My submissions relate primarily to the establishment
of the Financial Services Ombudsman Scheme and those other provisions
which have an indirect impact on its operation. The attached paper
is an abridged version of my submissions to the Treasury on its
consultation on the Bill. I would strongly urge the committee
to read my full paper as it contains my own redraft of the relevant
provisions of the Bill.
I start by saying that the success or failure
of the legislation and financial services reform will be measured
by the failure or success of the complaints regimethe resolution
of complaints is the face of the legislation to the consumer.
The Government will have at its disposal the considerable experience
and enthusiasm of the staff of the existing schemes. I feel strongly
that the Financial Ombudsman Scheme should achieve its objective
of being a speedy and cost effective alternative to the courts.
I do not believe that that has been achieved in the draft legislation.
My response attempts to deal with those problems I believe exist.
My evidence deals with:
The provisions other than those relating to
the Financial Services Ombudsmansection 10 (Exemption of
representatives), sections 14 to 16 (Enforceability of Agreements),
section 19 (Financial Promotion), and sections 74 (Endorsement
of Codes) and 80 (Action for damages).
The Provisions relating to the creation of the
Financial Services Ombudsman, in particular:
(1) The general provisions describing the
scheme (section 151);
(2) The jurisdiction of the scheme (both
compulsory and voluntary) (sections 152-154);
(3) Determination of complaints (sections
155 and 156);
(5) Power to require information (sections
158 and 159);
(6) Funding/fees (section 160);
I am aware that the Government has already proposed
(a) the way the scheme's jurisdiction is
to be expressed;
(c) appeals on points of law.
Although I have not seen any draft of the proposed
changes, based on information available, I do not believe that
the issue of jurisdiction has been satisfactorily resolved. I
believe that if a consumer conducts business with a regulated
person (be that person a bank, building society or financial adviser)
he/she should not have to be concerned about issues of jurisdiction
or membership of the scheme before they conduct that business
or before their complaint can be considered. In my view the legislation
could present regulated firms with many technical objections to
complaints being considered.
1. Unless otherwise stated, all section and
paragraph references are to the sections and paragraphs in the
FSM Bill. The Financial Services Ombudsman will be cited as the
PROVISIONS OTHER THAN THOSE RELATING TO THE
FINANCIAL SERVICES OMBUDSMAN
2. Section 10 appears to be the equivalent to
section 44 of the Financial Services Act 1986, although in much
3. It has been argued by senior counsel before
a hearing with the Principal PIA Ombudsman that section 44 of
the Financial Act has the effect of excluding the doctrine of
ostensible authority. That if there is no acceptance in writing
for the conduct complained of, the complainants cannot go further
and rely on the common lawthey are limited by the agreement
made under the statutory scheme. That must be wrong. To say otherwise
would lead to some extraordinary results. For example, an authorised
person could orally hold a third party out as having authority
to conduct regulated business (which was in fact outside the terms
of the written agreement), but would then be protected by the
statutory scheme if a claim was subsequently made in relation
to that unauthorised business.
4. It would be useful, in that it would avoid
any further dispute, if section 10 specifically stated that the
liability of the principal (authorised person) may still arise
by reason of any common law principle giving rise to a liability
on the part of a principle for the activities of his agent.
SECTIONS 14 TO
(a) Extent of the provisions in sections 14 and
5. Under section 14, an agreement made in the
course of carrying on a regulated activity (excluding deposit
taking) in contravention of the general prohibition is unenforceable
by the provider against the purchaser.
6. Under section 15, an agreement made by an
authorised person (not in contravention of the general prohibition)
in consequence of something said or done by a third party in contravention
of the general prohibition is unenforceable against the purchaser
(this would not include an appointed representative who has gone
beyond his authorisation under section 10 because there would
be no breach of the general prohibitionit appears that
it would only include an unauthorised intermediary).
7. Under section 34 (1) no authorised person
may carry on a regulated activity in the United Kingdom, or purport
to do so, unless the Authority has granted him permission to carry
on that activity or unless a provision in the FSM Bill
gives him such permission. This section does not provide a specific
remedy if an authorised person goes beyond his authorisationit
certainly is not clear that an investor could avoid the agreement
(although there may clearly be a claim for breach of statutory
duty). It would not come within section 14 and 15 because there
is authorisation and thus no contravention of the "general
8. It is my view that the right of the investor/customer
in sections 14 and 15 to avoid the agreement and claim compensation
should be extended to those sales where the authorised person
has gone beyond his authorisation (most importantly this would
include an appointed representative who has gone beyond the terms
of his section 10 agreement).
