§ Lord Lester of Herne Hill
My Lords, 1 beg to move that this Bill be read a second time. The purpose of the Bill is to make a modern, practical reform; namely, to create a public right of direct access to the Parliamentary Commissioner for Administration. It is five years since I introduced a similar Private Member's Bill, which also sought to create a direct avenue for members of the public to make complaints about administrative failure and neglect.
Inaction by the Government over the past five years and renewed calls for direct access have prompted me to introduce this new version. It is a measure of practical importance, which I promote in the interests of active citizenship and improved accountability of government. I have modified my last Bill to meet concerns expressed at Second Reading by the noble and learned Lord, Lord Falconer, on behalf of the Government. As a result, unlike my previous Bill, this Bill does not abolish the MP filter. It creates a dual mechanism for access to the ombudsman by maintaining the filter and by introducing direct access by members of the public.
The Office of the Parliamentary Commissioner for Administration was established in 1967 as one of the great reforms of the Labour government, the first government led by Harold Wilson. It was established to investigate complaints from members of the public of injustice resulting from maladministration by government departments. The Parliamentary Commissioner is an officer of the House of Commons and can undertake an investigation only at the request of an MP. The commissioner reports the result to the MP. That is the so-called "MP filter".
The current commissioner is Ann Abraham. She makes an annual report to Parliament and is supported by the House of Commons Select Committee on Public Administration. The commissioner's investigative powers cover most types of administrative actions by more than 100 government departments and non-departmental public bodies. She has wide powers to carry out her investigations. She has the same powers as the High Court to compel witnesses to attend for examination and can require any Minister or civil servant to provide relevant information or documents.
478 If she finds injustice by maladministration, she may recommend to the department concerned whatever action she thinks should be taken by way of redress, but she has no powers of enforcement. Departments almost invariably comply with her recommendations. Redress may take the form of an ex gratia payment to the complainant, an apology, or the reversal of the decision of which complaint was made. A department may also revise its procedures or practices for the future. If it appears to her that an injustice cannot be remedied, she may make a special report on the case to Parliament.
Therefore, the PCA's office has great potential in promoting good government and in providing the citizen with an inexpensive and non-adversarial form of redress for injustice resulting from maladministration. The office has become a universally accepted and well established part of our parliamentary system of government, and has increased ministerial accountability. One great attraction of the system as an alternative to the legal process is that it is informal, relatively speedy and involves no financial cost for the complainant. It is an excellent form of alternative dispute resolution.
The current hindrance to the public's right of access is the MP filter, which is currently the only way to reach the commissioner. As Professor Colin Turpin of Clare College Cambridge observed in his standard work on the British constitution and government, the MP filter:operates in an arbitrary way—some MPs rarely refer complaints to the PCA, while others do so frequently—and it is a hindrance to the ordinary citizen in need of a clear and simple remedy for grievances against the administration".That statement rings true today.
Direct access to the ombudsman or equivalent officer by members of the public is allowed in most other democratic countries that have such an institution. There is direct access to the Health Service Commissioner for England and the Local Government Commissioner. The only country that I know of that still has a similar filter is France, but the Minister will, no doubt, tell me if I am wrong.
In a debate on 19 October 1999 on a report from the Select Committee on Public Administration on the work of the PCA, there was a prevailing consensus that the requirement that complaints be filtered by MPs should be dropped in order to improve access to the commissioner. In April 2000, the Cabinet Office published a review of the Public Sector Ombudsman in England, which was led by a senior official, Mr Philip Collcutt. The Collcutt review commented that:The pace of change in the modernisation of government has left behind the public sector ombudsman".It concluded that the MP filter should be abolished, as it could no longer be sustained in an era of joined-up government.
Unfortunately, the review only considered direct access as an alternative to the MP filter, not as something that could be introduced in addition to that filter. A dual-track approach is the sensible, practical 479 and realistic way to proceed because it addresses the stymie to direct access caused by the MP filter and meets the concerns of the Government—which we will no doubt hear about from the Minister—and of those MPs who wish to see the filter retained.
The Government were not able to support my previous Bill. Their main objection was that the role of ombudsman was created explicitly on the basis that he or she should reside permanently in the other place as an officer in that place. My new Bill has been modified to address that concern. I hope that as a result it will receive support from the Minister, in contrast to the previous proposal to abolish the MP filter altogether.
During the five years since the Collcutt review and my last Bill, I am sorry to say that the Government have demonstrated only total inertia. The Public Administration Select Committee in its third report of Session 2002–03 entitled Ombudsman Issues catalogued the lack of progress made by government, describing it as a,roll-call of talk rather than action",and noting with disdain that,despite numerous reviews and consultations and general agreement on both the need for reform and the necessary changes. the Ombudsman system has not been reformed".Even in their brief response to that report, the Government neither made any commitment to reform nor even mentioned the issue of direct access. In response to the far too numerous questions I have tabled over the past five year, I have learnt only that discussions are continuing and that the matters raised are under consideration.
During her evidence to the Public Administration Select Committee in November 2003, Ann Abraham said:
"I fundamentally believe that there is a huge amount of very valuable work that goes on by MPs, MPs' offices, MPs' surgeries in actually referring cases to us and there is nothing to stop that continuing, but I do not see why it should be an absolute requirement".
She went on:The fundamental point is … about accessibility and there are issues as well in joint working with colleagues in the Local Government Ombudsman scheme where the MP filter gets in the way of aligning a joint investigation and a joint report because of particular requirements that come out of that, so it is a point of principle … in the 21st Century that a citizen should have direct access to the Ombudsman".In the Parliamentary Ombudsman Annual Report 2003–04, Ann Abraham wrote:Members of Parliament continue to have a key role in supporting their constituents when they have problems with public service providers. However, to reinforce the principle of easy access, I believe that citizens should also be allowed direct access to the Parliamentary Ombudsman and I will continue to press for legislative change to allow this to take place".This Bill provides that opportunity for legislative change. If the Bill is passed by this House, it will provide the other place with the opportunity to decide whether the time has come to allow a public right of 480 direct access. This House will then provide the catalyst for reform ultimately to be decided upon by the democratic House of Parliament.
