Schedule 5
Health Bill [Lords]
9:30 am
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
The current local authority scheme operated by the ombudsman under part 3 of the Local Government Act 1974 contains exactly the same provision for investigations to be conducted in private. It is generally also the case with other public service ombudsmen’s investigations.
One of our aims in these provisions is to mirror, where appropriate, the procedures that apply to the local authority scheme. Of course, if there are any good reasons for a different approach, we will listen to them. In the case of investigations being conducted in private, however, I do not think there should be any difference between the two schemes.
There are also sound arguments in favour of investigations being conducted privately in relation to these matters. For example, the matters complained about may be to do with health or care and may be of a confidential or personal nature. The effectiveness of the scheme is, to a large extent, dependent on how well it enables the ombudsman to get to the truth of the matter. This means that procedures that encourage the giving of accurate evidence are important. If there was a requirement to hold investigations in public, that might hinder openness on the part of some witnesses.
The ombudsman’s procedures are not like a court of law. They are meant to be flexible and effective, capable of being carried out speedily, and they are designed to bring out the salient features as efficiently as possible, to allow the ombudsman to reach a conclusion as reasonably expeditiously as possible. While it is possible for witnesses to have legal representation, the ombudsman aims to regulate the investigation and to ensure that it does not become costly, bureaucratic, or unduly cumbersome. I fear, however, that is exactly what would happen if investigations were to be held publicly. I therefore believe that it is entirely appropriate that we should keep the ombudsman’s operation in a particular area without trying to apply to it a whole list of legalistic concepts that may have a real relevance in a court of law, but which would undermine the very nature of the ombudsman’s role.
Amendment 105 seeks to allow the ombudsman to apply to the High Court for a judge to use the powers of the court in relation to evidence. There are certain powers here anyway for the ombudsman. In the proposed new section 34G, the ombudsman has the same powers as the High Court to compel the attendance and examination of witnesses and production of documents. This means that anyone not complying with a reasonable request of an ombudsman may be in contempt of court and subject to the penalties associated with it.
If a person obstructs an investigation, or is guilty of an act or omission in relation to an investigation, which could constitute contempt of court in proceedings in the High Court, the ombudsman may certify this as an offence to the High Court. The High Court then would deal with the person charged as though they had committed the same offence in relation to the High Court.
The hon. Member for Eddisbury proposes to make further remedies available to the ombudsman, which would enable him to take steps beyond those he is currently able to take. I am concerned that, if we start to extend significantly the powers of the ombudsman in this area alone, the real risk is that we import into it a whole series of legal concepts, which operate perfectly well in the courts, which are designed to protect those affected by the powers and remedies. However, in the context of the ombudsman’s investigation, it could become extremely legalistic, resulting in the ombudsman being judicially reviewed on all sorts of decisions before the High Court, as well as delaying things substantially, adding to the cost of the ombudsman, and failing to fulfil the whole basis of the speedy review and examination of issues that the ombudsman was intended to facilitate.
I recognise the good will and genuine intentions of the hon. Gentleman to enhance the powers of the ombudsman, the fear is that with those remedies and powers would come a significant examination of legal detail as well as importing legal procedures that would be unduly cumbersome. I hope that, having expressed those concerns, the hon. Gentleman will be able to withdraw his amendment.