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Lord Roberts of Conwy: As ever, I am grateful to the Minister for his comments. As I said at the outset, I think that my amendment has been badly drafted and perhaps the words "within a reasonable time" should have come after the word "comment". But, as I said, I am grateful and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Information, documents, evidence and facilities]:
Lord Evans of Temple Guiting moved Amendment No. 32:
Page 7, line 20, leave out "any person he thinks appropriate" and insert "a person he thinks is able to supply information or produce a document relevant to the investigation"
The noble Lord said: Amendment No. 32 relates to Clause 14(3). The policy intention behind that subsection is to ensure that the ombudsman will not be hampered in understanding the content of information or documents that have been provided to him because he does not have the equipment or facilities that he needs to be able to access them.
An example would be where certain information relevant to a complaint had been stored electronically, but the ombudsman did not have the appropriate computer hardware or software to be able to view or print that information. Clause 14(3) gives the ombudsman the power to obtain the relevant hardware or software, or other facilities, from an appropriate person.
Under the current draft of the clause, it is arguable that the ombudsman might have the power to require any other person, even if they had no control over the relevant information, to provide the required software or hardware. So, for example, the ombudsman might seek to require an IT company that has no connection at all with the complaint to provide the software that he requires in order to view the information.
Although the ombudsman might well be unlikely to go that far in practice, we consider that the power is too wide and that it goes beyond our policy intention. As a result, the Government are seeking to amend Clause 14(3) to restrict its application to persons from whom information or documents may be required under Clause 14(1). I beg to move.
Lord Roberts of Conwy: I wholly endorse this amendment. I agree that the original wording was too
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broad and that, indeed, it might have incorporated the wrong people. The new wording is infinitely better and more to the point.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clause 17 [Publicising reports]:
Lord Roberts of Conwy moved Amendment No. 33:
The noble Lord said: In moving Amendment No. 33, I shall speak also to Amendments Nos. 34 to 36. Amendment No. 33 refers to the period for which a listed authority which has been the subject of an investigation must make the report publicly available at its offices or on its website. Perhaps at this point I should add that this is not a probing amendment—unless the Government answer the points that I wish to make.
The Bill as it stands specifies,
That suggests to me that those who composed the Bill thought that the period was on the short side. And indeed it is. The more I think about it, the more I believe that the period should refer to months rather than weeks.
The report of an ombudsman's investigation is important. It will be featured in the local press under subsection (3), which requires a press notice to be issued within a fortnight of receipt of the report. That press report—if it appears—may give rise to local comment. If the report is critical of the listed body, that will certainly give rise to publicity and people will want to see the report for themselves rather than rely on second-hand accounts. The availability of the report locally is therefore of paramount importance.
I suggest that the Government consider this aspect again. The timing of a notice in the press within two weeks, coupled with three weeks for the availability of the report publicly in the area of the listed authority, is not right. It might mean that a person who sees the press notice has only one week to see the report locally. In my view, an availability period of three months would not be excessive.
What I have said about Clause 17 is broadly applicable to Clause 18, which deals specifically with healthcare providers. As I understand Clause 18(5), the previous clause applies with only the modifications stated. Therefore, the requirements regarding the publicising of reports by the ombudsman, including the press notice within two weeks of receiving the report, also apply.
If that is so, my criticism of the inadequacy of the three-week period for the report to be available to the public is equally valid in the case of healthcare providers. Again, I ask the Government to think again. The period of four weeks that I have suggested is an improvement but, if I may be critical of myself, it also is too brief.
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The intention behind Amendments Nos. 35 and 36, which are probing amendments, is clear. It is to elicit the Government's thinking and suggest an alternative approach. The Government want a rapid reaction to the ombudsman's report, including the action that the listed authority has taken or proposes to take and when it intends to do so. That must be done within a month, or longer if permitted by the ombudsman.
