Commentary on Sections
The Scottish Public Services Ombudsman
Section 1 and schedule 1 – The Scottish Public Services Ombudsman
7.Section 1 creates the offices of the Ombudsman and deputy Ombudsmen; provides for the making of the appointment of the Ombudsman and the Ombudsman’s deputies; and provides the basis on which these appointments are held.
8.Subsections (1) to (3)provide for the appointment of a Scottish Public Services Ombudsman, and up to 3 deputies, by Her Majesty on the nomination of the Parliament.
9.Subsection (4)enables a deputy Ombudsman to exercise the Ombudsman’s functions, either when the post of Ombudsman is vacant and there is no acting Ombudsman appointed (under paragraph 5(1) of schedule 1 – see paragraph 15 below); or when the Ombudsman is for any reason unable to act. A deputy acting in such circumstances is to be treated as the Ombudsman, except with regard to the following matters which are not applicable in such a situation:
paragraph 3(a) of schedule 1 – the validity of actings not being affected by a defect in the nomination by the Parliament for appointment of Ombudsman;
paragraph 4 of schedule 1 – term of office and tenure;
paragraph 7 of schedule 1 – remuneration;
paragraph 8 of schedule 1 – pensions etc.
10.Subsection (5)introduces schedule 1, which makes detailed provision concerning the appointment, status, etc of the appointments made under this section and the administrative matters in connection with such appointments.
11.Paragraph 1(1)of the schedule sets out various persons who are disqualified from appointment, or from holding office, as Ombudsman or deputy Ombudsman.
12.Sub-paragraphs (2) and (3) of paragraph 1set out various offices and appointments which a person is disqualified from while holding office as Ombudsman or deputy Ombudsman or for a period of 3 years after they ceased to hold office. This does not prevent a former Ombudsman or deputy Ombudsman from resuming employment as a family health service provider or as an independent provider.
13.Provision is made under paragraph 2 of the schedule as to the status of the Ombudsman, Deputy Ombudsman and staff of the Ombudsman office. Specific provision is made for the Ombudsman not to be subject to the control or direction of the Scottish Parliament or Scottish Executive unless where otherwise indicated in the Act.
14.Under paragraph 4 the Ombudsman and deputy Ombudsmen are appointed by Her Majesty on the nomination of Parliament. They will hold office for a term not exceeding 5 years, and for no longer than 2 consecutive terms, unless re-appointment for a third is desirable in the public interest. They may resign and may be removed from office, and cease to hold office at the end of the year when they become 65. The Parliamentary corporation will determine the Ombudsman’s other terms and conditions.
15.Paragraphs 5 and 6 provide for the Parliamentary corporation to appoint an acting Ombudsman or acting deputy Ombudsman where the office of the Ombudsman or a deputy Ombudsman is vacant.
Investigations by the Ombudsman
Section 2 – Power of investigation
16.This section sets out the investigatory powers of the Ombudsman.
17.Subsections (1) and (2)provide for the Ombudsman to investigate any matter that consists of action taken by or on behalf of a person liable to investigation by the Ombudsman (as defined in section 3). The matter must be one the Ombudsman is entitled to investigate (see sections 5 to 8) and a matter in respect of which a complaint has been made to the Ombudsman or a request for an investigation has been made by the person liable to investigation.
18.Subsection (3)empowers the Ombudsman to determine whether to initiate, continue or discontinue an investigation under section 2.
19.Subsections (4) and (5) enable the Ombudsman to take whatever action he or she thinks may be helpful in deciding whether to initiate, continue or discontinue an investigation, including action with a view to achieving informal resolution of a complaint or request.
Section 3 and schedule 2 – Persons liable to investigation
20.This section and schedule 2set out which persons, or classes of persons, are liable to investigation by the Ombudsman (throughout the Act referred to as listed authorities) and provide for amendments to be made to Part 2 of that list of persons.
21.Subsection (1)provides that the persons, or classes of persons, listed in Parts 1 and 2 of schedule 2 are liable to investigation by the Ombudsman.
22.Subsections (2) to (6)provide for Her Majesty, by Order in Council, to amend Part 2 of the schedule by adding, removing or modifying entries, subject to certain restrictions. Additions to the schedule may only be made if the entry relates to a Scottish public authority with mixed functions or no reserved functions; a publicly-owned company; or a person who is neither a Scottish public authority nor a publicly-owned company but who appears to Her Majesty to exercise functions of a public nature. A person who is neither a Scottish public authority nor a publicly-owned company must be consulted before being added to Part 2 of the schedule.
