Scottish Public Sector Ombudsman Bill: Stage 2
The first item of business is stage 2 of the Scottish Public Sector Ombudsman Bill. I welcome Peter Peacock, the Deputy Minister for Finance and Public Services; Stephen Bruce, the head of the Executive team on the Scottish Public Sector Ombudsman Bill; Gillian Russell of the office of the solicitor to the Scottish Executive; and William Ferrie of the Executive.
I do not intend to go through the description of the stage 2 process line by line, so I want to check what members have in front of them. We should get through the debate without hiccups, but if something is not clear, members should catch my eye and I shall try to clarify it. Members should have copies of the bill, the marshalled list and the groupings of amendments.
Section 1—The Scottish Public Sector Ombudsman
I call the minister to move amendment 1, which is grouped with amendments 2, 11 to 18, 20 and 21.
I am sure that you will put me right if I get the procedure wrong, convener.
During the stage 1 debate, Andy Kerr indicated that we would give positive consideration to the committee's suggestion to change the title of the main office holder to the Scottish public services ombudsman. The group of amendments provides for the ombudsman's formal title to be so changed. I ask members to support the amendments.
I move amendment 1.
Amendment 1 agreed to.
Amendment 2 moved—[Peter Peacock]—and agreed to.
Section 1, as amended, agreed to.
Schedule 1 agreed to.
Section 2—Power of investigation
I call the minister to move amendment 3.
Amendment 3 addresses the concern that was expressed by members that the bill should explicitly provide for the ombudsman to resolve complaints informally. We have re-examined the issue in the light of that concern and lodged amendment 3 as a result.
The new provision clarifies that the ombudsman may take any action to assist the decision whether to initiate, continue or discontinue an investigation. It goes on to clarify that, in particular, such action might be intended to resolve a complaint or request. I hope that the committee will agree that amendment 3 addresses its concerns without restricting the ombudsman's freedom to resolve complaints informally as he or she sees fit. Executive officials have spoken to the ombudsman's office, whose concerns the amendment also meets. I ask the committee to support amendment 3.
I move amendment 3.
I welcome amendment 3. As the minister rightly said, it reflects the views that were expressed by members of the committee at stage 1. It is welcome to see that the Executive is again willing to listen to the committee's wise counsel.
I also thank the minister for lodging amendment 3 and for accepting the committee's good advice. I worry slightly that the amendment is widely drawn and suggests more than just informal resolution. I understand why the amendment is worded in such a way, but it does seem to be particularly widely drawn. We are, in effect, giving power to the ombudsman to do anything and everything that he wants. I will not oppose the amendment, but I thought that I should flag up some concerns so that the minister can consider them and, if necessary, lodge another amendment at stage 3.
It is not just a question of listening to the committee's wise counsel; we also know when we are beat.
Amendment 3 is a genuine attempt to address the committee's concerns. We have debated the matter long and hard with solicitors and draftsmen and we believe that the amendment captures enough of what is required without giving complete licence, because other parts of the bill qualify what the ombudsman can do. We will reflect on Tricia Marwick's comments before stage 3, although I do not think that it will be necessary to lodge another amendment.
Amendment 3 agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
Schedule 2
Listed authorities
Amendment 4 is grouped with amendments 5 to 8.
With the convener's indulgence, I will take a little while to spell out the issues.
Amendment 5 would remove any doubt about whether statutory office-holders appointed or designated by local authorities, or joint boards or committees of local authorities, come under the ombudsman's remit. The committee might recall that, in response to public petition PE56, the Executive included in the bill specific provision to bring local authority assessors—who carry out rating valuations of properties—under the new ombudsman's remit. We have since been made aware of doubts about whether other statutory office holders who are appointed by local authorities, for example returning officers and mental health officers, will be covered by the bill.
It has always been the Executive's intention that such office-holders should be within the ombudsman's jurisdiction, but we acknowledge that there might be some scope for doubt in the bill. Accordingly, amendment 5 would put the matter beyond any doubt and ensure that all statutory office-holders appointed by local authorities, or joint committees or joint boards of local authorities, were covered.
