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Baroness David: My Lords, the Minister spent a great deal of time answering questions from the Opposition. My noble friend answered perhaps one of the questions I asked. I hope that my noble friend will write to me.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Parliamentary Commissioner (Amendment) Bill [H.L.]
7.34 p.m.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time. Its purpose is to make a modest, practical reform; namely, to create a public right of direct access to the Parliamentary Commissioner for Administration.
The Office of the Parliamentary Commissioner for Administration (PCA) was established in 1967 for the investigation of complaints by members of the public of injustice resulting from maladministration by government departments. During the Second Reading debate on the Parliamentary Commissioner Bill in the other place, the Secretary of State, Richard Crossman, gave a useful catalogue of what would constitute maladministration:
- "bias, neglect, inattention, delay, incompetence, ineptitude, arbitrariness and so on".--[Official Report, Commons, 18/10/66; col. 51.]
The Justice proposal to create the PCA's office was rejected by Harold Macmillan's government in 1962, but the opposition of constitutional conservatives in Whitehall and elsewhere was overcome when Harold Wilson's first administration was elected in 1964. Unlike the ombudsmen in Scandinavia, the British Parliamentary Commissioner was tied to the
legislature to function as an extension of parliamentary scrutiny and control. The office was intended, as the government explained in their White Paper in 1965 (at paragraph 4 of The Parliamentary Commissioner for Administration, cmnd 2767), to provide MPs with,
- "a better instrument which they can use to protect the citizen".
The commissioner's investigative powers cover over 100 government departments and non-departmental public bodies and most kinds of administrative action by those bodies. He has wide powers for carrying out his investigations. He has the same powers as the High Court to compel witnesses to attend for examination and can require any Minister or civil servant to provide relevant information or documents.
If he finds injustice caused by maladministration he may recommend to the department concerned whatever action he thinks should be taken by way of redress; but he has no powers of enforcement. Departments almost invariably comply with his recommendations. Redress may take the form of an ex gratia payment to the complainant, or an apology, or the reversal of the decision of which complaint was made. A department may also revise its procedures or practices for the future. If it appears to the commissioner that an injustice will not be remedied, he may make a special report on the case to Parliament.
The PCA's office therefore has great potential in promoting good government and providing the citizen with an inexpensive and non-adversarial form of redress for injustice resulting from maladminstration. The office has become a universally accepted and well-established part of our parliamentary system of government, increasing ministerial accountability. One great attraction of the system as an alternative to the legal process is that it is informal, speedy and involves no financial cost to the complainant. It is an excellent form of alternative dispute resolution.
The much-criticised and unnecessary hindrance to the public's right of access which the Bill seeks to remove is the so-called "MP filter", which fetters the powers of the PCA. As Professor Colin Turpin of Clare College, Cambridge, observed in British Government and the Constitution (1990, second edition) the MP filter,
- "operates in an arbitrary way--some MPs rarely refer complaints to the PCA, while others do so frequently--and it is a hindrance to the ordinary citizen in need of a clear and simple remedy for grievances against the administration".
More recently, Dr Philip Giddings of the University of Reading has commented (in The Law and Parliament, 1998, edited by Dawn Oliver and Gavin Drewry, page 132) that,
- "Removal of the filter could be expected to lead to a substantial increase in the number of cases reaching the PCA (as happened with the local government ombudsmen when direct access was permitted) ... A related issue, and a critical one should the MPs' filter be removed, is public awareness of the PCA. A survey carried out in March 1995 found that less than half (46%) of the respondents had 'heard of the Parliamentary Ombudsman'. However effective a complaint-handling mechanism may be when in operation, potential complainants with justified grievances need first to know that it exists, and then how to bring it into play, if it is to be of any help to them ... This issue of visibility closely connects with accessibility--whether the procedures ... deter the less literate or less determined complainants".
- "as an extremely effective sifting mechanism and is one of the great strengths of the UK system. In effect, every individual Member of Parliament is himself an Ombudsman and deals in his elected capacity with many complaints without having to seek recourse to the PCA".
