Scottish Public Sector Ombudsman Bill: Stage 1
As the minister with responsibility for public services, I especially welcome the opportunity to debate the Scottish Public Sector Ombudsman Bill. The bill is a prime example of devolution working for the benefit of the people of Scotland. It will create the framework for new public sector ombudsman arrangements that are specifically tailored to meet Scottish needs. With this bill, Scotland is taking the lead within the UK in an important policy area. The bill will put our public sector complaints system on a par with the most progressive systems elsewhere. It will contribute to our drive for better delivery of public services and further our commitment to promote the modernising government programme.
The people of Scotland have a right to expect modern, effective, high-quality and first-class public services. Similarly, they have the right to expect a fair hearing if they consider that a failure in the delivery of those services has caused injustice or hardship. Effective ombudsman arrangements are a vital element in ensuring that the public are protected from such injustice or hardship. Better government needs an efficient complaints system to deal with that.
The bill aims to establish a complaints system that is accessible, open and accountable, and which commands the trust and confidence of the Scottish public. The bill fulfils the requirement in the Scotland Act 1998 for the Parliament to provide for the investigation of complaints, specifically those relating to actions of members of the Scottish Executive or other office-holders in the Scottish Administration.
The bill has been developed following two extensive consultation exercises undertaken by the Executive. About 800 organisations and individuals, including special interest and community groups, public bodies, trade unions and professional and trade organisations, were given the opportunity to comment on our proposals. We judged it to be essential that the consultation process take account of the views of real people in real processes. We therefore arranged for people who had recent experience of using the ombudsman system to contribute by offering views on not only our proposals but the effectiveness of the current arrangements. We are grateful for all the contributions that we have received.
The bill has benefited from extensive consultation, which has greatly assisted our wish to establish a complaints system that better reflects Scottish circumstances. Throughout the consultations, it has been clear to the Executive that many aspects of the existing ombudsman systems have proved extremely effective, so in drafting the bill we have sought to retain what has worked well and to complement that framework with a range of significant reforms to create a better complaints system for Scotland.
I am pleased that the Local Government Committee's report endorses the general principles of the bill and commends them to the Parliament. The report raises a number of issues to which I will respond. The Executive will, of course, consider carefully all the matters raised by the committee as work on the bill proceeds. I thank the convener, Trish Godman, and the other committee members for the significant amount of work that they have undertaken in scrutinising the bill.
The principal reform introduced by the bill is the creation of a one-stop shop combining the existing offices of the parliamentary, health service, local government and housing association ombudsmen in Scotland. The new office will also take over the Mental Welfare Commission for Scotland's function of investigating complaints relating to mental health matters—as recommended by the Millan committee report—and complaints that are currently dealt with by the external complaints adjudicators for Scottish Enterprise and Highlands and Islands Enterprise.
The one-stop shop will be headed by a single Scottish public sector ombudsman, who will be supported by up to three deputy ombudsmen. The question of an appropriate job title was thoroughly aired in both our consultation exercises. In particular, we sought suggestions for a gender-neutral title. A clear majority of respondents to both consultations favoured the title "ombudsman". I attach a degree of importance to that consultation and response. The term "ombudsman", which was coined for the role by the Scandinavians, is readily understood and recognised by the public, is by far the most commonly used title for this type of office throughout the world, and provides a clearer indication of the unique functions of the office than any alternative title. The committee's report suggested that the Executive should consider changing the title of the office-holder to the Scottish public services ombudsman. That is a helpful suggestion to which we will give positive consideration in advance of stage 2.
The ombudsman and deputies will be appointed by the Queen, on the recommendation of the Parliament. That arrangement reinforces the independence of the proposed office. To improve the accountability of those office-holders, they will be appointed for a fixed term of up to five years, which will be renewable once. A second renewal will be allowed only in exceptional circumstances.
A one-stop shop will provide benefits not only for the public, who will find it easier to make complaints, but for the ombudsman, who should realise tangible improvements in the operation and effectiveness of the complaints system. All complaints and information requests will be dealt with by the same office using standardised procedures. That will avoid the confusion that can arise at present when a complaint falls within the remit of more than one ombudsman. A single organisation dealing with public sector complaints will develop a higher public profile and will be easier to publicise. It will allow greater flexibility in the use of staff and other resources and will provide opportunities for more joint working and sharing of information.
The one-stop shop will be funded by the Scottish Parliamentary Corporate Body. The funding associated with the existing ombudsmen will, where appropriate, be redirected to the SPCB. The Executive will also provide the Parliament with additional funding to support the start-up costs that are required to establish the new office. The bill empowers the SPCB to determine the pay, allowances and pensions of the ombudsman and deputy ombudsmen. Those provisions reflect the common approach to managing the offices of office-holders who are the responsibility of the Parliament, which was agreed after discussions at official level between the Executive and the Parliament.
There are a number of ways in which the bill seeks to make the ombudsman more accessible. It removes the need for complaints to go through MSPs and allows complaints to be made orally in special circumstances, or to be made by electronic means. It also allows a person to authorise a representative to complain on their behalf. Such arrangements taken alone will make a significant difference to the disadvantaged within Scottish society. Those who have difficulty with reading or writing or those who, for whatever reason, are currently discouraged from making a complaint or who are unable to make a complaint, will be encouraged to make full use of the complaints system, which is intended to be of benefit to all.
We attach great importance to promoting public awareness of the new ombudsman and his or her role. The bill requires the authorities that are listed in the bill to provide information about the right to complain to the ombudsman in, for example, leaflets, guidance and correspondence.
The committee's report suggested that the ombudsman should have a consistent range of investigatory powers within his or her jurisdiction. I understand that that suggestion arises mainly from the health service ombudsman's power to investigate matters of clinical judgment and the housing association ombudsman's ability to investigate matters other than maladministration.
We have not sought to retain the housing association ombudsman's wider remit because we have identified only one occasion on which it has been used. That case could have been dealt with as maladministration. Therefore, it was clear that the wider remit was unnecessary. Maladministration is a broad term and, in practice, it enables ombudsmen to look into a wide range of matters.
I seek clarification from the minister. I am confused about what will happen if someone complains about a social worker. Will they complain to the Scottish Social Services Council or to the Scottish public sector ombudsman? When I asked the Scottish Parliament information centre and the Executive about the complaints procedures for the Scottish Social Services Council and the Scottish Commission for the Regulation of Care, I was told that they are still out to consultation. I find it difficult to see the parameters of those new organisations and how they will fit with the role of the public sector ombudsman.
I will try to address that point now and perhaps follow it up by correspondence. In the first instance, the internal measures and mechanisms that are available within the local authority should be used for a complaint. The complaint would subsequently be passed on to the ombudsman. I will clarify the point that Mary Scanlon made, which is interesting, but that is my initial view.
Professional judgments, to which I referred in connection with the health service ombudsman's remit, are essentially discretionary decisions, which we propose to continue to exclude from the ombudsman's jurisdiction. That is because we do not wish to create conflict between the role of the ombudsman and the democratic accountability of elected representatives or, indeed, to trespass into areas for which the courts are the proper mechanism for recourse.
It is also important to remember that the primary function of ombudsmen in the public sector has always been to consider complaints about injustice or hardship caused by maladministration. We propose that that should remain the primary function of the new ombudsman. That approach was endorsed overwhelmingly by the majority of those who responded to our consultations.
An exception was made for the health service ombudsman to reflect the unique circumstances of the relationship between health care professionals and patients. In other parts of the public sector, professional judgments are generally exercised in providing advice or information to the elected representatives by whom the decisions are made.
The option of judicial review will remain open to anyone who is not satisfied with a decision based on a professional judgment. Furthermore, the bill allows for the processes leading up to such decisions to be open to scrutiny by the ombudsman, as is the case now. I consider that the approach that is taken in the bill strikes the right balance between ensuring that public authorities are properly held to account and making legislation that is clear and workable.
