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House adjourned at eight minutes past 10 o'clock.
Official Report of the Grand Committee on the
Public Services Ombudsman (Wales) Bill [HL]
Tuesday, 25 January 2005.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before I put the question that the Title be postponed, I remind your Lordships of two points of procedure. Noble Lords will speak standing and the House has agreed that there shall be no Divisions in the Grand Committee. Therefore, unless an amendment is likely to be agreed to, it should be withdrawn. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Schedule 1 [Public Services Ombudsman for Wales: appointment etc.]:
Lord Roberts of Conwy moved Amendment No. 1:
The noble Lord said: Perhaps I may say at the beginning that, although there are a great many amendments in my name, for the most part they are probing. I may forget to say so on occasion, but that will become quite clear. However, we take a minority of the amendments very seriously.
The purpose of this first amendment is to ensure that the views of the National Assembly are taken into account before the ombudsman appointment is made. We note that he cannot be removed from office without such consultation and it seems rather inconsistent that there should be consultation at the end but not at the beginning.
We are all familiar with the argument that the ombudsman must be independent and therefore a Crown appointment in the usual way—by recommendation by the Secretary of State to Her Majesty the Queen. It is particularly important that he or she should be independent of those bodies who are subject to his or her investigation in the event of a complaint against them. Those bodies include the National Assembly. It, too, is a corporate body under the Government of Wales Act 1998 and responsible for all activities carried out in its name by the Assembly Government. Most of us now think that that is not altogether satisfactory and that the Government of Wales Act should be changed to allow more separation between the Government and the Assembly, but this is neither the time nor the place to pursue that line of
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argument for reform of the devolutionary settlement—except to say that, in practice, some separation occurs now.
In his reply, I expect that the Minister will say that the Secretary of State will take soundings and consult informally with the Assembly before the ombudsman appointment is made. It is important that he should do so, because the ombudsman is financially dependent on the Assembly and cannot perform his functions satisfactorily without the full backing of the Assembly. Both must therefore tread carefully and respect each other's functional independence, even though that may result in mutual criticism from time to time. To achieve a proper relationship based on mutual understanding, the Assembly must have some say, but perhaps not the final say, in the ombudsman's appointment.
Consultation is provided for in the Education Bill before the appointment of the Chief Inspector of Schools, also a Crown appointment, and indeed of Her Majesty's Inspectors. I draw the Committee's attention to Clause 18 of the Education Bill, particularly subsection (6), which states:
"If the Assembly considers that any of the powers conferred by subsection (1), (2) and (4)(c) ought to be exercised, the Assembly must advise the Secretary of State on any recommendation to be made to Her Majesty as to the exercise of the power".
The various subsections to which I have referred relate to the appointment of inspectors to the Office of Her Majesty's Chief Inspector of Education and Training in Wales and the removal from office by Her Majesty on the grounds of incapacity or misconduct.
The Education Bill proposes that the Assembly should advise the Secretary of State before he makes a Crown appointment. It is a good way around the difficulty of enabling the Assembly to advise the Secretary of State before an appointment is made—that is tantamount to consultation. I beg to move.
Lord Rowlands: Amendment No. 2, tabled in my name, has the same purpose as the amendment tabled by the noble Lord, Lord Roberts. One could make a reasonable case for saying that the National Assembly for Wales should not play any role in either appointment or removal. The comparison that the noble Lord, Lord Roberts, made with the chief inspector of Estyn is slightly different. The National Assembly for Wales, after all, will be subject to the jurisdiction of the ombudsman. The case could be made for not involving the Assembly in either appointment or removal because there is a potential conflict of interest. The Assembly might like somebody more compliant, or it might prefer one particular kind of person. It might be fanciful to suggest it but nevertheless that possibility arises if one involves the Assembly in such an appointment. I am puzzled about why the Bill allows the National Assembly a consultation role in dismissal or removal but not in appointment. Like the noble Lord, Lord Roberts, I am puzzled about why that distinction is made.
If an ombudsman was threatened with removal for misbehaviour or misconduct, as a result of a particularly contentious or controversial situation in which the National Assembly had been embroiled,
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there is almost a case for arguing that in some respects the Assembly's role in removal would be even weaker than its role in appointment. I await with considerable interest my noble friend's explanation of why there is no formal consultation role for the National Assembly in the appointment but there is in the case of removal, when in some situations an ombudsman's removal could result from a situation in which the National Assembly was already embroiled.
Lord Livsey of Talgarth: I agree very much with the remarks of the noble Lord, Lord Roberts, and especially with those of the noble Lord, Lord Rowlands, on the Assembly's involvement. I see the distinction between the two amendments as follows. Whereas Amendment No. 1 addresses the question of whether consultation with the Assembly should occur afterwards by the Secretary of State, Amendment No. 2 provides that consultation with the Assembly should occur before the recommendations are made. I prefer Amendment No. 2 because there must be discussion with the Assembly before a decision is made on the appointment. That is important.
When the noble Lord, Lord Roberts, spoke to Amendment No. 1 in relation to the Education Bill, I noted that he mentioned that there had been consultation as regards the Education Bill. It is a fine point, but I would prefer that the Assembly is consulted before the appointment rather than afterwards. As I see it, that is the crux of the difference between the two amendments. However, both are correct in their approach because there is no doubt that the ombudsman needs to be entirely independent in his role as the protector of the citizens of Wales in relation to the legislature. Some recent appointments have been controversial, and I shall refer to them when we reach later amendments.
Lord Evans of Temple Guiting: As drafted, the Bill provides that the Assembly should be consulted before the Secretary of State recommends that an ombudsman be relieved or removed from office but, as we have heard, it does not provide that the Assembly either be consulted on or approve the appointment in the first place. That said, the Assembly has in fact been consulted on ombudsman appointments made since 1999. The Secretary of State has consulted the First Minister who, in turn, consulted party leaders in the Assembly.
Given that practice, and on hearing the arguments made by noble Lords, I accept the principle that the Assembly should be consulted both before and after the appointment, and that the requirement should appear in the Bill. I shall therefore bring forward an amendment on Report. With those words, I hope that the noble Lord will withdraw his amendment.
Lord Roberts of Conwy: We are most grateful to the Minister for that reply, which certainly takes on board both the amendment moved by myself and that tabled in the name of the noble Lord, Lord Rowlands. I do not agree with the noble Lord, Lord Livsey, that there is a great deal of difference between them. I certainly
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meant to provide for prior consultation with the Assembly, although I did not actually manage to get the word "prior" into my amendment.
As I said, I am sure that we are all most grateful to the Minister for his favourable response. We look forward to seeing the government amendment on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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