Scottish Public Services Ombudsman Bill: Stage 3
We move to the stage 3 proceedings on the Scottish Public Services Ombudsman Bill. I do not intend to read through all the usual script. However, members should be aware that, for the purposes of the debate, they will need the bill, the marshalled list of amendments and the groupings that have been established by the Presiding Officers.
Section 5—Matters which may be investigated
Amendment 1, in the name of Peter Peacock, is grouped with amendments 2, 3, 4 and 5.
At stage 2, Iain Smith lodged amendments that were aimed at harmonising the ombudsman's remit across all bodies in Scotland within his or her jurisdiction. The issue was raised in the Local Government Committee's stage 1 report as well, and I advised the committee during stage 2 that the Executive was sympathetic to the principles behind Iain Smith's amendments. However, I asked that the amendments be withdrawn while the Executive reviewed their wider effects and, in particular, checked that there would be no overlap with other regulatory regimes that had been established to monitor public service delivery.
Amendment 1 extends the ombudsman's remit to allow him or her to investigate complaints from an individual of injustice or hardship arising from service failure by a listed authority. That brings the ombudsman's remit in relation to other bodies into line with his or her remit in relation to health service bodies.
Amendment 2 inserts a definition of the term "service failure", which includes
"any failure in a service provided by"
a listed authority, and
"any failure … to provide a service which it was a function of the authority to provide".
Amendments 3, 4 and 5 are consequential changes to paragraph references.
At stage 2, Iain Smith stated that it was not his intention to extend the ombudsman's remit into discretionary decisions or professional judgments. I assure the chamber that the amendments will not widen the ombudsman's remit to the extent of questioning discretionary decisions that are made by public authorities, including decisions on whether to provide a service which an authority is not statutorily required to provide, or decisions on how to provide a service.
Section 5(6) specifically states that section 5
"is subject to sections 6 to 8"
which impose a range of restrictions and exclusions on the matters that the ombudsman may investigate. In particular, section 7(1) prevents the ombudsman from questioning a decision that has been taken without maladministration in the exercise of a discretion vested in the authority. Moreover, the amendments will not affect professional judgments in the public sector. I should also clarify that the amendments will not alter the ombudsman's existing remit in relation to health service bodies.
We are now satisfied that the amendments will not result in any overlap between the ombudsman's remit and other arrangements for monitoring public service delivery, and I ask the Parliament to support them.
I move amendment 1.
I thank the minister for the helpful way in which he has dealt with this matter and the other amendments that the Local Government Committee suggested should be made to the Scottish Public Services Ombudsman Bill, including—as members may note—to the title of the bill.
Amendment 1 will helpfully allow the ombudsman to investigate any public concerns about service failure in any public body. It is important that there is consistency across the public sector in this respect, particularly as we move towards more joint working among various public bodies. For example, it would have been a rather strange anomaly if the ombudsman had been able to investigate the health service aspects of a complaint on a community care matter because there had been a failure of service, but had not been able to investigate the local government aspects of the complaint because there had been no administrative failure by local government. Amendment 1 will mean that the bill avoids such anomalies.
I emphasise that the provision is not intended to stray into discretionary areas. The question is not about the decision on whether to provide a service, but about whether, once the decision to provide a service has been made, that service has failed. For example, a complaint to the ombudsman about a local authority's decision to collect refuse every fortnight instead of every week would not be permitted. However, a complaint that centred on a local authority's failure to collect refuse regularly from a particular household could be investigated by the ombudsman as a failure of service. In fact, section 7(1) makes it clear that the ombudsman does not have the powers to investigate a local authority's discretionary powers.
Furthermore, amendment 1 does not give the ombudsman the power to investigate matters of professional judgment. The judgment of teachers and social workers in exercising their professional duties should not be subject to investigation unless there is a question of maladministration.
I welcome the minister's positive response to my stage 2 amendments on this issue and indeed to all the concerns that the Local Government Committee raised at stage 1. Those concerns have all now been addressed, and I urge the Parliament to support amendment 1.
I seek the minister's clarification on a point about amendment 2, which defines the term "service failure". Will the ombudsman be able to investigate a grievance about service failure by a social inclusion partnership?
I ask the minister to wind up.
I have very little to add. Iain Smith's point about consistency across the public sector in how we treat such matters underlies amendment 1. Iain Smith usefully explained why he did not want to extend the provision to include discretionary decisions and also pointed out that the ombudsman's remit will not include matters of professional judgment. It is important to underline that we do not intend to open up those matters.
I will have to write to Sandra White on her question about SIPs, as the answer will depend on their precise constitution in any given circumstance. However, if SIPs operate under the banner of a public authority, they would be subject to the ombudsman's interest. I will clarify that matter with Sandra White in due course.
