Select Committee on Welsh Affairs First Special Report

Appendix 2

This is the Government's response to the Welsh Affairs Committee's Report on the Public Services Ombudsman (Wales) Bill.

The Committee's scrutiny took place in conjunction with scrutiny of the Bill by the Local Government and Public Services Committee of the National Assembly for Wales - to whose report Assembly Ministers will respond separately. The Government's response to each of the Welsh Affairs Committee's recommendations is set out below.

Public Services Ombudsman (Wales) Bill

1.  We welcome the Public Services Ombudsman (Wales) Bill which, if enacted, would make significant improvements to the Ombudsman service in Wales. (Paragraph 15)

The Government welcomes the Committee's positive view of the improvements which the Bill would make to the Ombudsman service in Wales.

Consultation with the National Assembly for Wales

2.  We welcome the Government's decision to amend the Bill to require the Secretary of State for Wales to consult the National Assembly on the appointment, in addition to the dismissal of the Public Services Ombudsman for Wales. (Paragraph 19)

The Government has listened to the views of those interested in this Bill, and made changes where we consider these would improve the Bill.

We decided to make this amendment in the light of views expressed by Committee Members, and after considering points made during the Bill's passage through the House of Lords.

Length of Tenure

3.  There appeared to be a general level of agreement in the House of Lords that a seven year period of appointment was appropriate. However, that was not the views and experience of our witnesses, who considered a ten year appointment as appropriate. We recommend that the Government reconsider its decision to reduce the length of tenure of the Ombudsman in the light of our evidence. Should the Government believe that a balance needed to be made between security of tenure and the opportunity to re-invigorate the office, we recommend it reconsider appointments on a five year basis with the possibility of reappointment for a further five years. (Paragraph 23)

The issue of the length of the Ombudsman's tenure has given rise to extensive discussion, both in the course of the Committees' scrutiny of the Bill, and as the Bill has passed through its parliamentary stages in the House of Lords.

As the Committee has noted, following debate in Lords Grand Committee, the Government agreed to put down an amendment at Report Stage, reducing the length of tenure from 10 to 7 years. This amendment has now been made and incorporated in the Bill which has passed to the House of Commons. It is a fixed term appointment, i.e. there is no provision for a second term of office.

The Secretary of State is required to consult the Assembly prior to advising Her Majesty on the appointment of the Ombudsman. If provision were made for the appointment to be renewable it would follow that the Secretary of State would consult the Assembly before advising on its renewal. As the Assembly is one of the listed authorities within the Ombudsman's jurisdiction, the Government concurs with the view expressed by Assembly Ministers that this could give rise to a perception that the Ombudsman is not entirely independent of the Assembly's influence. The Government is concerned to strike the right balance between security of tenure and opportunities to reinvigorate the office. We believe there should be a reasonable degree of security of tenure, both to attract high quality applicants and to provide some continuity. As such, we consider that a five year term of office is too short, and do not favour a renewable five year term for the reasons outlined above.

We note that the witnesses who gave evidence to the Committees were on the whole happy with the ten year term of appointment originally proposed. In particular, they did not think that being in post for 10 years would compromise the integrity and independence of the post.

We agree that a 10 year fixed term tenure would not be a problem in terms of independence and integrity. However we are persuaded that a 7 year term is long enough to provide the required degree of security of tenure, and short enough to allow a regular injection of new blood to reinvigorate the office with new approaches and new ideas.

The Government does not, therefore, intend to bring forward a further amendment to change the length of tenure.

Ombudsman's Staff

4.  The transfer of the Ombudsman's staff from the civil service to the Office of the Public Services Ombudsman for Wales will reinforce the independence of the Ombudsman. We welcome that decision and applaud the Government for not merely replicating the existing arrangements, but improving upon them. (Paragraph 26)


5.  We conclude that the Bill is sufficiently flexible for the Ombudsman to appoint those staff that he or she feels necessary. Therefore, we do not see any need to include on the face of the Bill, the power to appoint Deputy Ombudsmen. (Paragraph 32)


6.  We conclude that the Bill gives sufficient flexibility for the Ombudsman to take account of the view of stakeholders and experts in the delivery of his or her duties. We agree with the Government that provisions to establish a statutory advisory board are neither necessary nor desirable. (Paragraph 36)


Listed Authorities

7.  We welcome the approach taken by the Board of Community Health Councils and agree that it should be subject to the same level of accountability as individual Community Health Councils. We recommend that the Board of Community Health Councils be included in the list of Listed Authorities. (Paragraph 38)

When the Bill has been enacted, the National Assembly for Wales will have the power to add the Board to the list of authorities subject to the Ombudsman's jurisdiction, provided the Board meets the qualifying criteria in clause 29 of the Bill.

