UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 234-i

NATIONAL ASSEMBLY FOR WALES AND House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

LOCAL GOVERNMENT AND PUBLIC SERVICES COMMITTEE AND

HOUSE OF COMMONS WELSH AFFAIRS COMMITTEE

 

 

Public Services Ombudsman (Wales) Bill [HL]

 

 

Monday 17 January 2005

MR ADAM PEAT and MR ERIC DRAKE

MR DON TOUHIG MP, SUE ESSEX AM, ANN ABRAHAM

Evidence heard in Public Questions 86-177

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Local Government and Public Services Committee

and House of Commons Welsh Affairs Select Committee

on Monday 17 January 2005

Members present

Mr Martyn Jones, in the Chair

Lorraine Barrett

Mr Martin Caton

Glyn Davies

Tamsin Dunwoody-Kneafsey

Mr Nigel Evans

Mr Huw Edwards

Anne Jones

Dai Lloyd

Jenny Randerson

Mrs Betty Williams

Hywel Williams

Mr Roger Williams

________________

written evidence from the Local Government and Health Service Ombudsman for Wales, the Welsh Administration Ombudsman and the Scottish Public Services Deputy Ombudsman

 

Examination of Witnesses

 

Witnesses: Mr Adam Peat, Local Government and Health Service Ombudsman for Wales; Welsh Administration Ombudsman, and Mr Eric Drake, Scottish Public Services Deputy Ombudsman, examined.

Q86 Chairman: Welcome to this joint meeting of the Welsh Assembly Committee and our Committee here, looking at the Public Ombudsman for Wales Bill. There may be translation in which case you have a translation set in front of you. The channel is one. Could you introduce yourselves for the record, please?

Mr Drake: My name is Eric Drake and I am the Deputy Scottish Public Services Ombudsman.

Mr Peat: My name is Adam Peat and I currently hold three offices as the Local Government Ombudsman for Wales, the Health Service Commissioner for Wales and also the Welsh Administration Ombudsman.

Q87 Chairman: Mr Peat, how will this Bill impact on your job as Ombudsman in Wales?

Mr Peat: It will make it a great deal easier because at the moment I have three different sets of legislation that I have to operate to and my staff have to be familiar with. Although the legislation all comes ultimately from the same source, there are minor differences which make it quite tricky to remember at all times clearly which set of provisions one is operating.

Q88 Chairman: Is there anything in your opinion that you would like to have seen in the Bill that is not there?

Mr Peat: No, I do not think so. As I said in my written evidence to you, I was a little concerned about clause 11 which deals with my ability as the Health Service Commissioner to assess matters of clinical judgment. I do feel that that needs to be extended. One frequently sees health service personnel operating alongside social services personnel from the local authority these days in multi-agency, multidisciplinary teams. It does seem to me I need to be able to look at the actions of all members of those teams in exactly the same way but I do take comfort from what was said in the House of Lords Second Reading debate. The government are clearly prepared to consider an amendment in that area.

Q89 Ms Barrett: The Bill states that the Ombudsman's post will be a fixed term appointment set for ten years. Do you think that is appropriate?

Mr Peat: Yes, I think so. The current situation in respect of each of my appointments is that they are appointments to age 65. That has been the previous pattern, if you will, for UK public sector Ombudsmen, outwith Scotland. I understand that the government no longer wishes to have age specific provisions in Bills. It is against the current philosophy. I think ten years was a figure that was landed on as being a figure that would effectively do what appointment to age 65 has done before: give a sufficiently long period of appointment so that the Ombudsman would not have to be concerned about what he or she might have to do in order not to cause offence and not to jeopardise their chances of reappointment. The two things go hand in hand, the ten years but also no possibility of reappointment.

Q90 Ms Barrett: The tenure for the Scottish Ombudsman is set at a fixed five year appointment with the possibility of extending it for another five years. I wonder if you could tell us what you think the advantages or disadvantages might be for that compared to the suggested tenure?

Mr Drake: The reality is that there is very little difference from what is proposed for Wales because the provision is for a term of five years with the probability of a second five years, but almost certainly not a term beyond that. It is effectively a ten year appointment but the Scottish Parliament chose to do it that way.

Q91 Ms Barrett: Do you see any obvious advantages? I hear what you say but there is that get out clause, if you like. Maybe one side could resign the post but it does give that get out clause.

Mr Drake: We have not got to the first five years yet so I cannot speak from experience but I cannot see that there is any great, practical difference from what is being proposed with the Welsh legislation.

Q92 Ms Randerson: I would be grateful if both of you could answer this. Debates in the Scottish Parliament on the Scottish Bill resulted in the extension of the Ombudsman's powers beyond investigation of complaints against the exercise of administrative functions to also include complaints about the failure of a public authority in service delivery. On your reading of the Bill, will the office in Wales have the power to investigate failures in service delivery?

Mr Peat: Yes it will, very clearly. That has been very specifically provided for. The one point that I mentioned earlier is wanting to be able to look at complaints about service failure in the same light, whether they are complaints about the exercise of clinical judgment within the NHS or complaints about a comparable, professional judgment by what might be, say, a psychiatric social worker working alongside a psychiatric community nurse. With that minor point of detail, I am satisfied and indeed very pleased that the Bill does extend the ability to look at complaints about service failure to all of the bodies that will be inside the jurisdiction of public services Ombudsmen and to do so in the same light and spirit.

Q93 Ms Randerson: Mr Drake, do you believe that the powers for Wales will be parallel to those in Scotland in that respect?

Mr Drake: Yes, I do. The argument that happened in Scotland was very much what Adam has described. The legislation governing the health Ombudsman has always had that provision, that he could look at service failure. The discussion in the Scottish Parliament was that it was illogical to have it for one sector of the Scottish public services Ombudsman and not for the rest of the jurisdiction. It is extended for us to cover the whole of our jurisdiction and that seems to me eminently sensible and appears to be what has been gone for in the Welsh legislation too.

Q94 Ms Randerson: Mr Peat, in your evidence you say that a formal investigation will be carried out where appropriate. What do you believe will be the criteria for determining whether a formal investigation is appropriate?

Mr Peat: The question I would have to answer each time is: is there some wider lesson here that needs to be learned or is what the body alleged to have done really so frightful that it ought to be made known to the public if, when I investigate, the facts show that something has gone very wrong. There are any number of cases that come to an Ombudsman where frankly it is not like that. Yes, there has been maladministration. Yes, somebody has been badly treated but it is essentially a one-off slip up and the main thing is to see if one can sort that out and get redress for the individual as quickly as possible. It has to be helpful and I am very pleased with the provisions in the Bill that will make it easier for me to look into things in a streamlined way and not have to mount a formal investigation each and every time. I think it is better to save the heavy guns for the times when they are really needed.

Q95 Ms Barrett: Mr Peat, just looking at the issue of service delivery and the extension of the powers from just maladministration, a lot of people in the past have been frustrated that the Ombudsman could only look at maladministration. What could you do to prevent hundreds and hundreds of people coming to you just to complain that their rubbish is not being collected regularly? Surely that is something that the local councillor or the chief executive, the director of the department, should be dealing with? You would need, I presume, some sort of sifting process so that you do not become a very expensive commodity, looking at things that somebody else perhaps should be doing.

Mr Peat: Yes, absolutely. The Bill provides for what is currently the situation. The Ombudsman does not have to investigate any complaint that comes before him. You have a discretion as to whether or not you are going to investigate. That is the first point. Secondly, the legislation specifically provides that I should not normally investigate a complaint unless the complainant has first made some sort of attempt to bring the thing they are complaining about to the attention of the authority of whom they complain and asked them to sort it out. One would normally be looking to see some evidence (a) that somebody had something that appeared to be on the face of it worth complaining about and (b) that they had been to the council, been to the NHS trust, and made some attempt to get that body to put it right first.

Q96 Mr Caton: While we are looking at the remit of the new Ombudsman, as I understand it, in your current capacity as a local government Ombudsman you are not empowered to investigate community councils. Do you think we should be looking at this Bill as an opportunity to extend your powers in that direction?

