PARLIAMENT AND THE OMBUDSMAN
1. This short report follows an evidence session
with Ann Abraham, the Parliamentary and Health Service Ombudsman
('the Ombudsman'), on 5 November 2009. The evidence session was
primarily concerned with the performance of the Ombudsman's office.
However, we have decided to report on two wider issues about her
relationship with Parliament, which are of increasing concern
to the Ombudsman and to us.
The MP 'filter'
2. The Parliamentary Commissioner Act 1967 states
that the Ombudsman may only investigate a complaint referred to
her by a Member of the House of Commons.[1]
This provision was included in the Act because of concerns that
the role of the Ombudsman would undermine the position of Members
of Parliament in pursuing the grievances of their constituents.
This requirement, known as the 'MP filter', has been controversial
since its inception, with calls for its abolition dating back
to 1977.[2] The current
Ombudsman and her predecessor have repeatedly expressed to us
their frustration, reflecting that voiced by members of the public,
that the 'MP filter' remains in place.
3. The Ombudsman told us that public awareness research
conducted by her office suggested that the 'MP filter' can discourage
individuals from coming forward with complaints.[3]
4. Moreover, the 'MP filter' can throw up serious
anomalies. It only applies to complaints received by the Ombudsman
in her role as Parliamentary Commissioner for Administration.
Health service complaints do not need to be referred to her by
a Member of Parliament. This can result in a situation where one
aspect of a complaint requires a Member to refer it and another
aspect does not.
5. The Ombudsman told us that the up-coming dissolution
of Parliament prior to a General Election will result in a five-week
period in which people will be unable to take their complaints
to the Ombudsman at all because there will be no Members of Parliament.[4]
We suspect that this period will, in practice, be considerably
longer in constituencies with new Members who are unfamiliar with
the Ombudsman system and who will need time to set up a functioning
office to handle their casework.
6. It is deeply unsatisfactory that citizens will
be unable to take complaints to the Ombudsman during the dissolution
of Parliament. Nearly ten years have passed since a Cabinet Office
review of the Ombudsman's role found "almost universal dissatisfaction"
with the 'MP filter' and strongly recommended its removal.[5]
A joint survey conducted by the our predecessor Committee and
the Ombudsman's office in 2004 found a clear majority of MPs supported
the abolition of the filter.[6]
Members of the public have direct access to all other UK public
sector Ombudsmans and all Ombudsman systems in countries with
comparable systems except France. The abolition of the 'MP filter'
is long overdue. The addition of a single clause to the Constitutional
Reform and Governance Bill would achieve this and we recommend
its introduction as a matter of urgency.
Parliamentary debate
7. The Ombudsman published her report, Equitable
Life: A Decade of Regulatory Failure, on 17 July 2008. The
Government responded on 15 January 2009. On 5 May 2009 the Ombudsman
published a report entitled Injustice unremedied: the Government's
response on Equitable Life.[7]
The report was laid before Parliament under section 10(3) of
the Parliamentary Commissioner Act 1967. This allows the Ombudsman
to lay before Parliament a special report where
after conducting an investigation under this
Act, it appears to the Commissioner that injustice has been caused
to the person aggrieved in consequence of maladministration and
that the injustice has not been, or will not be, remedied.[8]
8. The report on Equitable Life was only the fifth
such report laid by the Ombudsman since the creation of the office
in 1967. The report criticised the Government for rejecting various
of her findings of maladministration and injustice and breaking
the link between injustice and remedy. In particular, it concluded
that the Government's response would leave unremedied a large
proportion of the injustice resulting from maladministration that
she had found.[9]
9. The Ombudsman made it clear to us in evidence
that she considers her involvement is now at an end and, setting
aside questions of law, it is for Parliament to judge the validity
of the Government's response.[10]
10. Equitable Life has been the subject of four debates
in the House of Commons since the Ombudsman's July 2008 report.
Three debates were held in Westminster Hall, where no substantive
motion is debated and no decision can be taken, and one in the
Chamber on a Liberal Democrat opposition day. The Ombudsman considered
that this had been unsatisfactory
There was a debate in the House, apparently secured
with some difficulty, where, clearly, members were subject to
party political pressure through the whips system, and I am not
saying that everybody voted on that basis but that was there,
that was part of what was going on, and the Government was able
to act as judging its own cause. What I then see, and I think
citizens at large see, is no visible distinction between Parliament
and government.[11]
11. When Parliament's Ombudsman takes the exceptional
step of issuing a report indicating that the Government is failing
to take steps to remedy injustice she has found it has caused,
a mechanism is needed to ensure a debate and decision on how to
respond, one on which Members can vote on party lines if they
wish, but one which would not depend on either the Government
or the Opposition to enable it to take place. Under the current
system a debate can only take place either through the goodwill
of the Government, which might well evaporate in the face of a
potentially uncomfortable debate and a critical decision, or through
that of an opposition party, which would be likely to frame the
debate in a party political, rather than parliamentary, manner.
12. As an interim measure we recommend that the
Government commits to providing a three-hour debate, in government
time and on a substantive motion, on any future report by the
Ombudsman concluding that injustice has gone unremedied and laid
under section 10(3) of the Parliamentary Commissioner Act 1967.
In the longer term, however, we do not think it is constitutionally
appropriate for Parliament to have to rely on the Government's
willingness to provide debating time on an ad hoc basis. We therefore
also invite the Procedure Committee, in this Parliament or the
next, to examine ways in which such a debate could be triggered
under Standing Orders.
1 Parliamentary Commissioner Act 1967, section 5 Back
2
House of Commons Library, Standard Note SN/PCC/1887, Reform of
the Parliamentary Ombudsman's Role, p 2 Back
3
Public Administration Select Committee, 2009, Work of the Ombudsman
in 2008-09, evidence taken before the Public Administration
Select Committee, HC 122, Q 66 Back
4
Work of the Ombudsman Q 68 Back
5
Cabinet Office, 2000, Review of the Public Sector Ombudsman in
England, p 20 Back
6
Parliamentary and Health Service Ombudsman, 2007, The Parliamentary
Ombudsman: withstanding the test of time, HC 421, p 12 Back
7
Parliamentary and Health Service Ombudsman, 2009, Injustice unremedied:
the Government's response on Equitable Life, HC 435 Back
8
Parliamentary Commissioner Act 1967, section 10 Back
9
Injustice unremedied Back
10
Work of the Ombudsman Q 23 Back
11
Work of the Ombudsman Q 24 Back
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