In its report, the committee has asked that the Executive look again at whether the bill safeguards and enhances the ability of the ombudsman to resolve disputes by informal means. I have already informed the committee that I welcome the practice of resolving complaints informally wherever possible. The bill is intended to provide the statutory framework for the ombudsman to operate effectively and the powers that are necessary for the ombudsman to undertake his or her formal functions. We deliberately avoided including any specific provision for informal resolution because we considered that that would have removed the informality and flexibility that are the key advantages of that process. Throughout the drafting of the bill we have kept in mind the need to allow the continued development of informal resolution and complete flexibility in the performance of those informal functions. We consider that the bill will not frustrate those aims.
I note the existing ombudsmen's concern that the fact that the bill does not make provision for informal resolution might lead to judicial review cases. However, to date, we have seen no evidence that such concern is justified. Indeed, we are concerned that any attempt to make specific provision for informal resolution could increase the likelihood of judicial review, because it would narrow the flexibility that is so important to all concerned. However, the Executive notes the concerns that the committee expressed and will give further consideration to whether any amendments are required to support the process of informal resolution.
On the recommendation of the Subordinate Legislation Committee, the Local Government Committee has requested that the powers to make subordinate legislation under the bill should be exercisable only as regards public functions. It has suggested that that be made clear in the bill—as it is in the Freedom of Information (Scotland) Bill, which is also progressing through Parliament. Otherwise, the Subordinate Legislation Committee suggests, issues might arise under the European convention on human rights over the possibility that bodies that exercise public and private functions will be subject to investigation by the ombudsman in respect of their private functions. I note those concerns and am pleased to confirm that the Executive will lodge appropriate amendments at stage 2.
The openness and effectiveness of the ombudsman will be improved by the requirement for the ombudsman to publish all investigation reports and lay them before the Parliament. In addition, the bill empowers the ombudsman to publicise and lay before the Parliament special reports on cases in which an injustice or hardship has not been remedied. The ombudsman will also be required to report annually on the work of the office, and the Parliament will have power to direct the ombudsman as to the form and content of annual reports.
I hope that the Parliament will join me in welcoming the general principles of the Scottish Public Sector Ombudsman Bill. The key aims of the bill are access, clarity and accountability—greater access to the public sector complaints system, greater clarity in the purpose and operation of the system and greater accountability in that system. The bill is a concrete example of the Executive delivering on its continuing commitments to modern, open and accountable government and first-class public services.
I do not want the Parliament to consider the proposals that I have outlined today for reforming the existing complaints system without acknowledging the contribution of the current ombudsmen. They and the arrangements under which they work have served Scotland well and are held in high regard. The Executive welcomes that and wishes to record it in the debate. We all acknowledge the valuable contribution that the ombudsmen have made through their work to maintaining quality in Scottish public services.
The significant reforms that are set out in the Scottish Public Sector Ombudsman Bill will build on the legacy of the existing ombudsmen and play a major part in achieving the Executive's key goal of delivering better public services for the people of Scotland.
I move,
That the Parliament agrees to the general principles of the Scottish Public Sector Ombudsman Bill.
As the minister said, the aim of the bill is to establish a public sector complaints system that is open, accountable, easily accessible to all and that has the trust of the Scottish public. That is quite a challenge. The bill generally meets that challenge.
I welcome the minister's comments about the number of amendments that he accepts from the Local Government Committee's report. I hope that he will continue to reflect on those that he has not yet accepted. I am sure that the convener and other members of the committee will press those points during the debate.
The bill will make it simpler and more effective for members of the public to make complaints about maladministration in the public sector. However, we need to be clear that a public sector ombudsman will not be a panacea and will not solve all the problems that the public have with public services. Although it is right and proper that we publicise the service as much as possible when it comes into being, we must also make it very clear that the ombudsman cannot solve problems that do not fit within the parameters of maladministration.
For many, one of the frustrations of the present system is that their complaints do not seem to fit into any category. We must consider that matter outwith the bill. Although I welcome the commitment to publicise the new service when the bill is enacted, we must be careful not to raise hopes that the service will do what it simply cannot do. I was struck by evidence that only something like 8 per cent of all the complaints that go to the present ombudsmen are dealt with. That means that a substantial number of complaints are not resolved in the ombudsman service. Although it is right that we have a single framework and that we publicise it, I do not want anybody to get the impression that any problem that they take to the ombudsman will be resolved, because the parameters for the ombudsman's work will still be defined within maladministration.
I was disappointed that the minister did not accept the need for amendments to the bill to safeguard and enhance the ombudsman's ability to resolve dispute by informal measures and means. I hope that the minister will reconsider. I was certainly persuaded by the evidence that the committee heard that informal resolution is sometimes better than formal resolution. I understand what the minister is saying, but there will be opportunities at stage 2 to lodge an amendment that will meet those concerns.
I am still not persuaded that the water authorities should not be brought within the scope of the bill. The Convention of Scottish Local Authorities gave evidence to that effect. I hope that the minister will reconsider that issue during the passage of the bill. If he does not, concern will be expressed in the future about the water authorities not being included. Water is, and will continue to be, a vital public service.
I turn to the question of the consistency of the range of investigative powers that are included in the bill. At the moment, the Executive continues to allow the NHS ombudsman to have greater powers to investigate judgments as opposed to maladministration. The bill gives an opportunity to widen the range of powers. If we are to have a public services ombudsman, it will be helpful for the ombudsman's range of powers to be consistent. The committee felt strongly that the Executive should consider amending the bill to extend the range of investigative powers so that they are consistent across all authorities.
I will move on to a matter that arose in the evidence that was given to the committee. The Scottish parliamentary commissioner for administration expressed concern about the present ombudsman staff. He was not persuaded that the bill conforms to the code of practice for staff transfers in the public sector. When the minister appeared before the committee, he gave an assurance that the code of practice and the guidelines would be met and that staff would be protected at transfer. I am not persuaded that that is the case. I hope that the minister will examine the situation to ensure that staff will not be disadvantaged.
I thank the minister for his positive response to some of the committee's report. I am sure that several amendments will be lodged at stage 2—he is committed to lodging some, but there will be others. All members want the bill to work and want the new office to work well. However, members will lodge amendments to make the bill work better.
I hope that the minister will reflect positively on the comments that were made in the report. I hope that he will not give the usual Executive knee-jerk reaction of rejecting amendments that it does not want. I ask the minister to examine carefully and reflect on some of the amendments that will be lodged. The Scottish public sector ombudsman should be allowed to gain the trust of the people of Scotland. The office of the Scottish public sector ombudsman should be a genuine one-stop shop where the vast majority of complaints can be resolved.
I am about to make a comment that the Presiding Officer will not hear often from an MSP. I am disappointed that I have been allocated 12 minutes to speak in the debate.
So are we. [Laughter.]
It's the way he tells them.
The truth is that a serious issue is involved in the way that we use our parliamentary time. This morning, we are to use two and a half hours to debate stage 1 of the Scottish Public Sector Ombudsman Bill, the principles of which committees of the Scottish Parliament have agreed to support. Stage 1 is all about the principles and not the detail. Why has so much time been allocated? We have only one and a half hours to debate the Local Government Finance (Scotland) Order 2002 this afternoon—an issue of much greater importance to the daily lives of the general public as it determines their council tax and services for the coming year.
Putting aside the issue of time, I reaffirm the Scottish Conservatives' support for the general principles of the bill. We welcome the move to a one-stop shop for the public sector ombudsman. I also welcome the principle of further clarifying the ombudsman's independence from Government and to improving public transparency of the ombudsman's actions.
The Local Government Committee heard evidence from a number of parties. We recommend that at stage 2 the minister should address a number of the issues that were raised. That is a detailed debate for another day, but I hope to receive an assurance from the minister today that a constructive debate will be held at stage 2. I am pleased that the minister will attempt, through amendments where necessary, to ensure that we achieve the aims of the committee, following its initial scrutiny of the bill.
The scrutiny produced six main issues on which the committee will be looking for action from the minister. In support of the committee, I will set out briefly the Conservative view of the issues. First, I agree with the Local Government Committee, rather than the Health and Community Care Committee, that flexibility is key when considering the expertise that is required of deputy ombudsmen. Let the ombudsman appoint a cross-section of deputies, who can cross-fertilise one another's experience. The minister should not box the ombudsman into specific appointments. The point of having a one-stop shop is that investigative staff with different backgrounds can gather experience gradually in all areas so as to provide a better service to the public. They can also respond to variations in work load.