Mr Peat: At the present time, I can look at allegations that a community councillor has broken the statutory code of conduct for councillors but not, as you rightly say, at complaints of maladministration. As I understand it, the intention is that complaints of maladministration by community councils will be within my remit as the public services Ombudsman and the Bill specifically provides a mechanism by which the National Assembly may, whenever it chooses, add any form of public body in Wales to those bodies that I will be able to investigate. If memory serves me, community councils are not explicitly named on the face of the Bill as bodies that I would be able to investigate a complaint of maladministration about but there is some early intention that, if the National Assembly so chooses, a proposal will be brought forward for the Assembly to consider whether they should do that.

Q97 Mr Caton: As I understand it, when this post is created after the passage of this Bill, the Ombudsman would not immediately be able to investigate a complaint of maladministration against a community council until after the Assembly has considered it and presumably extended the list in the schedule?

Mr Peat: Yes.

Q98 Mr Caton: What sort of timescale do you think that will be?

Mr Peat: That is very much a matter for the National Assembly but it is certainly feasible in practice, if the Assembly so chose, that that Assembly secondary legislation could be in place by the time the Bill was brought into effect. I am working on the assumption that, regardless of the date that the Bill might achieve Royal Assent, it will probably not be brought into force before 1 April 2006.

Q99 Mr Caton: Would you welcome the extension of powers in that direction?

Mr Peat: Yes, I would. It is somewhat illogical that there is no avenue for seeking redress and investigation of a complaint of maladministration against a community council. I do not think it is necessarily going to lead to a flood of new cases and new investigations simply because the administrative functions of community councils are so limited, apart perhaps from a handful of those that were once in the distant past urban district councils. In the main, community councils have very limited administrative functions, as you know, and I think the scope for complaint about them will be fairly small. That is no reason why people should not be able to complain about them if indeed they are capable of maladministration.

Q100 Mr Caton: One of the reasons I ask the question is because there is some evidence that the government is looking to extend responsibility of community councils, particularly in the field of antisocial behaviour. It seemed an appropriate time to look at whether the Ombudsman's function should be extended as well. I am very glad to hear that you look forward to that happening.

Mr Peat: Yes. My memory has just been jogged. I apologise. I inadvertently misled the Committee. Community councils are expressly on the face of the Bill at line 32 on page 23. There was some discussion earlier as to whether they would be on the face of the Bill or would be left for later Assembly legislation. We will be able to investigate from the outset.

Q101 Mr Caton: They are not one of the listed authorities under Schedule three, unless they are counted as a local authority.

Mr Peat: That is precisely what the provision at lines 30 to 33 on page 23 of the Bill does. It says, "Local authority in Wales means a county council, a county borough council or community council in Wales."

Q102 Mr Williams: In her written evidence to us, Ann Abraham stated that cross border issues - that is, public health and civil defence - will require joint working and cooperation between Ombudsmen. Will there be any formal mechanism for cooperation and joint working or will this be an informal agreement?

Mr Peat: I am sorry; could you repeat that?

Q103 Mr Williams: We were told by Ann Abraham that on cross border issues such as public health and civil defence there may be joint working between Ombudsmen in England and Wales. The question is will that be a formal mechanism or an informal mechanism?

Mr Peat: I think it will be both. This Bill provides specifically powers for the public service Ombudsman for Wales to cooperate with other Ombudsmen in the UK. What it does not do is to provide those other Ombudsmen with a reciprocal power. I understand that that may have to be the subject of a regulatory reform order in due course. There is an excellent working relationship between myself and the other public service Ombudsmen in the UK, both with Professor Alice Brown in Scotland, with Ann Abraham and indeed with the local government Ombudsman in England. All of us would always have a focus on the complainant and trying to sort things out for a complainant by cooperating as best the statutory powers that were available to us would allow.

Q104 Mr Williams: A number of powers are or have been transferred from Westminster to the Assembly, not specific powers, but allowing the Assembly to use its staff to carry out those functions in Wales. If there was a complaint about that type of service, would it be appropriate to use the Welsh Ombudsman because the service was being delivered in Wales by the Assembly or a Parliamentary Ombudsman because the powers of those things remain with Westminster?

Mr Peat: My understanding is that under this Bill any administrative action of the Welsh Assembly would be subject to my scrutiny rather than to that of the Parliamentary Ombudsman.

Q105 Mr Williams: In particular, there is concern about cross border issues as far as health is concerned with people living in one country and having the service in another or being part of a GP surgery in one of the other countries. We are told about that from the Board of Community Health Councils. Are you confident that the Bill ensures that these concerns are clearly and adequately addressed?

Mr Peat: The Bill specifically empowers the public services Ombudsman for Wales to carry out a joint investigation with the health service Commissioner for England. What is less clear is the power that the health service Commissioner for England has to reciprocate, but the intention of both myself and Ann Abraham is clear and we are clear too that this is a real issue, particularly along that long border and particularly in the area of Powys. There is a great deal of to-ing and fro-ing between the GP's surgery in Wales and the hospital in Shrewsbury and so on. We certainly would, between us, look to investigate jointly. I am sure we could achieve that at least. Until such time as Ann Abraham as the health service Commissioner for England was given a formal power, we might not be able to produce a single, joint report at the end but two reports produced together on the same day, to be read together, we certainly could manage.

Q106 Mr Williams: On behalf of the complainant, is it necessary to have a joint inquiry? Could not the responsibility or the function be given to one Ombudsman? It seems to me that in the complainant's mind why should they be bothered with this complexity.

Mr Peat: I hope that in practice what will happen is that the complainant will treat me as a one stop shop. They will bring their complaint to me. If I think there is some aspect of it that needs to be looked at by another Ombudsman, I would seek the complainant's agreement to get that other Ombudsman involved, but I certainly would not tell them that they had to go away and make out a whole new complaint. I want to offer a seamless service and I know that my Ombudsman colleagues elsewhere in the UK would be very happy to cooperate in that.

Q107 Chairman: Mr Peat, in your written evidence to us you said that you were particularly keen to be able to consider synoptically complaints about the actions of multi-agency, multi-disciplinary teams which are common nowadays in fields such as care in the community. That is an area where you felt that the Bill could be improved. Can you expand on that?

Mr Peat: Yes. I think I have already referred to that. That is clause 11 of the Bill. It says two things. The first thing it says is that the Ombudsman may not question the merits of the decision taken without maladministration by a listed authority in the exercise of a discretion. Then it goes on to say, "Subsection (1) does not apply to the merits of a decision to the extent that the decision was taken in consequence of the exercise of clinical judgment." In other words, I can look at whether the GP did the wrong thing in prescribing Aspirin for your child's meningitis without having to consider whether that was or was not maladministration. I am asking myself as a question of the exercise of clinical judgment: was there or was there not a service failure here. I think I need to be able to apply the same sort of yardstick when you are looking at the actions of social workers and of people who are assessing children's special educational needs. It is all one nexus. As far as the family is concerned, it may all be one problem. It needs to be looked at together in the same way. I am encouraged by what the government has so far said about their willingness to look again at the wording of the Bill in this area.

Q108 Mrs Williams: (Translated from Welsh) You touched on this matter when Mr Williams asked you a question about joint inquiries. The Bill prohibits the Welsh ombudsman from conducting and reporting on joint inquiries with the ombudsman in Scotland. Can you anticipate any circumstances where it would be worthwhile for you to conduct joint enquiries? I am putting the question to both of you.

Mr Peat: Yes. In principle, I can. The geography makes it very much less likely to happen at all frequently in practice. One example that comes to my mind is the possibility that perhaps an elderly person who has been in the care of a social services authority in Scotland might move to Wales to be closer to their family. Therefore, they come under the care of a social services department in Wales. Somewhere, something goes wrong with the transfer arrangements and each authority is blaming the other for what went wrong. I am constructing a hypothetical example but you can see that it would be quite difficult to get to the bottom of that, at least informally, if I and the public services Ombudsman for Scotland did not cooperate. The Bill does not make any specific provision for me to operate jointly with Scotland. I would have preferred it to but probably in practice we would get by on an informal basis.

