Official Report: Minutes of Evidence

The Chairperson (Lord Morrow): Joining us are Alyn Hicks and Jonathan McMillen from the Bill team. Hansard staff, of course, are present.

Members have the response from the Committee for the Office of the First Minister and deputy First Minister (OFMDFM) to issues raised at previous Ad Hoc Committee meetings. There is a table of deferred issues that it is proposed we consider at this meeting. The table sets out the position on each deferred clause.

The purpose of today's session is to identify clauses on which further information may be required or amendments sought. The Committee has not yet undertaken formal clause-by-clause scrutiny. I do not know whether that disappoints you or gladdens your heart, but that is the way it is. For each clause, the Committee will be asked to consider the evidence received and indicate whether it is content or requires further information. At each clause, I will ask you to specify the information or evidence required or the suggested wording of any amendment that you would like inserted.

Part 2 relates to investigations and sets out how the powers of the Northern Ireland Public Services Ombudsperson (NIPSO) to investigate listed authorities are to be used. On 9 June, the Committee agreed to return to consider the establishment of a complaints standards authority. Further information from the Northern Ireland Ombudsman is included in members' papers. The ombudsman now says that the inclusion of a complaints standards role for the new NIPSO would facilitate the further refinement and development of complaint handling across the public sector in Northern Ireland.

The OFMDFM Committee, in its correspondence of 4 June, agreed to liaise further with the ombudsman, but this issue is not addressed in the correspondence of 18 June.

Mr Hicks, do you have any comments?

Mr Alyn Hicks (Bill Team): That is correct, Chair. The matter was not addressed in the latest correspondence. Informally, we understand that the ombudsman is favourably disposed to it, and we hope to have confirmation of that today. The OFMDFM Committee will consider it tomorrow.

The Chairperson (Lord Morrow): Does any member require further clarification from the OFMDFM Committee on the issue? If that were the case, we would defer until 30 June. Are members agreed with that?

The Chairperson (Lord Morrow): Clause 8 provides the power for the NIPSO to launch an investigation without waiting for a complaint from the person aggrieved. The Ad Hoc Committee, at its meeting on 9 June, agreed to seek further information on the power of own initiative investigations and the real potential of duplication in status, a query raised by the Commissioner for Older People.

The clarification and information sought on this clause has an impact on clauses 9 and 42 because consideration of both was also deferred until the Ad Hoc Committee considered clause 8.

Members have a Research and Information Service (RaISe) paper on own initiative investigations by ombudsmen and an extract from a report in May 2015 by the Welsh Finance Committee on its consideration of the powers of the Public Services Ombudsman for Wales. Mr McMillen and Mr Hicks, do either of you wish to make any comment on clause 8?

Mr Hicks: Not unless any points require clarification.

The Chairperson (Lord Morrow): Do members have any views on clause 8? Are you content with the proposed clause?

The Chairperson (Lord Morrow): Clause 9 provides for the NIPSO to establish and publish further criteria for when to launch an own initiative investigation. At the Ad Hoc Committee meeting on 9 June, it was agreed to defer consideration of clause 9 until the relevant information sought for clause 8 was available. Mr Hicks and Mr McMillen, do you wish to comment?

Mr Hicks: The research paper lists some of the criteria that the NIPSO might wish to include in those to be published under clause 9. Apart from that, I can provide clarification, Chair, if it is required.

The Chairperson (Lord Morrow): Mr McMillen, do you wish to comment?

Mr Jonathan McMillen (NIA Legal Services): No, Mr Chairman.

The Chairperson (Lord Morrow): Do members wish to comment or ask questions on clause 9? No. Are members content with the proposed clause?

The Chairperson (Lord Morrow): Clause 10 provides for the NIPSO to have the flexibility to use alternative methods of resolving complaints made about listed authorities. On 9 June, the Committee agreed to return to consider clause 10 following the further consideration of clause 11.

Clause 11 summarises some of the purposes of an investigation, which are to check whether the complaint is justified and look at how it can be resolved. Legal advice was sought on whether clause 11(b)(ii), in providing the ombudsperson with the power to recommend a financial payment to the aggrieved person, creates a parallel jurisdiction to award compensation without the necessary safeguards that have evolved in civil court proceedings. The Committee has heard that advice. Mr Hicks or Mr McMillen, do you wish to comment at this stage?