It appears to us that the Board would meet the qualifying criteria in clause 29. Any order adding the Board to the Ombudsman's jurisdiction will need to specify whether all or only some of the Board's functions are to be subject to the Ombudsman's jurisdiction.

Assembly Ministers have confirmed that they will give careful consideration to bringing forward an Order to add the Board to the list of authorities subject to the Ombudsman's jurisdiction. If such an Order is brought forward, Assembly Ministers will consult the Board over which of its functions it considers should be brought within the Ombudsman's remit.

Welsh Language Board

8.  We agree that the Bill does not need to prescribe the relationship between the Welsh Language Board and the Public Services Ombudsman for Wales. However, we would welcome further clarification from the Government on the relationship between the Welsh Language Board and the proposed Public Services Ombudsman for Wales, in relation to the Welsh Language. (Paragraph 42)

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 to comply with the terms of their Welsh Language Schemes. Where those bodies are also listed authorities, and a failure to comply with the terms of their Scheme has affected an individual, it is possible that a complaint of maladministration or service failure might be made to the Ombudsman.

The Government would expect the Ombudsman to discuss with the Welsh Language Board the way in which such complaints would be handled. The current Local Government and Health Service Ombudsman for Wales and Welsh Administration Ombudsman indicated in his evidence to the Committee that he would discuss with the Welsh Language Board cases that might fall to either of them to consider, and would consider whether a concordat governing their working relationship might be needed.

We believe that this would be a reasonable approach to the matter. The Ombudsman would have the power to enter into such a concordat with the Welsh Language Board under paragraph 21 of Schedule 1 to the Bill. As the Ombudsman will be a public authority for the purposes of section 19 of the Freedom of Information Act, it is likely that any concordat agreed with the Board would be information which should be published in accordance with the Ombudsman's publication scheme under that section.

Transfer of Cases Between Ombudsmen

9.  The Minister is correct to state that the Bill provides for close co-operation between Ombudsmen in Wales and in England. However, we are not convinced that the Ombudsmen would no longer need the power to transfer cases between them when it is appropriate to do so. We recommend that the Government, retain in the Bill, the power of the Ombudsman in England to transfer cases to the Welsh Ombudsman. (Paragraph 48)

Under existing legislation in the Local Government Act 1974, the Commissioners for Local Administration in England and Wales are able to transfer cases to each other where it is appropriate to do so. Schedule 6 to the Bill removes the power of the Commissioners in England to continue to transfer such cases to the Public Services Ombudsman for Wales, and does not provide for the Ombudsman to transfer cases to the Commissioners. However, the three English Commissioners are still able to transfer cases to one another.

The amendment removing the ability to transfer cases from the English Commissioners to the Ombudsman is aimed at making a clear separation between the jurisdictions of those Commissioners and the Ombudsman. At present the English and Welsh Commissioners are governed by the same legislation. Under the Bill, the Welsh Commissioner's jurisdiction will form part of the Ombudsman's jurisdiction, and will be governed by different legislation. As such, it is important for the Bill to make such amendments as are necessary to clarify the respective jurisdictions of the English Commissioners and the Ombudsman.

The Commission for Local Administration in England has argued for the retention, or reinstating, of power for the English Commissioners to transfer cases to the Ombudsman (as the successor to the Welsh Commissioner). The Government understands the Commission's wish to keep open all possible avenues for dealing with conflicts, or perceived conflicts, of interest. However, the Bill does not remove the possibility of dealing with such cases by transferring cases between the three English Commissioners. The Commission raised the issue of internal drainage boards, some of which operate across the England/Wales border. However, in these cases where there is an overlap of jurisdiction between the Ombudsman and the English Commissioners, the provisions for consultation, co-operation and joint working in clause 25 of the Bill will apply.

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