Q109 Mrs Williams: (Translated from Welsh) You have just said that you would welcome it. Do you wish to express that in stronger terms?

Mr Peat: What I would like to see is that I would have the power to cooperate in a like manner and undertake joint investigations with any of the other statutory Ombudsmen in the UK. It is certainly not due to any reluctance on my part in any way to cooperate with the public services Ombudsman for Scotland, with whom I have a very close working relationship. I am very grateful to Alice Brown for all of the practical help and advice that she has given me to date.

Mr Drake: Speaking from the Scottish point of view, I would entirely agree with that. We take the same position. My understanding for why that particular provision is there is that the Scottish Executive feels that, because of the terms of the devolution settlement in Scotland, it would cause difficulties if there were joint investigations by the Scottish Ombudsman who is answerable to Scottish Parliament and the Welsh Ombudsman who is not. I am not a constitutional expert. I do not pretend to understand the basis for those concerns but practically they are unlikely to cause us significant problems given that we have the other provisions for cooperation with the Welsh Ombudsman and we have good relations and cooperate on a number of things already. We would also on the whole have preferred to have exactly the same provisions for all Ombudsmen.

Q110 Mr Lloyd: (Translated from Welsh) Thank you, Chair. I have a question for Mr Eric Drake. With your experience of dealing with complaints in Scotland, what powers do you have to ensure that your decisions are acted upon, so that your recommendations are followed through? What powers do you have to determine compensation in individual cases?

Mr Drake: The formal position is that we can only make recommendations. We cannot require bodies to implement our recommendations. There is a provision in our legislation that, as the legislation puts it, if we find hardship or injustice caused by maladministration or service failure that has not been remedied, we can make a special report to that effect to the Scottish Parliament. We can also require the body complained against to meet the cost of that report and any giving of publicity to it that we think is appropriate. That could be quite a useful lever to persuade bodies to do what we want them to. In practice, in the two years that we have existed, we have not had to resort to that. Although on a couple of occasions have quibbled initially about recommendations, they have always seen the light eventually and done what we said, so it seems to work.

Q111 Mr Lloyd: Following on from that, I have a further question for Mr Drake. Do you think that the situation is perfectly satisfactory, or does the system need to be strengthened?

Mr Drake: Putting it briefly, it is a satisfactory situation. We see no problems with it. We think it might cause difficulties if we had enforcement powers because it would put us in a rather different position from where we are at the moment.

Q112 Mr Lloyd: Mr Peat, in your experience, considering this new Ombudsman, do you believe that the Ombudsman has sufficient powers to secure adequate redress for the individual or does the Bill need to be strengthened in this regard?

Mr Peat: Drawing not only on my own rather brief experience to date but also on that of my predecessors, there does not seem to be any problem in practice about getting public bodies in Wales to comply with an Ombudsman's recommendation. There is sometimes a degree of grumbling and reluctance at first but when you persist and if necessary make it clear that you would go to the issue of a second report the provisions in this Bill for the public services Ombudsman for Wales to issue a special report are very close to the arrangements which Eric has described for Scotland. There has been no occasion in recent history when it has proved necessary to issue a special, further report. The mechanics in practice are going to be satisfactory. Providing a power of compulsion would frankly be overkill and might jeopardise what is currently a generally very cooperative relationship with local government in particular.

Q113 Ms Randerson: The Bill refers to the fact that a complaint must be referred to the Ombudsman before the end of the period of one year starting on the day on which the complaint was made to the listed authority. Mr Peat, in your experience, do you think one year is a sufficiently long time, given the protracted nature of the way in which some public bodies deal with complaints? How do you take the definition of a complaint because people very often make an informal complaint, for example, to a local authority and it is ages down the line before they make the formal complaint.

Mr Peat: One year would certainly be unreasonably short if this was in any way a rigid but the Bill gives me a very wide measure of discretion to accept complaints after the period of one year has elapsed. The Bill is also more flexible than the provision of some of the existing Ombudsman legislation. The NHS legislation in particular currently states that the complainant should normally have "invoked and exhausted" the NHS complaints procedure before they come to me. Anybody who has ever come across the NHS complaints procedure will recognise that it is as likely to be the procedure that exhausts the complainant as the other way around. I do have a wide measure of discretion to take complaints early. The only requirement in respect of the complainant having first used the complaints procedure is a very flexibly worded one: that they will first have drawn the matter complained of to the notice of the authority and given them an opportunity to put matters right. Those may not be the very words but they are close. I have a complete discretion to decide to take up a complaint, either out of time or before the complaints process of the authority itself has finished. If the complainant feels they are not getting anywhere, they can come to me and I can exercise my discretion to pick that up. Given all of that, I am happy with the time limit of one year. It does make sense to have some sort of time limit and, as a matter of practical common sense, the longer somebody leaves it before they come to me the harder it becomes to investigate and get to the bottom of the facts.

Q114 Ms Randerson: Mr Drake, do you have a similar provision in the Scottish legislation? Are you finding it satisfactory?

Mr Drake: We do. Our legislation has carried over that unfortunate "invoked and exhausted" wording from the old health Ombudsman's legislation and is much more worded in terms of taking the complaint through formal complaints procedures. The more flexible arrangements that Adam has described are highly desirable but we do also have discretion to take complaints that either have not completed a process or have not been raised at all. We do use that if we think somebody is being messed about in an internal complaints procedure. The flexible wording that is going to be in the Welsh legislation is highly desirable.

Q115 Mr Caton: In responding to the questions about securing proper redress, you have both given the strong impression that you think statutory enforcement powers would be counterproductive and you, Mr Drake, said they would put you in a different position which you thought would create difficulties. Could you both expand on that a little more, about the negative impact of having statutory enforcement powers?

Mr Drake: The position for us is very much as Adam has described. We have a generally cooperative relationship with the bodies within our jurisdiction and if we had enforcement powers it is possible that that relationship would be affected. That to some extent is speculation but I start from the basis that it is not broke so we do not need to fix it. It does seem to work pretty well as it is at the moment.

Mr Peat: That is essentially my position too. It works as a matter of practice. The Bill in this respect is squarely within the British Ombudsman tradition. To put provision in to make my recommendations enforceable would not bring any practical benefit but would have the effect of making the Bill controversial in a way that perhaps it need not be.

Q116 Hywel Williams (Translated from Welsh): Thank you very much, Chair. This is a question for Mr Peat. In its written evidence, the Welsh Language Board welcomes the fact that the ombudsman has the power to investigate failures to comply with the Welsh Language Act 1993, as an example of maladministration. Can you explain the relationship between the Welsh Language Board and yourself as ombudsman, and how would you manage the joint interest that you would shares in such cases?

Mr Peat: I have seen the evidence that the Welsh Language Board submitted and I find myself very much in agreement with what they have had to say to you. It is the case that if an authority departs from its stated Welsh language scheme that is potentially maladministration. I can investigate it. Equally, there is provision for complaints to be made direct to the Welsh Language Board so I think there will be some small overlap of jurisdiction. It is probably better to have a degree of overlap than a crack down which things might fall. Probably what will be necessary in practice and does not need to be provided for on the face of the Bill is that the Welsh Language Board and I might enter into some sort of concordat about what types of case we would take and perhaps, in relation to an individual complaint should it arise, we might need to have discussion with them.

Q117 Hywel Williams: (Translated from Welsh): It is the Assembly's intention to change the Welsh Language Board's status and to bring it in-house, leaving some functions to the dyfarnydd. Do you anticipate any difference if that were to happen?

Mr Peat: I do not think that is likely to make a very major difference. It might be in practice that I would have rather more investigative machinery at my disposal. It might at the margin make it easier and more appropriate for me to take rather more of the investigations perhaps and the part of the Welsh Assembly that takes over the function of the Welsh Language Board to be a little less.

Q118 Hywel Williams: (Translated from Welsh): I will conclude with one further question, if I may. In its evidence, the Welsh Language Board stated that failure to ensure the language choice of an individual could be construed as maladministration or failure. This is a detailed brief. Would you go so far as to say that it is an example of maladministration or failure?