In a recent debate on 19th October 1999 on the report from the Select Committee on Public Administration on the work of the Parliamentary Commissioner, there was a prevailing consensus that the requirement that complaints be filtered by MPs should be dropped in order to improve access to the commissioner. If the Bill is passed by this House, it will provide the other place, as now composed, with the opportunity to decide--as it is of course for its Members to decide--whether the time has come to remove the filter and allow a public right of direct access. The most reliable way of testing the opinion of Members of the other place on a matter is, after all, to put it to a vote there after a well-informed debate. This House will then provide the catalyst for reform
ultimately to be decided upon by the democratic House of Parliament. That is why I hope that I shall not be regarded as presumptuous or disrespectful of the powers and privileges of Members of the other place in introducing the Bill.An ongoing review--to which I am sure that the Minister will refer in his reply--of the functioning of the Office of the PCA is being carried out by the Cabinet Office, which is examining the functions and powers of all the public sector ombudsmen in the UK. The Government, in response to a Question which I tabled, previously suggested that that review would be complete by Christmas 1999. As we have entered a new century since then and no white smoke is to be observed billowing from Whitehall in that matter, I suggest that, pending the completion of the review, removing the MP filter is a modest yet significant change that should be made now. The logic of the case for removal is compelling.
The filter substantially reduces the number of complaints referred to the PCA. That is due to a number of factors, which Mr Michael Buckley, the present Parliamentary Commissioner, has identified in his memorandum submitted as part of the review of public sector ombudsmen. Many potential complainants will not use their constituency MP because of differences of political complexion. That problem is compounded by the existence of a strong ethos among MPs that they will not take complaints from the constituents of other Members even when asked. MPs vary also--as do we--in efficiency, conscientiousness and accessibility; many will be poorly informed of the remit and functions of the ombudsman. Some may discourage complainants or simply not think of the ombudsman as providing a potential solution to the problems faced by their constituents; others may refer in wholly inappropriate circumstances.
The Parliamentary Commissioner, in his evidence to the Select Committee in July 1998, observed that the 1967 Act is,
- "a difficult and restrictive piece of legislation",
- "hard to follow",
One of the arguments for inserting the filter in 1967 was that MPs would act as gatekeepers, winnowing out cases which did not merit investigation by the ombudsman. The Parliamentary Commissioner's examples strongly suggest that that winnowing process is not working well. I should say that he was kind enough to meet me to discuss some of the problems before I introduced the Bill. If anything, the filter is
causing more confusion and administrative problems than it is solving. The most recent report of the PCA confirmed that 70 per cent of the cases referred to him were not within his jurisdiction. As he commented to the Select Committee, MPs have,
- "other things to do with their time than to try to unravel the complexities of the complaints mechanism".
Complainants are cut off from direct access to the PCA, and what should be a flexible and accessible remedy for complainants becomes perceived in the eyes of citizens as another bureaucratic and remote procedure. Even if someone makes a complaint and has it referred by a MP, the ombudsman continues to deal directly with the MP, and only indirectly with the complainant. For example, Section 10(1) of the 1967 Act provides that the commissioner, on the conclusion of his investigation, shall send the completed report to the MP, not to the complainant. If the report is sent by the commissioner to the complainant as well, under Section 10(5) the commissioner cannot claim privilege in respect of the contents of the report for the purposes of the law of defamation. That not only distances the complainant from the procedure but also encourages inflexible and formalistic procedures.
It is difficult to evaluate precisely how damaging the effect of the filter has been. But it is striking that in the 33 years that the Office of the Parliamentary Commissioner has been in existence it has on average received fewer than 1,000 complaints per year against the whole of central government and has been able to investigate fewer than 250 complaints per year.
By way of contrast, perhaps I may give one example to serve for all. I could give other examples which are more dramatic, but I take the example of Ireland. The Irish Ombudsman, who is not subject to a parliamentary filter and who deals with a very small population of some 3.6 million, received 1,380 complaints fit for investigation in 1998 alone. When the filter in Hong Kong was removed, complaints went up fifteen-fold. Similarly, there was a large upsurge in complaints to the Local Government Ombudsman when the equivalent councillor filter was removed in the 1980s. There are many other examples. One of the Hungarian ombudsmen told me that she receives and deals with up to 30,000 complaints a year, compared with the 1,000 which Mr Buckley is dealing with.
