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Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. This is not the first time that he has done what he is now doing. Perhaps I may say to the House and to the noble Lord that if he is to make a personal attack upon me, it would be courteous to give me notice beforehand so that I am able to deal with it in that way. This is about the fourth time this has happened. I do not believe that in this House we normally adopt the tactics of Senator Joe McCarthy.

Lord Cocks of Hartcliffe: My Lords, this is not the first time I have been referred to as Senator Joe McCarthy from that source. However, no doubt that intervention will save the noble Lord from sending me

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a letter, as he did on a previous occasion, stating that my remarks were defamatory. It is very good to dish it out but sometimes it has to be taken as well.

If one is elected, one receives complaints. When I was a Member of another place I received various complaints from various people. Anybody who has been down there knows that there is a hard core of people who come back time after time. Some of the files which I accumulated were well over an inch thick. Occasionally I would say to those people, who became very good friends of mine because I saw them on such a regular basis, "Tell me what you would do with your life if we cleared up this complaint?" They looked bemused and bewildered. I do not believe that they had ever considered what life would be like without such a grievance to take out and burnish up.

I believe that there is a necessity for the MP to filter off his complaints. When this legislation was first passed, the noble and learned Lord, Lord Hailsham, as he now is, said in the other place that a very large number of complaints which he had come across in terms of his research for the Bill were about local government. The MP can put those complaints to local government. He can often feed such complaints to the right source. That is essential; otherwise the system would become totally clogged. I do not care what happens in other countries. We live in this country. This is our country and we have to judge matters as they are here.

I also believe that if people were turned down by the ombudsman there would be frustration. There is a possibility of malice and of playing off one Member of Parliament against another. A provision was introduced by the Lord President, who stated that it was a further provision to enable Members of Parliament to be more effective. He said:

    "this knowledge should surely put heart into those back benchers who feel they count for not much more than Lobby fodder",--[Official Report, Commons, 18/10/66; col. 43.]

and that there is the ombudsman to go to.

We must consider this carefully before we are carried away on another pseudo-populist crusade which will create a great deal more harm than good.

8.25 p.m.

Lord Avebury: My Lords, in May 1998 I attended a conference in Addis Ababa on human rights commissions and the ombudsman. The Ethiopians had gathered together people from some 50 or 60 countries with these institutions as part of their mechanisms for redressing citizens' grievances. Not one of the speakers there, distinguished ombudsmen, heads of human rights commissions, or lay people with experience in these fields recommended that the Ethiopians should introduce a filter, such as we had in our legislation in 1967. As it happens, I was present at Second Reading of the Parliamentary Commissioner Bill in 1967. I intervened a couple of times in other people's speeches, though I did not say anything substantive myself.

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I remember that Dick Crossman felt it necessary to interpose the MP between the complainant and the PCA as a filter, as has been said, and that he would theoretically weed out the complaints that were frivolous or ill-founded. In those days an MP was considered, as the noble Lord, Lord Cocks, would presumably still like him to be, the main channel of complaint from citizens not just about maladministration but about anything else under the sun which they felt needed an airing. So, Mr Crossman was careful to present the idea of a PCA as an enhancement to the role of the MP and an additional weapon in the armoury of the Back-Bencher in dealing with the executive. He stated:

    "we have decided unequivocally that the Parliamentary Commissioner must remain permanently a servant of the House, and in order to emphasise this we have laid it down that the initiation of grievances must permanently reside in back-bench MPs".--[Official Report, Commons, 18/10/66; col. 49.]

That seems rather quaint today because we have this host of other institutions through which aggrieved members of the public can take up their complaints directly, including local government as referred to by the noble Lord, Lord Cocks. They do not have to go through an MP; they can go directly to the commission concerned and to many other ombudsmen and institutions with similar powers, all of which can be accessed directly.

In my day, in the other place I used to see something like 600 people a year at my advice bureau and dealt with 3,000 to 4,000 letters in a year. We were not equipped to do that in the same way as Members in another place are today. However, it would have been extremely difficult to act as an intelligent filter in the cases which people requested to be submitted to the ombudsman. Not many of us would have been properly equipped to make the judgment on whether a citizen had made out a case which properly fell to be dealt with by the ombudsman. So, the question of whether to refer a complaint to the PCA having been left entirely to our discretion, I believe that most of us did as has been suggested; that is, left the final decision to the PCA on whether a case fell within his remit. That was probably why so many of the cases that landed on his desk, and still do so, turned out to be for other ombudsmen or not to be investigated by an ombudsman at all.

It was mentioned that when the councillor filter was removed and people were allowed to complain directly to local administrations in 1988, the number of complaints increased sharply--I believe by 40 per cent. That is a measure of the inhibition which stopped people from using this mechanism. I hope that much the same may happen when this Bill is passed; that is, that we open up this channel of communication and allow many people, whose complaints have not been properly submitted to the ombudsman in the past, to formulate their complaints and have them properly considered.

