Committee
Health and Community Care Committee, 05 Dec 2001
05 Dec 2001 · S1 · Health and Community Care Committee
Item of business
Scottish Public Sector Ombudsman Bill: Stage 1
Mr Buckley:
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I agree that findings, conclusions and recommendations of the ombudsman should not be legally binding. I have two main reasons for saying that. First, if they were, one would have to consider article 6 of the European convention on human rights, because the ombudsman would be determining rights and obligations. That would lead to pressure to adopt a more court-like procedure, which would be a great pity.Secondly, I am always conscious that I, as an ombudsman, am an unelected office holder. I have no democratic mandate and it is right that decisions on important policy matters, or decisions that involve substantial public expenditure, should be decided within the democratic process, or—if they follow from a court action—in accordance with the law. I do not think that it is right that ombudsmen should be able to dictate to the elected representatives of the people or to those who are accountable to those representatives.Clearly, I would be unhappy if recommendations were frequently ignored. An ombudsman's recommendations should not be binding in law, but they should be taken seriously. If they are not accepted, whoever does not accept them should be required to justify their refusal to do so; that can be done through the democratic process.
In the same item of business
The Deputy Convener:
Lab
This morning we are taking evidence at stage 1 of the Scottish Public Sector Ombudsman Bill from Mr Michael Buckley, who is the Scottish parliamentary and he...
Mr Michael Buckley (Scottish Parliamentary and Health Service Ombudsman):
I am very happy to do so if that would be of convenience to the committee.I thank you for the opportunity to give evidence to the Health and Community Care C...
The Deputy Convener:
Lab
Thank you. Members will now put questions to you. I start by asking whether sufficient consultation has taken place about the one-stop-shop element of the bill?
Mr Buckley:
As far as I am concerned, sufficient consultation has taken place. The Executive consulted my office and me and we had the chance to input significantly. We ...
The Deputy Convener:
Lab
Have the views that were expressed in the consultation process been taken into account in the bill?
Mr Buckley:
I think that they have been. As I said, I have some reservations, in particular about the need to provide for a flexible method of working. We should not tie...
The Deputy Convener:
Lab
Will pulling together the various ombudsmen produce a lack of clarity? It might be that those who are drafting the bill are looking to one particular area an...
Mr Buckley:
There is probably a temptation to take the existing legislation and try to put it all together. The bill is successful in one of its main aims, which is to r...
The Deputy Convener:
Lab
During the consultation process, did you make the point about starting with a clean sheet of paper? If so, does the bill as drafted contain significant error...
Mr Buckley:
The bill undoubtedly provides the basis for a better public sector complaints service. I stress that, in broad terms, I welcome the bill. However, I repeat t...
Mr John McAllion (Dundee East) (Lab):
Lab
I want to turn to the remit of the ombudsman. The proposed remit excludes some of the advisory non-departmental public bodies. Are you satisfied with the pro...
Mr Buckley:
The remit reflects the existing remits of all the ombudsmen, with a few additions. The remit is a matter for the Executive to propose and the Parliament to d...
Mr McAllion:
Lab
In considering the remit, Parliament might find your views helpful. Should the police be included?
Mr Buckley:
I know from colleagues from overseas that the police can be included, so it is not impossible. As to whether it should be done, I really do not think that it...
Mr McAllion:
Lab
I want to turn to the powers of enforcement over any authority that refuses to follow a recommendation or that fails to remedy an injustice. The policy memor...
Mr Buckley:
I agree that findings, conclusions and recommendations of the ombudsman should not be legally binding. I have two main reasons for saying that. First, if the...
Mr McAllion:
Lab
I understand your point that, unlike you, ministers are elected and have democratic authority, but what happens if ministers ignore the fact that various aut...
Mr Buckley:
There is. It would certainly be possible to have an understanding that, if ministers in the Executive rejected findings and recommendations of the ombudsman,...
Mr McAllion:
Lab
I am sure that the whips would ensure that the Executive got the necessary support.
Mr Buckley:
Yes, but I am talking about the constitutional theory.
Mr McAllion:
Lab
On a number of occasions, you have spoken about artificial restrictions that, under the present system, interfere with people's right to make a complaint aga...
Mr Buckley:
The example that I use is deliberately drawn from the health sphere, because that is the one with which I am most familiar. We know of a case in which there ...
Mr McAllion:
Lab
The bill seeks to ensure improved consultation between the ombudsman and other statutory ombudsmen and commissioners. Will you explain how that will work in ...
Mr Buckley:
To an extent, the bill aims to preserve the current position rather than to change it. There exists the potential for frequent complaints about freedom of in...
Mary Scanlon (Highlands and Islands) (Con):
Con
Two of the three concerns in your memorandum are about the protection of your staff, and who determines the ombudsman's pay, allowances and pension. The thir...
Mr Buckley:
I see three problems, but I do not want to suggest that my unhappiness extends to most of the bill. On the contrary; in general terms, I support the bill.I h...
Mary Scanlon:
Con
I return to the important point that you made about the bill's proposal that the Parliamentary corporation should determine the ombudsman's pay and allowance...
Mr Buckley:
It is possible that that impression will gain currency. I will put that more strongly. No one would dream of allowing the Executive to determine the pay and ...
Mary Scanlon:
Con
You have covered the staffing issues quite extensively. I pick up on John McAllion's question on the scrutiny of cross-cutting areas; for example community c...
Mr Buckley:
There are two points. The first is that, because the new ombudsman will be able to examine complaints across the public sector, in particular complaints abou...