Amendment 1 agreed to.
Amendments 2 to 4 moved—[Peter Peacock]—and agreed to.
Section 10—Complaints: time limits and procedure
Amendment 5 moved—[Peter Peacock]—and agreed to.
Section 19—Confidentiality of information
Amendment 6, in the name of the minister, is grouped with amendments 7, 8, 9, 12 and 13.
Amendments 6, 7, 8, 9, 12 and 13 seek to implement the Executive's policy aims of providing a clear and consistent framework for the ombudsman to consult and co-operate with equivalent ombudsmen in England and Wales, and of enabling the ombudsman to share information with the UK information commissioner and Scottish auditors.
Amendment 9 inserts a new section in the bill that provides for consultation and co-operation with equivalent UK ombudsmen. The chamber will note that, for reasons of legislative competence, amendment 9 does not include reciprocal provisions for the UK ombudsmen to consult and co-operate with the Scottish public services ombudsman. The Executive intends that those provisions will be made by way of an order under section 104 of the Scotland Act 1998, to be taken forward by the Westminster Parliament. That should ensure that the intended policy is implemented properly on a UK basis.
Amendments 8 and 12 would insert a new section and schedule in the bill to make provision for the ombudsman to disclose information to the UK information commissioner and Scottish auditors.
Amendment 7 is consequential on amendment 8.
Members will note that the UK Freedom of Information Act 2000 already provides for the UK information commissioner to disclose information to the existing Scottish ombudsmen. Amendment 13 simply updates references in that act to refer to the new ombudsman.
As a consequence of the provision in the UK Freedom of Information Act 2000, amendment 6 provides that information that is obtained by the ombudsman from the UK information commissioner must be treated in the same way as information that is obtained in connection with a complaint or a request for an investigation.
The Executive originally anticipated that amendments 8 and 12 would also cover the sharing of information between the ombudsman and the Scottish information commissioner. That position will be created under the Freedom of Information (Scotland) Bill, which is being considered by the Parliament. The Scottish Public Services Ombudsman Bill is at a more advanced stage of parliamentary consideration than the Freedom of Information (Scotland) Bill, therefore it will be necessary to include the provision to which I referred in the Freedom of Information (Scotland) Bill. That will ensure that cross-references between the two bills are correct.
I ask the Parliament to support the amendments, and I move amendment 6.
I seek clarification on amendment 9. I am pleased that there will be consultation and co-operation with other bodies. Subsection (1)(a) of the new section that amendment 9 would insert in the bill refers to the parliamentary commissioner for administration. Would that provision also apply to the Scottish Legal Aid Board? I understand that, at the moment, investigations cannot be conducted in respect of contractual or commercial transactions. Will the Scottish public services ombudsman have the power to conduct such investigations? Will they be able to consult the other ombudsmen on the matter of legal aid funds?
The amendment would not alter the powers that exist, but it would give the ombudsman the proper power to consult under powers with which they are provided elsewhere in the bill. It would not alter, in a legal sense, the situation that Sandra White describes, but it would make it possible for the commissioner to consult on the matters to which the amendment refers, in a way that is consistent with the remainder of the bill.
Will the minister clarify whether the effect of the amendments will be to ensure that people cannot hide behind the ombudsman in order to prevent the disclosure of information that would otherwise be subject either to the UK Freedom of Information Act 2000 or to the Freedom of Information (Scotland) Bill? It is important that the minister should make it clear that that is the intention of the provision.
I am happy to confirm that that is the case.
Amendment 6 agreed to.
Amendment 7 moved—[Peter Peacock]—and agreed to.
After section 19
Amendments 8 and 9 moved—[Peter Peacock]—and agreed to.
Schedule 2
Listed authorities
Amendment 10, in the name of the minister, is grouped with amendment 11.
Amendments 10 and 11 are technical amendments to schedule 2, which lists the authorities that are subject to the remit of the ombudsman.
Amendment 10 seeks to make explicit reference in schedule 2 to the Auditor General for Scotland, as the existing reference to Audit Scotland does not cover the functions of the Auditor General, who is a separate legal entity. The amendment ensures that complaints that are made against the Auditor General can be considered by the ombudsman. That has always been our policy intention.
Amendment 11 removes the reference in schedule 2 to Community Learning Scotland. As members may know, that body will cease to trade from 1 April this year.
I ask the Parliament to support the amendments, and I move amendment 10.
Amendment 10 agreed to.
Amendment 11 moved—[Peter Peacock]—and agreed to.
After schedule 4
Amendment 12 moved—[Peter Peacock]—and agreed to.
Schedule 5
Modification of enactments
Amendment 13 moved—[Peter Peacock]—and agreed to.
That ends consideration of amendments.