In his evidence to the Select Committee, Mr Buckley said that his caseload is significantly less than would probably be the case if the hindrance to free access by members of the public to his office were removed. In the other place, Mr Mark Oaten, MP, described the filter as,
- "adding a blockage to the system".--[Official Report, Commons, 19/10/99; col. 333.]
Another argument for the filter was the fear that the PCA might somehow act as a rival to the MPs' role in dealing with the grievances of constituents. But the commissioner is not a political figure. Independently and impartially he scrutinises administrative decisions for maladministration and acts as a safeguard for the rights of citizens. Given the complexity of some of the cases which he investigates, the commissioner provides an essential complement to the work done by MPs on behalf of their constituents.
It is plainly in the interests of good administration and the protection of citizens against the misuse of public powers if complaints of maladministration are handled wherever possible through the good offices of the Parliamentary Commissioner, rather than by means of litigation, including judicial review. Direct access would enhance significantly the practical enjoyment of those important aims of the system.
There has been a significant change in the governing culture of the UK since 1967; a welcome change reflected, among other things, by the introduction and enactment of the Human Rights Act 1998. When the ombudsman system was set up, the paternal state was presumed always to know best. Now citizens are being empowered to challenge abuses and maladministration by state authorities. Removing the filter is part of that process. If citizens wish to bring a complaint, they should be entitled to go directly to the commissioner and not to have their complaints vetted for suitability by an MP. That modest reform will be entirely in line with the Government's ambitions for public services set out in Chapter 3 of the White Paper, Modernising Government. Paragraph 6 of that chapter says that the Government want public services that,
- "make it easy to complain and get results when things go wrong".
- "The Principle of Unripe Time is that people should not do at the moment what they think right at that moment, because the moment at which they think it right has not yet arrived".
Moved, That the Bill be now read a second time.--(Lord Lester of Herne Hill.)
7.54 p.m.
Lord Borrie: My Lords, a few years ago the then Parliamentary Commissioner or ombudsman, Sir Cecil Clothier, referred to the Parliamentary Commissioner Act as "very brief and elegant". I believe that if this amending Bill were to become legislation, the legislation would be even more brief and, in my view, at least as elegant.
I congratulate the noble Lord, Lord Lester of Herne Hill, on introducing the Bill because it gives us an opportunity, which I believe is probably fairly rare in this House, to consider the matter of the Parliamentary Commissioner. I hope that no one in the other place considers that we are not acting properly in dealing with a subject which they may regard very much as their own.
Since 1967, I believe that the Parliamentary Commissioner has proved to be a most useful and important constitutional device for handling citizens' grievances involving maladministration by government departments and agencies of all kinds. Of course, as the noble Lord, Lord Lester, said, it could be more useful, and he has described ways in which that could be achieved. However, the idea as such has undoubtedly been successful, not only in the other parts of the public sector which the noble Lord described. It has also been used in the devolution legislation for Scotland and Wales and it has spawned a number of other ombudsmen in the private sector, let alone the public sector. The huge Bill which this House will receive shortly--the Financial Services and Markets Bill--is a particular example. But, of course, even building societies, mentioned by the noble Lord, estate agency and even legal services have their ombudsmen. Therefore, the idea has taken off in the past 30-odd years.
With regard to grievances against government departments and agencies, justified grievances may, of course, arise not just from actions of government or government departments which clearly are illegal but from conduct and behaviour where the citizen has been treated inconsiderately or unfairly, has been misled or has had his case delayed excessively. Those are not matters which one can pin down as illegal but they are, nonetheless, justified grievances. The noble Lord did not say so, and perhaps, if one was not aware of the facts, one would not be surprised to learn that the Department of Social Security and its related agencies have overwhelmingly the largest numbers of grievances brought before the Parliamentary Commissioner.
When the 1967 Act was brought in, I suppose that it was not easy for Members of the other place to admit that the traditional methods of redress of constituents' grievances--the Parliamentary Question, correspondence between MPs and Ministers and the
Adjournment Debate--were inadequate. The model of the Comptroller and Auditor-General, whom I suppose I might fairly describe as a kind of financial ombudsman, has been there since the previous century, supported by the powerful Public Accounts Committee. I suppose that that may have reassured MPs to some extent, but the government of the day seemed to think that further reassurance was deemed desirable and, therefore, they introduced the MP filter, as the noble Lord, Lord Lester, has described it.The author of one of the main works on administrative law--well known to the noble Lord, Lord Lester--Professor Sir William Wade, said about the MP filter:
- "The theory behind the requirement that complaints must be submitted through MPs was that the MP would act as a filter and eliminate futile cases. In fact, it seems that they prefer to let complaints be rejected by the Commissioner than to reject them themselves".