Last year, a survey of Members of Parliament on the work of the Parliamentary and Health Service Ombudsman was conducted jointly by the Public Administration Select Committee and the ombudsman's office. The results of the MP survey were published in July 2004 and showed that 66 per cent of respondents favoured direct access to the parliamentary ombudsman.
The MP survey also showed that 71 per cent of respondents said that they would favour direct communication between the ombudsman's office and the complainant. As a result, in November 2004, the commissioner took the decision to issue a copy of each final report or decision letter direct to the complainant, at the same time as writing to the referring MP. This change of practice represents a welcome procedural improvement, and demonstrates the commitment of the ombudsman's office to bring about positive change in the absence of legislation.
The other objection of the Government to my previous Bill was that the office of the commissioner would not be able to cope with the increased workload that direct access would bring. Such concerns are outweighed by the need for direct access in the interests of justice because internal changes to procedure can readily be made to cope with an increased workload without the need for wider reform. Further reform of the ombudsman system is clearly required but that need for reform should not be used to justify denial of direct access and contact by ordinary members of the public. In her evidence to the Public Administration Select Committee in December 2004, Ann Abraham expressed concern that,from our public awareness surveys and our stakeholder research … there are problems for access to the Ombudsman for hard to reach groups and that is a real issue for us".There are also times, for example around a general election and during the Summer Recess, when MPs may not be available to their constituents, leaving members of the public with no access to the ombudsman at all.
In the absence of direct access, our ombudsman is grossly under-used. To illustrate this, I take the example of the Republic of Ireland. The ombudsman of the Irish Republic, who is not subject to a parliamentary filter and who deals with a very small population of under 4 million, received 3,075 complaints in 2003. Finland, with a population of 5.2 million, received 2,469 complaints in that year. In contrast, our ombudsman received just 1,973 new complaints in 2002–03.
This Bill addresses the problem that complainants are cut off from direct access, and what should be a flexible and accessible remedy for complainants becomes perceived in the eyes of citizens as another bureaucratic and remote procedure. In my view, there is no good reason why that modest and simple change cannot be effected now, without having to wait for wider reforms to the ombudsman system of a more complex and far-reaching nature. 481 I very much hope that the Minister will support this practical Bill and not seek to delay any further with the bureaucratic argument that the time is not right. As FM Cornford famously observed in 1908, and as I mentioned five years ago:The Principle of Unripe Time is that people should not do at the moment what they think right at that moment, because the moment at which they think it right has not yet arrived".
§ Lord Campbell-Savours
My Lords, 1 am sorry to press the noble Lord, but he just cited some statistics. Is there not possibly another explanation: that the MPs have successfully dealt with the cases themselves?
§ Lord Lester of Herne Hill
My Lords, I am sure that exactly the same could be said of MPs of the Irish Parliament, the Dail, who, if anything, spend rather more time in their constituencies, yet, as I said, in a small country such as the Irish Republic there is a much larger number of complaints. As a resident of the Irish Republic, I should explain that I am sure that the TD in my area is as vigorous as would be any MP in this country. So that excuse holds no water, with respect.
§ Lord Naseby
My Lords, the noble Lord has not answered the intervention of the noble Lord, Lord Campbell-Savours. In my experience, when I was in the other place, complaints were brought to us that the member of the public thought were relevant to the ombudsman, but were not. They were dealt with by the Member. Will not the noble Lord reflect that that may well be the reason why the situation is different in the United Kingdom from the Republic of Ireland?
§ Lord Lester of Herne Hill
My Lords, I must say, first, that person with the most experience of the problem is the Parliamentary Commissioner for Administration herself. She will know rather more about the practical problems created by the lack of direct access; that is why she and her predecessors have said again and again that they should be in the same position as the equivalent ombudsmen in other democracies.
I have not wearied the House with the figures for the rest of the world where there are MPs as active as ours, but if one looks across even to the new democracies in Europe, the parliamentary commissioners in Hungary, one of whom I know extremely well, have a far bigger caseload, even though their MPs, like those elsewhere, are just as vigorous as ours.
§ Lord Hughes of Woodside
My Lords, I am grateful to the noble Lord for giving way. He makes a compelling case for the ombudsman seeking greater access. My experience of public officials over many years is that once a department gets set up, it suffers from the dreaded disease of empire-building. May there not be a little of that in this case?
§ Lord Lester of Herne Hill
My Lords, I am sure that the disease of empire-building extends to Whitehall as well as elsewhere. What troubles me is that, on this issue, 482 the Government are judge in their own cause, in the sense that complaints are made against government. and if government continue to obstruct direct access and say that there must be an MP filter, that reduces the ability to call government to account for maladministration. I do not think that there is any risk of empire-building in this area. The PCA and all her predecessors, in my experience, have shown that they are wise, practical and want to help the citizen to get redress against the state by non-legalistic means.
§ Lord Campbell-Savours
My Lords, I am sorry to press the noble Lord again, but when he is comparing the Irish statistics with those for the United Kingdom, does that take into account the fact that British Members of Parliament now have considerably more resources available to them than is the case in most European parliaments?
§ Lord Lester of Herne Hill
My Lords, I have not done a detailed comparative cost/benefit analysis of the kind that the noble Lord suggests; of course not. I am simply asking the House to agree with a simple proposition. MPs may retain their right to refer cases where their constituents come to them. They can seek to deal with those complaints as they do now. The Bill will not take away the heavy caseload that they have in their surgeries but where Members of your Lordships' House, for example, or any member of the public, wish to make a complaint, they should not have to find an MP and go through the business of making the complaint through that MP. We may be able to do so, because we know how the system work, or ought to, but an ordinary member of the public who has to do that will be deterred.