Mr Peat: For me, it all depends on what the authority in question has put into its defined Welsh language scheme. Maladministration consists in failure to adhere to your own announced the published policies. That is what I would be looking at.

Q119 Ms Dunwoody-Kneafsey: Mr Peat, how do you intend to increase the public profile, raise public awareness and maximise accessibility to our office?

Mr Peat: That is a very good question and one that I have spent some time thinking about. The very act of bringing the three offices together and having one Ombudsman will create a much clearer public profile. It will be much easier to explain to the public. Once we have that, we will need to produce a range of much more user friendly publicity material, leaflets and so on than we currently have. I look at one or two of the leaflets that we currently have and shudder a bit because they seem to spend so much time explaining to members of the public what I cannot do rather than what I can do for them. I want to overhaul all of that but, at the end of the day, there is a real problem about publicising the office, short of spending large sums of the taxpayers' money on advertisements and so on. It is not as though I am trying to persuade somebody to buy a new packet of washing powder next week. I need them to be vaguely aware that there is an Ombudsman who might be able to do something for them perhaps when they have a grouse five years down the line. Research that has been done jointly by the Parliamentary Ombudsman and the local government Ombudsman in England has shown pretty clearly that there is a much higher level of public awareness of front line advice agencies like Citizens' Advice than there is of the existence of an Ombudsman's service. One of my primary tactics is going to be working alongside organisations like Citizens' Advice, like Welsh Women's Aid, like some of the ethnic minority community organisations, to ensure that all of their front line advice workers know absolutely about the Ombudsman's service and what we could do for people so that they will steer people who come to them, who they think could benefit from our investigations, to come to us. That is going to be the most practical, pragmatic way of doing it. I should add that I am very pleased that this Bill has borrowed a particular provision from the Scottish Ombudsman's scheme. That is to say that any body who has a complaint from a member of the public and they are saying to that member of the public, "I am sorry, chum, you have reached the end of the road. This is as far as we go with the complaints procedure", will have to say to the complainant in the same breath, "You do have the right to go to the Ombudsman." I think that is very important.

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 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 you 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 an ASBB.

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 back 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 which, with any luck, we will achieve before the end of next month in Bridgend. 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.

Written evidence from Wales Office and the Welsh Assembly Government and the Parliamentary Commissioner.

 

Examination of Witnesses

 

 

Witnesses: Mr Don Touhig, a Member of the House of Commons, Parliamentary Under Secretary of State for Wales, Ms Sue Essex, Assembly Minister, National Assembly for Wales, Minister for Finance, Local Government and Public Services, Welsh Assembly Government, and Ms Ann Abraham, Parliamentary Commissioner for Administration (Ombudsman) and Health Service Commissioner for England, examined.

Q139 Chairman: Welcome, Ministers, before this joint session of the Assembly Committee and our Committee here looking at the Public Ombudsman for Wales Bill draft scrutiny. It is a little odd welcoming Ms Essex because she is a member of the Assembly Committee, but it is one of the anomalies of the way we are working at the moment which is that she will have had all the papers for the Committee and is essentially part of the Committee. So, we are expecting great things of your answers, Minister! With something uncontroversial like this, it is not a problem but it may be in the future. If we ever do have joint working where there is something controversial, it may be that we may have to have some kind of convention and you come off your Committee for the purposes of joint sessions. We are breaking ground with everything we do at the moment with these things but it is a pleasure to see you both together before this joint session. We all know who you are of course but, for the purposes of the record, could you introduce yourselves.

Ms Essex: I am Minister for Finance, Local Government and Public Services in the National Assembly for Wales.

Mr Touhig: I am Don Touhig and I am the Secretary of State for Wales.

Ms Abraham: I am Ann Abraham and I am the UK Parliamentary Ombudsman and the Health Service Ombudsman for England.

Q140 Chairman: Thank you all very much for coming. Was a tenure of appointment similar to that of the Scottish Ombudsman considered for the Public Service Ombudsman for Wales? There is a slight difference in the tenure: I think it is five and five there and ten for the Welsh one. Why was the same time limit not used?

Ms Essex: I think the view was that a ten-year appointment gave length of security of tenure and of course this was one of the aspects that went out to consultation and the responses back endorsed that, but I do understand that there has been some discussion about that and certainly when I had a very early discussion with the Lords on the briefing, that was one of the issues that came up. It was thought through originally to give that length of time there, so it was clearly thought about and it was endorsed in the consultation responses but clearly again I would say that we are listening and we know that is one of the issues that has cropped up with the Bill and obviously we will look with interest at what this Committee comes up with.

Mr Touhig: We had 38 responses to the two consultations we have had on the Bill so far and that is how we have arrived at the proposal that is in the Bill. Clearly, as Sue has said, when we met the peers, their lordships - and it has come up with amendments and so on in the Lords - feel that this ought to be looked at and part of this exercise is listening and understanding what people think might be of benefit to improve the Bill and we will certainly listen.

Chairman: I will now ask Ann Jones, who is the Chair of the Assembly Committee, to ask questions.

Q141 Ms Jones: Does the wording in Clause 1(13) which "provides that the Ombudsman may authorise any person to discharge his/her functions on his/her behalf" effectively allow the Ombudsman to appoint de facto deputies if he/she wants?

Ms Essex: We felt that the principle of having the Ombudsman there without stated deputies meant that we really do have an integrated service, but the issue is that there may be times when the Ombudsman would require specific areas of knowledge. So, case by case, there may be issues where he could use deputies from within the establishment. Our general conclusion is that it would be better to allow the Ombudsman a free hand to organise the office as the Ombudsman sees fit rather than having a delegated function to a member of staff or setting up official deputies as such. I would emphasise that the main rationale behind this legislation is trying to get an integrated Ombudsman service, a public service, which I know everybody supports and what we have to be careful of is that, within that new service, it does not start to fragment yet again along perhaps individual service lines.

Mr Touhig: I think it is important, as Sue has said, that we go down this road. We decided not to specify on the face of the Bill that there can be deputies but built in that the Ombudsman would be there to consider that. If you reflect over the work that both Committees have done in scrutinising other legislation, pre-leg scrutiny, you will know that we have done a number of Bills in which we have broadly provided a facility/enabling power to the Assembly without specifying how it might be used. This is not quite in the same category but is in the broad thrust and it is more enabling in giving the responsibility then to the Ombudsman in Wales to make that decision for himself/herself rather than specified on the face of the Bill which could possibly lead to the fragmentation of the service which this whole Bill is designed to overcome as Sue was just explaining.

Q142 Mrs Williams: (Translated from Welsh): Evidence given by previous witnesses made the case for the establishment of a statutory advisory board for the Welsh ombudsman. Did you consider establishing such a board? If so, why was this not included in the Bill?

Ms Essex: I understand that, in the consultation, there were some soundings of whether the respondees would be interested in having an advisory board and indeed, if there were an advisory board, what kind of useful function that board could perform. I think the most important view to me, looking back at the consultation responses, was this issue of threatening the independence and a perception of independence of the Ombudsman. I really do think it is absolutely crucial - and I am sure we have all experienced this in representing people - that the Ombudsman appears and is completely independent of other people and other organisations in coming to decisions. My current view, having looked at this and come to this as a minister, is that the integrity of that role as an independent person is absolutely paramount in terms of reassuring the public that they will get their complaints considered in a fair and impartial way. I think there is huge discretion to the Ombudsman to get advice from whomever he or she sees fit. There is no fettering of that ability and freedom for the Ombudsman if he/she needs specialist advice to ask for that and to listen to what is coming forward. So, on balance, I think that independence and that ability not to be constrained or not to be seen to be constrained or influenced unduly is, as I say, of paramount concern.

Mr Touhig: Paragraph 12 of Schedule 1 makes clear that the Ombudsman does have the ability to consult and ask and seek advice from whomever he sees fit and, in a personal sense - and this is a personal view which I share with colleagues - I am sure that if we were bringing forward a proposal for a statutory board, we would be asked, "Why are you setting up another quango?" I am sure it is not a quango as such but that is how it would be perceived and I think that where we do not need to do that and we have given the power to the Ombudsman to consult whomever he/she wishes to consult, then I think we have covered everything so far as that is concerned.

