Parliamentary Commissioner (Amendment) Bill [H.L.]

– in the House of Lords at 7:34 pm on 17th January 2000.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 7:34 pm, 17th January 2000

My Lords, I beg to move that this Bill be now read a second time. Its purpose is to make a modest, practical reform; namely, to create a public right of direct access to the Parliamentary Commissioner for Administration.

The Office of the Parliamentary Commissioner for Administration (PCA) was established in 1967 for the investigation of complaints by members of the public of injustice resulting from maladministration by government departments. During the Second Reading debate on the Parliamentary Commissioner Bill in the other place, the Secretary of State, Richard Crossman, gave a useful catalogue of what would constitute maladministration:

"bias, neglect, inattention, delay, incompetence, ineptitude, arbitrariness and so on".--[Official Report, Commons, 18/10/66; col. 51.]

The model for the new office of the PCA was the Scandinavian ombudsman. It was first proposed by Justice, the British Section of the International Commission of Jurists, in 1961 in the Wyatt Committee's report, The Citizen and the Administration. I am proud to serve on the executive committee and council of Justice, and delighted that the noble Lord, Lord Alexander of Weedon, the distinguished chairman, and the noble and learned Lord, Lord Archer of Sandwell, who is I think honorary vice-president of Justice and a long-standing and active champion of justice, will take part in the debate, together with other eminent jurists and former Members of Parliament.

The Justice proposal to create the PCA's office was rejected by Harold Macmillan's government in 1962, but the opposition of constitutional conservatives in Whitehall and elsewhere was overcome when Harold Wilson's first administration was elected in 1964. Unlike the ombudsmen in Scandinavia, the British Parliamentary Commissioner was tied to the legislature to function as an extension of parliamentary scrutiny and control. The office was intended, as the government explained in their White Paper in 1965 (at paragraph 4 of The Parliamentary Commissioner for Administration, cmnd 2767), to provide MPs with,

"a better instrument which they can use to protect the citizen".

The Parliamentary Commissioner is an Officer of the House of Commons and can undertake an investigation only at the request of an MP to whom he reports the result. He makes an annual report to Parliament and is supported by the House of Commons Select Committee on Public Administration, which reports to another place on the commissioner's work and takes up with departments any cases where there has been an inadequate response to the commissioner's findings.

The commissioner's investigative powers cover over 100 government departments and non-departmental public bodies and most kinds of administrative action by those bodies. He has wide powers for carrying out his investigations. He 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.

If he finds injustice caused by maladministration he may recommend to the department concerned whatever action he thinks should be taken by way of redress; but he has no powers of enforcement. Departments almost invariably comply with his recommendations. Redress may take the form of an ex gratia payment to the complainant, or 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 the commissioner that an injustice will not be remedied, he may make a special report on the case to Parliament.

The PCA's office therefore has great potential in promoting good government and providing the citizen with an inexpensive and non-adversarial form of redress for injustice resulting from maladminstration. The office has become a universally accepted and well-established part of our parliamentary system of government, increasing ministerial accountability. One great attraction of the system as an alternative to the legal process is that it is informal, speedy and involves no financial cost to the complainant. It is an excellent form of alternative dispute resolution.

The much-criticised and unnecessary hindrance to the public's right of access which the Bill seeks to remove is the so-called "MP filter", which fetters the powers of the PCA. As Professor Colin Turpin of Clare College, Cambridge, observed in British Government and the Constitution (1990, second edition) 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".

More recently, Dr Philip Giddings of the University of Reading has commented (in The Law and Parliament, 1998, edited by Dawn Oliver and Gavin Drewry, page 132) that,

"Removal of the filter could be expected to lead to a substantial increase in the number of cases reaching the PCA (as happened with the local government ombudsmen when direct access was permitted) ... A related issue, and a critical one should the MPs' filter be removed, is public awareness of the PCA. A survey carried out in March 1995 found that less than half (46%) of the respondents had 'heard of the Parliamentary Ombudsman'. However effective a complaint-handling mechanism may be when in operation, potential complainants with justified grievances need first to know that it exists, and then how to bring it into play, if it is to be of any help to them ... This issue of visibility closely connects with accessibility--whether the procedures ... deter the less literate or less determined complainants".

Direct access to the ombudsman or equivalent officer by members of the public is allowed in most other countries that have such an institution. There is direct access to the health services and local government commissioners. To the best of my knowledge, the only two countries with a similar filter are France--in respect of the mediateurs--and Sri Lanka. It used to be the case that both the government and the Select Committee on the Parliamentary Commissioner wished to see the MP filter retained. In its first report, (House of Commons, 706, of 1987-88, paragraph 9) the Select Committee explained that the filter acted,

"as an extremely effective sifting mechanism and is one of the great strengths of the UK system. In effect, every individual Member of Parliament is himself an Ombudsman and deals in his elected capacity with many complaints without having to seek recourse to the PCA".

If that was still likely to be the prevailing view, I should not have been so presumptuous as to introduce the Bill. However, times and attitudes have changed significantly, above all because of the great change in the political complexion of the other place on 1st May 1997 with the election of Labour and Liberal Democrat MPs committed to the modernisation of our parliamentary system. A survey of MPs conducted for the Select Committee in 1993 (First Report of the Select Committee of 1993-94, House of Commons, 33) found that the highest level of support for removing the filter was among the more recently elected Labour MPs. That tendency is surely much stronger in the new House of Commons; certainly, among Liberal Democrat, and, I should suppose, new Labour MPs.

