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Lord Roberts of Conwy moved Amendment No. 24:
The noble Lord said: Again, this is a probing amendment. I should be grateful if the Minister would remind us of instances and the context where a member of the public has a statutory right of appeal to a Minister or to the Assembly.
There is the whole area of planning law and inquiries of various kinds where a Minister or the Assembly can appoint inspectors or other persons to act in a judicial or quasi-judicial capacity. Is that what is meant by paragraph (b)?
In my experience, it is often after such inquires that problems arise, along with feelings of injustice as a result of evidence being ignored or misinterpreted. The Children's Commissioner for Wales, who has already been mentioned, has felt it necessary to re-open certain cases that many thought were closed. He has re-opened them because the complaint arose post hoc.
It may be that the ombudsman too will come under public pressure to re-examine certain matters that have been subject to an appeal to Ministers or the Assembly. Is he to be debarred from doing so? That is the point of Amendment No. 24.
In this group we are also considering Amendments Nos. 25, 26 and 27. Amendment No. 25 to Clause 10 deals with other excluded matters the ombudsman may not investigate. Schedule 2 lists them. Amendment No. 25 refers to subsection (2) which empowers the Assembly to add or remove an entry or, indeed, to change an entry in Schedule 2.
The purpose of Amendment No. 25 is to probe the circumstances under which a current entry might be changed. We can all envisage a change in legislation which might require an amendment to the wording of the schedule. Are other circumstances anticipated where a change might be required? Clearly, care has to be taken to ensure that this power is not abused and is not used as an escape hatch to avoid or stifle complaints.
Amendment No. 26 belongs to the noble Lord, Lord Rowlands. I shall listen to him with great interest. However, while I am on my feet perhaps I may comment on Amendment No. 27, which seeks to discover what aspects of education are left for the ombudsman to investigate after all these exclusions relating to teaching in our schools.
Of course, we shall be told that these are properly matters for the inspectorate of schools, which some Members of the Committee have been dealing with in the Education Bill. My attention will also be drawn, no doubt, to Clause 10(3), which does not prevent the ombudsman investigating action by a local education authority or any other listed body in operating a procedure to examine complaints or review decisions.
Education is a very important area and a fertile ground for complaints. I hope that the noble Lord will be able to tell us of the role anticipated for the
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ombudsman in education, which traditionally has been regarded as a preserve of the educational experts. Could the ombudsman, for example, examine a procedure for the appointment of teachers or head teachers—an issue which in Wales has from time to time leapt into the news in a plaintiff fashion? I beg to move.
Lord Rowlands: Before addressing Amendment No. 26, tabled in my name, I should like to make one or two observations on the amendments in the name of the noble Lord, Lord Roberts of Conwy. I consider Clauses 10 and 27 to be two of the most useful and important clauses in the Bill because they transfer legislative competence to the National Assembly potentially to amend the powers of the ombudsman, in this case either to change or alter the schedule of exclusions and, in Clause 27, to alter the listed authorities. I think that that is a useful and important transfer of legislative competence. I have been a strong supporter of building up the legislative competence of the National Assembly for Wales, and it is clear that Clauses 10 and 27 take another step forward in that direction.
I understand that the amendments of the noble Lord, Lord Roberts, are probing in nature, but the consequence of one of his amendments would be to limit the competence of the National Assembly to alter or amend in respect of Schedule 2, covering excluded matters. I am a little puzzled because the powers proposed in Clauses 10 and 27 were reviewed by our own Select Committee on Delegated Powers and Regulatory Reform. On Clause 10(2), which the noble Lord, Lord Roberts, seeks to amend, at paragraph 34 the committee concluded that:
"It is considered that this power of delegated legislation is reasonable. It will provide desirable flexibility as the matters which should be excluded from investigation by the PSOW may need to change over time as the ways in which services delivered to [the] public in Wales alter".
The committee has endorsed this useful additional order-making power for the Assembly.
Turning to Amendment No. 26, tabled in my name, I find it impossible to believe that the National Assembly would seek to exercise the power of altering or amending Schedule 2 without consulting the ombudsman. Not only would it consult him, it would seek his agreement. After all, if the Assembly proceeds to alter the schedule, that would affect the operation of the ombudsman in a very direct and immediate way, placing either extra responsibilities on him to further investigate or taking away some of that investigative responsibility. Therefore it would be incumbent on the National Assembly not only to consult with, but also probably to seek the agreement of, the ombudsman before exercising its power—a power I fully support—to change or alter Schedule 2.