Q143 Chairman: The Scottish Ombudsman is setting up a non-statutory advisory board; would you support that?

Ms Essex: I would really take some soundings as to whether that is sensible and again I reflect on experience and I guess that elected members have their own experience from which to draw. The issue of a board behind advising whether it is statutory or non-statutory I guess will not make much difference to Mr or Mrs Jones. Their belief is that the Ombudsman is there to make a decision in his/her own part. I still feel, as I have said, that that is the main issue. If we were introducing a piece of legislation and the main purpose of this legislation was the functional one of bringing the different Ombudsmen together, I think the public will understand that very, very clearly. If, in addition to that, we were actually changing or seeming to change the role of the Ombudsman and saying that the Ombudsman would be supported by a board of advisers, I think there may be some disquiet amongst the interested public.

Q144 Mr Caton: Ms Abraham, do you have an advisory board or indeed advisory boards in your two capacities?

Ms Abraham: I have no statutory provisions at all in relation to an advisory board and I think it is very important to me that my independence is not fettered in any way. I have established - and the legislation in relation to my office is very similar to the provisions here - a small advisory board and, as I understand the proposals in the Bill, there is nothing which precludes that happening should the Ombudsman decide to do that. I did it because I felt that it would be helpful to have some particular expertise in certain areas such as diversity and such as governance and I did it through a process of open competition in order that I could not be accused of choosing my critical friends in a cosy way. So, I have done it, it has only been in operation for less than a year and I am finding it useful. I think it is something that different Ombudsmen would perhaps want to consider in different ways for different reasons and I think there is nothing in the legislation that would preclude it.

Q145 Mr Caton: Does your advisory board advise you on specific investigations or has it a more general function?

Ms Abraham: Absolutely not. It has no role in casework. It is there to advise on governance, on strategy, on helping me with my role as accounting officer in terms of accountability, issues around public awareness of the scheme and so on, but our governance statement and the terms of reference of the board make it very clear that the advisory board has no role in casework.

Q146 Mrs Williams: (Translated from Welsh): Therefore, do you really feel that it is needed, if that is its role? On that point, how were you persuaded of the need to establish this advisory board?

Ms Abraham: I would say that nothing compelled me and it was a decision that I took looking at the overall governance really of the Ombudsman's office against modern standards and how that compared with my experience in other areas. I think there is something unique and special about an Ombudsman's office which means that the independence of the Ombudsman is paramount and my responsibilities in terms of accountability are, I think, not in any way changed by having an advisory board, but I thought it would help the office because it would give me access to expertise in different areas and I thought it would help in terms of our public accountability to be able to demonstrate that we had external members on an advisory board and we also had an external chair of an audit committee. I suppose it was recognising the special position of the Ombudsman but wanting to make some arrangements which would enable me to feel that public accountability was being properly addressed within the organisation by modern standards, but it was a decision which was about my scheme at that time. I think a statutory board would be a very, very different creature and I think I would share the concerns that have been expressed about how that might have an impact on the real and perceived independence of the Ombudsman.

Q147 Mr Edwards: What sort of people do you have on your advisory board?

Ms Abraham: I have one other Ombudsman who is the Local Government Ombudsman for England who is also an accountant so brings financial skills but brings wider awareness of the ombudsman community and of local government and particular expertise in governance, and I have a woman who is a freelance consultant with specialist expertise in areas of diversity and equal opportunities who has a background as an equal opportunities commissioner and also with ACAS and in the voluntary sector and has good connections with the voluntary sector, and I have an external chair of the Audit Committee who fulfils a rather different role. We went through a process of open competition and the Committee may be interested to know that I asked the Chair of the Public Administration Select Committee to help me with the process of selecting my external members.

Q148 Mr Edwards: Can I move you to an issue to do with public awareness and understanding of the role of the Ombudsman. Witnesses from whom we have heard believe that the public do not have an adequate understanding of the role of the various Ombudsmen and we wonder if there is anything that could be done through this Bill that would help increase public understanding of the role. I, for example, was not aware that some of you had two or three roles until investigating this Bill and I suspect that might be a cause of confusion to people outside.

Ms Essex: If you go to Clause 32 of the Bill, it does provide for those bodies that are within the Ombudsman's jurisdiction to actually take reasonable steps, I think that is the phrase used within the legislation, to inform the public about their rights. From our perspective as the Assembly for Wales, we do have a code of practice on complaints which again highlights the role of the Ombudsman but I do think that, hopefully with this piece of legislation going through, it gives us an opportunity to promote the role of the Ombudsman. Clearly, there needs to be a public information exercise when the legislation goes through but also to think of the way that we can also, as you say, rightfully inform people not just of the existence of the Ombudsman but perhaps to elucidate a little more about the role and function of the Ombudsman because I guess, again if I can allude to our own experiences, in fairness most people understand that there is an Ombudsman out there. They may not understand at the moment that there is a series of Ombudsmen. What I think they do not always understand is the terms of reference which the Ombudsman works under and I do think that, if this Bill goes through which I sincerely hope it does in whatever form, it gives us a major opportunity to have a real public information campaign about the nature of this function and the nature of the integration of the service and what service that can provide for the public.

Q149 Mr Edwards: Could I ask Ms Abraham to comment on that.

Ms Abraham: I would agree that bringing together the various Ombudsmen roles is a major opportunity both for simplification and improving public awareness and I am sure that will happen. What I would say more generally and certainly in relation to my scheme is that I think all the public sector Ombudsmen to whom I talk know very well that we have some work to do on improving public awareness of Ombudsmen generally and also specifically our schemes and my office has, jointly with the Local Government Ombudsman in England, undertaken some research on public awareness both in relation to the public generally but also with the advice sector and I would certainly say, as I was hearing in the evidence given in the previous session, that one of the ways we address this is to think not only about people coming directly to us but about the source of referrals, whether that is elected representatives, whether it is advice agencies or whatever, and ensuring that our contacts and our awareness with people and representatives who are likely to be sources of referrals is an important area of work for us. I have some envy, but not huge, about the provisions in the Bill in relation to requirements on public bodies to ensure that the reference to the Ombudsman is made at the appropriate time, but we would do that anyway informally without the statutory provision. So, I think it is really important when the public body or the NHS has reached the end of its part of the complaints procedure that there is a clear direction to the Ombudsman. I think we all know, as public sector Ombudsmen, that there is more work to do here.

Mr Touhig: Page 19, Clause 32 to which Sue had referred of course does set out the responsibilities placed upon the listed authorities and the actions they should take in order to publicise the work of the Ombudsman. I do not know what colleagues find when people come to them about matters, say, with the local authority and say, "Will you take it up with the Ombudsman?" and they are not clear what the Ombudsman can do. The Ombudsman will look at maladministration and service failure. I often think it would be very useful just to have a two-column list of dos and don'ts - the Ombudsman does do this, he/she does not do that. I think that very often the public have a perception that the Ombudsman can do much more than actually presently permitted to.

Q150 Mr Edwards: At present, to go through the Ombudsman, one needs a Member of Parliament. Do you think it would be better if the public did not have to need to go through a Member of Parliament to talk to the Ombudsman or make a complaint to the Ombudsman?

Mr Touhig: I think that is a point that has just been made now and I think that we should give the widest opportunity that people have to seek a redress if they feel they have some sort of grievance. That may well follow but that is a personal view. There are many issues that I have come across in my years in the House and before that as a councillor where it has needed an outside body, like an ombudsman, to look at a particular complaint or concern and it seems to me that it should not be restricted and that people should have the chance to have a complaint investigated if they feel that there is a grievance and be told that they have a legitimate complaint or that they do not.

Q151 Ms Barrett: I have some questions regarding cross-border issues which I would first of all like to put to Ann Abraham. In your written evidence, you state that cross-border issues - and you use an example such as Public Health and Civil Defence - will require joint working and cooperation between Ombudsmen, their words not mine. Will there be a formal mechanism for cooperation and joint working or will it be an informal arrangement?

