Schedule 5
Health Bill [Lords]
9:30 am
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
The Bill states:
That has resonances of yesterday’s motion on the Floor of the House. Will the Minister explain to the Committee how far that extends? What does “this Part” refer to? Is it just the new clauses before us? Surely the ombudsman should be given the freedom to decide whether to conduct investigations in public or private. Is he not able to make that decision? In the week that the Government are feeling a touch of the heat about matters such as this, I hope they will regard the ombudsman as having discretion to make that decision more freely than is apparent in the Bill.
The commissioner has only civil powers of compulsion, but amendment 105 seeks to enable him to obtain, through a judge, the powers of compulsion used in criminal actions, that is not just over people, but over documents, too. Dredging into my past practice as an international commercial litigator and arbitrator, I remember that it was enormously helpful in civil cases to be able to apply to a judge to seize documents under an Anton Piller order, or a subpoena duces tecum. Those concepts will be familiar to the Minister. At present, it appears that the ombudsman has no powers to obtain the sort of evidence that might be required to ensure that this as a complaints procedure, rather than as a referred, typical ombudsman’s procedure, will give the necessary satisfaction. Without the opportunity for compulsion, the appeals process and the complaints process will not carry with them the confidence that all the evidence necessary in order to ensure that a complaint is properly heard and adjudicated upon is available, and that the process is sufficiently robust to be worthwhile, rather than simply avoiding putting a whole separate complaints process in place and parking it with the ombudsman. This is a bit of a test as to how truthfully the scheme is intended to operate, without the powers of compulsion with which the Minister, in terms of legal concepts, will be familiar— this balance between the normal powers of compulsion within the criminal court where, of course, the burden of proof is of a much higher standard than in the civil courts. This seems to relate to a more voluntary, civil-type arrangement, and even in the civil courts, rather than in the case of the ombudsman, as referred to here, there is a danger that, without the powers of compulsion that I would expect to have been able to use in relation to a civil action, the ombudsman’s role and remit could be unnecessarily severely limited.