§ 3.49 p.m.
§ Second Reading debate resumed.
§ LORD HARLECH
My Lords, the noble and learned Lord the Lord Chancellor has guided us with very great clarity through the Bill now before us. In general, I thought he made the very best of the Bill. Perhaps that was quite natural, in that I think he feels that he has some responsibility for its parentage. To refer to some of the remarks he made earlier in his speech, it is perfectly true, of course, that there have been differences of opinion on the merits of this proposal within the Conservative Party, and apparently (although I did not know it until to-day) there have also been differences of opinion in the Liberal Party. Furthermore, it is still open to argument as to whether the establishment of a Parliamentary Commissioner will not do more harm than good.
For instance, the noble and learned Lord drew attention to the very considerable difficulties of introducing a personage of this kind to act in a country with a population of over 50 million; and I think one could point to other differences from those countries in which an Ombudsman of some sort or another has already been established. But I can say to-day that we have no opposition in principle to the establishment of a Parliamentary Commissioner. The noble 1385 and learned Lord also had some interesting things to say about Crown privilege. If I understood his views aright, I think I share them—though he had to be rather cautious how he phrased that part of his speech. My feeling is that, having driven a small wedge into this privilege in this Bill, I would hope that he will see to it that it is fairly well hammered home later on.
The noble and learned Lord gave us what I think was a very interesting account of the early history of the Ombudsmen, going back to Sweden in 1809; but I thought that he skated rather rapidly over the somewhat more chequered recent history of this particular Bill. It is true that a White Paper dealing with this subject was produced by Her Majesty's Government back in 1965, but I think I am right in saying that that particular White Paper was never debated in either House.
After last year's General Election, this particular Bill was introduced. But, even before it had been discussed in this House or in another place, the Government decided to set up the office of Parliamentary Commissioner on the assumption that Parliament would rubber-stamp their decision. This action drew a good deal of unfavourable comment at the time, including some severe criticism from the Estimates Committee, a Committee, as your Lordships know, made up of representatives of all Parties. As I understand it, the excuse for such precedure which was given at the time—and it has been the only excuse offered since—is that, if the Government had not acted as they did, there would have been a delay in setting up the Parliamentary Commissioner's Office. I must say that I find this a pretty feeble excuse. This particular proposal may or may not be the best method of protecting the citizens of this country against the excesses of bureaucracy; but the long-suffering and tolerant population of Britain has survived good and bad government in this country for several centuries, and my guess is that it could, with a calm bordering on indifference, have survived a few more months without having a Parliamentary Commissioner.
Now, at last, after having been, in my view, somewhat emasculated by the Government themselves in another place, the Bill comes here. As to its general pur- 1386 pose, I can personally see no good reason to quarrel with it. Whether it will satisfactorily achieve its purpose is, of course, another matter. It seeks to redress the balance of power between the Government and the governed in the latter's favour; and certainly no one can deny that extension of Government, and its attendant bureaucracy, has taken place on a massive scale throughout this century. It has certainly gathered pace under this particular Government, which I understand have recruited an extra 15,000 civil servants in two years and appointed a wholly unprecedented number of Ministers. There is no denying the fact that the ordinary citizen finds that his life is interfered with on a scale that must make Hampden and others turn in their graves.
I suggest, however, that the bulk of the population do not normally come much into contact with the Central Government. Far more often it is with local government, with local representatives of the National Health Service and with other forms of local officialdom. However, under this Bill all these are specifically excluded from investigation by the Parliamentary Commissioner—perhaps for good reason, as the noble and learned Lord set out. But where the shoe pinches the general public most, no alleviation is offered under this Bill.
If a local planning authority seems to have acted unfairly, this Bill will provide no redress. If there seems to have been inordinate delay in the admission of a sick person to hospital, the matter cannot be investigated under the powers in this Bill. If someone claims to have been "roughed-up" by the police, the matter cannot be investigated by the Parliamentary Commissioner. Or, to take a topical case that I read about in the newspapers only yesterday, if a couple want to put central heating in their council house at their own expense and the local housing committee refuses to let them, the chairman saying, "It is a perfectly good house without bothering with central heating", they can expect no help from the Parliamentary Commissioner. In fact, all the petty tyrannies of local officialdom which most frequently affect the lives of people are excluded from investigation under the Bill. None of this area is covered.
1387 On the other hand, the citizen can, it is true, seek redress if he feels that there has been "maladministration" by any of the Government Departments and Government bodies listed in Schedule 2 to the Bill. Schedule 2 to this Bill makes interesting—and I find, sometimes, rather comic—reading. It strikes me that it contains a good deal of padding in order to make the list look pretty impressive. For example, I do not think that many members of the general public in this country have found their lives made intolerable by a piece of maladministration in the Foreign Office or, for that matter, in the Central Office of Information. Even fewer are likely to have fallen foul of the Lord President's Office or the Public Records Office or the Stationery Office. There is, of course, the Ministry of Land and Natural Resources—and I understand that a Motion was moved in another place yesterday to abolish it. That was, of course, the Ministry set up by the Labour Government after the 1964 Election. Also on the list is the Royal Mint. I must confess that I have now lived more than half my life, but I have never had a row with the Royal Mint, nor have I met anybody in this country who has had a row with the Royal Mint. But the truth is that Schedule 2 contains a good deal of window dressing, and I think the same comment might fairly be made about the Bill as a whole.
But, my Lords, let us look for a moment at those Departments listed in Schedule 2 which do have a more direct and frequent impact on the lives of the general public. To what extent does the Bill provide a means of redress of grievance by the general public? It seems to me that it would depend very much on how we define and interpret the word "maladministration". I think that the noble and learned Lord conceded that this was a point of difficulty. Certainly this was a point which gave rise to long debate in another place without, it seemed to me, anyone being very much wiser at the end of it. Speaking for myself, I should be immensely grateful if we could be given, first, a simple example of a grievance likely to be submitted by an individual for investigation by the Parliamentary Commissioner; secondly, an explanation as to in what respect the action complained of might be due to 1388 maladministration and, thirdly, even if it was due to maladministration, how it could be determined that this was not due to theexercise of a discretion vested in the department or authority".I have taken those words, of course, from Clause 5(4) a subsection which, as the noble and learned Lord said, was inserted by the Government at a late stage in the passage of the Bill through another place, and which seems to me to give the Bureaucracy a loophole as large as the Round Tower of Windsor. If it is not the case, I, for one, should be most grateful to have it explained to me.
§ THE LORD CHANCELLOR
My Lords, would the noble Lord forgive me? I gave two or three examples of a variety of causes which might result in one man getting a chair and not another, or the Board of Trade refusing to allow somebody to start an insurance business. There is a discretion at the end, but this does not in any way stop a Parliamentary Commissioner from investigating all the circumstances of a case.
§ LORD MITCHISON
My Lords, if I may interrupt the noble Lord for one moment, may I say that it is not the Round Tower of Windsor about which we are concerned: it is the Leaning Tower of Pisa which we want to avoid.
§ LORD HARLECH
My Lords, that is as may be. I listened carefully to the Lord Chancellor's examples, but I was still not convinced that it was beyond the wit of civil servants to argue that whatever action was taken was under a discretion. I quite see that this is the exact point over which there is likely to be a good deal of argument in future. We certainly do not suggest that there should be an appeal against every policy and discretionary decision of Ministers, which I think was a phrase used by the noble and learned Lord, the Lord Chancellor. I think that the definition of what is maladministration, and how it could in certain cases be seen to be different from the exercise of discretion, remains unclear to me and seemed to remain unclear to a whole number of people in another place after a great deal of debate.
In spite of the fact that the name given to the British version of the Ombudsman is the Parliamentary Commissioner, as the noble and learned 1389 Lord the Lord Chancellor pointed out, he will in practice act at the behest of only one House of our Parliament. He will not be allowed to entertain complaints from your Lordships, but only from Members of the House of Commons—though no doubt it would be quite in order to ask for a personal grievance to be forwarded to the Parliamentary Commissioner by a Member of Parliament of any noble Lord's choice. I must say that I do not quite know why this exclusion of the House of Lords was thought necessary. I appreciate that it is important that the Commissioner should not be overburdened at an early stage in his existence. What I should like to feel is that noble Lords were not excluded because the Government thought your Lordships could be less well trusted than Members of Parliament to use in a responsible manner the machinery set up under this Bill.
This Bill purports to give some protection to the governed against the misuse of power by the Executive Government and its minions. The principle seems to me unexceptionable. What worries me about it is that in practice it is likely to give little protection at a rather high cost. Indeed in the Explanatory Memorandum the cost is put at not more than £150,000 in the first year. What little the citizens will gain on this "swing" will be lost many times over on the "roundabout" of further Socialist legislation. Nothing could be more plain than that such legislation will progressively increase the powers of the Executive to interfere with every aspect of our daily lives, and this Bill provides no more than a mini-buffer against this trend. We should, I am sure, all wish to share the high hopes of the noble and learned Lord, the Lord Chancellor, for this Bill. We hope that those are justified in practice, but it strikes me as a rather feeble and tepid Bill, and therefore it deserves a rather tepid welcome in your Lordships' House.
§ 4.7 p.m.
§ LORD WADE
My Lords, I am sure that we are all obliged to the noble and learned Lord who sits on the Woolsack for having given us the historical background and for having outlined the Bill with the clarity we are accustomed to having from him. I think it somewhat 1390 ironical that the way in which the Office was set up and the first Commissioner appointed has led to a protest from the Estimates Committee. After all, the intention is to create a bulwark between the citizen and the Executive, and to carry out the other objects referred to by the noble and learned Lord the Lord Chancellor. But we are told by the Estimates Committee that the method of appointment is creating a precedent which might lead to future abuses of power. As I say, that seems a little ironical and rather unfortunate. As the noble and learned Lord the Lord Chancellor pointed out, the Bill has had rather a bad Press in the last fortnight, which I think arises from the feeling that the proposals in the Bill fall so far sort of what was expected. There is some point in the complaint that the Government are setting up not an Ombudsman but an "ombudsmouse"—a slight variation on the words of the noble Lord, Lord Harlech.
Of course I shall be told, my Lords, that it is neither, that it is a Parliamentary Commissioner. But it is important that the Parliamentary Commissioner should not be fenced round with too many limitations on his powers of investigation. I would, however, say this to the critics of the Bill: it is important to be consistent. As the noble and learned Lord the Lord Chancellor mentioned the officers and members of the Committee of Justice, perhaps as a postscript I might add that one of the members of the Whyatt Committee is a cousin of mine; but I hope that does not affect my objectivity in studying this problem.
When the Whyatt Committee reported in 1961, it provided an excellent opportunity for the Government of the day to do something about this. But, unfortunately, nothing was done and the proposal to set up a Parliamentary Commissioner was turned down flat. It seems to be perfectly consistent for someone to object to this idea, and therefore to object to the Bill; but it seems inconsistent to have refused to do anything about this proposal and now to complain that the Bill does not go far enough. I am one who welcomed the Whyatt Report, although perhaps it was in some respects rather too cautious. I think I am right in saying that the proposal that there should be a Parliamentary 1391 Commissioner has been advocated by the Liberal Party for many years, although I recognise that there were some who thought that the idea was not sufficiently radical. But for those who believe that the basic idea is sound, it is clear that the right attitude to this Bill should be one of endeavour to amend it and improve it, so that we create in this new office a really important Parliamentary reform and a reform in the realm of the protection of the individual. I do not think that this is a Bill which should be thrown out, even though we may not be successful in all the Amendments that are put forward.
Furthermore, I would agree with the noble and learned Lord the Lord Chancellor when he said, on August 4 of last year, in reply to a Question of mine, that we must prevent the Parliamentary Commissioner from being overwhelmed at the outset of his duties. But that reasonable desire must not be used to exclude from the functions of the Parliamentary Commissioner the majority of complaints of the kind we know from experience are likely to arise. That is really what this debate is about. Therefore I would direct my remarks to some of the categories of complaint which are being excluded from the investigations of the Parliamentary Commissioner. Among these exclusions are complaints against local authorities; complaints put forward through any channel other than that of a Member of another place; complaints involving the exercise of discretion, which raises a very important issue; complaints against nationalised industries and bodies such as regional hospital boards, and complaints for which there is a remedy in law. I think that that is a fair summary of the category of exclusions, and I should like to touch briefly on each of these.
So far as local complaints are concerned, the kind of advisory services that have been set up in Bristol are suitable for dealing with a number of complaints, but not with those which really go to the heart of any local maladministration, I do not think that the employee of a local authority is the right person to tackle a complaint where a serious allegation of maladministration is made. In an Appendix to the Whyatt Report, the Committee stated that they had found that the administrative processes in local 1392 government followed a similar pattern to those in central Government. While it was not practicable for the Committee to indicate the volume of complaints of maladministration against local authorities, they said:The opinion was expressed by several persons of experience in public affairs whose responsibility and judgment in these matters command respect that there was probably a serious amount of mal-administration in local government and certainly considerable more than in the central Government Departments.All these categories are excluded for all time. It is not a question of adding this type of complaint later, when the Parliamentary Commissioner has settled into his duties. I understand that the Bill is so drawn that complaints of that nature are excluded altogether.
It is the view of many Members of another place that the great majority of complaints they receive are of a local nature. I am aware that there are practical difficulties in extending the functions of the Parliamentary Commissioner to dealing with local complaints. A constituent may first write to his M.P. about some problem in which his local authority was involved. If the Parliamentary Commissioner was able to deal with this kind of complaint, it would be passed on to him. He would then have to appoint some regional commissioner to investigate the complaint and report back to him. He would report back to the Member of Parliament, who again would report back to the constituent. I can see that that is a roundabout procedure, and it was partly for that reason that, on October 18 of last year, I introduced a Bill with the object of setting up separate machinery for dealing with local complaints at regional level. At that time I was anxious that there should be some opportunity in this House on Committee stage of dealing with this problem, so that we should have discussed it before we came to tackle this Bill. But noble Lords who were present will recollect that a formidable Labour-Conservative coalition defeated my Bill on Second Reading.
Although the Bill was killed, the problem still remains. It is not sufficient answer to say that we must wait for the Royal Commission or for the Report of the Maude Committee. Some kind of machinery must be devised for dealing with this large number of local complaints, some of which cannot well be 1393 dealt with by some employee of a local authority. I am considering whether an Amendment might be tabled to this Bill so that at least this could be discussed.
The Bill further excludes complaints from anyone other than Members of another place. I would question whether it is necessary to exclude Members of your Lordships' House. It puts Members of this House in a somewhat anomalous position. Of course, we do not receive nearly as many complaints as Members of another place, but if anyone made a genuine complaint to a Member of the House that might well be looked into, the noble Lord would have to write saying that it could be dealt with only by a Member in another place and asking to which Member the complainant wished his complaint to go. Then, when he received a reply the noble Lord would have to write to that Member of another place. This seems to be unduly complicated. I do not think that it should lead to conflict between the two Houses if Members of this House were able to forward complaints directly to the Parliamentary Commissioner. After all, we already have had an Amendment to Clause 1(3), which deals with the removal from office of the Parliamentary Commissioner. This would require an Address from both Houses of Parliament. Therefore, there has been a breach in the limitation to another place in that respect.
§ LORD MITCHISON
My Lords, I am much obliged to the noble Lord. Perhaps he would like to give the House the reason for it.
§ LORD WADE
My Lords, as the noble Lord is going to take part in the debate, perhaps he would let us know. I do not wish to prolong my speech.
I wish to turn now to the important question of the exercise of discretion. I am aware that a distinction was made in the Whyatt Report between acts of maladministration and acts arising out of exercising discretion. There is some difficulty in drawing the line, but your Lordships must remember that a large part of the work of nearly all Government Departments and authorities is discretionary in nature. I feel that this provision in the Bill will be used as a protection by Government Departments against any awkward investigations. I certainly would advocate the deletion 1394 of subsection (4) of Clause 5, which reads as follows:Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decision taken by a government department or other authority in the exercise of a discretion vested in that department or authority.I am aware that there is some room for difference of opinion as to the effect of including the words "to review by way of appeal". But, however one interprets that, I think that this proviso, coupled with other provisions in the Bill excluding anything in the nature of the exercise of a discretion, is unfortunate.
§ THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON)
My Lords, may I interrupt the noble Lord? He has twice said that this Bill limits the rights of the Parliamentary Commissioner to investigate. He has not yet given an example of a right to investigate in the field with which he is concerned. The subsection that he has just quoted does not limit his right to investigate.
§ LORD WADE
I will give an illustration in a few moments. It does, however, limit the subject matter which can be investigated. Furthermore, it limits the category of complaint which can be forwarded to the Parliamentary Commissioner for investigation. That is certainly my interpretation of the Bill; and I may say that my noble and learned friend Lord McNair, whose views I always listen to with great respect, has sent me this comment: that he regards this particular proviso as most dangerous. I hope, therefore, that it will be further discussed, either in this debate or on the Committee stage.