Ms Abraham: I would hope that the combination of this legislation and the Regulatory Reform Order in relation to my own legislation which we are currently discussing with the Cabinet Office, the ODPM and the Department of Health, will create the enabling powers for that cooperation. I think it is unlikely that we would therefore need a further formal mechanism to ensure that we work together cooperatively because it is not just goodwill and trust between us as public sector Ombudsmen, it is that we are, as a group of Ombudsmen, focused on providing a single point of reference for the complainant and working together in the best interests of the complainant and therefore I think that our informal mechanisms are extremely well developed when that happens.

Q152 Ms Barrett: Do you have any examples of cross-border cooperation with the Scottish Public Service Ombudsman?

Ms Abraham: Perhaps I can give a general one rather than a case specific one but obviously it affects a large number of cases, and it relates to the health jurisdiction where we have talked and agreed, both with colleagues in Scotland and indeed are doing so in Wales, about how we get the necessary professional clinical expertise to ensure that, when we are looking at matters of clinical judgment, we are properly advised and you can imagine that there is a very wide range of clinical issues which are brought to us and, rather than each of us setting up our own pool of clinical advisers, we collaborate on that and work together on it and it serves two purposes: it gives us a wider pool but also, if there are issues about clinicians who are complained about in one country who are well known in a specialist field, there is the ability to actually bring in somebody who is not so closely involved with that clinical community and that is a very useful thing to be able to do.

Q153 Ms Barrett: I have another question for you regarding examples of patients living in Wales who may be registered with GP practices in England and may get their hospital care in England. How do you think the Bill ensures that their concerns are clearly and adequately addressed in issues of complaint?

Ms Abraham: As I have said previously, I think the combination of the Bill and the Regulatory Reform Order which actually enables those reciprocal provisions on consultation, cooperation and joint working should enable us to do exactly what we would wish to do to ensure that that episode of care, as these things tend to be called, is looked at in the round and not in a fragmented way.

Q154 Ms Barrett: I have a question for the Ministers. The office of the Ombudsman for Wales has been welcomed by a broad range of bodies within Wales, as you know, because it will create that 'one stop shop'. Given that the Ombudsman in Wales only has jurisdiction for devolved matters, will he be able to deliver that genuine 'one stop shop' service to the people of Wales?

Mr Touhig: Yes, we think so because he will have jurisdiction over a wide range of bodies of course. There is already extensive cooperation between the existing structure and those that exist in England. He will also have wide powers to consult, cooperate and to work jointly with the Ombudsman in England and I think that is going to be very important. I think there is great scope there for close collaboration and close cooperation. As we have seen, as you have scrutinised Health Bills and so on that we have put forward in the past where we needed cooperation with CHI and the Health Inspectorate of Wales, we successfully got a good working arrangement where it has been cross-border. At the present time, as you recognise, the Ombudsman looks at matters within the orbit of Wales and I think it is appropriate that that continues but bearing in mind that he does have very extensive powers now to consult, cooperate and work closely with the Ombudsman in Wales.

Q155 Mr Williams: Perhaps now we could deal with the collaboration with other Ombudsmen. In representations from the Commission for Local Administration in England, we are told that they are concerned that, in repealing the section of the 1974 Local Government Act, this changes, their phrase, the "long established" arrangements for transferring cases between England and Wales if and as required. They seek assurance that "the English Local Government Ombudsman and the Public Services Ombudsman for Wales retain explicit power to transfer cases between them comparable to that enjoyed for many years under current legislation." How does the Bill ensure that this relationship between the English Local Government Ombudsman and the Public Service Ombudsman for Wales is retained?

Mr Touhig: I think in answer to the previous question it was said that there is the ability with this Bill for very close working collaboration between our Ombudsman in Wales and the Ombudsman in England and the ability to work together and to work closely together. I understand the concerns expressed by the Commission for Local Administration in England, but I think they are not terribly real in the sense that there will be any inhibition upon our Ombudsman in working closely with the Ombudsman in England.

Q156 Mr Williams: Clause 24, which deals with consultation and cooperation with other Ombudsmen, will only be triggered when the Ombudsman in Wales identifies a cross-border issue followed by a complaint to him/her. Similar powers are not conferred on the Local Government Ombudsmen in England or indeed any other specified Ombudsmen in connection with complaints received by them. Should the Bill be amended to ensure that these powers are two-way?

Ms Essex: As I understand it, there is a review being carried out in England which I think Ann alluded to and I guess very much that that would pick up that issue making that compatibility there and probably would be looking for legislative change to achieve that.

Ms Abraham: The Commission for Local Administration in England is not part of my jurisdiction but perhaps if I could just try and be helpful with my understanding of this issue which I think is a very specific and self-contained issue and rather different from the broader issue of collaboration and, as I understand it - and I have seen the letter from the Chairman of the Commission for Local Administration in England - there is a specific provision in the existing legislation which the Bill would remove and that is the concern that the Commission for Local Administration in England are saying they hope can be looked at again, which is simply that it is not about new provisions, it is about saying, please do not take this out because it is extremely useful and it is their ability to actually hand a case directly between the two Commissions as they were. I think it is a different point from the one about consultation, cooperation and joint working and I think there is a very real point that it would be helpful if that could be looked at again.

Q157 Mrs Williams: (Translated through Welsh): Can you foresee that similar argument, such as when we were discussing the Children's Commissioner in England, will be made? What I mean of course is that when issues arise where the person actually comes from Wales but that particular person at the time is actually in England, rather than the Welsh Commissioner being able to safeguard the interests of the Welsh, they would actually be required to complain to the Commissioner in England?

Ms Abraham: I certainly had identified that as an issue. It did not appear to be a problem that I had seen in the legislation but it may be that I do not understand the point in sufficient detail.

Mr Touhig: If there is an issue of course where someone is having a service provided in England and there is a failure of that service, then the complaint would be made to the Commissioner responsible in England for that service and there is a requirement of course to cross-consult and obviously, if it were appropriate, the Welsh Commissioner would be advised, informed etc that that would be the proper way to deal with it for a service that is provided in England but someone is living in Wales.

Q158 Mrs Williams: (Translated through Welsh): But do you anticipate problems arising as a result? I am not necessarily talking about devolved matters?

Mr Touhig: We went through something similar, if you remember, on the Children's Commissioner and responsibilities and we had discussions, if I recall, at that time. The point I was trying to make in the earlier response which I alluded to of course is that the Commissioner will have the ability to collaborate and work closely with the Commissioner in England. I think that is slightly different to the way that we actually structured the Children's Commissioner for England in the legislation that we considered just recently in Parliament. So, I think there is a greater scope and opportunity here which I am sure our Commissioner will avail himself of.

Q159 Mr Williams: There are also concerns about multi-agency issues and perhaps if we make it even more complex, there are concerns that, if you have cross-border issues that are also multi-agency, how are these looked at? Can you explain how the Ombudsmen in England and Wales would address these issues?

Ms Essex: We feel that the clauses do allow for the cooperation of joint working to take place. I would want to be sure, picking up the reference of Betty Williams, that there are no loopholes within the provisions within the legislation and within all the different kinds of cases where you have either multi-agency or joint-agency working that people who have concerns would be able to make sure that those concerns were being explored by the appropriate Ombudsman or Ombudsmen or whatever you want to say. We feel confident that that is the case and that is covered within those proposals but certainly we are very conscious that we will go through with a toothcomb to make sure there are not the kind of circumstances or cases that could be left or that would slip through the net. We do not think there are but we will give, as this Bill progresses, more thought to this to make sure that we are absolutely watertight on this.

