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