The member will be aware of the evidence that was taken by the Health and Community Care Committee, which showed that bodies such as the Mental Welfare Commission were keen for one of the deputy ombudsmen to have particular responsibility for health. The Health and Community Care Committee felt that, given the complexities of the areas that the health service ombudsman has to deal with, it would be preferable for one of the Scottish public sector ombudsman's deputies to have specific responsibility for health. Given that we do not have a problem with the ombudsman having overall responsibility, does the member agree that it would make sense for one of the deputies to have specific responsibility for health? That would be in the interests of all who have concerns about the health services.
I thank Janis Hughes for repeating some of the evidence that was given to the Health and Community Care Committee. The Conservatives took that evidence into account before we came to our conclusion. We believe that it is wrong to have specialised deputies. We believe that the deputies should cross-fertilise one another. Health is included in the framework. I do not want there to be specialist deputies. I thank Janis Hughes for her intervention, as it took a minute.
Secondly, I understand why we do not want to specify the means to be used for informal investigations, but I urge the minister to consider the ombudsman's information needs for that type of investigation. He must ensure that the ombudsman's office is protected properly from legal challenge. As Tricia Marwick said, amendments should be lodged to enhance the ombudsman's powers to resolve disputes by informal means.
Thirdly, I am concerned in particular about jointly planned and funded services in the health and social care sector. That is a grey area—one which causes public concern and doubt about who is responsible for service quality and service decision making. It would be even worse if the confusion was exacerbated by variations in the powers of an ombudsman who is supposed to be a one-stop shop. I agree fully with the Local Government Committee view that the Executive should
"consider whether there are ways of amending the Bill at Stage 2 to bring a consistent range of power of investigation across all the authorities which may be investigated."
Fourthly, I would like the minister to assure me that safeguards will be put in place to ensure that the confidentiality of the information that is available to the ombudsman in legal aid applications will not be removed without proper protection. We received compelling evidence that safeguards are needed to protect the quality and extent of information provided in applications.
I appreciated receiving a copy of the letter that the minister circulated to us all, to reassure us on that matter. However, I am concerned about this sentence:
"During the discussions, it emerged that cases where there was any possibility that the amendment might cause difficulty would be very few and far between."
The point is that there will be some such cases. The minister has to address that point.
Fifthly, I am pleased that the minister has said that he will reconsider the title of the new organisation. Housing associations are concerned about the inappropriate use of the words "public sector". Although the change may seem minor, the suggested title of "Scottish public services ombudsman" seems sensible.
Finally, the Local Government Committee endorsed the Subordinate Legislation Committee's view that the Executive should
"take steps to ensure the powers to make subordinate legislation under the Bill are exercisable only as regards public functions by making this clear on the face of the Bill in the same way that such limitations are drafted on the face of the Freedom of Information (Scotland) Bill."
The minister must consider that point to ensure ECHR compliance and the competence of the bill.
The Scottish Conservatives welcome this worthwhile bill and support the general principles that we are debating today, but we will give careful consideration at stage 2 to the concerns raised by the Local Government Committee. I look forward to that more detailed debate, in which I may take a fuller part to impress on the minister the need to address those concerns. There is little more that I can say on the general principles of the bill, which I am sure the whole chamber will support.
Like other members who have spoken, I am concerned about the amount of time that I have been allocated. I assure the Presiding Officer that I do not intend to take up my full allocation.
We will be finished this morning by about 11.40—which is 50 minutes early. I ask the business managers to take note of that.
Thank you, Presiding Officer.
This is an important bill, which merits a decent stage 1 debate. I hope that we have such a debate, even if we do not fill the two and a half hours that have been allocated. As Keith Harding said, the debate is about the general principles of the bill, but it is also an opportunity for those of us who have considered the bill to raise the aspects that we would like the Executive and the Local Government Committee to consider for amendment at stage 2.
The principle of a public sector ombudsman is important. We have had ombudspersons, ombudsmen or ombudsmans—whatever the Scandinavian plural is—in the public sector in the United Kingdom for a considerable time. They provide an important function: the basic principle is that they are a backstop in complaints procedures. People can take their complaints to the ombudsman for independent consideration after the complaints procedures of the authority that is the subject of the complaint have been exhausted.
There is often concern among the public that public authorities do not give fair consideration to their complaints and see them from the perspective of their own interests. My experience in public service—as a councillor for many years and as an MSP—is that if one is not satisfied with the response one receives from an official at a lower level and one writes to the chief executive of the council, the chief executive will check with the official with whom the complainant was not happy, so one ends up getting the same answer. There is an element of failure to consider matters—even within a council's own operations—independently. It is important to have independent consideration of complaints to fall back on.
For that reason, I am slightly concerned by the Executive's reluctance to consider extending the remit of the public sector ombudsman beyond the consideration of complaints within the traditional definition of maladministration. Although ombudsmen might understand the term maladministration, the public—and even councillors, MSPs and MPs—do not feel that they understand what it means. It is important to consider that point in the context of cases where injustice is felt to have been done in the public sector.
I draw the attention of the chamber, and particularly of the Executive, to the written submission from the Scottish Consumer Council, which is reproduced in the Local Government Committee's stage 1 report. In paragraph 11 of its submission, the Scottish Consumer Council says:
"The main ombudsman schemes in the public sector deal only with ‘maladministration'. However, the Housing Association Ombudsman for Scotland ‘may investigate and report on complaints other than those in which injustice has been caused by maladministration if he is satisfied that in the particular circumstances it is in the public interest to do so.' The Health Service Ombudsman can deal with complaints about ‘poor service by a health service body'. The remit of the public service ombudsman should be extended beyond maladministration, to include the kind of cases already covered by these two schemes."
Therefore, there is an opportunity to look beyond maladministration, in cases where an injustice has been caused by a failure of service or by another means that does not fall under the technical definition of maladministration.
In paragraph 13 of its submission, the Scottish Consumer Council says:
"The guiding principle should be that which makes sense to consumers. If, at the end of an authority's complaints procedure, a problem remains unresolved, consumers should be able to expect an impartial overview by an ombudsman."
That is a useful principle. If, having gone through the complaints procedure of a council, health body or housing association, a consumer is still unsatisfied with the response, there should be the opportunity for independent consideration of the complaint. The ombudsman may come back and say that the consumer is wrong—often, people who feel that an injustice has been done do not have a case—but independent consideration should be available.
I urge the Executive to consider whether the remit of the ombudsman could be extended to allow consideration of failure of service and wider issues, as is the case with the housing association ombudsman. It is not acceptable to say that, because the extended remit of the housing association ombudsman has been used only once, it should not exist. The extended remit is a useful backstop and can allow the ombudsman to consider the informal channels that are available.
We should consider whether the definitions in the bill should contain an additional element to make it clear that the ombudsman has the power of informal investigation. There is concern that the bill makes clear only the powers of formal investigation that are open to ombudsmen; it does not make it clear that they continue to have the power to conduct informal investigations. The Scottish parliamentary commissioner for administration and the local government ombudsman both raised that concern in evidence to the committee.
Michael Buckley, the Scottish parliamentary commissioner, said:
"I am concerned at the well-nigh exclusive emphasis in the Bill on investigation. The only substantive functions of the new Ombudsman mentioned in the Bill are to investigate and to report. Yet the overwhelming majority of cases are currently settled, and are likely to continue to be so settled … in a way other than that to be provided for by statute … I believe that the new Ombudsman may be vulnerable to challenge, not only in the courts but also by the auditors, if he or she adopts the sort of working methods (such as informal resolution) that I believe to be appropriate."
That practitioner is genuinely concerned that, because the bill does not make it clear that the ombudsman has the powers, there might be a challenge. That needs to be resolved.
I am not talking about heavy-handed legislation; a problem is that our draftsmen and civil servants think that if something is put into legislation, there must also be miles of regulation. I am talking about including a section to enable informal investigation to take place and to ensure that it is clear in statute that the ombudsman has that power. I hope that the Executive will consider that at stage 2.