I suggest that that is one of the main reasons why our ombudsman is so underused compared with those of every other country in the world—including Hong Kong, for example. When Hong Kong abolished the direct filter, there was a substantial increase in work and, as a result, beneficial results to administration. What happens in Hong Kong, Ireland and every other democracy but France should apply to this country.
§ Lord Maclennan of Rogart
My Lords, I am most grateful to my noble friend for giving way. Lest it be thought that there is a constituency here, a trade union of former MPs who have a single mind on the issue that he has raised, let me say that my experience as a Member of Parliament was that, surprisingly frequently, matters were brought to my attention by members of the public who had not been able to persuade their Member of Parliament that the matter should be raised with the ombudsman. My noble friend's Bill would deal with that problem.
§ Lord Lester of Herne Hill
My Lords, I am very grateful to my noble friend. It occurs to me that I should perhaps have mentioned my own interest and experience. I made two complaints to the PCA—both about the Government's unnecessary secrecy. It took me weeks to find even one of my colleagues in the other place who was not too busy to be able to refer either of 483 them. If I find it difficult, I cannot imagine how much more difficult it must be for others who are not privileged as I am.
In spite of the vested interest that some might have felt elsewhere, we know that the majority of MPs polled say that they would be willing for the filter to go altogether, which is not what I am proposing. The time has come for change—it came a long time ago. I very much hope that the House, the Government and, in due course, the other place, which must make the ultimate decision, will support the Bill in the interests of accountable parliamentary government, good administration and the effective protection of the citizen.
§ Lord Mackay of Clashfern
My Lords, before the noble Lord sits down, perhaps I may ask him a question. I think he said that he was proposing to retain the MP filter. In what sense is it a filter if it can be bypassed?
§ Lord Lester of Herne Hill
My Lords, perhaps "filter" was the wrong way to put it. I want to retain the procedure by which the MP can make a direct reference from his constituency. I do that purely pragmatically because it is an easier way to persuade Members of Parliament than to take away their exclusive rights.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
§ 11.27 a.m.
§ Lord Borrie
My Lords, I rise to support the Bill. Not for the first time, the noble Lord, Lord Lester of Herne Hill, is pursuing and properly persisting in a measure to enhance active citizenship and human rights and to improve democratic procedures. I have one small interest to declare, in that I once headed a non-ministerial government department, the Office of Fair Trading, which was subject two or three times to investigation—via a Member of Parliament, of course—by the Parliamentary Commissioner for Administration.
In 1967, the government of the day and, in particular, Mr Richard Crossman, then Lord President of the Council, was keen to introduce into our constitution the novelty of a parliamentary commissioner with the authority and resources to investigate thoroughly complaints of maladministration against government departments. But the government of the day were very cautious about introducing a concept that had originated in Scandinavia. Hence, they avoided the use of the foreign-sounding word, "ombudsman". Because the only Commonwealth country that had introduced such a mechanism—namely, New Zealand—had a population of less than one tenth of that of the United Kingdom, they were anxious that our new institution might be overwhelmed by cases if people could go direct to the commissioner, without any MP filter. In any case, it was thought that the direct route from the public to the commissioner would seem to undermine the role of a Member of Parliament acting on behalf and looking after the interests of his constituent.
484 After nearly 40 years' experience, we know that the foreign-sounding word "ombudsman" has become part of our language and that the Parliamentary Commissioner has not been overwhelmed with work, although certainly that work has been sufficient to justify the institution's existence.
MPs are justifiably proud of their role in pursuing constituents' problems, but the power and resource of the ombudsman to investigate closely that minority of constituents' complaints that justify ombudsman intervention in no way undermines the Member of Parliament's constitutional role. Today there is no need for the MP route to be the exclusive way to access the ombudsman's powers.
Over the intervening years since the 1960s, the Parliamentary Commissioner has been a model for investigative machinery elsewhere in the public sector—local government, the health service and the police—and across considerable areas of the private sector. The latest is the provision in the Government's current Consumer Credit Bill, now before the other place, to extend the jurisdiction of the Financial Services Ombudsman—I give that particular example in view of the Minister who will make the winding-up speech. That ombudsman is the biggest and best resourced of all the present ombudsman schemes, so far as I know, and the key example of the Government's advocacy of alternative dispute resolution schemes, giving people an opportunity to seek a resolution of their disputes and conflicts by alternative possibilities. Not only the Government but also the Lord Chief Justice have espoused alternative dispute resolution as a more lean and efficient alternative to the ordinary courts for dispute settlement.
The present Parliamentary Commissioner, the redoubtable Ann Abraham, was previously the Legal Services Ombudsman, to whom direct access is available. We know from the quotations referred to by the noble Lord, Lord Lester, that she would welcome the wider availability of her services as Parliamentary Commissioner. I regret that the noble Lord—who has now left the Chamber—in the middle of the debate—suggested that there was some kind of empire-building on behalf of Ann Abraham or previous holders of that office. I do not think that that is a fair comment.
A significant part of a Member of Parliament's work, especially since 1945 and the advent of the welfare state, has been the resolution of constituents' problems. MPs can greatly facilitate the resolution of problems involving government departments and agencies. It is true that often the constituent is concerned with other problems—common ones, such as health, benefits and the environment—that can be resolved only by local authorities and regulatory bodies rather than government departments. Nevertheless I believe, as must those former MPs who sought to intervene in this debate, that close contact with, and close knowledge of, the problems of individual constituents across all areas informs MPs' contributions to larger debates in the other place on legislation and otherwise.
If the Bill gets further than today's proceedings, as I hope it will, it is most important that the public will be able to go direct to the Parliamentary Commissioner 485 as an alternative to going through an MP. None the less, I hope that MPs will be kept fully in touch and contribute their own particular assistance to the resolution of constituents' concerns.