Mr Hicks: I have nothing to say at the minute, Chair.

The Chairperson (Lord Morrow): Do members wish to ask questions or make any comments? No. Are members content with clause 11?

The Chairperson (Lord Morrow): I remind members that clause 10 would be influenced by the outcome of the deliberations on clause 11. Mr Hicks or Mr McMillen, do you wish to comment on clause 10?

Mr Hicks: Not unless you require clarification at some point, Chair.

The Chairperson (Lord Morrow): Do any members require clarification or have questions or comments? No. Are members content with the proposed clause 10?

The Chairperson (Lord Morrow): Schedule 3 is introduced by clause 12. It lists all the authorities within the NIPSO remit. At our meeting on 9 June, we agreed to defer consideration of schedule 3 because it includes universities and has an impact on clauses 18 and 23, which were deferred until today. The OFMDFM Committee has proposed amendments to schedule 3, and the details can be seen in members' papers. However, those further amendments to the schedule do not address the amendments suggested by the Northern Ireland Audit Office (NIAO). The OFMDFM Committee has also advised that it is still considering the issue of the four theological colleges, which came up for debate. Mr Hicks or Mr McMillen, do you wish to comment?

Mr Hicks: Yes, Chair. I hope that we have addressed some of the points raised by the Audit Office. Our suggested amendments add the Audit Office and the Local Government Auditor to the list of bodies in clause 42. There was also a suggestion from the Audit Office, but I am afraid that I did not pick up on that, Chair. It suggested that, when the Comptroller and Auditor General and the NIAO are identified in schedule 3, their specific functions, which are identified under the Audit (Northern Ireland) Order 1987 and the Local Government (Northern Ireland) Order 2005, should also be included. That issue has not been raised, and the OFMDFM Committee has not yet discussed it. It came up in previous informal views from the Audit Office, received via the ombudsman. At that point, the drafter's view was that listing the statutes under which each body exercises its functions would introduce complication. You would have to do it for all the listed authorities in schedule 3, and that did not seem particularly necessary. The other issue is that, if you list the specific statutes under which a body has functions, there is a risk that you will miss one. If you list only the body, however, you capture all the statutory functions of that body.

The Chairperson (Lord Morrow): Have members any comments or questions about what you have heard?

Mr A Maginness: I am not certain about your conclusion, Mr Hicks. The Audit Office raised that issue, and I thought it an important one. Are you saying that the draftsman says that it is too complex to do that?

Mr Hicks: The drafter's view was that, as it stands, without listing the statutes, a reference to, for instance, the Northern Ireland Audit Office, will be understood as a reference to the Audit Office exercising all of its functions under every statutory provision.

Mr A Maginness: Will that satisfy what the Audit Office said to us?

Mr Hicks: I am not entirely sure what the specific concerns of the Audit Office were, other than maybe to capture specific functions of one of the bodies listed. That may be the only statute in [Inaudible.]

.

The Chairperson (Lord Morrow): We are looking up exactly what the Audit Office said. It suggested:

I am not sure that that clarifies what the Audit Office is saying. I am told that what the Audit Office seems to be saying, Mr Maginness — I do not know whether this will help you — is that it would like the Bill to specify its functions as identified in:

I am not sure what they are asking for there.

Mr McMillen: The usual way in which one reads a statute is that, if one qualifies a reference, those words have a limiting effect. Mr Hicks's point is that, if we simply specify the "Audit Office", we cover all of its administrative functions. If we specify the "Audit Office in respect of x and y", we cover only those specific functions, and, if additional functions were subsequently conferred on the Audit Office, the Bill would have to be amended — rather, the Act, should it become an Act, would have to be amended. I do not understand, from the draft, that any function of the Audit Office will be excluded. The risk in making the amendment proposed by the NIAO is that functions could be excluded.

Mr A Maginness: That would have the opposite effect of what was originally intended by the Audit Office. We need to come back to that, Chair.

