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Lord Prys-Davies: I am very grateful that the noble Lord, Lord Roberts of Conwy, has scrutinised the three-week period in Clauses 17 and 18. I note the
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Minister's point that there is good precedent for it. What would be the position if a bank holiday fell within the prescribed period—for example, Christmas and the New Year, or Good Friday and Easter Monday? Is the three-week period adjusted to take account of bank holidays?
Lord Evans of Temple Guiting: I am advised that bank holidays do not count but, as there seems to be slight uncertainty, I shall check the matter and write to my noble friend. I am sure that public holidays are excluded.
Lord Roberts of Conwy: I am grateful to the Minister for his comments. But, in reply to what I said about my first two amendments, he said that, of course, the three-week period in which the report has to be publicly available at the listed authority's office will not begin until the date specified in the press advertisement. Where is that stated in the Bill? I have seen nothing by way of specific reference to that description of the time.
Lord Evans of Temple Guiting: I am advised that Clause 17(4)(a) will give the noble Lord the answer.
Lord Roberts of Conwy: I am grateful to the Minister for drawing my attention to that subsection. That is extremely helpful. I still feel that a three-week period for the report to be available locally is very short. I know that there is a Scottish precedent but there is no reason why the period should not be longer. As I have said, if the report is controversial and critical of the listed authority, the public will want time to study the press reports and the documents and to voice their views accordingly. I still think that three weeks is too short a period, but I am grateful for the assurance given.
Lord Evans of Temple Guiting: It might be helpful to the noble Lord, Lord Roberts, if I remind him that I believe I mentioned that, although a three-week period is referred to, the ombudsman could issue directions to make it a longer period if he or she so wished. There is flexibility in the Bill.
Lord Roberts of Conwy: I am grateful to the Minister. I turn to the final two amendments in the group and the period of one month given by the ombudsman to the listed authority to respond. I found that certain Members of the Committee were nodding approval when I said that a month was a short time to a local authority. My guess is that the pleas for an extension of time will be unending. Perhaps the noble Lord, in his informative way, can tell the Committee whether there have been complaints in the past about any brevity of time in which to respond.
Lord Evans of Temple Guiting: There have been no complaints.
Lord Roberts of Conwy: I am surprised to hear that. On the assumption that things are better than I anticipated, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 18 [Publicising reports: health care providers]:
Clause 19 [Action following receipt of a report]:
[Amendments Nos. 35 and 36 not moved.]
Lord Roberts of Conwy moved Amendment No. 37:
"NON-ACTION FOLLOWING RECEIPT OF A REPORT
(1) If the Ombudsman is satisfied that the condition in subsection (2) is met in relation to a listed authority, he may issue a certificate to that effect to the High Court.
(2) The condition is that the listed authority has wilfully disregarded his report without lawful excuse."
The noble Lord said: In moving Amendment No. 37, I shall speak also to Amendments Nos. 40 and 48. It is fair to say that we have all been concerned about the possibility that a listed authority might choose to defy the ombudsman and wilfully disregard his report without lawful excuse. This new clause provides that, in that event, the ombudsman may have recourse to the High Court.
We have been assured that there has been no such case of defiance over the past five years and that it is now the practice for authorities to accept the ombudsman's recommendations and act accordingly. There have been cases in the distant past when authorities have not been so accommodating and it is conceivable that such cases might arise in future. As the Bill stands, the ombudsman has no sanction against a totally recalcitrant listed authority.
The amendment provides that if the Assembly is unhappy with the ombudsman's recommendations in a special report in respect of itself, the matter can be resolved by a resolution laid before the Assembly. Such a resolution, if affirmed, would oblige the Assembly to act. But Clause 23, which spells out the procedure, is limited to special reports relating to the Assembly. It does not cover all listed authorities, some of which may be tempted to take a firmly independent line. That is why I believe that the ombudsman should, as a last resort, be able to seek the view of the High Court and the sanctions available to it.
I stress that that would be a last resort, but nevertheless, it should be available in case the need arises. Without it, the ombudsman is left powerless in an extreme case where his recommendations are rejected and an authority goes to extreme lengths to avoid implementing them.
Amendment No. 40 refers to Clause 23, which in turn refers to the special reports that relate to the Assembly and the steps to ensure that the Assembly respects the recommendations contained in them. It is, of course, very important that the Assembly does so; if the Assembly does not respect the ombudsman's recommendations, it is unlikely that other listed bodies will respect them.
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Unless the Assembly takes action or proposes to take action that is satisfactory to the ombudsman, the First Minister has to give the Assembly notice of his intention to move that the Assembly resolve to approve the recommendations in the report. Subsection (3) seeks to ensure that there can be no undue delay in moving such a Motion.
My amendment seeks to buttress the procedure further by ensuring that the recommendations are not amended in the Motion itself. They are thus guaranteed the Assembly Government's support. I would not presume to seek to prevent the Assembly itself amending the Motion; it may have a valid reason or cause to do so. But the initial thrust of all this must be to support the ombudsman's recommendations. I am anxious that integrity should be preserved as regards the Motion laid before the Assembly.
Amendment No. 48 refers to the compensation clause. I believe we are all agreed that that is very important, especially from the standpoint of the aggrieved person. As drafted, Clause 33 is curious in that the power of a listed body to make payment is optional and almost ex gratia. It appears to be dissociated from the ombudsman's investigation as far as possible and independent of him. As described, the power has the disadvantage of appearing as an attempt to buy off the complainant and, incidentally, a possible investigation.
I can well understand the thinking behind it and the anxiety to make the listed body entirely responsible for its own actions, especially in the financial area. But, as my amendment suggests, the ombudsman has the power to make a recommendation of a compensatory nature, so surely, in that event, there must be an obligation on the listed body to carry it out. Its decision to do so would still be its own responsibility. It can refuse, in which case the aggrieved person can, and probably will, resort to legal proceedings with the knowledge that he has the ombudsman's recommendation behind him. I beg to move.
Lord Prys-Davies: I support the thrust of Amendments Nos. 37 and 48. The Bill does not contain an enforcement procedure if the listed body fails to implement the ombudsman's recommendations. It seems to me that a clause giving the ombudsman the right, ultimately, to trigger court proceedings for non-compliance could clearly play a useful role in bringing about the necessary improvements. That could have a salutary effect. So the amendment is valuable for that element alone, but the strongest argument for the amendment—of course, they are not in competition—is that it would improve accessibility to justice for the aggrieved party. It would give access to relief without having to commence litigation, which can be costly, and without facing the delay that inevitably attends such proceedings. Delay itself can be the cause of a just complaint.
I recall that when the Assembly Minister was asked, in the Gladstone Room, why these powers were not incorporated in the Bill, the answer appeared to be because the listed bodies did not want them in the Bill.
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They were opposed to the change. That is not surprising. That is often the case when such an approach is introduced but, as in the past, they would come to terms with the new provision. It seems to me that, if that is the principal argument against the amendment, that should not be allowed to prevent the powers from being incorporated in the Bill.
I have listened carefully to what my noble friend the Minister has said in response to the amendment, but I very much hope that the Government will give further consideration to the merits that have been pointed out by the noble Lord, Lord Roberts of Conwy.
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