Fourthly, there are excluded (I hope I am right in using the word "excluded") the actions of nationalised industries, and various boards, such as regional hospital boards—and the subject of regional hospital boards was debated somewhat fully in another place. I am not very happy about these exclusions. May I give an illustration to show how this will work? —and it is only an illustration. There was recently a case in Eastbourne. As I understand it, a circular was sent from the Ministry of Housing and Local Government to British Railways asking them to offer land which they did not require to local authorities. In the light of that request, British Railways offered land at 1395 Eastbourne, with, I think, 48 houses on it, to the local authority at a price very much lower than the occupiers of the houses would have been willing to pay; and many of the occupiers wanted to buy the houses to become owner-occupiers. But the land was sold over their heads to the local authority. As a result, the houses became derestricted and lost the benefit of the Rent Restrictions Act. The local authority were unwilling to sell any of the houses to the occupiers, and proceeded to put up the rent.
To take that step by step, so far as the circular from the Ministry is concerned, that may be an act of discretion—I am not sure. But if it is an act of administration, I do not think that, on the face of it, it is maladministration merely to authorise, request or direct British Railways to sell land to a local authority. So far as British Railways are concerned, they are excluded from the Parliamentary Commissioner's scope because they are a nationalised industry, and there can be no complaint against them for selling over the heads of the occupiers. So far as the local authorities are concerned, there can be no complaint against them, because that kind of complaint is excluded from the Bill. I think this indicates the way in which there will be a limitation on the kind of complaints—and they are very real complaints—that will be excluded.
§ LORD LINDGREN
My Lords, this is rather a difficult illustration, because when the matter was raised in this House on the 1962 Bill (it may have occurred before the noble Lord came to this House), when Mr. Marples was Minister of Transport, I think, there was an addition to the Bill, against the wishes of the Tory Government, that the Railways Board should offer to local authorities all land that became available. That addition was inserted by this House.
§ LORD WADE
I am interested in the observation of the noble Lord, but I do not think it materially affects the point that I was making.
The other matter that I mentioned was regarding complaints where there is a remedy at law. It seems to me reasonable that complaints of that nature should be excluded. On the other hand, there are some cases where, in spite of the fact that there is a remedy at law, it is 1396 I think proper that the Parliamentary Commissioner, if he thinks fit, should have the opportunity of making an investigation. Here I would offer a small bouquet to the Government, because in Clause 5(2) there is this proviso:Provided that the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.It so happens that this would appear to have been lifted straight out of my Bill. It may be a coincidence, but it is almost word for word the proviso in my Bill. So my Bill, although defeated, may have served some useful purpose. It was not in the original Government Bill; the proviso was inserted on the Report stage in another place.
I should like to make one or two other, I hope constructive, comments. In Clause 10 there is the question of publishing a report. I am not sure whether a report in the Press, or a summary of a report to Parliament published in the Press, would be covered so far as qualified privilege is concerned. I merely raise this as a question which requires consideration. Then there may be circumstances in which a report of a particular case to Parliament may not be the best method of dealing with an issue which has been investigated. Parliament may be very busy, and there may be a case where there is a genuine difference of view between a civil servant and the Parliamentary Commissioner as to whether there has been maladministration. In this limited number of cases I think it might be helpful to have some procedure by which there could be an application to the High Court by way of case stated, so that the issue between the civil servant and the Parliamentary Commissioner could be considered in a judicial atmosphere. I do not think that this would be any derogation of the supremacy of Parliament.
§ LORD SHACKLETON
I am sorry to interrupt the noble Lord again, but I do not think he really understands the Bill. The decision as to whether there has been maladministration, and the right to state an opinion on it, rests with the Parliamentary Commissioner. It is not within the powers of civil servants to prevent him treating it in this way.
§ LORD WADE
I agree. The civil servant cannot prevent the Parliamentary Commissioner from reporting in a particular case to Parliament, and the Bill provides that the Parliamentary Commissioner may so report, if he thinks fit. Nevertheless there may be circumstances where there is a genuine difference of view—and it may not be made public—between the department and the Parliamentary Commissioner as to whether or not there is maladministration, and I should have thought that it might be helpful to have some procedure where a case could be stated, so that this difference of view could be settled in a judicial atmosphere. I understand that my noble friend Lord Reay has an alternative procedure to suggest on this particular point. I merely say that I think it is a point worth considering in Committee.
There are two other points on Schedule 3. When one comes to extending the activities of the Parliamentary Commissioner, I would favour omitting Clause 8, the clause that includes regional hospital boards and other bodies in the exclusions. I would bring them in, but not necessarily at this moment. Also, I think we might consider whether superannuation should be brought into the sphere of the Parliamentary Commissioner's activities at present excluded under paragraph 10 of Schedule 3.
There are many complaints of injustices in connection with superannuation. But returning to the original point, and with this I close, I think there is no doubt that many people are concerned about this growing power of the Executive. This setting up of a Parliamentary Commissioner is only one method of helping to safeguard the individual from injustice. It would be a pity if it were to fail through too much caution and too many limitations.
§ 4.31 p.m.
§ LORD SILKIN
My Lords, I rise to welcome this Bill without qualification. My noble and learned friend has referred to his long-standing interest in this subject, and I want to claim that I have an even longer-standing interest, because since 1922 until fairly recently I attended what is known as a weekly "surgery" of constituents, who treated me as being omniscient enough to solve all the problems that were confronting them. I used to get an average of 30 people an even- 1398 ing, and it is interesting to recollect the kind of cases that came along. I do not remember any cases of maladministration by the Civil Service. There may have been, but I cannot remember them. There were a few cases of maladministration, or alleged maladministration, by local authorities.
I was impressed all the time by the fact that where these cases occurred, by reason of the increasing impact upon the citizen of action by local authorities and governments, there was no effective remedy in the last resort. The noble and learned Lord the Lord Chancellor has referred to the possibility of the Parliamentary Question, and of the Adjournment debate, if you are lucky enough to get one. But there is very keen competition, as the noble Lord, Lord Harlech, and others who have been in the other House know, to get a time for an Adjournment Motion, and one may have to wait a very long time. Then it is, as one knows, dealt with very late at night, within half an hour as a rule, with a reply by the Parliamentary Secretary. If one is lucky and one is supported in one's Motion by one's friends, or opponents, the Parliamentary Secretary is given exactly two minutes in which to reply, so you get no effective reply at all. That is the end of the matter. One is left with a grievance.
This Bill is the beginning of an attempt to carry the matter further, and to supplement whatever is possible under our Parliamentary procedure. I know the noble and learned Lord the Lord Chancellor made it clear that this provision is not intended to be a substitute for action by Members of Parliament; it is intended to be supplementary and used as a last resort. I know it does not go very far. The noble Lord, Lord Harlech, referred to it as a minibus. Even a minibus is better than having to walk. It is at least a form of transport and you can get somewhere with it. In all the years during which this has been recognised as necessary we did not have even a minibus.
I believe that it is right we should be cautious. This is revolutionary. I do not think we can go very much by the experience of the Scandinavian countries or of New Zealand; each of them has differences in their Constitution, and above all in their population, 1399 and in the complexities of their systems of Government, which do not apply to this country. There is therefore a limit to what we can learn from their experience. So I am wholeheartedly in favour of a beginning in the form in which this Bill has been prepared. I should have hoped, however, that it would be possible—and this is a matter which we can discuss in Committee—by an Order in Council to extend not only the scope of the Bill but the powers as well. I mean by that that at the present time action can be initiated only by a Member of Parliament. I would hope that if we found it expedient, we might extend it to Members of this House, and we might even give to the Parliamentary Commissioner himself the power to initiate an inquiry. As I read the Bill, he himself has no power to initiate an inquiry at all, although under the New Zealand Bill the Ombudsman can initiate an inquiry, and any member of the public can go direct to him and ask him to initiate it. I am not suggesting that that should be provided in this Bill, except possibly we should give the Parliamentary Commissioner the right to initiate an inquiry himself. I think that would be a useful extension. As to further extensions, I would not recommend them at this stage.
I would hope that it might be possible to include in the Bill power to make an Order in Council to extend the functions of the Land Commissioner in those respects, by allowing Members of this House to put forward a request, and in other ways.
I said that, in my own experience—and I am sure it is matched by many others—the vast majority of cases of maladministration arise in respect of local authorities, and I shall be very interested to discuss the Amendment which the noble Lord, Lord Wade, has in mind. I think it would be well worth while to discuss it and see whether it is really practicable to introduce an Amendment into this Bill, or at least to make it possible, at some future time, to extend the Bill to local authorities, without having to introduce fresh legislation.
I agree with the Whyatt Report that the number of cases of maladministration we are likely to get in the Civil Service 1400 will be relatively few. But I recognise that, although this is not a political Bill, and ought not to give rise to political speeches, it is the duty of an Opposition, if they cannot oppose the principle of a Bill, to make derogatory remarks about it; and the noble Lord, Lord Harlech, was only doing his duty in minimising the effect of the Bill and jeering at it, making comic comments about the Royal Mint, and other bodies that are included. I will leave it to the noble Lord, Lord Shackleton, to justify the inclusion of the Royal Mint in the list. It seems to me it was a sensible thing to include all bodies which are under the direct control of the Government. Why the noble Lord, Lord Harlech, should imagine that there could be no cases of maladministration at the Royal Mint, I do not know. There may not be many, but it is conceivable.
Incidentally, the noble Lord found some difficulty in distinguishing between maladministration and questions of discretion. I do not think there is any difficulty. The Whyatt Committee found no difficulty in distinguishing between them, but I should like to read to the House what the Committee said about maladministration. I think the noble Lord will agree that, put in this form, there should not be any difficulty in recognising what is maladministration, although admittedly there may be marginal cases and a case of maladministration may taper off into a case of discretion. In all aspects of human activity there are marginal cases which cause difficulty. It would be for the Parliamentary Commissioner to decide for himself whether a case falls within the category of maladministration or discretion, and I hope he will not have too many of them.
Paragraph 72 of the Whyatt Report says:The complaints with which we deal are complaints of official misconduct in the sense that the administrative authority responsible for the act or decision complained of has failed to observe proper standards of conduct and behaviour when exercising his administrative powers. This may take a variety of different forms. It may take the form of an abuse of power by an administrative authority, as for example, when a public official behaves oppressively towards a person who has been lawfully placed in his custody, or it may happen that an administrative authority misuses its power. For instance, a public official may show an unfair preference when allocating a Government contract"—1401 it may even happen in the Royal Mint—or again, official misconduct may cause loss or damage to a citizen through inefficiency, negligence or error on the part of the official handling his rights or interests.I am sure that these are cases which are easily recognisable and should not, generally speaking, cause difficulty to the Parliamentary Commissioner. I would say to the Government, as I say on all Bills on Second Reading, that I hope they will listen and be receptive to Amendments which will be moved on their merits.
This is a good Bill. The noble and learned Lord said that he did not think there was much wrong with it; and granted that this is a first step I would agree with him. Nevertheless, the combined wisdom of this House may find ways of dealing with problems which we recognise as problems, which are not being dealt with in this Bill, and I hope that if we can find ways of improving it we shall not stand on our dignity, or the fact that the other place has passed this Bill in its present form and that no material change is possible. I wish this Bill a speedy passage into law, and I am confident that it will be to the public interest that such should be the case.
§ 4.45 p.m.
§ LORD REDMAYNE
My Lords, I am glad to follow the noble Lord, Lord Silkin, who speaks from a great depth of Parliamentary experience. He welcomes this Bill because, as he said, it provides a weapon of last resort for the Member of Parliament. I do not welcome the Bill because I think that is precisely what it is not going to do, but at the same time I hope I shall not lose the sympathy of the noble Lord on that account, because I suspect that he will find me a worthy ally in the Committee stage in his attempts to improve the Bill for the benefit of Parliament and for the benefit of the people. I hope also that if I criticise he will not think I am making derogatory or jeering remarks, which my noble friend certainly was not doing either. Thank heavens some noble Lords can enliven their speeches with a little delicate humour (which should not be taken amiss) as indeed the noble Lord can himself.
§ LORD REDMAYNE
It is very properly said that I might try it, but I take far too serious a view of this matter to attempt anything of the sort.
The Justice Report and subsequently the Government's White Paper and, I think, the noble and learned Lord, the Lord Chancellor to-day, have all stressed and confirmed the tradition that the redress of grievances is the duty of Members of Parliament and the function of Parliament itself, and I do not think we dispute that. I do not want to-day, and indeed it would not be in order, to embark on a discourse on those reforms which might be expected to strengthen that tradition, but I would say that I believe that the more devices are contrived to remove the real work of Parliament from the direct view of the public and of the Press, the weaker will the traditions and the functions of Parliament become.
If this Bill achieves its purpose at all —and I do not even share the mild optimism of my noble friend Lord Harlech—it will, I believe, at the same time lead to a further deterioration in the position and reputation of the elected Member of Parliament, whose business it is to fight the battles of his constituents, both on their own merits and for the principles involved, and to fight those battles against Her Majesty's Ministers, or, by his actions, win their willing or unwilling support. It is only by that type of Parliamentary battle that the elected Member of Parliament really justifies his existence at all. I share this view at least with the noble Lord, Lord Silkin, that only in the very last resort is any further weapon necessary—or so it should be.
It has been freely said during the course of this Bill in another place, and indeed in the Justice Report and elsewhere, that Question Time, the Adjournment Debate and the debates in Supply are the proper sounding-boards for grievances. The same applies in your Lordships' House, with the exception of Supply; and as a very new recruit to your Lordships' House, I would say, with respect, that the more deliberate pace of the Starred Question and the greater opportunity for debate of the Unstarred Question enables your Lordships to be just as effective in pursuit of grievances as the other place, and I think that should 1403 be acknowledged. In addition, of course, Members of both Houses are given the right—the courtesy—of access personally or in writing to Ministers, and to my mind little will be added to that system by the additional facility of the Parliamentary Commissioner in the form proposed by the Bill, and I will say something about other forms in due course. In point of fact, I think it will detract from the opportunities available in both Houses by debasing the currency. A great number of your Lordships have been elected Members of Parliament in the past. They will know the pressures that are exerted by the electors on the elected Member and, as they will recollect and as the noble Lord, Lord Silkin, will recollect, very often the less just the cause, the greater the pressure.
The system which the Government have in their wisdom ordained is that any Member of Parliament, though ostensibly charged with judging the propriety of any request to submit a case to the Commissioner, can be forced by a kind of Party political blackmail into accepting that request, by the threat spoken or implied that if he refuses it will be taken to another Member, of course of another Party. This was made very clear by the Lord President of the Council in another place. Of course, it has always been a convention that one Member of Parliament does not poach on the constituency preserves of another, and that convention is observed fairly strictly between members of the same Party, less strictly between members of opposing Parties. In any case, no great harm is done because usually the Member himself has done his best and failed, and if he has done his best and failed it is seldom that another Member succeeds better, and very often one gains both on the swings and on the roundabouts as the sitting Member who has been treated in that way.
If I may say so, this system about which we are talking now is quite different. What we are talking about now is a straight question put to the elected Member of Parliament, "Will you, or will you not, put my case to the Commissioner?" If he will not, and for good reason will not, he knows that the same question will be put to some other Member, and likely as not will receive a different answer. Indeed, it may al- 1404 ready have been put to another Member or any number of other Members, and that seems to me to be bad.
It may seem to your Lordships, particularly to those of your Lordships who have not been elected Members of Parliament, that a Member of Parliament should be strong enough to resist that kind of persuasion, and indeed you will be assured, I do not doubt, by the noble Lord from the Government Bench that the Select Committee which is to be set up will devise conventions by which it can be avoided. I must confess that in these circumstances I put little faith in those conventions. They will be devised with good will, but I believe they will fail. The truth of the matter will be, I think, that this system of application to a Member for his consent to put a case to the Parliamentary Commissioner will become as cheap, as little thought of in the public estimation as—and I mean no disrespect to the medical profession—many doctors' certificates of unfitness to work, which are issued under the same sort of duress. What is going to happen is this. Either Members will exercise their discretion too loosely and the Commission will be flooded with unnecessary and unacceptable cases, or, against those—and there will be many—who stand up to defend their discretion against the importunate claimant there will be this pressure, this blackmail brought.
I would say this. If there were any need for a Parliamentary Commissioner —and I accept that there is a need as a weapon of last resort—it would have been better that a Select Committee itself should sift such cases, which in the last resort, all proper Parliamentary action and measures having been taken, might be thought by the Member concerned—and I think it should be the Member concerned—to be worthy of reference to this final arbiter. I think in that way the system would work. As it is, I am perfectly certain that the proper Parliamentary means—Question, letter, Adjournment Debate, all the rest of it—will be neglected for this easier method of redress proposed in the Bill.
What happens if the case is not accepted by the Commissioner? In my opinion, so far as the constituent is concerned that will be the end of the case, because no Question, no Adjournment 1405 Debate thereafter is going to receive anything but the scantiest attention from the Minister. So the fact is that, for all the talk of humanising the Administration and improving relations with the citizen, it is extremely doubtful if these things are going to be achieved.