§ Lord Campbell-Savours
My Lords, I rise very briefly as I had not intended to intervene in the debate. I support the noble Lord's Bill; it is a very good one. I intervened simply because I was looking for a little Friday-morning sport in the Chamber and I thought that it would be interesting—
§ Lord Triesman
Order, my Lords. It may be appropriate for the noble Lord to speak during the gap but we ought probably to go through the speakers' list as it is until that point.
§ 11.34 a.m.
§ Baroness Neuberger
My Lords, I wish to speak very briefly to support the reform proposed in the Bill; namely, to gain direct access for complainants to the Parliamentary Commissioner. I congratulate my noble friend Lord Lester on persisting with the issue. I do not speak as an expert on how the Parliamentary Ombudsman carries out her duties, although I have an interest in the issues as a former member of the Committee on Standards in Public Life and a former colleague of "the redoubtable Ann Abraham", as the noble Lord, Lord Borrie, described her, on that body.
Other noble Lords present know far more about the precise role of the Parliamentary Ombudsman than I do, but I know considerably more about how direct access to the Health Service Commissioner for England works. I am well acquainted with that work from my previous life at the King's Fund and, before that, as chairman of Camden and Islington Community Health Services NHS Trust, against which occasional complaints were brought. Irritating though it was to be the chairman or member of the board of a body against whom such complaints were brought, in the case of the Health Service Commissioner, direct access was so obviously necessary, so beneficial and so obviously right, although often irritating to us, that I find it hard to believe that the same should not apply to the Parliamentary Commissioner.
My noble friend Lord Lester has already mentioned the 2000 Collcutt review, which argued that the MP filter could not be sustained, and the MPs' survey in the work conducted by the Public Administration Select Committee and the Parliamentary Ombudsman in 2004. As he also mentioned, two-thirds were in favour of removing the MP filter, so one might argue that it seems obvious that it should go.
However, let me add a further argument, from my knowledge of how the process can work with the Health Service Commissioner. In both my previous roles, at the King's Fund and at Camden and Islington, I saw a considerable amount of the Health Service Commissioner. I also dealt frequently with local MPs, who were wonderful at taking up cudgels on behalf of their constituents in many cases.
486 However, on two occasions in that period I was involved with cases that went to the Health Service Ombudsman in which I am not wholly convinced that, had an MP filter been in place, the complainants would have felt comfortable about going to an MP's surgery to tell the story. That is not to say that the MPs would not be sympathetic and helpful; it is however, to say that people from deprived backgrounds, younger people, people from ethnic minorities and others can find the whole business of going to an MP's surgery to discuss the most intimate details of their lives disconcerting at best and plain frightening at worst. When discussing, say, matters such as double incontinence poorly handled or issues related to frailty and mental illness in an ethnic minority family, again poorly handled by the service, they feel far more comfortable going to the ombudsman directly., where those who listen and deal with the complaints are experienced and trained in precisely those areas and not likely to be disturbed or feel squeamish by what they are told.
Indeed, the public awareness research of Ann Abraham, the ombudsman, shows exactly the same thing as my anecdotal experience suggests: unskilled and unemployed people. younger people, and people from minority backgrounds find it more difficult and demanding to approach their MP on these issues. Nobody is suggesting that MPs should not be able to continue to refer difficult cases to the Parliamentary Ombudsman, but surely that does not need to be the only route for complaints. Direct access to the Health Service Commissioner is long established and complaints are dealt with relatively easily and speedily. NHS bodies, irritated though they may be, tend to react and change when they are tackled by the Health Service Commissioner.
Can there really be any argument in favour of retaining the MP filter for the Parliamentary Commissioner, when direct access works so well elsewhere? I cannot believe that there is, and I strongly support the Bill.
§ 11.39 a.m.
§ Baroness D'Souza
My Lords, I support the Bill. I wish to speak briefly on the experience of the Office of the Commissioner for Administrative Complaints (COMAC), or the ombudsman, in Hong Kong. Incidentally, according to my Nordic friends, apparently the present politically correct term is not ombudsman but "ombuds". As noble Lords will already know, the law in Hong Kong was changed in 1994 to allow, among other amendments, direct public access to the commissioner. The purpose and the function of that amendment was to bring COMAC closer to the people. The commissioner argued that there was a barrier between his office and the people he served.
The fact that, previously, all complaints had to be channelled through the Legislative Council enforced the complainant to tell his or her story twice, which was not therefore seen as effective communication. The previous system also introduced unnecessary delays. It was thought that that most probably accounted for the relatively low level of complaints in the first five years of 487 the office's operation. Direct public access obviates those difficulties and keeps the commissioner informed on the actual grievances, and the expectations of government and statutory services.
The sharp increase in inquiries and complaints that were received following the enactment of this amendment fully justified the commissioner's concerns. In the year before enactment of the amendment, the number of inquiries received was 3,348 and the number of complaints was 1,211. In the following year, the respective figures were 6,493 and 2,784. The complaints figure represents a 15-fold increase when compared to the five-year average before direct access was brought in. Although the jurisdiction of the commissioner was extended in 1994 to include six other major statutory bodies, the significant increase in complaints received was believed to be due to direct public access.
A closer look at the breakdown of the figures shows that the complaints on abuse of power over the same period increased from seven to 122; those on errors or wrong decisions by government bodies increased from 28 to 544; and those on a failure to follow procedures increased from 14 in 1994 to 65 in 1995. Although not all of the complaints were ultimately substantiated. the figures illustrate the increased use made of the commissioner's office by the public following the direct-access amendment.
I recently returned from a conference in Peru which examined the results of a newly-introduced access-to-information law in the region. It included a revealing discussion on the kinds of obstacles that prevented people from using the law, especially in the more rural areas. These included the cost of employing a lawyer—or someone at least who could write—which was a major deterrent in some of the countries concerned. Unacceptable delays in dealing with complaints were also cited as a barrier.
Those countries where direct public access to the local information officer occurred were by far the most efficient in processing legitimate complaints. Another example of a successful access-to-information scheme—this time in Bulgaria, run by the local Transparency International office—was the provision of an easily readable map of the local government office showing where exactly the relevant offices were and how to reach them. That was an inspired idea because it broke through people's long-held fear of officialdom and bureaucracy.
