Constitution

Commissioners and the ombudsman

03 June 2016

Article by Stephen Boyce, National Assembly for Wales Research Service

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There has been much debate about differences in the powers and governance arrangements of commissioners and the ombudsman in Wales – is it time for an overhaul?

With the office of the Future Generations Commissioner fully operational since April 2016, Wales now has four statutory commissioners and a public services ombudsman. But are their roles sufficiently clear and are they truly independent? The arrangements for appointing and holding them to account are inconsistent, and there is a view, shared by some of the commissioners themselves, that change is needed.

Commissioners and the ombudsman in Wales

Since the creation in 2001 of the first commissioner in Wales – for children and young people – commissioners have become an established part of public life. They are responsible for safeguarding and protecting the rights of Welsh citizens and improving public services within their areas of responsibility.

There are now commissioners for children, older people, future generations and the Welsh language, as well as an Assembly standards commissioner and a public services ombudsman (PSOW). Wales has been something of a leader in this area – some commissioner offices were the first of their kind, and creating a single public services ombudsman from the merger of three former bodies is acknowledged as an example of good practice.

Varying governance arrangements

The commissioners for older people, Welsh language, future generations and children are all appointed and funded by the Welsh Government, although they are independent.

The Public Services Ombudsman for Wales (PSOW) is appointed by the Monarch on the recommendation of the Assembly, and funded by the Welsh Consolidated Fund.

The Standards Commissioner, who is concerned with standards in the Assembly, is appointed by the Assembly and remunerated from the Welsh Consolidated Fund.

Commissioners’ independence

Several committees in the Fourth Assembly scrutinised the processes for appointing and holding commissioners to account. They recommended increased stakeholder and cross-party involvement, or appointment by the Assembly rather than the Welsh Government.

Although there is no suggestion of any interference by the Welsh Government, both the former and current children’s commissioners have argued that the holder of the post should be accountable to, and appointed by, the Assembly. The Welsh Language Commissioner has similarly questioned whether it is appropriate that the Welsh Government funds her office.

The Older People’s Commissioner has attributed the lack of conflict with the Welsh Government to both parties’ determination to make the arrangement work. Given the need for commissioners to cast a critical eye over government, there is a question about whether the current arrangements will prove sufficiently robust in the long term.

In 2014, the previous Welsh Government commissioned Dr Mike Shooter to conduct an independent review of the role and functions of the Children’s Commissioner for Wales. He made a number of recommendations about the appointment, remit, funding, accountability and governance of the commissioner. This included extending his or her remit to include non-devolved matters. The previous Welsh Government agreed, and accepted many of the recommendations that were within its powers to implement. However, other aspects of the report have generated intense disagreement.

The review recommended that the Assembly rather than the Welsh Government should appoint and fund the children’s commissioner in the future. The previous Welsh Government disagreed, much to the disappointment of the Fourth Assembly’s Children and Young People’s Committee. This Committee recommended that any successor committee in the Fifth Assembly should press strongly for the decision to be reviewed. The Shooter report also identified a need for more rigorous Assembly scrutiny of the commissioner.

A strategic approach

There are differences in powers as well as governance arrangements between commissioners; each has been established under separate legislation. Given what it termed the ‘proliferation’ of commissioners, the Shooter report suggested the Welsh Government should take stock of what is required of each and draft a single commissioners’ Act which could set out definitions, principles, roles and powers common to all. Issues specific to each commissioner could be set out in regulations.

Drafting legislation to cover all commissioners would not be a simple matter given their different remits, but a more coherent approach could improve their effectiveness and increase public understanding of their roles.

The previous Welsh Government stated that it was ‘not yet persuaded of the need for a single piece of legislation covering all commissioners’. However, it committed to undertaking some exploratory work on further legislation. In the meantime it produced secondary legislation to align the Older People’s Commissioner’s term of office to that of other commissioners and the PSOW.

As the Future Generations Commissioner begins work in earnest, the work of the commissioners’ offices touch on the lives of an increasing number of people. Given the high public profile of such post holders, the need for clarity about their roles and accountability will become more pressing.

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