In any case, if one looks at the situation as it has been in Parliament, as the noble Lord, Lord Silkin, knows, 90 per cent. of all the cases that come to elected Members of Parliament are satisfactorily resolved if they are painstakingly handled, resolved at least in the sense that the constituent, though aggrieved, is satisfied that he has received a sensible and studied answer. You can well say that is all he very often gets, but none the less he is well satisfied if it has been painstakingly handled. Indeed, in nine cases out of ten he will receive no more from the Parliamentary Commissioner than a sensible and studied answer. The 10 per cent. who are not satisfied, if it is as many—and I rather doubt whether it will be as many—might well be taken further—that I agree—but under some much tighter system than this Bill envisages and only after every Parliamentary opportunity had been tried by the constituent's Member of Parliament. That then is the way I look at this Bill. It can hardly be said that I regard it, as drafted, with any great favour, but I believe that only in the circumstances which I have described could it be said that the system would fulfil a useful purpose without detriment to the traditions of Parliament and the standing of the elected Member.
Having said that—and I say it with great conviction and with no wish to be merely destructive as a Member who does not support the Government—I will not weary your Lordships with a great deal of detailed criticism of the Bill, though I accept that since we have got it we have to amend it, and I hope we shall amend it fruitfully. I, as a novice Member of your Lordships' House, think it a great pity that the Government have set their face against any access to the Commissioner by your Lordships individually. Much play has been made of the suggestion that "Parliamentary" in the words of the Commissioner's title relates to another place. I think—and I say this without particular disrespect or malice—that on the whole this is a studied slight of your Lordships' House. 1406 As I have said, it certainly is not justified on your Lordships' record, in that your procedures and your experience are as fully used to the discussion of grievances, whether personal or general, as the other place's; and, after all, your Lordships have the great advantage of not being subject to those electoral pressures which are apt to unbalance the judgment of the elected Member.
Further, if I may say this, I think your Lordships are particularly qualified to have access to the Parliamentary Commissioner in this respect. It is specifically written into the Bill that corporate bodies have aright to lodge complaints, corporate bodies as opposed to individual constituents. I would guess that corporate bodies, companies in industry and commerce, might well find very often a much more ready ear in your Lordships' House than in another place, certainly an ear which would be less likely to be prejudiced, as I say, by political considerations.
The noble and learned Lord the Lord Chancellor dilated on the fact that Members in another place were happier helping their fellow-men. I do not know why the noble and learned Lord the Lord Chancellor and his Government should wish to deprive your Lordships of that happiness. May I say also that it should be noted that Justice, in a later comment on its Report, quite definitely expressed itself in favour of your Lordships having access to a Parliamentary Commissioner. I hope, too, in this connection that it is not suggested that your Lordship, will not be able to debate the Reports of the Parliamentary Commissioner, which may indeed often be of most considerable constitutional importance. One can see a situation, perhaps, in which a Government were slow to act on the recommendations of the Commissioner worded in his Report, and it might well be that your Lordships would wish to prompt the Government to action in that respect. I believe, therefore, that your Lordships would be fully justified in carrying an Amendment to repair this position, and I believe also that it should be supported by those noble Lords opposite who are not content to be regarded as second-class Parliamentarians.
I think enough has been said about the exclusions from this Bill. Any inquiry that I can make, both from ex-Ministers 1407 and from distinguished ex-civil servants, suggests that, in spite of the explanation given by the noble and learned Lord, the Amendment to omit matters which are at the discretion of Ministers seems to leave little in the Bill for the Commissioner to do. One exclusion to which attention has not been drawn this evening, although some attention was given to it in another place, is that which is contained in paragraph 9 of Schedule 3, which refers to the contractual and commercial transactions of any Government Department or authority to which this Act applies; and, by reference to Clause 6 of the Bill, to any local authority, nationalised industry or any other body appointed by Government; the sole exception being to certain transactions in land. In brief, what it says is that nothing contractual or commercial done by the Government, or any of its agents, is capable of reference to the Commissioner.
Although I have referred to the fact that corporate bodies had been included in the Bill, and that your Lordships might play some part in representing their complaints to the Commissioner if that was in due course written into the Bill, we can see now that the Government have successfully drawn the teeth of that tiger in advance. I think that the suggestion of the Lord President of the Council that local government might devise a similar system for itself is really absurd. What is more, I consider that it is definitely part of the constitutional business of Parliament to devise such a system for local government.
Both in another place and to-night in your Lordships' House, much stress has been laid on the fact that the great bulk of complaints that come to the elected Member deals with local government matters. We all know very well what happens. A complaint comes to a Member of Parliament, he takes it to a Minister and, in nine cases out of ten, the Minister disclaims responsibility, which may be true according to the Statute, or simply expresses a disinclination to interfere in matters delegated to local government.
The noble Lord, Lord Wade, who is not here at the moment, referred to an unholy alliance between the Government 1408 side and my noble friends to defeat his Bill, which had an object of providing a solution to this problem in local government. I would assure the noble Lord in his absence, and the noble Lord, Lord Silkin, in his presence, that I am perfectly prepared to enter into an unholy alliance with the objective of seeing whether some solution can be found.
With regard to exclusions generally, I have noted that Ministers have frequently made reference to the possibility of amendment by Order in Council, as, indeed, did the noble and learned Lord. This, I think, is a trap or a deception for the critic of the Bill, because of course such an Order in Council can be initiated only by the Government, and the Government must in due course be under all the pressures of persuasion which have been exercised in the debate on this Bill before they are ever likely to take any action in that respect. I do not think that it offers a fruitful field.
Finally, may I say that I think the Government have missed an opportunity, which they may well regret, in not accepting the suggestion which was made in another place that it should be written into the Bill that the Parliamentary Commissioner might well provide an acceptable alternative to a tribunal under the Tribunals of Inquiry Act. Here again, it was suggested by the Government that this could be done in emergency by Order in Council. Indeed, on the Government's initiative, it could. But with some unhappy knowledge of previous occasions on which such a procedure has been required by Governments, I can tell the Government that if the need arises they will find themselves embarrassed by the debate on the Order, prior to the inquiry, and wishing with hindsight that they had written the necessary conditions into the Bill. Perhaps I am well qualified to give that advice.
I think this is a bad Bill. I think it is based on a misconception of what is required. In a sense, Parliament over the years has brought the need for it on itself. But that does not commend the Bill if it provides no real solution to the troubles of Parliament, or in fact increases them, as I think it will, by decreasing the status of the elected Member. For that solution we shall have to look much further than these glowing phrases about 1409 humanising the administration and improving relations with the citizen. In the long run, this Bill will do neither.
§ 5.7 p.m.
§ BARONESS BURTON OF COVENTRY
My Lords, I find myself in considerable disagreement with the noble Lord who has just resumed his seat. One or two aspects I would propose to deal with, but in general I welcome this Bill, and I greatly welcome the appointment of Sir Edmund Compton. Some of the limitations I am not happy about, and two of these I should like to come to later in my remarks. Others are probably Committee points. Somehow, I still prefer the title of Ombudsman, although I appreciate that this is a foreign word. Parliamentary Commissioner for Administration seems a trifle unwieldly. I do not know whether there are any other noble Lords here who will agree with me.
One particular point on which I differ from the noble Lord, Lord Redmayne, is on what he had to say about pressure. Speaking personally of another place, I can imagine no worse recommendation than going to a Member of Parliament and saying, "If you do not do this, shall give it to somebody on the other side." I should have thought that if he felt like doing that, it would be tantamount to getting the Member to say, No. But apart from that, I just should not have thought that this was done. I really do not think that is correct. One may, of course, become more jaundiced as a Chief Whip than as a Back Bencher. That would not be for me to say. No doubt we all have our problems and our trials. But with regard to the putting down of Questions, or the taking up of matters—here I refer to another place—in another Member's constituency, quite honestly I am sure that those of my colleagues here on either side who were Members of another place will agree that this seldom happened. I think they will also agree that where it did, the Member concerned was not thought much of by parliamentarians on either side. Lastly —and this is one of the virtues of the other place—I think that we could all, on both sides, make a list of the people who did this and the lists would not differ. I really do not think that this happens, and I am equally sure that it would not be the case in this House, 1410 although, of course, we do not have the problem of constituencies.
As I am sure must have been obvious from time to time in this House, I am no student of the law, but some 17 months ago, in October, 1965, I thought that The Times commented most aptly, when it said of the position in this country that redress through the courts is impeded by technical procedural snags, by the settled reluctance of the Judiciary to be drawn into pronouncing on the merits of administrative disputes, and by the sheer expense of the process. I will put it in more simple language by quoting what the Evening Standard said in its City column on Monday last:The law does not always follow the dictates of common sense, and even when it does the road it takes can be expensive.The more I read of cases in courts of law, the more I am convinced that expense alone would deter the bringing of a case, however right one may feel it to be. I do not know whether I dare suggest that possibly the Lord Chancellor would not dissent from that. I am certain that that is the opinion of laymen in these matters.
I am sure everyone in this House will agree that an M.P. with limited resources cannot match those of a Government Department and can well find himself baffled by those very resources. On the other hand, during my ten years in another place I found Departments very helpful indeed, on the whole, and this was my experience irrespective of which Party was in power. I think Members here will agree with me on that particular aspect. On the other hand, there may be cases, probably very few, where this might not be so and where a Parliamentary Commissioner would aid the power of an M.P. when he was protecting individuals. When I first raised the matter of an Ombudsman in your Lordships House in November, 1965, noble Lords said that I was wrong in declaring that complaints must reach the Ombudsman through Members of another place. Unfortunately, I was right. I say "unfortunately", because while at that time I was prepared to accept the position, I should like now to look at it more carefully, and I feel very cheered by those speakers who have preceded me in realising that they too would wish to look at this particular matter.
1411 As a former Member of another place I realise the difficulties. We were always very jealous of this responsibility to our constituents, and I agree with the Lord Chancellor that many of us in another place felt that it was in that field that we could do our best work. I am not suggesting for one moment, therefore, that this responsibility should be abrogated; but, on the other hand, there must be very few, if any, of your Lordships who, on receipt of a complaint by a member of the public, would not suggest that it be sent to the M.P. concerned or who would not discuss it with him. There can be the problem that a member of the public does not wish to approach the M.P. concerned, or has already approached him and has received an unsatisfactory answer. But anything like this could be discussed with the M.P. and action taken on the issue.
There is another type of complaint or query, and I hope that my noble friend Lady Summerskill will not mind my using her as an example. I did not give her notice, but I propose to say nice things and I am sure she will not mind. There are Members of this House who are especially well informed and who take a particular interest in certain matters. Lady Summerskill has done a great deal for women, and I can well visualise women writing to her and asking her whether she will take up some matter with the Parliamentary Commissioner. If she thought fit to do so, it would be a great loss if the Bill prevented such reference by my noble friend or anybody else similarly placed. Nobody here would abuse such a responsibility, and I should like reference to the Parliamentary Commissioner to be possible by Members of either House. I would gladly support the noble Lord, Lord Wade, or any other noble Lord who puts down an Amendment at a later stage to that effect.
§ LORD SHACKLETON
My Lords, is my noble friend suggesting that in such a case my noble friend Lady Summerskill should go straight to the Ombudsman, without first going to the Minister responsible?
§ BARONESS BURTON OE COVENTRY
I am suggesting that it be left to 1412 the infinite wisdom of my noble friend Lady Summerskill, who I am sure would do the right thing. It is the principle with which I am dealing at this moment.
Some 16 months ago I quoted the example of New Zealand which indicated that the Commissioner would not be deluged with complaints. I take the point made by the Lord Chancellor concerning the population of our respective countries, and it will be interesting to compare our early years with theirs. What is most important is the person appointed, and I have not met anyone who does not approve of the appointment of Sir Edmund Compton. I am sure everybody here realises that he certainly will command respect and willing co-operation from Parliament, civil servants and public alike. Not only do Members of both Houses understand that this co-operation will be forthcoming, but we appreciate Sir Edmund's qualifications on the other side, which is an essential qualification if this job is to be done properly. As past Comptroller and Auditor General he knows how we all work, how our minds work, how Departments work, and he knows how to get the answers. Those of us who have sat on Select Committees know that it is not always possible to get the answers, but Sir Edmund Compton knows how to do it.
At the beginning of these remarks I mentioned that I thought there were limitations, and I said that I should like to comment on two as I saw them. In October, 1965, while welcoming the White Paper, I felt that valuable time could well be given to considering the possibility of Ombudsmen or Commissioners at local level. I am quite convinced that this is what the general public would welcome. At that time I wondered what progressive local authorities felt on the matter: in other words, would those progressive local authorities who were then appointing city managers welcome the appointment of a City Ombudsman too? The word "Ombudsman" is now being used in quite a general sense and I do not know whether my noble friend Lord Shackleton, when he comes to reply, could help us in this particular matter.
For example, I read that the Consumer Advisory Service set up in Bristol by Bristol Corporation would deal with queries and complaints from all sections of the Bristol public, including those 1413 made against Government bodies and the Corporation. Because of this, officers of the Council have called the man responsible a local Ombudsman. He is Mr. Lavery Crook and he is also the city public relations officer. I have not pursued matters there since October last, but it would be useful if we could know how the Bristol experiment has fared, particularly in connection with queries and complaints involving public bodies or Bristol Corporation. Could my noble friend give us any information on the following points? Has this been a success? How many local authorities are doing likewise? Are the Government prepared to recommend the appointment of local Commissioners at the present time? I say "at the present time", because the Lord President of the Council, when speaking in a debate in another place on October 18 last, told the House, referring to local government, as I think my noble friend the Lord Chancellor has said, that in Sweden it took over a hundred years before the extension of the Ombudsman's powers to local government took place.
Mr. Crossman felt it was right that the Parliamentary Ombudsman should deal only with the area of ministerial and therefore of Parliamentary control, leaving it to elected local authorities to work out their own way of equipping their own councillors with an office designed to remedy the grievances of rate papers by a searching investigation. The Lord President hoped that the big authorities would make the experiment as soon as possible. I hope I am paraphrasing my noble friend the Lord Chancellor correctly—I am sure nobody would dare paraphrase him incorrectly—when I say that I gathered from his remarks that the Government supported action by local authorities on this matter. Therefore I should like to ask my noble friend Lord Shackleton whether the appointment of Ombudsmen or Commissioners at local level needs to be written into the Bill, or is it a matter for the local authority. Or, thirdly, could it simply be done by an Order in Council? If any of these actions need to be taken by the Government, would they consider an Amendment to this effect at the Committee stage of the Bill?
I now come to the second limitation which worries me at this stage in our 1414 general discussion. I really am quite nervous about this, because I think we should all agree that nobody can explain a matter more clearly than my noble and learned friend the Lord Chancellor, and if those of us listening to him do not understand him, then I am quite convinced it is our fault. But he must be well-accustomed to this, and I hope he will bear with me. I am happy because the noble Lord, Lord Harlech, and the noble Lord, Lord Wade, could not understand either so at least I am the third and not the first.
I refer to Clause 5, subsection (4), to which reference has already been made. I know that my noble and learned friend the Lord Chancellor has already explained this matter, but although, like other Members of your Lordships' House who have a great interest in this subject, I have followed what happened in another place in Committee and on the Floor of the House, I just do not understand this point. This is the clause where the Commissioner has had taken out of his ambit—and I quote once more—any decision taken by a government department or other authority in the exercise of a discretion vested in that department or authority.I know that my noble friend Lord Shackleton has already had two tries at supplementing the explanation of my noble and learned friend the Lord Chancellor.
I studied what the Minister said in another place on this matter and I gather from what he said that this Amendment was added to amplify or to make more explicit the word "maladministration" on page 3, line 28. If my noble and learned friend the Lord Chancellor and my noble friend Lord Silkin say that "maladministration" is difficult to understand, I am not going to attempt to define it. But I am not happy about it. I am wondering whether my noble friend Lord Shackleton can, perhaps in layman's language, when he comes to wind up tell us whether the effect of this Amendment is that the Commissioner will be able only to enforce the rules, whether these be good or bad.
§ LORD SHACKLETON
My Lords, may I try to help the noble Lady right away? The Parliamentary Commissioner 1415 has no power himself to enforce any rules at all.
§ BARONESS BURTON OF COVENTRY
I thought so. I am coming to that later. But could my noble friend also answer this one? Does not this Amendment, which is now part of the Bill, restrict the power of the Commissioner to cases in which the Minister has no discretion? That is how it seems to me; and if my noble friend could explain when he comes to wind up, it would certainly be a great help to me, at any rate. Does he wish to reply now?
§ LORD SHACKLETON
My Lords, if the Minister has no discretion, it must surely then be a matter of law. If there is improper discretion, then this can be challenged. But, of course, the Parliamentary Commissioner is concerned with establishing whether there is maladministration, and for this purpose he can investigate any complaint. But if there is no discretion, and the Minister is merely carrying out some duty imposed upon him by Parliament, there will in fact be no question of maladministration.
§ LORD WADE
My Lords, I do not know whether I am in Order to ask the noble Lord a question arising out of that explanation. I will put my question to the noble Baroness and then I shall be in order. If a decision is taken by a Government Department or other authority in the exercise of a discretion, and the Parliamentary Commissioner thinks that that exercise of discretion has in some way been improperly carried out, is that maladministration? May I put that to the noble Baroness as a problem?
§ BARONESS BURTON OF COVENTRY
My Lords, may I ask my noble friend whether he would care to answer that?