Of course, we are not dealing here with freedom of information laws, but certainly access to information may well become an issue for the Parliamentary' Commissioner. I give these examples to underline the value of direct access by the public to any new laws that make for greater transparency of the parliamentary process and closer and more productive communication with the electorate.
§ 11.43 a.m.
§ Lord Campbell-Savours
My Lords, I wish briefly to intervene to support the Bill, which is important. The reality is that, as a Member of Parliament, one was often approached by constituents to raise issues with the 488 ombudsmen: very often those constituents had, for example, mental or health difficulties. One would try to resolve such cases oneself. I remember many cases that I was able to sort out at a local level where the ombudsman was being asked to intervene unnecessarily. From a constituent point of view, that was far more satisfactory because there was an earlier resolution to the problem.
Thankfully, the Bill proposed by the noble Lord, Lord Lester, does not interfere with that right. A Member of Parliament can still intervene. However, there are times when MPs find it very difficult to say "No" and may not be prepared to pass something on. If there is what I would call a "residual right" for an individual constituent to go direct to the ombudsman. that would be helpful in certain circumstances.
There are also times when, even with the substantially increased resources available to elected Members of Parliament, they simply cannot carry out the detailed investigation that is necessary to resolve a particular problem. In those circumstances, it can be helpful to have someone to whom you can go in the knowledge that while there might be a long procedure, it will lead to a full investigation and establishment of the truth.
Finally, perhaps I may say to the noble Lord. Lord Lester, that if he had trouble finding someone among his colleagues to raise his particular concerns, he should have come to see me when I was down the other end. I can assure him that we were following with great interest many of the issues that he raised. I am sure that he would have found many Labour Members who would have taken on his work.
§ 11.45 a.m.
§ Lord Goodhart
My Lords, I am delighted to reply to this debate on behalf of my party. I have particular pleasure in doing so because I am currently the vice-chairman of the council of Justice, which I should declare as an interest. It was a report published by Justice in 1961, known as the Wyatt report—named after Sir John Wyatt, who wrote it with the support of a high-powered advisory committee—that started the debate which led to the adoption of the ombudsman system under the original Parliamentary Commissioner Act 1967.
Since then, as the noble Lord, Lord Borrie, pointed out, ombudsmen have multiplied exponentially. We have ombudsmen for the National Health Service, for local government, for pensions, for financial services, for legal services and so on. We are soon to have an ombudsman for judicial appointments. There are, of course, also many ombudsmen in the private sector who are not regulating on behalf of the Government, but regulating, for example, on behalf of a consortium of banks or building societies.
Not one of those ombudsmen, with the exception of the original one—the Parliamentary Commissioner—for Administration—requires the intervention of a Member of Parliament to raise a complaint. The Wyatt report recommended that access to the PCA should be through MPs and Peers for the first five years of its operation, after which consideration 489 should he given to extending powers to enable the PCA to receive complaints direct from members of the public. As we all know, Peers were never given the right to refer cases to the PCA. which was right. No further consideration was given, as suggested by Wyatt.
The reason for the restriction proposal in the Wyatt report was, first, that it was thought that the number of complaints might be excessive. Especially now that we have experience of many ombudsmen to whom there is unrestricted access, that seems to be no longer a justifiable worry. Secondly, there was a possible conflict with the role of Members of Parliament in taking up complaints on behalf of their constituents. In practice, if the Bill is enacted, as the noble Lord, Lord Campbell-Savours, pointed out, it is highly probably that most complaints that eventually end up with the PCA will be sent originally to MPs. However, there is no need for the MP to act as a negative filter because he can prevent a justifiable complaint being passed on.
In 1977, Justice revisited the issue and published another report, Our Fettered Ombudsman, which sets out the problem very accurately and concisely. It states:The Parliamentary Commissioner in the United Kingdom is, by contrast, far from accessible. If an individual is well informed enough to think of writing to him, the Parliamentary Commissioner will write hack telling him to take his case to a Member of Parliament. If he is sufficiently determined to do this, the Member of Parliament can nevertheless decline to forward his case to the Parliamentary Commissioner. In this event, the individual can go to another Member but by this time he may well he so discouraged by the process that he gives up. It is from the point of view of the citizen, far from satisfactory that he has to depend on the Member's judgment as to whether or not his complaint is considered by the Parliamentary Commissioner.The complicated procedure for access to the Parliamentary Commissioner probably means that articulate and better informed people are more likely to use the Parliamentary Commissioner than are the less articulate or well informed … This poorly informed section of the population is also the section in which most under-privileged people are to be found".The report continues by saying:We believe that the most important consideration is that as many as possible of bona fide grievances against government departments should be impartially investigated by the Parliamentary Commissioner. For this to happen we are convinced that there must be provision for direct access to the Commissioner".Some 28 years after that follow-up report was published, still nothing has been done to deal with those arguments. The arguments in favour of direct access are as strong as ever and it is my belief that it is now time to go for direct access. Of course the PCA will continue to report to a Select Committee of the House of Commons. In fact, one important change that has been observed since 1977 is that the number of complaints to individual MPs is far greater than it was then. For many MPs the change may be a cause of relief rather than concern if a few complaints are diverted away from them.
As I have said, I suspect that the great majority of complaints will go to the MP first and will then be 490 forwarded to the PCA, but given what I would like to describe as the "ombudsexplosion", surely there can be no justification for saying that complaints made to the PCA, alone among the multiple ombudsmen that we now have, should go exclusively through Members of Parliament.
§ 11.52 a.m.
§ Lord Cope of Berkeley
My Lords, it is a pleasure to find myself once again responding to a debate of the noble Lord, Lord Lester, in his assiduous pursuit of various Private Members' Bills and so forth. As he said himself, this proposal has been introduced before in a slightly different form. The noble Lord made it clear that the new form of this Bill is the provision of dual access rather than simply the abolition of the filter.
