THURSDAY 31 JANUARY 2002
Tony Wright, in the Chair
SIR MICHAEL BUCKLEY, Parliamentary Ombudsman, in attendance.
Memorandum by the Parliamentary Secretary to the Cabinet Office
Examination of Witness
MR CHRISTOPHER LESLIE, Member of Parliament, Parliamentary Secretary, Cabinet Office, examined.
(Mr Leslie) I think you have a copy of the memorandum I sent in last week. That essentially explains broadly the Government's position on our intention to reform the Ombudsman. The only thing that does need saying is on the bigger picture issue which I think always needs reiterating in these cases, particularly when you go into some of the detail: that is, the general state of the public services today requires attention to the need to have the facility to address the grievances of individuals if they have a complaint about administrative failings. That is a crucial part of public service reform in general. The more I learn about the history of the Ombudsman, the more I see about the work of the Ombudsman in general, the more I am impressed and conscious of the fact that it really is a very important part of our constitution. I am quite enthusiastic about trying to see if we can make some progress on reforms in general.
(Mr Leslie) Looking back at the development of the ombudsman in the Sixties, and I am not, as I say, a complete expert on that, there was quite a large span of time between the Wyatt Report and then the White Paper and the eventual development of legislation. These issues, when they are so strategic, do take some time to develop. Certainly the Collcutt Review, which was very comprehensive and a great piece of work - and I would like to put on record my thanks to all those involved in writing that - was very significant. It proposed a number of major changes and, of course, when looking at how we would perhaps implement some of those, maybe we considered whether there was regulatory reform or other non-primary legislative means. We broadly concluded that we do need primary legislation in order to make some of these significant changes. Making sure that we try our best to get our detailed plans lined up and ready to go for legislation I think is now the task at hand. I do not have any particular desire to wait around or delay things. I want to see if we can take steps forward fairly quickly. As ever, we need to make sure we get time when the parliamentary timetable allows. That is really, I suspect, where we are at the present.
(Mr Leslie) Also, I think we are not quite at the stage where we have the draft Bill to hand. I think we want to use any time at present, when we might be looking to get a legislative slot, productively, so that we can finesse some of those particular details. For example, there are some big questions about the jurisdiction of the ombudsman. There are obviously developments going on elsewhere. The Scottish Parliament are considering their own issues in respect of devolution. I think we are just tyring to make sure that we get the right arrangements for the way forward.
(Mr Leslie) There are still a few issues, I think, that do need to be resolved. The Collcutt Review was, I think, broadly the foundation on which we want the Bill but there is still a number of issues that I would like to have set in my mind before we can even really get to the stage of having an actual draft Bill, for example, in place. But I have no problems at all in working, particularly with this Committee, in making sure that the legislation is as refined as possible. In fact, I think this is one of those issues where we do particularly need a consensus if we are going to move forward on this. It is not a particularly partisan matter at all. I think we can look at trying to do something on that issue.
(Mr Leslie) If that were possible, I would like to see it, as I say, as soon as I can. The difficulty comes in making sure that we get the resources as well as the policy matters straightened up so that we can actually have drafting taking place. Once that is done, then of course we would like to work with the Committee to make sure that we can move forward fairly speedily.
(Mr Leslie) We are committed to civil service reform in general but to the Civil Service Act in particular. We do intend to look to wider consultations as soon as possible, those requiring publication as a consultation as well as decisions that have not yet been made by Ministers. I am hoping, though, to have an input into that fairly soon. As I say, we do intend to try and make progress on that. In a similar way to the ombudsman, these are matters where we have to make sure we get our parliamentary priorities right and look to make progress as soon as the opportunities allow. I think in general we will want to see progress fairly soon on the Civil Service Bill. It is not really possible to be enormously more precise than that because of the constraints of drafting and decisions, as well as parliamentary time.
(Mr Leslie) I think that certainly, as the Parliamentary Secretary of the Cabinet Office, I have a particular interest in the day-to-day running of the civil service. The Prime Minister also, as a Minister for the civil service, is involved here as well. We want to look at both the broader issues that might be involved in a Bill as well as some of the detailed issues. We are not in a position to publish the consultation at present. We will try and do so when we have resolved our views on these matters.