§ LORD SHACKLETON
My Lords, I do not know whether I ought to go on with this chain reaction. But, clearly, if it has been improperly exercised it implies maladministration. I think the answer, therefore, is that if there has been an improper exercise of discretion, then there is a case on which the Parliamentary Commissioner will be able to pass judgment.
§ BARONESS BURTON OF COVENTRY
My Lords, at the risk of losing 1416 many friends, I will only say that I am glad I am not a lawyer and that I am in a much worse fog now than I was when I started to ask for the explanation. But probably after I have listened to other people the position will be a little clearer.
The other point I want to raise is that I am not happy about the exclusion in Clause 6(1)(a) of local government officers or the employees of nationalised industries; or the exclusion in Schedule 3, paragraph 8, of hospital boards. Having said that, I would explain that I do not, for one minute, suggest or think that the above would be offenders, but it is unfortunate that they are excluded. I feel that the general body of citizens in this country will not have a good impression conveyed to them by such exclusion. Speaking as a former Member of another place, I think that these are areas where a good deal of queries and complaints arise, and it is unfortunate that they should be excluded. Those are the only two limitations which I wish to discuss to-day. Doubtless we shall have a further chance in Committee.
I am not quite clear whether it is now settled that there will be a Commons Committee, with much the same relationship to the Parliamentary Commissioner as the Public Accounts Committee now has to the Comptroller and Auditor General. If it is so, I should have thought it would have considerable merit, because I assume that it would mean that such a Committee would be able to deal with important points of principle thrown up by investigations of the Commissioner. Although, quite rightly, this Committee would not be able to interfere with his work, presumably it would be able to raise any points of principle which seemed to an M.P. to have caused an unsatisfactory answer, and hence, ultimately, lead to necessary amendment of the law. It would be helpful—at least, I should find it so—if my noble friend could say something about that when he comes to wind up.
I have only one further comment and then I have done. I was glad to note that the Parliamentary Commissioner is to be an ex officio member of the Council on Tribunals. It has been a matter of concern to some of us for some time—those of us who are interested in this 1417 subject—that the Council has been worried about the difficulty of drawing a clear dividing line between their jurisdiction and that of the Parliamentary Commissioner. I know from discussions I have had that it has been felt that there is bound to be some overlap in their joint work. I was going to ask my noble and learned friend the Lord Chancellor, but now, of course, I must ask my noble friend Lord Shackleton, whether he feels that this danger of overlapping has now been coped with satisfactorily by the action taken.
I wish the Parliamentary Commissioner well. I think we could have had no better appointment than Sir Edmund Compton. But I hope and I am sure, as my noble friend Lord Silkin said, that the Government will listen to criticisms which are well meant for the success of this venture.
§ 5.27 p.m.
§ BARONESS ELLIOT OF HARWOOD
My Lords, I rise with a very great interest indeed to take part in this debate. We have had most interesting speeches from all sides, and, as often happens in your Lordships' House, the matters about which I am concerned and the questions which I shall ask and which will follow on those asked by the noble Baroness, Lady Burton of Coventry, are not perhaps so much on political divisions as on explanations of how this Bill is going to work. We have had a splendid fighting speech from the noble Lord, Lord Redmayne, who really knows and appreciates the rights of individual Members of Parliament, and for that I respect him very much indeed.
I would support those of your Lordships who would like to see Members of the House of Lords included in the Parliamentary Commissioner's jurisdiction, so to speak. Since I became a Member of the House of Lords I have had a considerable number of letters, just as I am sure other Members have had. I communicate with the Government representatives in the House of Lords on those questions which are put to me, and often receive very satisfactory answers. I think it would be only right, if the Government so agree, that your Lordships should be included in this Bill, because I believe that we could make a contribution. The public sometimes, perhaps not to the same extent 1418 as to Members of the House of Commons, appeal to us to help them, and if we can do so it will give us as much satisfaction as we know it gives to Members of another place representing their constituents.
I am interested in the Bill in the first instance because I look upon it as one of the protections for the consumer, and I am, as I need not remind your Lordships, responsible at the moment for an organisation which protects consumers. I think it is a matter of great importance to find a solution to the problem of protecting the rights of individuals against the growth of modern bureaucracy. This problem has perplexed many Governments, not only the one we have to-day. At the time when this Bill was being discussed and talked about I hoped that we should find in it a powerful champion for the ordinary person, and I am a little disappointed that certain things have been left out—things which I believe to be of considerable importance. If I mention one or two of those things, I hope that perhaps the noble Lord who is to reply will be able to give us some reassurance.
To begin with, might I take the exclusions? I am very sorry, as I think is the noble Baroness, Lady Burton of Coventry, that the National Health Service, the hospital service, has been excluded, because I think this is a matter which affects a great many of the citizens of this country. While one does not want to make life more difficult for doctors, for hospitals, or for anybody connected with the hospital service, I believe that the machinery of the National Health Service, the administration of the National Health Service, is something which the Ombudsman might very profitably be allowed to inquire into, for quite often it is most inadequate. Indeed, in the priority of candidates for the Ombudsman's protection, I would put the National Health Service very high in the list. The Regional Hospital Boards, too, are outside his jurisdiction under the Bill, and I would also bring these in.
Like other Members of your Lordships' House, I have read with care the discussions in another place, and I think it was on Report stage that the Government spokesman talked of an Ombudsman for the National Health Service alone. I would not be in favour of this. 1419 I think it would be unnecessary, and would add considerably to the bureaucratic machinery of the Parliamentary Commissioner—and this we want to keep to the minimum. I was not impressed by the arguments put forward by the Government spokesman on this aspect of the Bill, and I hope that the noble Lord who is to reply will be able to say that he is prepared to look at this again.
On Clause 5, subsection (4), upon which very much discussion has taken place in your Lordships' House this evening, I should like to add another request to the noble Lord, Lord Shackleton, and perhaps I may express my views in the hope that I may receive some enlightenment about this, too. I quite understand that Clause 5, subsection (4), would be unworkable if every administrative decision could be opened up, and that this would, in effect. merely transfer the point of decision-making to the Ombudsman. Conversely, if the Ombudsman is to be shut out from investigating any administrative decision taken under powers giving a final and absolute discretion to the Administration, then this will exclude him from those very abuses with which he was created to deal in the first place. As the Bill stands, the Ombudsman can investigate only when a Minister is under a duty to take a decision and fails to do so. Where he takes positive action wrongly—and this is surely the origin of most grievances—he cannot be questioned. Where is the line to be drawn? From the consumers' point of view (in the widest sense of that word) it is surely essential that he should be able to investigate how decisions are arrived at. If he finds that any administrative discretion has been properly exercised and the correct procedures followed, then it should be for him to say, "This is not my concern". But my point is that it is the Ombudsman and not the Minister who should be empowered to decide whether or not the manner in which a decision is taken is according to the rules and is fair to all parties.
§ LORD SHACKLETON
May I interrupt the noble Baroness to say that this is precisely the position? It will be the Ombudsman who will decide.
§ BARONESS ELLIOT OF HARWOOD
That is good. Then I have thrown light 1420 on something which I found very difficult to understand, and which I think the noble Baroness, Lady Burton of Coventry, who spoke before me, also found very difficult.
§ BARONESS ELLIOT OF HARWOOD
I never give up. If the Ombudsman can do this, if he can look over the Minister's shoulder, and if he can make a double check, then this section of the Bill is a safeguard to the consumer. If that is so, then my queries are not necessary.
§ LORD SHACKLETON
Not only can he look over the Minister's shoulder, he can also read his minutes and his files.
§ BARONESS ELLIOT OF HARWOOD
I thank the noble Lord. I am glad to know this. This is a matter of considerable importance. I will pass from that, because I have had my explanation from the Minister.
One of the other matters discussed in another place concerned the exclusion from the Bill of the Foreign Office and the Consular Service. I read with a good deal of interest the debate in another place on the exclusion of the Consular Service. That is the Service which helps the ordinary traveller abroad. I am particularly concerned about these people, as they are sometimes let down very badly by tour operators and bogus travel agents. They can also suffer much inconvenience at the hands of foreigners who are not anxious to be friendly or helpful, and the only persons to whom they can go are the Consular representatives. In any other period of our life this would not have mattered very much, but as to-day hundreds of thousands of people, possibly a million, go abroad every year, this is a matter of considerable importance.
The proposal that we should include the Consular Service among those in the Schedule 2 was turned down by the Government spokesman in another place on the ground that there are 400 Consuls and that it would be impossible for the Parliamentary Commissioner to contact them without having to fly around visiting them. I do not anticipate that this will be necessary. There are, after all, airmail posts and airmail services all over the world, and there are not likely to be complaints about 400 Consular posts. It is 1421 more likely to be on a few occasions that the ordinary traveller will be glad to be able to count on his or her difficulties on their travels being included in the subjects which M.P.s can take up with the Ombudsman. I hope that the Minister will consider this when he replies.
There is another matter, and that is in connection with the Minister who is able to plead privacy on the grounds of security or that something is against the national interest, which is dealt with in Clause 11, subsection (3). This is something which, in the case of the Swedish Ombudsman—again, I have made some inquiries about this—does not happen. The Swedish Ombudsman has access to all documents, even secret ones. Clause 7 of the Bill requires the Ombudsman to make his investigations in private. Why, then, are Ministers empowered under Clause 11 of this Bill to prohibit disclosure of documents if, in the opinion of the Minister, disclosure would be contrary to the public interest? Although Clause 8 lifts the legal restrictions on disclosure to some extent, Ministers still retain the power I have mentioned. This, I know, is a difficult point. We all know that it has been a standing temptation to Departments to give the words "contrary to the public interest" a rather elastic meaning when their affairs are called in question; and it can mean that the Executive is judge and jury in its own cause. If ever there was a case for an independent second opinion by the Ombudsman—a private opinion—it seems to me that it might well be here.
§ LORD SHACKLETON
Perhaps the noble and learned Lord the Lord Chancellor will allow me to answer, as I am nearer the Despatch Box. The noble Lady is being extremely helpful, because she is raising every single false impression which has been expressed on the Bill. The Ombudsman will have complete access to the papers, and the Minister will not be able to prevent him seeing them.
§ BARONESS ELLIOT OF HARWOOD
Even though, from these words in the Bill, it looks very much as though he could? Perhaps this could be made clearer by some re-wording when we are dealing with Amendments.
§ LORD SHACKLETON
My Lords, if the noble Lady wishes for greater clarity, 1422 she perhaps should turn her attention to matters other than Parliamentary Bills, which are drafted for a particular purpose. I should explain clearly to her that this concerns only the publication of these papers outside the Department; but the Parliamentary Commissioner has full access to them. It is in relation particularly to a matter of security. If it is a security question, it may then be undesirable to give it general publication.
§ BARONESS ELLIOT OF HARWOOD
My Lords, I am delighted to have elicited so much information by my remarks, and I am grateful to the noble Lord for his reply.
I should like to raise a point about the exclusion of local government—I think this was a matter that the noble Lord, Lord Silkin, raised—and also a point on complaints about the police. Complaints about the police are excluded from investigation; so the standing criticism of the present manner of investigation of complaints by the police authorities is left untouched. It is worth noting that the Swedish Ombudsman is able to exonerate, as well as to investigate the powers of the police and of the public, which I think is certainly welcome.
I think that many of the gravest decisions affecting individuals emanate from local government—and I speak with some authority, having been for thirty years a member of a local authority. Here, again, the Ombudsman is excluded. There will, I am sure, be difficulties in bringing this sphere under the Parliamentary Commissioner but, as other noble Lords have said, I do not think these difficulties are insuperable. I should like to see them investigated.
There is one other point which nobody else, I think, has raised. Again the noble Lord may say he has already answered it. Clause 5(1)(a) says that all complaints must be written complaints to a Member of Parliament or, presumably, from him to the Commissioner. I do not need to stress the fact for those Members who have for years been holding weekly meetings of their constituents—and I am sure that the noble Baroness, Lady Burton of Coventry, did so in Coventry, when she represented the people there—that a great many people who come to complain would be quite incapable of stating their trouble simply and clearly in writing. In fact, everyone knows that it is often very difficult 1423 to make an application in writing and that the best way is to see the person concerned and to make the complaint for them or to listen to their troubles. I know, through working closely with the Citizens Advice Bureau, that the greater proportion of all the complaints they get come to them from people who would be quite incapable of making written applications on these points; they are capable only of coming to discuss it with a sympathetic listener who will help them in conversation and help them to try to solve their difficulties.
§ LORD SHACKLETON
My Lords, I may tell the noble Lady that her fears on that score are also groundless.
§ BARONESS ELLIOT OF HARWOOD
My Lords, in those circumstances, if my fears for the consumer are all met already, I feel much more enthusiastic about the Bill than I did when I started to make this speech. I am anxious that the consumer should have full access and also full redress on any point he may wish to take up. If the Bill has the safeguards I have put forward, then I am very grateful. There are other points which have been raised by other Members which I shall be interested to speak to on Committee stage, and I trust we shall then be able to make some alterations. I hope it will be a valuable Bill; I think it could be strengthened, and I should like to add my support to those who would like to bring the House of Lords and the House of Commons together in the Bill. In conclusion, I express the hope that the Bill will be a success.
§ 5.45 p.m.
§ LORD MITCHISON
My Lords, I should like to say a word or two about the name of this officer. I think that "Ombudsman", a Scandinavian word, even when spoken with a charming Scottish voice is rather misleading. Really, the Ombudsman has an entirely different function in a much smaller country. With a Constitution so different from ours, he is bound to have different duties and responsibilities. When the trams were introduced into the streets of Athens for the first time, the Greek newspapers, who believe in keeping to classical Greek, called them "horse iron courser". But the inhabitants, un- 1424 daunted by this awful word, called it "Tó tram"; and "Tó tram" it has been ever since. The Welsh are a great deal better than we are at this kind of thing. I agree that the phrase "Parliamentary Commissioner" is rather cumbersome. Why not "Edmund the Search"? I think it would be just the right Welsh way to describe what the man has to do.
"Edmund the Search", we hope, is going to be appointed; and I think it is important to see what kind of job he has to do. He is, of course, paid by the House of Commons; he is answerable to the House of Commons; he reports to the House of Commons; he is described, and I think rightly, as an Officer of the House of Commons. There is one other similar Officer at present, the Comptroller-General. The Comptroller-General has always been someone who is removable only on an Address from both Houses. But it would be rather absurd, when you promote this distinguished person to this new job, if you were to make him merely dismissible by a Resolution of the Commons. It has been said to be for that reason only that a Resolution of both Houses was required. But he is an Officer of the Commons. When I look at what his powers and functions are, they seem to be fundamentally those which an ordinary Member of Parliament would exercise sitting in the House.
Let us first look at this question of policy direction and administration. Policy, it seems to me, is clearly laid down by Parliament, by the Government, in the complicated way that our Constitution has evolved over the years—a way which seems far from having finished evolving yet. Then we come to the question of what is "discretion". I do not find the difficulty that people find about this word. I suppose I am a particularly innocent breed of lawyer. I am certainly not a practised one. "Discretion" seems to me quite clear. You leave things in Statutes expressly to a Minister's discretion. Sometimes you do so by the form of words that are used: "He may do so and so; he shall do something else". That is no infallible guide; but if you look at an Act you see quite clearly what discretion is intended to be in a particular case and you see what element of it is imperative. Again, you 1425 sometimes use general words which give him a general form of discretion. But this is all a matter for the Minister, something in the exercise of which he is answerable to Parliament; therefore it is a matter for him to be "hauled over the coals" about and not, as I understand it, for "Edmund the Search" to investigate. I do not see the difficulty.
Then it is said: "Well, the line is not a sharp one." It has been said to-day that you never get sharp lines. But you do. You get sharp lines when you divide things by a date, for instance, as you do in a good deal of social service legislation. And what is the result? Often, you get a lot of hardship and unfairness among the people who are just on one side of the line. I recognise that this is not a clear-cut line. It seems to me, none the less, to be a perfectly real one, and it is quite possible to have a real line which is not clear-cut. We constantly have it in all sorts of ways. I have been trying to think of a better word, as everybody has, but I cannot think of one. I find no difficulty at all in understanding what is meant by "maladministration". You can search your mind to try to find border-line cases of course—it is rather fun to do so—but it does not meet the real point, which is that it is the clearest way of conveying the intention of the field in which "Edmund the Search" has to operate without limiting it by one definition or unduly enlarging it by another. Definitions in Acts of Parliament so very often do a good deal more than define. They even limit or enlarge, and therefore I find no difficulty about that.
This seems to me to be a field in which the Member of Parliament operates when in his own constituency. He comes to the House and plays his part in the formation of policy, and harries' the Minister on questions of discretion. But when he goes to his constituency, what he is very largely concerned with is administration, or sometimes, but rather rarely, maladministration.
I do not think there will be an enormous number of cases under this Bill; that is my impression. There is one rather horrifying figure which I should like to mention to your Lordships. In a year and a half New Zealand, with a population (here I am speaking off the cuff, and I hope I have the figure right) 1426 of a million and a half, had a thousand cases to deal with. If you multiply that number to estimate the number of cases we shall have (I am sure that your Lordships' arithmetic, indeed anybody's arithmetic, is better than mine) you come to a number of about 30,000 or 40,000. £150,000 by way of a preliminary estimate of the expense rather indicates that kind of figure. Perhaps I am wrong; perhaps there will be more. What I think is really going to happen, and what I am afraid of, is that there will be a great many people who will send complaints to the "Search", if I may so call him, which are not within his province.
