Clause
30
Eligible
complaints:
general
Maria
Eagle:
I beg to move amendment No. 286,
page 21, line 28, at end insert ‘;
or
(c) a matter related to the provision
of health
care’.
The
Chairman:
With this it will be convenient to discuss
amendment Government amendment No.
287.
Maria
Eagle:
Clause 30 details the eligible
complaints that the new commissioner might consider. The amendments
change the method for excluding complaints about health matters and
remove from the commissioner’s remit health care provided
directly by a service. The purpose of the amendments is to reduce
duplication and prevent overlap at the margins between the roles of
existing commissioners and ombudsmen and the new commissioner for
offender management and prisons.
The purpose of the exclusion in
amendment No. 286 is to achieve the correct fit with the remit of the
parliamentary commissioner and the health service commissioner
responsible for dealing with complaints from prisoners and the public
about health care matters. There is a clear advantage in the expertise
of investigation and effectiveness of recommendations, and it is
desirable that it reinforces the position of the prisoner as a service
recipient on the same basis as any other citizen. We do not want the
new commissioner simply to investigate any complaint from a prisoner if
it is more sensible for the complaint to be dealt with by the
parliamentary commissioner or the health service commissioner. To add
such matters to the new commissioner’s remit could lead to
duplication, confusion and rather invidious competition between the
commissioners and the ombudsmen.
Mr.
Heath:
I understand why the Government do not want
competing jurisdictions between commissioners and ombudsmen, but would
not it be better, in terms of organisation and ease of access, for the
commissioner to refer cases on matters not within his remit to the
health service ombudsman, rather than expect the prisoner to apply to
someone completely different? A one-stop-shop approach would be just as
appropriate to the prison system as to the general
public.
Maria
Eagle:
That is effectively what will happen.
There are already grey areas, and prisoners who might
be better dealt with by the health service ombudsman might talk first
to the current prison and probation ombudsman. Part 4 deals with having
joint reports where that is sensible. We expect not to have hard and
fast boundaries in the sense that someone will be sent away and have to
start again; there will be sensible co-operation between the
parliamentary commissioner, health service commissioner and the new
commissioner. We are not trying to create or facilitate jurisdictional
disputes, but seeking to make it easy to avoid them. Amending the Bill,
rather than using an order under clause 30(4), as we had originally
intended, will provide greater clarity regarding the new
commissioner’s complaints remit. That must be
sensible.
Amendment
No. 287 will allow for the possibility of defining more clearly over
time, and with experience, which matters of health care provision will
be included in the new commissioner’s complaints remit. Some
matters that are related to the provision of health care might go
beyond the commissioner’s complaints remit. Such matters are not
easily distinguishable and require negotiation between the new
commissioner, the health service commissioner and other ombudsmen. I am
sure that, in time, as they settle in with the new arrangements and the
work that they do between them, it will become clear what sort of
complaint should be dealt with by which process. There is no interest
in us facilitating dispute or duplication at the boundaries between the
ombudsmen’s remits, and we hope that the amendments make it
clear where the boundaries should lie. Later provisions in part 4 deal
with sensible arrangements for joint reporting and so
on.
Mr.
Garnier:
Before the Under-Secretary spoke, I had some
misgivings, which have been allayed to some extent by what she said. I
was fearful that the Secretary of State would, under amendment No. 287,
simply redefine what the commissioner could look at in relation to
health care and neuter him. Under clause 32—this feeds into the
point made by the hon. Member for Somerton and Frome—the
commissioner will have the remit to consider the eligibility of a
complaint and can take action under subsection (3)(b), which states
that
“taking, or
facilitating the taking by another person of, any other action
(such as mediation or conciliation) which the Commissioner considers
may result in the resolution of the
complaint”.
I
do not know whether the Government believe that the words in brackets
limit the other action to mediation or conciliation, but I hope that
the clause deals with the concern that the hon. Gentleman and I had
that the Secretary of State would simply cut the commissioner’s
power to look into health care matters because that might be
politically inconvenient. If the commissioner can refer matters to the
health ombudsman or the appropriate office holder under clause 32, my
fears are dealt
with.
Mr.
Heath:
I am not sure that my fears are entirely dealt
with. I am reassured by what the Under-Secretary said, and the
intention is clearly that the commissioner should behave in what we all
consider to be a sensible way if a complaint can be better investigated
by an alternative ombudsman. There will be grey areas, and the hon. and
learned Gentleman is right in suggesting that one instance would be if
an artificial barrier to appropriate health treatment were created in
the prison system, because of physical barriers or the attitude of
staff within the system. There will also be grey areas in mental health
and drugs, which are current concerns in the prison estate, and the
border between proper health provision and the proper province of the
commissioner for offender management and prisons. Those grey areas
should be elucidated in time.