The Chairperson (Lord Morrow): Yes, thank you. I was just going to say that we will park this, see whether it is possible to get more information and bring it back to the Committee. We will park it in the meantime and come back to it at our next meeting. Are members agreed with that procedure?

Mr A Maginness: This deals with the universities as well, does it not?

The Chairperson (Lord Morrow): We await more information on that.

Mr A Maginness: Does that mean that we do not have to make a determination?

The Chairperson (Lord Morrow): No, we are not making a hard and fast decision today.

Mr A Maginness: Thank you, Chair.

Mr Hicks: Are you coming to universities now?

The Chairperson (Lord Morrow): Yes, we are at clause 18. Members, clause 18 provides the NIPSO with a new power to investigate maladministration as it relates to university students. This clause supersedes the existing power of the visitor of a university to investigate complaints by students, excluding matters relating to academic judgement, over which the ombudsperson has no jurisdiction. It also makes provision for transitional arrangements. The Committee received a number of comments on this clause and agreed to defer its consideration until after seeking legal advice, which was received today. I remind members that the Committee also sought clarification from the OFMDFM Committee on universities and the theological colleges. That Committee's comments are in your papers and clarify the position in relation to Queen's University and Ulster University, but it is seeking further research on the theological colleges. This clause is linked to schedule 3 and clause 23. Mr Hicks and Mr McMillen, do you wish to comment?

Mr Hicks: I think that you have covered it, Chair. It is as per the note. We will request research on the theological colleges. The Assembly is not competent to legislate for the campuses in Birmingham and London. Queen's refers to Stranmillis and St Mary's as constituent colleges, which would be captured by the definition. In the amendments, Chair, you will notice that the drafter suggests removing the note at the end of schedule 3, which provides that reference to a university includes references to a constituent college, and inserting a new provision in the body of clause 18 itself to the same effect, to bring it up front and draw it to everybody's attention.

The Chairperson (Lord Morrow): Members, you are in possession of the legal advice. Are members content with the clause as proposed?

Mr Lunn: What is the situation with the further education colleges and the agricultural college?

Mr Hicks: The further education colleges are listed in schedule 3 as institutions of further education, so they are within the remit at that point. The College of Agriculture, Food and Rural Enterprise (CAFRE) is an integral part of DARD.

Mr Lunn: Why does the start of clause 18 refer only to Queen's and the Ulster University?

Mr Hicks: The rationale is to name the two specific universities, thereby omitting the Open University, which has a physical presence and students here. The clause does not apply to the Open University, as its students have recourse to the Office of the Independent Adjudicator (OIA), which is based in England. It was considered that the OIA was adequate provision.

Mr Lunn: Does that give students of the Open University a wider range of options when making complaints?

Mr Hicks: It does not appear so from the OIA website.

Mr Lunn: Where does St Mary's fit in?

Mr Hicks: Queen's describes St Mary's and Stranmillis as constituent colleges. The note at the end of schedule 3 and the proposed amendment to clause 18 say that reference to a university includes reference to a constituent college, school, hall or other institution of the university. That is how it is proposed to capture St Mary's and Stranmillis.

Mr Lunn: Do St Mary's and Stranmillis operate under — to use a non-legal term — the wing of Queen's University?

Mr Hicks: The OFMDFM Committee received an offer of informal information and the opportunity to liaise with university officials. We are taking advantage of that to make sure that they are properly captured. I understand that there is a memorandum of agreement between each of the colleges and Queen's. I have asked whether those are public documents and whether we could have sight of them to make sure that they are captured.

Mr Lunn: Anecdotally, you would sometimes think that Stranmillis and St Mary's were not part of the same organisation.

Mr Hicks: That may be explored further, Chair. They get their own block grants etc.

Mr Lunn: Are they funded through Queen's, or do they get their own block grants?

Mr Hicks: They get a block grant from the Department for Employment and Learning (DEL).

Mr Lunn: Separately. That is worth a bit more explanation.

The Chairperson (Lord Morrow): We will look at this again. We still await further information on the theological colleges, so it is not an issue that we can make a decision on today.