What I am nervous about over the Bill is this. It was described by the Financial Secretary during the Third Reading debate in another place as quite a considerable experiment in our system of government. That is the very most that it is. It cannot, as I see it, cover matters of local government without being utterly illogical and also, I should have thought, utterly impracticable—but completely illogical. After all, what is to be investigated is maladministration; it is to be investigated, as the list shows, in organs of government and not of course in nationalised industries—that is another matter—and it is not to be investigated in local government. Compared with some noble Lords who have been speaking to-day I am no expert, but I should not have thought that local authorities would like it a bit if a man sitting in London is going to investigate maladministration in a local council. There are other ways of dealing with that already. One used to be to send a certain noble Lady now in this House to tell them where they got off, and it worked very well. She was very good at it.
Besides that, there are in a great many of these cases appeals to the Minister; and there are sometimes appeals to tribunals, bodies such as a lands tribunal or one of the other tribunals which are set up. There are different methods of dealing with something else, and they are not in the field of "Edmund the Search", and they cannot be without producing a totally different kind of animal from what this Bill is intended to produce. I think that is quite right. 1427 I do not think we want to try to produce a sweeping Bill.
My Lords, it may be that this kind of provision is not the right way at all. I do not think the alternative to-day is something on the Scandinavian lines. For the reasons given by the noble and learned Lord the Lord Chancellor, which I think I mentioned myself, we shall not get any further in that direction; it does not fit our system of Parliamentary government. If you were going to have an alternative you would be far more likely to find it in the kind of system which the French have. France is a country comparable, roughly, in size and resources and industrialisation to our own, and their alternative to the Ombudsman is to have a conseil d'état and a system of administrative law which runs down from the conseil d'état to local tribunals, which has served the purposes of France rather well. But I think that the differences in their Parliamentary system, when you come to look at them, are probably too fundamental to make that kind of system of much use to us. But it is there as an alternative, and I suppose that it is such a nice change, if I may say so without being rude to anybody, or intending to be, to have a noble and learned Lord sitting on the Woolsack who really wants to tidy up the law. I am not intending to say that other people have not made efforts, but at any rate he is trying; and this is the kind of thing which I should have thought would have to be considered from that point of view.
Before I sit down, may I just thank the noble Lord, Lord Redmayne. He has thrown, at any rate for me, a wonderful light on the workings of a place to which I have never been before —the mind of a Chief Whip. He was inordinately prodigal with Parliamentary time for Private Members. I think it must have been his instincts, suppressed over many years; a thirst for liberty which, perhaps, has been a little quelled by his previous position. He will not, I hope, take this unkindly. It is not in the least meant to be unkind. As he will have gathered, I do not agree with his speech, but I hope he will like my saying that I found it very interesting.
§ 5.58 p.m.
§ LORD REAY
My Lords, I cannot answer for remarks attributed to my 1428 noble friend Lord Byers on some earlier occasion, and he is not here to deny them. I will just say that he has been misinterpreted. In any case, I myself certainly belong to that wing of the Liberal Party, which is perhaps the main body of the Liberal Party, which would welcome at any rate the principle of this Bill. I think it is an important and desirable novelty in our Constitution that the principle of a Minister's responsibility before Parliament for his Department should no longer be accepted as adequate protection for the citizen against the actions of the Executive. I think also that this Parliamentary Commissioner will provide a remedy for certain cases of injustice, although unquestionably only for a very small minority of such cases, which do result from maladministration. For this reason, and by reason of his very existence, this should do something to relieve that steam of resentment that the public accumulates in its sense of being overborne by bureaucracy.
I happen to believe that the issue of bureaucracy is one crucial to Western democracies at this time. In these countries a rapid increase of population and a rapid equalisation of the standards of living has necessitated a proliferation of controls; of compulsory purchase orders; of regulations; of licences, all of which are bureaucratically managed. In such circumstances it is, I think, very easy for the citizens to accumulate a sense of frustration, a sense of restriction, a sense of remoteness from Government.
There was recently an example in Holland, a country in which I live part of my life, of the sort of explosion which I think can result from this sort of background; of a sense of restriction from bureaucratic control, which I am quite sure in that case was largely responsible. It therefore seems to me that in societies like these, where it is particularly necessary—where in fact it is a physical necessity—to have so many controls, it becomes, for that reason, all the more important to avoid adding causes for a sense of injustice. It is for this reason that the appearance of this Bill is timely, in that at least it addresses itself to the relief of this problem.
Having said that, I should like to express a fear that this Bill will gradually 1429 be found to be a considerable disappointment. It will certainly be a disappointment to the First Secretary. Since this debate has not been free from references to the inconsistencies of earlier remarks of members of different Parties, I do not think that I can be called to account for repeating what the First Secretary wrote in 1964 in the New Statesman. He said:There are cases involving the police or perhaps the prisons or mental hospitals where evidence conflicts and the Executive wishes to protect its servants. A tribunal under the 1921 Act may be too fond of this, yet the collective authority of Parliament rather than of a single M.P. may be needed to discover the truth.This Bill certainly does not go so far as that. The list of exclusions is formidable—Government contracts, nationalised industries, Civil Service, Armed Forces, all matters of personnel, the anomaly of most but not all public hospitals and, above all, the two questions that have rightly drawn most attention, the colossal areas under local government—planning, education, rates, police, housing—and, secondly, the areas of departmental and Ministerial policies and discretion.
It is on those two questions that I am afraid once again I should like to concentrate. I do not understand the Government's attitude with regard to local authorities. There is no disagreement that it is in this area in which most complaints are made and felt by ordinary people. That is not surprising, because they have far more contact with their local authorities than with Central Government authorities. It seems to be the Government's hope—and I think that this has been acknowledged in this debate—that local authorities will follow the precedent set out in this Bill and establish some form of remedial procedure of their own.
In the first place, this might take a long time and it would certainly be a very unequal process. There is enough complacency to make sure of that. Secondly, if local authorities did tend to follow this example, I wonder what the result would he like? There would be complaint officers, such as those which certain councils have already established. I cannot think that this is very satisfactory. For a local authority to detail a member of itself, responsible to itself, to receive complaints against itself, and for that authority then to take what notice 1430 it pleases, seems to me a poor sort of Ombudsman indeed. This puts me more in mind of the complaints box at school where disciplinary action for having had the audacity to complain is just as likely a result as the remedying of the injustice complained of.
Imagine for a moment that all local authorities did leap to this example in the Bill. There are some 1,500 local authorities. Imagine some 1,500 local Ombudsmen, not to mention any established by the 7,500 parish councils, who might choose to follow the Government's example—each of widely varying capacity, of varying ideas of justice and of varying terms of reference, dealing with a moving population, carrying grievances from one district to another, perhaps to one officer after another. There would be countless complaints about the varying standards of justice which operated between these Ombudsmen. Perhaps we would then have to create tiers of Ombudsmen above them to review their decisions. I submit that this is an unacceptable picture.
What is confusing is that the Government also have spoken in different terms. On the Second Reading in another place the Financial Secretary said:The decision not to extend the Bill to cover the actions of local authorities stems immediately from the decision that he is a Parliamentary Commissioner.This was a point repeated by the noble and learned Lord the Lord Chancellor in his speech this afternoon. I presume that it means that the Commissioner's responsibility is to Parliament.
In this case only two courses can be open. Either the powers of the Parliamentary Commissioner must be extended to cover local authorities at some stage, or there must be regional Parliamentary commissioners, and I think that this is probably what this Party would like to see. I do not think it is necessary at this stage to extend the powers of the Parliamentary Commissioner to cover local authorities. I think that we should wait for the recommendations of the Royal Commission on Local Government. The Commission, after all, may recommend regional assemblies. Perhaps it is a good thing if the Parliamentary Commissioner is started off with just a nibble at the problem. We have to wait and see his digestive capacity. But there does not 1431 seem to be any need to exclude the possibility of later amending this Bill so that the Parliamentary Commissioner may be empowered to cover local authority matters, which this Bill now does both in its Title and in Clause 4(2). In that respect, we would seek to amend the Bill in Committee. Secondly, I think we must still recognise that in the meantime the Parliamentary Commissioner's job in terms of the problem of maladministration as a whole would be limited.
I turn to the second area of exclusion, that of policy and discretion, and on both points I am afraid that I shall have to ask for clarification. How inclusive is "policy"? If a complaint is investigated, and on any ordinary reading the result of the Department's decision has produced an unfairness, but let us say the Department could show that the decision was typical of a number of other such decisions it had already taken, could it then claim immunity on the ground that this was a Ministerial policy decision? I should like to know the answer to that.
In this respect, perhaps I could refer to the example which the noble and learned Lord the Lord Chancellor gave of a less disabled man given priority in his application for a wheelchair over a person more disabled, because it was the policy of the Department, because they would like him to go out to work.
§ THE LORD CHANCELLOR
My Lords, in answer to the noble Lord, there is no question of excluding a view. What the Commissioner will be doing is to find out what is happening. The key words of this subsection are, "to review by way of appeal". He is not entitled to walk into a Government Department and say that he is going to overrule their decision. I was interested in what the noble Lord was saying, and before he sits down perhaps he could explain how this could be extended to local authorities. The Commissioner has powers to cross-examine and to see all documents, but he cannot make an executive order. He cannot overrule any Minister's decision in any case at all. All he can do is to ask the Minister to do what he thinks is right and report to the Select Committee which can then call the Minister to account. It is the Select Committee which has power over Ministers. But a Parliamentary 1432 Select Committee has no power over the Mayor of Bootle.
§ LORD REAY
My Lords, I accept the noble and learned Lord's point that the Parliamentary Commissioner does not have any power apart from his power of investigation. But he can certainly be given powers to investigate complaints arising out of local authority matters. What we may then get is such a body of evidence produced by the Parliamentary Commissioner, as a result of his investigations into local authority maladministration, that we should establish the need for an alteration of procedure to enable the local authorities to establish machinery to control in some measure maladministration in local authority matters. I accept the noble and learned Lord's objection in this respect, and I see that this difficulty might arise, but it is something which could possibly lead to beneficial legislation in the long run.
Perhaps I can move to the question of discretion. What I understood the noble and learned Lord to say originally (and this is from Clause 5(4)) was that you can get a Minister's discretion which has been based on an administrative procedure that has been correctly followed, and in that case the Parliamentary Commissioner would not be entitled to review the discretionary decision of the Minister. It is simply the case of an appeal against the Minister's decision. Is that not right? The original distinction was between a discretionary decision by a Minister based on an administrative procedure that has been incorrectly followed, and a discretionary decision by a Minister based on a procedure that has been correctly followed, and in both cases the Ombudsman would be entitled to conduct an investigation. There is no doubt about this, I take it? It is a question that must be answered. That is to say, in all cases the Ombudsman must be free to conduct an investigation, because he cannot know in advance where the responsibility lies, with the discretion of the Minister or the maladministration upon which it is based. This is where I may be incorrect. Is the distinction between his power to review based on the distinction I have drawn between these two different types of maladministration?
§ THE LORD CHANCELLOR
I think that is right. The way in which the Whyatt Report puts it is this:Our Inquiry is not concerned with complaints against administrative acts merely because they give effect to laws which are considered objectionable or in some way undesirable. Such complaints are not in fact complaints against bad administration but against bad laws. Similarly, complaints against administrative acts merely because they implement what is considered to be wrong policy are not our concern since policy is the responsibility of the Minister and not of the administrator. Nor are complaints against discretionary decisions which are lawful in themselves but unwelcome to the complainant within the scope of the complaints with which we are concerned. The remedy for such complaints (if deserving of remedy) is, and to an increasing extent should be—as we have suggested in Part II of our Report —by way of an appeal to a tribunal.The complaints with which we deal are complaints of official misconduct in a sense that the administrative authority responsible for the act or decision complained of has failed to observe proper standards of conduct …".
§ LORD REAY
In other words, my Lords, he is not restricted by his discretionary authority in any investigation. It is simply what he considers himself entitled to say at the end of it. Well, that is something. I am not sure that that is the only question one ought to ask about the meaning of this clause, but I think that I have said enough about it.
However, I share the view that the discretionary powers should probably not fall outside the field of his review, although I accept the difficulty of the question of simply leaving an individual to appeal against it. What one does not know is how large this area covered by discretion would be, and perhaps what one might have from the Deputy Leader of the House later is some description of how wide an area is covered by discretionary judgments of Departments and Ministries, and whether they can be described as any area in which there were not positive legal instructions discoverable as to how the civil servant or the Minister should act.
It seems to me that tribunals are not applicable as a general weapon of redress in this respect. They are rare. There are no real rules determining when they should be established; and usually it is in response to intense political pressure. I know that the Whyatt Report 1434 recommended that this should be dealt with by tribunals, and that the Tribunals and Inquiries Act 1958 has recently been extended. I am not convinced that this is a substantial adjustment to the Act, and it still seems to me that these objections would apply. Some sort of test would be whether the Government consider there are likely to be more cases of tribunals being established to adjudicate on matters of potential Ministerial bad discretion. Perhaps we could have the noble Lord's view on that.
So far as the recommendation of the Whyatt Report is concerned, the noble and learned Lord the Lord Chancellor was rather curious on this. He went out of his way to emphasise the calibre of Justice, and the weight that ought to be attached to its authority, and then went out of his way to demonstrate how the Government had, to use his words, "thrown out of the window" three of its most important and most cautious recommendations. He did not list a fourth that his colleague in another place listed in the same spirit—namely, a five-year trial period limiting the channel of communication to Members of Parliament. I suggest that a fifth might be added, and that the Whyatt Report should be exceeded in this respect of discretion, also; and I think I should support an Amendment on this in Committee.
There are two other points that I might mention. On the matter of a special report laid by the Parliamentary Commissioner before Parliament on individual cases, I think I should prefer something different from the suggestion of my noble friend Lord Wade, his suggestion being that the Parliamentary Commissioner should have power to refer it to the High Court by way of case stated. I should like to put forward the suggestion that such reports may be laid before the Judicial Committee established under the Judicial Committee Act 1833, which considered the Strauss Privilege case in 1958;or, alternatively, that a mixed Commission might be established, mixed in the sense of containing both lawyers and non-lawyers and Members of both Houses. It was, I think, such a Commission which was used in the Irish Peers case.
The advantages of this would seem to me to be that it would be small and 1435 judicial, which the Floor of the House of Commons would not be, but it would not exclude Parliamentary responsibility, which any reference to the High Court necessarily would. It would also be able to hear evidence—for example, the evidence of a named civil servant who could presumably be represented before it. This would not be possible either in the case of the report being referred to Parliament or of the report being referred to the High Court by way of case stated. Thirdly, I think it would enable the build-up of precedents for dealing with and interpreting such cases, rather as the French have done in the past where you have had a droit administratif.
I would support the idea that Peers also should be a channel of communication. I probably should not have bothered to mention this, if this had been done adequately, if it were not for the fact that I follow the noble Lord, Lord Mitchison. Apart from the reasons already given, it seems that Peers can already do a great deal in this respect. They can put down Starred Questions and Unstarred Questions, and can have correspondence with Ministers and their Departments.
I have only one final point. I have heard that it is the intention to have subsidiary officers of the Parliamentary Commissioner in Cardiff, Belfast and Edinburgh. It is possible that this is incorrect, in which case the Government might like to take this opportunity of denying it. If it is correct, I can understand why it should be Edinburgh, because, after all, they have a different system of law. But I should find it less easy to understand Cardiff and Belfast; not if they were separate Ombudsmen, attached to separate Parliaments in those regions, but in the present circumstances it seems that this may be a regrettable and invidious diffusion of responsibility, if indeed the investigation and report of cases of complaint would be completed autonomously in those different centres.
I would end by saying that I hope the distinguished man the Government has chosen is able to make a reasonable job of it, although I think it is certainly odd to appoint a holder to this office before the function of the office was clear. In any case, I believe everyone 1436 would wish him luck. It is a very important job, the more so as I think it is insufficiently appreciated how ignorant we all must be of the manner in which the job can be discharged.
§ 6.21 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, the hour is getting late and I will be as brief as I can. It seems to me that the general idea underlying the Bill is deserving of support. We need a long stop for all the cases where there is no adequate machinery for reviewing administrative decisions. But, that said, it seems to me also that this Bill probably falls a good deal short of what one would like to see. The Law Guardian, some time ago, in a leading article, described the new institution as an "Ombudsmouse" rather than an "Ombudsman". That is perhaps a little unkind, but one can see the point of the criticism.
When my right honourable friend in another place, the Lord President of the Council, introduced the Bill, he was anxious to repudiate the notion that this institution had been borrowed from other countries. He wanted to show, apparently, that it was a native product. That seems to me a little churlish perhaps, because, surely, this idea of a Parliamentary Commissioner was derived from the Scandinavian institution. Indeed, one may well think that in so far as it differs from that institution it is inferior to it.