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8.30 p.m.

Lord Kingsland: My Lords, I can be brief on behalf of the Opposition. The noble Lord, Lord Lester, with characteristic resourcefulness, introduced a Bill on an important aspect of our constitution.

I suppose the real reason for the introduction of an ombudsman in 1967 was the growing perception by politicians from all parties that the doctrine of ministerial responsibility was no longer working. On the one hand, where issues of great political importance were concerned, a Minister under threat would be rallied round by the rest of the Cabinet. On the other hand, matters not regarded as being of particular political note were thought too trivial to bother about.

So the interesting and extremely helpful initiative of the Parliamentary Commissioner was introduced. But at that time the doctrine of parliamentary sovereignty was powerful enough to make the then elected Parliament in Westminster keep a filter; in a way to foster the illusion that Parliament was still in charge of the process.

Everybody who has spoken tonight, with perhaps one exception, agrees that the Parliamentary Commissioner has played a most important part in protecting the rights of individuals in the succeeding 30 years. I wonder, however, whether his importance is as great as it used to be.

For one thing, the constitutional context in which the Parliamentary Commissioner operates has been transformed. For example, in 1967 judicial review was still in its infancy. Now it plays a fundamental role in the protection of citizens' rights and its weapons intrude increasingly into the territory which was formerly the commissioner's territory.

Moreover, as the noble Lord, Lord Borrie, and many other noble and learned and noble Lords pointed out, there have grown up over the past decade and a half a number of specialised ombudsmen to whom citizens have direct access and whose constitution is quite independent of another place. Government departments have also established their own individual complaints' procedures, which seem to me in most cases to be working well. Finally, the sovereignty of your Lordships' House and another place has to some degree been qualified by the emergence of other parliaments and assemblies in the United Kingdom.

All these developments provide alternative access for the citizen to obtain redress for wrongs done to him or her. I have also noticed that, since 1992, the speed at which the Parliamentary Commissioner reaches a conclusion about matters that are put to him has slowed down remarkably and rather distressingly. Now it takes on average nearly two years to resolve a matter brought before him, whereas in the early 1990s it took only one year. Removing the filter will not solve that problem; something else needs to be done in addition to removing the filter to improve the performance of the commissioner.

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I do not know whether it is due to a lack of resources or an over-elaborate procedure, but the primary object in 1967 of the Parliamentary Commissioner was to produce a procedure which was speedy, straightforward and easily understood by the citizen. In addition to all the other matters we are looking at, we should be asking questions about that as well.

Moreover, it does not follow that, if we remove the parliamentary filter, we will remove all the problems connected with filtering. The main reason why the filter does not work as well as it ought to at the level of Member of Parliament is because most Members of Parliament like to be on the right side of their constituents; some, dare I say it, even like to tell the constituents what they feel the constituents want to hear. It is not at all surprising, therefore, that quite a high percentage of cases that reach the ombudsman have to be filtered out at that stage. But the filtering process will still have to be conducted even without the Member of Parliament when citizens go directly to the Parliamentary Commissioner.

I hope, therefore, that when this Bill reaches another place, consideration of the filter will be seen in a wider context and not just the specific motivation of the Member of Parliament. The Opposition are pleased that the noble Lord, Lord Lester, took this initiative. We look forward to seeing how the Bill progresses when it gets to another place.

8.36 p.m.

Lord Falconer of Thoroton: My Lords, I respond to this interesting debate in what the noble Lord, Lord Lester, may unfortunately regard as an unhelpful way. The following points emerge from the debate.

First, everybody agrees that the ombudsman procedure is a good thing because it helps the citizen. Secondly, as the noble Lord, Lord Avebury, pointed out, the parliamentary ombudsman was introduced, as the right honourable Dick Crossman said at the time, as an "adjunct" to the MP's powers to help his constituents or to help people generally on the basis that if the MP could not make headway through correspondence or other traditional means, he could then resort to the ombudsman.

The noble Lord, Lord Avebury, read an extract from the right honourable Member's speech in which he said that the ombudsman was to reside "permanently" in the House of Commons. So we have something created explicitly on the basis that he is to reside in the House of Commons. One can see the arguments for that. It would mean that the MP would continue to have his role as championing the constituent; he would be constantly informed as to what was happening. In effect, what the Bill of the noble Lord, Lord Lester, proposes is that that basis be now taken away. I accept that there may well be good reasons for that to be done, but I question whether or not it is appropriate for this House to initiate that procedure rather than the other place where the ombudsman, to quote the promoter of the Bill, "permanently" resides.

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The second point that emerges is that everybody agrees--indeed, it is put forward as a reason for the change--that the effect is likely to increase substantially the number of cases that will come before the parliamentary ombudsman. The noble Lord, Lord Avebury, referred to the fact that when the local government ombudsman councillor filter was removed, the increase in workload was around 44 per cent. That is said to be a good thing. No doubt in some circumstances it would be a good thing, but perhaps I can draw noble Lords' attention to two facts.

