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Lord Roberts of Conwy: I am grateful to the noble Lord for his explanation and for the example he gave in which this particular requirement by a Minister would be necessary, knowing, as he said, that judicial review is always available in the event of abuse of the power. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [Listed authorities]:
Lord Rowlands moved Amendment No. 43:
"( ) Before making an order under subsection (2) the Assembly must consult and obtain the agreement of the Ombudsman."
The noble Lord said: It is with some trepidation that I rise to move the amendment; I fear that my good run may come to an end. On the other hand, it replicates an amendment to Clause 10. I said on Clause 10 that I was convinced by my noble friend's argument that the Assembly should not have to obtain the agreement of the ombudsman, but that he might concede that the Assembly should consult the ombudsman before
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exercising powers under Section 2. He agreed in principle on Clause 10, so I tempt him to do so for Clause 27 as well. I beg to move.
Lord Roberts of Conwy: I rise to speak to Amendments Nos. 45 and 46, but, in passing, let me say that the amendment moved by the noble Lord, Lord Rowlands, is eminently sensible.
Clause 28 deals with restrictions on the power to add to the category of listed bodies that may be subject to the ombudsman and exemptions from such a restriction in subsection (3)(c). In effect, that means that a person or body at least half of whose expenditure in Wales is met by the Assembly or other listed authorities could be added to the schedule. Amendment No. 45 would substitute, "a substantial part" for the words "at least half" to avoid the need for precise calculation and consequential argument.
We know that many private sector bodies in Wales are contracted to provide public services and thus are in receipt of substantial funds from public sources. We touched on that in our discussion on the Public Audit (Wales) Bill. As a matter of principle, private sector bodies that accept public funds must also accept the public responsibilities which accompany them and, if there are complaints of injustice or hardship from the recipients of such funds, the ombudsman should be able to investigate them. The same applies to voluntary bodies in receipt of substantial public funds. Where the Auditor General for Wales can step in, the ombudsman should also be able to investigate.
On Amendment No. 46, subsection (4) deals with those who may be added to the list of authorities to fall within the ombudsman's scope for investigation. I wonder whether the Bill has got it absolutely right. Many authorities established by or under an enactment now impose charges for their services, as well as precepts or levies. There is no danger of the private sector generally being caught by the inclusion of charges, because the subsection refers specifically to bodies established by enactment. The final amendment is probing.
Lord Livsey of Talgarth: I shall be as brief as I can, but, speaking to the lead amendment, I strongly support what the noble Lord, Lord Rowlands, has said. Clause 27(2) states:
The amendment moved by the noble Lord, Lord Rowlands, affects subsection (3). Reasonably, it asks only that the Assembly must consult and obtain the agreement of the ombudsman. That is essential in this situation and I am glad to see that that has been highlighted.
Lord Evans of Temple Guiting: The Assembly has a power by order to add, omit or change the description of a listed authority in Schedule 3. The amendment relates
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to that order-making power. The clause already provides that the Assembly must consult such persons as it thinks appropriate before making an order. The Government consider that the requirement in Clause 27(4) for the Assembly to consult such persons as it thinks appropriate will ensure that the ombudsman is consulted, as there can be no doubt that the ombudsman is an appropriate person for these purposes.
I cannot accept that the Assembly must obtain the ombudsman's agreement before making an order under the clause. It would not be acceptable for the ombudsman to have a power of veto on which bodies should be subject to his jurisdiction, nor on those that should be taken out of his jurisdiction. The decision about which bodies should be within his jurisdiction is probably one for the authority that has overall responsibility for the efficient operation of public services in Wales; namely, the Assembly.
Amendments Nos. 45 and 46 affect Clause 28, which places restrictions on the Assembly's power to make orders amending the list of authorities in Schedule 3. The amendments make changes to the descriptions of categories of authorities that can be added to the list in Schedule 3. Amendment No. 45 affects the first category, which is a body established by enactment or by the Crown, the UK government, the Assembly or other listed authority, some or all of whose members are appointed by the Crown, the UK government, the Assembly or another listed authority that is at least 50 per cent funded in respect of its functions in Wales directly by the Assembly or other listed authority.
The amendment would change that description, so that only "a substantial part" of its funding would have to come from the Assembly or another listed body. That contrasts with the present drafting, which requires "at least half" of its funding to come from one of those sources. The reference to at least half of an authority's funding being met by certain bodies is in fact a familiar formulation.
Although we have not slavishly followed precedent for the purpose of the Bill, there is merit in sticking with the formulation that states that at least half of the body's expenditure must be met by the Assembly or other listed authorities. That has the advantage of clarity. Half of the body's expenditure is an amount that is easily discerned. The interpretation of "a substantial part" of the expenditure, on the other hand, is not clear. If a dispute ever arose about the Assembly's power to add a body to the remit of the ombudsman, public money could be wasted in argument about the meaning of the words in that context.
Amendment No. 46 amends the second category of body; namely, a body established by enactment that can also issue a precept or levy. That is the type of body currently subject to the jurisdiction of the Commissioner for Local Administration in Wales. The commissioner's jurisdiction is governed by the Local Government Act 1974. Section 25(2) of that Act provides that an authority established under Act of Parliament that has power to levy a rate or issue a precept can be added to the commissioner's jurisdiction by Order in Council. The Government
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consider that it is appropriate for there to be a similar power for the Public Services Ombudsman for Wales to add bodies that can add a precept or levy.
We do not think that there is a need to give the Assembly the power to add to the ombudsman's jurisdiction bodies that can charge. A huge range of public bodies have the power to charge for certain services, if only for photocopying and information, for example. Therefore, such an amendment would give the Assembly far too wide a power to add public bodies to the ombudsman's remit. For instance, the power would be wider than the power to make an Order in Council adding authorities to the local commissioner's jurisdiction. We see no need to extend the power in that way.
I therefore cannot accept any of the amendments and I invite noble Lords not to press them.
Lord Rowlands: I knew that the run would come to an end. On the other hand, I have been convinced by my noble friend's argument that it is not right for the ombudsman to exercise a veto over the Assembly's powers to alter the listed authorities. However, I still doubt the phrase on which he rests his case, that the Assembly must "consult suitable persons". I think that the ombudsman is in a different position from any other person. The ombudsman will have to operate the proposal and therefore there is a case for identifying in the Bill the very specific obligation to consult the ombudsman rather than treat him as just another person. Perhaps my noble friend will keep an open mind about that point. It would be consistent with what he is proposing to do in Clause 10, and I hope that in that way we shall be able to keep our winning run going.
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