Will the Parliamentary and Health Service Ombudsman serve an extra two years in office?
by David Czarnetzki
The Public Administration and Constitutional Affairs Committee (PACAC) held its annual scrutiny session regarding the Ombudsman on Tuesday 14th December 2021. The most interesting part was the second session, which commenced after a short break about 1 hour 45 minutes from the beginning.
During this part of the hearing, the Ombudsman, Rob Behrens, told the committee he hoped to remain in post and stated: “In two years, there will be a new Ombudsman”. Judging by the conversations and the responses of the Committee Chair, William Wragg MP, it is starting to sound like a done deal.
But should it be? It is important to examine both the history and the precise wording of the Parliamentary Commissioners Act 1967.
Historically we find this document, published by Parliament on 18th January 2017 entitled “5th Report of Health Committee and 8th Report of Public Administration and Constitutional Affairs Committee of session 2016-17”. Regarding Mr. Behrens term of office, the document states:
“You will be appointed by the Queen for a non-renewable fixed term of no longer than seven years. We expect the appointment to be fixed at between five and seven years subject to discussion with the successful candidate. However, you should be aware that this term may in practice be shortened by legislative proposals”
It should be noted that on 18th May 2020, PACAC conducted an annual scrutiny session of the PHSO at which Mr. Behrens gave evidence. According to the official transcript on the PACAC website, and in answer to Question 46 asked by committee member Tom Randall, Mr. Behrens included the following statement:
“I am confident that this is a new way of addressing scrutiny – it cannot be used on its own – and we will be commissioning another peer review before the end of my term in two years….. In short answer to your question, before I leave in 20 months time, I will have commissioned another peer review of the organization”.
The Ombudsman was appointed for a fixed term period of five years, expiring in March 2022. However, since April 2021, moves were put in place by Michael Gove, then of the Cabinet Office, to “adjust” the Ombudsman’s tenure.
So what does the law say? The appointment of the Ombudsman is covered by the Parliamentary Commissioners Act 1967.
Section 1, Sub section 2A states: “ A person appointed to be Commissioner shall hold office until the end of the period for which he is appointed”. Sub section 2B states: “That period must not be more than seven years”
Section 3A does provide for an Acting Commissioner. This section would not preclude Mr. Behrens from becoming the Acting Commissioner until a new Commissioner is appointed or a maximum period of 12 months, whichever occurs first.
Therefore, the issues I see are:
- Mr. Behrens was appointed on a five year fixed term contract in accordance with the Act.
- This process could easily place the Ombudsman and the current Cabinet Office Minister in contradiction of the Seven Principles of Public Life (the Nolan Principles).
We must remember that PACAC is a cross party committee and I, for one, will be surprised if the non Conservative members of the committee go along with the proposal to extend the Ombudsman’s contract. After all, in the current febrile climate at Westminster, with the Prime Minister’s difficulties over ‘Partygate’ and earlier attempts to prorogue parliament, endorsing the Ombudman’s appointment for a further two years can only further diminish Parliament’s very tarnished current reputation.
The final decision rests with the Cabinet Office as PACAC can only make recommendations, so over to you Mr.Barclay. I contend that you are legally obliged to advertise for his successor and give Mr. Behrens his P45 as soon as you can appoint one or, in any case, within 12 months of the end of his term, whichever is sooner – (Section 3A) Parliamentary Commissioner Act 1967.
There is also the question of suppression, by PACAC, of public evidence. This will be the subject of a separate blog.