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Lord Roberts of Conwy moved Amendment No. 3:
The noble Lord said: This group of amendments deals with the ombudsman's term of office. A single 10-year term seems to be an exceptionally long period. My first question is this: what are the precedents for it? A number of other ombudsmen are mentioned in the Bill and I am almost certain that none of them is appointed for 10 years. A moment ago I referred in passing to the Chief Inspector of Schools, and I note that his appointment is for a term of five years.
Of course it may well be that in practice some ombudsmen have lasted that long in post and that the 10 years simply recognises what happens in reality. I do not know. Perhaps the Minister will tell us when he comes to reply. We also recognise the need to maintain the ombudsman's independence. He should be beholden to no man. Nevertheless, a 10-year term of appointment is almost a guaranteed job for life, and such longevity has its disadvantages. It does not encourage high performance.
I am sure that the more usual term of appointment is five years with the possibility of reappointment for a further five-year term, which is what I propose in my Amendment No. 3. I cannot believe that any ombudsman worth his salt would allow his judgment to be affected by the possibility that he might not be reappointed.
There is also the compromise solution of a seven-year term, which is certainly preferable to a 10-year term, but I shall wait to hear more about that amendment. I beg to move.
Baroness Gale: I wish to speak to Amendment No. 4, which, at line 16 on page 27, would leave out the word "ten" and insert the word "seven". I agree with much of what the noble Lord, Lord Roberts of Conwy, said in that a 10-year appointment is too long. At the briefing meeting that noble Lords had with Wales Office Ministers and the Welsh Assembly Minister, one of the main items of discussion was the 10-year appointment. Even at that stage, we were quite concerned about it.
Although I think we all accept the need for a fixed-term appointment and that the term should be long enough to attract the right kind of person, the nature of the work undertaken by the ombudsman makes it essential that it should be a fixed term of a reasonable length to ensure the impartiality of the appointee and to ensure that he knows there will be no opportunity for reappointment.
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I compare the terms of this appointment with that of the Children's Commissioner for Wales, who is appointed for a seven-year fixed term and is not eligible for reappointment upon expiry or earlier termination of the term of office. In a note that I received from the Library after requesting the exact terms of office of the Children's Commissioner, I was informed that he cannot be reappointed but that further provisions relating to filling the vacancy of the office of the commissioner and the commissioner's tenure of office would be made by regulations. I do not think that those regulations have yet been made and so I have no idea what they would contain. Following receipt of that note, it seems to me that the ombudsman's terms are better in that they have been set out more clearly than those of the Children's Commissioner.
I believe that the ombudsman's terms of appointment allow for an extension of the term in certain circumstances, as set out in paragraph 4(2) of Schedule 1 on page 28 of the Bill. This issue is coupled with the debate on Amendment No. 3. That paragraph states:
"A person appointed to act as the Ombudsman ('an acting Ombudsman') may have held office as the Ombudsman".
If my interpretation of that is correct, the ombudsman coming to the end of, say, a seven-year term may be eligible for reappointment for a period which is no longer than two years. I am sure that the Minister will tell me if I am not correct. Therefore, I think that some flexibility might be possible if the need arose in particular circumstances. I believe there is much support for this amendment, which suggests a seven-year appointment, and I look forward to the Minister's response.
Lord Prys-Davies: I thank the noble Lord, Lord Roberts, for his detailed examination of the Bill which led him to table the many amendments in his name.
I shall speak in support of Amendment No. 4. It seems to me that there are dangers lurking in both the 10-year term and the five-year term. The danger that I see with the 10-year term has already been mentioned by the noble Lord, Lord Roberts of Conwy. It seems to me that the ombudsman may become too reliant on his 10-year contract—possibly a little complacent—and may pay insufficient attention to the exacting demands of this top post. That could arise if someone were appointed at about the age of 50. That would almost be equivalent to an appointment for the rest of someone's life, which could harm the service.
On the issue of the five-year term—this could be bracketed with Amendment No. 6—there is a concern that a five-year term might not attract the top qualified people to the top post. The post will require top quality candidates. It seems to me that if top quality candidates cannot be attracted to apply for the post, because the term is too short, that could also harm the service. I believe that Amendment No. 4, specifying a seven-year term, should be supported.