The Under-Secretary rightly
said that there is provision later in this part of the Bill for a
thorough look at complaints, and I take it, as did the hon. and learned
Member for Harborough, that clause 32 is a case in
point.
Maria
Eagle:
Clause 42 is also relevant and will allows the
commissioner to refer cases to the correct
ombudsman.
Mr.
Heath:
I am most grateful to the hon. Lady for her
assistance. A health matter can be made ineligible under clause 32, a
strict interpretation of which will prevent the commissioner from
deciding that the appropriate action is to refer the complaint to
another person. I accept that clause 42 might deal with the issue, and
I will look at it in more detail.
Amendment agreed
to.
7.45
pm
Mr.
Garnier:
I beg to move amendment No. 145, in
clause 30, page 21, line 29, leave
out subsection (4).
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 146, 298, 299 and 305 to
309.
Mr.
Garnier:
Amendment No. 145 would delete subsection (4),
which gives powers to the Secretary of State to make orders specifying
matters
“that are to be
excluded...for the purposes of subsection
(2).”
Subsection (2)
defines by means of schedule 7 the extent of the remit of the
commissioner when it comes to dealing with complaints, such as in
determining what is and what is not an eligible complaint. This
amendment is partly to do with my old concern about the Secretary of
State having powers to make orders, and partly to do with wanting to
know what the Government have in mind. What do they anticipate the
Secretary of State might want to order to be excluded for the purposes
of subsection (2)? It would be helpful to have that set out for the
record.
In relation to
Government amendment No. 146, I hope that the Minister is pleased to
see that she has our support for something that the Minister of State
has thought appropriate to propose, namely leaving out subsection (7),
which states:
“An order under
subsection (4) may make consequential provision (including provision
modifying any Act or subordinate legislation, whenever passed or
made.)”
I trust that the
Government have now limited the power of the Executive to amend
legislation with the stroke of a ministerial pen. I assume that the
Minister of State has put his name to the amendment on
purpose.
Mr.
Garnier:
Good. Nothing is more welcome than a sinner who
repents. I look forward to seeing the Minister’s name on a lot
more amendments of this nature in future. I will not deal with the
remaining Government amendments in the group because I think that they
will be more appropriately dealt with by the
Under-Secretary.
Maria
Eagle:
It has taken us a long time to get here, but it is
a first for the Committee that my right hon. Friend the Minister of
State has signed one of the hon. and learned Gentleman’s
amendments. I am not promising that that will ever happen again, but
clearly it is something that we ought to celebrate. I can tell him, if
he is interested, why my right hon. Friend and the Government wished to
support his amendment. The additional power to modify other enactments
provided by this provision will not be necessary when using the power
to exclude matters from the complaints remit. There is a general power
in clause 123(2)(c). We do not think that we will need to modify
primary legislation with respect to all of this.
The hon. and learned Gentleman
had some questions about what kind of excluded matters the Secretary of
State might be considering and what kind of matters might be excluded
under clause 30(2). I might be able to reassure him about our
intentions. We have a working list of matters that we would expect to
be excluded. For example, we intend to use the order-making power in
clause 34(4) to exclude any
matter within the jurisdiction of the Parliamentary Commissioner for
Administration, a member of the Commission of Local Administration, the
Scottish public services ombudsman, or the Welsh public services
ombudsman. The measure is thus another way of ensuring that there is a
clear boundary between the remits of the various ombudsmen. Therefore,
we need a power just to exclude those matters that are within the remit
of other ombudsmen. We
are also seeking to exclude some matters apart from other jurisdictions
and other remits. For example, we want to exclude the conduct of the
police from the remit of the commissioner, partly because we have the
Independent Police Complaints Commission, which deals with those
matters. We want to exclude from the complaints remit the commencement
or conduct of proceedings before a court, because those would be
matters for the court or legal professional bodies. We are seeking to
address such issues. There is nothing sinister about the process. We
are not seeking to exclude any complaint that might be found in favour
of the prisoner, or any such thing. On that basis, I hope that the hon.
and learned Gentleman will be reassured in respect of the concerns
expressed through amendment No. 145, which we do not
support.
The
Government amendments are minor and technical. Among other things, they
will remove the overlap with the general power in clause 123(2)(c),
which provides the order-making power in the Bill. Powers in the Bill
include a power to make consequential provision. The amendments also
ensure that an order made under the powers in part 4 cannot encroach on
matters within the legislative competence of the Scottish Parliament,
which is, of course, very important—we do not want to do things
such as that. As I have said, the Government amendments are minor and
technical, so I hope that the hon. and learned Gentleman might be
persuaded to withdraw amendment No. 145 and that the other Government
amendments—and his amendment No. 146—will be supported by
the Committee.
Mr.
Heath:
I am grateful to the Minister for that elucidation.