Mr A Maginness: There is a broader issue, which is whether we should include the universities under the ombudsperson, given that they have a board of visitors. Both universities made strong representations to us in an evidence session, and I thought that their arguments were quite persuasive. I have not made any decision on whether they should be included; in fact, I think that I would have to consult colleagues about that.

The Chairperson (Lord Morrow): Alban, that is one of the reasons why we are not making a decision. We are waiting for further information on the theological colleges. We would be better to deal with all the colleges holistically. We will not deal with them today, but that does not mean that you cannot say what you have to say. If you exclude the universities, the theological colleges might feel that they should be excluded too. We cannot determine that today.

Mr Lunn: Chairman, do we know what the current complaints procedure is for the theological colleges? Queen's has a board of visitors, but what do the theological colleges have?

The Chairperson (Lord Morrow): I am not sure that we have enough information to answer that question, Trevor. That is part of the research being carried out and will be brought to us when we get all the information about the theological colleges, but it is a fair point.

Mr A Maginness: The board of visitors is the culmination of a system or process of investigating complaints. You go through a system of investigation, and, if you are dissatisfied with that, you can appeal to the board of visitors. It is not that the complaints system is the board of visitors. There is a whole process before that, and it really is a court of appeal as far as the universities are concerned.

Mr Lunn: I can understand the argument and the loyalty to a system that has been tried and tested for over 100 years — that is fair enough. However, if we are considering which bodies to include and which to exclude, we need to know what their present arrangements are.

Mr Sheehan: Just for my information, who appoints the board of visitors in the universities?

Mr A Maginness: The Privy Council. It is an independent process of appointment similar to government appointments.

The Chairperson (Lord Morrow): Is it internal?

Mr A Maginness: It is external. High Court judges are appointed to it in Queen's and in the Ulster University.

The Chairperson (Lord Morrow): OK. Are members agreed that we park this again? We await further information and can have a further discussion or debate when we come back to it.

The Chairperson (Lord Morrow): We go now to clause 23, which reiterates that the prime function of the NIPSO is to investigate maladministration, save in cases where the investigation concerns clinical or professional judgement. On 9 June, the Ad Hoc Committee agreed to return to the clause once it had agreed clause 18 in relation to universities. The National Union of Students-Union of Students in Ireland (NUS-USI) said that clause 23 should be removed to enable the investigation of not only maladministration but other student complaints and appeals. Mr Hicks or Mr McMillen, do you have any comments?

Mr Hicks: I will just reiterate that the OFMDFM Committee's policy on clause 23 was that the statutory bar should remain, except for the professional judgement in relation to health and social care.

The Chairperson (Lord Morrow): Does anyone have any comments?

Mr Lunn: Just that I am lost.

The Chairperson (Lord Morrow): Yes, that is why there was a conversation going on at this end of the table, too, Trevor. Are members content with this? I have it in my head that this one should also be parked because it interrelates with the previous one.

Mr Sheehan: I agree with that, Chair. It seems to be connected to the previous clause that we were discussing, so I agree to park it.

The Chairperson (Lord Morrow): Are members content with that?

Mr Lunn: Who wants the clause removed?

The Chairperson (Lord Morrow): The National Union of Students.

Mr Lunn: I know about the union, but what did the OFMDFM Committee say about it?

The Chairperson (Lord Morrow): We do not seem to have anything of note that was said about it. Nothing stands out.

Mr Hicks: The normal power of an ombudsman is to look at maladministration, and clause 23 reinstates that. Nothing in the Bill authorises the ombudsperson to question the merits of a decision without maladministration by a listed authority in the exercise of discretion. The exceptions to that relate to professional judgement in health and social care. Apart from that, the ombudsperson looks only at maladministration.

Mr Lunn: The clause relates to the medical profession. Is that right? It is so that the ombudsperson cannot question the merits of a decision taken without maladministration, which is fair enough. That is a reverse way of saying what his duties are, but the explanation reiterates that the prime function is to investigate maladministration, save in cases of clinical or professional judgement. How does the concern of the National Union of Students relate to that?

