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Lord Roberts of Conwy: I am grateful to the Minister for his very helpful reply. With the assurance that he has given us, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Special reports relating to the Assembly]:
Clause 24 [Consultation and co-operation with other ombudsmen]:
Lord Roberts of Conwy moved Amendment No. 41:
The noble Lord said: Subsection (6) prohibits joint investigation, joint reporting and publishing with the Scottish Public Service Ombudsman. The simple question is: why, when such joint activity is possible with all the other ombudsmen listed in subsection (7)? I beg to move.
Lord Prys-Davies: It is a very fair question, because the Wales Office's memorandum to the Select Committee on Delegated Powers and Regulatory Reform explains all the provisions of Clause 24 apart from subsection (6).
Lord Evans of Temple Guiting: Officials of the Wales Office have had detailed discussions with their counterparts at the Scottish Executive on the application of the provisions of this clause to the Scottish Public Services Ombudsman. The arrangement already in place between the Scottish Public Services Ombudsman and other ombudsmen relies on consultation and co-operation rather than joint working.
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In practice, we agree, it is highly unlikely that circumstances will arise necessitating joint working between the Welsh and Scottish Public Services Ombudsmen, whereas joint working between the Welsh and English ombudsmen could be quite easily envisaged, for example, on a health services matter.
It is consistent with this approach for the arrangement between the Public Services Ombudsman for Wales and the Scottish Public Services Ombudsman to rely on consultation and co-operation. As such, we have agreed with the Scottish Executive to disapply subsection (5) in respect of the Scottish Public Services Ombudsman. So there is no specific power to work or to report jointly with the Scottish ombudsman. Conversely, such provision is made in respect of the English ombudsmen.
In the light of that explanation which, I put to the Committee, reflects the reality of the situation, I invite the noble Lord, Lord Roberts of Conwy, to withdraw his amendment.
Lord Roberts of Conwy: At least we have had an explanation of this somewhat mystifying subsection. For the time being we shall certainly rest with it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [Disclosure prejudicial to safety of State or contrary to public interest]:
Lord Roberts of Conwy moved Amendment No. 42:
The noble Lord said: In most of the Bill the decision as to what is or is not in the public interest is for the ombudsman. For the first time we have a reference to a Minister of the Crown and his ability to give notice to the ombudsman that the disclosure of a document or information may be contrary to the public interest.
I have no objection to a Minister giving notice that disclosure of certain information may be prejudicial to the safety of the state, which is also mentioned. That is entirely and quite properly a matter for Ministers. Further, the occasions when the ombudsman will have information which may affect the safety of the state will be minimal.
However, information of public interest is a broader and more extensive sphere altogether. The question of whether to disclose arises on more than one occasion in the Bill. It is a matter for the ombudsman to decide every time, except here. Under this clause a Minister may step in and give notice that disclosure of certain information is against the public interest. The ombudsman is immediately relieved of his responsibility for deciding the issue.
It is not unknown to Members of the Committee for such power to issue notices to be abused by Ministers from time to time, and it may be particularly tempting to do so in matters where the Government and the
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ombudsman are involved and Ministers wish to avoid public criticism. Slapping on a notice may seem to be the easy answer. It seldom is because eventually the truth will out.
I think that the Bill would be much improved by the acceptance of my amendment and the omission of this potentially corruptive power. I beg to move.
Lord Rowlands: I rise briefly to ask the Minister how this fits with the Freedom of Information Act. Presumably, a person could seek to obtain any of these documents under that Act. Would the procedure then follow?
Lord Evans of Temple Guiting: Clause 26 makes provision for those cases where the ombudsman, in the course of carrying out an investigation, becomes aware of information or documents that would be prejudicial to the safety of the state or contrary to the public interest if it were disclosed to other persons or for any other purpose. In such cases, a Minister of the Crown can specify that information or those documents in a notice to the ombudsman under this clause.
The ombudsman and those working for or assisting him will then not be authorised or required under the Bill to disclose the specified information or documents even if, otherwise, the ombudsman would have had the power to do so.
The effect of the noble Lord's amendment would be to take away the option for a Minister of the Crown to specify in a notice under this clause that the disclosure of a document or information for the purposes of the ombudsman's functions would be contrary to the public interest. The Minister would only rarely feel it necessary to issue a notice stating that the disclosure of a document or information would be contrary to the public interest.
However, the Bill confers wide powers on the ombudsman to obtain relevant information, documents and evidence for the purposes of an investigation. In the Government's view, it is right that the ombudsman should have those wide powers so that he can satisfy himself whether the complaint is justified.
Also in the Government's view, it is right that this Bill should contain the power set out in this clause which replicates provisions in existing ombudsmen legislation. It is right because the ombudsman and his staff should not be entitled to disclose information or documents under the Bill where to do so would prejudice the safety of the state or would otherwise be contrary to the public interest. I stress the word "would" because that makes it clear that the intention is that the test is not whether disclosure "may" or "could" have that effect, or even that it "would be likely" to have that effect; the test is intended to be whether disclosure "would" have that effect.
I take, for example, a situation which involves the Assembly's functions, discharged through the Care Standards Inspectorate for Wales, of inspecting and regulating registered care settings in Wales, such as nursery care. A complaint may be made to the ombudsman about the manner in which the inspectorate has conducted an inspection. The ombudsman might, in
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the course of his investigation and in the exercise of his powers to obtain information and documents, gain access to sensitive information. It might be that the inspection had been initiated as a result of a confidential tip-off that young children in the nursery were at serious risk of physical or sexual abuse by a particular person employed in the nursery.
That matter could still be under active police investigation at the same time as the ombudsman is investigating the allegation of maladministration or service failure. The disclosure by the ombudsman or by his staff of such information, either directly or indirectly, to the person under police investigation would be contrary to the public interest. A certificate could be issued in such circumstances to prevent the disclosure of such information.
We are aware that very few such notices have been issued, for example, in relation to the Parliamentary Commissioner for Administration and the Health Service Commissioners, under equivalent powers in existing legislation. However, as I have said, we can envisage that there might exceptionally be a need for such notices even in the context of the Public Services Ombudsman for Wales. Any unreasonable use of the power to issue such notices could be challenged by judicial review.
Before I sit down, perhaps I may answer the question of my noble friend Lord Rowlands about the Freedom of Information Act in relation to Clause 22. The clause would not prevent the ombudsman disclosing information requested under the Freedom of Information Act 2000, if the ombudsman is required to disclose it under the Act. I invite the noble Lord, Lord Roberts of Conwy, to withdraw his amendment.
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