(Mr Leslie) I do not think so; it is not particularly difficult. There are some big "in principle" issues at stake here, as well as the need to try and make sure we do not get into a partisan tit-for-tat on something that really is as crucial as the independence of the civil service. I think consultation would certainly be desirable in so far as again we can work towards a consensus.
(Mr Leslie) I do not think there is difficulty. There are quite large questions about how you would frame that in statute law in our particular constitutional system and questions about the independence of the civil service. There is a number of other issues as well. We will try our best to make progress. I take the hint from the Committee that this is an issue, even though that is not the topic of the discussion today. We want to move on fairly quickly.
(Mr Leslie) I accept that. We do need to try and make progress. These things are not simple matters. They are large-scale changes and we are committing to putting into statute the independence of the civil service. However, we want to make sure that not just the Ministers but also the service itself have in mind the nature of how such legislation might be framed as well. I have no problem with trying to move towards a consultation as soon as we are able.
(Mr Leslie) There are a number of points there. First of all, I am not sure that Elizabeth France's reasons for moving on or whatever are necessarily related to the points you have raised. In general, I think that the progress on freedom of influence and the Freedom of Information Act, which is a radical piece of legislation, is a step forward that is unprecedented in British constitutional history and we are making good progress. Certainly I hear your argument about the right of access schemes, but I think we wanted to make sure that the Government was ready when we had the implementation so that we did it effectively and we did not do it in a piecemeal or haphazard way. I think that was the motivation behind the January 2005 date, if I am right. The publication schemes are to be rolled out, I think from this year. Those will be significant pieces of work put voluntarily with much larger volumes of information into the public arena and which, as I say, are very significant steps forward. These are actually matters normally for the Lord Chancellor's Department and the implementation does not fall into my portfolio as Parliamentary Secretary of the Cabinet Office, but certainly I accept that the civil service in general is affected.
Chairman: I accept what you say. I was just taking the chance to have a go at you really.
(Mr Leslie) No governments or such a large organisation, large bureaucracies in general, whether they are public or private sector, are perfect. The whole point of having an ombudsman is to reflect the fact that there will, from time to time, be administrative failings that affect individuals who need assistance in seeking redress for their grievances. I think the development of the system that we have, whereby we have an ombudsman who can assist individuals as an advocate to seek redress from the executive for administrative failings, is a powerful one and certainly Parliament has a role in that as well as a check in keeping the executive to account. We can only try our best and put in efforts as far as possible to become much more public service oriented in our approach and to put the customer first as far as possible, but I am not here to say that everything is perfect. We do try our best to be as responsive and as helpful as we can, but there are always constraints within large institutional operations.
(Mr Leslie) I am not aware of any particular trend or internal view that we should be somehow more obstructive. That is certainly not the view of Ministers. We want to be working so that we are much more responsive to consumers of public services. If you have specific examples, maybe I can take those away.
(Mr Leslie) That was a particularly exceptional issue, as I recall, and related I think to a complaint from a Conservative Member of Parliament about the number of times Ministers had made requests to Permanent Secretaries on disclosure of interest internally. The Government took a view that these were matters that should be exempt because of the need for internal confidence and trust within the civil service, but subsequently we have made, I think, great improvements to the ministerial code which have overcome most of those problems in that particular case. I do not think, as far as I am concerned, that was a particular example of a citizen or individual seeking redress for an administrative grievance in terms of a public service failing. I think that was perhaps more of a politically motivated attempt with a wider agenda, which we could talk about more if you wish.
(Mr Leslie) Certainly Sir Michael has indicated his desire to step down, I think from this summer, from the vast array of posts that he holds at present, but I do not think that the Government would see Wales without an Ombudsman facility. Certainly we would want to put in hand steps to make sure that we have a replacement in post. The devolution questions I think are important.
(Mr Leslie) I imagine that there are; I would hope so too, but I have not personally been party to those.
(Mr Leslie) If you would like, I shall certainly do that.
Anthony D Wright
(Mr Leslie) I think these are matters where we have tried to work in parallel with Sir Michael in making sure - and I do not want to put words into his mouth - to my understanding that we have a smooth transition to any new and unified reformed body and that any successors have the chance to undertake most of that work towards the reformed organisations. I think that is a perfectly laudable approach for Sir Michael to take. As I say, I do not have any particular desire to delay things any more. It is just a case that we have got to work through all those traditional barriers to legislative reform that have existed for very many centuries.