Amendment 4 is a consequential amendment. It would remove from schedule 2 the separate reference to local authority assessors, which would not be required should the committee agree to amendment 5.
Amendments 6, 7 and 8 would remove three cross-border public authorities from the jurisdiction of the new ombudsman. Those authorities are the British Waterways Board, the Meat and Livestock Commission consumers committee and the traffic commissioner for the Scottish traffic area. The committee will be aware that the ombudsman has a specific remit concerning cross-border public authorities. Under section 7, he may investigate action taken by such bodies only when such action concerns Scotland and does not relate to reserved matters; the ombudsman may investigate such bodies only in relation to their devolved functions.
Since the introduction of the bill, further information on those three bodies has come to light from our investigations into why they are not covered by the parliamentary ombudsman in England. I will address each body in turn. The British Waterways Board has its own waterways ombudsman, who covers complaints of maladministration in the activities of that board on a UK basis. Therefore, the public already have an avenue along which to direct their complaints. It seems to be more appropriate that all complaints about the board should continue to be made to the waterways ombudsman instead of providing for the few complaints on devolved Scottish matters to be made to the Scottish public sector ombudsman. We will ensure that there are appropriate procedures for referring to the waterways ombudsman complaints made to the Scottish public sector ombudsman that should properly have been made to the waterways ombudsman.
The Meat and Livestock Commission consumers committee submits proposals or provides advice on consumers' interests to that commission, which will remain covered by the ombudsman. The MLC consumers committee undertakes no functions which, if it were guilty of maladministration, could cause injustice or hardship to a member of the public, so there is no scope for any complaints to arise that might fall within the ombudsman's jurisdiction.
On the traffic commissioner for the Scottish traffic area, it seems that none of the traffic commissioners for any part of the UK is covered by an ombudsman. Executive officials are discussing with Whitehall colleagues whether that is appropriate. In order to ensure a consistent approach throughout the UK, the Executive initially considered that it would be best to omit the Scottish traffic commissioner from the ombudsman's remit, pending the outcome of those discussions. However, on reflection, the Executive now considers it to be more important to ensure that, while officials carry out further research, the public are able to complain to the ombudsman about the limited number of functions devolved to the Scottish traffic commissioner. Accordingly, I will not move amendment 8.
I move amendment 4.
I have a question about the UK situation in relation to the waterways ombudsman. Is Westminster moving toward a single public sector ombudsman? If not, is there a case for including the functions of the waterways ombudsman in the remit of a single public sector ombudsman? If so, we might want to include the same functions in the Scottish public sector ombudsman's remit.
Before the minister answers, I point out that this is a debate, not a question-and-answer session.
Should I respond to that question now or at the end?
You may respond now.
Westminster is beginning to examine how it can rationalise its procedures in relation to the various ombudsmen's offices. If and when that happens—and if officials were to consider including the British Waterways Board within the compass of a single ombudsman—Sylvia Jackson's point will be valid. In the meantime, we seek to maintain dialogue with our colleagues in the south. If they move in that direction, it might be appropriate to include in the remit of the Scottish public sector ombudsman the Scottish functions of the waterways ombudsman, instead of keeping them within the UK framework. However, we would need to determine whether Westminster was moving in that direction before we made any such judgment. I am happy to assure the committee that our officials will keep in close contact about the matter with colleagues in the south.
Sylvia Jackson picked up on the point that I was going to make. I am not allowed to ask questions, so I want to voice my concern that the British Waterways Board will be outwith the jurisdiction of the Scottish public sector ombudsman. Provision of water is very much a public service. As a result, I must consider whether to support amendment 6.
I have enjoyed a canal holiday and so I know what British Waterways does. Therefore, I think that there is logic in having for that body a complaints system that is consistent throughout the areas for which it has responsibility. British Waterways is a specialist organisation that supports and maintains the canal network throughout the country, including the refurbished and soon to be fully refunctioning Forth and Clyde canal. People who use canals know how they would want to make complaints. It is therefore logical that there should be a consistent approach to that throughout the United Kingdom, rather than for a separate approach to be taken for the fairly limited number of waterways in Scotland with which that body deals. I support amendment 4, but I hope that the situation will be reviewed if the UK Government changes the position in relation to the waterways ombudsman.