Lord Livsey of Talgarth: I strongly support Amendment No. 4. I mention in passing that the noble
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Baroness, Lady Finlay, is unable to be present this afternoon, as she would have liked. She has added her name to Amendment No. 4 and supports it.
I am perhaps a little unusual in thinking that I am a prototype for the twenty-first century in that I have been fortunate enough to have had four separate careers in my life. In the case of an ombudsman, the tenure needs to be worthwhile, but not necessarily a tenure, as the noble Lord, Lord Prys-Davies, said, that could extend for the remainder of a person's life.
Another factor has to be taken into account. When considering a five-year tenure and a seven-year tenure, one has to consider that the Assembly is elected for four years, so a seven-year tenure would more or less cover two Assemblies. I do not believe that five years is long enough for an ombudsman to be in place, but seven years is about right.
The other amendment in the group, Amendment No. 5, states,
"In exceptional circumstances the term of office, as set in sub-paragraph (1), can be extended by one year".
That takes account of the fact that if, for some unforeseen reason, an appointment cannot be made—in the past, I have known a number of circumstances in different appointments where that has occurred—the ombudsman in situ can continue for another year while that is sorted out. That is a contingency situation. Clearly, I prefer Amendment No. 4, which would mean the ombudsman being in place for a seven-year period. No one has a divine right to a post for a period of 10 years. I do not think that that is right in this case.
We should remind ourselves that recently a couple of appointments have been made in the Assembly that have been extremely controversial. Fortunately, this is a Crown appointment and, as we decided on the previous group of amendments, the Secretary of State would approve such a matter after consultation. A seven-year period underlines the point. Seven years is about right. I strongly support the amendment.
Lord Rowlands: I support the seven-year principle. In the other place I served many years on legislation committees, but I was never on such a good listening one as this. We have already had one amendment successfully accepted in principle, which tempts us to suggest more. There is a lot of cross-party opinion against the 10-year appointment. My simple test for the length of service for an ombudsman would be: to what extent does it buttress his or her independence? Five years is too short. Five years plus renewal is also not happy. What would be the criteria for renewal? Who would do the renewing? What would be involved?
As the noble Lord, Lord Roberts, said, perhaps towards the end of the five years the ombudsman would be looking over his shoulder and wondering. If he or she wanted to be reappointed, that just might influence his or her judgments. Ten years is far too long. The seven-year period—the seven-year itch—seems to me to be very good. Therefore, I support it.
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Lord Evans of Temple Guiting: I have a very good and extensive note here that leads up to the Government's view that they have changed their mind on the 10-year period and accept the seven years as proposed in Amendment No. 4. We feel that this would strike more accurately the balance that we seek to achieve between security of tenure and opportunities to re-invigorate the office. I am delighted that support for the seven-year period seems to be fairly widely shared around the Committee. We will bring forward an amendment on Report.
Perhaps I may just say that I am not going to agree to absolutely everything. Having accepted—if, indeed, it is accepted—that seven years, as opposed to 10 years, is an appropriate term of office, it does not seem sensible to accept that the term of appointment should be extended by a further year in exceptional circumstances, as proposed in Amendment No. 5. The amendment does not specify whose judgment should determine whether a given circumstance is exceptional. Inevitably, there would be some uncertainty and the possibility of disagreement about that. Given that the Bill makes provision for an acting ombudsman to be appointed to fill any period between one ombudsman and another, the amendment is unnecessary and would be the source of considerable difficulty in practice.
Again, I have a good and interesting note on the point raised by my noble friend Lady Gale about whether the appointment can last for an extra year. I fear that the answer is no. The Bill does not allow for that and Her Majesty will appoint a new ombudsman. There is no reason for Her to appoint an acting ombudsman. It is only if the office of ombudsman falls unexpectedly vacant due to illness or death that there is scope for appointing an acting ombudsman. In that case, the former ombudsman can fill the temporary gap.
Given my explanation, I hope that the amendment will be withdrawn.
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