(Mr Leslie) The offices of the Parliamentary Commissioner for Administration's, the Health Service Commissioner and the Commissioner for Local Administration are obviously held by the same individual at present. There is scope for them to come together in a managerial way by unifying functions and co-location. For example, I think they are moving together so that there are no physical barriers between interchange. The difficulty is that the legislation really is quite prescriptive about the jurisdiction that each of the ombudsmen have and it does not really reflect the modern-day approach of "joined-up government" - a phrase I had to get in at some point today. It is very relevant in terms of what a reformed ombudsman and unified body need to reflect so that there are not those barriers to solving cases for individuals. For example, a Social Services complaint does not have to be partially Local Government and partially Health Service. There are some real difficulties I think that are driving forward reform but in the meantime there are ways in which the day-to-day workings of the ombudsman can be improved. I think primary legislation is the real step that now needs to be taken.
(Mr Leslie) I have thought about this a great deal because clearly Parliament is always undermined and the role of Members of Parliament is extremely important in checking the executive for administrative and not just policy criticisms. I think the time has now come to have direct access for individuals to the ombudsman and the filter of having to require Members of Parliament sign off is anachronistic and should be removed. As I say, it will require primary legislation in order to take that away. If it were possible to do it by other means, then I would certainly be willing to look at it. My advice is that we need primary legislation to do that. That is why I am quite keen to make progress.
(Mr Leslie) I have. I officially think that the aim of reform should not be too prescriptive at a government level in terms of the workings of a new unified ombudsman body. I think if we have too many barriers between each different post, then that can be a bit complicated. My own view is that we do need to see rationalisation of quite a proliferation of ombudsmen in the public sector and that there are efficiency savings as well as benefits to be brought by working towards a more unified approach. Whether you take the view, as seems to be developing elsewhere, that perhaps a single ombudsman is the best approach, or whether you have a more federal or collegiative approach in terms of a commission ombudsman, which was broadly the thrust of the Collcutt Review, is a matter over which I certainly welcome advice and consideration. What I think is important is that we bear in mind when we are looking at new appointments over the short term that we keep our eye on the ball as to what the reform goals are in the long run, which is for those networks and bridges between all the existing ombudsmen to be enhanced rather than driven apart.
(Mr Leslie) I am still considering that particular matter because I think on the one hand there is a need for greater expertise perhaps in the Health Service field, for example clinical knowledge and awareness, and, on the other hand, I am also conscious that we do want to see a rationalisation of the ombudsman system. I think there are clearly arguments on both sides about whether you should have an individual as a Health Service Ombudsman separate from an individual as Parliamentary Ombudsman, whether there are advantages or disadvantages in having that in the same person or not. I have not formed my conclusion. I entirely accept that that conclusion will have to be made very shortly.
(Mr Leslie) It is clearly a decision I will have to make and I will make it when I have taken advice on the matter.
(Mr Leslie) I have not come across very may complaints that there are particular branches of public service delivery entirely outwith a means of appealing or complaining to an authority that has the ability to seek redress for those complaints. I am not entirely familiar with this sort of situation in universities or higher education, but I will try and look more closely at it now that you have raised it with me.
(Mr Leslie) I am sure there are cases, as with failings in paper and pen exercises, where there are problems with electronic record-keeping. I think the Ombudsman does need to have the ability to keep pace with those changes. There are many ways this can be done, and this is one of those issues that was raised earlier, things that do not require primary legislation to keep up this management question. The Ombudsman has the capability to look at keeping pace with e-government developments and the electronic means as well to look at records, and of course the data protection regulations should assist rather than inhibit that.
(Mr Leslie) It is very easy to -
(Mr Leslie) Believe you me, I am very keen to make progress as swiftly as I can. Genuinely, I am quite enthusiastic about reform. I do feel that there is a very strong case. The Collcutt Review was an excellent piece of work which to my mind proved the need for legislation but, as you will know, these issues cannot be done like switching on a light. They do require refinement in the detail. There are particular issues to do with jurisdiction or powers that I think do require detailed attention. They cannot be solved instantly. I do not have a particular Machiavellian reason to try and compete, if that is what you are suggesting.