Section 4 – Persons liable to investigation: supplementary
23.This section defines a “publicly-owned company” for the purposes of section 3(3).
Section 5 – Matters which may be investigated
24.Section 5 makes provision for the matters covered by the Ombudsman’s power to investigate. Subsection (1)sets out what matters the Ombudsman may investigate. For listed authorities other than health service bodies, independent providers, family health service providers and registered social landlords, the Ombudsman can investigate any service failure and action taken in the exercise of administrative functions of that authority. For health service bodies and independent providers the Ombudsman can investigate any service failure and any action taken by or on behalf of the body or authority. For family health service providers the Ombudsman is able to investigate any action taken by or on behalf of the provider in connection with the provision of family health services. For registered social landlords the Ombudsman is entitled to investigate any action taken by or on behalf of the landlord.
25.Subsection (2)defines the term “service failure” for the purposes of subsection(1) as any failure in a service provided by the authority, or any failure of the authority to provide a service which it was a function of the authority to provide.
26.Subsection (3) provides that the Ombudsman may investigate a complaint about the matters specified in subsection (1) only where a member of the public claims to have sustained injustice or hardship in consequence of:
maladministration in connection with:
any action taken by or on behalf of a listed authority (other than a health service body, independent provider, family health service provider or registered social landlord) in the exercise of administrative functions of that authority;
any action taken by or on behalf of a health service body, an independent provider or a registered social landlord;
any service failure by a listed authority (apart from a family health service provider or a registered social landlord);
any action taken by or on behalf of a family health service provider in connection with any family health services provided by that provider.
27.Subsection (4) defines a person making a claim of injustice or hardship under subsection (3) as the person aggrieved.
28.Subsection (5) provides that the Ombudsman may investigate a request (under section 2(2)(b)) relating to the matters specified in subsection (1) only if he or she is satisfied that:
it has been alleged publicly that one or more members of the public have sustained injustice or hardship as mentioned in subsection (2); and,
the listed authority in question has taken all reasonable steps to deal with the matter to which the allegation relates.
29.Subsection (6)defines the term “member of the public” for the purposes of this section as any individual or body of persons (whether incorporated or not) other than the various bodies and authorities listed.
30.Subsection (7)provides that all provisions in section 5 are subject to sections 6 to 8 which provide for the application of section 5 to certain tribunals and set out restrictions and exclusions in relation to matters which the Ombudsman may investigate.
Section 6 and schedule 3 – Application of section 5 to certain tribunals
31.Subsection (1) of section 6provides that where any member of the administrative staff of a tribunal listed in schedule 3is appointed by or with the consent of a listed authority, administrative functions exercisable by such a member of staff are to be taken to be administrative functions of that listed authority. This brings such actions within section 5(1)(a). Subsection (2)provides for Her Majesty, by Order in Council, to amend schedule 3 by adding, removing or modifying entries.
Section 7 – Matters which may be investigated: restrictions
32.Subsection (1) of section 7prevents the Ombudsman from questioning the merits of a decision taken without maladministration by a listed authority in the exercise of a discretion vested in that authority (i.e. discretionary decisions).
33.Subsection (2)disapplies subsection (1) in respect of decisions taken by or on behalf of a health service body, a family health service provider or an independent provider to the extent that the decision was taken in consequence of the exercise of clinical judgement. The effect of this is that decisions requiring clinical judgement are within the remit of the Ombudsman.
34.Subsection (3)prevents the Ombudsman from investigating action taken by or on behalf of a member of the Scottish Executive unless the action was taken in the exercise of functions conferred on the Scottish Ministers or of functions conferred on the First Minister alone. The effect of this subsection is that complaints cannot be considered in respect of the functions of the Lord Advocate and Solicitor General in respect of the retained functions of the Lord Advocate, although they could be subject to complaints in respect of any functions of the Scottish Ministers that are allocated to them.
Functions conferred on the Scottish Ministers include functions conferred on them by or under Acts of the United Kingdom Parliament, functions conferred on them by executive devolution orders under section 63 of the Scotland Act 1998 and functions exercised by them on behalf of a Minister of the Crown or government department by virtue of section 93 (agency agreements) of that Act.
The retained functions of the Lord Advocate are defined in section 52(6) of the Scotland Act 1998 as any functions exercisable by him immediately before he ceased to be a Minister of the Crown and other statutory functions conferred on him alone after he ceased to be a Minister of the Crown. These functions relate mainly to his role as head of the systems of criminal prosecution and investigation of deaths in Scotland.
