New Clause 5

Tribunals, Courts and Enforcement Bill [Lords] – in a Public Bill Committee at 12:30 pm on 27th March 2007.

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Concurrent jurisdiction of courts, tribunals and public sector ombudsmen

‘(1) In section 5 of the Parliamentary Commissioner Act 1967 (c. 13), omit subsection (2).

(2) In section 26 of the Local Government Act 1974 (c. 7), omit subsection (6).

(3) In section 4 of the Health Service Commissioners Act 1993 (c. 46), omit subsection (1).’.—[Mr. Bellingham.]

Brought up, and read the First time.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move, That the clause be read a Second time.

I am grateful to you, Mrs. Humble. This is the last time that I will trouble the Committee this morning and perhaps even today. The new clause would extend the scope of ombudsmen in various ways. I refer the Committee to a report published by Lord Justice Woolf in 1996. He recommended that the relationship between ombudsmen and the courts should be broadened, enabling issues to be referred by ombudsmen to the courts and by the courts to the ombudsmen, obviously with the consent of all those involved. That makes sense. The new clause would remove some of the impediments that are currently in place. Obviously, the impediments—the tight rules—were put in place to ensure that ombudsmen did not trespass on or usurp the jurisdiction of courts or tribunals. Over time, developing case law has narrowed the discretion of ombudsmen in a way that has been seen to present them with severe difficulties and has created some injustice for complainants. This is quite an arcane point, but it is important. We have plenty of constituents who come to our surgeries and advice centres and complain about various matters, either local or national, and want us to refer them to the ombudsman. When it comes to the parliamentary ombudsman, the MP has to endorse the complaint before it can be referred. Many of us have been put in the invidious position of deciding whether to sign up to a complaint. I think that most of us, to keep the peace, tend to go along with what the constituent wants on the basis that if that is what they feel needs doing, we should support them.

Very often, cases go to an ombudsman when a concurrent legal case is under way. Having looked at the way in which case law has developed—I do not want to go into a long discussion about it now—I think that we need to follow Lord Woolf’s suggestion and broaden the relationship between the ombudsmen and the courts. That means that the issues can be referred either way.

The new clause has the support of the head of the administrative court, Mr. Justice Collins, and the senior president of tribunals designate, Lord Justice Carnwath. That is quite an endorsement. In the spirit of good will, given that lunch is pending and the Minister is in a good mood—her officials look demob happy—perhaps she could give us something to take away by accepting the new clause.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs 12:45 pm, 27th March 2007

The new clause would give the ombudsman the discretion to investigate cases in which court proceedings had been started. I am sympathetic to it, but I do not think that we can take it forward  now. The hon. Gentleman is absolutely right that the law has developed significantly since 1967, when the ombudsman legislation was passed. Much of what was then maladministration and thus without legal remedy is now potentially a legal failure and subject to judicial review. Judicial review is subject to tight time limits; complainants who think that they have that remedy have to move quickly to claim it. The ombudsman has discretion to pursue cases that have a legal remedy but no proceedings, but the courts have ruled—inevitably, given the 1967 Act—that there is no discretion if proceedings have been started, even if the action is effectively moribund. Those cases, which are better dealt with by the ombudsman, are obstructed by that mechanism.

The hon. Gentleman rightly rehearsed the history of the matter, and more detail could indeed be sketched in, if time allowed. We considered an identical proposal made by his noble Friend Lord Newton, which was that we could make changes now, so that people were not inconvenienced and cases did not run the risk of injustice because of the 1967 legislation. My noble Friend Baroness Ashton indicated that she would consider the issue further. She held some round table discussions, in which it was agreed that there were complex issues that would have to be resolved before we could go forward. They arise particularly in judicial review cases; they need to be dealt with quickly, for the sake of both complainants and public authorities, so that they know what they need to do to continue administration. Judicial review has tight time limits, so we have to get the balance right between those who have a genuine grievance and those who are looking for a reason to prevent the legitimate outcome of the decision from being put into effect.