On looking at Schedule 2, it is hard to see what alterations would take place. I assume—although perhaps my noble friend could confirm the point—that the list in the schedule comprises a honed and well established series of exclusions. Nevertheless, situations
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could arise in the health service or in education which may lead the ombudsman himself to recommend or suggest that the schedule should be altered. That would be perfectly reasonable. Indeed, I suspect that it would be through his experience that any alterations to the schedule would be made. However, if the National Assembly wanted to proceed not by the process of heeding a recommendation from the ombudsman to alter or amend his powers, then I think that there should be an obligation for the Assembly to both consult and seek the agreement of the ombudsman before exercising its order-making power.
Clause 10 does not contain even the modest provision set out in Clause 27. In the latter clause, at least when the Assembly exercises its order-making power, it will have to
Clause 10 does not even provide for that. I do not think that that is good enough; it is not good enough even with the extra provision in Clause 27, which we shall consider in detail on a later amendment. The ombudsman is to occupy a very specific and special position. If the National Assembly changes or seeks to change his powers and jurisdiction, either by changing the exclusions or by altering the listed authorities, surely both consultation and agreement should be sought.
I hope that my noble friend will consider this point sympathetically.
Lord Prys-Davies: I support the contribution made by my noble friend Lord Rowlands. The clauses which the noble Lord, Lord Roberts of Conwy, proposes to amend will empower the Assembly to pass delegated legislation.
I am particularly grateful to the Wales Office for submitting a very helpful memorandum to the Select Committee on Delegated Powers and Regulatory Reform. Further, it is worth noting the advice of the committee that there is nothing about the delegated powers being conferred by this Bill to which it wishes to draw the attention of noble Lords. That is a valuable finding and I thought that we should be made aware of the committee's judgment.
My only question is one that I direct to my noble friend Lord Rowlands on his Amendment No. 26. In another clause the Bill provides for consultation by the Assembly, but not specifically with the ombudsman. I am not sure whether that ought to be spelt out in the Bill. However, I would be concerned if it was necessary for the Assembly to obtain the approval or agreement of the ombudsman before it could exercise its powers under Clause 10.
Lord Evans of Temple Guiting: We have come to a very interesting set of amendments, which I shall spend a little time addressing.
Subject to the ombudsman's discretion in Clause 9(2), the general approach is as follows. Where, in relation to a particular matter that is the subject of a complaint to the ombudsman, there is already provision for an appeal,
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reference or review mechanism, or a remedy by way of proceedings in a court of law, the ombudsman should not be able to intervene. That other mechanism should be used.
The purpose of Clause 9(1)(b), which Amendment No. 24 seeks to delete, is to ensure the proper use of other appeal mechanisms by ensuring that generally the ombudsman cannot tread where, for example, Parliament has laid down an appropriate appeals mechanism. The type of appeal which this clause is intended to capture concerns, for instance, planning decisions where in some cases an appeal lies to a Minister of the Crown rather than to the Assembly. I cannot see the justification for removing the general bar on the ombudsman investigating a matter that is subject to an appeal mechanism to a Minister or the Assembly.
In relation to Amendment No. 24, the noble Lord, Lord Roberts of Conwy, pointed out that often it is after an appeal of the kind referred to in Clause 9 that a person believes that he or she has suffered an injustice. The ombudsman does not provide a right of appeal. For example, where a person has a remedy by way of court proceedings, the appeal must be left to the court system. Similarly, if there is a right of appeal to a tribunal, but the tribunal interprets the law wrongly or otherwise reaches a decision that is appealable, that is a matter for the courts and tribunal system. The ombudsman is not a right of appeal.
The intention of Clause 10(2) is to give the Assembly flexibility in relation to entries in Schedule 2. As we have heard, it allows the Assembly to add, change or remove an entry in the schedule. Clause 10(2)(c) allows the Assembly to change an entry that appears for the time being in Schedule 2. The noble Lord's Amendment No. 25 suggests that subsection (2)(c) should be deleted. That would take away the Assembly's flexibility to amend the description of an excluded matter in Schedule 2.