(Mr Leslie) No, not at all. If you think that the only mechanism for solving an individual's case is by producing a formal report that has to be set in stone and in legislation and then published, then perhaps you deal with your constituents in a different way than I do. I think the modern ability to pick up a telephone and knock heads together is often as effective as writing down a formal report. Some of those legislative constraints on the ombudsman prevent that kind of work taking place. Yes, we should have an approach for reporting, and if necessary exceptional reporting, to Parliament, and placing things in annual reports as well. If it is a day--to-day case that can be solved with a few conversations and getting individuals together from government, then surely that is the common sense approach we should all take?
(Mr Leslie) I think the ombudsman is actually a pretty successful organisation at present. There are improvement that can be made and that is why we are trying to look to knock down a lot of those barriers that exist at present within such a large institution as central government. I do not think that it is something we should be embarrassed or shy about. We should be quite pleased and proud that we are trying to take steps forward in this particular area.
(Mr Leslie) I am sure you have read the Collcutt Review and had a look at the memorandum that I sent out for you. These are developments where we have not been shy in coming forward and publishing what our intentions are. Those are plain for everybody to see. I would ask that we try to work in consensus and bypass things in a tripartisan way, that we get together and figure out what those possible areas of disagreement might be in a parliamentary sense and overcome them. That is a key task for this particular Select Committee to do. I want to work with you in order to make sure we can make progress very quickly.
Mr Liddell-Grainger: I have a feeling we are going to be talking again.
(Mr Leslie) No, I do not think I mentioned the Home Office specifically. I am not quite sure what your point is.
(Mr Leslie) Which case do you have in mind?
(Mr Leslie) I do not think there was a lack of response from the Government on our position. I think it was a disagreement about the outcome that we wanted to see. That is quite different from responding when the Ombudsman puts a particular point of view. In that particular case, it was a question of a request by a Member of Parliament to find out how many times Ministers had spoken to their Permanent Secretaries. The Government takes the view that internal decision-making is best served if we have trust and confidence and where officials and their interplay with Ministers is not going to be misinterpreted by constant disclosure. This is the nature of British government as we have it, and that was the decision taken, and we disagreed with the Ombudsman. That does not mean that we were not slow in putting our disagreement in the first place.
(Mr Leslie) Certainly not. I think that was a particularly exceptional case when you look at the thousands of other individual ordinary grievances that members of the public bring forward and are investigated by the Ombudsman entirely disconnected from that day-do-day, bread-and-butter work that the Ombudsmen get on with in a very successful way.
(Mr Leslie) We have had a few barriers to overcome, obstacles in the way of disclosing. Some of those have been related to various pieces of legislation, domestic and European, but I know that the Government certainly does intend to cooperate fully with the Ombudsman in his investigation of this, and we are trying to resolve those problems as we speak.
(Mr Leslie) That is my understanding certainly of the Treasury's position and of the Financial Services Authority as well, yes.
(Mr Leslie) As you know, the Queen's Speech takes place at the beginning of every parliamentary session. Decisions about which pieces of legislation are announced are taken before then. There are a lot of competing demands, not just within one department or organisation such as the Cabinet Office. As you know, we have competing political priorities across the whole range of health, education, transport and so on. Those are judgments that we have to make, because we only have a finite ability to secure parliamentary time.
(Mr Leslie) I do not think they are related to each other in terms of making sure that one goes out before the other. When each is separately ready to publish, we will certainly try and do so. I do not have any particular reason to delay them.
(Mr Leslie) On the Ombudsman, I do not want to get into the business of producing more papers for prolonged consultation. That might be an obstacle to swifter reform. We gave a commitment back in July that when we had detailed proposals we would try and consult. Whilst it has got to be genuine, I want it pretty rapid, and I do not want that to be an obstacle to the drafting of the legislative process. So I want to make very swift progress there, but similarly, on civil service reform too, I think there are questions in that particular field which are quite separate from Ombudsman policy. That is my view of it.
(Mr Leslie) No, I do not think that is fair. The Star Wars conspiracy theory of dark forces is one that is certainly attractive to certain elements in the media, but I honestly do not think that is the case. The nature of government is that sometimes we have the frustration of time and how much we can get into parliamentary timetables and so on, and we do need to make sure that we apply ourselves properly to developing our proposals quickly. The effort and intention is certainly there. It is the nature of government as far as I can see.