Mr Touhig: We are working to a very close timetable as you know with this Bill and clearly we would welcome the comments in the reports of the Committees sitting here today before matters are absolutely finalised but it is a tight timetable and there may be things that you will throw up in your reports that will cause us, even at the eleventh hour, to look at something again and say, "This is something that we do not have quite right" or "we need to look at again" and the opportunity would then hopefully be there to deal with that but, as you appreciate, Chairman, it is a very tight timetable because we are doing our best. This Bill has the support of all parties in the Assembly and we are told that it has the support of all parties here because I do not know if there might be any reason this year why the legislative timetable might be shortened but there may be and we would clearly want to advance this Bill as far as we possibly can and get it on to the Statute Book if we possibly can.

Q160 Mr Williams: In the Bill, the one thing that the Welsh Ombudsman cannot do is work with and have joint reports with the Scottish Ombudsman. Would the Ministers like to comment on that and do they believe that the powers could be extended to the Scottish Ombudsman as well?

Ms Essex: We have had quite detailed discussions with our counterparts on the Scottish Executive of whether or not the Ombudsman should be able to work and report jointly with the Scottish PSO. The arrangement already in place between the Scottish Public Service Ombudsman and other Ombudsmen relies on consultation and cooperation rather than joint working. We feel that, in practice, it is highly unlikely that circumstances will arise necessitating joint working between joint Welsh and Scottish PSOs, whereas joint working between the Welsh and English Ombudsmen would quite easily be envisaged for the simple practical fact that we have adjoining boundaries. That is why we do think there is a slightly different case and clearly cooperation and joint consultation would apply anyway.

Q161 Mr Caton: As I understand it, under the proposals in this Bill, publicity and potential embarrassment effectively substitutes for the Ombudsman's lack of enforcement powers. Is 'name and shaming' an effective and adequate substitute for statutory powers of enforcement?

Ms Essex: It appears to have been since 1996 because I do not think there has been a case where an authority has not complied with the recommendation from the Ombudsman. I think the responses to the issue of powers of enforcement were interesting in terms of the consultation exercise and the specific question that was included in the consultation exercise, if I can read it out, is, "In relation to redress for individuals, the legislation should make similar provision as now rather than conferring additional powers on the new Ombudsman either to enforce his recommendations through the courts or to impose sanctions on public bodies which failed to act in accordance with them." The general consensus of opinion, including that of the Ombudsman I have to say, was that no such power is required. I do feel that, within Wales, as I have said, the record has been very good and your point about 'naming and shaming' has been a salutary one because, in my experience as well looking back over the cases, there has not been an issue of non-compliance. The Ombudsman of course has the power within the legislation to carry on with the special report, if there has been non-compliance, and I would also say that since the introduction of the Assembly and all this legislation will be there with the Assembly in position, we have the situation where the annual report goes through a plenary session. So, there are many opportunities, I think, through Committee and through the plenary session if needed to endorse the recommendations or, if you like, to emphasise the recommendations of the Ombudsman. So, I take the view, and Don does too, that, in the situation as it is now, we should respect the responses to the consultation and feel that there does not need to be extra enforcement powers included.

Q162 Mr Williams: Some of the most difficult cases ombudsmen have to deal with is where there is not an injustice to an individual but where maladministration has, for instance, led to the environment being affected in general and sometimes it is difficult to see how the Ombudsman can obtain redress. For instance, if planning permission is given in the open countryside without any justification for it. Is there anything that could be put in this Bill that could help the Ombudsman in addressing those difficult situations?

Ms Essex: I have thought long and hard frequently and I am dealing with cases on issues around planning and, to the best of my ability, I cannot think of a way round that anyway on redress because you are coming into human rights and people who have already had a decision made, to be blunt. To me, the interesting point is the provision for guidance to be brought forward by the Ombudsman. I think this is a useful step because the important thing is that, as well as the issue of the individual who has made the complaint feeling satisfied that the complaint has been duly heard and responded to is the issue of learning lessons and sometimes some of the lessons are not just for the one agency that is being dealt with but there are wider lessons. Indeed, as we bring these various statutory agencies together under this legislation, I think the ability to have guidance will be more so. I think that is a very positive move forward and I think will be something that will be appreciated both by the individuals who have made a complaint and the wider feeling that, yes, lessons are being learned from this.

Q163 Mr Davies: We have had discussions before about this business of the 'naming and shaming' and we have not always agreed on this. Clearly, you accept that it has been a very effective way of carrying forward the Ombudsman's recommendations in the past and now we have the power of precedent. I think it is almost unthinkable that the Ombudsman recommendation would not be accepted. Do you think there is a danger that, if we did change the nature of that, in a sense the Ombudsman recommendation would become an acceptable price to pay for doing something that was not proper? Clearly, if some financial payment is forced on somebody, it becomes an acceptable price to pay when the existing system works very, very well and, if it is working okay, why change it?

Ms Essex: I think you are right. I think you are possibly going into quite difficult and I perhaps would use the word "dangerous" territory that you could move into something where there are repercussions that you did not actually expect. As you said, all the evidence so far is that the system does work and does deliver. I think there is every reason to think that will persist in the future, perhaps even more so. As I say, with the existence of the Assembly, we have the power to put the public spotlight on issues more than obviously when the whole issue of the Ombudsman was introduced. So, for various reasons but particularly because of the reality of practice, I think it would not be a good move at this moment to move down anything that is stronger than the provisions within there and, as you say, it could take us down a path that we might actually regret.

Q164 Mr Caton: You are quite right, Minister, it is clear that there is fairly broad consensus to go down the approach that is included in the Bill although it is not quite unanimous and, certainly, in the Second Reading in the House of Lords, there was at least one honourable Lord who felt that an opportunity was being missed. Can I ask all of you, are you aware of any other Ombudsman either within the UK or on the international scene where there is statutory enforcement provision other than the sort of 'naming and shaming' approach?

Ms Abraham: Not in the public sector, I think, and certainly not where there is a relationship with an elected body or with Parliament. If you look at private sector ombudsman, the financial ombudsman is the most obvious example of where binding decisions are made but it is a very different world and there is not the ability to actually name and shame in the public sector sense and there is not the ability to report to the Assembly. I would endorse what has been said this afternoon about, if it is working and working well, what is there to be achieved by making a very significant shift, I think, both in the relationship with the public bodies and how that works and I think it is very good for Ombudsmen in this context to have a relationship where they are seeking to persuade, when it comes to improving public services, I think that is a much better relationship than simply saying, "I have made a binding decision and that is it." I would add only one other caveat which is when Ombudsmen get into the business of determining civil rights and obligations by making the binding decisions, there is a tendency to go for a much more legalistic and formal approach to the whole question of investigations and I think that is dangerous territory as well in this tradition. I think what Adam Peat said about this legislation being squarely in the tradition of British Ombudsman is exactly how I see it. It is based on the benefit of experience, so it is an opportunity to improve and modernise but it is not a dramatic or radical shift away from that tradition which has worked very well for many years.

Q165 Ms Dunwoody-Kneafsey: Can you clarify the role that the National Assembly for Wales has in the appointment and possible dismissal of the Ombudsman.

Mr Touhig: The Bill as currently drafted provides in Schedule 1 for the Ombudsman to be appointed by the Queen on the recommendation of the Secretary of State. There is no requirement on the face of the Bill for the Secretary of State to consult the Assembly but we expect that this would happen in practice and has happened in practice since the appointment was made in 1999 but we are aware of possible amendments on this matter and will give that proper consideration.

Q166 Ms Dunwoody-Kneafsey: Minister, are you happy with that situation?

Ms Essex: As I have said, that has been custom and practice and not just on appointments on this but every appointment. Clearly, we will look at what your report says and reflect on that and other observations that come through.

Q167 Ms Dunwoody-Kneafsey: The Bill states that the Ombudsman's budget will be laid before the National Assembly for approval and that the Assembly will be responsible for the salaries, allowances and expenses. If there is a separation of the legislative and executive bodies of the National Assembly, will that Bill actually still survive that separation?

Ms Essex: We are looking into the future. We do not actually know what will happen. Clearly, there is a whole range of arrangements that would have to be looked at and this would be included, so I think we will face that when and should it arise.

Mr Touhig: The Government have committed to a White Paper on the future of devolution in Wales and clearly if this were to come forward as a proposal to spilt the executive from the broad body of the Assembly, then this matter would have to be taken into account in any Bill that would then follow.