I agree that we need not reinvent the wheel. There is already provision that covers waterways and which does not require resolution by the bill, so we should accept that. The minister's proposal is sensible, because it does not complicate what the bill is trying to do. I do not necessarily agree that, in dealing with a problem with water, people should have an avenue—maybe it should be a channel—down which they are able to go to resolve their problem. However, because that channel already exists, we should accept it.
It is a matter of balance and a question of examining the circumstances that we have inherited. Given that the bill is about improving the public's understanding of complaints procedures and about creating greater public access to those procedures, it would merely confuse matters to divide the waterways ombudsman functions. Such division would mean that people would be able to approach the Scottish ombudsman only in relation to a small range of functions in the Scottish context. They would still have had to go to the UK ombudsman on all reserved matters, which would have caused confusion among the public. On balance, we feel that it is better to stick with the UK body.
As Michael McMahon and Iain Smith said, if there is an existing channel for complaints, with which people are familiar, and given that much of the work of British Waterways has a strong UK dimension, it is probably better to leave matters as they stand. However, as I said, if matters shift in the south, we should review the position to ensure that the complaints procedure remains simple in the Scottish context.
Amendment 4 agreed to.
Does any member object to dealing with amendments 5, 6 and 7 en bloc?
Yes, I object.
Amendment 5 moved—[Peter Peacock]—and agreed to.
Amendment 6 moved—[Peter Peacock].
The question is, that amendment 6 be agreed to. Are we agreed?
No.
There will be a division.
For
Godman, Trish (West Renfrewshire) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Jackson, Dr Sylvia (Stirling) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
Smith, Iain (North-East Fife) (LD)
Abstentions
Marwick, Tricia (Mid Scotland and Fife) (SNP)
White, Ms Sandra (Glasgow) (SNP)
The result of the division is: For 5, Against 0, Abstentions 2.
Amendment 6 agreed to.
Amendment 7 moved—[Peter Peacock]—and agreed to.
Amendment 8 not moved.
Schedule 2, as amended, agreed to.
Section 4 agreed to.
Section 5—Matters which may be investigated
Amendment 22, in the name of Iain Smith, is grouped with amendments 23 to 26.
The amendments in this group are intended to bring into line the investigative powers of the ombudsman for all public bodies. The committee concluded in its stage 1 report that the Executive should be asked to consider ways of amending the bill at stage 2 to create a consistent range of investigative powers across all the authorities that may be investigated. Amendments 22 to 25—in essence, one amendment with associated technical amendments—are intended to bring that about.
At present, section 5 limits the investigation of a failure of service, or of a failure of a body to provide a service, to health service bodies and to independent providers. Amendment 22 would allow any public body to be investigated regarding a failure of service or a failure to provide a service. The amendment is important for two reasons. First, it would ensure consistency across the range of ombudsmen in public bodies. Secondly, it would avoid confusion arising among the public regarding what may or may not be investigated; such confusion exists at present.
As we move towards cross-body working and community planning, the potential for confusion will grow if there is inconsistency across the range of services. In the provision of community care, for example, it would seem strange that an investigation could be carried out into the failure of a health authority to provide a service if the part of the service that the social work department failed to provide could not be investigated by the ombudsman unless there was a case of maladministration. I do not think that the public would understand that. I do not understand it. It makes more sense to have consistency.
My intention in lodging amendments 22 to 25 is not to bring into the ombudsman's remit the power to investigate the exercise of a local authority's discretionary power. If a local authority chooses not to provide a service, that decision should not be subject to investigation by the ombudsman. The ombudsman should be able to investigate only when the local authority fails to provide a service, not when it chooses not to do so. Neither are the amendments intended to bring into the investigative remit of the ombudsman the power to investigate the professional judgment of teachers and other professionals, such as social workers. Amendments 22 to 25 seek simply to provide consistency in the investigation of the failure of a service when an injustice to a member of the public may have resulted.
I hope that the committee will support at least the principle of amendment 22. I accept that the wording of the amendment may not be perfect, but if we agree to the principle, perhaps we can get the wording correct at stage 3.