(Mr Leslie) No, I do not think that is fair.
(Mr Leslie) You asked me for a decision on whether we should have a unified and flexible reformed Ombudsman to reflect the modern use of public services. I will give you a decision: yes, we do want to see that. You want a decision on whether we should have direct access for members of the public, whether we should get rid of the MP filter; my decision is that yes, we should. But if you are looking for specific questions that affect jurisdiction perhaps, we have to talk with other departments, engage in dialogue with people. These things do not come responsibly always very quickly, but as I say, my broad intention is to make progress as swiftly as I possibly can. That is my genuine hope.
(Mr Leslie) Whilst we have not done specific studies, and I am not aware of any scientific conclusions that can be drawn, I think it probably is a combination of all those factors. There are more public services now than ever. There is more interplay between government and the individual. The citizen is these days more appraised of his rights to complain as well as feel he has power as a consumer, and chooses to exercise those. Why not? I think that is a perfectly reasonable way for the public to seek redress for any grievances that they may feel. Rather than just regard it as something that "they", ie the Government or higher establishment, are able to make decisions on and that is the end of the matter, I think it is perfectly reasonable that individuals have advocates they can have on their side to attend to some of those worries, frustrations and complaints. The Prime Minister, for example, talks of the four pillars of public service reform, and the first of those is higher standards of inspection and accountability. Having a reformed Ombudsman that reflects a modern public service is an essential component of that. That is why I really want to see us move forward, and I do not think we are being recalcitrant.
(Mr Leslie) An interesting examples was when the councillor filter, when councillors had to sign off when there were complaints about local government, was removed. There was immediately something like a 40 per cent increase in the workload of the Commissioner for Local Administration. If we change and have direct access for the public to the Parliamentary Commissioner, I suppose we need to prepare for a similar potential increase. However, I think there are also efficiency savings that can be gained by looking to rationalise some of the separate administrative functions within the separate Ombudsmen at present, and I am quite keen to make sure that the quid pro quo for reform is that we also get the efficiency in the rationalisation process as well. I think that is important. The money, you will be pleased to hear, does not come from government; parliament has a vote separately on the Parliamentary Commissioner's vote, although I suspect the Treasury have their opinion on it. But we will have to keep a very close eye on the question of resources.
(Mr Leslie) I do not know that figure, but I suspect there are some, and I know that myself. As all of us as MPs know, we have had cases that have gone on that have been particularly complex, and they can be very prolonged, and that is precisely the sort of issue we need to look at. If we can find a way of speeding up the adjudication process, we should look to do that. Sometimes the barriers are the MP filter, and getting back to the Member of Parliament. We are hoping removing that will speed things up in the adjudication process. There will also be other ways too. The conciliation/mediation approach will be quicker than formal reporting, but we have to make progress on that very quickly.
Chairman: On those wider issues of Ombudsmen, Ombudsmen resources and complaints, we shall explore those with the Ombudsman next time. Can I just give you the clinching reason why we need to sort out the MP filter? What the guidance says is that if your own Member of Parliament does not want to take up your complaint, you can direct your complaint through the Chairman of the Public Administration Select Committee, which means that I get every complaint in the land which has been turned down by an MP for whatever reasons knocking on my door. I am entitled to go and knock on Michael Buckley's door. I think it would be very good to get rid of all that.
(Mr Leslie) I have my own internal timetable, which is to be making progress as swiftly as I possibly can. It is simply that. I have my own timetable, which is to make progress fairly quickly, and I have tried to be as frank as I can with the Committee on that because it is my earnest intention to try and get on with these matters as quickly as possible. I would like to assure you that we will certainly have a Health Service Ombudsman and a Parliamentary Ombudsman. I do have to take in balance the question about the new appointment process, but those decisions will be made very quickly. What I think is important is to take note of the comments that I have made in t he memorandum, which do set out quite clearly my intentions in this area, but I will not want to waste any interim period before we get a legislative opportunity. I want to make sure that we do have an ongoing dialogue with this particular Committee. After all, my understanding of the formation of the genesis of the Public Administration Select Committee is that to mirror, to reflect the work of the Ombudsman is quite central to its foundation. I think this is a very fundamental piece of constitutional reform and we should not neglect it. More haste, less speed.
