Criminal Justice and Immigration Bill

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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.
Maria Eagle: Yes.
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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