35.The effect of subsection (5) is to ensure that the Ombudsman’s remit in relation to any listed authority which is cross-border public authority extends only to devolved issues undertaken by the authority. Cross-border public authorities are those specified in the Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999 (S.I. 1999/1319).
36.Subsection (6)restricts the Ombudsman to investigating the actions of independent providers only in respect of the services that they are providing under arrangements with a health service body or a family health service provider. Without this provision section 5(1)(b) would have extended the Ombudsman’s remit across all the services provided by independent providers.
37.Subsection (7) ensures that, in relation to an authority which has been added to schedule 2 by an Order in Council under section 3(3)(c) (ie an authority which is neither a Scottish public authority nor a publicly-owned company but which appears to have functions of a public nature), the Ombudsman can only investigate action taken by or behalf of the authority in the exercise of its public functions.
38.The effect of subsection (8)is that the Ombudsman cannot investigate matters which can be considered by other means, unless in his/her view such other means could not be reasonably taken by the aggrieved person.
39.Subsections (9) and (10)ensure that, so far as reasonable, complaints are addressed locally before being considered by the Ombudsman.
Section 8 and schedule 4 – Excluded matters
40.Subsection (1) of section 8provides that the Ombudsman must not investigate any matter specified in schedule 4. Schedule 4 contains absolute exclusions as opposed to the restrictions on investigations and conditions that have to be satisfied which are set out in the body of section 7. Subsection (2)provides for Her Majesty, by Order in Council, to modify, add or remove matters specified in schedule 4.
Section 9 – Complaints: who may complain
41.Under subsections (1) and (2) of section 9a complaint may be made to the Ombudsman by the person aggrieved (see definition in subsection 5(4)), or by a person authorised in writing by the person aggrieved. The persons who may be authorised by the person aggrieved include an MSP, a listed authority or a member, officer or member of staff of a listed authority (e.g. a local councillor).
42.The effect of subsection (3)is to enable complaints to be considered by the Ombudsman where a person aggrieved for whatever reason is unable to pursue the complaint themselves.
43.By virtue of subsection (4), the person aggrieved must be (or have been) a resident in the United Kingdom at the time a complaint is made, except in the limited circumstances set out in subsection (5).
Section 10 – Complaints: time limits and procedure
44.This section provides time limits for making complaints to the Ombudsman, and the required format for making complaints.
45.Generally, complaints must be made within 12 months of the day on which the person aggrieved first had notice of the matter to which the complaint relates. However, the Ombudsman has discretion to accept late complaints if he/she considers there are special circumstances which make it appropriate to do so.
46.Subsection (2)makes special provision in relation to complaints relating to action by a family health service provider or an independent provider, who has since ceased to be such a provider. The effect of subsections (1) and (2) when taken together is that, even where a complaint is made less than 12 months from when it came to the notice of the person aggrieved, it will not be considered if it relates to a family health service provider or independent provider who ceased to be such a provider more than 3 years before.
Section 11 – Decisions not to investigate
47.This section specifies to whom the Ombudsman must send a statement of reasons when he/she has decided not to conduct an investigation following a complaint by a person aggrieved or a request by a listed authority.
Section 12 – Investigation procedure
48.This section sets out certain requirements in relation to the conduct of investigations. In particular, investigations must be conducted in private and where the investigation arises out of a complaint (as opposed to a request from a listed authority) the Ombudsman must give the listed authority in question, and any other person involved in the action which is the subject of the complaint, the opportunity to comment on any allegations contained in the complaint. Otherwise, it is for the Ombudsman to determine the procedure for conducting an investigation.
49.Subsection (5)provides for the Ombudsman to pay the person making the complaint (but not a listed authority who has made a request), or any other person who is involved in an investigation, allowances in respect of expenses and compensation for loss of time. The amount of such payments will be determined by the Parliamentary corporation.
Section 13 – Evidence
50.This section gives the Ombudsman a wide range of powers to require information to be supplied or documents to be produced, which are relevant to an investigation. Under subsections (1) and (2), the persons who may be required to supply information or documents are:
the listed authority; and
any member, officer or member of staff of the listed authority and any other person, who the Ombudsman considers is able to supply the information or document.
51.To reflect the special circumstances of the Scottish Administration, subsection (3)provides that where the listed authority in question is an office-holder in the Scottish Administration, the persons who may be required to supply information or documents also include other office-holders in the Scottish Administration and members of staff of the Scottish Administration assigned to work for the office-holder under investigation.