(b) Compensation under section 16
9. Where an agreement is unenforceable by reason
of section 14 or section 15, compensation is due for any loss
suffered by the purchaser. Under section 16 the compensation recoverable
will be that sum agreed by the parties or the amount determined
by the court. The court also has a power to allow the agreement
to be enforced or allow any money paid or transferred under the
agreement to be retained.
10. In my view, the powers of the court set
out in section 16 should also be available to the FSOmbudsman.
The investor should not be put to the expense of going to court
where his investment agreement was procured by an unauthorised
person (or, if my submission above is accepted, by an authorised
person who goes beyond his authorisation).
11. As the power of the FSOmbudsman set out
in sections 151 to 160 to consider complaints only relates to
authorised persons (or persons who have voluntary agreed to participate
in the scheme), amendments are necessary. Rather than amending
the FSOmbudsman provisions, which would be a difficult task and
unnecessarily complicate the FSOmbudsman scheme provisions, the
matter could be resolved by specifically giving the Ombudsman
jurisdiction within section 16e.g., "Notwithstanding
sections 151 to 160 and Schedule 8 of this Act the Ombudsman established
under those provisions may exercise the powers of the court set
out in this section."
12. Under section 19(1) and (2), if a person
enters as a customer into a relevant agreement (or exercises any
rights conferred by an investment) as a direct or indirect result
of an unlawful communication it is unenforceable against him.
That person is also entitled to compensation. Again, the amount
of compensation is that sum agreed between the parties of the
amount determined by the court (section 19(7)). As with section
16, the FSOmbudsman should specifically be included here as having
the same jurisdiction as the court.
13. Section 74 of the FSM Bill provides for
the endorsement of codes (or particular provisions of a code)
by the Authority where it is satisfied that the provision made
by the code could have been made by the Authority in its general
rules (general rules are defined in section 70(1) as being
rules necessary or expedient for the purpose of protecting the
interests of persons who, inter alia, use the services
provided by an authorised person). Breach of an endorsed code
may only lead to intervention or discipline (section 74(3)).
14. Under section 80 of the Bill (which appears
to be the equivalent of section 62 of the Financial Services Act)
a private person (who is not yet defined) is given a cause of
action where there has been a contravention of "a rule"
(which I assume includes the general rules). Thus even though
the Authority could have made the endorsed code as part of its
own rules (thereby giving an investor the cause of action under
section 80 for its breach) when those same provisions only form
part of an endorsed code there is not a cause of action for breach
of that endorsed code.
15. It is my view that where there has been
endorsement of a code (or part of a code) under section 74 the
investor/customer should be given the same rights where there
has been a breach of those endorsed provisions in the same way
as those applicable to a breach of a rule by reason of section
FINANCIAL SERVICES OMBUDSMAN PROVISIONS
SECTIONS 151 TO
16. Section 151(1) refers to resolving "disputes
involving authorised persons". There are two points here.
First the remainder of the provisions refer to "complaint"
and for consistency and correctness, the word "complaints"
should replace "disputes" in section 151(1).
17. Secondly, an "authorised person"
has the meaning given in section 20(3) (see section 219),
namely "a person who is authorised for the purposes of
this Act". As I read the provisions, it is clear that
the scheme is not limited to resolving "disputes involving
authorised persons". The voluntary jurisdiction is an
example of this. It is my view that "involving authorised
persons" should be replaced by "involving persons
subject to the jurisdiction of the scheme" which would
include those with both compulsory and voluntary membership.
18. I also believe that some fundamental concepts
and definitions should be explained in section 151, thereby setting
the scene for the remaining provisions. It is apparent that apart
from section 151 (4) there is little cross-referencing between
sections 151 to 160 and schedule 8, yet both must work together.
This could be improved within this section by inserting some relevant
cross-references to the definitions contained in schedule 8, for
example, "scheme rules" and "Ombudsman",
which are referred to throughout the sections in Part XIV.
19. I also believe that this initial section
should explain that the Ombudsman's role is not only to make decisions
and awards, but to also act as a conciliator (it is this issue
which sets it apart from adversarial litigation). The Ombudsman's
duty must be to "facilitate the satisfaction of complaints"
whether by agreement or by making an award. It should also be
explained that the Ombudsman shall, in carrying out his functions,
decide his own procedure to be adopted in considering complaints
(subject, of course, to the legal obligations on him to act fairly
and comply with the Human Rights legislation).
