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Lord Prys-Davies: The noble Lord, Lord Roberts, has raised an important question arising from my noble friend's presentation of the amendment. Does it in fact mean that, henceforth, clinical judgments can be questioned by the ombudsman?
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6 p.m.
Lord Evans of Temple Guiting: I gather that since 1993 matters relating to clinical judgments have been questioned by the ombudsman. The amendment simply takes that wider.
Lord Prys-Davies: This is really a re-enactment of a particular clause.
Lord Evans of Temple Guiting: Yes. The Bill as drafted is a re-enactment of existing legislation.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Decisions not to investigate or to discontinue investigation]:
Lord Roberts of Conwy moved Amendment No. 29:
The noble Lord said: Clause 12 relates to decisions not to investigate or to discontinue an investigation and the ombudsman's duty to prepare a statement of his reasons and disseminate that statement to interested parties. The final subsection of the clause—subsection (9), which is the subject of this probing amendment—requires him to send a copy to the Assembly First Secretary. A similar requirement is imposed in Clause 16(9)—the clause that deals with reports of investigations—and in subsection (10) of Clause 20, which deals with the alternative procedure available to the ombudsman. My Amendment No. 39 deals with the last procedure, and I shall say a word about it in a moment.
Is the submission of such statements and reports to the First Secretary instead of the Assembly per se simply a convenient means of ensuring delivery to a focal point in the Assembly set-up and ensuring that the First Minister at least knows what is happening? Any Assembly Member can request a copy of the ombudsman's statement or report under Clause 16, but it may well be that the matter dealt with will not be of sufficient interest for such a request to be made. Nevertheless, there is an obligation on the ombudsman to send a copy to the First Minister so that he can answer any question that may arise. Is that the thinking behind this subsection?
I think that much the same relates to Amendment No. 39. As I said, Clause 20 deals with the alternative procedure available to the ombudsman, and subsection (10) deals with his report on it, which goes to the Assembly First Secretary rather than to the Assembly under subsections (4) or (6).
It is not absolutely clear to me under what circumstances this subsection would apply. Under subsection (4), the ombudsman must send a copy of his report to the complainant and the listed authority but not necessarily to other persons—that is optional. Similarly, subsection (6) is optional. Therefore, subsection (10) implies that if the ombudsman does not consider that he should make a copy of his report generally available, he must nevertheless send a copy to the First Minister for information, I imagine, or in
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the event of questions arising after a complaint. I should be grateful for the Minister's comments on these probing amendments. I beg to move.
Lord Prys-Davies: I support subsection (9). I should have thought it was particularly important for the attention of the First Secretary to be drawn to the ombudsman's decision. We heard earlier at a meeting how the noble Lord, Lord Roberts of Conwy, and others had considered it essential to draw the attention of the First Secretary to the difficulties we were experiencing in obtaining documents from the Welsh Assembly. Therefore, I think that in this case it is important that at least one person at the Assembly receives notification of the ombudsman's decision.
Lord Evans of Temple Guiting: The purpose of Clause 12 is to ensure that, where the ombudsman decides not to investigate a complaint or decides to discontinue an investigation, he sets out his reasons for doing so and makes any such decision and reasons known to the appropriate parties. In the case of the Assembly, Clause 12(9) makes it clear that such a statement that is to be sent to the Assembly—for example, because the Assembly is the listed authority concerned—must be sent to the Assembly's First Minister. The noble Lord's amendment would omit that subsection from Clause 12.
Similarly, the purpose of Clause 20(10) is to ensure that, where the ombudsman prepares a report under that clause and intends to send it to the Assembly—for example, because it is the listed authority concerned—the report must be sent to the Assembly's First Minister. The noble Lord's amendment would omit that requirement from Clause 20.
Members of the Committee may be wondering why the Government have considered it necessary to make such specific provision in the Bill. The reason is that, as currently constituted, the Assembly contains both legislative and executive components in a single corporate body. This subsection seeks to prevent any confusion arising from that dual nature.
An ill-advised ombudsman might send the statement to the Assembly's presiding officer, representing the Assembly's legislative aspect, rather than to the First Minister, who is responsible for the discharge of executive functions and should properly receive it. That is consistent with provisions elsewhere in the Bill—for example, in Clause 16(9)—requiring reports of investigations of complaints against the Assembly to be sent to the First Minister. The Assembly's standing orders then make robust provision for considering ombudsman reports where an investigation upholds or criticises the Assembly government. The relevant Assembly Subject Committee considers the First Minister's proposed response to such reports and has an opportunity to comment on and inform that response.
The effect of the amendments would, however, be to leave the Bill silent on to whom the ombudsman should send a statement setting out his reasons for deciding not to investigate a complaint or discontinue an investigation or a report under the alternative
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reporting procedure. It would mean that the handling of such statements and reports would have to be left to administrative arrangements. In the Government's view, that would be an insecure foundation for the ombudsman's relationship with the Assembly. On the basis of that explanation, I invite the noble Lord to withdraw the amendment.
Lord Roberts of Conwy: I am very grateful to the Minister for his elucidation and his answer to these probing amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Investigation procedure]:
Lord Roberts of Conwy moved Amendment No. 30:
The noble Lord said: I should perhaps mention that there is an error in the amendment in that the words "within a reasonable time" would be better placed after the word "comment" rather than after "opportunity".
Clause 13 deals with the ombudsman's investigation procedure, and the amendments proposed are designed to ensure that those who are given an opportunity to comment do so in reasonable time and that there is no unreasonable delay.
Members of the Committee will be aware that aggrieved persons are particularly time-sensitive and wish their complaints to be dealt with as fast as possible. Any tendency for investigations to drag on interminably is anathema to them, and understandably so.
At the same time, we must recognise that those complained against must, in all fairness, have sufficient opportunity to prepare their case fully and as best as they can. But there must be no intentional delays or postponement on their part. That would be an abuse of procedure and, alas, there have been instances of it in the past. The amendments would enable the ombudsman, in giving the opportunity to comment, to indicate when he expected to receive such comments. I beg to move.
Lord Evans of Temple Guiting: I think that the intention behind the amendment is to require the ombudsman to give the listed authority a reasonable opportunity to comment on the allegations contained in the complaint. If that is the intention, with respect, I do not think that the amendment has that effect.
The amendment would require the ombudsman to give the listed authority the opportunity to comment, within a reasonable time, on allegations contained in the complaint. An amendment having that effect is unnecessary because the ombudsman will always pursue a complaint as expeditiously as possible.
As Clause 13 is currently drafted, there is no express reference to the time within which the listed authority, or any other person alleged in the complaint to have taken the action complained of, must respond to the
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ombudsman and comment on the allegations made in the complaint. That is because the ombudsman is already required by the public law requirement of fairness to give the listed authority, and any person alleged to have taken that action, a reasonable opportunity to comment on the allegations. Therefore, it was not considered necessary to include in the Bill an express provision to that effect. I hope that the noble Lord finds my explanation persuasive and that he will withdraw his amendment.
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