Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Lorraine Montgomery and Lesley McCombe. I remind you that the session is being recorded by Hansard and that the Hansard report of the session will be on the Committee's website in due course. When you are ready, will you please outline a few comments? We will then open it up to questions.

Ms Lorraine Montgomery (Department of Justice): Thank you very much, Chair. I welcome the opportunity to brief the Committee on the proposed new regulations for the reform of police discipline and unsatisfactory performance procedures within the PSNI. At the outset, I would note that the new regulations are intended to ensure that misconduct and poor performance is effectively managed within the PSNI in a way that is proportionate, is without unnecessary bureaucracy and is no less robust than the procedures that are currently in place.

It may be helpful if I briefly rehearse some of the background to the reforms before taking any questions that the Committee might have. The Department routinely considers the relevance to Northern Ireland of policy developments in England and Wales that affect the regulatory framework for police officers. New police discipline and performance arrangements were introduced in England and Wales following a review that was commissioned by the Home Office. The report, which was known as the Taylor report, found that previous arrangements were too lengthy, costly and heavily regulated. Having considered the changes within existing procedures and having been convinced of the operational benefits that have been gained from the reform in England in Wales, the PSNI indicated that it was keen to introduce similar reforms in Northern Ireland.

The legislative basis is set out in three sets of primary legislation, namely the Police (Northern Ireland) Act 1998, the Police (Northern Ireland) Act 2000 and Police (Northern Ireland) Act 2003. A number of sets of regulations exist through secondary legislation that underpin the procedures for police conduct and performance, as well as the police complaints system in Northern Ireland. It is intended that the reforms will revoke and replace four sets of secondary legislation, namely the Royal Ulster Constabulary (Conduct) Regulations 2000; the Royal Ulster Constabulary (Conduct) (Senior Officer) Regulations 2000; the Royal Ulster Constabulary (Appeals) Regulations 2000; and the Police (Unsatisfactory Performance and Attendance) Regulations (Northern Ireland) 2010.

It is recognised that there are a number of difficulties with the current police discipline and unsatisfactory performance system in Northern Ireland. The current system has been described as overly bureaucratic and legalistic, with little or no encouragement for managers to swiftly and proportionately deal with low-level misconduct matters. It has also been criticised as unnecessarily burdensome and costly, in terms of both management time and the overall time taken to conclude the process. Misconduct hearings have often been characterised by legal arguments on technicalities rather than focusing on whether the conduct of an officer has or has not in fact been acceptable. The key difficulties include the requirement to await the conclusion of criminal proceedings before those procedures can progress. That has resulted in considerable delays, often spanning several years, during which officers are suspended on full pay.

The reforms will enable misconduct proceedings to continue in advance of criminal matters, providing that that does not prejudice the case. In addition, less serious incidences of misconduct will be dealt with at a lower management level, as opposed to the current system that brings those less serious matters to costly and time-consuming hearings. It is believed that the PSNI will deliver efficiencies through implementation of the reforms. The benefits will be realised principally through a more efficient process, including a projected reduction in periods of officer suspension and increased powers at a local levels, which should in itself result in fewer misconduct hearings. The ability to complete the disciplinary process in advance of the criminal proceedings is a key enabler to the reduction of suspension periods. There will be investment associated with training and implementation, which the PSNI plans to absorb within its existing budget.

The new regulations will revoke and replace four sets of existing regulations setting out the performance and attendance, conduct and appeals procedures. The intention is to introduce three sets of regulations governing those procedures. The reforms will introduce a number of changes to the discipline and performance procedures for police officers. Some of the key changes have been outlined in the SL1, and I will attempt to briefly summarise those for you. I should note at the outset that the standard of proof in disciplinary cases will not change and remains, as it is currently, on the balance of probabilities. At the moment there are separate regulations governing misconduct procedures for senior officers. Those will be incorporated into a single set of regulations for officers at all ranks. The Northern Ireland Policing Board will retain the role of appropriate authority in cases where there is a report of misconduct in respect of senior officers.

The new conduct regulations will introduce a requirement for an assessment, at an early stage of the process, of the conduct that is the subject of the allegation. That initial assessment will determine if the procedures should be invoked and, if so, which should be applied. That early evaluation will allow the matter to progress proportionately by defining whether it requires investigation, further management action or no action.