My guess is that the pleas for extra time will be the rule rather than the exception. A month is not a long time for a local authority. Local authority officers, for example, will wish elected members to approve their response, but their meetings may not fall within the month specified. As a result of the brevity of the time allowed, the nature of the response may also be tentative, kicking the issue into touch.
Therefore, to avoid an inadequately considered response and pleas for extra time, in the long run might it not be better to fix a period of two months with no exceptions or extensions permitted? If the remedial action proposed in the report is achievable in less time, such time could be specified in the report itself. I am sure that the Government have considered such an approach. I beg to move.
Lord Evans of Temple Guiting: I shall deal, first, with Amendments Nos. 33 and 34, amending Clauses 17 and 18 respectively, before turning to Amendments Nos. 35 and 36, which amend Clause 19.
The Government have given very careful consideration to the content of these clauses, which reflect the naming and shaming provisions that apply in respect of the existing Welsh ombudsman and, indeed, other British ombudsmen as well. There is a precedent for the three-week publicity period. For example, three weeks is the period specified in this respect in the Scottish Public Services Ombudsman Act 2002, which established the Scottish Public Services Ombudsman. It is also the period for which reports of the Commissioner for Local Administration in Wales must be publicised under the Local Government Act 1974.
The length of the publicity period does not seem to have created any problems in terms of the effectiveness of the naming and shaming provisions. In Wales, all recommendations of the Welsh Administration Ombudsman and Health Service Commissioner have been complied with and, since 1991, there have been only two occasions when a recommendation of the Commissioner for Local Administration has not been complied with.
The Government are satisfied that the three-week publicity period is appropriate and they are also content that the ombudsman should have some discretion to issue directions as to how authorities discharge their functions under this clause.
I turn to Amendments Nos. 35 and 36. The first of the noble Lord's amendments—Amendment No. 35—would increase the period within which the authority must notify the ombudsman of its response from one month to two months. The effect of Amendment
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No. 36 would be that the ombudsman would not have discretion to specify a longer period within which the authority would be required to notify the ombudsman of the action that it was taking in response to his report.
The noble Lord's concern appears to be whether it would be simpler and clearer to specify in the Bill a longer period for the authority to notify its response and to do away with the ombudsman's discretion to extend the period. The Government have good reasons for specifying a one-month period within which the authority must notify the ombudsman of the action that it intends to take in response to a report. There appears to be no reason why in most cases an authority should not be able to set out within one month what its response to the report will be. The authority will have known for some time that the investigation was under way and will have a good grasp of the factual background and the actions that have been investigated. It seems reasonable, therefore, to set a one-month period as the norm.
Some of the ombudsmen with whom the Public Services Ombudsman might work jointly—for example, the Parliamentary Commissioner for Administration—allow one month for authorities to notify them of their response to a report. In cases where there is a possibility of joint working and reporting, it makes sense for the Public Services Ombudsman for Wales to be able to work to the same timetable as the other ombudsmen involved. The Government also consider it reasonable to allow the ombudsman discretion to extend the period within which the listed authority must give notification of its response. In individual cases, there may be good reasons why the authority should be allowed longer to notify; for example, in the case of illness of key personnel in the authority.
It is very unlikely that the ombudsman would exercise that discretion in anything but a reasonable manner. Any decision of the ombudsman to extend the period, like any other decisions he makes in the exercise of his powers, would be subject to judicial review if he exercised his discretion in an unreasonable way. Therefore, I do not consider that the power to extend the period would be used to the detriment of the person aggrieved; it would be used only where it was reasonable to do so.
On Amendment No. 33, the noble Lord, Lord Roberts of Conwy, said that the authority has two weeks to ensure that the press publicises the report but the authority must make it available for three weeks—perhaps only one week after the press notice. The three-week period during which the listed authority must make the report publicly available begins only on the date specified in the advertisement placed in the newspaper. It would always be three weeks from notification.
I hope that my explanation satisfies the noble Lord, Lord Roberts of Conwy, and that he will be able to withdraw his amendment.
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