But, as the exchange between the noble Lord and my noble and learned friend Lord Mackay of Clashfern has illustrated, it is not quite accurate to say that this Bill would not abolish the MP filter. What it would mean is that MPs would no longer act as a filter. It is no good having in place a filter if there is an enormous space beside it for the water to flow through. The filter will no longer have any effect. In that sense the Bill would do away with the filter, although it does allow complaints to go to the ombudsman via an MP as well as directly.
I noted with interest that the noble Lord, Lord Lester, indicated what a fundamental change this would be. Sometimes it is presented as quite a minor change. Indeed, the noble Lord, Lord Goodhart, has just said that even if the Bill were carried, most complaints would still go through MPs. I am not at all sure about that. While initially that would be the case because habits take time to change, I do not think that it would be so for all that long. After a few years most complaints would be made directly to the ombudsman, although no doubt some would be referred to the MP either before or after they had been to the ombudsman.
The MP is often the last resort for complaints. It is the experience of most of us who have served in another place that many of the people who turn up at one's surgery or who write have already tried other avenues to achieve what they want. They have lodged complaints about their social security to the relevant department, they have been through all the procedures and the complaint has been looked at, but they are still turned down and they do not know what else to do. At that point they come to their MP. Sometimes they have already been to the local citizens advice bureau while on other occasions I have referred complainants to it. Citizens advice bureaux provide helpful mechanisms for dealing with some cases.
However, making ineffective the filter is a more fundamental change than may be realised. I believe that I am right that the noble Lord, Lord Lester, described it as an alternative form of dispute resolution: that is, it would provide an alternative to the courts. That shows great restraint and high-mindedness on the part of the lawyers among us, particularly the noble Lords, Lord Lester and Lord Goodhart, who earn a certain proportion of their 491 living in the courts, to be so keen on a method of bypassing them by using this alternative form of dispute resolution.
As has already been said, the idea behind the ombudsman when it was first set up was to strengthen the arm of MPs, and that is exactly what it did. For a while I served on the Select Committee on Public Administration overseeing the work of the Parliamentary Commissioner. The committee took up some of the cases where the then Parliamentary Commissioner felt that the answers were unsatisfactory. We were able to call Ministers and civil servants before the committee to pursue why they had not agreed with the ombudsman. In that sense the work of the Select Committee was strengthened.
I also happened to be serving on the committee in 1977, at which point the ombudsman had been operating for 10 years. We then reviewed the whole matter and thought through how the ombudsman had been set up. At the time we recommended the continuation of the MP filter. The other major issue was the question of whether the ombudsman should have powers of enforcement as opposed merely to recommend. We thought it best that he should remain able to make recommendations rather than have a power of enforcement over government departments, which I still think is right. Some ombudsmen around the world do have the power to force their governments to do things, but that is not the case here and I do not think it should be.
The argument which persuaded us at the time was that the filter kept MPs in the loop by providing them, as it were, with an additional arm. When a constituent comes to see an MP with a complaint, sometimes it can be sorted out locally with the local social security office or other department, while sometimes the matter can be taken up with Ministers. MPs have various routes open to them. On occasion an MP can also explain to his constituent why the law that he has fallen foul of is as it is. Sometimes the constituent is satisfied with that and appreciates the reason why things have not gone exactly as they would have wished.
The whole system of making complaints to Members of Parliament through surgeries, correspondence and so forth is a vital method of monitoring what is happening. That is how one first became aware, for example, that the Child Support Agency was not working very well. The agency is a wonderful concept, but in my later years in another place it became quite clear that the details of how it was supposed to function were not working properly. That was made absolutely obvious through individual complaints heard in the surgery and in correspondence. Many other examples could be cited, although perhaps less striking.
The principal advantage to MPs of the work of the PCA is that he can look at all the bits of paper. His or her staff can go into the government department 492 concerned and look at the case files and so forth in a way that MPs cannot. Sometimes those investigations uncover incidents of maladministration and help to get them put right.
Of course, the Freedom of Information Act—which is much in our minds at the moment—should make that aspect of the commissioner's work less necessary. I say "should" because it is not yet clear whether or not it will, but it should make it less necessary.
We were concerned some 25 or 27 years ago that MPs should not be short-circuited but should remain in the loop. That does not mean to say—although we did not take this view at the time—that a citizen might, for example, be given the power to go directly to the ombudsman if having raised a matter with an MP he or she is still not satisfied with whatever has happened. If the MP refused to send the complaint to the ombudsman, the individual might then be able to do so directly. This would be a kind of half-way house, as it were, and avoid opening up a complete alternative to the MP filter. I do not want to press that idea very hard, but it is a possibility.
One has to realise that over the life of the Parliamentary Commissioner many other ombudsmen have been established, both in the public sector and, to a certain degree, in different aspects of the private sector. There has been a huge increase in work of this kind and in the number of people prepared to complain. People no longer accept things in the way they used to a few decades ago.
Another measure of that change is the increase in the number of letters that are written to MPs, Members of the Government and so on. I read in one of the reports of the Public Administration Select Committee that the Prime Minister now receives half a million letters a year. That is astonishing. How on earth they can be dealt with satisfactorily is difficult to see. Some of them, of course, will be individual complaint cases—people complaining about their treatment—and writing to the Prime Minister may or may not be an effective way of getting the matter sorted out. I have my doubts because, as one of half a million letters, it must be very difficult to sort out. So it is against a background of a large increase in complaints, a greater willingness to complain and a lesser willingness to accept complaints that we have to look at these issues.
I hope that today's debate will draw out the Government's view on this issue. Their position seemed clear three years ago when Christopher Leslie, replying on behalf of the Government, stated:the time has now come to have direct access for individuals to the ombudsman and the filter of having to require Members of Parliament sign off is anachronistic and should be removed".Presumably that is still the Government's position.