In a recent debate on 19th October 1999 on the report from the Select Committee on Public Administration on the work of the Parliamentary Commissioner, 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. If the Bill is passed by this House, it will provide the other place, as now composed, with the opportunity to decide--as it is of course for its Members to decide--whether the time has come to remove the filter and allow a public right of direct access. The most reliable way of testing the opinion of Members of the other place on a matter is, after all, to put it to a vote there after a well-informed debate. This House will then provide the catalyst for reform ultimately to be decided upon by the democratic House of Parliament. That is why I hope that I shall not be regarded as presumptuous or disrespectful of the powers and privileges of Members of the other place in introducing the Bill.

An ongoing review--to which I am sure that the Minister will refer in his reply--of the functioning of the Office of the PCA is being carried out by the Cabinet Office, which is examining the functions and powers of all the public sector ombudsmen in the UK. The Government, in response to a Question which I tabled, previously suggested that that review would be complete by Christmas 1999. As we have entered a new century since then and no white smoke is to be observed billowing from Whitehall in that matter, I suggest that, pending the completion of the review, removing the MP filter is a modest yet significant change that should be made now. The logic of the case for removal is compelling.

The filter substantially reduces the number of complaints referred to the PCA. That is due to a number of factors, which Mr Michael Buckley, the present Parliamentary Commissioner, has identified in his memorandum submitted as part of the review of public sector ombudsmen. Many potential complainants will not use their constituency MP because of differences of political complexion. That problem is compounded by the existence of a strong ethos among MPs that they will not take complaints from the constituents of other Members even when asked. MPs vary also--as do we--in efficiency, conscientiousness and accessibility; many will be poorly informed of the remit and functions of the ombudsman. Some may discourage complainants or simply not think of the ombudsman as providing a potential solution to the problems faced by their constituents; others may refer in wholly inappropriate circumstances.

The Parliamentary Commissioner, in his evidence to the Select Committee in July 1998, observed that the 1967 Act is,

"a difficult and restrictive piece of legislation", which is,

"hard to follow", with the result that many busy MPs simply do not have the time adequately to vet complaints to see whether they are suitable for the ombudsman. Mr Buckley gave as examples complaints about the Oxford University Press which were mysteriously referred to his office by an MP, and a significant number of cases where correspondence ended up on his desk from complainants dissatisfied with their building societies seeking the assistance of the Building Societies Ombudsman.

One of the arguments for inserting the filter in 1967 was that MPs would act as gatekeepers, winnowing out cases which did not merit investigation by the ombudsman. The Parliamentary Commissioner's examples strongly suggest that that winnowing process is not working well. I should say that he was kind enough to meet me to discuss some of the problems before I introduced the Bill. If anything, the filter is causing more confusion and administrative problems than it is solving. The most recent report of the PCA confirmed that 70 per cent of the cases referred to him were not within his jurisdiction. As he commented to the Select Committee, MPs have,

"other things to do with their time than to try to unravel the complexities of the complaints mechanism".

In addition, the formality of the procedure required, and the lack of any direct contact with the office of the PCA, is a major deterrent to ordinary members of the public.

Complainants are cut off from direct access to the PCA, and what should be a flexible and accessible remedy for complainants becomes perceived in the eyes of citizens as another bureaucratic and remote procedure. Even if someone makes a complaint and has it referred by a MP, the ombudsman continues to deal directly with the MP, and only indirectly with the complainant. For example, Section 10(1) of the 1967 Act provides that the commissioner, on the conclusion of his investigation, shall send the completed report to the MP, not to the complainant. If the report is sent by the commissioner to the complainant as well, under Section 10(5) the commissioner cannot claim privilege in respect of the contents of the report for the purposes of the law of defamation. That not only distances the complainant from the procedure but also encourages inflexible and formalistic procedures.

It is difficult to evaluate precisely how damaging the effect of the filter has been. But it is striking that in the 33 years that the Office of the Parliamentary Commissioner has been in existence it has on average received fewer than 1,000 complaints per year against the whole of central government and has been able to investigate fewer than 250 complaints per year.

By way of contrast, perhaps I may give one example to serve for all. I could give other examples which are more dramatic, but I take the example of Ireland. The Irish Ombudsman, who is not subject to a parliamentary filter and who deals with a very small population of some 3.6 million, received 1,380 complaints fit for investigation in 1998 alone. When the filter in Hong Kong was removed, complaints went up fifteen-fold. Similarly, there was a large upsurge in complaints to the Local Government Ombudsman when the equivalent councillor filter was removed in the 1980s. There are many other examples. One of the Hungarian ombudsmen told me that she receives and deals with up to 30,000 complaints a year, compared with the 1,000 which Mr Buckley is dealing with.

In his evidence to the Select Committee, Mr Buckley said that his caseload is significantly less than would probably be the case if the hindrance to free access by members of the public to his office were removed. In the other place, Mr Mark Oaten, MP, described the filter as,

"adding a blockage to the system".--[Official Report, Commons, 19/10/99; col. 333.]

As I said, one of the original justifications cited in 1967 for the MP filter was that it built in links with Westminster. However, removing the filter would not mean severing links with the parliamentary process or with the other place. The able scrutiny of the work of the commissioner carried out by the Select Committee on Public Administration ensures and will continue to ensure that Parliament remains intimately involved with the work of the ombudsman, as does the fact that he reports to Parliament.

Another argument for the filter was the fear that the PCA might somehow act as a rival to the MPs' role in dealing with the grievances of constituents. But the commissioner is not a political figure. Independently and impartially he scrutinises administrative decisions for maladministration and acts as a safeguard for the rights of citizens. Given the complexity of some of the cases which he investigates, the commissioner provides an essential complement to the work done by MPs on behalf of their constituents.