Disciplinary proceedings will be able to progress before criminal proceedings have concluded providing that that does not prejudice the case. The existing conduct regulations currently prohibit that. The sanctions available following disciplinary proceedings will no longer include financial penalties such as a fine or a reduction in pay. The new regulations will split the sanctions available into two separate categories, one for misconduct, the other for gross misconduct, where the sanctions available will be reflective of the level of conduct being considered.

The reforms will not include an interim mechanism for review by the Chief Constable following misconduct proceedings. That, however, will not affect an officer's right to appeal to a police appeals tribunal, which will be maintained. The ombudsman will remain entitled to attend a misconduct hearing as an observer where proceedings have been brought about as a result of investigation by his office. Officers will no longer have the right to object to his attendance, although a condition has been introduced that the ombudsman may withdraw from the hearing whilst mitigating factors are cited.

The reforms will introduce changes in the composition of disciplinary performance and appeal panels. Those are intended to streamline the process and allow panels to be convened more expediently. A provision will be introduced to allow the review of a police appeal tribunal's determination within a specified period and subject to certain strict conditions. It is not intended to be an automatic right if the officer is not content with the panel's determination, and strict criteria must be met. A police appeals tribunal will have the power to impose any sanction available to the original disciplinary hearing, which includes the option to worsen the sanction on appeal.

In summary, since the first draft regulations were provided to the Committee in 2013, there has been no change to the policy intent. The regulations have, however, been revised in a number of areas, including the equality of legal representation and an extension of the time frames for completion and submission of paperwork. Other revisions include preserving the role of the ombudsman in cases that have been investigated by his office and expanded provision for witnesses.

With regard to stakeholder engagement, the regulations were the subject of a formal targeted consultation lasting 12 weeks, which concluded in October 2013. Following this, extensive engagement took place with those stakeholders to cement views, following a number of personnel changes. Thereafter, a further formal targeted consultation ran for 12 weeks, concluding in November of last year. Unsurprisingly, not all stakeholders agree on all of the provisions. However, all are supportive of the introduction of the reforms and support the policy intent. Work is ongoing in respect of the final legislative amendments, and it is anticipated that the three sets of regulations will come into operation in October of this year. Final drafts are scheduled to be available in July. Officials recognise that it has taken some time to reach this stage since the first draft regulations were provided to the Committee, and, during the intervening period, there has been ongoing engagement with policing stakeholders, with a view to ensure that the new procedures are fit for purpose. In implementing any change to the legislative framework for PSNI discipline and unsatisfactory performance procedures, it has been important for us to recognise that Northern Ireland operates within a unique environment and context with different complaint mechanisms.

Guidance to support the new regulations is clearly important to those who both operate and come into contact with the procedures. Whilst this already exists, it required considerable revision to reflect the changes. Work is ongoing in this respect, and the draft will be shared with stakeholders for comment, noting that it will not replicate the already prescriptive legislation.

In conclusion, significant work has been carried out on the development of the new arrangements in Northern Ireland. Undoubtedly, the transition to these arrangements will require effective management with robust strategies in place to facilitate training, and the PSNI is already well advanced in this plan. The Department is now seeking to introduce regulations to streamline the procedures and mechanisms, moving towards procedures for police officers that more closely reflect those which operate in normal employment practice. The proposals will modernise the system and shift the emphasis toward development and improvement. This is a significant opportunity to streamline the current bureaucratic processes and for our Police Service to realise the operational benefits that it will bring. I hope that this is helpful to the Committee as it considers the SL1, and we are happy to take any questions.

The Chairperson (Mr Ross): Thank you very much. You mentioned that virtually everybody is supportive of the direction of travel but that there is difficulty with some of the detail. Where is the Police Federation in this? Has it given any sort of response?

Ms Montgomery: There was disappointment on the part of the Police Federation, particularly on one issue, which was in respect of the transitional arrangements for the regulations. After careful consideration, the Department has decided that the date that the alleged offence is reported to the authority will dictate the applicable regulations. That means that the new regulations will be applicable for everything notified effective from 1 October. It would have preferred that it had been the date of the incident that dictated the applicable regulations, but, in practical terms, it just was not going to be easy to work with in terms of managing multiple sets of regulations, particularly in cases where you have alleged issues of misconduct that have perhaps spanned a number of months or years. It was disappointed with that outcome, but I believe that it is acceptant of it.