There seems to be a certain official hostility towards the description "Ombudsman". For my part, I share the view of those who think that it is a good term. I should personally have liked to see it used. It has a homely ring, which I think would endear it much more to the ordinary citizen than this terrible mouthful of "Parliamentary Commissioner for Administration". That is also a designation which, I am afraid, is likely to be confused in the popular mind with the Law Commissioners, who are performing, of course, a very different function. Surely the English language is not incapable of assimilating a foreign term. After all, New Zealanders, who have adopted this institution, have not been afraid to use the designation, "Ombudsman" as a term in their Act.
§ LORD LLOYD OF HAMPSTEAD
My Lords, I am not and do not pretend to be an expert in the Scandinavian languages. All I can say is that it has become known as a popular designation for an official who is concerned to review administrative decisions, and what I am suggesting is that the ordinary man in the street will understand the term, whereas he will be somewhat daunted by the notion of a Parliamentary Commissioner for Administration. I do not want to take up too much time on that point.
I think that the Government fully intended to give this new institution what was called in another place "a real cutting edge". What I am rather doubtful about is whether they have succeeded in doing so. I say that for two reasons: first of all, because of this vexed and much discussed distinction between discretion and maladministration; and secondly, because of the many important fields of activity which have been excluded from the Bill. I should like to say a word or two about this distinction between discretion and maladministration, and would express my regret and apologies that I did not have the advantage this afternoon of hearing the opening speech of my noble and learned friend the Lord Chancellor which might well have clarified certain points for the benefit of your Lordships' House. Unfortunately, I was not present to hear the speech because I was obliged to be away on a public engagement, and it may be that some of my own misunderstanding and confusion about the matter would have been clarified if I had had the advantage of hearing his observations.
I would say, to begin with, that I think there is nothing whatsoever in the criticism that this new amendment of Clause 5(4) has in some way emasculated the original Bill. This, it seems to me, is nonsense, because it was made perfectly clear—and I have taken the trouble to re-read the debate which occurred in another place and in particular the opening speech of the Lord President of the Council, which makes it perfectly clear—that the original Bill was not intended to cover discretion. This also followed the Whyatt Report, which made this distinction between maladministration and discretion. In fact, the Lord President of the Council pointed out that discretion was excluded from the Bill, and he further 1438 pointed out that a discretion covered a decision properly exercised which the complainant disliked but where he could not fault the manner in which it was taken.
Then he went on to catalogue the sort of matters which constitute, in his view, maladministration by a civil servant, which he described, perhaps not inappropriately, as a "wonderful exercise". He went on to itemise these things as follows, and I quote:Bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness, and so on. It would be a long and interesting list.It sounds a formidable list. But the point I am making at the moment is that Clause 5(4) only served to underline that discretion was excluded from the Bill. My complaint about this matter is that this distinction between discretion and maladministration, which undoubtedly stems from the Whyatt Report itself, is, in my respectful view, an unsound and undesirable distinction. I feel convinced that the public will be grievously disappointed as it gradually penetrates to them that a great many of the sort of things they think they are going to be able to carry to this particular official will be excluded in limine. My Lords, can the ordinary man, "the man on the Clapham omnibus", as he has been described by some of our judges, really understand the difference between maladministration and discretion? I very much doubt it.
As I understand it, and I am far from being sure that I do, a fault in administration means this: an injustice has resulted from a wrong procedure, and then the Parliamentary Commissioner can investigate. If a right procedure leads to a demonstrably wrong, unfair or absurd result, then he is powerless. It seems to me, my Lords, that this is an unrealistic and artificial distinction to make, with all respect to the learned gentlemen who composed the Whyatt Committee. I have taken the trouble to look again (because I read it when it came out) at the actual Report of the Whyatt Committee, and it is interesting to see that they give three examples of what they called maladministration. The first one they call abuse of power, such as a public official behaving oppressively towards a person lawfully in his custody. That is a case which is hardly likely to arise, except in the case 1439 of the police, and the police have been excluded anyhow from this Bill. The second example is the misuse of power —for instance, an unfair preference when allocating a Government contract. This, your Lordships will appreciate, is also excluded from the Bill by Schedule 3 paragraph 9, because commercial contracts, and this would normally be a commercial contract, are excluded.
Thirdly, there is what one might call the "omnibus clause", which reads as follows:… or causes damage to a citizen through inefficiency, negligence or error in handling his rights or interests or, more rarely, official misconduct which may consist in a decision so harsh and unreasonable as to offend a sense of justice.It is this last case which, in my view, is the most practical and which really shows how thin is the line between maladministration and discretion.
In the ordinary way a citizen is not going to be much troubled with cases of "bias, perversity or turpitude" or matters of the kind which Mr. Crossman's eloquence was able to summon up in a vision of the matters with which the Ombudsman may have to deal. The ordinary citizen, surely, will be concerned with this sort of case. A man has, for instance, been refused some sort of licence or permission to do something and to him, at any rate, the decision will seem a silly or an unreasonable one. Or perhaps—and this I think may often occur —the Administration may have laid down some rule for their own guidance which seems, rightly or wrongly, to be unreasonable, arbitrary or unduly harsh. What the ordinary citizen wants is to have the matter looked at by some independent authority in order to satisfy himself that the decision was just or, alternatively, if it was unjust that it should be publicly declared and the authority persuaded to change its mind. But as I understand this kind of case—and I hope that I am not missing anything, or that I have not incorrectly interpreted the Bill as it stands —it seems to me to be a case for the exercise of discretion which will lie outside the function of the Commissioner.
I believe that in this matter two vital points have been overlooked, and I would stress these. The Whyatt Report follows the pattern (a little unfortunately, I think), of the Swedish Ombudsman instead of 1440 following the pattern of the Danish Ombudsman, which would have been much better from our point of view. The Swedish Ombudsman applies some difference of this kind, although it is far from clear exactly what the distinction means in Swedish practice. But the Swedish system—and this is a point that the Whyatt Report makes—contains a general tribunal, and this general tribunal is a tribunal to which all administrative exercises of discretion can go when the citizen has a grievance about them. So it seems to me that a vital gap in this Bill is filled by another institution. The second point is that had we followed the pattern of the Danish Ombudsman, who has the power to deal with both kinds of matter, we should then have, as I suggested at the beginning, a lung stop who is able to deal with all these administrative situations where a citizen feels that he has been unreasonably, arbitrarily or harshly treated.
I think it is interesting to point out that in the New Zealand legislation—which is surely legislation to which we ought to pay the closest attention, because this is a country with a Common Law system which is applying the Scandinavian institution in the context of Common Law ideas—very significantly not only do the New Zealanders quite boldly describe their Commissioner as an Ombudsman (which for my part I applaud) but, secondly, the power of their Ombudsman is very wide. Indeed, these are the words, if I may quote them, from the New Zealand Act:He is entitled to review any decision which was unreasonable, unjust, oppressive, improperly discriminatory or wrong".I suggest that this is a much more realistic and satisfactory approach, and one which would give the public a much greater sense of having a genuine protector against faulty administration.
§ LORD SHACKLETON
If I may interrupt my noble friend, it is worth pointing out that the New Zealand Ombudsman does not have the right to review the decisions of Ministers.
§ LORD LLOYD OF HAMPSTEAD
My Lords, I do not dispute for a moment that he has not got this right. If I may say so, at the moment I am not talking about Ministers, I am talking about the administrative decisions of officials. Perhaps a 1441 Minister is also a kind of official, but I am thinking in terms of more subordinate officials who are exercising discretions in ways which will be regarded as "harsh, arbitrary or unreasonable" by the citizen. I think I have read that our Parliamentary Commissioner-designate has been visiting New Zealand in order to gain experience of the working of the system in that country, and I am bound to say that I feel it will be a somewhat frustrating experience for him in view of the fact, as I see it, that the New Zealand Ombudsman has a much broader based function than the Parliamentary Commissioner in this country will have. For instance, Sir Guy Powles, the present New Zealand Ombudsman, has pointed out that many of the cases with which he has dealt, and to which he has attached the greatest importance, have been cases which involve hardship.
I may be quite wrong in my construction of the Bill (and no doubt if I am it will be pointed out to me) but as it seems to me at the moment cases of hardship are not within the function of the Commissioner. In his reports Sir Guy Powles has given a number of striking cases where he was able to point out to the Administration that they had not given sufficient weight to certain elements of hardship, and as a result fresh decisions were arrived at. This seems to me to be a very important aspect of an Ombudsman's potential function.
§ LORD MITCHISON
My Lords, may I ask my noble friend one question? This word "Ombudsman" in Swedish, where it seems to come from, means no more than "Commissioner". It is the Swedish for the word "Commissioner" in the phrase "Parliamentary Commissioner".
§ LORD LLOYD OF HAMPSTEAD
My Lords, I am most indebted to my noble—and learned—friend for that information which, I am sure, as information emanating from him always is, is entirely accurate. But that does not seem to be a reason for avoiding the use of the term in our own practice, because it seems to me that ordinary people would find this a more homely and acceptable term than that of "Parliamentary Commissioner for Administration". But I have already expressed my view on that, 1442 and I do not wish to dilate on it at any length.
I am not arguing for a moment that there should be recourse to the Parliamentary Commissioner (if I may so describe him to gratify my noble friend) in every case. I am not arguing that every exercise of discretion should go to the Commissioner. Of course, when there are tribunals which exist to deal with these matters then there is no need for duplication. But what I am concerned about is that in all that range of matters where there is no particular tribunal to which a citizen can go, this is an appropriate matter which ought to be within the jurisdiction of an Ombudsman.
I think there is a certain danger in this idea that a Commissioner in this country is going to be so flooded with complaints that we must cut his jurisdiction down ruthlessly from the beginning to make sure that he will not be overwhelmed. This is always an argument that is raised whenever a new notion or new institution is suggested in this country. It is always said, "The courts will be flooded with litigation if we allow this," and so forth. To my mind this is something of a bogey. In fact, it has even been said, and I think with some justice, that people in this country do not complain enough. It may be that our trains would be cleaner and our food in many restaurants more eatable if people complained more. The Council on Tribunals have remarked in some of their Reports on the small number of complaints that are directed to them. This seems to me to be a national characteristic.
Of course, we do need to protect individuals and officials from being unduly harassed by unwarranted complaints. But I should have thought that civil servants would find, as they have found in other countries, that this new institution will help them, because where the Ombudsman or the Commissioner is able to show that no just ground of complaint exists, then the sense of grievance will be removed and people will feel much happier about the whole matter because it has been investigated by an independent person. I think this will relieve civil servants of a considerable burden.
I do not agree with the argument that we must not let the Commissioner deal 1443 with discretion because we want government by Government and not by Commissioner. This again, I suggest, is a false point because administrative decisions are sometimes foolish, unwise or ill-considered, and that is why we have tribunals to deal with these matters. If there is not a tribunal to deal with every matter, which would be very difficult, it is extremely desirable, it seems to me, to have an Ombudsman who can listen to these complaints. Moreover, he will be protected from being unduly flooded with complaints by the provision in the Bill that complaints must be vetted in the first instance by Members of Parliament.
I agree with what has been said by a number of speakers that criticism can be levelled against the Bill also on the ground that it has excluded a number of very important sources of public grievances, such as the police, hospitals, nationalised industries and so on. On the other hand, it seems to me that there is a reasonable argument in favour of some restriction of this kind in the first instance, because in the initial stages one does not want the Commissioner to be given more than he can cope with. Whether each one of these particular exceptions is justifiable is perhaps another matter, but I do not wish to take up further time on that.
My general view on this Bill, then, is that it is to be commended and deserves acceptance as an attempt to increase the liberty of the subject in this country, but I am not really satisfied that it is a tremendously courageous piece of legislation. I think it might have been bolder and it could have been made more effective, and I rather share the view as it was expressed by a Member in another place when he referred to his reaction to it as that of modified rapture. If I may just make this final observation, we now understand that administrative law is not a means of curtailing liberty but a means of increasing the protection of the citizen. The concept of an Ombudsman seems to be a very fruitful one as providing a valuable supplement to the rather limited resources of our own piecemeal administrative law. For my part, I could have wished for a rather bolder attempt to make this present institution 1444 a reality. I feel that the public may be rather disappointed when it becomes apparent to them how limited is the sphere of activity of the Commissioner, and that great difficulty may be experienced in inspiring public confidence in this institution even with so admirably qualified a first incumbent of the office as Sir Edmund Compton.
§ 6.46 p.m.
§ LORD AIREDALE
My Lords, the noble Lord, Lord Mitchison, out of his great depth of knowledge, has informed us that "Ombudsman" is the Swedish not for Parliamentary Commissioner but simply for Commissioner. Perhaps we shall hear from the noble Lord when he has his next opportunity to address us what the Swedish is for "Parliamentary", and then we shall have the Swedish for the whole expression. I hesitate to say anything further about subsection (4) of Clause 5, which has already been touched upon by many noble Lords, including the very distinguished lawyer, the noble Lord who has just spoken, but undoubtedly that subsection caused noble Lords more trouble than any other. That is the one which deals with the Ombudsman's power in relation to the exercise by a Minister of his discretion. It has, I think, undoubtedly caused great difficulty for the noble Baroness, Lady Burton of Coventry, and undoubtedly also for my noble friend Lord Reay.
I do not know if this is of any help to the Minister at all, but I have written down what I believe may be the correct interpretation of this subsection, and if my interpretation is correct I am bound to say that I think the subsection is a fair one. My interpretation, for what it is worth, is this. Subsection (4) of Clause 5 means that an Ombudsman has no power to criticise a Minister's discretion reached in good faith, but he does have the power to inquire whether or not the Minister has acted unwisely or worse in the course of arriving at the point at which he exercises his discretion. I do not know if that helps at all, but that is what it appears to me to mean, and if that is what it does mean I could not quarrel with that subsection.
There is no need for me to add to the chorus of voices in favour of an Ombudsman to investigate matters of dispute between citizens and local authorities. Indeed, I thought nobody put it 1445 more forcibly in this debate than the noble and learned Lord, the Lord Chancellor himself, very early on, when he said it would be a very good thing if every local authority in the country had its own Ombudsman. I know that there are difficulties about this. You cannot do everything at once. But I do feel that, if the Ombudsman experiment is being tried, it is a thousand pities that it is not being tried in relation to the much simpler problems, albeit more numerous, in which citizens are in dispute with their local authorities, rather than with the very much more complex though less numerous problems that arise between the citizen and Whitehall.
I should like to give from my own experience one example of what I would regard as the perfect case for an Ombudsman to investigate—a dispute between a citizen and his local authority. This is taken from my own experience, and I know that, on the one hand, your Lordships welcome Members speaking from their own experience, but, upon the other hand, this is not to be used as an excuse for airing a private grievance in this House. I have thought about this carefully, and I hope that what I am about to say in a few words will be thought to be something which is not really so serious as to be capable of being a serious private grievance, but which, nevertheless, is a matter which well might be investigated by an Ombudsman.
Last May the clerk to the council of the rural district in which I live wrote to me a letter of complaint, in which he said:Two cottages belonging to you have no refrigerator or ventilated larder for the storage of food.I wrote back to him saying:Which two cottages are you referring to?I received no reply, and I wrote back again asking:Which two cottages are you referring to?Again I received no reply. The summer had worn on, and I am glad to say that nobody had contracted food poisoning because they had no proper place to store their food. I wrote a third time to the clerk and asked:Which two cottages were you referring to?After waiting a week I received a printed postcard with the printed signature of the 1446 clerk to the rural district council, in which he said:I beg to acknowledge receipt of your communication of the 12th inst., which is receiving attention".I did not believe that it was, and I placed this matter before the noble Lord, Lord Champion, whom I am delighted to see in his place, who was then Minister without Portfolio answering in your Lordships' House for matters concerning health and hygiene. What the noble Lord did I do not quite know, but a reply came subsequently from the clerk to the rural district council. He specified the two cottages to which he had been referring and at the end of his letter he said:I await hearing from you when the refrigerators have been installed.I was able to say in reply to that letter that the original complaint of the previous May was totally unfounded. The original tenants of both of these cottages had arrived with their own refrigerators on the day they moved in. I amglad to say that they are both still in occupation of the cottages and, so far as I know, have still got their refrigerators.
I do not know whether the local authority believe what I have told them or not, but what I am quite sure of is that an Ombudsman worth his salt ought to be able to resolve a dispute of this kind in three minutes, by ringing up the clerk to the local authority and saying "Now, look here, either a cottage has a refrigerator, or it has not. But you say in this case that it has not, and he says that it has. Why on earth don't you send somebody round to find out?" That is why I feel that it is a great pity that, if we are trying the Ombudsman experiment, local authorities placed in a situation of this kind are going to be sheltered from the attention of the Ombudsman.
§ 6.53 p.m.
§ THE MARQUESS OF EXETER
My Lords, as the chief ogre in this particular little story that we have just heard from the noble Lord, Lord Airedale, namely, the chairman of the rural district council concerned, I feel that your Lordships will forgive me if I put in a word here because I think that, although they are a quite small council and a small pebble on the beach, they are a body which is second to none in public spiritedness, and also, whatever the facts of this particular case may be, they have 1447 an extremely efficient body of officers who serve them.