SECTION 152 AND
20. As the draft explanatory notes record (on
page 58), there are a number of Ombudsman and arbitration schemes
operating in the financial services sector. It is intended that
the new provisions will replace those existing schemes. Some of
those schemes operate on a voluntary membership basis and some
on a compulsory membership basis. Those schemes are respected
for the work they undertake.
21. I am aware that the Government intend to
make changes to the jurisdiction provisions contained within the
draft bill. I have not seen those changes. The explanation provided
in the March 1999 Progress Report suggests that the scheme's jurisdiction
will be built around the compulsory jurisdiction direction given
by the FSA. In my view the jurisdiction should be set out in the
legislation and not left to the discretion of the FSA. Consumers
need to know what their rights are to complain in the event of
fault. My full response to the Treasury's consultations sets out
the format I believe the legislation should take. My evidence
in this paper will concentrate on the compulsory and voluntary
jurisdiction provisions on the assumption that those will remain
substantially unaltered by the Government's proposed changes.
22. Section 152In relation to this section
my specific comments are:
22.1 In subsection 152(2) the conditions of
eligibility are that the complainant is eligible under the scheme
rules and that the respondent was authorised. Those conditions
read along with section 152(1) provide no scope for excluding
the complaint on any of the grounds set out in the scheme rulesas
there is no reference to the need to have regard to complaint
eligibility under the scheme rules. Subsection 152(2) should also
have a requirement that "the complaint is eligible under
the scheme rules."
22.2 Subsection 152(2)(b) requires that the
respondent was "at the time to which the complaint relates
. . . " This would be much improved and easier to apply if
it read "at the time of the events giving rise to the
22.3 In subsection 152(5) it states that a complainant
is eligible if he falls within a class of person specified in
rules made by the Authority. The Authority's procedural rules
(in paragraph 14 of schedule 8) do not provide for complainant
eligibility rules (e.g., size of companies or partnerships). In
any event, complainant eligibility requirements would be more
appropriately contained within the scheme rules.
22.4 As a consequence of the amendment to subsection
152(5), subsection 152(6) should now read "The scheme
rules may make provision for persons other than individuals to
23. The legislation should also make absolutely
clear that it is for the Ombudsman (in my view the Chief Ombudsman),
in the first instance, to decide whether or not a complaint falls
within his jurisdiction and both the respondent and the complainant
must co-operate with the Ombudsman in reaching a jurisdictional
decision. My full response to the Treasury's consultation contains
a new section dealing with co-operation with the Ombudsman at
both jurisdiction and investigation stage, and the consequences
of failing to do so.
SECTION 154: VOLUNTARY
24. If the necessary amendments are made to
section 152 so that all complaints dealt with by the schemes which
the FSOmbudsman is to replace are covered by section 152 (as I
would suggests), then the voluntary jurisdiction need say no more
than it will cover complaints not falling with the compulsory
25. In relation to the voluntary jurisdiction,
under section 154(3) a voluntary jurisdiction direction may be
25.1 It relates to an activity to which a compulsory
direction does not apply because the respondent was not an authorised
person at the time to which the complaints relates (section 154(3)(a)).
25.2 It relates to an activity which "could
be" made the subject of a compulsory jurisdiction direction
but which has not been (section 154(3)(b)); or
25.3 It relates to an activity which is not
a regulated activity (i.e., it does not fall within the Treasury
Order made under section 11), could not be made the subject of
a compulsory jurisdiction direction (i.e., because it is an activity
outside the terms of Schedule 2) but could be made a regulated
activity under section 11 (i.e., it is an activity which relates
to an investment or is an activity carried on in relation in property
of any kind: section 11(1)(a)(b)).
26. This seems overly complicated. Surely it
need say no more than a voluntary jurisdiction direction may cover
any type of complaint or respondent which does not fall within
the compulsory jurisdiction.
27. Under subsection 154(2)(b) and (8) it appears
that it is not necessary for participation at the time of events
giving rise to the complaintsonly that the respondent qualified
to participate and agreed to participate when the complaint was
made to the scheme. I would have thought that the intention was
that the respondent had agreed to participate at the time of the
events giving rise to the complaint.
28. It is not clear whether section 154(3)(a)
and (b) are separate factors or cumulative. The lack of the word
"and" suggests that they are separate. If that is right,
for clarity, the addition of the words "which would otherwise
apply" should be added to section 154(3)(a) so that it
reads "to which a compulsory direction, which would otherwise
apply, does not apply because the respondent was not an authorised
person . . . ."
