The Committee consisted of the following Members:

Chairmen: John Bercow, †Robert Key, Mr. Edward O'Hara

† Creagh, Mary (Wakefield) (Lab)

† Cunningham, Mr. Jim (Coventry, South) (Lab)

† Gidley, Sandra (Romsey) (LD)

† Hall, Patrick (Bedford) (Lab)

† Horam, Mr. John (Orpington) (Con)

† Merron, Gillian (Minister of State, Department of Health)

† Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)

† O'Brien, Mr. Mike (Minister of State, Department of Health)

† O'Brien, Mr. Stephen (Eddisbury) (Con)

† Penning, Mike (Hemel Hempstead) (Con)

Pugh, Dr. John (Southport) (LD)

† Slaughter, Mr. Andy (Ealing, Acton and Shepherd's Bush) (Lab)

† Turner, Mr. Andrew (Isle of Wight) (Con)

† Turner, Dr. Desmond (Brighton, Kemptown) (Lab)

† Waltho, Lynda (Stourbridge) (Lab)

† Wilson, Mr. Rob (Reading, East) (Con)

Chris Stanton, Committee Clerk

† attended the Committee

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Public Bill Committee

Thursday 25 June 2009

(Morning)

[Robert key in the Chair]

Health Bill [Lords]

Written evidence to be reported to House

H 14 National Association of Cigarette Machine Operators

9.30 am

The Chairman: I draw the Committee’s attention to the fact that I have changed some of the amendment groupings since last we met and I understand that that is acceptable to both sides. May I ask that we keep interventions short if we wish to complete on time this afternoon?

Schedule 5

Investigation of complaints about privately arranged or funded adult social care

Mr. Stephen O'Brien (Eddisbury) (Con): I beg to move amendment 69, in schedule 5, page 55, line 26, at end insert—

‘(4) Where the Local Commissioner chooses not to disapply, he must write to the complainant giving reasons for his decision.’.

It is a great pleasure to resume under your chairmanship, Mr. Key, and to welcome the Minister back to his place —just!

As we discussed on Tuesday, the ombudsman has the power to waive the form and date limits on the complaint, if he wishes. I can see no obligation in the Bill for him to give reasons for choosing not to take forward a complaint. As the complaints procedure is intended to be taken up by the ombudsman—whose usual approach is primarily focused on maladministration—it is fair that he should give reasons where he “chooses not to disapply” the rules on form and content. Our amendment would place such a responsibility on the ombudsman, which would be good practice, in any case. I hope the Minister will confirm that when complaints are not taken forward, complainants will be given the reasons why.

The Minister of State, Department of Health (Mr. Mike O'Brien): The powers in the Bill to disapply the specified requirements mirror those in the legislation governing complaints about local authority social services. Those arrangements work well. The ombudsman operates a flexible approach, often using his discretionary powers for the benefit of the complainant. Every complaint involves a dialogue between the ombudsman and the complainant at an early stage. It would be apparent very early, through this process of dialogue, whether disapplying the specified requirements was necessary. As that dialogue already occurs, an additional requirement to explain a decision not to disapply in writing seems

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unnecessary. The aim and practice is that by the time the dialogue has been completed, the complainant is aware of why a decision has been made. That is how things have operated up to now and we want that process to continue to apply.

Mr. Stephen O'Brien: The exchange has been helpful. No doubt the ombudsman will read this in due course and will have some sense of—as the Americans put it—moral suasion, which will help to make sure that reasons are given. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Stephen O'Brien: I beg to move amendment 70, in schedule 5, page 56, leave out line 14 and insert—

‘(2) The Local Commissioner may choose to conduct an investigation under this part in private.’.

The Chairman: With this it will be convenient to discuss amendment 105, in schedule 5, page 57, line 15, at end insert—

‘(8A) A Local Commissioner may apply to the High Court in order that a judge may issue any order in regard to evidence with the powers of compulsion available to such judicial authority which would not otherwise be available to the Local Commissioner’.

Mr. O'Brien: The Bill states:

“Every investigation under this Part is to be conducted in private.”