It is plainly in the interests of good administration and the protection of citizens against the misuse of public powers if complaints of maladministration are handled wherever possible through the good offices of the Parliamentary Commissioner, rather than by means of litigation, including judicial review. Direct access would enhance significantly the practical enjoyment of those important aims of the system.

There has been a significant change in the governing culture of the UK since 1967; a welcome change reflected, among other things, by the introduction and enactment of the Human Rights Act 1998. When the ombudsman system was set up, the paternal state was presumed always to know best. Now citizens are being empowered to challenge abuses and maladministration by state authorities. Removing the filter is part of that process. If citizens wish to bring a complaint, they should be entitled to go directly to the commissioner and not to have their complaints vetted for suitability by an MP. That modest reform will be entirely in line with the Government's ambitions for public services set out in Chapter 3 of the White Paper, Modernising Government. Paragraph 6 of that chapter says that the Government want public services that,

"make it easy to complain and get results when things go wrong".

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. It is a change which is in no way dependent on wider changes to the organisation of the system or the powers of the PCA and other ombudsmen. Accordingly, I very much hope that the Minister and his colleagues will support the Bill and will not seek to delay reform with the bureaucratic argument that the time is not ripe. As F. M. Cornford famously observed in 1908:

"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".

I hope that the Government and the House, and in due course the other place, will support the Bill in the interests of accountable parliamentary government, good administration and the effective protection of the citizen. If your Lordships give the Bill a Second Reading and it is then passed by this House, the House will be the handmaiden for change by the other place.

Moved, That the Bill be now read a second time.--(Lord Lester of Herne Hill.)

Photo of Lord Borrie Lord Borrie Labour 7:54 pm, 17th January 2000

My Lords, a few years ago the then Parliamentary Commissioner or ombudsman, Sir Cecil Clothier, referred to the Parliamentary Commissioner Act as "very brief and elegant". I believe that if this amending Bill were to become legislation, the legislation would be even more brief and, in my view, at least as elegant.

I congratulate the noble Lord, Lord Lester of Herne Hill, on introducing the Bill because it gives us an opportunity, which I believe is probably fairly rare in this House, to consider the matter of the Parliamentary Commissioner. I hope that no one in the other place considers that we are not acting properly in dealing with a subject which they may regard very much as their own.

Since 1967, I believe that the Parliamentary Commissioner has proved to be a most useful and important constitutional device for handling citizens' grievances involving maladministration by government departments and agencies of all kinds. Of course, as the noble Lord, Lord Lester, said, it could be more useful, and he has described ways in which that could be achieved. However, the idea as such has undoubtedly been successful, not only in the other parts of the public sector which the noble Lord described. It has also been used in the devolution legislation for Scotland and Wales and it has spawned a number of other ombudsmen in the private sector, let alone the public sector. The huge Bill which this House will receive shortly--the Financial Services and Markets Bill--is a particular example. But, of course, even building societies, mentioned by the noble Lord, estate agency and even legal services have their ombudsmen. Therefore, the idea has taken off in the past 30-odd years.

With regard to grievances against government departments and agencies, justified grievances may, of course, arise not just from actions of government or government departments which clearly are illegal but from conduct and behaviour where the citizen has been treated inconsiderately or unfairly, has been misled or has had his case delayed excessively. Those are not matters which one can pin down as illegal but they are, nonetheless, justified grievances. The noble Lord did not say so, and perhaps, if one was not aware of the facts, one would not be surprised to learn that the Department of Social Security and its related agencies have overwhelmingly the largest numbers of grievances brought before the Parliamentary Commissioner.

When the 1967 Act was brought in, I suppose that it was not easy for Members of the other place to admit that the traditional methods of redress of constituents' grievances--the Parliamentary Question, correspondence between MPs and Ministers and the Adjournment Debate--were inadequate. The model of the Comptroller and Auditor-General, whom I suppose I might fairly describe as a kind of financial ombudsman, has been there since the previous century, supported by the powerful Public Accounts Committee. I suppose that that may have reassured MPs to some extent, but the government of the day seemed to think that further reassurance was deemed desirable and, therefore, they introduced the MP filter, as the noble Lord, Lord Lester, has described it.

The author of one of the main works on administrative law--well known to the noble Lord, Lord Lester--Professor Sir William Wade, said about the MP filter:

"The theory behind the requirement that complaints must be submitted through MPs was that the MP would act as a filter and eliminate futile cases. In fact, it seems that they prefer to let complaints be rejected by the Commissioner than to reject them themselves".

The annual report of the present Parliamentary Commissioner, Michael Buckley, shows--and the details are set out in the report--that something over a half of total complaints put to the Parliamentary Commissioner were outside his jurisdiction, either because the body complained about was outside his jurisdiction or because the matter complained of was not "an administrative action".

I shall not assert that MPs are blameworthy in that respect. It is quite a subtle matter to know where the jurisdiction starts and ends. But I can certainly assert, without being rude to Members of the other House, that they are not very successfully carrying out their function of acting as a filter. Surely after 30-plus years, MPs today are not so lacking in self-confidence in their significant constitutional role, and role as Members of Parliament generally, that they would wish to continue to be the sole conduit through which complaints may go from their constituents to the Parliamentary Commissioner.