29. Additional matters not contained within
section 154 are:
29.1 There should be provisions for the giving
of notice before a respondent can withdraw from the voluntary
jurisdiction and the consequences of cessation.
29.2 There should be provisions for the scheme
operator to terminate participation in the voluntary jurisdiction
and the consequences of cessation.
29.3 The scheme operator should be obliged to
keep a register of those persons who have agreed to participate
in the voluntary jurisdiction.
SECTIONS 155 AND
30. Sections 155 and 156 deal with provisions
which the Ombudsman must observe when reaching his determination
and making his award. The whole of those sections apply to complaints
within the compulsory jurisdiction without regard to the type
of complaint or the nature of the respondent.
31. Section 155 should be prefaced with a section
which explains that if a complaint is not settled or withdrawn
during the conciliation process, the Ombudsman may, after the
completion of the investigation of the complaint and considering
the submission made, make a determination.
32. The Ombudsman is obliged to make a statement
where he has determined a complaint. The statement must give reasons
and be signedthere is no provision requiring the Ombudsman
to state the nature of the award. Although this may appear obvious,
I believe that specific reference to this requirement should be
33. This section should also deal with all other
relevant substantive issues. In particular, specific reference
should be made to the principle that:
33.1.1 The Ombudsman shall not be bound by any
legal rule of evidence.
33.1.2 The Ombudsman shall not be bound by any
previous decision made by him or by any other Ombudsman or by
any predecessor in any such office.
34. Under section 156(1) and (2), in relation
to complaints which fall within the compulsory jurisdiction, where
the complaint is determined in favour of the complainant, the
determination may include a money award or a direction to take
steps. There should be a third optionwhich is a combination
of a money award and a direction to take steps.
35. Subsection 156(2)(a) refers to "such
amount as the Ombudsman considers fair compensation for loss or
damage (of a kind falling within subsection (3)) suffered by the
complainant . . . " In my view "fair compensation"
does not denote sufficient objectivityassessing loss in
a legal sense does not involve fairness. Furthermore, there is
no reference to compensation for anything other than loss or damage
(e.g., distress or inconvenience).
36. I believe that subsection 156(2)(a) should
read: "the determination may include (a) an award of compensation
against the respondent for loss or damage or distress or inconvenience
(of a kind falling within subsection (3)) suffered by the complainant
. . . "
37. Subsection 156(3) is divided into:
(a) losses for breach of contract; and
(b) loss or damage of any other specified
I do not see the logic behind this division. Many
complaints could be based on two or more causes of actionbreach
of contract and negligence for example. In relation to regulatory
complaints, the most common cause of action will be breach of
statutory duty as provided for in section 80 of the FSM Bill.
In addition to determining the complaint, will it be necessary
to decide the cause of action on which the decision is made so
that the award can be calculated? This again seems overly complicated.
38. In my view the split should be between:
(a) compensation for any loss or damage for
which the court has a power to award damages (irrespective of
the nature of the cause of action); and
(b) compensation for any distress or inconvenience
or any loss or damage suffered by the complainant not within (a)
for which it is fair and reasonable to award compensation.
In this way there is greater correlation between
the compensation provisions and the provisions to which the Ombudsman
must have regard when reaching his determinationsection
39. In subsection (5) "if he [the
Ombudsman] considers fair compensation requires payment of
a larger amount . . . " a recommendation may be made.
In my view "fair compensation" is too vague and
subjective. It should read "if he" [the Ombudsman]
considers that proper compensation requires payment of a larger
amount . . . " a recommendation may be made. This is
a more objective test.
40. For clarity subsection 156(6) should read
"The monetary limit is such amount as may be specified
by the Authority under subsection (4)".
41. Subsection 156(7) should read "Different
monetary limits may be specified . . . "
42. Paragraph 17 obviously brings the money
award within Order 25, Rule 12(1) of the County Court Rules (applicable
in relation to England and Wales). Under the legislation, before
a money award can be enforced it must be "registered in
accordance with scheme rules . . . ". However, there
is no provision in paragraph 15 which requires the scheme operator
to create or keep a register of awards. Will the complainant have
to produce an extract from the register when applying to the county
court or some other declaration from the scheme operator or Ombudsman.
This appears to be an unusual requirement. The procedure in Order
25, Rule 12(1) merely requires the production of the original
or a copy of the award. I would suggest that the requirement to
register the award be removed.
