales
how you might want to evaluate how things go or is that something
you are leaving for some stage in the future or for us perhaps
to ask you at some stage in the future?
Mr Peat: I feel quite sure that
the Assembly will want to ask for some assessment of my performance
and the performance of my office. That is provided for in the
Bill. I will be reporting annually to the National Assembly and
I am quite sure that the Assembly will rightly want to scrutinise
the exercise of my functions. As Eric said, it is helpful that
to some extent we are having a little bit of a dry run by my having
been appointed to the three separate offices now. Obviously, I
am doing what I can right now to try to iron out the differences
in working culture and get all the staff together into a single
office in the Bridgend area. Alice Brown and her office have been
incredibly helpful to us in that process and we have learned a
great deal from them.
Q133 Hywel Williams: (Translated from
Welsh): Thank you, Chair. I have a question for Mr Drake, while
he is here. Have there been examples in Scotland of complaints
relating to administration and the Gaelic language, which has
specific legal status, or to any other language for that matter,
such as Lallans, Doric and so forth. That would be of interest
to me and the committee, as well as to Mr Peat perhaps.
Mr Drake: The short answer is
no, we have not. There is a Gaelic Bill going through the Scottish
Parliament at the moment and it may well be that once that is
in force the picture will change. To date we have had nothing;
nor about any of the other languages either. Prior to being in
my present job, I had a spell of six months on secondment to the
Dublin Ombudsman and they have had a number of complaints about
people being able to use the Irish language to do business
with government departments, so there is that parallel.
Q134 Ms Barrett: Mr Peat, we were just
discussing the transfer of staff and the harmonisation of the
three administrations but I have to ask you about the arrangements
under TUPE for the transfer of staff. I would be grateful if you
could tell us of the negotiations between yourself and the trade
unions and your partnership agreement. I understand there are
some difficulties there which affect staff.
Mr Peat: Yes, there are, as you
might expect, some difficulties and tensions at the moment. The
Bill is very clear that when the new office is set up people will
transfer on a TUPE basis. What I am trying to do at the moment
is to offer a new package of terms to people on a voluntary basis
and I am making it very clear that if they prefer to stay on their
existing terms and conditions they may do that. I am in negotiation
and discussion with the unions at the moment about the basis of
their recognition by myself as the Ombudsman. The position is
that, because the two organisations—the Commission for Local
Administration in Wales and my organisation as health service
Commissioner—have low numbers of employees, therefore they
fall below the statutory threshold for union recognition. We are
in discussion with them.
Q135 Ms Barrett: I am not sure if this
is the place for us to have protracted discussions about this
but I understand there is some disagreement as to the last statement
you have just made between the unions. Are you prepared to extend
your deadline of today for the unions accepting your terms and
conditions, to enable some more discussions go on? I am particularly
concerned about a suggestion that you would not, for instance,
be allowing industrial action. That could be one of the clauses
in your agreement for staff.
Mr Peat: I am sorry?
Q136 Ms Barrett: I understand in your
agreement that you have put forward for the staff that you are
suggesting that there could be no industrial action allowed and
they would have to sign up to that. I am wondering if you could
keep those negotiations open in order to get the smoothest transition
for everybody.
Mr Peat: I certainly intend to
have ongoing discussions with the unions, yes.
Q137 Mr Caton: When the Scottish public
services Ombudsman was created, were there any negotiations to
change trade union status at that time?
Mr Drake: There were negotiations
about staff status certainly. We had the same issues about staff
being on certain conditions and an agreement that they would be
TUPE protected. We have two unions in the office and have negotiated
common terms of service in most respects. There are still a couple
of areas to be sorted out.
Q138 Mr Caton: Was there any question
of derecognition at the time?
Mr Drake: No.
Chairman: Thank you very much.
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