In the 1970s, a modification of the procedure was introduced whereby if a complaint goes direct from the citizen to the Parliamentary Commissioner because the citizen does not realise that he is supposed to go through a Member of Parliament, the Parliamentary Commissioner will respond, offering to forward a suitable case to the complainant's MP so that the MP may then refer it back to him. Insisting on that round-about procedure is surely not worthy of the other place. It is not worthy of Parliament.

As the noble Lord, Lord Lester, said, direct access is allowed to the Local Government Ombudsman, although it was not when the office was set up, as it is to the Health Service Commissioner and as it is in most other countries where there are parliamentary ombudsmen. It seems to me that one of the values of the proposal put forward by the noble Lord, Lord Lester, is that it would enable the Parliamentary Commissioner to extend public awareness of his role. He would like to be able to create greater knowledge of his function, role and purpose in life.

It surely is the case that 1,000 or 1,500 complaints per year--and as I said, a high proportion are outside the jurisdiction--is a ludicrously low figure. It is only two or three in each constituency. Perhaps I may use a phrase of the former ombudsman, Sir Cecil Clothier. What he used to call "missionary work" would ensure that the public is much more aware of the procedure which exists, which Parliament and the taxpayer provide. Surely it is desirable that that work should be better known than it is. Therefore, I support the ideas which the noble Lord, Lord Lester of Herne Hill, put forward.

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative 8:03 pm, 17th January 2000

My Lords, I, too, support this Bill. I am grateful to the noble Lord, Lord Lester of Herne Hill, for introducing it. The noble Lord is a remarkable champion in this House of human rights and measured law reform. His comprehensive arguments for this Bill were typical of his wide-ranging knowledge and his tireless dedication.

I speak, as he says, as chairman of Justice, whose report The Citizen and the Administration in 1961 and the acceptance of that report paved the way for the appointment of the Parliamentary Commissioner for Administration, as he is still called, although I should prefer that the office was now designated the "ombudsman", since that is a readily understandable term.

The key to success of the ombudsman system in every area, both public and private sectors, has been because it ensures easy and speedy access to informal justice. I saw it directly in action in the time that I spent in banking. Customers with complaints against large banks would be daunted by the prospect of going to court. But the ombudsman service provided a channel by which they could be invited to ventilate their complaints when the internal mechanisms for resolving them had failed.

It is fair to say that the ombudsman system was somewhat more tolerated than rejoiced in by the bank executives, but no doubt that was a very healthy state of mind.

The system was free to the customer, legal representation was unnecessary and, while following the rules of natural justice, was informal, inquisitorial and non-adversarial. The independence of the ombudsman who, for most of my time was another member of the council of Justice, an eminent solicitor, Laurence Shurman, was unquestioned. Sometimes, as in litigation, the customer wins and sometimes loses but never once in the 10 years that I spent in the industry did I hear a single complaint that the unsuccessful customer had been deprived of his long and expensive day in court before a judge solemnly clad in wig and gown.

The system has the other advantage that the ombudsman develops a body of expertise through regular specialist involvement which judges hearing such cases occasionally, on an ad hoc basis, could not gain. The reports of the ombudsmen, too, are valuable in prompting better practice throughout the particular industry.

The success of the ombudsman approach to providing an alternative dispute resolution mechanism is the extent to which it has been so widely adopted across the public and private sectors. Indeed, to speak at the Annual Conference of Ombudsmen is to speak now to several hundred distinguished people, mostly lawyers, who are gathered together in the public service.

But the ombudsman scheme can always be improved and, in that respect, the proposals for the financial sector provide a useful pointer. Through the Financial Services and Markets Bill, the various separate schemes within the financial markets will be brought together under a chief ombudsman, supported by sectoral ombudsmen dealing with banking, insurance and other aspects of financial services. In the same way, Justice considers that there would be merit in bringing together the parliamentary, health and local government ombudsmen in one unified scheme or, at any rate, on a more collegiate basis. Precisely because of the complexity of modern society, it can be unclear--and this was alluded to by the noble Lord, Lord Borrie--to which public sector ombudsman they should take their complaint. Indeed, many potential complaints involve more than one department of central and local government. I hope that that suggestion might find favour when the outcome of the review, to which the noble Lord, Lord Lester referred, is known.

But the purpose of this Bill is more modest. It is a discrete purpose and does not require us to await wider-ranging reform. But more modest as it is, it is of high importance for the ombudsmen schemes are about access to justice and the parliamentary filter is now, of its nature, a barrier and distances the complainant from the ombudsman. It is even more of a barrier where it operates haphazardly but inconsistently. It was no doubt understandable that it should be introduced when this was a new and novel jurisdiction borrowed from Scandinavian countries and regarded as a precaution which would allow the system to be tested in action and no doubt to avoid the risk of abuse and the opening of those floodgates which is so feared by some whenever beneficent law reform is introduced.

After 20 years, the time has come to rid ourselves of the filter and the barrier, which is counterproductive where we seek easy access to justice. I hope that the Bill will go forward and be given time in the other place, so that those who operate the filter can determine whether they agree it should be kept or take the view that it can be dispensed with--that the citizen should trusted to have direct access to the ombudsman and the ombudsman should be trusted to respond directly to the citizen.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour 8:10 pm, 17th January 2000

My Lords, I add my congratulations to the noble Lord, Lord Lester of Herne Hill, on increasing the debt that the House already owes to him by introducing this Bill.

It is always a pleasure to follow the noble Lord, Lord Alexander of Weedon. If it appears that this debate is in the nature of a justice takeover, that is no mystery--for reasons already given. On the last occasion that my noble friend Lord Borrie and I participated in the same debate, we had the misfortune to disagree. It is a great pleasure to observe that tonight, harmony is totally restored and I respectfully endorse every word that my noble friend said.