The path of true love does not really run straight. We have not been without our problems with the noble Lord. It may be that the letters were not answered as they should have been on that occasion. I would remind him, however, that he put in notice to build in April, 1965, to turn some of his house into some flats—a most praiseworthy idea. We got the notice that he intended to build in April. We also did not get the building form, the intention to build, which is necessary, completed for five months.
§ THE MARQUESS OF EXETER
My Lords, I was just about to come on to that. I was just explaining that these difficulties are not confined to one person. So there are such things as "the kettle calling the pot black", which, I admit, is no excuse so far as our own officers are concerned. But this, I think, is quite an exceptional case. Those of your Lordships who are engaged in local government will know of the problem that he raised. It is a matter that under the by-laws there has to be either a larder or something similar as a landlord's fixture, which remains with the house—not a tenant's fixture he may get up and go and take it with him. That is how this particular problem arose, and that is a problem that has to be decided by the local authority according to their by-laws. But I can assure your Lordships that, so far as everything else is concerned in the local authority, I am quite confident that we have a fine lot of officers; and I think, if you ask them, the huge majority of the constituents of the council will agree with that.
§ 6.57 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, perhaps I might be excused if I do not venture into the internecine disputes of a certain rural district some way to the North of your Lordships' House, but address myself for one moment to the rather broader question of local authorities. This is one of the aspects of this Bill which I am sure will 1448 be fully discussed at the next stage; and I think there will be an interesting discussion on it then, as there has been on all matters that have been raised in the House this evening.
There are perhaps two points on this matter which are worth dealing with on Second Reading. The first is the one which was raised by the noble Lord, Lord Reay, that in fact the Bill as drawn at the moment would not contain authority in it to bring in a jurisdiction over local authorities by means of an Order under Clause 4. So far as I can see, the noble Lord, Lord Reay, was perfectly right in suggesting this. Whether or not at this moment it might be thought a good idea to have local authorities included in the Bill does not seem to me altogether the point. As I understand it, what we are doing is to institute some sort of experiment on a fairly narrow field; and I think the noble and learned Lord the Lord Chancellor was in fact talking in these terms when he introduced the Bill to this House. But that does not mean to say that one ought not to have power in the legislative measure which would enable Parliament, without coming back with a further Bill, to extend the field over which the Parliamentary Commissioner might be able to operate.
That being so, it occurred to me to wonder whether the power to make an Order in Council ought not to be extended to cover rather more than it does at the moment; and, indeed, whether it might be that we ought to consider this whole question of applying the power to extend by Order in Council to other parts of the jurisdiction of the Parliamentary Commissioner which have also been talked about this afternoon. I would have thought that there were sufficiently world-shaking things done these days by Orders in Council—if one considers what happens abroad in Rhodesia, or at home with the second appointed day under the Land Commission—to make it a tolerable exercise of power to use this subordinate legislation to do the sort of thing I was suggesting. However, it might be that we could return to that point later on.
The other point on this was the one that the noble and learned Lord raised. He asked, what was the point of bringing in local authorities? I am not sure that the argument that the noble and learned Lord was putting forward is an altogether 1449 valid one. It is true that a Select Committee of another place has no direct jurisdiction over the Mayor of Bootle. But what it does have is power to badger a Minister, and in many of the cases of the sort of thing that might go wrong with the administration of their powers by local authorities, Ministers have reserve powers under the General Acts.
When this point arose I thought that I might find such a thing in the Public Health Act 1936, and indeed I found in Section 318 (which I trust has not been repealed) the following:The Minister may cause a local inquiry to be held in any case where he …deems it advisable that a local inquiry should be held in relation to any matter concerning the public health in any place.Obviously, a large majority of the complaints which might come to the Commissioner in relation to local authorities would not invoke that type of inquiry. But there might be cases where the Minister ought to take action under reserve powers, and a Select Committee of another place might be precisely the instrument which would persuade him to do so. So I do not believe that it ought to be written-off altogether as a hopeless idea without further thought. Since nobody, I imagine, is proposing to move an Amendment to put local authorities within the jurisdiction at this moment, but at the most to put in an Amendment to enable them to be brought in at some future time, there would at least be a further opportunity to think whether it was wise to do this or not.
When the noble Lord, Lord Shackleton, comes to reply, I wonder whether he could answer one or two questions about this matter of jurisdiction. I am afraid I have not given him notice of them, but I do not think they are very difficult. First of all, during his introductory speech on the Land Commission Bill the noble and learned Lord the Lord Chancellor said that the Land Commission was going to be covered by the jurisdiction of the Parliamentary Commissioner. For obvious reasons, until the Land Commission Bill became law it was impossible to put anything in the Schedule, but is it the intention of the Government to move an Amendment to this effect?
I think probably it is unnecessary to say anything more about the paragraph in Schedule 3, which has had such 1450 a chequered career but is now in the Bill again, which excludes from the purview of the Commissioner regional hospital boards and other matters under the National Health Service. That again, I suspect, will be a matter which will be much discussed at a later stage. Could the noble Lord tell me this? If one compares the list of departments and authorities subject to investigation in Schedule 2 with the White Paper, I am not particularly concerned that we have not in the Bill the Ordnance Survey covered by the Second Schedule, but—
VISCOUNT COLVILLE OF CULROSS
That is being abolished, so I suppose it is now something else—probably the Welsh Office.
VISCOUNT COLVILLE OF CULROSS
Yes. I do not think that anybody has so changed the name or aspect of the Lord Privy Seal, the Minister Without Portfolio, or the Chancellor of the Duchy of Lancaster, that they have in some curious form ceased to exist. What those Ministers may do under different Administrations is a matter which can be changed and varied a great deal, but in some cases Ministers who hold those technical titles have departmental duties of one sort or another, and if they were in the White Paper as being Ministers who should be subject to investigation could the noble Lord, Lord Shackleton, say why they are not now in the Bill? There were the three I mentioned—the Lord Privy Seal, the Minister Without Portfolio and the Chancellor of the Duchy of Lancaster. I should have thought that action taken by them would be action taken on behalf of the Crown, which was the second principle enunciated by the noble and learned Lord the Lord Chancellor as governing the whole philosophy of this Bill.
Coming to Clause 5, I am not going to be so rash as to try to add to the wealth of definitions which have been put forward by various noble Lords this afternoon. I think I understand what it means, and I think there have been at least two accurate expressions of its meaning in 1451 the debate. Therefore, since I imagine Lord Shackleton will be producing one of his own, any effort of mine would be a matter of supererogation. But there are some practical difficulties about this, which I would ask the noble Lord to consider, even if he cannot answer them to-day. I believe that the noble Lord, Lord Lloyd of Hampstead, was quite right when he said that people will be disappointed about this. I have been trying to think how the matter would in fact operate.
The first point on which I should like a little help from the noble Lord is this. Under Clause 5(1)(a), the written complaint which is sent by a member of the public to a Member of another place has to claim that the member of the public has sustained injustice in consequence of maladministration in connection with action being taken by the Department concerned. The whole essence of so many of these complaints is that the person has a grievance, but until it is investigated it will be quite impossible to say whether that grievance results from maladministration or from something else. If that is so, how can he in good faith claim that there has been maladministration before the matter has been investigated? Must there be an absolutely clear case, on documentary or other evidence, which will have to be available before the investigation before the Parliamentary Commissioner can be involved at all? If so, I think this is going to be very narrow. If not, I feel that a certain amount of interpretation of this expression in the Bill is required.
I come to the second matter, on which the noble Baroness, Lady Burton of Coventry, touched. I am a little exercised about a possible clash between the work done by the Parliamentary Commissioner and the Council on Tribunals. It is true that the Parliamentary Commissioner will be an ex officio member of the Council on Tribunals and its Scottish branch, but as I understand it there will be serious overlaps in what they are meant to be doing.
I can best illustrate this by taking a field with which I am familiar, which is the jurisdiction of the Ministry of Housing and Local Government in planning matters. When the Minister determines an appeal against a planning decision 1452 made by the local planning authority, he is himself acting as a tribunal and comes within the jurisdiction of the Council on Tribunals. There are now certain rules which have to be adhered to before, at and after the inquiry before the decision is reached. If something goes wrong, even after the inquiry but before the decision, this is a matter which the Council on Tribunals is empowered to look at, and it has done so in cases like the famous Chalk Pit case in Essex. It is precisely this matter of something going wrong with the procedure, some unfair discussion or acquisition of new evidence which was not given to the person concerned so that he had no chance to comment on it. This is precisely the sort of job with which the Council on Tribunals is meant to deal and to curb or comment upon if it thinks fit.
As I understand it, this is precisely the same job that the Parliamentary Commissioner will be doing. I do not see that there is any great object, where the Council on Tribunals is already empowered to do this, in having a further jurisdiction in the Parliamentary Commissioner as well. So there is a wide field of those tribunals which are already subject to examination by the Council where I suspect all we are doing is duplicating the work, and perhaps the Parliamentary Commissioner will merely delegate the duties to the Council. Perhaps the noble Lord could say something about that point.
There is one matter where I think real trouble will result. The Council on Tribunals can look only at cases where something has gone very wrong in procedure or monstrously wrong in the decision itself. I envisage the case of a person who has had his appeal dealt with by an Inspector who has made a report in a certain direction with a recommendation, and this has been overruled by the Minister who has decided to the contrary. As a rule, what the person in those circumstances wishes to know is whether the Minister, in coming to a contrary conclusion from his Inspector, has really considered all the evidence and weighed it properly. What I envisage is that there would be cases where the Parliamentary Commissioner would be invited to comment on the possibility that the Minister had not taken full 1453 account of all the evidence in coming to the contrary conclusion, and that this was so unreasonable or so unfair in procedure that something ought to be done about it or that he had taken account of all the evidence quite properly, but had come to a conclusion which simply could not be supported on any of the facts in reaching the policy decision. These are going to be the difficult cases.
I entirely understand the distinction in the Bill, but I think this is where we are going to land up in trouble and this is where we are going to have to be very careful that the Parliamentary Commissioner should not run foul, either of the terminology of the Act or of the Select Committee, if he goes rather too far. It is for reasons of this kind that I rather welcome starting off fairly narrowly, because it is precisely on such a point that the Parliamentary Commissioner is going to get very close to matters of pure policy decision-making by Government Departments or by Ministers.
He may find that there is a limit beyond which he cannot go, and it may turn itself as a matter of practice into something which it is quite easy to decide when that point has been reached. On the other hand, to allow him to go that far and no farther at the first stage would, I should have thought, be wise, because otherwise we shall get hopelessly involved with the Commissioner dealing with the policy decisions themselves. To this extent, therefore, I very much disagree with the noble Lord, Lord Lloyd of Hampstead, who suggested that we should go straight to the further stage without any more ado.
I have one other point which I feel ought to be considered by this House. So far I think noble Lords have commented chiefly upon subsection (3) of Clause 6, which says that it shall be to a Member of the House of Commons and not to a Member of the House of Lords that a member of the public should address himself as a channel to the Parliamentary Commissioner. What may be the answer to that I do not know, and I do not propose to discuss it this evening because I suspect, again, that we shall be doing so in Committee. But what I feel is very well worthy of being raised as a matter of principle is Clause 10, which I think nobody has mentioned. 1454 The noble Lord, Lord Mitchison, in the most exceedingly audible undertone, agreed with my noble friend Lord Redmayne when he said that the effect of this Bill was that we were becoming second-class Parliamentarians. With this the House may or may not agree so far as Back-Benchers, or indeed those who sit on the other Front Benches, are concerned. But what I do not agree with, and would not accept for a moment, is that Ministers such as the noble and learned Lord the Lord Chancellor, in any Administration, or any of the other senior holders of office on the Government Front Bench are second-class Ministers.
§ LORD MITCHISON
My Lords, I am sorry. I cannot remember in what context I was overheard, but all I meant was that necessarily an assembly not elected and partly hereditary is not of as great value as a Parliamentary institution as an elected assembly.
VISCOUNT COLVILLE OF CULROSS
My Lords, the noble Lord has so adorned the House himself that he may have put that particular fear to rest. But I do not think this is the time to pursue the matter, and it is not the point of my argument. What I am wondering is, it the Parliamentary Commissioner is going to report only to another place, what is going to happen if he reports upon a Minister who happens to be in this House? Is it a good idea that he should investigate the Department of the noble and learned Lord the Lord Chancellor, or another senior Minister who happens to sit in this House, go away to report to another place, and to another place only, and, I assume, have the matter discussed only by the Select Committee of another place, in front of which the noble Lord who is a Member of this House would have to go and be hauled over the coals, while so far as I can make out your Lordships' House would have absolutely no power at all in the matter? This I should have thought to be highly objectionable to the relations between the two Houses, because if a noble Lord who is a Minister and a Member of this House is being criticised, then I think primarily he should be criticised by this House.
The other point which arises from this is that, as I understand it, in that particular case the report having gone to the other place it might be difficult for us to 1455 discuss it, which must be wrong. Is there not the general point that all reports by the Parliamentary Commissioner ought really to be made to Parliament, whether or not they are instigated by Members of the House of Commons? After all, as has been made clear so many times, in another place time is desperately short. It is at any rate possible in this House to have a debate on some of these matters, and the reports would presumably not only raise particular issues but sometimes raise general matters as well.
Therefore, can the noble Lord, Lord Shackleton, tell me this? Is it envisaged by the Government that debates on the reports, either special or annual, of the Parliamentary Commissioner would be in order in this House? Could we discuss them and would the Government be prepared to deal with them, or is this envisaged solely as a matter for another place? Could the noble Lord also deal with this question of the Minister who is a Member of this House and is criticised only in another place?
When this Bill was introduced the Financial Secretary to the Treasury said that he introduced it with due humility, and that he thought that certain parts of it were right. I still think that only certain parts of it are right, and that we can go on and improve it further as we go forward in the future stages of the Bill. This much I think we can at least agree with: we should in this matter start slowly, and in doing so we should recognise that we are starting slowly and are starting in a purely limited sphere. And when the Manifesto of the Party opposite talks in fruity phrases of the humanisation (what a revolting word that is!) of the relations between public and Government, this, if it is humanisation at all, is a very small part of the process. I do not think that this Bill ought to be over-decked with glowing praise. It must be looked upon as an experiment, and, of course, in those terms noble Lords behind me will, I am sure, support it and we will do our level best to improve it as it goes through this House. But I do not think we ought to pat ourselves on the backs this evening and say that this is anything very revolutionary.
§ 7.18 p.m.
§ LORD SHACKLETON
My Lords, this is one of the most difficult debates to 1456 which to reply that it has ever been my lot to suffer. I will do my best to answer as many as I can of the points that have been raised, but I fear I shall not be able to cover them all, and certainly some of these matters will come up in Committee. But before I turn to the principal points with which I am going to deal, I should like, on behalf of my noble and learned friend the Lord Chancellor, to correct a statement which he made at the beginning and which he has asked me to correct. He said in his speech that the recent Tribunals and Inquiries Act conferred on the Council on Tribunals the jurisdiction to review discretionary decisions, as the Whyatt Committee recommended. I hope I have got this correctly. I am sorry that my noble and learned friend is not here, but he has asked me to put this right.
I am afraid that that is not accurate, although such a misunderstanding is always encouraging to a layman like myself. All that that Act did was to bring within the Council's jurisdiction discretionary inquiries which a Minister has power, but is under no duty, to hold. These were obviously excluded, because the Tribunals and Inquiries Act 1958 defined statutory inquiries in such a way as to exclude discretionary inquiries. But the recent Act did not deal at all with the question of decisions taken by Ministers of Departments in the exercise of a discretion. It is quite apparent that the noble Viscount, Lord Colville of Culross, was aware that there had been a slip, even if other noble Lords like myself regarded this as being too esoteric. However, I must apologise on behalf of my noble and learned friend, who was anxious to put this matter right. I may say that in this respect he fell into the same error as the Lord President of the Council in another place.
My Lords, I should have liked to be able to say that this had been a good debate, but I found it a rather confusing one. For this, I really must blame (I am sorry he is not here) the noble Lord who opened for the Opposition, who I think successfully—
VISCOUNTCOLVILLE OF CULROSS
My Lords, I was simply going to say that my noble friend asked me to apologise very much to the House. The debate has gone on longer than he thought it would, and he has had to go.
§ LORD SHACKLETON
The noble Lord, Lord Harlech, treated the matter rather facetiously and I think misled the House. He particularly misled one or two noble Lords on that side of the House, I believe. In fact, I detected a touch of sour grapes about his speech, as I did about some of the speeches from the Liberal Benches. It is for this reason that I very much welcome the speech which has just been made by the noble Viscount, Lord Colville of Culross, and I hope that from now on there will perhaps be a little less Party political partisanship, which I have been rather surprised to hear in some of the speeches—and here I certainly except that of the noble Baroness, Lady Elliot of Harwood—which have been made from the other side.
I also except the speech of the noble Marquess, Lord Exeter, who came here very properly to defend his local authority against what, I must say, I found one of the oddest contributions I have heard to a debate of this kind, from the noble Lord, Lord Airedale. I understood that his grouse against the council was that they refused to allow him certain grants, which he did not mention to the House at all. If he wishes to pursue this matter—and he had great help from my noble friend Lord Kennet, who intervened—I suggest he puts down an Unstarred Question, when no doubt the subject will be debated again and when the noble Marquess will have an opportunity to defend his local authority. I think that diversion or digression on my part was no stranger than that of the noble Lord, Lord Airedale.