The Health and Community Care Committee has concerns about the designation of deputy ombudsmen. We should not end up with an extra layer of bureaucracy because we have set up a series of doors, with one door on top of them. Instead, we should have a one-door stop, which allows the ombudsman flexibility to ensure that all investigations are dealt with adequately and effectively. That does not mean that there should not be expertise. I have no doubt that the ombudsman, when appointed, will ensure that there is expertise in housing, health, local government and the public sector in general, as covered by the parliamentary ombudsman. Those are important areas that must be covered. Let us not lay down in statute the structure for the new public sector—or services—ombudsman.
I support the proposal to change the name to the Scottish public services ombudsman. It is neat because if there is already stationery with the initials printed on, it will not need to be changed.
I call Trish Godman, who may if she wishes have an infinity of time. However, it is my intention to suspend the meeting at about 11.40.
Thank you, Presiding Officer. That is the first time that I have been told that I can speak for as long as I like. The Local Government Committee was in the chamber last week, is here this week, and will be here next week and the week after that. I suggest that our names are put on the seats so that we know where to sit.
The committee and the clerks have been extremely busy. I want to put on record my thanks to committee members, as the committee has met weekly for as long as I can remember. Last Tuesday, we met at quarter to two and the meeting did not close until about 20 past six.
We consider carefully the bills that come before us and, from the responses from ministers, it seems that we are doing an excellent job, because many of the suggestions that we have made have been accepted.
Today, we are considering the Scottish Public Sector Ombudsman Bill. As others have said, the policy objective is to have a one-stop shop, headed by a new Scottish public sector ombudsman, to deal with complaints. At the moment, complaints are dealt with by a Scottish parliamentary commissioner for administration, a health ombudsman, a local administration ombudsman and a housing association ombudsman. The thrust of the bill is to establish an open, accountable and easily accessible public sector complaints system, which has the trust of the Scottish people. The bill will make the system simpler, more effective and more transparent, and will improve publicity.
In their written and oral evidence, all witnesses welcomed the one-stop-shop proposals but, as usual, some of them had concerns. One of those was that we should not lose the extensive knowledge and expertise built up over the years by individual ombudsmen and their officials. The committee agreed with those sentiments, but we did not support the suggestion that there should be a deputy ombudsman for either health or housing. I have to disagree with my comrade Janis Hughes and agree with Iain Smith on that point.
Members should be forewarned that the Local Government Committee will bring discussions on community planning to the Parliament. The committee felt that, because of the integrated approach implied by the emergence of community planning, it was important to allow the new body to develop as flexibly as possible. We acknowledge that the existing expertise needs to be retained, but we feel that people should start to work together in the new one-stop shop and learn from one another, rather than being separated.
Witnesses noted the bill's emphasis on investigations. Some expressed concern that, as the bill stands, the ombudsman may be vulnerable to challenge, in the courts or by auditors. Tricia Marwick spoke about that. The Health and Community Care Committee and the Scottish parliamentary commissioner for administration also expressed those concerns. However, the Minister for Finance and Public Services was of the opinion that the bill provided a statutory framework for the ombudsman to carry out his or her duties and that the fact that the bill contains no provision on what can or cannot be done means that there will be wider scope to deal with issues as the ombudsman sees fit. The committee was not wholly convinced by the minister's comments. We ask him to consider whether amendments are needed to safeguard the ability of the ombudsman to resolve disputes informally. I note what the minister has said today.
The provision for local authorities to ask the ombudsman to initiate an investigation is new. Although the housing association ombudsman was concerned that there might be a risk that an authority would use the new ombudsman to manage its own complaints, the committee was persuaded by other evidence that it was helpful for authorities to be able to request that an investigation be initiated. However, we cited the example of a complete service failure by an executive agency such as a local enterprise company, which we believed would be more properly investigated by a parliamentary committee than by an ombudsman. I draw the Executive's attention to that example.
We consider that, at this point, there is no need to add to the list of bodies, as that can be done later. I acknowledge Tricia Marwick's comments about water authorities.
The bill still allows the ombudsman to investigate matters of clinical judgment in the health service, but only matters of maladministration may be investigated in complaints against local authorities. Many witnesses felt that the new body's remit should be wider than the investigation of maladministration. However, the minister does not hold that view. He believes that organisations such as local authorities are democratically accountable and so a wider investigatory remit is not necessary.
The committee decided that, with the growth of joint, multidisciplinary working—and eventually with community planning—the differences between what can be investigated could cause problems. For example, witnesses from the Mental Welfare Commission for Scotland pointed out that all their work is conducted closely with health services and local authorities and that it would be difficult to unravel who was responsible for problems in the event of a complaint being investigated. We asked the Executive to consider ways of amending the bill at stage 2 to make the range of powers of investigation consistent across all authorities.
The power to investigate maladministration in relation to the internal management and organisation of schools is new. The Convention of Scottish Local Authorities and Glasgow City Council were unhappy about the proposals, as they felt that they would allow the ombudsman to stray into investigating matters of professional judgment, such as the curriculum and teaching management. However, the minister made it very clear that the bill would limit the ombudsman in investigating matters of professional judgment. The committee considered that question for some time and discussed it in detail. We finally agreed that it is appropriate for the ombudsman to investigate administration and management in schools, and nothing else.
The confidentiality of information provided was another question on which the committee spent some time. The bill will remove restrictions on the ombudsman's access to information from the Scottish Legal Aid Board. The committee still had concerns and sought assurances from the minister that safeguards will be in place to protect the applicant, so that the quality and extent of the information provided is not adversely affected.
We welcomed the inclusion of provisions to publicise the service. We talked a lot about that, because we think that it is very important. We also think it important that local complaints procedures should be exhausted before the ombudsman is approached. Mary Scanlon raised that. We welcomed the Scottish Parliamentary Corporate Body's assurances on the independence of the ombudsman's post. The SPCB will consider the pay, allowances and pension of the ombudsman. We are satisfied that sufficient safeguards are in place to ensure that there will be no conflict of interest.
The minister has given assurances that safeguards are also in place on staff transfer arrangements. As the minister said, the committee suggested that the name should be the Scottish public services ombudsman. I am pleased that he appears to have accepted that suggestion.
I have spoken for seven minutes; that is the longest speech I have ever made in the chamber. I ask members to agree to the general principles of the bill.
I congratulate Trish Godman on her speech. She has taken seven minutes, which might cut my time by about two minutes. She raised some of the points that I was going to make, and did so more eloquently than I could have done. She covered practically everything in the bill.
As Trish Godman and other members said, everyone in the Parliament favours a one-stop shop. It is right and proper that people should not be confused—deliberately or not—about whom they should approach. The one-stop-shop approach is sensible and I am sure that the public will welcome it as long as it is transparent, open and fair.
After leaving Glasgow at half-past 6 this morning, I sat for nearly two hours in a traffic jam, so I looked at the list of organisations that are covered by the bill to see whether long-suffering motorists might be included, but unfortunately they are not. Perhaps that is something that I should address in a private bill. The only transport-related organisation that I could see listed was the Strathclyde Passenger Transport Authority. Perhaps the needs of long-suffering motorists should be considered.
Members have raised a number of concerns. Trish Godman explained very well the concerns of Michael Buckley and the housing association ombudsman about informal resolutions and the ombudsman's vulnerability to challenge. I think that the minister has taken those concerns on board. If he has not already mentioned that point, I am sure that he will do so in summing up. Committee members and witnesses also expressed concern about formal investigations. Other members have mentioned that point and I am sure that the minister will comment on it when he sums up. Witnesses from the Office of the Housing Association Ombudsman and James Dyer of the Mental Welfare Commission for Scotland raised that concern as well, and those people should be listened to.
I very much favour the proposal to remove the MSP filter. I have had representations on that point. At present, any complainant who wants to approach the Scottish parliamentary commissioner for administration must do so through an MSP. The bill proposes that that filter be removed, so that approaches can be made through another process. I am pleased about that and I am sure that, once the bill is passed, the constituents who have approached me will also be pleased.