Let us take, for example, the exclusion in paragraph 6(b) of Schedule 2, which prevents the ombudsman considering, among other things, complaints arising from the internal organisation or management of a local authority school. The Assembly might in future wish to bring such complaints within jurisdiction and could do so by order under Clause 10(2)(c), simply changing the entry to delete that part which refers to internal organisation and management and leaving the remaining provisions of paragraph 6(b) in place. The effect of the noble Lord's amendment would be to deny the Assembly that flexibility.
The Bill needs to allow the ombudsman's jurisdiction to develop to reflect new circumstances and new ideas as to what it is appropriate that he or she should investigate.
I have some sympathy with Amendment No. 26, which provides that if the Assembly wants to add, remove or change an entry in Schedule 2, it should do so only after consulting the ombudsman. As I said at Second Reading, I am happy to consider any suggestions from noble Lords that would improve the
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Bill. A requirement to consult the ombudsman in these circumstances is such a suggestion. I shall take it away for further consideration.
I am less sympathetic to the suggestion that the Assembly should be able only to add, remove or change an entry in Schedule 2 with the agreement of the ombudsman. It is the government of Wales in the form of the Assembly rather than the ombudsman which should be accountable to the public for the delivery of public services in Wales, and that includes ensuring that we have an ombudsman service that is fit for purpose. So the final decision on which matters should be within the ombudsman's jurisdiction should be for the Assembly.
While I would hope that such a situation would never arise, if it did the ombudsman could, under the provisions of paragraph 14 of Schedule 1, prepare and publish an extraordinary report with respect to his functions as he feels appropriate. He would be able to make his displeasure publicly known, which would provide a powerful inducement to the Assembly to give full and proper regard to his views. Ultimately, however, the decision on the precise scope of the jurisdiction must be for the Assembly.
Finally, I turn the attention of noble Lords to Amendment No. 27. The effect of this amendment would be to allow the ombudsman to investigate, but only in relation to those persons or bodies that are listed authorities, action relating to the giving of instruction by teachers in schools or other educational establishments that are maintained by local authorities in Wales.
The intention of paragraph 6 of Schedule 2 is to replicate the effect of paragraph 5(2) of Schedule 5 to the Local Government Act 1974 as it currently applies in the context of the jurisdiction of the Local Government Ombudsman in Wales. If the intention of this amendment is to bring within the remit the giving of instruction in such schools and other educational establishments, that would be a very significant departure from the current position and one for which the Government are not aware of any appetite, including that of those in receipt of instruction or other stakeholders. There are already other mechanisms available to deal with such matters.
Furthermore, the amendment would not have the effect that the noble Lord may have intended. The amendment would simply remove the exclusion in the context of the existing list of listed authorities in the Bill. Maintained schools and other educational establishments maintained by local authorities in Wales are not listed authorities and therefore the giving of instruction in those schools and establishments would not be directly within the remit of the ombudsman, even with this amendment.
I invite the noble Lord to withdraw his amendment. However, his bringing it forward has caused us to look again at paragraph 6 of Schedule 2. As I said previously, the intention was to replicate the effect of the equivalent restriction in Schedule 5 to the Local Government Act 1974. However, we now think that paragraph 6 of Schedule 2 has some unintended
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consequences. As currently drafted, it would apply across the board and have a limiting effect on the ombudsman's jurisdiction in the context of an investigation by the Office of Her Majesty's Chief Inspector of Education and Training in Wales. This is not something that we intended and we will consider the matter further before the Report stage.
Before I sit down, I shall answer two questions asked by the noble Lord, Lord Roberts of Conwy. Would appointment of teachers be within the jurisdiction? The short answer is no. That is because individual schools are not bodies within the jurisdiction, although local education authorities are. It is individual school governing bodies that make such appointments. In what circumstances might the Assembly use the power in Clause 10(2)(c) to change an entry in Schedule 2? The noble Lord is interested in circumstances other than legislation and I have answered that point in my speech.
Given that rather lengthy explanation—my last lengthy explanation—I hope that the noble Lord will withdraw his amendment.
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