Hansard

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.