3. On 18 March 2004 the Government laid before Parliament a proposal for the Regulatory Reform (Local Commissioner for Wales) Order 2004 in the form of a draft of an order and an explanatory statement from the Wales Office.[1] The proposal has been prepared by the Welsh Assembly Government, which has arranged for the Wales Office to promote the proposal in Parliament.[2]

The policy objective: unified ombudsmen's services in Wales, England and Scotland

4. There are presently three public sector ombudsman posts in Wales with the remit of investigating maladministration in public bodies in Wales. They are the Welsh Administration Ombudsman ("the WAO"), the Health Service Commissioner for Wales ("the HSCW") and the Local Commissioner of the Commission for Local Administration in Wales ("the Local Commissioner", sometimes known as the Local Government Ombudsman).[3] At present the WAO is prevented from undertaking investigations as a Local Commissioner.

5. The policy objective behind the present proposal is to enable the same individual to hold each of the three posts. This is in line with the policy objective, expressed by both the Government and the Welsh Assembly Government, that the three ombudsmen's services should be brought together into a unified service led by a single individual. This step would require primary legislation.

6. Similar policy approaches have been taken in respect of ombudsmen's services in England and in Scotland, with different outcomes. The Collcutt Report on ombudsmen's services in England, prepared by the Cabinet Office in April 2000, recommended an integrated Commission incorporating the Parliamentary Commissioner for Administration, the Health Service Commissioner and the Commission for Local Administration, which would operate as a collegiate body, with each Ombudsman being able to investigate complaints against any of the public bodies within a broadly-defined jurisdiction. In July 2001 the Government announced, by means of a written answer, that it agreed with the review's recommendations and stated that detailed proposals would be published in due course, but in January 2002 it told the Public Administration Committee (PASC) that it would be undertaking further consultation.[4] The Government then indicated that primary legislation would be required to implement the Collcutt recommendations.

7. The Public Administration Committee recommended in March 2003 that a draft bill should be published to give effect to Collcutt. In its response to the Committee's report, the Government declined to give any commitment on a bill or draft bill, preferring instead to concentrate on how public sector ombudsmen could cooperate without the need for legislation. We are not aware of any subsequent Government commitment to the introduction of primary legislation.

8. The existing Ombudsmen's services in Scotland have already been merged into one office, the Scottish Public Services Ombudsman (SPSO). Professor Alice Brown took up her appointment as SPSO in September 2002 and began work on 23 October 2002 when the Scottish Public Services Ombudsman Act 2002 came into force.[5] She is supported by three deputies with experience in particular areas of public administration.[6]

Why a regulatory reform order?

9. The Government decided to press ahead with a regulatory reform order as an interim step in order to deal with the situation which was predicted to arise in Wales in 2003, when each of the offices was scheduled to fall vacant. It considered that there were potential difficulties in advertising three separate posts under existing arrangements, since each post "would demand only a very modest time commitment, with, on a pro-rata basis, an equally modest salary."[7] The Government was concerned that advertising each post separately on such terms "would not attract a candidate of the necessary calibre and would create adverse public perception of the importance and value government attaches to both [sic] offices."[8] It therefore considered that steps should be taken to enable a single individual to be appointed to all three posts.

10. Before embarking on consultation on a proposed regulatory reform order, the Government sought the Committee's views on the likely appropriateness of such an order. The Committee considered the request for advice in March 2003 and indicated that, on the evidence before it, the matter was appropriate for delegated legislation. The Committee's response is discussed in more detail at paragraph 29 below.

11. The Committee noted that any advertisement seeking applicants to hold the three posts jointly should indicate that the appointment to all three posts would be subject to Parliamentary approval of a regulatory reform order. The information pack sent to all applicants contained the following statement:

In March 2003 the Assembly Government and the Secretary of State announced that in the light of the responses received they intend to proceed with the establishment of the single Ombudsman's Office. This will require primary legislation, and is dependent upon Parliamentary time becoming available for the necessary Bill. In the meantime, and as a first step to establishing the new Office, it is intended in 2003 to appoint one individual to hold the three existing Offices simultaneously. To enable this to happen, it is necessary for Parliament to agree to a Regulatory Reform Order; the process of securing such an Order is now underway. The successful appointment to this Office, as advertised, is dependent on that.

Present appointments

12. On her appointment as the Parliamentary Commissioner for Administration ("the PCA") in 2002, Ms Ann Abraham was also appointed Acting WAO and HSCW. The Government was initially keen to have the order in place by November 2003, to enable the successful applicant for the posts of WAO, HSCW and Local Commissioner to take them up simultaneously. Ms Abraham has agreed to remain in post as Acting WAO until November 2004, in the expectation that the proposed order will then be in place.[9]

13. The three posts were advertised simultaneously in March 2004 under the non-statutory title of Public Services Ombudsman for Wales.[10] Mr Adam Peat was appointed as Local Commissioner of the CLAW (in succession to Mr Elwyn Moseley) on 1 October 2003, and Health Service Commissioner for Wales (in succession to Ms Abraham) on 4 November 2003. Should the proposed order be made, it is intended that Mr Peat will succeed Ms Abraham as WAO in November 2004.[11]

2   This arrangement is made under the provisions of section 41 of the Government of Wales Act 1998. Back

3   An outline of the functions and responsibilities of each post is included at the Annex to this Report. Back

4   Third Report from the Public Administration Committee, Ombudsman Issues, HC (2002-03) 448 Back

5   2002 asp 11 Back

6   The SPSO's present deputies are Carolyn Hirst, Lewis Shand Smith and Eric Drake. Back

7   Explanatory statement, para 12 Back

8   Ibid. Back

9   Appendix B, para 7, n 1 Back

10   An extract from the information pack provided to candidates for the post is reproduced in the Annex to this Report. Back

11   Explanatory statement, para 16 Back