The intention of amendment 26 is simply to make the bill understandable on first reading for those who are not lawyers and who do not study bills. At present, section 5(4) states:
"The Ombudsman may investigate a matter falling within subsection (1) pursuant to a request only if the Ombudsman is satisfied that—"
and there are a couple of provisos. Someone who reads that might be confused and think that it suggests that the ombudsman cannot investigate those matters unless an allegation has been made publicly or the listed authority has failed to carry out its investigation. Only on reading the definitions at the back of the bill would they discover that a request relates only to specific circumstances, as referred to in section 2(2). As a result, there is potential for confusion among the public.
I accept that there is nothing technically wrong with the way in which the bill is drafted. However, the inclusion of "under section 2(2)" would avoid potential confusion and make the meaning of section 5(4) clearer to any member of the public who reads the bill. One of my colleagues, who was confused on that point during the stage 1 debate in the chamber, asked me what that part of section 5 meant. It took me five minutes to work out what it meant and, by the time that I was ready to advise him, he was halfway through his speech. Without amendment 26, which is a small technical amendment, there is potential for confusion among the public about what section 5(4) means. I am interested to hear what the minister has to say.
I move amendment 22.
As Iain Smith said, amendments 22 to 25 seek to harmonise the ombudsman's investigatory remit across all the public authorities that are in his or her jurisdiction. Iain Smith's speech during the stage 1 debate made me aware of his wish that the ombudsman should be able to investigate more than just the administrative functions of public bodies. Although the wider remit that amendments 22 to 25 would give to the ombudsman is likely to result in an increase in the number of complaints, the Executive is sympathetic to the principles behind the amendments, which are consistent with our overall aim of improving public services and improving accountability in their delivery.
We are concerned that amendments 22 to 25 might lead to overlap with other arrangements for monitoring public services, for example, those that we are about to introduce on best value or on work that is undertaken by inspectorates or other regulators that have specific responsibilities relating to public service performance. I am pleased that Iain Smith made it clear that his intention is not to include in the bill discretionary decisions that relate to the powers, rather than the duties, of local authorities or the professional judgment issue that he referred to. However, we want to double-check whether the way in which the amendments are drafted presents any danger of that.
Therefore, although we want to develop the principles that Iain Smith has enunciated, we would like to give the relevant matters further consideration and to consult others. We propose the lodging of an amendment at stage 3 that will provide the policy effect that Iain Smith desires and will safeguard the integrity of the existing regimes. On that basis, I ask Iain Smith to withdraw amendment 22 and not to move amendments 23 to 25. If for any reason we considered that we would not be in a position to lodge further amendments along the lines that I have indicated, we would advise Iain Smith in sufficient time to allow him to lodge his amendments again, for consideration at stage 3. I do not envisage that that will be necessary.
Amendment 26 seeks to clarify the application of section 5(4) of the bill, which sets out the criteria that the ombudsman must be satisfied are met before he or she begins an investigation that follows a request by a listed authority under section 2(2). Amendment 26 seeks to make the clarification by adding a cross-reference to section 2(2).
I appreciate the aim of amendment 26, which originates from a wish to differentiate clearly between provisions that relate to complaints and those that relate to requests. However, as Iain Smith acknowledged, the drafting of the bill is adequate and amendment 26 is technically unnecessary, because section 21(1) of the bill defines "request" as
"a request for information under section 2(2)."
Our concern is that any attempt to provide further interpretation of "request" at any point at which it appears in the bill could raise doubts about when the general interpretation in section 21 is meant to apply and about whether "request" is intended to have different meanings in different sections of the bill. Although I accept Iain Smith's good intentions, I ask him not to move amendment 26 on the basis of our concerns about future legal interpretation.
My intention was simply to make the bill understandable to the general public. One of the biggest problems that we have with legislation is that it is written by lawyers for lawyers and not for the benefit of the general public. That is my grudge against legislation. I accept Peter Peacock's point that the bill is not technically deficient. I do not want to introduce into the bill anything that might cause confusion at a later stage, so I will not move amendment 26.