I shall not assert that MPs are blameworthy in that respect. It is quite a subtle matter to know where the jurisdiction starts and ends. But I can certainly assert, without being rude to Members of the other House, that they are not very successfully carrying out their function of acting as a filter. Surely after 30-plus years, MPs today are not so lacking in self-confidence in their significant constitutional role, and role as Members of Parliament generally, that they would wish to continue to be the sole conduit through which complaints may go from their constituents to the Parliamentary Commissioner.
In the 1970s, a modification of the procedure was introduced whereby if a complaint goes direct from the citizen to the Parliamentary Commissioner because the citizen does not realise that he is supposed to go through a Member of Parliament, the Parliamentary Commissioner will respond, offering to forward a suitable case to the complainant's MP so that the MP may then refer it back to him. Insisting on that round-about procedure is surely not worthy of the other place. It is not worthy of Parliament.
As the noble Lord, Lord Lester, said, direct access is allowed to the Local Government Ombudsman, although it was not when the office was set up, as it is to the Health Service Commissioner and as it is in most other countries where there are parliamentary ombudsmen. It seems to me that one of the values of the proposal put forward by the noble Lord, Lord Lester, is that it would enable the Parliamentary Commissioner to extend public awareness of his role. He would like to be able to create greater knowledge of his function, role and purpose in life.
It surely is the case that 1,000 or 1,500 complaints per year--and as I said, a high proportion are outside the jurisdiction--is a ludicrously low figure. It is only
two or three in each constituency. Perhaps I may use a phrase of the former ombudsman, Sir Cecil Clothier. What he used to call "missionary work" would ensure that the public is much more aware of the procedure which exists, which Parliament and the taxpayer provide. Surely it is desirable that that work should be better known than it is. Therefore, I support the ideas which the noble Lord, Lord Lester of Herne Hill, put forward.8.3 p.m.
Lord Alexander of Weedon: My Lords, I, too, support this Bill. I am grateful to the noble Lord, Lord Lester of Herne Hill, for introducing it. The noble Lord is a remarkable champion in this House of human rights and measured law reform. His comprehensive arguments for this Bill were typical of his wide-ranging knowledge and his tireless dedication.
I speak, as he says, as chairman of Justice, whose report The Citizen and the Administration in 1961 and the acceptance of that report paved the way for the appointment of the Parliamentary Commissioner for Administration, as he is still called, although I should prefer that the office was now designated the "ombudsman", since that is a readily understandable term.
The key to success of the ombudsman system in every area, both public and private sectors, has been because it ensures easy and speedy access to informal justice. I saw it directly in action in the time that I spent in banking. Customers with complaints against large banks would be daunted by the prospect of going to court. But the ombudsman service provided a channel by which they could be invited to ventilate their complaints when the internal mechanisms for resolving them had failed.
It is fair to say that the ombudsman system was somewhat more tolerated than rejoiced in by the bank executives, but no doubt that was a very healthy state of mind.
The system was free to the customer, legal representation was unnecessary and, while following the rules of natural justice, was informal, inquisitorial and non-adversarial. The independence of the ombudsman who, for most of my time was another member of the council of Justice, an eminent solicitor, Laurence Shurman, was unquestioned. Sometimes, as in litigation, the customer wins and sometimes loses but never once in the 10 years that I spent in the industry did I hear a single complaint that the unsuccessful customer had been deprived of his long and expensive day in court before a judge solemnly clad in wig and gown.
The system has the other advantage that the ombudsman develops a body of expertise through regular specialist involvement which judges hearing such cases occasionally, on an ad hoc basis, could not gain. The reports of the ombudsmen, too, are valuable in prompting better practice throughout the particular industry.