It has been said that a one-stop shop for the people of Scotland—I think that the minister used those exact words—will be welcomed by the people of Scotland. It is certainly welcomed by the Parliament. The Local Government Committee scrutinised the bill in great detail and suggested various ideas. Members of the committee and SNP members will lodge amendments at stage 2. I recognise that the minister has taken on board most of the Local Government Committee's concerns and I look forward to stage 2 of the bill.
At this stage of the debate, it is difficult to be original, but I will try my best.
Members have not really dealt with consultation. The Executive undertook two consultations—that is important—and the committee asked witnesses about the process. They said that the process had been thorough. Every witness who gave written or oral evidence was in favour of the one-stop approach to complaints in the public sector.
Stage 1 consideration of the general principles of a bill is something of a non-event. There was general agreement in the Local Government Committee that the bill should proceed. However, as Iain Smith argued, it is important that issues are aired to find out whether the Executive can be urged to change its mind about them—it certainly has in some areas—or whether amendments will be needed at stage 2.
What are those issues? Janis Hughes raised the important issue of expertise. How can expertise be retained in health or housing? She was concerned that it would be difficult to retain expertise if there is not a deputy ombudsman with particular responsibility for health, for example. Although the Local Government Committee knew about such concerns, it felt that such proposals might not alter the structure of the present system. All that would happen is that another person—another layer—would be put on top and in charge of the public sector ombudsmen. Perhaps we should have considered the structure of the new body more carefully when we took evidence, to find out how expertise could be retained. That would not necessarily mean a deputy layer.
Another concern relates to the wording of the bill. There is concern that, if the investigative role is seen as the main role, that would not allow for an informal procedure, in which a case could be resolved informally before an investigation starts. I take on board what the minister said—that such a procedure will still be allowed—but the ombudsmen were genuinely concerned about that.
Iain Smith argued well on the extent of the investigatory remit and how it should be consistent across all areas. The public should know what to expect from the ombudsman's service, but the ombudsmen currently have different structures and getting consistency will take time. I have an education background and am well aware that we spent a long time talking about the professional role of teachers and how we did not want the ombudsman's role to input into teaching and learning in the curriculum. The area is complex and there was much discussion about it. Consistency is important so that members of the public know what is happening and how they will be treated.
Tricia Marwick made an excellent point about publicity. We must not raise unrealistic expectations. When we consider how to discuss the service and how to make more people aware of it, we should be careful how we put the message across.
I have no hesitation in supporting the bill at stage 1 and I hope that all members will support it.
Members may think that the bill is fairly straightforward, but we should not forget those who are pursuing complaints in the system. As Sylvia Jackson spoke, I could not help thinking about a lady who came to my surgery. Her mother, who was in a local authority home, had dementia and was taken into a psychiatric hospital where she was to be assessed and where it was to be decided where she would go. The lady went to the council, which said that the matter had nothing to do with it, as the mother was in a primary care trust. The lady went to New Craigs hospital, where her mother was being assessed. The hospital said that the matter had nothing to do with it, but concerned the social workers. The lady tried to get a social worker, but was told that the matter had nothing to do with them. She went to her doctor, who said that it was not their responsibility. She went to see her councillor, who said that it was nothing to do with them, but was a hospital matter. Members are saying that the bill is okay, but we should not forget the trauma that people go through in finding their way through the system.
I support the proposal to have one ombudsman and a one-stop shop. However, at stage 2, I ask the minister to take into account the complaints procedures for the Scottish Commission for the Regulation of Care and the Scottish Social Services Council. There may be no overlap and things may be crystal clear, but this morning I found out that the Executive is still deliberating on consultation responses—we still do not know the details of the complaints procedures for the Scottish Social Services Council or the Scottish Commission for the Regulation of Care. I ask the minister to be open to amendments at stage 2 and to clarify that matter.
I will make two small points before I come to my main one. The first relates to Scottish Health Advisory Service reports. They are first class, but I have often seen reports that say that recommendations were made three years ago but nothing has been done. I ask the minister to ensure in the bill that the public sector ombudsman's recommendations are monitored and acted on.
The second point is that I was shocked that Michael Buckley said almost proudly that the time taken to process complaints had been reduced from 45 to 42 weeks. Any move in that direction is welcome, but I know the trauma that many people go through in pursuing complaints. I hope that thoroughness can be maintained, but that the time taken to process complaints can be reduced.
My main point was raised by Trish Godman. It concerns the joint-working aspect of care in the community. If a person who receives care complains about their treatment, is not satisfied with the local resolution and goes to the public sector ombudsman, who is to say whether the complaint is a health complaint or a local government complaint? The difficulty arises from the fact that the ombudsman can consider only those complaints that are based on clinical judgments that relate to health service personnel and, in respect of social workers, can examine only the process followed and maladministration. The best submission that the Health and Community Care Committee received was from the Mental Welfare Commission, which said:
"This Bill contains many provisions which will achieve the objectives of the Executive that the public sector complaints system will become simpler and more effective".
We all agree with that. However, the commission also said that the bill
"will also mean that the decisions and actions of professionals who do not operate clinical judgement, but who do use other forms of professional judgement, will not be open to the same scrutiny as those of their colleagues within the health service. This does not seem to be in the public interest."
There will soon be even greater emphasis on joint working and joint decision making: for example, there will be multidisciplinary teams and care plans will be jointly decided. Moreover, both the Regulation of Care (Scotland) Act 2001 and the Community Care and Health (Scotland) Bill stress joint working. We can see how difficult it will be to assess who has made a decision when that decision has been made jointly.
It is surely unfair if a health service employee must be more accountable for a decision than a local government employee is. For example, a person could complain about being refused a home care service, about not being referred to a day centre, about respite care to help the carer or because, as a carer, they disagree that their mother should be taken into care. Are the judgments that would be involved in those situations clinical or administrative? Do those judgments take into account all factors, including social and clinical factors and the health of the rest of the family? That point was raised in the Health and Community Care Committee.
I have a point of clarification. My understanding is that the purpose of the one-stop shop is precisely to overcome such problems. We will not identify deputy health or deputy housing association ombudsmen; the expertise will be built up so that, when someone goes to that one-stop shop, they will have a choice of guidance. I thought that that was the whole thrust of the bill.
Yes, so did I. My evidence comes from the Mental Welfare Commission and others who felt that, when the commission examined a complaint, it examined it as a whole. The commission made the same point as the member—there is now a blurring because of joint decision making. If two people make a decision, it cannot be right that one is held to account for a clinical judgment but the other is not. In addition, if a person complains that an elderly person's discharge is being delayed because a local authority does not provide appropriate care, to whom do they complain and who is responsible? I feel that that needs clarification.
The ombudsman can investigate the action of independent providers, but only when the services are provided under arrangements that were commissioned by a health service body or a family health service. In other words, the ombudsman can investigate voluntary and independent care services that are commissioned by the NHS, but cannot investigate services that are self-financing. That means that two people in the same day care centre could have different complaints procedures, because one of them is deemed to be receiving a service that is self-financing and the other is receiving a service that was commissioned by a family general practitioner or the NHS. That undoubtedly needs clarification.
There must be clarity about the professional judgments of social workers and the clinical judgments of NHS staff in relation to mental health in the community. The target time should be reduced and, at stage 2, the complaints procedures should be clarified, especially in relation to the two new organisations.
Having just got used to speaking for a lot less time than usual, I will try, primarily in the interests of my colleagues' well-being, not to be tempted by the Presiding Officer's suggestion of going on for an infinite period.
I very much welcome the bill as part of our on-going commitment to modernising government. The creation of a Scottish public sector ombudsman, who will bring together the existing ombudsmen for health, housing, local government and the Parliament, will establish a simple one-door approach for the public. It is good that there will be less bureaucratic clutter, but the real potential is for an open, accountable and accessible system that will deal with people's complaints about maladministration in the public sector. I particularly welcome the steps to make the process more accessible to those who are disadvantaged, as a result of disability or a lack of literacy, for example, so that the process is truly open to all.
