Group 9 is the next group of amendments, and they relate to complaints-handling procedures. The lead amendment in this group is amendment 47. I call on Mark Isherwood to move and speak to the lead amendment and the other amendments in the group. Mark Isherwood.

Amendment 47 (Mark Isherwood) moved.

Diolch, Llywydd. We will be supporting amendment 11 as we believe the Assembly should be involved in scrutinising any significant changes the ombudsman may make to the statement of principles as far as practicable.

Amendment 48 has been submitted where confirmation is needed to ensure that the ombudsman considers resources of town and community councils. Amendment 48 reiterates the concerns that we raised at Stage 2 on the ability of town and community councils as listed authorities under the Bill to carry out their duties. For example, the Bill contains many requirements and time limits for listed authorities, which includes a six-month time limit for listed authorities to submit their own complaints-handling procedure. 

At Stage 1 I outlined that, while supporting the Bill's application to town and community councils, we can see from both the perspective of the ombudsman and town and community councils how burdensome and onerous the duties could be to undertake when staffing and resources are minimal. Town and community councils currently number over 730 in Wales, with 8,000 councillors. As evidenced by the auditor general in his report on town and community councils, some councils are already struggling to apply existing statutory duties. As I noted at Stage 2, nearly 100 town and community councils had not been able to submit their audits by the cut-off date of 30 November 2018. Well over 340 town and community councils received a qualified audit opinion in the same year—double the amount in 2016-17. Moreover, 24 councils have yet to make proper arrangements for online publication of documents as required by the Local Government (Democracy) (Wales) Act 2013. Auditors also identified issues in the accounting statements of 180 councils; 270 councils did not complete the annual return fully before submission for audit. 

Concerns, therefore, about the ability of town and community councils to undertake their duties have run throughout the Bill's progress. I refer back to the evidence of Cardiff city council, raised about the Bill's provisions, highlighting the risk of the ombudsman's guidance being 'too prescriptive' and not allowing

'for a degree of flexibility for local authorities to handle and investigate complaints in a manner that suits their size and structures.'

Additionally, the Local Democracy and Boundary Commission for Wales were concerned about the impact the provisions may have on smaller organisations—views also expressed by Blaenau Gwent council, which stated in evidence that some smaller councils do not have sufficient resources to have complaints officers whose sole task is to take and log complaints. Further, Newtown and Llanllwchaiarn Town Council said in their evidence to the committee that

'any such model or standard policies/procedures should be proportionate to the scale of community and town councils and also recognise that it may require transitional costs.'

Finally, and most significantly, One Voice Wales, representing town and community councils in Wales, have written to me stating that they do have concerns about the model complaints procedure. They further noted that most town and community councils in Wales are incredibly small and employ just one clerk, who would likely work on a part-time basis. As such, it is still difficult to see whether smaller town and community councils with relatively limited resources will be able to keep up with the provisions outlined under the Bill without due consideration by the ombudsman.

It is welcome, again, that the explanatory memorandum notes that it is up to the ombudsman's discretion in respect of which listed authorities publish model complaints-handling procedures, but it is worthwhile to place on record the expectation that the ombudsman will consider the resources of listed authorities, and at least work with their representative bodies to ensure the complaints procedure is adequately adjusted to take into account the limited resources of town and community councils in Wales. 

Regarding amendment 47, this deletes the procedure that applies to the publication by the ombudsman of the statement of principles, and replaces this with another procedure. The changes made to the ombudsman's statement of principles outlined by amendment 56 at Stage 2 mean there is little opportunity for the Assembly to properly scrutinise the principles before their introduction. This changes the process from affirmative to negative, and I believe represents a backward step, given the Constitutional and Legislative Affairs Committee's praise for the affirmative nature of the Bill at Stage 1. Although we recognise that this is a statement of principles rather than regulations, we contend that they're integral to the working of the model complaints-handling procedure, and thus should be afforded Assembly scrutiny. At the very least, the first statement of principles should have an affirmative procedure so that the Assembly has a chance to approve them. We therefore ask the Member in charge to explain his rationale for this change in direction. Why negative rather than affirmative?

I'll begin by saying that I'm happy to support amendment 11. The Member in charge is proposing a welcome drafting update to ensure that the procedure by which the Assembly agrees the complaints-handling principles is clear bilingually in the Bill.

However, speaking to amendment 47, this would undo an amendment agreed by the Equality, Local Government and Communities Committee at Stage 2, which, as the Member in charge explained at the time, struck a better balance between the ombudsman's freedom to draft the statement of principles and the Assembly's ability to reject it, should we see fit.