That has resonances of yesterday’s motion on the Floor of the House. Will the Minister explain to the Committee how far that extends? What does “this Part” refer to? Is it just the new clauses before us? Surely the ombudsman should be given the freedom to decide whether to conduct investigations in public or private. Is he not able to make that decision? In the week that the Government are feeling a touch of the heat about matters such as this, I hope they will regard the ombudsman as having discretion to make that decision more freely than is apparent in the Bill.

The commissioner has only civil powers of compulsion, but amendment 105 seeks to enable him to obtain, through a judge, the powers of compulsion used in criminal actions, that is not just over people, but over documents, too. Dredging into my past practice as an international commercial litigator and arbitrator, I remember that it was enormously helpful in civil cases to be able to apply to a judge to seize documents under an Anton Piller order, or a subpoena duces tecum. Those concepts will be familiar to the Minister. At present, it appears that the ombudsman has no powers to obtain the sort of evidence that might be required to ensure that this as a complaints procedure, rather than as a referred, typical ombudsman’s procedure, will give the necessary satisfaction. Without the opportunity for compulsion, the appeals process and the complaints process will not carry with them the confidence that all the evidence necessary in order to ensure that a complaint is properly heard and adjudicated upon is available, and that the process is sufficiently robust to be worthwhile, rather than simply avoiding putting a whole separate complaints process in place and parking it with the ombudsman. This is a bit of a test as to how truthfully

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the scheme is intended to operate, without the powers of compulsion with which the Minister, in terms of legal concepts, will be familiar— this balance between the normal powers of compulsion within the criminal court where, of course, the burden of proof is of a much higher standard than in the civil courts. This seems to relate to a more voluntary, civil-type arrangement, and even in the civil courts, rather than in the case of the ombudsman, as referred to here, there is a danger that, without the powers of compulsion that I would expect to have been able to use in relation to a civil action, the ombudsman’s role and remit could be unnecessarily severely limited.

Mr. Mike O'Brien: The current local authority scheme operated by the ombudsman under part 3 of the Local Government Act 1974 contains exactly the same provision for investigations to be conducted in private. It is generally also the case with other public service ombudsmen’s investigations.

One of our aims in these provisions is to mirror, where appropriate, the procedures that apply to the local authority scheme. Of course, if there are any good reasons for a different approach, we will listen to them. In the case of investigations being conducted in private, however, I do not think there should be any difference between the two schemes.

There are also sound arguments in favour of investigations being conducted privately in relation to these matters. For example, the matters complained about may be to do with health or care and may be of a confidential or personal nature. The effectiveness of the scheme is, to a large extent, dependent on how well it enables the ombudsman to get to the truth of the matter. This means that procedures that encourage the giving of accurate evidence are important. If there was a requirement to hold investigations in public, that might hinder openness on the part of some witnesses.

The ombudsman’s procedures are not like a court of law. They are meant to be flexible and effective, capable of being carried out speedily, and they are designed to bring out the salient features as efficiently as possible, to allow the ombudsman to reach a conclusion as reasonably expeditiously as possible. While it is possible for witnesses to have legal representation, the ombudsman aims to regulate the investigation and to ensure that it does not become costly, bureaucratic, or unduly cumbersome. I fear, however, that is exactly what would happen if investigations were to be held publicly. I therefore believe that it is entirely appropriate that we should keep the ombudsman’s operation in a particular area without trying to apply to it a whole list of legalistic concepts that may have a real relevance in a court of law, but which would undermine the very nature of the ombudsman’s role.

Amendment 105 seeks to allow the ombudsman to apply to the High Court for a judge to use the powers of the court in relation to evidence. There are certain powers here anyway for the ombudsman. In the proposed new section 34G, the ombudsman has the same powers as the High Court to compel the attendance and examination of witnesses and production of documents. This means that anyone not complying with a reasonable request of an ombudsman may be in contempt of court and subject to the penalties associated with it.

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If a person obstructs an investigation, or is guilty of an act or omission in relation to an investigation, which could constitute contempt of court in proceedings in the High Court, the ombudsman may certify this as an offence to the High Court. The High Court then would deal with the person charged as though they had committed the same offence in relation to the High Court.

