Schedule 3 Listed Authorities
90.This Schedule lists the persons who will initially be subject to the remit of the Ombudsman. Under section 28, the Assembly may by order add to, remove or amend an entry appearing for the time being in this Schedule.
Section 29: Restrictions on power to amend Schedule 3
91.Section 29(1) prevents the Assembly from changing its own status as a listed authority.
92.Section 29(2) to (5) sets out the criteria that a person must meet before the Assembly may add that person as a listed authority under section 28(2). Thus, additions to the list in Schedule 3 may only be made if the person to be listed:
discharges functions in relation to Wales (“in relation to Wales” does not mean that the function has to be performed physically in Wales, although in most cases that will be the case). It does not matter that the person also discharges functions otherwise than in relation to Wales; and
has functions some or all of which are in a field in which the Assembly also has functions. For example, if a person’s functions are in the field of agriculture then it is eligible for listing (assuming the other criteria are met) because the Assembly has functions in that field. However, if the person has functions directly in relation to prison services (and no other functions in a field in which the Assembly has functions), then that would not be the case, as the Assembly does not have such functions in that field. The scope of this restriction will vary over time as the fields in which the Assembly has functions change; and
falls within section 29(3), (4) or (5).
93.Section 29(6) prevents the Assembly adding to Schedule 3 by order:
a Special Health Authority which discharges its functions only or mainly in England; or
a nationalised industry or undertaking.
Section 30: Provisions in orders adding persons to Schedule 3
94.Section 30(1) provides that when adding a person to the list, the Assembly must, in the order, specify which of the person’s functions fall within the Ombudsman’s remit.
95.Section 30(2) and (3) provides that in the case of every person to be added to Schedule 3 by order, the Assembly must be satisfied that the function(s) of that person which are to fall within the Ombudsman’s remit are in a field in which the Assembly also has functions. Section 30(3) further provides that in the case of a person falling within section 29(5) the functions to be within the Ombudsman’s remit must also be functions of a public nature. Consequently, if a person only falls within section 29(5) and discharges functions some of which are functions of a public nature and some of which are not, the Assembly cannot specify all of that person’s functions as being functions within the remit of the Ombudsman.
Miscellaneous
Section 31: Power to issue guidance
96.Section 31(1) gives the Ombudsman power to issue guidance to listed authorities about good administrative practices. This will enable the Ombudsman to set bench marks for listed authorities. The Ombudsman has a further power to issue guidance to listed authorities under section 33(3). Section 31(3) provides that listed authorities are required to have regard to the Ombudsman’s guidance under section 31 when discharging their functions. Listed authorities should not depart from that guidance unless there is good reason to do so. When discharging his/her functions in relation to a complaint under this Act, the Ombudsman can take into account whether or not and to what extent a listed authority has complied with his/her guidance under section 31.
Section 32: Protection from defamation claims
97.Section 32 provides that the following are absolutely privileged for the purposes of defamation, namely:
any publication (which will bear its usual meaning within the law relating to defamation) of any matter by the Ombudsman, a member of his/her staff or another person acting on his/her behalf or assisting him/her in the discharge of his/her functions under the Act;
any publication of a matter in any report published by a person in the discharge of its functions under section 17 (requirement on listed authorities to publish the Ombudsman’s report of an investigation); and
any publication in certain communications concerning a complaint, namely:
communications between a listed authority (including a member or co-opted member, officer or member of staff or another person acting on behalf of or assisting in the discharge of the functions of that authority) and the Ombudsman (or his/her staff or persons acting on his/her behalf or assisting him/her in the discharge of his/her functions);
communications between the person aggrieved or the person making the complaint on behalf of the person aggrieved and an elected member of the Assembly; and
communications between the person aggrieved or the person making the complaint on behalf of the person aggrieved and the Ombudsman (or his staff, persons acting on his behalf or assisting him in the discharge of his functions).
98.This provision generally replicates similar protection under the legislation relating to other ombudsmen.
Section 33: Publicity for complaints procedures
99.Section 33 imposes (and makes further provision in relation to) a duty on listed authorities to provide information to the public about:
their right to make a complaint to the Ombudsman;
the authority’s own right to refer a complaint that has been made to it, to the Ombudsman; and
how members of the public may contact the Ombudsman.
Section 34: Compensation for the person aggrieved
100.This section confers a power on listed authorities to pay compensation to a person by or on behalf of whom a complaint has been made to the Ombudsman in respect of the matter, which is the subject of the complaint. Some listed authorities may have existing powers that would be wide enough for this purpose (see for example the power available to various local government bodies acting under section 92 Local Government Act 2000). Section 34 will ensure that all listed authorities will have such a power. It is not dependent on the Ombudsman actually investigating and reporting on the complaint and so, for example, could be used where the Ombudsman has assisted in negotiating an amicable resolution of the complaint.
