PACAC (cockeyed) scrutiny of the Ombudsman.

PACAC – Parliament in action or Parliamentary in-action?

(or how scrutiny provides the illusion of doing something)

David Czarnetzki

PACAC, the commonly used abbreviation to identify the Public Administration and Constitutional Affairs Select Committee, opened its annual enquiry into the work of the Parliamentary and Health Service Ombudsman (PHSO) on 20^th September 2021 and invited interested parties, including the general public to submit evidence. 

So how does an individual, perhaps engaging in the process for the first time, set about submitting written evidence?

A good place to start is the parliamentary publication “Guidance on giving evidence to select committees”. Too much information to reproduce here but for the purpose of this article, the key parliamentary guidance is as follows:

1. “We need evidence to help us understand what’s happening now and what changes might be needed”.
2. “The more ideas we have the better our work will be”.
3. “The Committee doesn’t have to publish what you send us. We’ll e-mail you to let you know what’s happening to your evidence”. But then:
4. “WE USUALLY PUBLISH EVIDENCE BECAUSE IT’S IMPORTANT THAT THE PUBLIC CAN SEE THE INFORMATION THE COMMITTEE HAS CONSIDERED IN ITS INQUIRY AND WHO WROTE IT. IF THERE IS AN IMPORTANT REASON WHY YOUR EVIDENCE SHOULD BE ANONYMOUS OR CONFIDENTIAL, TELL US”.
5. “You may want your evidence to be anonymous – meaning we’ll publish your evidence but not your name or details that could identify you”.
6. “You may want your evidence to be confidential – meaning we’ll read your evidence but we won’t publish it”.

When Parliament re-convenes after each general election, select committees are re-formed. After the 2019 general election, the outgoing chair of PACAC, Sir Bernard Jenkin, was replaced by William Wragg MP.

The table below shows how evidence submitted to PACAC, for each of the three scrutiny sessions of PHSO conducted under Mr. Wragg’s chairmanship, has been published.   

PHSO Scrutiny Session	Number of submissions	Submissions published
2018-19	39	37 (95%)
2019-20	32	29 (91%)
2020-21	41	26 (63%)

Unlike the two previous years, for 2020-21, no submissions were published ahead of the closing date of 29^th October. One might reasonably assume this change meant all submissions would be considered and published at the same time.

Not to be. By 19^th November, PACAC had published just 18 of 39 submissions which their website indicated they had received at that stage. Being naturally concerned that only 46% of submissions had been published, a disproportionately low number compared to previous years I made a Freedom of Information request to PACAC asking:

• Are the 18 submissions all that will be published or are there more to come
• How many submissions were actually made
• On what grounds were any submissions withheld (if any)
• If a submission has been withheld, has the writer been informed as to the reason why
• Are submissions made to PACAC shared with the Ombudsman prior to publication by PACAC.

My FOI request was sent to the House of Commons FOI Department who sent a response on 15^th December, the day after the Ombudsman gave oral evidence to the Committee. The key points of the response are:

• Any information held by the Committee within the scope of your request is exempt from disclosure, because it is subject to parliamentary privilege
• The privileges of Parliament include the exclusive right of each House over whether and when information relating to proceedings should be published.
• Section 34 Freedom of Information Act provides an exemption so as to avoid infringement of these privileges.
• Decisions on what to accept as evidence and what to publish are entirely at the discretion of the Committee. 
• The Committees decision is final and it is not required to explain its decision (this does not sit well with point 3 above)
• Where it is possible to do so, submitters are informed by Committee staff if their submissions have been rejected by the Committee.

Eventually the Committee published 26 of 41 submissions, the final one being from the South African Health Ombudsman on 14^th December, the day the Ombudsman gave oral evidence.