Mr McMillen: It seems to be proposing an expansion of the remit of the ombudsperson to the merits of particular decisions taken without maladministration, which, as Mr Hicks said, would be a fairly significant departure from the functions of any ombudsman as traditionally recognised.

Mr Lunn: I tend to agree with the National Union of Students, in that it would like the powers of the ombudsperson extended beyond maladministration, but I do not quite get how the removal of this clause advances that. If the clause were removed, would that advance the case that the National Union of Students is trying to make?

Mr Hicks: It would go some of the way towards it. It might need other provision as well, but I think that it would need that removed as a starting point.

Mr Lunn: Are we coming back to this one?

The Chairperson (Lord Morrow): Yes. The more we talk about it, the more convinced we are that we should go down the road that we suggested first. Are members content with that?

The Chairperson (Lord Morrow): Let us move to clause 26, which determines the way in which complaints are to be submitted or, rather, provides for the ombudsperson to determine that. It includes the form in which complaints are made, including orally, by writing and digitally. It also provides the time limit for making complaints, including a reduction from 12 months to six months. The Committee wrote to the ombudsman requesting the number of cases that his office received after six months, but that figure has not yet been received.

The advice received from the OFMDFM Committee on 4 June is in members' packs. Mr Hicks and Mr McMillen, do you wish to make any comments?

Mr Hicks: The ombudsperson has the power to continue to investigate where a complaint is withdrawn. One of the issues raised was whether a report should be sent to a complainant who has withdrawn the complaint if the ombudsman decides to proceed. The OFMDFM Committee looked at the issue again in another context and decided that it was happy for a report to be sent to the complainant. It is probably a very unusual situation, but it does happen.

The Chairperson (Lord Morrow): Are members content with clause 6 as drafted?

The Chairperson (Lord Morrow): Clause 30 sets out how the NIPSO must carry out its investigations. It contains procedural rules to ensure that the investigation is fair to all parties.

There were concerns raised about the clause, including those from Colleges NI, the Law Society, the Bar Council, the Medical Protection Society, the Human Rights Commission and NILGA. The Committee therefore agreed to defer consideration of the clause until it received legal advice. That legal advice was considered earlier. The Committee for OFMDFM has also provided us with clarification on clause 30(2). Mr Hicks and Mr McMillen, do you wish to comment?

Mr Hicks: Maybe I jumped ahead in relation to clause 30(2). There is nothing else.

The Chairperson (Lord Morrow): Are members content with the clause as drafted?

The Chairperson (Lord Morrow): Clause 31 provides for the powers of the NIPSO to request information, documentation, evidence and facilities from a listed authority in its investigations. The Committee agreed to defer consideration of the clause until it received legal advice on clause 30. The Committee for OFMDFM has also provided us with clarification on clause 31. Mr Hicks and Mr McMillen, do you wish to comment?

Mr Hicks: No.

The Chairperson (Lord Morrow): If there are no comments, are members content with the clause as proposed?

The Chairperson (Lord Morrow): Clause 32 provides that the normal rules on confidential information and legal privilege do not apply for the purposes of the NIPSO investigating a listed authority.

The Bar Council, the Law Society and the Medical Protection Society had concerns about clause 32. Their submissions are included in members' packs. This clause should be considered in conjunction with clause 38, which states that information subject to legal privilege cannot be contained in a report, and clauses 40 and 41, which relate to the disclosure of information obtained by NIPSO during the course of an investigation. The Committee agreed to defer consideration of this clause until it had received legal advice. The legal advice was provided to the Committee earlier. Mr Hicks and Mr McMillen, do you wish to comment?

Mr McMillen: The provisions in question were given very thorough consideration by the Bill team, the draftsperson and the Committee. The policy position adopted was not adopted lightly. I am sure that Ms Kelly has given extremely thorough and comprehensive legal advice, and I would not wish to prejudge that.

The Chairperson (Lord Morrow): Having received the legal advice earlier and had a discussion, do members wish to comment or ask questions?