It became clear at the beginning of the debate that the Government have been hanging about on this issue and that other, possibly wider, reforms of the ombudsman and ombudspeople"—it is not only the PCA that we are concerned about—have been delayed. The Government's view of what they will do, and when, is not at all clear. Perhaps it will become clear when the Minister replies.
§ 12.4 p.m.
§ Lord Bassam of Brighton
My Lords, I always enjoy the responses of the noble Lord, Lord Cope, to questions and debates. I was not sure at the end of his contribution where the Conservative Party sits on this issue, but perhaps that is a tease for another day.
I shall make plain from the start that the Government do not support the Bill introduced by the noble Lord, Lord Lester of Herne Hill. That is not to say that we do not recognise that this is an important issue. The debate today has demonstrated its relevance.
Before I get to the body of what I want to say, I should explain that the whole issue of complaints and complaint resolution has long fascinated me. I guess it probably comes from my local government experience. When I first became a councillor in the early 1980s, people— certainly on my side of the political divide—often used to see complaints from members of the public as a bit of a pain. I formulated a different view over my time as an elected member and took a rather more positive approach. I believe that inside every complaint there is a resolution of a difficulty and an answer perhaps—or certainly some very important questions—to why a particular service or facility is not working as it should.
Within our organisation we tried to foster a more positive approach, and that is the way in which I approach this issue as a whole. We should see complaints positively because they can tell us a great deal about the way in which public services operate. So, in a sense, I cannot see where the noble Lord, Lord Lester, is coming from. He sees the Government's reaction as being defensive. I do not think it is and I shall explain why as I go along.
The Government believe that Members of Parliament play an important role in channelling complaints through to the Parliamentary Ombudsman. I certainly recognise that the noble Lord, Lord Lester, has been a very keen advocate of ombudsman reform and, in particular, has championed the removal of the MP filter in the past to allow complainants to have direct access to the Parliamentary Commissioner. The noble Lord has now amended his position slightly to create an MP bypass through his proposals in the Bill.
In preparing for the debate I obviously consulted with interest the noble Lord's previous Private Member's Bill on this subject. It is very clear that the noble Lord has strongly held and well developed views supporting the removal of the filter, which would be the effect of his proposition.
I do not share the view of the noble Lord, Lord Goodhart, that after removing the filter there would still be a strong residual use of MPs. I rather suspect that, over time, use of the MP route may well fade away.
It has to be recognised that, in opposition to what the noble Lord, Lord Lester, said, some honourable Members in another place have equally strongly held views about the value of their role in forwarding complaints to the ombudsman and the responsibilities that they exercise under the 1967 legislation. We were given one or two examples of that during interventions in the course of the debate. Many Members of another 494 place believe that their role provides them with a valuable and necessary insight—the kind of insight that I certainly experienced—into the problems and concerns that their constituents experience in their day-to-day dealings with departments, agencies and other public bodies.
The noble Lord, Lord Lester, referred to the recent survey of Members in another place conducted by the Parliamentary Ombudsman through the Public Administration Select Committee. That survey rather bears that out. When asked whether in the absence of the removal of the MP filter they favoured direct communication between the ombudsman and the complainant once the initial referral had been made, 71 per cent of respondents said that they would wish to continue to be copied into the correspondence. In other words, they wanted to have continuing contact, information and feedback on the way in which the complaint was working its way through the process and learning from it.
Certainly while there was support from some who responded to the survey for the removal of the MP filter, there were also some who wanted very strongly to retain it. Of course, we do not know the views of' the two-thirds of Members of another place who did not reply to the questionnaire. Only 207 respondents participated in the survey.
§ Lord Goodhart
My Lords, is it not at least possible that among the two-thirds there are a significant number of MPs who do not take their duties in this respect seriously and who sometimes fail to pass on to the PCA perfectly legitimate complaints?
§ Lord Bassam of Brighton
My Lords, I certainly consider that a possibility, but probably the noble Lord would share with me the general view that MPs are really rather good at dealing with complaints. After all, as we have heard today, they have had rather a lot of practice. In my dealings with MPs of all parties, I have found that they are very diligent in this process and take it very seriously. They are not shy of using their wits to make good use of cases to argue for a political view that they hold.
We take the view that the survey is incomplete, although one could argue that it is representative. So we cannot accurately judge what Members in another place think because of the incomplete nature of the survey.
§ Lord Lester of Herne Hill
My Lords. will the Government carry out a complete survey so that they find out the actual position? Secondly, what do they think of the interesting idea of the noble Lord, Lord Cope, whereby one would go first to one's MP, give the MP four weeks so that the filter operated, and if he or she did not refer, then the complaint could be made directly? What is the Government's position on that halfway house, or any other idea to deal with the scandal of the present situation?
§ Lord Bassam of Brighton
My Lords, I am grateful to all Members of your Lordships' House who have 495 come up with ideas. I am sure that both those are worthy of further consideration. I shall be saying something about the way in which we are approaching the subject, and those matters may well be considered as part of that process.
We are aware that the Parliamentary Ombudsman would like to see the MP filter removed, but that is just one element of a number of reforms that the Parliamentary Ombudsman, the Health Service Commissioner for England and the Local Government Ombudsman have asked the Government to consider to enable them to work together more closely to provide a better and more customer-focused service to complainants.
The Government fully support these ideals but believe that the proposals for reform and the practical consequences need to be carefully considered in the round and not taken forward, as the Bill suggests, on a piecemeal basis.
The ombudsman services are going through a period of change, and the Government have made it clear that they are committed to working with ombudsmen to take forward reforms which will enable closer working between the main public sector ombudsmen and facilitate an improved and more modern service for complainants.
Given the constraints on parliamentary time and the many competing priorities for legislation, the Government intend to focus their efforts on identifying what can be done within existing statutory arrangements to bring about some reforms to remove barriers to closer working between the main public sector ombudsmen.