43. There are no provisions at all detailing
how complainants within the voluntary jurisdiction will be determined.
I assume that this is a matter which will be considered when issuing
a voluntary jurisdiction direction. Nevertheless, I do believe
that even at this stage, before the making of a voluntary jurisdiction
direction and the specifics as to the basis on which awards will
be made, that certain provisions should be set out in the legislation.
The most important being the right to enforce an award or the
right to take injunctive proceedings in respect of an award made
by an Ombudsman under the voluntary jurisdiction. Those rights
require legislative force.
44. In respect of the enforcement of a money
award, Order 25, Rule 12(1) of the County Court Rules requires
an "enactment" to provide for an award to be
enforceable in the county court. It would not, in my view, be
sufficient for such provision to be contained within the voluntary
SECTION 157: COSTS
45. I am aware that positive changes to the
costs provisions have been proposed by the Government. I will
say no more on this issue.
SECTIONS 158 AND
159: POWER TO
46. Section 158 provides the Ombudsman with
a power to request information or documentation. As with section
157 (costs), it is not clear whether this applies to section 152
complaints, the voluntary jurisdiction or both.
47. In relation to section 158(3) it should
be made clear that the Ombudsman decision is final. It would not
be unusual to get into debates as to what information is necessary
for the fair determination of the complaint.
48. Subsection 158(4) says that "the
person to whom [the document] is produced may"
take copies, etc. Under section 158(1) it is the Ombudsman making
the request for the information. It would be much clearer if "the
person to whom [the document] is produced may"
was changed to "the Ombudsman may" (even though
in practice it may be one of his staff receiving the information).
A similar amendment should be made to "the person requiring
its production" in subsection 158(5) as we know this
is also the Ombudsman.
49. Subsection 158(6) states that no person
may be required to produce or disclose a privileged document.
Who decides this where there is a dispute as to whether a document
50. I have expressed a view below that the scheme
rules should make provision for information to be provided in
confidence. I believe that there should be a cross-reference to
such a provision in section 158 with the caution that it is for
the Ombudsman to decide to what extent regard is had to information
provided in confidence.
51. Section 159 provides that if a person (known
as the defaulter) fails to comply with a request for information,
an Ombudsman may certify that fact in writing to the court and
the court may enquire into the case. If the court is satisfied
that the defaulter failed to provide the information without reasonable
excuse, it may punish the defaulter as if he had been guilty of
contempt of court. I have considerable misgivings that this provision
should relate to the complainant. The fear of being unable to
provide information may of itself be a considerable deterrent
to some complainants wishing to make a complaint. In my view there
should be three options set out in section 159:
51.1 Where the defaulter is the complainant,
the Ombudsman should have a discretion to terminate his investigation.
51.2 Where the defaulter is the respondent or
the complainant, the Ombudsman should have a discretion to continue
his investigation without references to the information requested.
51.3 Where the defaulter is the respondent,
the Ombudsman should have a discretion to report the matter to
the court as set out in section 159.
SECTION 160: FUNDING/FEES
52. Section 160 provides for the Authority to
make rules requiring the payment to it, or to the scheme operator,
by authorised persons of specified amounts or amounts calculated
in a specified way. This provision must be read along with paragraph
16 of Schedule 8, which explains that the Scheme rules may require
a respondent to pay to the scheme operator such fees as may be
specified in the rules.
53. Subject to my belief that the jurisdiction
under section 152 should not be limited by the requirement that
respondents under that jurisdiction should be authorised persons
(and therefore payment in section 160 should not also be so restricted),
as far as section 160 and paragraph 16 of Schedule 8 are currently
worded I have no objection.
54. There are no fee charging provisions in
relation to the voluntary jurisdiction. It may be that these provisions
will be included within the voluntary jurisdiction direction.
Nevertheless, in order to put the beyond question the scheme's
powers to make charges for voluntary participation, I believe
that similar provisions to section 160 and paragraph 16 of Schedule
8 should be included in the legislation.
SCHEDULE 8: PART
I AND PART
Establishment by the Authority of the Scheme Operator
55. Paragraph 2(1) should surely refer to "the
functions conferred on the scheme operator by or under this Act".
It currently refers to "by or under this Part".
However, the functions of the scheme are much wider than those
set out in Part II of Schedule 8they are more particularly
defined in Sections 151 to 160.