The procedure of the parliamentary ombudsman is a cumbersome business. In effect, it is prescribed by statute and involves three stages. First, the parliamentary ombudsman has to decide whether or not he can consider the complaint. Secondly, he must pass the complaint to the relevant department, which then considers the matter. Thirdly, once he has the department's response, the parliamentary ombudsman investigates the matter himself.

At the first stage, the parliamentary ombudsman has the option of deciding not to investigate. But, in statutory terms, he can either decide not to investigate or have a full-blown investigation. It is quite difficult for him to do something in between. He does his best to think of ways round that restriction, but it is a restrictive process. The idea that one would increase his workload by 44 per cent, without also looking at the manner in which he carries out his procedures, seems a very bad way to consider whether or not to change the position in relation to ombudsmen. I believe that that echoes a point made by the noble Lord, Lord Kingsland; namely, that one should look at it more in the round rather than simply looking at this one aspect, which was beguilingly put by the noble Lord, Lord Lester of Herne Hill. However, it is impractical to look at it in isolation from the other aspects of what the ombudsman does.

The third issue is what process is presently underway in order to see what should happen to the ombudsmen. In October 1998, the ombudsmen themselves--not all of them, but perhaps one could say collectively "an omnibus" of ombudsmen--suggested that there should be a review of their procedures. They raised specifically the issue of the MP's filter and issues about how their procedures could be improved. In response, and as part of the "modernising government" agenda, the Government set up a review of the procedures for ombudsmen. That review is considering the MP's filter and what improvements in procedure can take place, as well as the point made by the noble Lord, Lord Alexander of Weedon, about whether there should be a commission or collegiate approach to the activities of ombudsmen to get round the wearisome issues of jurisdiction.

Therefore, one has an ombudsman who is "permanently" resident in the House of Commons; one has a Bill here which proposes something which will increase the workload, without making any changes in procedure; and one has an on-going process in which these very issues are being considered. Perhaps I may make one further point in relation to the

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procedural issue. It presently takes between 10 and 11 months to deal with one complaint to the ombudsman. I dread to think how long it would take if the workload were to increase by 44 per cent.

For the reasons that I have indicated, the Government cannot support the Bill introduced by the noble Lord this evening. In the light of the points that I have made, I earnestly suggest to the noble Lord that he considers whether or not the appropriate course would be to withdraw his Bill and await the results of the review to which I referred. At that time the matter could be considered in the light of a whole series of representations.

8.44 p.m.

Lord Lester of Herne Hill: My Lords, I am extremely grateful to all noble Lords who have taken part in this debate, including the noble Lord, Lord Cocks of Hartcliffe, whose speeches always remind me of the reasons why I parted company with old Labour and why I am so glad that New Labour stands for a wholly different tradition. No one has advanced any good reason for retaining the filter. Indeed, noble Lords from all sides of the House--Labour, Conservative and Liberal Democrat--have given a series of powerful reasons, in addition to those that I gave, as to why the filter should be removed.

Without singling out any speaker in particular, perhaps I may say that I am particularly glad that the noble Lord, Lord Borrie, was able to speak. He has been a champion of consumer interests since I was first called to the Bar. Hearing from the noble and learned Lord, Lord Archer of Sandwell, as a former Solicitor-General and a former Member of Parliament and, indeed, from my noble friend Lord Avebury, who is another former Member of Parliament (unlike the Minister and myself who have no experience of the other place), gives me a little more confidence that what I am doing does not involve lese-majeste as far as concerns the other place.

I agree with the noble Lord, Lord Kingsland, that if one is to free the parliamentary ombudsman--indeed, that is a much better title, as the noble Lord, Lord Alexander of Weedon, said, than Parliamentary Commissioner--of this unnecessary fetter, one consequence will be the need to give him more resources. Anyone who visits his offices will realise the pitiful lack of resources with which he has to work. It is no wonder that it takes so long to deal with cases. I hope that the Minister will forgive me for saying that in a sense the Government are self-interested in the matter. I say that because the whole purpose of the ombudsman is to act as a watchdog for the citizen against the misuse of power in a non-legal sense by Ministers, government departments and public authorities.

If the Minister were in opposition, I am sure that he would realise the force of what I am saying. Of course it is convenient for Ministers to have a rusty machine that takes a long time and does not deal very effectively with citizens' complaints. However, I know that this Government do not take refuge in that kind of argument based on administrative convenience.

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The Minister said that my Bill would not change the procedure, but that is not correct. One of the major changes is that it would remove the procedural bar. As a consequence, the ombudsman, with more resources, would be able to act as ombudsmen do across the Commonwealth. It is quite absurd that we, the country which is the mother of Parliament, should now be lagging behind countries like Australia, New Zealand, Canada and others across the Commonwealth, as well as those in new and old Europe--

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