The Law Commission is undertaking work on remedies in public law. That includes the relationship between the courts and the ombudsman. Bearing in mind the wealth of difficulties that arose when my noble Friend, with the best intentions, tried to resolve the issue sufficiently quickly to put something in the Bill, we think that the better course is to let the Law Commission take its customary mature, rounded view and bring forward a report in due course. Its expertise and independence will allow the best balance of conclusions to be reached. For those reasons, my noble Friend did not return to the issue in the other place after she had indicated that she would try her best. We do not feel that we are in a position to accept the new clause at present, but work is ongoing in this area and the Government are well apprised of the mischief that the hon. Gentleman so pertinently pointed out.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am grateful to the Minister. I think that one can mark that as six out of 10—a minor victory—given that the proposal will be taken forward. I would be grateful if she could keep my noble Friend Lord Kingsland and me informed of the progress that is made. If there is anything that we can to do assist, we will most certainly do it. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Ordered,

That certain written evidence already reported to the House be appended to the proceedings of the Committee.—[Vera Baird.]

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

On a point of order, Mrs. Humble. I thank all parties for the way in which the Bill has been perused, probed and improved and for how our understanding of its import has been broadened and deepened by the deliberations of the Committee. I thank you, Mrs. Humble, and, in his absence, Mr. Bercow, for the very pleasant and fair way in which you have chaired our proceedings. I also thank your Clerk. I have served on Committees on which he has clerked before. His advice is matchless; he is an immense asset. We would be in great difficulty if we did not have such an expert person with us.

I thank the officials, who have helped me greatly with the Bill. I also thank the Hansard writers and the officials who have looked after the doors. Mercifully, they have not been required to go out and shout “Division” often, because we have been able to agree on a Bill that had already been substantially improved in the other place.

I have enjoyed taking my first Bill through Committee. I have been accused of being trendy, but it was said that the Bill was not sexy and it was suggested that I should design a uniform for bailiffs. Presumably it was a case of giving me any job that stopped me talking about the Bill. I joke, of course, because the exchanges have been in the main very pleasant and very helpful.

I thank very much the hon. Member for North-West Norfolk for the attention that he has given to the Bill. It has been good to have the company of the hon. Member for North Southwark and Bermondsey. I thank all my hon. Friends for their diligent following of the issues raised in Committee and I thank Opposition Members for the attention that they have paid to the issues. It is a better Bill for our deliberations and I am very grateful indeed to all who have played a role.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

Further to that point of order, Mrs. Humble. I endorse the Minister’s thanks, particularly to you and to Mr. Bercow, and to the senior Clerk and to his deputy, Dr. Weston, who has also been very helpful. I thank everyone who has been  involved with the Committee for the very efficient way in which it has been managed. We all know that such Committees would not run smoothly if it was not for the officials who lay out the papers and attend to our every need. I also thank the police, who attend to the doors and ensure that everything goes smoothly.

I agree that this has been a good-humoured Committee. We have had plenty of time to debate the issues and I am very grateful to the usual channels for ensuring that time to debate the issues has been made available. I do not think that anyone can complain that we have not had that time. I agree with the Minister that we are now more knowledgeable about the Bill. Opposition Members are disappointed that we have not secured all the changes that we would like, but of course we reserve the right to return to the relevant issues on Report.

I am very grateful to the various organisations outside the House that have kept Opposition Front Benchers fully briefed and informed. We do not have the resource and the huge intellectual capacity of the civil service to brief us, but we are privileged and fortunate to have many outside organisations that take a great interest in these matters and they take every opportunity to ensure that we can table amendments and speak to them. I am grateful to those organisations for that and I look forward to returning to the Bill on Report. I also look forward to perhaps serving under your chairmanship again at some stage in the future, Mrs. Humble.

Photo of Jennifer Willott Jennifer Willott Opposition Deputy Chief Whip (Commons), Shadow Minister (Education)

Further to that point of order, Mrs. Humble. I echo all the thanks that have been given. This is the first such Committee of which I have been a member, and it has been an interesting induction to the process of Committee work. I thank you, Mrs. Humble, and Mr. Bercow, for your patience with those of us who are new to such work. I have learned more this morning about parliamentary procedure and moving and withdrawing amendments than I would have thought possible, and I have learned significantly more about the inner workings of tribunals than I ever thought I wanted to know. It has been a very interesting experience. I thank everyone very much.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at six minutes to One o’clock.