56. Paragraph 8 requires that at least once
a year the scheme operator makes a report to the Authority on
the discharge of its functions. By reason of paragraph 3(5) the
function of the scheme operator in producing that report may be
exercised only by the Board.
57. I have no particular objection to a report
being produced to the Authority by the board. However, one of
the strengths of the existing schemes is the report produced by
the Ombudsmen of the Scheme. The reports currently produced
by the existing schemes explain the approach to case investigation,
give guidance on issues of importance and detail the work of the
scheme. In this way the report is useful to both respondents and
complainants. It would be a great loss to lose the production
of such a report.
58. In the case of the PIA Ombudsman scheme,
its annual report contains a report from the council (seen to
be the equivalent to the FSOmbudsman's schemes board) and the
59. I would strongly suggest that the same format
be followed. There should be an obligation on both the Ombudsmen
and the board to produce a report (although the reality would
be that they would be contained within the same document).
60. Paragraph 9 states that the scheme operator
may publish guidance. As this guidance is most likely to relate
to the way the scheme investigates complaints (both generally
and in relation to specific types of complaints) the Chief Ombudsman
should be responsible for providing advice to the scheme operator
with regard to this guidance.
Exemption from Liability in Damages
61. Paragraph 11 provides a protection for claims
for damages. I would question why this is limited only to the
compulsory jurisdiction. I would like to see this protection being
given across the whole of the Ombudsman's jurisdictions.
62. Under paragraph 12, for the purpose of the
law relating to defamation, proceedings in relation to a complaint
which is the subject of the compulsory jurisdiction are treated
as if they were proceedings before a court. Again, I would question
why this is limited only to the compulsory jurisdiction. I would
like to see this protection being given across the whole of the
SCHEDULE 8: PART
Authority's procedural rules
63. The discretion given to the Authority in
paragraph 14 to make procedural rules contains provisions which
will impact on issues of the Ombudsman scheme's jurisdiction to
consider complaints, namely sub-paragraphs 14(1), 14(2), 14(3).
All of those provisions would be more usefully contained within
the Scheme Operators Rules (paragraph 15). In this way, the Authority's
rules will not form a jurisdictional document thereby simplifying
the resolution of jurisdiction disputes.
64. The Authority's rules should be limited
to the provisions of paragraph 14(4) which require the respondent
to establish appropriate procedures for the resolution of complaints
which may be referred to the scheme (I do not see the need for
the reference in (b) to "arise out of an activity to which
the Authority's powers under Part VIII do not apply").
65. The Authority's rules will only apply to
authorised persons. However, there will be those respondents who
have agreed to participate in the scheme's jurisdiction on a voluntary
basis. It must be right that they are also obliged to have internal
complaints procedures in place for the resolution of complaints.
The legislation should apply the Authority's rules in this regard
to those respondents who have agreed to participate in the scheme.
Scheme Operators Rules
66. Sub-paragraph 15(2) sets out some of the
issues which may form part of the scheme rules. I have only two
66.1 Sub-paragraph 15(2)(c) provides that the
scheme rules may include a provision for persons other than the
complainant and the respondent who appear to have an interest
in the determination to be made parties to the complaint. This
is a provision which, as far as I am aware, is new to Ombudsman
scheme procedures. I would firstly question whether such a provision
is necessary as the Ombudsman is dealing only with the complaint
and may only make an award against the respondent (he may request
information from a third partywho could provide it on a
voluntary basis). Secondly, I would question whether such a provision
in the scheme rules would be binding on any person whom the Ombudsman
wished to make a party to the complaintI do not see that
the scheme rules would have the legislative power to permit the
Ombudsman to join third parties.
66.2 Sub-paragraph 15(2)(d)should also
include reference to the provision of information that may be
provided in confidence.
SCHEDULE 8: PART
67. Save for the fact that I believe that provisions
regarding fees and the enforcement of awards made under the voluntary
jurisdiction should be included within Part IV of schedule 8 (in
similar terms to paragraph 16 and 17 of schedule 8), and that
the discrepancies between the provisions of the voluntary and
compulsory jurisdiction in relation to the exemption of liability
in damages and privilege should be removed, I have nothing to
add in respect of these provisions.
68. It is my opinion that the draft provisions
relating to the Ombudsman Scheme are unnecessarily complicated.
Simplification can be achieved by making greater use of the legislation
and scheme rules under which the existing schemes operate. I believe
that the legislation attempts to reinvent a wheel that has been
successfully working for some time.
22 March 1999