I will focus my comments on the housing aspects of the new service. I have a minor point on the terminology that is used, which has been mentioned. The bill's title refers to the "Public Sector Ombudsman". Housing associations are not public sector bodies; they are governed by the requirements placed on them by friendly societies. Therefore, the bill's title does not reflect the full range of organisations that could be subject to investigation. That lack of clarity might lead to confusion among tenants. I have no doubt that that issue can be resolved by publicising the nature of the service. However, the Executive is recognising the value and the potential of mutual and social economy organisations and we should reflect that diversity in the bill's title. The Local Government Committee suggested a minor change to make the bill's title more inclusive. I welcome the minister's positive comments about considering that matter again before stage 2.
My second point, which is perhaps more substantive, is on the ombudsman's investigative powers. Trish Godman and others have eloquently dealt with the issue, but I will repeat some of their points. The housing association ombudsman's remit currently extends beyond cases of maladministration to possible cases of injustice. The health service ombudsman has a similarly wide remit. However, the other ombudsmen focus solely on maladministration. I can foresee potential difficulties with that situation because of the increasing focus on multidisciplinary working. We could end up creating an unhelpful and unnecessary obstacle to the ombudsman's fully investigating an issue.
If we descend into technical arguments about who has the power to do what and in what circumstances, that will not be in the complainer's interests and it will not help us to fulfil our intentions. A consistent set of powers across all the functions is therefore essential. I ask the minister to reflect further on that issue. We believe in first-class public services, so we should give the ombudsman the flexibility to deal with injustice and service failure beyond the narrow definitions of maladministration.
What is the member's view of what the minister said about the broader interpretation of the word "maladministration" and of the difficulties in some areas, particularly education, of taking a wider view?
I accept that there are difficulties in taking wider views, but if our primary objective is to ensure that there are first-class public services, we should reflect on the fact that maladministration can be treated in definitive terms. The correct way forward is to enhance the remit so that it is similar to those already enjoyed by the housing association ombudsman and the health ombudsman. It is not beyond the capability of the minister and the civil servants to work their way round that issue.
I welcome the provisions in section 20 of the bill, which will ensure that the service is publicised. The public need to be aware of their right to complain and of the process for doing so. We know that all too often people are left struggling and at a loss about where they can turn to for help. It can be daunting for an individual to perceive themselves as being up against an organised system. Ensuring that people have information about their rights is therefore absolutely critical. That need not necessarily be a matter for the bill, but I ask the Executive to look creatively at awareness raising to ensure that everyone in Scotland has access to that information. I also ask the Executive to consider using voluntary agencies, which are in the business of providing advice to communities.
I have gone over my allotted time. I believe that the bill's principles are worthy of members' support, because by opening up government and making it more accountable and transparent at every level we will ultimately benefit the people whom we seek to serve. We should all strive to deliver that.
I welcome the opportunity to speak in this debate. I am impressed by the work that the Local Government Committee has done. We have received yet another stage 1 report from the committee, which these days seems to be on as often as "Coronation Street". Perhaps the masses do not follow the committee quite so faithfully, but it is probably as important.
I congratulate the committee on its clear and helpful report and I note its capacity to generate reports that enjoy consensus in the Parliament. It is significant that we can tackle issues on which we are agreed and that we can carry out our work accordingly. That underlines the importance of the Parliament's committees. It is essential that they are properly supported in carrying out their important work.
The consultation on the bill is regarded as having been effective. That is important, because the quality of the consultation that the Executive carries out is developing as a key issue both locally—in my constituency—and among organisations with which the Social Justice Committee comes into contact. In some cases, there is a feeling that consultation, although it is taking place, is not a genuine dialogue. This is a good example of the importance of real consultation with those who have an interest in the subject.
Complaints against public bodies feature strongly in my casework, and I am sure that I am not alone in being approached by people who have such concerns. Generally, I am happy with the responses of public organisations when I pursue complaints on behalf of my constituents. However, there is a danger that the message that goes out to the general public is that only the intervention of MSPs gets results. That is nice for an MSP who has managed to get a result for somebody, but it suggests something about the attitude that is taken towards the public when they seek to complain on their own behalf.
It is essential that public services should strive to get things right at the beginning, so that people do not want to complain. It is also essential that, when a complaint is made, the response that is given at an early stage is helpful. We are talking about a last resort rather than a first resort, although a lot of the problems arise when people first raise a concern and are confronted by a less than helpful, puzzled or bemused attitude from an organisation.
Often, constituents have come to me when they have been exasperated and frustrated by the lack of progress that they have experienced. If citizens have no faith in the system's capacity to acknowledge and address their concerns, we should not underestimate the impact of that on their commitment to and belief in public services. The perception has been expressed to me on several occasions that organisations are policing themselves and that there is no independent scrutiny of what is going on at an early stage. It is important that people have faith in the system. Few cases are taken up by the ombudsmen and the complainer receives support in only a few of those cases. That has an impact on people's confidence in the system. The system has to be seen to take complaints seriously. There is an issue about support for the person who is pursuing a complaint, which I shall return to in a moment.
Another theme that has become apparent to me is the anxiety of officials or those who work in public services about being frank and explicit when a complaint is raised with them. They may argue that they fear litigation. We must acknowledge that that fear can be genuine. However, it could also be a convenient excuse to avoid being transparent and open to comment. If there is an alleged threat of litigation, we must find ways in which those who are being complained against can be made to feel confident and protected in being explicit about their experience of the person who is pursuing a complaint. The traffic should not be one way.
A key issue is that those who feel that they have been treated badly often have to make their complaint at a difficult and painful time. The complaints system should be accessible regardless of an individual's resources and we must support people through the complexities of the system. I am particularly concerned that the most disadvantaged people in our communities—those who are most reliant on public services—are probably the least supported in pursuing their complaints. We must therefore reconsider the resourcing of local support systems, such as citizens advice bureaux, so that money does not determine people's capacity to enter into the complaints system and individuals can sustain themselves throughout the complaints procedure.
As I said, the ombudsman is the last resort. In my experience, the best results are achieved when those who work in the public sector are willing to meet at an early stage those who have concerns and want to pursue complaints. It is remarkable how many cases have been resolved through a willingness to be open rather than through transparency at a later stage. Commitment to that attitude underpins our approach to public services and is at the heart of what a lot of people who work in public services believe in. I add my support for the general principles of the bill and look forward to the debates at stages 2 and 3.
Before we move to closing speeches, I ask members who want to speak in the next debate—the mini-debate on procedures—to be in the chamber an hour early, at 11 o'clock rather than at 12 o'clock.
I welcome the bill. It is a great step forward to bring several ombudsmen's tasks together in one group. The bill also goes some way towards widening and increasing the powers of the ombudsmen.
In my brief time as an MP and my rather longer time as a councillor, I formed the view that there was ombudsmania, as every organisation created an ombudsman post as part of its public relations. Most of those ombudsmen were a complete waste of time because, when any really good issue arose, they said that it did not fall within their remit and that they could not pursue it. If they actually pursued an issue, they almost always came to a conclusion that I thought was contrary to natural justice. It is therefore a good step forward to have one, overarching ombudsman with a strong team.
Nevertheless, there are ways in which the bill could be strengthened, some of which have been mentioned. The bill says that the ombudsman can investigate a complaint
"only if a member of the public claims to have sustained injustice or hardship".
The wording of the ombudsmen's remits in the past sometimes included the words "financial loss", so what we have in the bill is perhaps a bit better. However, it is hard for someone to prove that they have sustained injustice or hardship personally. Why should not a community council or residents association, for example, be able to put in a claim that a council or a health board has made wrong decisions—based on maladministration or whatever—which have been to the detriment of the community? Communities must be considered as well as individuals.
I apologise for coming late to this debate. One of my regrets in life is that I am no longer a member of the Local Government Committee, which I greatly enjoyed. My colleague, Iain Smith, does a very good job. However, the reduction in the membership of committees has had serious effects. I may, therefore, have missed something.
I find section 5(4) fairly incomprehensible or stupid. Why can the ombudsman investigate something only if
"it has been alleged publicly … that one or more members of the public have sustained injustice or hardship",
when, later in the bill, we are told that the ombudsman is not to mention people's names? That seems peculiar. Subsection (4)(b) says that the ombudsman may investigate a matter only if he or she is satisfied that
"the listed authority in question has taken all reasonable steps to deal with the matter to which the allegation relates."
