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Lord Livsey of Talgarth: I should like to support both what the noble Lord, Lord Roberts, has said and what the noble Lord, Lord Prys-Davies, has said. I think that this provision could limit access to the ombudsman, and that is a very serious matter indeed. The citizen should always be able to gain access to the ombudsman. There should be no barriers in the way of pursuing that access.
Lord Evans of Temple Guiting: Perhaps I should say at the outset that the Government cannot accept Amendments Nos. 16, 17 and 18. We do not believe that these amendments would improve the Bill. Indeed, we believe that they would introduce an element of uncertainty where it is very important that
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none should exist. The words "but only if" put beyond doubt that a complaint can be considered by the ombudsman only if it is duly made or duly referred—in other words, only if the requirements of Clause 2(2) or Clause 2(3) are met. The ombudsman has wide powers that are engaged only when a complaint is "duly made" or "duly referred" to him.
It is therefore important to know beyond doubt in what circumstances a complaint is considered to be duly made or duly referred to the ombudsman. The effect of the noble Lord's amendments would be to open up the possibility of a challenge about when a complaint has been duly made or referred to the ombudsman. That is the sort of argument on a purely procedural issue that we should not encourage. It is a small risk, but a risk none the less.
I turn specifically to Amendment No. 18. The purpose of the clause to which this amendment relates is to give the ombudsman a wide discretion to decide whether to begin, continue or discontinue an investigation, but only where he is entitled to investigate that matter. The ombudsman could not initiate an investigation of a matter unless a complaint about that matter has been duly made or duly referred to him. That is the effect of Clauses 2(1) and 2(5).
It is inherent in the Bill that the ombudsman can act only in accordance with the legislation that governs his office. To do otherwise would be a folly, opening up his decisions to judicial review with any consequential loss of faith in the ombudsman service by members of the public and/or listed authorities. For those reasons we believe that this amendment is unnecessary.
My noble friend Lord Prys-Davies asked what will happen if a listed authority takes unreasonably longer than a year to deal with a complaint made to it. In those circumstances, the aggrieved person can complain directly to the ombudsman, who would be able and likely to disapply the normal one-year time limit. It would, of course, be a matter for the ombudsman in each case.
In the light of that explanation, I hope that noble Lords will not press these amendments.
Lord Roberts of Conwy: I was trying to make the point that the phrase "but only if" frightens people off; it is a forbidding injunction. One is tempted to ask what the words in brackets add to the statement. So far as I can see, they add nothing. The Bill is very clear about what is a "duly made" complaint: it is defined in paragraphs (a) and (b) of subsection (2). A "duly referred" complaint is defined in subsection (3), which states:
and sets the conditions out in paragraphs (a) and (b). Why should we provide that the complaint is "duly referred" to the ombudsman "if (but only if)"? Not only does it seem superfluous but members of the
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public reading the legislation would find it rather forbidding. It would make no difference to the content of the subsections if those words were left out.
Amendment No. 18 relates to subsection (5), which provides:
One accepts that, but does it really have to be included in the Bill? It seems a totally unhelpful attitude towards an aggrieved person who may wish to complain. However, I have heard the Minister's view, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17 and 18 not moved.]
Clause 3 [Alternative resolution of complaints]:
Lord Roberts of Conwy moved Amendment No. 19:
The noble Lord said: Clause 3 will be helpful to an aggrieved person, but why must an action be taken in private? Surely there is room for discretion. Why should the ombudsman always have to hide his light under a bushel? It has been said that the danger with hiding your light under a bushel is that you never know when it has gone out. Of course there will be circumstances where the ombudsman must act in private but there will be other occasions when such action in private will be difficult and the certainty of privacy almost impossible to guarantee.
Let us take, for example, a person with a legitimate grievance against a local authority that the authority readily accepts as an error. The ombudsman may not be able to tell the aggrieved person in so many words because he cannot guarantee that the knowledge he imparts will not become public, in which case the aggrieved person will never know what really went on and how his complaint was settled. The ombudsman should have some discretion in these matters. Therefore, I propose to substitute "may" for "must". I beg to move.
Lord Evans of Temple Guiting: It is a well established tradition of ombudsmen in the UK that any action taken by an ombudsman in relation to the investigation of a complaint is taken in private. That relates to the formal investigation of a complaint under Clause 13.
The noble Lord will see that Clause 13(2) makes the necessary provision for investigations to be in private. But it should also apply, in the Government's view, to the more informal methods of resolving a dispute, through discussion and negotiation. We do not believe that those more informal mechanisms will be as effective if the possibility arises that they might be pursued in public.
The amendment would also introduce an inconsistency between formal and informal dealings with complaints, which the Government believe could not be justified. It might also serve to undermine the effectiveness of the informal mechanisms for resolving
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disputes, which, we believe, are a very welcome innovation in the Bill. For those reasons, I invite the noble Lord to withdraw his amendment.
Lord Roberts of Conwy: I am still mystified by the requirement that the ombudsman takes the action in private. How can he guarantee that it will remain private? Others such as the complainant and whoever he has complained against will be involved. Knowledge of the outcome may seep out to the press and the public. Although I am prepared to withdraw the amendment for the time being, I commend my remarks for further consideration by the Minister.
Amendment, by leave, withdrawn.
Clause 5 [Requirements: complaints made to the Ombudsman]:
Lord Roberts of Conwy moved Amendment No. 20:
The noble Lord said: I am not sure whether e-mail counts as writing in law. For the sake of clarity, the amendment seeks to include such communication on the face of the Bill. These days, most professional people—lawyers, doctors and so on—use e-mails to communicate. I believe that such communications have some legal validity. The same question arises over the writing requirement in Clause 6(1)(c). I should be grateful if the noble Lord would remove any lingering doubt about the efficacy and validity of such communications by e-mail. I beg to move.
Lord Evans of Temple Guiting: The Government sympathise entirely with the spirit of the amendment but believe it to be unnecessary. A complaint "made in writing" includes those written by hand and submitted by conventional methods—the Royal Mail—and those made by electronic means and submitted via electronic mediums such as e-mail or facsimile. It would indeed be an anomaly to prevent the ombudsman considering a complaint submitted by e-mail, but we are satisfied that that is not the effect of the Bill.
In any event, I remind the noble Lord that the ombudsman has discretion under Clause 2(4) to dispense with a requirement for a complaint to be made in writing if in the circumstances of the case it would be reasonable to do so. Members of the Committee will remember that the issue arose at Second Reading, when it was pointed out that there might be disabled people who are unable to write. I hope that I made it clear then that the ombudsman could still consider their representations.
In the highly unlikely event of a court holding that writing excludes e-mail, the ombudsman could still accept e-mail complaints through use of the discretion in Clause 2(4). So we are entirely in agreement with the noble Lord about allowing complaints to be submitted by e-mail but we do not need this amendment to achieve that. In the light of that, I would be very grateful if the noble Lord would withdraw his amendment.
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