We have had four present or future practising lawyers arguing for an extension of an alternative dispute resolution procedure. Perhaps some of our noble colleagues may wish to take note. For reasons already given, there is general agreement that the office of ombudsman has fully justified the experiment. There are now numerous ombudsmen in the public and private sectors and the British and Irish Ombudsmen's Association has been effective in disseminating the growing experience of how ombudsmen can operate in various circumstances.

I have served as an ombudsman for the Mirror Group of newspapers and one of the major lessons I learnt was that there is no single pattern. Even among press ombudsmen, no two seem to work exactly the same way. One advantage of the concept is how flexible it can be in responding to various situations and needs. It has the capacity to expand wherever a need is recognised.

Lord Woolf, in his report, Access to Justice, pointed out that here was an alternative procedure for dispute resolution. It should gladden the heart of my noble and learned friend the Lord Chancellor that the problem we have all spent so much time discussing of how to fund legal services might be alleviated if greater use were made of the ombudsman procedures. Lord Woolf recommended a more flexible system of referrals between the courts and the appropriate ombudsmen. I hope that we may see greater advantage taken of the opportunities that that offers.

I was privileged to participate in an international conference on administrative justice at Bristol University in November 1997, with the encouragement and assistance of the Lord Chancellor's Department and which was the brainchild of Professor Martin Partington. The lessons that emerged are still being digested but I recommend the book based on some of the papers, Criminal Justice in the 21st Century. Perhaps I ought to declare an interest as a unpaid contributor. One of the lessons was the range of possibilities of dispute resolutions made available through ombudsman procedures.

I understand why it was felt initially that a filter was necessary. As my noble friend observed, there was a fear that the Parliamentary Commissioner would be submerged by complaints--many of them time consuming and outside his remit. That has not happened. In his evidence to the Select Committee, the then commissioner, Mr. William Reid, made clear that he did not fear the removal of the filter and, as the noble Lord, Lord Lester, pointed out, the present commissioner, Mr. Michael Buckley--with whom I have also had the opportunity to discuss some of these matters--holds a similar view. Neither fear an extension of the volume of work likely to fall upon the ombudsman. Unlike so many public officials and bodies whose workloads do outstrip their resources, sometimes to the point of crisis, that concern was misconceived.

One reason is that the work of the Parliamentary Commissioner is not as widely known as it ought to be. The proposal will be effective only if the possibility of a reference is much more widely publicised. Even among Members of Parliament, the possibility of resolving problems by the ombudsman procedure does not always come to mind. As was said by the noble Lord, Lord Alexander, the more widely the procedure is used, the more likely its existence is likely to be known.

Sometimes, one or two Members of Parliament may take an eccentric view. I remember Sir William Reid telling the story of receiving from an MP who was unhappy at one of his reports a letter stating, "I shan't refer any more cases to you". He commented that it would have been more tolerable if some other MP could have taken up the cases concerned and referred them--but one of the rules that MPs observe is about interfering in another's constituency.

The second reason it was thought necessary to insert the filter was that at the time of the original Act, this country had no experience of such a procedure. There was suspicion of any dispute resolution process that might compete with the courts and in some way undermine the rule of law. As the noble Lord, Lord Lester, said, it was even feared that it might undermine the sovereignty of Parliament if MPs were not accorded a veto.

My impression of the present House of Commons accords with that of the noble Lord. Members of the other place are concerned not with retaining power in their own hands but with redressing the grievances of their constituents. The anxiety belongs to the philosophy expressed in 1929 by Lord Hewitt in The New Despotism. It was thought to favour droit administratif and was not the British way of doing things. Now, the concept of a seamless web of administrative justice--including judicial review and other remedies in the courts, together with other extracurial forms of dispute resolution--is totally accepted. In my experience, judges and Members of Parliament see no danger of competition. Our democracy is not so perfect that any one institution should claim a monopoly in redressing grievances.

The administrative bureaucracy is not always right. Anyone who perceives that as criticism fails to understand the universality of human error. We all acknowledge that where a decision has the capacity to inflict unfairness on an individual, it should be possible to look at it again and find redress without necessarily persuading a politician that an unfairness has been perpetrated. That is what the expertise of the Parliamentary Commissioner is for and it would be a wasted resource if we fail to make full use of it.

Photo of Lord Cocks of Hartcliffe Lord Cocks of Hartcliffe Labour 8:20 pm, 17th January 2000

My Lords, if I was a barrister we would have what is known in cards as "a running flush", but I must apologise and say that I am only a layman in these matters.

However, I am pleased that the noble Lord, Lord Lester, has introduced the Bill because I believe he has exposed an Achilles' heel for which I have been looking for some time. From time to time he and I have exchanged words in the Chamber over his Question of the espousal of the Human Rights Bill. I have referred to his associations with Charter 88 and the "chattering classes", although I believe that that phrase has now been superseded by "woolly Liberals".

In the past I have contested his view that there is a great groundswell for constitutional change in this country. I believe that we are now here on another one of these "hypes" and that there is not the substantial crying out for change which people say there is. I do not even think that it is a modest, practical reform; it has far-reaching consequences.

The noble Lord mentioned 1993, which is the year in which he came to this Chamber. He soon became associated with Questions. On 4th February 1995 the Guardian referred to an inquiry being told that four Peers took cash for questions. That was alleged by the noble Lord, Lord Lester. I do not believe that he gave further evidence to substantiate that, although he received a testimonial in the same article in the Guardian which stated:

"he is wise and fair-minded as befits a counsel of mine".

