That brings us to group 8, which relates to the Nolan principles. The lead and only amendment in this group is amendment 46 and I call on Mark Isherwood to move and speak to the lead amendment—Mark Isherwood.

Amendment 46 (Mark Isherwood) moved.

Diolch, Llywydd. I've retabled this amendment from Stage 2, as I wish to seek reassurance from the Member in charge that the ombudsman will take the Nolan principles into consideration when his office is undertaking investigations into complaints against public bodies.

As I outlined at Stage 2, while the ombudsman can also view the Nolan principles as overriding, he is unable to hold public bodies to account via the principles, as evidenced within correspondence I've received from a member of the public. In his responses to that member of the public, the ombudsman stated  

'I recognise that you have framed your complaint with reference to the Nolan principles but the Ombudsman, whilst obviously recognising that adherence to these principles is necessary for higher standards in public services, would not, given his role and their general nature, use them to determine complaints about public bodies.'

He also stated: 

'So I hope this provides an explanation of our approach and the context in which we operate. It is not that Nolan is inapplicable, more that our interest is in ensuring administrative justice to the people of Wales is not best served by simply restricting or satisfying ourselves by these overriding principles alone.'

As I outlined at Stage 2, these two statements do appear to be a contradiction. The Welsh Government also abides by the Nolan principles, as do elected Members in public office. Publicly employed individuals may also be accountable to Nolan principles, but there's no recourse for complainants to use the principles, other than through the expensive and cumbersome route of judicial review. It is not that these should be overriding principles, but that they should be integral. 

Furthermore, the Nolan principles are summed up thus: the ombudsman provides no alternative set of principles, yet, in judging issues such as good standards of administration to determine complaints about public bodies, it is important to judge against an accepted standard of reference. The Nolan principles, we contend, provide that standard. They were established for that purpose. Among other things, they meet the criteria of law produced by the UK Government Committee on Standards in Public Life; they set a UK-wide benchmark; they apply to all in public life—officials and elected representatives; they're endorsed by the Welsh Government, not least in statutory instruments; and they're endorsed by the standards committee of Welsh councils.

The ombudsman claims that the Nolan principles are general. They're not. Principles are guides, they're not intended to be detailed instructions. The Nolan principles are very clear and specifically designed to be relevant to the public sector. The ombudsman claims that placing the principles on the face of the Bill serves as an unhelpful detraction from the existing powers he has to investigate maladministration. Yet, there still remains a gap in how he will determine whether public bodies will be held to account through the principles.

For instance, while he notes that there is a very wide power of maladministration, which allows him to take into account the Nolan principles, conversely, the power means that he also does not have to take them into account. Since I argued the case for the Nolan principles at Stage 2 of the Bill, I've been made increasingly aware of concerns that some public sector bodies and their employees are distorting their interpretation of the Nolan principles when applied to themselves. Further, where allegations regarding the conduct of officers are integral to the wider complaint submitted to the public services ombudsman, we've too often seen ombudsman reports quoting lines to justify their decision not to uphold the complaint that can be identified as having come from the same officers, actually matching, word for word, letters received directly from the local authority and signed by the same officers.

Elected members can be referred to the ombudsman on alleged breaches of the code of conduct, but the ombudsman cannot investigate complaints against officers. That is right. Instead, these are left to local authorities to determine as their employer. However, complaints to the ombudsman regarding public bodies frequently relate to matters that are set in the context of conduct by officers. Although the subject of the complaint cannot be objectively investigated without wider consideration of any context relating to the conduct of officers, in accordance with the Nolan principles, we instead see cases where, as quoted, the ombudsman would not use the Nolan principles to determine complaints.

It is welcome that the updated explanatory memorandum to the Bill now includes the Nolan principles and explains that the ombudsman and vested authorities are required to have due regard to the principles in carrying out their work. However, given the concerns I've listed, I'd be grateful for confirmation from the Member in charge of how, in the absence of the principles on the face of the Bill, he expects to ensure that the ombudsman takes the Nolan principles into account when investigating any and every complaint that does, directly or indirectly, involve the conduct of the officers involved with that complaint. Thank you.

This amendment would require the ombudsman to consider the Nolan principles when undertaking their functions in relation to a listed authority. The Nolan principles set out the behaviours expected of people who hold public office. They set out clear expectations about conduct and about how people are expected to contribute to delivering public services. The Nolan principles apply to individuals in public office, and not organisations. The principles focus on behaviour and culture, rather than processes, and are enshrined in the relevant codes of conduct for the behaviour of individuals in public service. The ombudsman investigates service failure and maladministration. The focus ensures they comment on the actions of an authority, rather than giving a view on individuals, except in the ombudsman's role in relation to the councillor code of conduct. This allows the ombudsman to retain the trust of public bodies, and the public, as an impartial, independent complaints handler and regulator. I would urge Members not to support this amendment.

This amendment places a duty on the ombudsman to have regard to how a listed authority has had regard to the Nolan principles. Now, as we all know, because I'm sure we read them every day, the Nolan principles apply seven principles to anyone who works as a public office holder, including people who are elected or appointed to public office, or people appointed to work in, for example, the civil service, local government, health, education, social and care services, all those in other sectors as well that deliver public services. Now, we rehearsed some of these arguments at Stage 2, and as I said at Stage 2, I believe that an onus already exists on listed authorities to have regard to the Nolan principles. And the ombudsman's role is to investigate service failure and maladministration, not to investigate whether public authorities are complying with general principles of selflessness and leadership, et cetera. So, whilst I wasn't able to support this amendment at Stage 2, I have nevertheless ensured the revised explanatory memorandum now makes it explicit that in holding public office or working in the public sector, the ombudsman and the listed authorities are required to have regard to the Nolan principles. So, for these reasons, I won't be supporting amendment 46, and I would urge other Members to do likewise.

Mark Isherwood to respond.

Thank you, Presiding Officer, and thank you to the Minister and the Member in charge. Clearly, there are many people who have contacted me, and no doubt others, who have concerns about their own experiences where their complaints, which weren't directly about an officer or officers, nonetheless had at their core allegations regarding the conduct of an officer or officers, and hence, this issue has been raised with us. It's not something we've thought up just to cause further problems for the Assembly or the ombudsman's office. We recognise the further work that the Member in charge has put into this, and acknowledge and welcome, as I stated, the update to the explanatory memorandum. Therefore, although I'll withdraw this amendment, we still think this is a pertinent issue meriting further consideration as we move forward, where, again, too often I've seen the voice of the person or persons to whom the allegations apply being quoted as one of the reasons not to uphold a complaint, when hopefully the objectivity of an inquiry would ensure that that could not happen. Thank you. 

Mark Isherwood has indicated that he wishes to withdraw the amendment. Is there any objection to the withdrawal of the amendment? Amendment 46 is therefore withdrawn. 

Amendment 46 withdrawn in accordance with Standing Order 12.27.