I presume that, if a local authority or quango persistently refuses to take reasonable steps, the ombudsman will not be able to investigate a matter. I must have missed something. That section does not seem very sensible. We can widen the remit of the ombudsman, and I hope that the matter will be addressed at stage 2.
Another concern is what happens to the ombudsman's report. As I understand it, the ombudsman will report to the ministers and to Parliament, but I have seen nothing in the bill that indicates what Parliament is supposed to do with the report, although I may have missed something. As Trish Godman and others have said, our committees are heavily employed at the moment and the ombudsman's reports may languish somewhere and not be given proper attention. Proper arrangements have to be made in the Parliament to ensure that, if the ombudsman's report criticises an organisation, something is done about it. In the past, there have been examples of people just shrugging off the ombudsman's report.
The bill is a serious attempt to improve the situation and I welcome it, but it, too, could be improved. The ombudsman should have as wide a scope and as few forbidden territories as possible and he or she should have strong powers to straighten out people who are not doing things right. There must be a wide interpretation of maladministration, as the boundary between a case of maladministration and a bad decision is difficult to discern. Some bad decisions are based on a serious bias rather than on an error of judgment and I think that the ombudsman should be able to examine such cases.
I support the bill and hope that the committee will improve it in its next stage.
The Scottish Conservatives welcome the bill for the reasons that Keith Harding set out. The bill is not particularly controversial. I have a few brief points to make but, as I think we have had a good thrash at the subject already, I signal to those who are still to speak that it is unlikely that I will take up my allotted time. I agree with the serious point that Keith Harding made about timing. It seems odd that we are spending most of this morning on this rather uncontroversial stage 1 debate and that we spent an hour and a half yesterday debating the Fur Farming (Prohibition) (Scotland) Bill when we could be spending our time debating rather more important topics.
What issues would the member like to debate in the chamber?
We could talk about the state of the national health service and the fall in the number of nurses in Scotland that was announced last week. We could talk about the state of the roads as a result of lack of investment. We could discuss all sorts of Executive failures, but the Executive does not want to bring those subjects to the chamber.
However, let us talk about the matter in hand. Before I came to the Scottish Parliament, I was a lawyer in private practice and I had some experience of advising clients and taking cases to the local government ombudsman. I believe that the system, though not without faults, works well. What is frustrating is the time that it takes to investigate matters, particularly where delays are caused by the time that it takes public authorities to reply to the ombudsman's inquiries. As Mary Scanlon said, although it is all very well to say that the ombudsman has got the time that it takes to get a determination down to 42 weeks—and those of us who are used to dealing with public agencies might regard that as a move in the right direction—for members of the public who are faced with a wait of 42 weeks, that seems a long time. However, I suspect that that is a matter of good practice rather than a matter for legislation.
We generally welcome the principle of putting various departments into one department and we hope that there might be some economies of scale—Scottish Conservatives are always on the side of the taxpayer.
We welcome the fact that the public will be able to complain directly to the ombudsman in relation to what were the powers of the Scottish parliamentary commissioner for administration. Not all citizens want to have to go through an MSP. That might also have a marginally beneficial effect on our work load, although I doubt that the public will have much sympathy with us on that score.
The ombudsman should be a one-stop shop. The last thing that a member of the public who is complaining about a public body wants is for the situation to be made worse as they are passed from pillar to post. The Government and the various public agencies need to be more responsive in dealing with public complaints.
I congratulate the Executive on its decision to retain the good old title "ombudsman" rather than going down the road of political correctness by trying to find some title that is not gender specific. That is a marvellous development.
I do not wish to take up any more time so I will simply say that the Scottish Conservatives support the general principles of the bill.
I was caught short by Murdo Fraser's brevity.
On this occasion, I have a certain sympathy with the decision to debate the matter for only so long because there is a broad general agreement about it. I am tempted to say that I more or less agree with everything that everyone has said and sit down. However, I want some points to be clarified.
We have all said how wonderful it is that the ombudsman service will be a one-stop shop. However, there are certain exceptions. Tricia Marwick mentioned the water boards, Mary Scanlon mentioned social work complaints and, in committee, Iain Smith talked about prison complaints. The ombudsman service will not be a one-stop shop for everybody.
Before anyone jumps up to intervene, I am saying not that the Executive has got it wrong, but that we must be careful. When we publicise the ombudsman—as is necessary—we must not raise false expectations. If we are not careful, people might believe that, no matter what their complaint about any element of the public service, it will be solved by going to the one-stop shop. We need to exercise caution about how we frame the advertising and the publicity.
I am pleased by the independence of the office, as that is crucial. I know that the ombudsman is to be appointed by the Parliament, but I would like the minister to state how he envisages that appointment taking place. Will there be a vote in the chamber? Will the parties co-operate through a body such as the Parliamentary Bureau? There should be no perception that there has been any political interference in the appointment of the ombudsman.
The definition of maladministration was mentioned. I know that the bill will not contain such a definition. The matter relates to discretion and informal resolution, which has been mentioned by many people. The only experience that I have of dealing with an ombudsman—I hasten to add that I was not being investigated at the time—was when I dealt with the housing association ombudsman. One of the great strengths of that office was the informal resolution mechanism. It would be a great loss if the new ombudsman did not have a similar element of discretion. If a member of the public thinks that as soon as they pick up a phone to make a complaint a formal investigation will start up, they might be deterred by that formality. Sometimes, informal resolution can work much better. I noticed that the minister said that, following the recommendation of the Local Government Committee, he would consider that matter again. I urge him to do so carefully.
Keith Harding talked about there being no specialised deputies. That point has worried me since it was raised at a Local Government Committee meeting that I attended. I have since read about it in the Local Government Committee report and I am still open-minded about the matter. I sympathise with Janis Hughes and I understand Trish Godman's point about the possibility of ending up with a situation similar to that which exists at the moment—a fractured service in an umbrella organisation. I ask the Local Government Committee to consider the issue again during stage 2.
Consistency of powers is important. It is confusing that one element of the ombudsman service should have greater powers than other elements in relation to maladministration. I do not accept that that greater power should be taken away from housing associations because it has been used only once. As Iain Smith said, that is not a valid reason.
Johann Lamont touched on an important point when she said that the least advantaged people in society are the least likely to get satisfaction from a public agency. Before the Local Government Committee's report was published, I put a query to the Scottish Parliament information centre about that. I was pleased by the clarification in the bill that a third party can be authorised to complain on behalf of someone. That is crucial.
My query was about whether voluntary organisations could complain to the new ombudsman. The bill shows that voluntary organisations will be able to complain on their own behalf and on behalf of an individual. Voluntary organisations will be able to use that role well, because they tend to have good relationships with people in their communities. Donald Gorrie talked about communities. Voluntary organisations are well placed and people have confidence in them to take up complaints. Their being able to do that on behalf of individuals is an important step forward.
I reaffirm the SNP's support for the bill. I apologise for my colleague Tricia Marwick's not being present—she is unwell. I look forward with great confidence to the Local Government Committee's detailed investigation of the bill at stage 2. I thank the minister for his willingness to consider amendments.
Tricia Marwick had the courtesy to send us a note to explain why she was leaving the debate. I am sorry that she is unwell.
I welcome the all-party support for the bill's general principles. I thank the Local Government Committee for its work so far. It will continue to scrutinise the bill at stage 2 and pursue the points that have been raised.
Members welcomed the one-stop shop approach that has been proposed. Jackie Baillie was right to say that that is part of a process of modernising the delivery of public services and making it easier for the consumer to access a proper complaints procedure.
As Johann Lamont said, although the new ombudsman is a one-stop shop, it is also a last-resort shop. I hope that the public services—the health service, local government, non-departmental public bodies and others—have proper procedures, not only for scrutinising complaints, but for using consumer feedback about the way in which they deliver their services in order to improve those services constantly. The theme of constantly improving public services runs through all the Executive's work. The system should not leave people to the last resort of approaching an ombudsman. We hope that most issues will be resolved well before that.
