Home > Publications > Special Reports - Access to Official Information > AOI: Monitoring of the non-statutory codes of practice 1994-2005 > Section 1 - How the Ombudsman became involved
The White Paper
1. During the 1970s and 1980s there were a number of attempts by Members of Parliament, through the Private Member's Bill process, to place Freedom of Information legislation on the statute book. None of these attempts was successful but, because the drafters of the various bills had usually assigned the Ombudsman a key role in the appeals process, the Ombudsman of the day was given the opportunity to comment on the proposals in each bill. As far as the Code was concerned, although the initial discussions between the Cabinet Office and the Ombudsman about the Ombudsman's possible role in monitoring the Code appear to have begun in February 1993, the first formal announcement of this development came with the publication of the White Paper on Open Government in July 1993.[1] The White Paper announced the Government's intention of launching the Code in April 1994. Paragraph 1.12 outlined the role of the Ombudsman:
‘The Parliamentary Commissioner for Administration (PCA), the Parliamentary Ombudsman, has agreed that complaints that departments and other bodies within his jurisdiction have failed to comply with this Code can be investigated if referred to him by a Member of Parliament. When he decides to investigate he will have access to the department's internal papers and will be able in future to report to Parliament when he finds that information has been improperly withheld…’
Paragraphs 4.11 - 4.13 set out the intention to produce similar Codes to cover, respectively, the NHS and local authorities. As it happened, only the first of these came to fruition, with the publication of the NHS Code of Practice in June 1995. This was also monitored by the Ombudsman, in his capacity as Health Service Commissioner.
2. An interesting sidelight, given the difficulties that arose subsequently, is that, in a letter to the Chairman of the Select Committee on the Parliamentary Commissioner for Administration on the day following the announcement of the White Paper, Sir William Reid said that he intended that his investigations of Code complaints would be completed 'in a matter of weeks'.
Jurisdiction
3. A key issue arising early in the discussions with the Ombudsman was that of jurisdiction. Under the provisions of the Parliamentary Commissioner Act 1967, as interpreted by successive Ombudsmen, a complainant is usually required to produce prima facie evidence of injustice or hardship resulting from alleged maladministration before the Ombudsman can take on a complaint for investigation, although the Office has a wide statutory discretion in this area. This, it was recognised, could prove to be an obstacle in respect of Code requests, where it might be difficult to demonstrate injustice and where, indeed, the decision to refuse the information request might have been taken perfectly properly without any suggestion of maladministration. The White Paper addressed this point in paragraph 4.19:
‘...Whether or not he accepts a complaint for investigation is a matter for the Ombudsman but he has said that, in the context of a failure to provide information in accordance with the Code, this would not mean that the person bringing a complaint would necessarily have to show some demonstrable injury or disadvantage arising from refusal of information. It would be enough to found a complaint that the person or persons concerned had not been given information which, in accordance with the Code of Practice to which the Government is committed, they believed they were entitled to have’.
In paragraph 3 of his interim report covering the early days of his stewardship of the Code Sir William Reid reinforced this point.
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Preparation for the Code: staffing
4. An early difficulty facing the Ombudsman was: how many cases was the Office going to receive and how many staff would be needed in order to deal with them? While some guidance could be obtained from experiences in other countries, in particular those Commonwealth countries where Freedom of Information legislation had already been implemented, it was inevitably difficult to make accurate predictions. At one time the possibility of as many as 1,500 cases a year was being canvassed and, in a letter to the Prime Minister of 7 September 1993, Sir William Reid talked of the need for as many as 60 staff to be recruited in order to carry out the expected work.
5. When the Code was launched in April 1994, the directorate set up in the Ombudsman's office to deal with Code cases consisted of: a Deputy Ombudsman (Grade 3): a Director (Grade 5): five investigation units each headed by an Investigation Manager (Grade 7), and ten Investigation Officers (Higher Executive Officer) working on the basis of two per unit. This, with the addition of a small dedicated support unit, amounted to just over 20 people. Although a number of the staff had transferred from elsewhere in the organisation the majority of the staff, including all of the Investigation Officers, were new recruits from a wide range of backgrounds.
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Preparation for the Code: other work
6. It was Sir William Reid's view that the content of the Code of Practice was essentially not a matter for him: he was, however, concerned to ensure that the requirements placed upon him in respect of his Code responsibilities were consistent with his jurisdiction. To that end, he was in regular contact with the Cabinet Office (the Code's sponsoring department) and served as a member of the Working Party on Open Government set up to oversee the introduction of the Code, commenting as appropriate upon the
various drafts. One of the issues clarified as part of that process was that the Ombudsman would not, as a matter of course, be prohibited from investigating a complaint under the Code simply because it related to a matter that would be precluded from investigation by him in respect of a complaint of alleged maladministration.
7. As part of the preparatory process, Sir William and his staff held a number of meetings with Government departments to discuss how he intended to police the Code and to deal with any causes of concern they might have. In addition to this, he wrote to all Permanent Secretaries in April 1994 to confirm how he intended to carry out his investigations under the Code (a copy of that note can be found at Annex A to the interim report).[2] In the letter accompanying that note he set out his expectation that such investigations could be completed within three months. Sir William also asked all bodies within his jurisdiction to let him know how they intended to deal with requests for information under the Code and to provide details of their records and filing systems. In the first couple of months of the Code, staff also attended meetings in a number of departments to explain in more detail the Ombudsman's role. Many departments issued internal notices to their staff to set out how Code requests should be dealt with and the Ombudsman was provided with copies of these.
8. When the Code came into force it was accompanied by an extensive manual on Guidance and Interpretation of the Code prepared by the Cabinet Office.[3] While commending the guidance and noting that he expected departments to make use of it when considering the release of information, Sir William made it clear that, while he would take the Guidance into account, he did not necessarily feel himself bound always to follow it. This approach has been adopted by his successors.
References
1 Open Government (Cm 2290) July 1993
2 Parliamentary Commissioner for Administration - Second Report - Session 1994-95 Access to Official Information: the First Eight Months (HC 91)
3 Code of Practice on Access to Government Information: Guidance on Interpretation Second Edition, Cabinet Office (OPS), 1997
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