That was stated by Mr al-Fayed.

I asked the Library about the record of the noble Lord, Lord Lester, in asking Questions and was told that the total number of all Questions asked in the House of Lords by the noble Lord, written or oral, logged on the parliamentary database (POLIS) is 897. If all noble Lords asked that number of Questions, the system would undoubtedly break down. The noble Lord only thrives on the restraint of others. That is precisely the problem which I believe we have with this Bill.

Anybody who has been elected knows that they receive complaints.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am grateful to the noble Lord for giving way. This is not the first time that he has done what he is now doing. Perhaps I may say to the House and to the noble Lord that if he is to make a personal attack upon me, it would be courteous to give me notice beforehand so that I am able to deal with it in that way. This is about the fourth time this has happened. I do not believe that in this House we normally adopt the tactics of Senator Joe McCarthy.

Photo of Lord Cocks of Hartcliffe Lord Cocks of Hartcliffe Labour

My Lords, this is not the first time I have been referred to as Senator Joe McCarthy from that source. However, no doubt that intervention will save the noble Lord from sending me a letter, as he did on a previous occasion, stating that my remarks were defamatory. It is very good to dish it out but sometimes it has to be taken as well.

If one is elected, one receives complaints. When I was a Member of another place I received various complaints from various people. Anybody who has been down there knows that there is a hard core of people who come back time after time. Some of the files which I accumulated were well over an inch thick. Occasionally I would say to those people, who became very good friends of mine because I saw them on such a regular basis, "Tell me what you would do with your life if we cleared up this complaint?" They looked bemused and bewildered. I do not believe that they had ever considered what life would be like without such a grievance to take out and burnish up.

I believe that there is a necessity for the MP to filter off his complaints. When this legislation was first passed, the noble and learned Lord, Lord Hailsham, as he now is, said in the other place that a very large number of complaints which he had come across in terms of his research for the Bill were about local government. The MP can put those complaints to local government. He can often feed such complaints to the right source. That is essential; otherwise the system would become totally clogged. I do not care what happens in other countries. We live in this country. This is our country and we have to judge matters as they are here.

I also believe that if people were turned down by the ombudsman there would be frustration. There is a possibility of malice and of playing off one Member of Parliament against another. A provision was introduced by the Lord President, who stated that it was a further provision to enable Members of Parliament to be more effective. He said:

"this knowledge should surely put heart into those back benchers who feel they count for not much more than Lobby fodder",--[Official Report, Commons, 18/10/66; col. 43.]

and that there is the ombudsman to go to.

We must consider this carefully before we are carried away on another pseudo-populist crusade which will create a great deal more harm than good.

Photo of Lord Avebury Lord Avebury Liberal Democrat 8:25 pm, 17th January 2000

My Lords, in May 1998 I attended a conference in Addis Ababa on human rights commissions and the ombudsman. The Ethiopians had gathered together people from some 50 or 60 countries with these institutions as part of their mechanisms for redressing citizens' grievances. Not one of the speakers there, distinguished ombudsmen, heads of human rights commissions, or lay people with experience in these fields recommended that the Ethiopians should introduce a filter, such as we had in our legislation in 1967. As it happens, I was present at Second Reading of the Parliamentary Commissioner Bill in 1967. I intervened a couple of times in other people's speeches, though I did not say anything substantive myself.

I remember that Dick Crossman felt it necessary to interpose the MP between the complainant and the PCA as a filter, as has been said, and that he would theoretically weed out the complaints that were frivolous or ill-founded. In those days an MP was considered, as the noble Lord, Lord Cocks, would presumably still like him to be, the main channel of complaint from citizens not just about maladministration but about anything else under the sun which they felt needed an airing. So, Mr Crossman was careful to present the idea of a PCA as an enhancement to the role of the MP and an additional weapon in the armoury of the Back-Bencher in dealing with the executive. He stated:

"we have decided unequivocally that the Parliamentary Commissioner must remain permanently a servant of the House, and in order to emphasise this we have laid it down that the initiation of grievances must permanently reside in back-bench MPs".--[Official Report, Commons, 18/10/66; col. 49.]

That seems rather quaint today because we have this host of other institutions through which aggrieved members of the public can take up their complaints directly, including local government as referred to by the noble Lord, Lord Cocks. They do not have to go through an MP; they can go directly to the commission concerned and to many other ombudsmen and institutions with similar powers, all of which can be accessed directly.

In my day, in the other place I used to see something like 600 people a year at my advice bureau and dealt with 3,000 to 4,000 letters in a year. We were not equipped to do that in the same way as Members in another place are today. However, it would have been extremely difficult to act as an intelligent filter in the cases which people requested to be submitted to the ombudsman. Not many of us would have been properly equipped to make the judgment on whether a citizen had made out a case which properly fell to be dealt with by the ombudsman. So, the question of whether to refer a complaint to the PCA having been left entirely to our discretion, I believe that most of us did as has been suggested; that is, left the final decision to the PCA on whether a case fell within his remit. That was probably why so many of the cases that landed on his desk, and still do so, turned out to be for other ombudsmen or not to be investigated by an ombudsman at all.

It was mentioned that when the councillor filter was removed and people were allowed to complain directly to local administrations in 1988, the number of complaints increased sharply--I believe by 40 per cent. That is a measure of the inhibition which stopped people from using this mechanism. I hope that much the same may happen when this Bill is passed; that is, that we open up this channel of communication and allow many people, whose complaints have not been properly submitted to the ombudsman in the past, to formulate their complaints and have them properly considered.