So what will contributors make of all this when their evidence has not been published? The guidance identified in point 4 above is hollow but was there a more significant reason for not publishing 35% of the written submissions? Could it be that the Cabinet Office wants the current Ombudsman to stay in post and publication of negative comments would make that more difficult to justify. My earlier article on PHSOthetruestory concerning extending his tenure (which I still consider to be unlawful) addressed this issue. It is worth noting that on 14^th December 2021, the very day of the scrutiny hearing, William Wragg wrote to Steve Barclay at the Cabinet Office. The second paragraph of his letter reads:

“The Committee is satisfied that there are no issues that would prevent the Ombudsman from continuing in post after March 2022 and is content to recommend an extension of his term of office by a further two years, as permitted under the relevant legislation”

Despite being written on 14^th December, this letter was not made public on the PACAC website until 18^th January 2022. It is apparent PACAC has not taken its own advice from parliamentary law offices and has, instead, chosen to rely on the fact that Mr. Gove had taken legal advice which, as I write, remains secret!

Several people have made contact with me regarding the issues. I am grateful to those who have shared information about submissions not published by PACAC and the PACAC responses where they have been received. I have agreed not to share their details publicly but I think it is important to state:

• There are times when PACAC does not consider or publish evidence and fails to give the writer any response whatsoever
• When asked for clarification as to why evidence was not published the PACAC response has been “Thank you for your email. The Committee is not required to give reasons for its decisions so I am afraid I’m not in a position to provide a reason”

Here lies the issue. On one hand, parliament states it wants evidence and has a preference for publishing it, yet when questioned about non-publication, the response is it’s none of the publics’ business. Not a hint of feedback to the public as to how there might be a better chance of publication in the future. One could be forgiven for coming to a conclusion the whole process is just a front!

The Cambridge English dictionary supplies very good reasons for coming to this conclusion when comparing definitions of Inquiry, Investigation and Scrutiny:

• Inquiry – An official process to discover the facts about something bad that has happened
• Investigation – the act or process of examining a crime, problem, statement etc. carefully, especially to discover the truth.
• Scrutiny – The careful and detailed examination of something in order to get information about it.

Now we know why politicians prefer scrutiny to proper investigations or inquiries. Scrutiny exists just to get information – there is no obligation to do anything with it!  Until a proper inquiry is conducted, investigating Ombudsman services in general and the Parliamentary and Health Service Ombudsman in particular, PHSO will remain an unaccountable arms length body which parliament, through PACAC pretends to oversee.  We must also remember 80% of PHSO cases are health complaints, yet the Health Select Committee is not responsible for “scrutiny” of this area of responsibility. We should be asking why the Health Select Committee is not taking the lead on PHSO scrutiny or why there is not any member of parliament on both committees. After all, Chris Bryant chairs the Committee on Standards and also serves on the Foreign Affairs Committee! 

So what about the actual scrutiny itself? Eleven MP’s constitute members of the committee, which has held three scrutiny sessions regarding the Ombudsman. (Transcripts and videos available on the PACAC website). The attendance record, with political affiliation, is contained in the following table: 

Name	Party	Date of hearing 18.05.2020	Date of hearing 23.11.2020	Date of hearing 14.12.2021
		Attended	Attended	Attended
William Wragg (Chair)	Conservative	Yes	Yes	Yes
David Jones	Conservative	Yes	Yes	Yes
David Mundell	Conservative	Yes	No	Yes
Jackie Doyle-Price	Conservative	No	Yes	Yes
Tom Randell	Conservative	Yes	Yes	Yes
John Stevenson	Conservative	Yes	No	No
Ronnie Cowan	SNP	Yes	No	No
Rachel Hopkins	Labour	Yes	No	No
Karin Smyth	Labour	Yes	Yes	Yes
Lloyd Russell-Moyle	Labour (Co-op)	Yes	Yes	Yes
Chris Evans	Labour (Co-op)	No	Replaced by Navendu Mishra	*
Navendu Mishra	Labour	*	No	Replaced by John McDonnell
John McDonnell	Labour	*	*	Yes

In conclusion, this whole area of administrative justice is a mess and it will become an even bigger mess once the Health Service Safety Investigation Branch comes into being. 

With the current crisis in the Health Service politicians see no mileage in highlighting the issues they construe are attacks on the NHS. It is nothing of the sort. Whilst parliament tinkers with ‘scrutiny’ it falls to others, such as the public and investigative journalists,  to inquire and investigate when bad things happen and discover the truth and we can forget about parliament having any desire to hold PHSO to account!