I welcomed the Local Government Committee's support for the Executive's view on deploying the deputy ombudsmen and on the bill's not tying them down to a set of specialisms. That is not to say that expertise should not develop or that people should not take a particular interest in some matters. Janis Hughes talked about that. The position in the bill is not rigid. Several members suggested that we have adopted the correct approach.
Trish Godman asked about and supported the new ombudsman's ability to consider requests from organisations for it to investigate. She cited the possibility of the complete failure of a public service and asked how that would be handled and how parliamentary committees would be involved. Such a situation would still relate to maladministration, which falls within the ombudsman's powers. Maladministration alone might not cause the complete breakdown of a service. If it did, the ombudsman could consider that, but it is clear that that would never fetter parliamentary committees. In the main, parliamentary committees would look for other failures in an organisation—such as a non-departmental public body—that met the conditions that Trish Godman described.
Members supported the extension of powers to examine the management and organisation of schools, but not professional judgments in schools. In part, that highlights some of the difficulties to which Sylvia Jackson alluded. If we extended the ombudsman's remit to professional judgment, it would run smack bang into difficulties concerning teachers' day-by-day work, head teachers' management of schools and decisions about learning for pupils. Those would be compromised. We have found the right balance, but I will shortly go into questions of professional judgment in more depth.
Linda Fabiani asked about the appointments process. I welcome the chamber's welcome for ensuring that the post is independent. It is for the Parliament to decide how to do that. A precedent was set by how the Parliament handled the Auditor General's appointment, but the freedom of information commissioner and the public appointments commissioner will also be subject to parliamentary scrutiny on the way to being appointed by the Queen, so the Parliament will have to consider them. That is a matter for Parliament, not for the Executive.
Despite all the welcomes, members expressed some concerns, which I will deal with as fully as I can. Members asked whether the water industry falls within the purview of the ombudsman's office. The water industry will have its own commissioner, who will have a much wider range of functions than just considering complaints, so that commissioner will fall within the purview of the ombudsman's office. If people have concerns about maladministration in the office of the water commissioner, there will be recourse to the public sector ombudsman.
Members asked about the Subordinate Legislation Committee's recommendations. As Andy Kerr said, we will lodge an amendment at stage 2 to deal with the matters that that committee raised about separating organisations' public duties, which would be subject to the ombudsman's scrutiny, from their private operations, which would not be.
Mary Scanlon asked about the Scottish Commission for the Regulation of Care and the Scottish Social Services Council. We believe that they will fall within the scope of the ombudsman's remit, but they will have internal procedures that will have to be exhausted first. After that, there will be recourse to the ombudsman. However, we will check that position and keep it under close scrutiny as the bill progresses through Parliament.
Mary Scanlon also asked about the time that an ombudsman takes to complete a report. Although we welcome the improvement in the time taken, we agree that that time scale should be constantly borne down on and made more effective in the interests of the consumer.
Tricia Marwick and Trish Godman asked about the Transfer of Undertakings (Protection of Employment) Regulations. The bill is designed to give trade unions and staff flexibility on transfer to negotiate the best terms that they can. Different pension schemes operate, but taken as a whole we do not expect employees to be worse off. We do not expect anyone to be disadvantaged and we want to ensure that that is the case. However, we must leave flexibility for staff to negotiate. That may be a levelling up of workers' rights, rather than a levelling down. If the bill were worded differently, it might even prevent such flexibility. Our intentions are honourable. We want to ensure that staff do not transfer at a disadvantage.
Does the minister have details on the number of posts in the new office compared with the number of posts in the existing services? I am not asking about people who move to the new office and take voluntary redundancy, for example, and whose post disappears. My question is about posts rather than people.
That question concerns detailed operational matters that we have not considered yet. Given that the combined offices will have no less work than they do now, I suspect that the scope for significant change will be limited. We will have to leave that to the new organisation, the existing organisations, their staff and the unions to consider.
Almost every member who spoke was concerned that the bill might not give the new ombudsman an explicit power to resolve matters by an informal process, which is a feature of the current system. We have examined the issue carefully. Members will be aware that the informal processes are voluntary arrangements between ombudsmen and all the parties concerned with a complaint. People must volunteer to accept such an arrangement—nobody can be forced into it.
The bill does not say what the new ombudsman can and cannot do with regard to informal arrangements. That leaves the way clear for the ombudsman to make such voluntary arrangements. If we include a tighter definition of the ombudsman's powers, we would have to describe in detail the circumstances in which informal resolution arrangements came into play. The danger is that that would reduce the flexibility that we want to give the ombudsman and take us into difficult drafting and legal territory.
The bill is written to permit a function other than investigation to be used to resolve a complaint. The bill refers to the ombudsman's being able to consider a complaint without necessarily incurring an investigation at each stage. We thought carefully about that and we have also listened to the concerns expressed by members today. We will revisit the matter and see whether we can find a way to give the assurance that members seek without compromising the flexibility that we seek for the ombudsman and without having to define closely the circumstances in which he can act. We have no reason to believe that the bill does not give suitable provision, but we will revisit the matter in the light of members' comments and will keep members advised of the situation as the bill moves to stage 2.
The next major question is whether we should extend the ombudsman's remit on questions of professional judgment beyond the health service, where currently the ombudsman may consider clinical judgments. The bill maintains the status quo as far as the health service is concerned; it does not seek to change the provisions that have operated for a long time and that have worked perfectly satisfactorily. For the purposes of the bill, clinical and professional judgments are forms of discretionary decision. Such decisions, for the reasons that have been outlined, lie outwith the powers of the ombudsman, who is prevented from investigating them. The exception is clinical judgment. That reflects the unique relationship between health care professionals and their patients.
Elsewhere in the public sector, professional judgments often inform the choices and decisions of elected members and are therefore subject to a democratic test and are democratically accountable. No official should be able to cut across those final discretionary decisions made by members. Mary Scanlon made an interesting point about the way in which care services are changing and raised the question whether there is a danger that social workers may be making similar judgments to those made by care professionals in the health service while being subject to different rules.
I understand the point, but there is a critical difference. People working in local government service and those who work on their behalf are working with authority devolved from the local council, which is exercising discretion in how to implement its decisions. It is not clear that we can interrupt that relationship without giving rise to confusion and losing the current clarity of the critical distinction between the clinical judgments that a doctor or nurse makes and the devolved decisions made in a local authority set-up. We will have a further think about that in the light of the comments that have been made. If we clarify that situation further, we might be entering a legal minefield, and we are not convinced that we need to do that. We will reflect on what has been said today and will think further about what the possibilities are.
I was asked about the Scottish Legal Aid Board and the need to ensure that those people who access it do not have their confidentiality broken as a result of the ombudsman's intervention. The issue concerns the requirement under the bill for the Scottish Legal Aid Board to disclose information to the ombudsman. The bill seeks to close a loophole for the only part of the public sector in which one exists. All the other parts must comply with the obligation. The Scottish Legal Aid Board is not unique in that respect.
However, the ombudsman is absolutely bound by confidentiality and could not disclose any individual's name. In fact, the ombudsman must not mention the name of an individual in his or her report. The Legal Aid Board will see drafts of any report about such matters and would have the opportunity to correct any matters of fact or to influence the ombudsman's report to satisfy itself that confidentiality will not be broken. We are satisfied that we can meet the board's requirements in that regard.
We have consulted the Legal Aid Board and have given it the reassurances that, we hope, will satisfy it. We know that its members will consider the matter further, and, if it draws our attention to something fundamental that we have missed, we are prepared to reconsider the matter. At the moment, we are not aware of having missed anything that is fundamental to how we want to proceed. Andy Kerr has written to the Local Government Committee, seeking to reassure its members about those matters.
This has been a helpful debate, and we want to take forward and reflect further on a number of issues that have been raised during it. We will keep in close touch with the committee through the normal channels as we proceed to stage 2. As Andy Kerr said at the beginning of the debate, we have a responsibility to provide first-class public services for the people of Scotland and to ensure that they have the right to question any failure in the delivery of those services. The Scottish Public Sector Ombudsman Bill will make a significant contribution to meeting that objective, bringing greater access, clarity and accountability to the system. I commend the bill to Parliament.