The hon. Member for Eddisbury proposes to make further remedies available to the ombudsman, which would enable him to take steps beyond those he is currently able to take. I am concerned that, if we start to extend significantly the powers of the ombudsman in this area alone, the real risk is that we import into it a whole series of legal concepts, which operate perfectly well in the courts, which are designed to protect those affected by the powers and remedies. However, in the context of the ombudsman’s investigation, it could become extremely legalistic, resulting in the ombudsman being judicially reviewed on all sorts of decisions before the High Court, as well as delaying things substantially, adding to the cost of the ombudsman, and failing to fulfil the whole basis of the speedy review and examination of issues that the ombudsman was intended to facilitate.

I recognise the good will and genuine intentions of the hon. Gentleman to enhance the powers of the ombudsman, the fear is that with those remedies and powers would come a significant examination of legal detail as well as importing legal procedures that would be unduly cumbersome. I hope that, having expressed those concerns, the hon. Gentleman will be able to withdraw his amendment.

Mr. John Horam (Orpington) (Con): I understand where the Minister is coming from on amendment 70. He seeks to mirror the original legislation because otherwise the process might become burdensome and difficult. He has already simplified the procedure for hearing complaints by cutting out one of the processes and we are now down to two, so the burdensome argument does not really apply.

I also wonder whether this is an issue that, in this day and age, would be helped, in some part, by being held in public. I have a recent personal experience of these procedures where a resident in Bromley took up with the ombudsman the behaviour of some of the chief executives of the Bromley hospitals trust—there have been several chief executives recently. He tried to obtain information about their procedures and the way they handled business. What happened in practice was a prolonged exchange of letters, which was very unsatisfactory. The complainant felt that every letter contained an element of misrepresentation or inaccuracy that he had to correct. It went backwards and forwards endlessly, becoming a prolonged procedure that other people eventually got involved in. Eventually, it was brought to an end by the ombudsman, who said, “This is my final decision and I will not take any more evidence.” In many ways, it would have been better if there had been a short hearing, where the applicant could have challenged some of the points made by the ombudsman and his representative. In fact, it might have been quicker in the end because there would have been a question and answer session, rather than repeatedly sending letters backwards and forwards. I take the point that my hon. Friend the Member for Eddisbury made about what happened on the Floor yesterday, and I wonder whether,

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in this day and age, we need to move forward a bit and at least give the ombudsman the possibility of taking this course of action where he feels it may be appropriate.

Mr. Stephen O'Brien: Rather interestingly, I had expected to find myself being satisfied with the Minister’s answer on amendment 70 and dissatisfied with that on amendment 105. In fact, it has turned out to the contrary. The answer we had on amendment 105 has been helpful. It seeks to give the necessary strength to the process, but to the extent that powers are described in proposed new section 34G of the Local Government Act 1974, the Minister was able to highlight that there is the appropriate appeal in the contempt process of the High Court. This probably gives the power that we need behind these measures in order to make the compulsion process likely to take place in reality.

In relation to amendment 70, my hon. Friend the Member for Orpington made the point well in the example he gave. The Minister referred to the need to retain flexibility, but that is exactly what the amendment seeks to provide. New section 34F(2) states:

“Every investigation under this Part is to be conducted in private.”

I sought to suggest, as the amendment shows, that

“The Local Commissioner may choose to conduct an investigation under this part in private.”

There would therefore be a presumption. The point about flexibility is therefore better served by our amendment.

9.45 am

Mr. Mike O'Brien: Let me clarify what we mean by “in private”. It is possible for the ombudsman to call both parties into the room and have a discussion between them, so that they can talk both to each other and to the ombudsman. In those circumstances it is still in a sense a private discussion. So the parties may, if the ombudsman were to choose to behave in that way, be brought into a room with the ombudsman. That is not the way the ombudsman system has worked up to now. The hon. Gentleman is suggesting that we should import into one area only of the ombudsman system an entirely different practice.

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Prepared 26 June 2009