The success of the ombudsman approach to providing an alternative dispute resolution mechanism is the extent to which it has been so widely adopted across the public and private sectors. Indeed, to speak at the Annual Conference of Ombudsmen is to speak now to several hundred distinguished people, mostly lawyers, who are gathered together in the public service.
But the ombudsman scheme can always be improved and, in that respect, the proposals for the financial sector provide a useful pointer. Through the Financial Services and Markets Bill, the various separate schemes within the financial markets will be brought together under a chief ombudsman, supported by sectoral ombudsmen dealing with banking, insurance and other aspects of financial services. In the same way, Justice considers that there would be merit in bringing together the parliamentary, health and local government ombudsmen in one unified scheme or, at any rate, on a more collegiate basis. Precisely because of the complexity of modern society, it can be unclear--and this was alluded to by the noble Lord, Lord Borrie--to which public sector ombudsman they should take their complaint. Indeed, many potential complaints involve more than one department of central and local government. I hope that that suggestion might find favour when the outcome of the review, to which the noble Lord, Lord Lester referred, is known.
But the purpose of this Bill is more modest. It is a discrete purpose and does not require us to await wider-ranging reform. But more modest as it is, it is of high importance for the ombudsmen schemes are about access to justice and the parliamentary filter is now, of its nature, a barrier and distances the complainant from the ombudsman. It is even more of a barrier where it operates haphazardly but inconsistently. It was no doubt understandable that it should be introduced when this was a new and novel jurisdiction borrowed from Scandinavian countries and regarded as a precaution which would allow the system to be tested in action and no doubt to avoid the risk of abuse and the opening of those floodgates which is so feared by some whenever beneficent law reform is introduced.
After 20 years, the time has come to rid ourselves of the filter and the barrier, which is counterproductive where we seek easy access to justice. I hope that the Bill will go forward and be given time in the other place, so that those who operate the filter can determine whether they agree it should be kept or take the view that it can be dispensed with--that the citizen should trusted to have direct access to the ombudsman and the ombudsman should be trusted to respond directly to the citizen.
8.10 pm
Lord Archer of Sandwell: My Lords, I add my congratulations to the noble Lord, Lord Lester of Herne Hill, on increasing the debt that the House already owes to him by introducing this Bill.
It is always a pleasure to follow the noble Lord, Lord Alexander of Weedon. If it appears that this debate is in the nature of a justice takeover, that is no mystery--for reasons already given. On the last occasion that my noble friend Lord Borrie and I participated in the same debate, we had the misfortune to disagree. It is a great pleasure to observe that tonight, harmony is totally restored and I respectfully endorse every word that my noble friend said.
We have had four present or future practising lawyers arguing for an extension of an alternative dispute resolution procedure. Perhaps some of our noble colleagues may wish to take note. For reasons already given, there is general agreement that the office of ombudsman has fully justified the experiment. There are now numerous ombudsmen in the public and private sectors and the British and Irish Ombudsmen's Association has been effective in disseminating the growing experience of how ombudsmen can operate in various circumstances.
I have served as an ombudsman for the Mirror Group of newspapers and one of the major lessons I learnt was that there is no single pattern. Even among press ombudsmen, no two seem to work exactly the same way. One advantage of the concept is how flexible it can be in responding to various situations and needs. It has the capacity to expand wherever a need is recognised.
Lord Woolf, in his report, Access to Justice, pointed out that here was an alternative procedure for dispute resolution. It should gladden the heart of my noble and learned friend the Lord Chancellor that the problem we have all spent so much time discussing of how to fund legal services might be alleviated if greater use were made of the ombudsman procedures. Lord Woolf recommended a more flexible system of referrals between the courts and the appropriate ombudsmen. I hope that we may see greater advantage taken of the opportunities that that offers.
I was privileged to participate in an international conference on administrative justice at Bristol University in November 1997, with the encouragement and assistance of the Lord Chancellor's Department and which was the brainchild of Professor Martin Partington. The lessons that emerged are still being digested but I recommend the book based on some of the papers, Criminal Justice in the 21st Century. Perhaps I ought to declare an interest as a unpaid contributor. One of the lessons was the range of possibilities of dispute resolutions made available through ombudsman procedures.
