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Session 2008 - 09 Publications on the internet General Committee Debates Health Bill [Lords] |
The Committee consisted of the following Members:Chris Stanton, Committee
Clerk attended the
Committee Public Bill CommitteeThursday 25 June 2009(Morning)[Robert key in the Chair]Health Bill [Lords]Written evidence to be reported to HouseH
14 National Association of Cigarette
Machine
Operators 9.30
am
The
Chairman: I draw the Committees 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 5Investigation
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 ombudsmanwhose usual approach is primarily focused on
maladministrationit 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
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
ofas the Americans put itmoral 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.
Every
investigation under this Part is to be conducted in
private.That
has resonances of yesterdays 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 ombudsmans 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
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
ombudsmans 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
ombudsmens 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
ombudsmans 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 ombudsmans 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 ombudsmans 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.
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 ombudsmans 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 trustthere 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,
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 Ministers 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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