This led on, as did other contributions, to the important question whether we ought to widen the Bill or by other means extend the jurisdiction of the Parliamentary Commissioner for Administration (to give him his full title) to cover certain areas which are at present excluded. The particular areas which were suggested were the local authorities, the Health Service and the police. Incidentally, the Prison Service, to which I think some noble Lord referred, is covered, because it is directly under the Home Secretary. But I hope noble Lords will give the Bill a rather better send-off than it has had. It is rather curious, the way the atmosphere has gone sour, partly through a misunderstanding of some of the provisions in the Bill, and I hope we 1458 shall give it a rather better send-off than apparently it is getting from the Press at the moment.
The main question which has been discussed is the interpretation of the powers of the Parliamentary Commissioner with regard to discretionary decisions, and here I think I have been able to reassure at least the noble Baroness, Lady Elliot of Harwood—who, of course, is obviously the Ombudsman of the consumer. This raises wider questions, as to whether we need more people like the noble Baroness, who I can well see fulfilling a post of this kind with great energy, enthusiasm and effectiveness. But while Clause 5, subsection (4), prevents the Parliamentary Commissioner from reviewing a discretionary decision by way of appeal—that is, by way of appeal against a decision where discretion is involved—it does not prevent him from investigating alleged maladministration which may have occurred in the process leading up to the decision. Nor does it prevent him, if he finds that such maladministration occurred, from reporting that it resulted in injustice, in that if it had not occurred and a different discretionary decision had resulted, this injustice might not have taken place.
The noble Lord, Lord Harlech, asked me whether I would give him a single example. I have in fact sorted out 36 examples. I do not think your Lordships would wish me to go into these at great length, but perhaps I may give an example which I think is very much of the kind with which your Lordships would be concerned. One example would be the withholding by the Minister of Agriculture and Fisheries of ministerial consent in relation to applications for licences to complete new slaughterhouses, or the withdrawal of a seeds certification, or similar facilities. One might say that this would be a proper act of discretion—and, indeed, in certain areas the duty may be laid upon the Minister to take such a decision. But it seems to me that it is inherent in this question—and here, perhaps, I may draw on my own experience as a Minister, admittedly in a field which is outside the Bill because it was in relation to discipline and such matters in the Armed Forces—that it must be the duty of the administrator (and this must apply in every walk of life) to arrive at his 1459 decision in a proper way. In other words, he must take into consideration every matter which he is able to take, which is within his information or about which it is within his ability to obtain information when arriving at a decision.
This is an experience which is common to anybody who is involved in administration anywhere, whether it be in industry, in the Government or in the Armed Forces. The commanding officer, the administrator or whoever it is, should not take his decision in an arbitrary and ill-considered fashion. If it is so arbitrary and so ill-considered that the Parliamentary Commissioner decides that this amounts to maladministration, then he will say so, although by that time I should hope that the Government Department concerned and the Minister concerned will have rectified it, because the failure will by then have been exposed.
This brings us very close to the direct area of responsibility of Ministers, and, indeed, of the remainder of the Civil Service. One thing, at least, of which one cannot accuse the Government service is a reluctance to put its reasons in writing. It does so to an extent which enables senior officials after the event, or even the Minister, to judge how that decision has been reached. I share the views of my noble friend Lord Silkin, and of my noble friend Lord Mitchison, in that I see no difficulty at all in applying this principle of maladministration; but I want to stress to all noble Lords who are in doubt that it will be for the Ombudsman to decide whether he himself wishes to investigate a case. The fact that a Government Department may plead that this is an exercise of Ministerial discretion will not prevent the Parliamentary Commissioner from investigating. He is a highly independent figure, and will be answerable only to himself in judging whether or not a matter should be investigated. When I say "only to himself", I mean that it will initially be his judgment, and no one will be able to say "Yea" or "Nay" to him on that.
I hope I have thrown a little more light on what is undoubtedly a subject that has caused a great deal of concern to people, I think the principle behind this Bill—and behind what I have said in this particular case—is of applying prag- 1460 matically and in practice the sort of principles that we as individuals would like to apply in our businesses, in our families or in any area in which we are responsible.
The Bill represents a very considerable advance. I agree with the noble Viscount, Lord Colville of Culross, that we do not want to suggest that this is a vast new development; but it is an important one. It is a new principle which we have brought into our public administration and its value is, of course, yet to be established. But there is enough evidence and enough support from those who have been concerned with and have studied these matters—in particular, one has in mind the Whyatt Committee itself—to suggest that this is well worth while. It is important to stress, as did my noble and learned friend the Lord Chancellor, that this is a British development. It is almost impossible in a debate of this kind to make valid comparisons between the systems of other countries, whether they be the Ombudsman of Denmark or of Sweden, or of New Zealand. There are limitations, for instance, on the Ombudsman in New Zealand which will not apply to the Ombudsman here.
I had hoped that there would have been a greater welcome from noble Lords on the other side of the House for the very considerable determination of the Government in going beyond the terms of the Whyatt Report, and particularly in making available not only the correspondence but the actual files of the Departments. I must admit that when these proposals were being considered by the Government I detected an anxiety about this proposition. But it struck me as absolutely essential, in order to make a fair judgment, that files should be made available. They are not available at the moment to M.P.s; and this is why I should like to take up a point made by the noble Lord, Lord Redmayne, and others with regard to the position of M.P.s. Certainly it is the practice to-day for M.P.s and Ministers for the most part to enjoy good personal relations there is, in fact, almost an element of teamwork in their dealing with the great majority of cases. Only a relatively small proportion of them appear on the Order Paper by way of Adjournment Motions or by way of Questions; the great 1461 majority are dealt with by M.P.s writing to the Minister.
From my experience I have no doubt that our present system—under which the Ministers are held personally responsible and can be brought to book—is correct and is the most important protection of the individual from oppression by the Central Government. As is known to those noble Lords who were in another place—and my noble friend Lord Silkin referred to this—it is a fact that M.P.s spend several hours a week dealing with constituency cases; and Ministers conscientiously devote the same sort of time to particular cases. But a Minister can be very busy. I can say from my own experience that one of my colleagues in the Ministry of Defence had four times the amount of correspondence I had to deal with in relations with the Royal Air Force.
There are Departments where, in certain circumstances, with the best will in the world, even the most conscientious Minister may not be able to look at every aspect of the case in the files. I would not suggest for a moment that civil servants do not look at this very conscientiously; but I must say that there have been very rare cases when, after I have looked at them very closely, I have come to a different view from that to which my advisers had come. There has been the rare case when there has been definite maladministration. There was the very exceptional case where particular correspondence was entirely forgotten, and it was not until the individual concerned went to his M.P. three years later that it was revived. I sought to find out who was the blame and found that in the meantime the official concerned had died. This, like the movement of officials, may give rise to maladministration and will be properly investigated by the Parliamentary Commissioner.
I hope that in the overwhelming majority of cases the Parliamentary Commissioner will find no fault or wrong that needs to be redressed; but if there are such cases it is of the highest importance that there should be redress, for an individual's whole life and happiness may depend upon it. This is something important and real. Therefore I regard the introduction of the Parliamentary Commissioner as a further advance towards the protection of the individual. 1462 This, it seems to me, is the justification for pressing on with this. There has been criticism—in this House of a rather more moderate kind—of the action of the Government in going ahead with the appointment of the Ombudsman, or the provision of funds for the Parliamentary Commissioner by means of a call on the Civil Contingency Fund. I think it would be unwise for me to get into an argument about or to criticise the Estimates Committee, but there is very powerful justification by the Treasury of the action in regard to the setting-up of the organisation of the Parliamentary Commissioner for Administration. I believe that this is something we can press on with quickly.
The Parliamentary Commissioner will not start to operate until this Bill is passed into law; but there is no reason why he should not be in a position that would enable him to operate at once—the more so, bearing in mind that there are no doubt large numbers of people, including some of the "crackpots" to whom the noble and learned Lord who sits on the Woolsack referred, who are waiting, poised, with letters to send either to the Parliamentary Commissioner (which would be an incorrect procedure) or to their M.P.s. I am quite sure that M.P.s will be glad when the Parliamentary Commissioner is set up.
Among the proposals that noble Lords have made is one that we should extend the Parliamentary Commissioner's power to cover the local authorities. I would say quite firmly to the noble Lords, Lord Reay and Lord Wade, that I should regard it as quite improper—though this is a personal opinion—to amend the Bill in this way. It seems to me that to set up a Parliamentary Commissioner to deal with local authorities, without any consultation with those local authorities, would be an act of rather excessive Central Government interference in the affairs of local authorities. I am not denying that there may be very much substance in the arguments of the noble Lords, Lord Reay and Lord Wade—and, of course, in that of the noble Lord, Lord Airedale; for he gave us an example—but I am surprised that we should reckon that it was appropriate for us to proceed by an Amendment to this Bill, which, after all, is intended to investigate administrative action taken on behalf of the Crown; 1463 and although I would not in the least object—indeed, I would say that there would be a great deal of good to be said for our discussing this matter on an Amendment—I hope that no noble Lord would seriously entertain the idea, of amending, or regard it as an act of propriety to amend, this Bill to extend the responsibility of the Parliamentary Commissioner.
§ LORD REAY
My Lords, I hope the noble Lord will appreciate that the point we were making was not that we wished to extend it to apply now, but that we should so amend the Bill that it would be possible to extend it to local authorities by Order in Council at a later stage, if that were found desirable.
§ LORD SHACKLETON
I take the point; but, my Lords, this would be such an important measure that I hope the noble Lord would not suggest that it could suitably be done by Statutory Instrument. I should have thought that anything so radical, affecting local authorities, ought to have its own legislation and its own Bill and Act of Parliament. On the whole, the Liberals tend to be upholders of local freedom, and I am surprised that the noble Lord, Lord Reay, should suggest that procedure by Statutory Instrument is appropriate in such cases. I say this to him with all seriousness.
§ LORD SHACKLETON
My Lords, the noble Lord, Lord Wade, has reinforced what he said earlier. Even so, there were good reasons for defeating that Bill at the time, which is not to suggest that this is not very much an appropriate area to consider in due course. The experience we shall have with the Parliamentary Commissioner may be of great value in formulating appropriate machinery to operate in other areas, including the Health Service. I will not now go into the argument against including the Health Service, beyond saying that in my view this again would raise the most tremendous difficulties and would be bound to 1464 impinge on questions of professional and clinical responsibility. We shall have an opportunity to discuss it later. This is not to suggest that the Government are not in sympathy with the aims of noble Lords who wish to provide this further protection.
§ BARONESS BURTON OF COVENTRY
My Lords, has my noble friend left the local authority area? Because before he does so, may I ask him whether he has any comment to make on what I asked him, which was whether the Government would support an Amendment, if necessary, or if possible provide by an Order in Council for local authorities to set up their own Ombudsman?
§ LORD SHACKLETON
My Lords, I am sorry there are many questions which I fear I shall not answer, either because I do not know the answer or because I do not wish to go on for too long. I should have thought that there was nothing to prevent local authorities from setting up their own council, commission, or whatever the appropriate term is. Indeed, there are certain industrial organisations in existence. A firm with which I was connected had an Ombudsman who was protected from the sack and all sorts of things; and I see no reason why local authorities should not do this. But I will not do more than say that it is going to need a great deal of consideration. The previous Government—I make this point in no Party sense—spent a good many years considering this question before they finally said, "No", on grounds which were very understandable; and I think that here again we should hasten, but hasten in a steady sort of way.
My Lords, I wish I knew where to begin in attempting to answer all the various points, but I will answer a few as quickly as possible. I think it was the noble Lord, Lord Reay, who implied that that there might be separate Commissioners in Scotland, Wales and Northern Ireland. I may have misunderstood the noble Lord. I should like to say, however, that the Commissioner may find it convenient to place members of his staff in regional centres, including the above areas, where a lot of business may arise and out-stationing would save time. We believe that Edinburgh would 1465 be likely to be the only out-station, but we cannot say at the moment.
One point was raised by a noble Lord —unfortunately I cannot remember which noble Lord—relating to a planning case. This is what I think is of importance with regard to the powers of Ministers in relation to planning. In a case where the Minister had overruled the inspector—for instance, in a planning case—and there was an allegation of maladministration, there could be an investigation and a report by the Commissioner. So far as I can say, it would be within the discretion of the Parliamentary Commissioner to take that action.
I should like now to turn very briefly to the question whether Members of your Lordships' House should have access to the Parliamentary Commissioner. I should like to put forward a case which I prepared to put before you and I have succeeded in convincing myself that it is the right view of this matter. My noble and learned friend who sits on the Woolsack has made clear already that this concept of the Parliamentary Commissioner is in significant respects different from that of the Swedish Ombudsman. In this country the proper channel, and in many ways the last avenue for redress to the aggrieved citizen against maladministration, is through his own Member of Parliament; and both Houses of Parliament and our Ministerial system are geared to this concept.
The normal practice, as I have already mentioned, is for Members of Parliament to write to the Minister concerned, and they do this regardless of the Party which the constituent who approaches them supports. In this way a Member of Parliament is doing much more than just seeking to endear himself to his constituent, though there is no doubt that there may be a reward for virtue at the poll in due course. But a conscientious Member of Parliament is not a letterbox. It is, I think, the view of Her Majesty's Government that in the majority of cases a Member of Parliament properly uses his discretion both as to the extent of the pressure he will bring on behalf of a constituent and the time when he will, if necessary, tell the constituent that there is no more to be done, and indeed to speak firmly about this.
1466 My Lords, Members of Parliament acquire a great deal of experience. I should not like to suggest—because Members of another House are sometimes sensitive—that they are little more than welfare officers; they might not appreciate a Member of your Lordships' House suggesting that. But, in fact, a Member of Parliament devotes a very large proportion of his time to constituency cases, and although Peers have free access to Ministers, and their cases are dealt with in exactly the same way as those of Members of Parliament, the number that go forward is but a fraction, probably less than 1 per cent. It is against this background, and having reflected on the matter, that I am convinced that in principle it is right to confine the right of approach to the Parliamentary Commissioner to Members of the House of Commons.
I would say to the noble Lord, Lord Somers, speaking as does the noble Lord, Lord Redmayne, and others, from the experience of having been a Member of Parliament, that over the years Members of Parliament acquire experience and are able to judge those matters which should go to the Parliamentary Commissioner. It may well be that the majority of your Lordships who attend your Lordships' House regularly are competent to make judgments of this kind, but I think that it would be undesirable to extend this power too widely if we are to retain the principle, which I believe to be important, of some area of screening and discretion. I think that this is the point that the noble Lord, Lord Redmayne, was stressing. For this reason, although I can appreciate the feeling in your Lordships' House, and I share that feeling as a Member of your Lordships' House, I think it is correct that this power should be confined to Members of another place.
§ LORD STRABOLGI
My Lords, would my noble friend comment on the procedure in cases where a Member of your Lordships' House happens to know of matters which require investigation? In that case, what is the Peer to do? Is he to write direct to the Minister or to his Member of Parliament?
§ LORD SHACKLETON
My Lords, I should hope that the noble Lord would have the judgment and experience to decide that for himself. No right is being 1467 taken from him. He can write to the Minister, and no doubt he will continue to do so. If he gets no satisfaction, he can refer the matter to, or advise the complainant to approach, the Member of Parliament concerned. This seems to me to be perfectly satisfactory. I would stress that no rights are being taken away from your Lordships' House.
The noble Viscount, Lord Colville of Culross, asked me some interesting questions, but I have not the answers to them. The noble Viscount raised the interesting constitutional aspect of the position of a Minister in your Lordships' House in relation to a Committee of another place. The noble Viscount will excuse me if I do not reply until I can obtain a considered answer to the point.
VISCOUNT COLVILLE OF CULROSS
My Lords, I entirely excuse the noble Lord. It is my fault for not having given him notice of the question. I think that he would probably agree that it is an important point of principle, which I do not think has been dealt with before and should not be lost sight of when we are considering other aspects of your Lordships' participation.
§ LORD SHACKLETON
I agree, my Lords. It may be that my noble and learned friend would have liked to press an opinion, but it is a constitutional issue on which I should wish to have further advice before expressing a view. I have taken long enough and answered practically none of the questions, for which I apologise to your Lordships. I think that we have all learned a lot. In attempting to answer the questions, I have learned a good deal, because this is a difficult area. It is very much an area of experiment, as I hope your Lordships will recognise. The important thing is that the Parliamentary Commissioner will be able to establish his own approaches to these problems and, as we know, we have appointed an individual who is highly acceptable and is widely experienced in the affairs of Parliament.
I am grateful that your Lordships are not going to oppose the Second Reading of this Bill. I hope that when we come to the Amendments we shall be able to discuss them fully and freely. In the course of doing this we may ourselves learn more about the Bill, and this in 1468 itself may make it easier for the public to understand a Bill which, as my noble friend Lord Lloyd of Hampstead said, is not very intelligible to those who have not studied it in detail.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.