The Government are currently working closely with the Parliamentary Commissioner for Administration and the Health Service Commissioner for England. Ann Abraham, and the chair of the Commission for Local Administration in England, Tony Redmond, with a view to taking forward detailed work to remove a number of legislative constraints on effective joint working by means of a regulatory reform order.
The regulatory reform order route could be used to remove existing legislative barriers which prevent information-sharing and consultation, joint investigations and the issuing of joint reports. That would greatly assist the public sector ombudsmen in their ability to offer a more joined-up service to the public and improve the quality of response to complaints.
We believe that the regulatory reform order route represents the best and the quickest way to bring about the desired changes. The Government are working closely with the public sector ombudsmen on the detail of the consultation document and the draft order, both of which will be published in due course.
I have found this a useful and insightful short debate.
§ Lord Campbell-Savours
My Lords, will my noble friend help me a little? In deciding upon the response 496 of the Government in the brief that has been given to my noble friend, was the Parliamentary Commissioner consulted about the position of her department?
§ Lord Bassam of Brighton
My Lords, my understanding is that the commissioner was consulted. We are well aware of her rather public view that further consideration should be given to removing the MP filter.
A number of useful points have come up during the course of the debate; I agree with some of them but not with others. I did not agree with the noble Baroness, Lady Neuberger, that MPs are harder to use as a means of accessing the ombudsman service. I think that when most members of the public meet their MP and most MPs hold regular surgeries—they find them very useful in helping to forward complaints and ensuring that the process can be properly used.
§ Baroness Neuberger
My Lords, why, then, does the Parliamentary Ombudsman's own research show that those particular groupings find it more difficult to access their MPs?
§ Lord Bassam of Brighton
My Lords, perhaps the research does show that. However, my point is that most people find MPs quite useful and, when they approach them, they find them able to access the ombudsman service. There is a degree of mystique about the way in which ombudsmen work and that may be one of the issues on which we should focus.
When I first came across the service, I thought that it was rather remote and centralised, whereas at least the MP is local and reasonably accessible and can be made use of in processing the complaint or difficulty. Other Members of your Lordships' House have given rather good voice to that and suggested that the access for MPs is valued. I have listened with great care to what my noble friend Lord Campbell-Savours said because he, in particular, is a very active user of complaints to focus on political issues. I am sure that we can all think of many examples from our wider political experience.
The noble Lord, Lord Cope, also gave useful examples of the helpful role of Members of Parliament. When he was a Member of Parliament, I know that he was very busy, active, helpful and assiduous. We should be looking at ways of further enhancing and developing that role. I am one of those who thinks that the resources that MPs now have to do that work are very valuable. Ultimately, they probably help improve the quality of public service, because that is where we want to direct our efforts. I am sure that that is the spirit in which the noble Lord, Lord Lester, has brought forward his Bill. But at the end of the day, it is a not a Bill that we feel able to support.
§ Lord Lester of Herne Hill
My Lords, I am very grateful to all noble Lords who have taken part in this brief but very important debate. Your Lordships come from a very wide range of backgrounds, but all those who have spoken have direct experience of public life in many different forms. I do not think the noble Lord, 497 Lord Cope, will mind my saying, as a lawyer to an accountant—and even accountants can be high—minded, as well as lawyers that I found his contribution equivocal and ambiguous. The Minister was correct in saying that he did not really understand the Official Opposition's position. I find their position very strange, since you would have thought that the Official Opposition, at least, would want to stop the Government being able to shield themselves unnecessarily from complaints of maladministration, but there it is.
§ Lord Cope of Berkeley
My Lords, the noble Lord may not have appreciated the fact that we do not anticipate being in opposition for very long.
§ Lord Lester of Herne Hill
My Lords, I do not share that anticipation. That is an example of hope and faith over practical experience.
I shall not go through the various speeches, but I should like to make one or two points. No one suggests that the role of the MP is not absolutely crucial. No one suggests that MPs should not be closely involved in the work of the PCA and copied into complaints that are made, whether directly or through an MP. No one suggests that our MPs should not retain very close links with their constituents.
However, the Minister has failed to deal with the evidence and arguments that have been given in this debate and beyond. There is no evidence I am aware of from other parliamentary democracies, including New Zealand, Canada, Australia, Ireland—and Hong Kong, as a sort of parliamentary democracy, on the road to being a better one—that the MPs in those jurisdictions are bypassed in a way that damages their relationship with their constituents. There is no evidence that any ombudsperson in any jurisdiction complains of overload as a result of direct access. The evidence that we have from the incomplete survey of Members of the other place is that, in the 27 years since the noble Lord, Lord Cope, was concerned directly with the matter. attitudes have changed. No doubt, the overload of MPs has made them perhaps more sympathetic to the idea of giving the public direct access.
Of all the ideas that were expressed in the debate, the one that intrigued me most was that put forward by the noble Lord, Lord Cope, although he did not put it forward with great enthusiasm. It was the idea of the halfway house. If the Bill is given a Second Reading, it could be amended, by way of a compromise, so that—to recall the point of the noble and learned Lord, Lord Mackay of Clashfern—one would retain the filter in the real sense, and one would still have to go to one's MP for, let us say, four weeks, or whatever reasonable time was decided. Then, if the MP had not dealt with the matter, simply through inaction or a refusal to refer it, the individual would then have the right, having exhausted that MP remedy, to take the complaint directly. That would be a way of ensuring that the concern of MPs to remain kept in the loop would be addressed. But that matter could be dealt with in Committee. If the noble Lord, Lord Cope, or 498 any other Member of the House, wished to put down an amendment to that effect, I certainly would be sympathetic to it.
We have heard that the Government are not willing to legislate at all. If that is the case, the filter will remain. It cannot be dealt with administratively. The filter will remain as an absolute bar. If the Government are not willing to legislate at all, what are we to do? I suggest that we should take the Bill through its stages—and, if necessary, amend it—as a catalyst to enable the other House to decide the matter as it should. For those reasons. I hope that this Bill will be read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.