Hansard

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.