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Lord Roberts of Llandudno: My Lords, I am privileged to follow those who have such a wealth of experience in these matters. Following our debate on 16 September, I am delighted to take part in this discussion today.
The Assembly and this Parliament have already given a general welcome to the integration of the three services, and to the fact that one person will hold the position of public service ombudsman for Wales. He will be empowered to look into so many aspects of possible maladministrationa one-stop shop where people can come to have their complaints dealt with, knowing that they are on the right line and following the right procedure.
When the details of the Bill are examined later, I am sure that a number of questions will be raised. One that has already been mentioned is the appointment of one public service ombudsman for Wales. At the moment it is a Crown appointment. With increasing emphasis on devolution and democratic appointments, is this not an opportunity for the Government to allow the Assembly to make the appointment? The Welsh Assembly already appoints the Children's Commissioner for Wales, so would it not be possible for it to make this appointment as well? There may be an argument against that, but we shall wait to see what can be done and how.
The latest local government report states that 183 allegations were made in the past year, 85 of which were successful. There were 180 allegations made to the Health Service Ombudsman. Those numbers are quite substantial. Can the Minister tell the House whether the staffing arrangements will be financially neutral when the sums are added up and whether the present staff will be sufficient to cope with the large number of allegations that need to be dealt with?
The noble Lord, Lord Prys-Davies, referred to the length of appointment. I am sure that we will discuss whether 10 years is too long and whether the term could be shorter. Would it be possible to extend the term, if required?
In a meeting held the other day, I believe the noble Lord, Lord Carlile of Berriew, mentioned compensation and the awards that should follow from some maladministration appeals. Will the ombudsman now have the power to demand such compensation?
Finally, what is the procedure for an appeal against the ombudsman's decision? Suppose there is unhappiness and people are dissatisfied with what the ombudsman has decided. Where does the appeal lie? Will it be an expensive judicial review that may possibly be totally beyond the means of many people, or will there be another way in which people who feel that matters have not been dealt with to their satisfaction can seek redress?
I am a new arrival in the House, speaking at the birth of a new Bill. I know that mighty oaks from little acorns grow. I am sure that we shall have plenty of time to deliberate the Bill in the future.
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Lord Rowlands: My Lords, like all those who have spoken in the debate, I support the Bill for two reasons. First, for the reasons set out by the Minister, it is a practical, pragmatic, sensible reorganisation of the ombudsman services in Wales.
My second reason for supporting the Bill is that it is a further step in developing the legislative partnership between the Assembly and Westminster. It was my pleasure to serve under my noble friend Lord Richard on what is now popularly known as the Richard commission. That commission considered the further possible powers that the Assembly might take. One area that was explored was how to expand the legislative competence of the Assembly, even within the terms of the original Government of Wales Act and how the capacity of the Assembly to deal with legislation could accommodate those changes and expanded competencies. Within the existing structures, within the capacity of the Assembly as it stands at the moment with no additional Members and within the ability of the Assembly to deal with legislation, the commission looked closely at whether it could expand the legislative competencies of the Assembly.
In Chapter 13, paragraph 15, a recommendation was made, after some debate, that the UK Government would commit themselves to framing Bills to bestow upon the Assembly the widest possible legislative competence within the devolved areas. I strongly supported, and still do, that approach to legislation in a post-devolution world: that this House and this Parliament should draft legislationBills and provisionsrelating to Wales to maximise the legislative competence of the Assembly. The commission considered that point in some detail.
Therefore, I find myself applying what I call the Richard test. Does the Bill before this House, or Parliament, containing Wales-only clauses, or a Welsh-only Bill, like this one, pass the Richard test? Is it framed in such a way as to maximise the legislative competence of the National Assembly? I find that this Bill passes the test. When looking at some of the provisions in the Bill, I see an attempt to allow the Assembly subsequent power to amend and alter the provisions in the Bill in the light of experience.
Clause 10(2), for example, will allow the Assembly to add, alter to remove matters that fall within the ombudsman's jurisdiction. It will enable the Assembly to alter Schedule 2 to the Bill, which makes provision for excluded matters. The Assembly will have that important area of legislative competence as a result of the passing of the Bill.
I find pleasure in Clause 27(2), which gives the Assembly powers by order to amend Schedule 3 by adding or removing the listed authorities. However, absolutely correctly, one restriction is placed on that competence in Clause 28(1), which provides that the Assembly cannot remove itself from the jurisdiction of the ombudsman. I am sure that we would all agree that that should not be a possibility.
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In Clause 41 the Assembly will have the power to modify the application of the Bill in respect of complaints against former family health service providers and others listed in that provision. That very useful and additional competence will be bestowed upon the Assembly. There is a sort of "catch-all" clause in Clause 42 which empowers the Assembly to amend, repeal or revoke any enactment that is consequential upon the Bill.
So, if one looks through the structure of the Bill and applies my Richard test of whether the framework of the legislation offers the Assembly the opportunity to expand its competencies, I find generally that the Bill passes that test.
Some discussion took place within the Richard commission about this matter. Parliament has traditionally been squeamish, and rightly soand as a long-standing parliamentarian, I share that viewabout passing legislation giving sweeping powers of secondary legislation to the Executive. Rightly, both Houses have jealously tried to guard against that. That does not apply in today's post-devolution system, and the Bill allows the Assembly to amend the legislation further if, in the light of experience, it feels it needs to do so.
The power will not be given to the Executive but to a democratically elected National Assembly. The provisions have very elaborate procedures for scrutiny of secondary legislation, which in my view provide sufficient safeguards. There is power, for example, to amend statutory instruments, which the House of Commons does not. So I think that Parliament's traditional squeamishness in granting these wider powers of secondary legislation does not apply.
However, there is one aspect of the Bill which I hope my noble friend will look at. We are bestowing competencies on the Assembly to amend or alter the ombudsman's powers at some subsequent stage or to remove or add to the list of authorities that he can investigate. I think that the ombudsman's agreement should be obtained before exercising such a power. I do not see such a provision in the Bill.
In other words, if, for example, the Assembly comes forward at a future date with a proposal to alter or amend the listed authorities, surely that should be after consultation with and the agreement of the ombudsman. He or she should be a party to any such proposal. I see a reference to people having to be consulted. I believe that there should be specific provision after consultation to obtain agreement from the ombudsman if one intends to amend or alter his powers. I cannot see that on the face of the Bill. Therefore, I ask the Minister to think about that as a possible amendment.
I have another area for possible amendment. The Secretary of State has the right to appoint the ombudsman but he has to consult the National Assembly if the ombudsman is dismissed. In the Bill at present the Secretary of State does not have to consult the National Assembly on the appointment of the ombudsman. That is a rather curious anomaly. If one has to consult the National Assembly on dismissing the person concerned, surely there should be a provision for consulting the Assembly on the appointment itself.
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The noble Lord who has just spoken made a reference to how that appointment should be made. That area should be explored. However the appointment is made, I think that there should be a process of consultation between the Assembly and the Secretary of State, albeit that the Assembly itself is going to be subject to the ombudsman's jurisdiction.
Therefore, I very much welcome the Bill. I think that it is part and parcel of a further development in the evolution of the legislative partnership. We have already seen precedents within this Parliament for framework legislation. The health legislation that came before both Houses two or three years ago was framework legislation that has given the Assembly considerable legislative competence. The Education Acts since devolution also expand the legislative competence of the National Assembly. This Bill will also do so. I therefore warmly welcome it.
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