Photo of Lord Kingsland Lord Kingsland Conservative 8:30 pm, 17th January 2000

My Lords, I can be brief on behalf of the Opposition. The noble Lord, Lord Lester, with characteristic resourcefulness, introduced a Bill on an important aspect of our constitution.

I suppose the real reason for the introduction of an ombudsman in 1967 was the growing perception by politicians from all parties that the doctrine of ministerial responsibility was no longer working. On the one hand, where issues of great political importance were concerned, a Minister under threat would be rallied round by the rest of the Cabinet. On the other hand, matters not regarded as being of particular political note were thought too trivial to bother about.

So the interesting and extremely helpful initiative of the Parliamentary Commissioner was introduced. But at that time the doctrine of parliamentary sovereignty was powerful enough to make the then elected Parliament in Westminster keep a filter; in a way to foster the illusion that Parliament was still in charge of the process.

Everybody who has spoken tonight, with perhaps one exception, agrees that the Parliamentary Commissioner has played a most important part in protecting the rights of individuals in the succeeding 30 years. I wonder, however, whether his importance is as great as it used to be.

For one thing, the constitutional context in which the Parliamentary Commissioner operates has been transformed. For example, in 1967 judicial review was still in its infancy. Now it plays a fundamental role in the protection of citizens' rights and its weapons intrude increasingly into the territory which was formerly the commissioner's territory.

Moreover, as the noble Lord, Lord Borrie, and many other noble and learned and noble Lords pointed out, there have grown up over the past decade and a half a number of specialised ombudsmen to whom citizens have direct access and whose constitution is quite independent of another place. Government departments have also established their own individual complaints' procedures, which seem to me in most cases to be working well. Finally, the sovereignty of your Lordships' House and another place has to some degree been qualified by the emergence of other parliaments and assemblies in the United Kingdom.

All these developments provide alternative access for the citizen to obtain redress for wrongs done to him or her. I have also noticed that, since 1992, the speed at which the Parliamentary Commissioner reaches a conclusion about matters that are put to him has slowed down remarkably and rather distressingly. Now it takes on average nearly two years to resolve a matter brought before him, whereas in the early 1990s it took only one year. Removing the filter will not solve that problem; something else needs to be done in addition to removing the filter to improve the performance of the commissioner.

I do not know whether it is due to a lack of resources or an over-elaborate procedure, but the primary object in 1967 of the Parliamentary Commissioner was to produce a procedure which was speedy, straightforward and easily understood by the citizen. In addition to all the other matters we are looking at, we should be asking questions about that as well.

Moreover, it does not follow that, if we remove the parliamentary filter, we will remove all the problems connected with filtering. The main reason why the filter does not work as well as it ought to at the level of Member of Parliament is because most Members of Parliament like to be on the right side of their constituents; some, dare I say it, even like to tell the constituents what they feel the constituents want to hear. It is not at all surprising, therefore, that quite a high percentage of cases that reach the ombudsman have to be filtered out at that stage. But the filtering process will still have to be conducted even without the Member of Parliament when citizens go directly to the Parliamentary Commissioner.

I hope, therefore, that when this Bill reaches another place, consideration of the filter will be seen in a wider context and not just the specific motivation of the Member of Parliament. The Opposition are pleased that the noble Lord, Lord Lester, took this initiative. We look forward to seeing how the Bill progresses when it gets to another place.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office 8:36 pm, 17th January 2000

My Lords, I respond to this interesting debate in what the noble Lord, Lord Lester, may unfortunately regard as an unhelpful way. The following points emerge from the debate.

First, everybody agrees that the ombudsman procedure is a good thing because it helps the citizen. Secondly, as the noble Lord, Lord Avebury, pointed out, the parliamentary ombudsman was introduced, as the right honourable Dick Crossman said at the time, as an "adjunct" to the MP's powers to help his constituents or to help people generally on the basis that if the MP could not make headway through correspondence or other traditional means, he could then resort to the ombudsman.

The noble Lord, Lord Avebury, read an extract from the right honourable Member's speech in which he said that the ombudsman was to reside "permanently" in the House of Commons. So we have something created explicitly on the basis that he is to reside in the House of Commons. One can see the arguments for that. It would mean that the MP would continue to have his role as championing the constituent; he would be constantly informed as to what was happening. In effect, what the Bill of the noble Lord, Lord Lester, proposes is that that basis be now taken away. I accept that there may well be good reasons for that to be done, but I question whether or not it is appropriate for this House to initiate that procedure rather than the other place where the ombudsman, to quote the promoter of the Bill, "permanently" resides.

The second point that emerges is that everybody agrees--indeed, it is put forward as a reason for the change--that the effect is likely to increase substantially the number of cases that will come before the parliamentary ombudsman. The noble Lord, Lord Avebury, referred to the fact that when the local government ombudsman councillor filter was removed, the increase in workload was around 44 per cent. That is said to be a good thing. No doubt in some circumstances it would be a good thing, but perhaps I can draw noble Lords' attention to two facts.

The procedure of the parliamentary ombudsman is a cumbersome business. In effect, it is prescribed by statute and involves three stages. First, the parliamentary ombudsman has to decide whether or not he can consider the complaint. Secondly, he must pass the complaint to the relevant department, which then considers the matter. Thirdly, once he has the department's response, the parliamentary ombudsman investigates the matter himself.