I entirely support her view that complaints against the police should
be excluded, because otherwise, frankly, the commissioner would deal
with nothing else, if my experience of complaints by those awaiting
trial or those who have been convicted is anything to go by. Such
complaints keep the investigatory services of the police forces fully
engaged most of the time.
However, the other ombudsmen
and similar bodies to which the Minister referred are almost word for
word the list of persons and bodies given in the subsection to which
she has helpfully drawn my attention: clause 42(6). Listed in that
group is the health service commissioner for England. I am not trying
to revisit the previous discussion, but I wonder why it was felt
necessary to refer explicitly to health as an excluded item, when the
other areas can be dealt with simply by the order-making power to which
she referred to deal with the proper province of the other ombudsmen,
which she suggested would also be in the excluded items. I am sure that
there is a very good
reason why one item has to be drafted one way and all the rest can be
drafted another way, but perhaps we will have to wait for a later
stage, or a letter, to discover that
reason.
Mr.
Garnier:
In the light of what the Minister said, I wonder
whether she could publish the list of excluded matters. I do not
suppose that it needs to be in the Bill, but it certainly needs to be
made public so that we all know what we are legislating about and what
the Government have in mind when it comes to considering the remit of
the commissioner.
The
Minister said that the Secretary of State would ensure that the
commissioner would not deal with police matters. I am concerned about
deaths in police custody. Schedule 8, which is titled
“The Commissioner’s deaths remit”,
says:
“A death
of a person while in the custody, or under the control or escort, of
prison officers or prisoner custody officers anywhere in the
world.”
I
am not sure about Government amendments
Nos. 315, 316, 302, 304, 317 and 310 to 312, which we will
discuss under that schedule, because I have not looked at them,
although I know that amendments Nos. 315 and 316 deal with Scotland. I
sincerely hope that Government amendments will not delete paragraph 2
of schedule 8, but we need a little bit of clarification from somebody.
Operation Safeguard has been extended until the end of the year and I
have no doubt that the Minister of State will be extending it until
Christmas 2008, given the way we are going at the
moment.
The official
Opposition think that setting up the commissioner is a good thing. We
want him to do a thorough job on behalf of the public and we ask the
Minister for a bit of clarity about the commissioner’s remit in
relation to the investigation of deaths in custody, especially police
custody, and how that fits into what she told us a moment
ago.
Maria
Eagle:
Those matters are already within the remit. In
respect of the working list of excluded matters, which I will let the
Committee see, I said that we were minded to exclude the conduct of
police because that is what the Independent Police Complaints
Commission will investigate. If a prisoner dies in a police cell, the
death will be investigated by the IPCC. We would not propose to change
the current arrangement—I hope that that clarifies
matters.
Mr.
Garnier:
I am not entirely sure that it does, because
schedule 8 seems to say something else. Anyhow, I think that I have
made the point that I wanted to get across. The Minister will have to
try to explain paragraph 2 of the schedule to which I drew the
Committee’s attention a moment ago. Having said that, this
debate has served its purpose, because we are now going to get the
working list published. However, will the Minister please publish it
not just by sending Committee members a letter, but publicly, so that
members of the public beyond the Committee can have some understanding
of what is going on? The outside world will otherwise have to piece
these things together like a complicated jigsaw puzzle. It would be
useful for the list to be published on the Ministry of Justice website
or some other place to which the public may have access.
I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Amendments
made: No. 287, in clause 30, page 22,
line 3, at end
insert—
‘(6A) The Secretary
of State may by order provide that matters of a particular description
are, or are not, to be regarded for the purposes of subsection (3)(c)
as matters related to the provision of health
care.’.
No.
146, in
clause 30, page 22, line 4, leave
out subsection (7).—[Maria
Eagle.]
8
pm
Maria
Eagle:
I beg to move amendment No. 288, in
clause 30, page 22, line 15, at
end insert—
‘(11) For the
purpose of determining whether a part of a complaint is eligible for
the purposes of this Part, any reference in this section (apart from
subsection (8)) to a complaint may be read as including a reference to
a part of a
complaint.’.
The
Chairman:
With this it will be convenient to discuss the
following: Government amendments Nos. 289 to
293.
Amendment No.
149, in clause 32, page 23, line 8,
leave out ‘before’ and insert
‘after’.
Government
amendments Nos. 294 to 297 and
303.
Maria
Eagle:
The Government amendments are all minor technical
and drafting amendments to part 4. Among other minor points, they
clarify how the commissioner is to handle partly eligible complaints
and those complaints that are partly outside his remit and are
therefore ineligible. I can go through the amendments in detail, if
hon. Members will tell me which ones they want to deal with. However, I
would rather stick with the fact that they are minor technical and
drafting amendments and commend them to the Committee.
Amendment agreed
to.
Clause 30,
as amended, ordered to stand part of the
Bill.
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