The procedure that amendment 47 seeks to reinstate leaves a large degree of uncertainty for the ombudsman if the Assembly makes no resolution to approve the complaints-handling principles within the two-month period. In this case, the ombudsman would not know whether or not the Assembly supports the proposed criteria, whether there are any issues that we would like to see addressed, or whether it was simply an issue of timing and the criteria might be approved if they were tabled again. With no opportunity to influence Assembly proceedings, it would not be fair to ask the ombudsman to wait upon a motion being tabled in favour of their criteria before proceeding to implement the powers that the National Assembly has already debated in this Bill. I don't think the process that the Member suggests is necessary to ensure that the Assembly is content with the ombudsman's proposals. The passing of this Bill would signal the Assembly's desire that a statement of complaints-handling principles be made by the ombudsman, and if that proposal is not in line with our expectations, then the Assembly can reject it and instruct the ombudsman to reconsider.

Speaking to amendment 48, the Member raises a relevant point that the ombudsman will need to be proportionate when applying model complaints-handling procedures to listed authorities, particularly in the example of community councils, as he's proposed. This amendment, however, would require the ombudsman to consider the resources of community councils whenever they are developing a model complaints-handling procedure, even if that procedure were not intended to apply to community councils. This is not a proportionate way of achieving the Member's aim. It would lead to an unnecessary administrative burden on the ombudsman's complaints standards powers for all other bodies in Wales. The Bill already includes a requirement for the ombudsman to consult before applying model complaints-handling procedures to any body. This would allow any body concerned about the administrative burden of their proposals to raise the issue, and for the ombudsman to take a balanced view of the benefits of the complaints system against the costs of implementing it.

Furthermore, this legislation is founded upon the principle that the ombudsman is a trusted, independent complaints authority, appointed directly by, and accountable to, the National Assembly. If the Assembly is not content with the ombudsman's use of their powers, then this can be addressed through committee scrutiny of the ombudsman. Beyond this, in extreme cases, the ombudsman is subject to the normal public law recourse of judicial review, by which any unreasonable requirement could be challenged. With these accountability arrangements already in place, we should not be legislating on the assumption that the ombudsman will use their powers irresponsibly. I'm sure that the ombudsman will listen to the points that Members have raised in today's debate and consider them when determining the approach to model complaints procedures for public bodies. On this basis, I don't think this amendment is necessary, and I would ask Members not to support it or amendment 47 today.

I will start with my amendment, amendment 11, which clarifies that, where the ombudsman makes revisions to the complaints handling statement of principles in a material way, those revisions will be subject to the same Assembly procedure that applied to the first statement of principles. That is, they will be subject to a negative resolution procedure, in that they will be laid before the Assembly and, unless they are annulled before the end of a 40-day period, they can be published.

Turning to Mark's amendment 47, this amendment seeks to apply an affirmative resolution procedure to the first draft statement of principles that the ombudsman must lay before the Assembly. The Bill currently provides for the statement of principles to be subject to a negative resolution procedure, as we've heard. But, of course, this mirrors the procedure that applies to the own-initiative criteria that will be laid before the Assembly. I believe that the same negative resolution procedure should apply to both the criteria and the statement of principles, given that they are both the ombudsman's documents. That's the key point here, I think. It's the ombudsman that consults on them, he drafts them, he publishes them, and he enforces them. That's why the Welsh Ministers' regulations are subject to the affirmative procedure. If the Welsh Ministers wish to amend the ombudsman's document, then it's only right that the affirmative procedure should apply. We have to remember that the ombudsman is an appointment independent of the Welsh Government and it wouldn't be right for changes to be made by Welsh Ministers not to be agreed in this Chamber. Therefore, I don't believe that amendment 47 is required.

Turning to Mark's amendment 48, this amendment puts a duty on the ombudsman to have regard to the resources of community councils when he is preparing 'the' model CHP, to use Mark's words. I am unable to support this amendment for a number of reasons. Firstly, there is no 'the' model CHP. There are likely to be a number of different model complaints handling procedures, each tailored to the needs of different listed authorities. This in itself means the ombudsman can tailor 'a' model complaints handling procedure to the needs of community councils if—and it is an 'if'—the ombudsman decides to require community councils to comply with a model CHP. There is no obligation on the ombudsman to have a model CHP for community councils. Indeed, so far this financial year, the ombudsman has received in excess of 2,000 complaints in total and of these only 22 have related to community councils, out of, I think the Member said, around 730 such councils in Wales. So, I'd argue that the CHPs aren't necessarily aimed at problems with community councils.

Secondly, as a public authority, the ombudsman of course must act reasonably in everything he does. This would include having regard to the resources of any listed authority he is considering specifying as being subject to a model complaints handling procedure. And thirdly, I question why the ombudsman should have specific regard to the resources available to community councils when this consideration applies to the other listed authorities, such as county councils, local health boards and Social Care Wales, et cetera. So, I acknowledge the issue the amendment is seeking to address, and I have included some commentary on this issue in the revised explanatory memorandum to the Bill, but my view is that that sufficiently addresses the concerns expressed and, therefore, I would urge Members not to support that particular amendment.  