52.Subsection (4)provides that for the purposes of investigations the Ombudsman has the same powers as the Court of Session in respect of:
the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad), and
the production of documents.
53.Subsection (5)prevents any obligation to maintain secrecy or other restriction on the disclosure of information in relation to persons in Her Majesty’s service from applying to the disclosure of information for the purposes of an investigation by the Ombudsman.
54.Subsection (6)precludes the Crown from enjoying any privilege in respect of the production of documents or the giving of evidence (as is allowed by law in legal proceedings) in relation to any investigation by the Ombudsman.
55.Subsection (7)exempts any person, in consequence of the Act, from being required or authorised to supply any information or answer any question relating to Scottish Cabinet proceedings, or to proceedings of any committee of the Scottish Cabinet. Subsection (8)provides for certification that any information, question, document or part of document is a Scottish Cabinet document for the purposes of subsection (7).
56.Subsection (9)provides that subject to subsections (5) and (6) no person can be compelled, in respect of an investigation by the Ombudsman, to give evidence or produce documents that they could not be compelled to give or produce in civil proceedings before the Court of Session.
Section 14 – Obstruction and contempt
57.This section enables the Ombudsman to petition the Court of Session for a person to be dealt with as if they had committed a contempt of court, where that person has:
obstructed the Ombudsman in the performance of his/her functions, or
done any act or failed to take any action in relation to an investigation which would constitute a contempt of court in the Court of Session.
Section 15 – Reports on investigations
58.This section sets out how the Ombudsman must report on investigations. In particular, it specifies who should receive copies of an investigation report, requires a copy to be laid before the Parliament, provides that a report must not normally identify any person (other than the listed authority) and sets out requirements for publicising an investigation report.
59.Subsection (2)provides that section 11(3) of the Act applies in respect of reports subsequent to complaints, so that when a person is no longer authorised to act for the purposes of section 9(1)(b), the Ombudsman is to send a copy of the report to whomever he/she considers is acting in a similar capacity. Subsection (7)provides that any person who obstructs another person from inspecting or obtaining a copy of an investigation report shall be guilty of an offence. On conviction a person would be liable to a fine not exceeding level 3 (currently £1,000) on the standard scale.
Section 16 – Special reports
60.This section makes provision for a special report where the Ombudsman considers that injustice or hardship has been sustained by an individual and that the injustice or hardship has not been, or will not be, remedied. In particular it specifies who should receive copies of a special report, requires a copy to be laid before the Parliament, provides that a report must not identify any person (other than the listed authority) and sets out requirements for publicising a special report.
Miscellaneous and general
Section 17 – Annual reports etc.
61.This section requires the Ombudsman to lay before the Parliament each year a general report on the exercise of his/her functions. Under subsection (2) the Ombudsman may use the annual report to comment and/or offer advice on best practice in relation to the Ombudsman’s activities.
62.Under subsection (3)the Parliament can stipulate, and amend if and when necessary, the format and content of annual reports.
63.Subsection (4)allows the Ombudsman to report on his/her functions to Parliament outwith the parameters of an annual report. For example, it will enable a significant matter which comes to the Ombudsman’s notice directly after the publication of an annual report to be published straight away.
Section 18 – Protection from actions of defamation
64.This section specifies various statements (within the meaning of the Defamation Act 1996) made by:
the Ombudsman for the purposes of the Act, or
any person by way of communication with the Ombudsman in respect of matters relevant to the Act,
which are to be absolutely privileged for the purposes of the law of defamation. This effectively places a bar on a person’s right to pursue an action for defamation in respect of those statements.
Section 19 – Confidentiality of information
65.This section requires information provided to the Ombudsman to be kept confidential except in certain limited circumstances.
66.Subsection (1)provides that information obtained by the Ombudsman or any of his/her advisers in connection with any matter in respect of which a complaint or request has been made (relevant information) must not be disclosed.
67.Subsection (2)provides for exceptions to subsection (1) whereby relevant information may be disclosed for:
the purposes of either considering complaints or requests, undertaking an investigation, reporting on an investigation, or making a statement of reasons for not undertaking an investigation;
any proceedings for, or preliminary inquiries into, offences alleged under the Official Secrets Acts or in respect of perjury alleged to have been committed in the course of any investigation;
the purposes of proceedings under section 14 of the Act relating to a person’s obstruction of the Ombudsman’s performance of his/her functions or a person’s action or failure to act in relation to an investigation.