The Chairperson (Mr Ross): What other issues have people raised, and who has raised them?

Ms Montgomery: There was a keenness to ensure that the role of the ombudsman's office was preserved and not reduced or dissolved in any way. That is indeed one of the outcomes from the draft regulations. Over and above that, I do not think that there was anything in particular raised through the consultation process and the engagement. There was a little on the procedures and how they would work at a very granular and detailed level, but, usefully, some of the stakeholder engagement sessions that we held on a multiple-party basis allowed us to work those issues through.

Ms Lesley McCombe (Department of Justice): There was a query on the guidance, and we are working with stakeholders with regard to that to make sure that the guidance, from a consistency viewpoint, meets all stakeholders' expectations.

The Chairperson (Mr Ross): Finally, the PSNI has indicated that there will be upfront costs for additional training and things, but, as you mentioned earlier, there is a cost to the Police Service of officers on suspension. I remember from my time on the Policing Board the amount of money that was spent on paying officers who were on gardening leave. Have we any ballpark figures about how much we think that it will cost the PSNI in the short term and whether there is any estimation of how much it reckons it could save in the longer term?

Ms Montgomery: The costs are deemed to be notional, in that it is very much around preparing material and putting it on the internet. It plans to introduce some e-learning, which is supported by close control and the monitoring of the new arrangements when they come into play. The PSNI does not have hard costs for the cost of suspended officers, who are, obviously, on full pay, but, in terms of days lost, it is a figure that is on the decline. The total days lost in 2013-14 was just over 8,000. It is clearly something that there is an opportunity to influence further down.

Mr Dickson: Public confidence in the PSNI is paramount to everything that the PSNI does. To what extent will this enhance public confidence? Does it engage at all in it? How much has that been taken into consideration in redesigning the processes?

Ms Montgomery: One of the things that will be particularly helpful for the public, as well as the peer group in the force, is to see that matters of misconduct and performance will be dealt with much more expediently. Therefore, the time taken to conclude cases will make a great difference to both communities.

Mr McCartney: In terms of the type of inquiries that are carried out, are they all internal matters? They are not as a result of complaints from members of the public; they are internal to the workings of the PSNI.

Ms Montgomery: There is a combination of internal issues, criminal proceedings and matters that have perhaps been referred by the Ombudsman's office in terms of recommendations to be taken into consideration by the force in those procedures.

Mr McCartney: What sort of thing would unsatisfactory performance be?

Ms Montgomery: In that category, you would find —

Ms McCombe: Unsatisfactory performance is really failure to investigate. You then have the areas of misconduct and gross misconduct. Misconduct examples include inappropriate text messages and giving inaccurate accounts to supervisors. Gross misconduct could be any act of dishonesty, theft, falsifying records etc.

Mr McCartney: So, in the main, they are internal. What sanctions will now be in place if there is no longer a financial penalty or a reduction in pay? What would the sanctions entail?

Ms Montgomery: There will continue to be a range of sanctions available, including some that would apply in normal employment practice. As well as that, there will be a sanction that can be invoked in terms of redeployment to another post in the service, and that is not necessarily quite so typical.

Mr McCartney: What was the rationale for removing financial penalties and reduction in pay?

Ms Montgomery: There was a view that financial penalties did not necessarily support the learning and development of the officers. The other factor that came into play in that regard was that, obviously, those penalties could also place officers and their families in a very difficult financial position. As well as that, the fact is that, in employment practice generally, it is not something that would be used as a sanction.

Mr McCartney: In terms of going for the balance of probabilities rather than beyond reasonable doubt, how was that decision taken?

Ms Montgomery: That is consistent with the forces in England and Wales. In fact, I think that it is the case across the rest of the UK.

Ms McCombe: It is the case across the water, including Scotland, and the Republic of Ireland as well.

Mr McCartney: Notwithstanding that, for the person defending themselves, is there a particular reason why it is probability rather than reasonable doubt?

Ms Montgomery: In terms of being able to directly answer that question?

Mr McCartney: Yes.

Ms Montgomery: No, but a very strong and robust evidence base is required when the police are considering these cases. Therefore, while it is in the balance of probabilities, it is still a very robust assessment of the evidence at hand.

The Chairperson (Mr Ross): Thank you very much.