(Mr Leslie) I think it does need to be integral to the public service reform programme, and my intention is to make it so. You can write books currently on the complaints systems that exist in this country. Somebody once wrote one on that particular issue. What I want to do is to try and make sure that we have simple, clear lines of accountability, not just for policy issues that can come through parliament, but for those ordinary, day-to-day, administrative failings that will inevitably happen in our institutions.
(Mr Leslie) The Collcutt review suggests that we should be cautious about making decisions on jurisdiction before we get in place our plans for reform, although we do not have any plans at present to extend to parish councils, because I suspect they are regarded as having relatively few functions and the public can traditionally seek redress more directly at the annual meeting. I would not say that those areas are entirely closed off at present, and I certainly want to look at that issue, because I can see ostensibly it does look somewhat anomalous, but there are historical reasons for that.
(Mr Leslie) In so far as the actuality of the complaint goes, I would say that the Government did have a disagreement with the Ombudsman on this occasion. It is a very exceptional situation for a number of reasons, and it is not part of the mainstream day-to-day work of the Ombudsman. It is to do with the monitoring of the code of open government as I understand it, and the Government felt that, on balance, the need to preserve internal frank and confident discussions between senior officials and ministers, as well as protec the privacy and private lives of ministers, did require an exemption action in this particular case. You say what harm would it do to publish the numbers of conversations between permanent secretaries and ministers? One reason I suspect is that those are not always formally recorded consistently across government, because many conversations are informal, and to say for some reason that a certain number of ministers had these discussions but this was the record in another department could easily be misinterpreted and cause significant harm to the confidence and trust in relations between permanent secretaries and ministers. But I believe that this is an issue that has subsequently been superceded by the far wider reform and improvement in the ministerial code of conduct in July, which says now that all new ministers must put in writing to their permanent secretary and have a discussion with their permanent secretary about their financial and non-financial interests where they may be perceived to have a potential conflict with any of their duties, and that, I think, overcomes the substance of that particular complaint. But that was the reason for the disagreement with the Ombudsman, as I understand it.
(Mr Leslie) Ombudsman recommendations are, for good reason, non-binding anyway, and Ido not think even the Collcutt review suggested that that should changed, because ultimately ministers are held to account by parliament, and if parliament seeks to question a minister - and it can certainly do so - there are plenty of opportunities for that to take place. This was an exceptional case, and I do not believe it was particularly sinister in any way. It was for perfectly legitimate reasons, of not just privacy of individuals but also for preserving the internal frank, confident discussions that take place between senior officials and ministers, which have to have a level of internal protection, as I am sure you understand.
(Mr Leslie) The complaint was not framed in that form or through that particular piece of legislation. Parliament made its decision on that particular piece of legislation, but we are where we are. The disagreement did take place with the Ombudsman, but I think we have resolved it satisfactorily with a significant improvement and reform to the ministerial code of conduct.
(Mr Leslie) I think that is a perfectly reasonable assumption to take. I would not want to ever see a constraint on Members of Parliament seeking to get redress from ministers, whether it is for a policy reason or an administrative reason in parliament, and that is a right that all elected representatives have. I think though that there are perfectly sensible and effective internal complaints procedures that can be exercised, certainly within the Health Service, and if those are exhausted and the individual is not satisfied and the complainant is unhappy, then of course they have the right to take that to the Ombudsman. That is how it should be. That would be the thorough and proper way of making sure individual cases are scrutinised properly. But, as you know, politics tends to intervene in certain instances.
(Mr Leslie) Sir John Bourn, the Comptroller and Auditor General, precedes my involvement in parliament for quite some period, and whilst I used to be on the Public Accounts Committee, I was not familiar with the appointment process at that time. But I will certainly have a look at it. In so far as the appointment of a Parliamentary Commissioner for Administration, certainly, whilst it is a Crown appointment, the intention is to work very closely with this Committee, and you as Chair in particular, and try and consult at every stage as far as we can. That is my intention.
(Mr Leslie) Absolutely, certainly.
Chairman: We thank you, and I am sure we shall see you again and talk more about these things.