At the first stage, the parliamentary ombudsman has the option of deciding not to investigate. But, in statutory terms, he can either decide not to investigate or have a full-blown investigation. It is quite difficult for him to do something in between. He does his best to think of ways round that restriction, but it is a restrictive process. The idea that one would increase his workload by 44 per cent, without also looking at the manner in which he carries out his procedures, seems a very bad way to consider whether or not to change the position in relation to ombudsmen. I believe that that echoes a point made by the noble Lord, Lord Kingsland; namely, that one should look at it more in the round rather than simply looking at this one aspect, which was beguilingly put by the noble Lord, Lord Lester of Herne Hill. However, it is impractical to look at it in isolation from the other aspects of what the ombudsman does.

The third issue is what process is presently underway in order to see what should happen to the ombudsmen. In October 1998, the ombudsmen themselves--not all of them, but perhaps one could say collectively "an omnibus" of ombudsmen--suggested that there should be a review of their procedures. They raised specifically the issue of the MP's filter and issues about how their procedures could be improved. In response, and as part of the "modernising government" agenda, the Government set up a review of the procedures for ombudsmen. That review is considering the MP's filter and what improvements in procedure can take place, as well as the point made by the noble Lord, Lord Alexander of Weedon, about whether there should be a commission or collegiate approach to the activities of ombudsmen to get round the wearisome issues of jurisdiction.

Therefore, one has an ombudsman who is "permanently" resident in the House of Commons; one has a Bill here which proposes something which will increase the workload, without making any changes in procedure; and one has an on-going process in which these very issues are being considered. Perhaps I may make one further point in relation to the procedural issue. It presently takes between 10 and 11 months to deal with one complaint to the ombudsman. I dread to think how long it would take if the workload were to increase by 44 per cent.

For the reasons that I have indicated, the Government cannot support the Bill introduced by the noble Lord this evening. In the light of the points that I have made, I earnestly suggest to the noble Lord that he considers whether or not the appropriate course would be to withdraw his Bill and await the results of the review to which I referred. At that time the matter could be considered in the light of a whole series of representations.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 8:44 pm, 17th January 2000

My Lords, I am extremely grateful to all noble Lords who have taken part in this debate, including the noble Lord, Lord Cocks of Hartcliffe, whose speeches always remind me of the reasons why I parted company with old Labour and why I am so glad that New Labour stands for a wholly different tradition. No one has advanced any good reason for retaining the filter. Indeed, noble Lords from all sides of the House--Labour, Conservative and Liberal Democrat--have given a series of powerful reasons, in addition to those that I gave, as to why the filter should be removed.

Without singling out any speaker in particular, perhaps I may say that I am particularly glad that the noble Lord, Lord Borrie, was able to speak. He has been a champion of consumer interests since I was first called to the Bar. Hearing from the noble and learned Lord, Lord Archer of Sandwell, as a former Solicitor-General and a former Member of Parliament and, indeed, from my noble friend Lord Avebury, who is another former Member of Parliament (unlike the Minister and myself who have no experience of the other place), gives me a little more confidence that what I am doing does not involve lese-majeste as far as concerns the other place.

I agree with the noble Lord, Lord Kingsland, that if one is to free the parliamentary ombudsman--indeed, that is a much better title, as the noble Lord, Lord Alexander of Weedon, said, than Parliamentary Commissioner--of this unnecessary fetter, one consequence will be the need to give him more resources. Anyone who visits his offices will realise the pitiful lack of resources with which he has to work. It is no wonder that it takes so long to deal with cases. I hope that the Minister will forgive me for saying that in a sense the Government are self-interested in the matter. I say that because the whole purpose of the ombudsman is to act as a watchdog for the citizen against the misuse of power in a non-legal sense by Ministers, government departments and public authorities.

If the Minister were in opposition, I am sure that he would realise the force of what I am saying. Of course it is convenient for Ministers to have a rusty machine that takes a long time and does not deal very effectively with citizens' complaints. However, I know that this Government do not take refuge in that kind of argument based on administrative convenience.

The Minister said that my Bill would not change the procedure, but that is not correct. One of the major changes is that it would remove the procedural bar. As a consequence, the ombudsman, with more resources, would be able to act as ombudsmen do across the Commonwealth. It is quite absurd that we, the country which is the mother of Parliament, should now be lagging behind countries like Australia, New Zealand, Canada and others across the Commonwealth, as well as those in new and old Europe--

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, my noble friend suggests Malawi, but perhaps not.

I thought both long and hard about whether to succumb to the vast charm and blandishments of the Minister and withdraw the Bill. I would have done so if the noble and learned Lord had given any indication that the Government were willing to take the initiative and liberate the other place, which they control with a commanding majority, by introducing a measure that would remove this unnecessary fetter. However, we have heard that there is a review; that we should wait for the wider considerations and the whole architecture of ombudsmen to be looked at and then perhaps at that stage one may get around to this rather simple reform.

I do not think it constitutionally inappropriate for this Chamber to act as the subordinate hand-maiden to the other Chamber. It is very hard for Members of the other place to get time for Private Members' Bills. If the Government block reforms by inaction, it is impossible for any reform to take place in the other place. We have an opportunity in this House simply to pass a modest measure and then give Members of another place the opportunity to consider the matter and vote upon it. If they lack confidence in allowing the citizen to have direct access and if they insist upon being the exclusive conduit, they will take the consequences with their constituents in due course. That is their entitlement. However, if they feel that the time has come to act in partnership with the citizens of this country by using the ombudsman in a better way, that again is a decision for them to take.

Having thought about it, I have decided to ask the House to give the Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at ten minutes before nine o'clock.