I am pleased that the Executive is willing to accept the policy intention behind amendments 22 to 25 and is willing to introduce amendments at stage 3 to bring that into effect. Given the assurance that I have received from the minister, I am willing to withdraw amendment 22 and not to move amendments 23 to 25.
Amendment 22, by agreement, withdrawn.
Amendments 23 to 26 not moved.
Section 5 agreed to.
Section 6 agreed to.
Schedule 3 agreed to.
Section 7—Matters which may be investigated: restrictions
Amendment 9 is grouped with amendment 10.
Amendment 9 aims to implement the recommendation of the Subordinate Legislation Committee that, consistent with the Freedom of Information (Scotland) Bill, the Scottish Public Sector Ombudsman Bill should make it clear that, where a body that undertakes functions of a private and public nature is added to schedule 2 to the bill by an order made under section 3(2), the ombudsman is entitled to investigate only the public functions of that body. The Local Government Committee endorsed the Subordinate Legislation Committee's view at stage 1. Amendment 9 seeks to rectify the matter.
Amendment 10 is a technical amendment. It is intended to apply mainly to administrative staff of the Scottish Court Service and the main clerks in the sheriff and supreme courts. It seeks to exclude from the ombudsman's investigatory remit any action by such administrative staff or office-holders that is taken at the direction or on the authority of a person acting in a judicial capacity or in the capacity of a member of a tribunal.
Amendment 10 reinforces the policy of excluding the ombudsman from the investigation of judicial matters. It is consistent with the approach that is taken in paragraph 3 of schedule 4 in relation to administrative staff of tribunals listed in schedule 3 and with the equivalent provision in England and Wales, which was made in the Parliamentary Commissioner Act 1967.
I ask the committee to support amendments 9 and 10.
I move amendment 9.
Amendment 9 agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
Schedule 4
Matters which the Ombudsman must not investigate
Amendment 10 moved—[Peter Peacock]—and agreed to.
Schedule 4, as amended, agreed to.
Sections 9 to 23 agreed to.
Schedule 5
Modification of enactments
Amendments 11 to 18 moved—[Peter Peacock]—and agreed to.
Schedule 5, as amended, agreed to.
Section 24 agreed to.
Schedule 6
Transfer of staff, property and liabilities and undetermined complaints
Amendment 19 is in a group on its own.
Amendment 19 is intended to address concerns, which the existing ombudsmen have expressed and which were reflected in the stage 1 debate, that the bill as introduced would not ensure that the Transfer of Undertakings (Protection of Employment) Regulations applied to the transfer of staff. The Executive has always sought to ensure that staff who transfer to the ombudsman's office would not suffer any detriment to the terms and conditions that they currently enjoy.
It has always been our intention that harmonisation of terms and conditions would be a matter for negotiation between the new ombudsman and his or her staff after the ombudsman takes office. The intention was to ensure that TUPE principles applied to the transfer.
In the light of the concerns that have been expressed, we have reconsidered how the bill provides for staff transfers. Amendment 19 seeks to put it beyond any doubt that the transfers to the new ombudsman's office will follow TUPE principles and that the staff will retain exactly the same terms and conditions as they currently enjoy. It does so by providing for the contract of employment of a transferring member of staff to continue from the date of transfer as if originally made between that person and the new ombudsman. All rights, powers, duties and liabilities in respect of that contract will transfer to the new ombudsman. The amendment should remove any concerns that ombudsmen have about the transfer of staff. I ask the committee to support the amendment.
I move amendment 19.
I thank the minister for lodging the amendment. As he said, ombudsmen expressed concern about transfer conditions. He is right to say that the amendment will put it beyond doubt that the TUPE principles will be adhered to. I thank him for lodging the amendment, which I will support.
Amendment 19 agreed to.
Schedule 6, as amended, agreed to.
Section 25—Commencement, revocation and short title
Amendment 20 moved—[Peter Peacock]—and agreed to.
Section 25, as amended, agreed to.
Long title
Amendment 21 moved—[Peter Peacock]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the bill. I thank the minister and his officials for attending.
It was a pleasure doing business with the committee.
You are not the first to say that.