I understand why it was felt initially that a filter was necessary. As my noble friend observed, there was a fear that the Parliamentary Commissioner would be submerged by complaints--many of them time consuming and outside his remit. That has not happened. In his evidence to the Select Committee, the then commissioner, Mr. William Reid, made clear that he did not fear the removal of the filter and, as the noble Lord, Lord Lester, pointed out, the present commissioner, Mr. Michael Buckley--with whom
I have also had the opportunity to discuss some of these matters--holds a similar view. Neither fear an extension of the volume of work likely to fall upon the ombudsman. Unlike so many public officials and bodies whose workloads do outstrip their resources, sometimes to the point of crisis, that concern was misconceived.One reason is that the work of the Parliamentary Commissioner is not as widely known as it ought to be. The proposal will be effective only if the possibility of a reference is much more widely publicised. Even among Members of Parliament, the possibility of resolving problems by the ombudsman procedure does not always come to mind. As was said by the noble Lord, Lord Alexander, the more widely the procedure is used, the more likely its existence is likely to be known.
Sometimes, one or two Members of Parliament may take an eccentric view. I remember Sir William Reid telling the story of receiving from an MP who was unhappy at one of his reports a letter stating, "I shan't refer any more cases to you". He commented that it would have been more tolerable if some other MP could have taken up the cases concerned and referred them--but one of the rules that MPs observe is about interfering in another's constituency.
The second reason it was thought necessary to insert the filter was that at the time of the original Act, this country had no experience of such a procedure. There was suspicion of any dispute resolution process that might compete with the courts and in some way undermine the rule of law. As the noble Lord, Lord Lester, said, it was even feared that it might undermine the sovereignty of Parliament if MPs were not accorded a veto.
My impression of the present House of Commons accords with that of the noble Lord. Members of the other place are concerned not with retaining power in their own hands but with redressing the grievances of their constituents. The anxiety belongs to the philosophy expressed in 1929 by Lord Hewitt in The New Despotism. It was thought to favour droit administratif and was not the British way of doing things. Now, the concept of a seamless web of administrative justice--including judicial review and other remedies in the courts, together with other extracurial forms of dispute resolution--is totally accepted. In my experience, judges and Members of Parliament see no danger of competition. Our democracy is not so perfect that any one institution should claim a monopoly in redressing grievances.
The administrative bureaucracy is not always right. Anyone who perceives that as criticism fails to understand the universality of human error. We all acknowledge that where a decision has the capacity to inflict unfairness on an individual, it should be possible to look at it again and find redress without necessarily persuading a politician that an unfairness has been perpetrated. That is what the expertise of the Parliamentary Commissioner is for and it would be a wasted resource if we fail to make full use of it.
8.20 p.m
Lord Cocks of Hartcliffe: My Lords, if I was a barrister we would have what is known in cards as "a running flush", but I must apologise and say that I am only a layman in these matters.
However, I am pleased that the noble Lord, Lord Lester, has introduced the Bill because I believe he has exposed an Achilles' heel for which I have been looking for some time. From time to time he and I have exchanged words in the Chamber over his Question of the espousal of the Human Rights Bill. I have referred to his associations with Charter 88 and the "chattering classes", although I believe that that phrase has now been superseded by "woolly Liberals".
In the past I have contested his view that there is a great groundswell for constitutional change in this country. I believe that we are now here on another one of these "hypes" and that there is not the substantial crying out for change which people say there is. I do not even think that it is a modest, practical reform; it has far-reaching consequences.
The noble Lord mentioned 1993, which is the year in which he came to this Chamber. He soon became associated with Questions. On 4th February 1995 the Guardian referred to an inquiry being told that four Peers took cash for questions. That was alleged by the noble Lord, Lord Lester. I do not believe that he gave further evidence to substantiate that, although he received a testimonial in the same article in the Guardian which stated:
- "he is wise and fair-minded as befits a counsel of mine".
I asked the Library about the record of the noble Lord, Lord Lester, in asking Questions and was told that the total number of all Questions asked in the House of Lords by the noble Lord, written or oral, logged on the parliamentary database (POLIS) is 897. If all noble Lords asked that number of Questions, the system would undoubtedly break down. The noble Lord only thrives on the restraint of others. That is precisely the problem which I believe we have with this Bill.
Anybody who has been elected knows that they receive complaints.
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