68.The section also makes provision as to when relevant information may be disclosed in the interests of the health and safety of patients, exempts the Ombudsman or the Ombudsman’s advisers from providing relevant information in proceedings other than those detailed in subsection (2), and that relevant information must not be disclosed when its disclosure is deemed to be against the public interest.
69.Subsection (8) provides that information obtained by the Ombudsman from the UK Information Commissioner is to be treated for the purposes of subsection (1) as obtained in connection with any matter in respect of which a complaint or request has been made.
70.Subsection (9) modifies the effect of subsection (2)(a)(i) in relation to information obtained by the Ombudsman from the UK Information Commissioner, so that such information may be disclosed for the purposes of any complaint or request or the investigation of any matter.
Section 20 – Disclosure of Information by the Ombudsman
71.This section enables the Ombudsman to disclose information obtained under the Act to the UK Information Commissioner, auditors and examiners as listed in the first column of schedule 5 to the Act, if the information appears to the Ombudsman to relate to matters set out in the second column of schedule 5.
72.Subsection (3) ensures that section 19(1) does not prevent the disclosure of information for the purposes of this section.
Section 21 – Consultation and co-operation with other Commissioners and Ombudsmen
73.This section makes provision for the Ombudsman, where he or she considers that a complaint or request he or she has received relates partly to a matter which could be the subject of an investigation by other Commissioners and Ombudsmen, to consult those Commissioners and Ombudsmen. The Commissioners and Ombudsmen covered by this section are specified in subsection (1).
74.Subsection (4)requires the Ombudsman to co-operate with the Parliamentary Commissioner for Administration where the complaint relates to an authority which is also subject to investigation by that Commissioner.
75.Subsection (5) ensures that section 19(1) does not prevent the disclosure of information for the purposes of this section.
Section 22 – Information about right to make complaint
76.This section imposes a duty on listed authorities to provide information to the public on the right conferred by the Act to make complaints to the Ombudsman, the time limit for making a complaint and how to contact the Ombudsman.
Section 23 – Interpretation
77.Subsection (2)lists various persons, action by whom may constitute action taken by a listed authority.
78.Subsection (3)ensures that actions taken by UK Ministers and departments on behalf of the Scottish Ministers under agency arrangements cannot be investigated under the Act.
79.Subsection (4) makes provision similar to that made by section 13(3)(b) to reflect the special circumstances of the Scottish Administration.
Section 24 – Orders in Council: general
80.This section makes general provision in relation to Orders in Council under the Act. An Order in Council is made by Her Majesty with the advice of the Privy Council. Conferring the power to make subordinate legislation on Her Majesty emphasises the independence of the Ombudsman from the Scottish Ministers.
Section 25 and schedule 6 – Modification of enactments
81.Subsection (1) of section 25introduces schedule 6, which makes modifications of various enactments for the purposes of the Act. Many of the modifications consist of repeals of legislation relating to the existing ombudsmen. Her Majesty may, by Order in Council under subsection (2), make such other modifications in any enactment as she considers necessary or expedient for the purposes of the Act.
Section 26 and schedule 7 – Consequential, transitional, transitory and saving provision
82.Subsection (1) of section 26introduces schedule 7, which makes provision for the transfer to the Ombudsman of staff, property and liabilities and undetermined complaints in consequence of the provisions of the Act. Under subsection (2)Her Majesty may, by Order in Council, make further transitional, transitory or saving provision.
83.Schedule 7 makes arrangements for:
the transfer, on the day the schedule comes into force, of staff from the offices of the existing Ombudsmen;
the transfer of property and liabilities of the existing Ombudsmen;
how complaints undetermined on the appointed day should be handled.
84.Provision is made for staff transferring to the Ombudsman to transfer on exactly the same terms and conditions as those on which they were previously employed.
85.Paragraph 4makes provision for statutory complaints that are undetermined at the time the legislation under which they were made is repealed or revoked to be dealt with by the Ombudsman and for the relevant legislation to continue in force for the purpose of determining such complaints.
86.Paragraph 5makes similar provision for undetermined housing complaints.
Section 27 – Commencement, revocation and short title
87.The effect of this section is that sections 1, 23, 24, 26(2) and 27 and schedule 1 come into force on Royal Assent. Provision is made for Her Majesty by Order in Council to appoint days when the other provisions in the Act are to come into force, and the day when the Transitional Maladministration Order is to cease to have effect.