Q168 Ms Dunwoody-Kneafsey: Clause 23 requires a special report relating to a complaint against the Assembly to be laid before the Plenary by the First Minister and motion to be tabled asking the Assembly to approve the recommendation of the Ombudsman. Clause 23(3) requires that the Assembly standing orders should require the motion to be moved as soon as reasonably practicable. So, on the one hand, you have a check and a balance but, on the other hand, you actually have quite a prescriptive thing within standing orders. Does the Bill reconcile these two positions or does it make it harder to actually implement?

Ms Essex: Our view is that it is not actually about reconciling the two positions. This provision in the Bill reflects what is already provided for in the Government of Wales Act. We do recognise that it is a prescriptive provision but it seemed appropriate it retain what had already been provided for in statute. We do believe that if we had not had a proposed re-enactment of this provision, there would have been well-founded criticism that we had left an obvious hole in the enforcement arrangements against the Assembly.

Q169 Ms Randerson: Can I go back to Sue Essex's answer on the appointment of the Ombudsman. Can you think of another example where the Secretary of State makes the appointment without consultation with the Assembly but the report and the budget both come to the Assembly for approval? I know there are other examples where various representatives are appointed in that way but I cannot for myself think of one where you have that very direct Assembly involvement at the later stages without involvement in the appointment.

Mr Touhig: Of course, this is a Crown-appointed appointment, it is made by Her Majesty the Queen on the recommendation of the Secretary of State and there is plenty of precedence for us doing that. We recognise that, in practice, the Secretary of State would obviously consult the Assembly. We are aware that there would probably be amendments requiring, on the face of the Bill, the Secretary of State to consult the Assembly and we will be giving that proper consideration. As my father would say, "If it ain't broken, don't try and mend it" and what has worked in that way in the past has worked terribly well, I think, and we have certainly proved since the establishment of the Assembly the close collaboration between Government here and the Assembly and consultation and, as you recall, when you yourself were Minister in the Assembly, it was certainly beneficial to all of us.

Q170 Chairman: In Clause 24(8)(b), the Assembly is given the power to omit a person by order from the list of consultees. I wonder what circumstances would be appropriate for somebody to be omitted from the list of consultees.

Mr Touhig: Clearly if there were issues that the Assembly felt made this difficult, then it is right that they should have that power. There is nothing that I particularly or, I think, Sue have in mind specifically in the way it might be used but again, Chairman, as you will recall - and this is a point I made earlier on - we have done a lot of legislation in this Parliament to be as enabling as we possibly can to the Assembly rather than being prescriptive, recognising that there is "a grey area" between what we seek to do in making legislation in this place and the Assembly's right and responsibility to make secondary legislation and I think that being over-prescriptive can be difficult. That is why I think it is in its broader sense that we have the provision there.

Q171 Chairman: It is in the sense of adding, omitting or changing the prescription, whatever they want to do, it is up to them.

Mr Touhig: Yes. I think it is important that that degree of flexibility is given.

Q172 Hywel Williams: (Translated through Welsh): Thank you, Chair. I refer you to clause 8.3, particularly the concept of aspects of Welsh culture. Clause 8.3 establishes that a function of a listed authority in relation to the Welsh language, or any other aspect of Welsh culture, is to be regarded as it is discharged in relation to Wales. The Welsh language's legal status is familiar. It featured in the Acts of Union of 1536 and 1543, the Welsh Courts Act 1942, and the Welsh Language Acts of 1967 and 1993. However, I am not familiar with the legal concept of 'any other aspect of Welsh culture', which strikes me as something akin to a bar of soap in a shower. How will it be defined and by whom, and would you care to suggest a possible definition?

Ms Essex: The clause replicates existing provision in the Government of Wales Act 1998 and this is where the phrase comes from, we have replicated this clause for the Welsh Administrative Integration Ombudsman, and partly defines Welsh culture because it expressly provides that the Welsh language is an aspect of Welsh culture. Otherwise, Welsh culture as such, as you use the terminology, is not defined in the Bill. So, that is the derivation of the term. Whilst the Government of Wales Act does not define Welsh culture, Schedule 2 of the Act which sets out the fields in which the Assembly has a function specified one of those fields as culture. This, in turn, was specified as including museums, galleries and libraries. I guess that it would be for the Courts, if anyone wants to take the definition that far to actually define it but, as I say, it is there from the Government of Wales Act and has been replicated for this purpose.

Q173 Hywel Williams: (Translated through Welsh): I move on to another question. In its written evidence, the Welsh Language Board welcomed the fact that the ombudsman has the power to conduct inquiries into failures to comply with the Welsh Language Act 1993 as an example of maladministration. Can you explain the relationship between the ombudsman and the Welsh Language Board and how that relationship will be established and managed?

Ms Essex: The Welsh Language Board is a listed authority under Schedule 3 of the Bill and, as such, it could be the subject of investigation by the Ombudsman. As a Crown body, the Ombudsman may be asked by the Welsh Language Board to prepare a Welsh language scheme, so that is an important provision as well. Most of the listed authorities that are subject to investigation by the Ombudsman also have a duty to prepare a Welsh language scheme or have agreed to prepare a scheme. The Welsh Language Board can look into any failures by public bodies, not just those in Wales interestingly enough, to comply with the terms of the Welsh language schemes. Where those bodies are also listed authorities, it is possible that a complaint of maladministration or service failure might be made to the Ombudsman. We would therefore expect the Ombudsman to discuss with the Welsh Language Board the way in which such complaints would be handled.

Mr Touhig: It is two-pronged really: the Language Board will have the opportunity and, if necessary, so will the Ombudsman have an opportunity to look into any area where there is service failure or maladministration.

Q174 Hywel Williams: (Translated through Welsh): May I ask a further question? Do you anticipate that the relationship between the ombudsman and the Welsh Language Board will change following changes to the board's status as a result of the plans to bring some of its functions within the Assembly Government, leaving other functions externally to the office of the dyfarnydd, as it is known.

Ms Essex: It may well do. It is an interesting and perhaps a kind of unique area in terms of language but certainly, going back to Don's point, the important thing is that the provisions are in the Bill and we get these provisions through. I hope you will agree that this strengthens aspects of protecting the language, as it were, and perhaps gives me an opportunity to re-emphasise the point that this has been really welcome. We have had two consultation sessions on this Bill, we have had regulatory reform orders that have gone through Parliament to enable the office to be set up at present. I think the critical thing for us is to consider the reports that have come through but to make the point that we all hope that this Bill will become statute within this session of Parliament and clearly we will be reflecting on whether there are any amendments and changes that need to be made but we are hoping that, with the kind of work that has gone on, with the intensive consultation and discussions that have taken place, certainly the thrust of this Bill could be carried through into legislation.

Q175 Chairman: I have one last question which you might or might not be able to answer. Have you any idea when this Bill is going to be presented to the House? I know it is not going to be long?

Mr Touhig: Funny you should say that, I was asking the Leader of the House only about that today!

Q176 Chairman: And what did he have to say?

Mr Touhig: There are discussions clearly going on. We are dependent on how they handle these matters in their Lordships House. I would like to put on record that we do appreciate that this Bill is well supported, it is not controversial, but it has been given a fair reading by all parties in the other place and we appreciate their help and understanding and recognise they have a duty to table amendments and so on, but nevertheless it has made good progress. If that can be maintained, then hopefully we might get to a report stage in their Lordships House round about the half-term break, just before or just after, and then of course we will have to find the opportunity to bring it to our place. So, there will be discussions going on with the usual channels and, as Sue has said and I have said earlier, we are very, very keen that, should there be any interruptions to the parliamentary timetable this year for any reason, then we would want to try and get this on the Statute Book. As you know, Chairman, that will very much depend upon how we might get to arrangements with the other parties and I am sure we will have full support from the parties here. I am not sure we will have the support of the parties who are not here but we will have to wait and see how those discussions go on.

Chairman: We will try and do our end of the business and get our separate reports to you as quickly as we can. Thank you very much indeed.