Mark Isherwood, to respond. 

Diolch, Llywydd. In terms of amendment 47, the greatest strength that was acknowledged in the Bill at Stage 1 was the affirmative nature within in, hence the moving of this amendment, because there's little opportunity for the Assembly to properly scrutinise the principles before their introduction, at the very least at the first statement of principles. That is potentially a concern. I understand that the ombudsman's office, having received whatever this Bill ultimately concludes, is the body that will be drawing up the statement of principles, but there is the good old Platonic phrase, 'Who shall guard the guardians?' And much as the ombudsman must by definition be separate from this place—arm's length from this place—the Assembly, we believe, has a role in this context.

Regarding amendment 48, the Member in charge questioned why other larger bodies—and he named a number of larger bodies—would be treated differently. It's because they're larger bodies. This isn't to apply to every town and community council—many would have no reason not to meet the requirements detailed here. It only applies to those that, for resource reasons, as I outlined and as One Voice Wales has subsequently outlined in the correspondence I quoted, would find it practically, for practical purposes, difficult to meet this requirement. So, it's not a mandatory imposition applying to all public bodies or all bodies subject to the ombudsman's remit; it's only a discretionary power to be used when a body is likely to, or is known to, lack the resources to meet the requirement within the specified terms within the Bill. And we need to reflect that concern. We need to reflect the differentiation across the public sector, and particularly within town and community councils across Wales. It's not an excuse to allow bad performers off a bad performance. That needs to be addressed. It's a practical measure to help those who might do better in the future get to that point without penalising them for things that are beyond their control. I move. 

The question is that amendment 47 be agreed to. Does any Member object? [Objection.] We proceed, therefore, to an electronic vote on amendment 47. Open the vote. Close the vote. In favour 11, no abstentions, 36 against. Therefore, amendment 47 is not agreed. 

Amendment 47: For: 11, Against: 36, Abstain: 0

Amendment has been rejected

Amendment 11, Llyr Gruffydd. 

Amendment 11 (Llyr Gruffydd) moved.

Move.

The question is that amendment 11 be agreed to. Does any Member object? Amendment 11 is agreed. 

Amendment agreed in accordance with Standing Order 12.36.

Amendment 48, Mark Isherwood. 

Are you moving—?

Amendment 48 (Mark Isherwood) moved.

Move. 

Amendment 48. The question is that amendment 48 be agreed to. Does any Member object? [Objection.] We proceed, therefore, to an electronic vote on amendment 48. Open the vote. Close the vote. In favour 11, no abstentions, 36 against. Therefore, amendment 48 is not agreed. 

Amendment 48: For: 11, Against: 36, Abstain: 0

Amendment has been rejected

Amendment 12, Llyr Gruffydd.

Amendment 12 (Llyr Gruffydd) moved.

Move.

The question is that amendment 12 be agreed to. Does any Member object? Amendment 12 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Llyr Gruffydd, amendment 13.

Amendment 13 (Llyr Gruffydd) moved.

Move.

The question is that amendment 13 be agreed to. Does any Member object? Amendment 13 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Amendment 14, Llyr Gruffydd. 

Amendment 14 (Llyr Gruffydd) moved.

Move.

The question is that amendment 14 be agreed to. Does any Member object? Amendment 14 is agreed. 

Amendment agreed in accordance with Standing Order 12.36.

Llyr Gruffydd, amendment 15.

Amendment 15 (Llyr Gruffydd) moved.

Move.

The question is that amendment 15 be agreed to. Does any Member object? Amendment 15 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Amendment 16, Llyr Gruffydd. 

Amendment 16 (Llyr Gruffydd) moved.

Move. 

The question is that amendment 16  be agreed to. Does any Member object? Amendment 16 is agreed. 

Amendment agreed in accordance with Standing Order 12.36.

Llyr Gruffydd, amendment 17.

Amendment 17 (Llyr Gruffydd) moved.

Move.

The question is that amendment 17 be agreed to. Does any Member object? Amendment 17 is agreed. 

Amendment agreed in accordance with Standing Order 12.36.

Amendment 18, Llyr Gruffydd. 

Amendment 18 (Llyr Gruffydd) moved.

Move.

The question is that amendment 18 be agreed to. Does any Member object? Amendment 18 is agreed. 

Amendment agreed in accordance with Standing Order 12.36.

Amendment 19, Llyr Gruffydd.

Amendment 19 (Llyr Gruffydd) moved.

Move.

The question is that amendment 19 be agreed to. Does any Member object? Amendment 19 is agreed. 

Amendment agreed in accordance with Standing Order 12.36.