Mr A Maginness: The legal advice we received indicated that it was a very limited departure from the normal rule of legal privilege, that disclosure would be confined strictly to the ombudsman, and that there would be no subsequent publication of that advice. That is my understanding, and, therefore, in those circumstances, it is something that is permissible, could properly be considered by us and could appropriately be put into the Bill. That is my understanding of the advice, but the legal people, the Bar Council and the Law Society, raised issues about it. Obviously, you have to take what they are saying into consideration. Maybe we should defer consideration of this until we absorb all the information we have received.

The Chairperson (Lord Morrow): On what grounds would we defer it?

Mr A Maginness: Unless the Committee —

The Chairperson (Lord Morrow): I am not opposed to doing it, but I just want to hear it.

Mr A Maginness: I would say that the Bar Council and Law Society do not raise these issues lightly. Perhaps we should give them further consideration. I was fairly satisfied with what Ms Kelly told us. She did so in a very professional, objective manner, and I thought she was very clear on the legal position.

The Chairperson (Lord Morrow): Maybe if the Bar Council and the Law Society had the same information as we had they would be content too.

Mr A Maginness: They might.

Mr Lunn: I am not sure where we go with a situation where the internal legal advice and the opinion of the Bar Council and the Law Society appear to be at odds with one another.

The Chairperson (Lord Morrow): Members, I was not of the opinion that we should park this one, but I am open to persuasion. Alban Maginness feels that maybe we should in the circumstances. Do any other members have any views on it? If we are going to park it and if there is further information that members would like and they let us know what it is, we will endeavour to get that and present it at the next meeting and move on.

Mr Lunn: I take it that our legal advice from the Assembly team is privileged. Would it be possible, without showing the Bar Council and Law Society that actual advice, to ask for their comments?

The Chairperson (Lord Morrow): Well — [Laughter.]

— no, we will not. I do not think they would expect it. The Bar Council would take a very dim view if we were to show it our legal advice.

Mr Lunn: Do it the other way around.

The Chairperson (Lord Morrow): No, they are very capable of getting their own, I would have thought. They are in that position. Anyway, if the views of members are that we park it pending further information, let us do it.

Mr Lunn: Is there another authority that we could —

The Chairperson (Lord Morrow): Greater than the Bar?

Mr Lunn: Where do we go from the Bar Council?

The Chairperson (Lord Morrow): The reason that we will park it, if we are doing that, is for us to have a little extra time to determine it in our own minds and ask our staff if they can glean any information that may be requested. Failing that, folks, there is no reason why we should not go ahead; but I am going to come down on the side of rationale and reason, as I always do. Are members content to park it?

The Chairperson (Lord Morrow): We are going to do that, but we are doing it next week. We will not park it next week; we will make a decision. Is everybody content with that? Clause 38 provides that the ombudsperson report must not disclose the content of information subject to legal privilege. The Bar Council and the Medical Protection Society raised some concerns about the safeguards. Their submissions can be found in sections 4.3 and 4.5 in members' packs. The Committee agreed to defer consideration of the clause until it received legal advice. As you are aware, that advice has now been considered. Mr Hicks and Mr McMillen, do you have any comments?

Mr Hicks: No.

The Chairperson (Lord Morrow): We are getting to the stage where these are becoming interlinked, so there may be a case for parking this one also because we parked the previous one: they correspond. Are members content with that?

The Chairperson (Lord Morrow): We will take that decision next week, too.

Clause 41 provides a power for the Secretary of State and Northern Ireland Ministers to prevent the NIPSO disclosing information that is not in the public interest. It also requires the Secretary of State and the ombudsperson to agree a memorandum of understanding concerning the exercise of their functions in relation to the clause. Last week, the Committee noted some of the concerns that have been raised about the clause, and it agreed to write to the Committee for OFMDFM requesting further information on how the clause may operate in practice. The Committee for OFMDFM has provided the Ad Hoc Committee with that additional information. This included in section 5.5 in members' packs. Mr McMillen and Mr Hicks, do you wish to comment?

Mr McMillen: Having briefed the OFMDFM Committee, the material on the public interest that was communicated to it has been communicated to the Committee in that correspondence. Unless members wish me to talk about that in any detail, I do not propose to make any further comment.

The Chairperson (Lord Morrow): Do members have any comments or questions? You will recall that we had a discussion about this one earlier in terms of it perhaps being open to abuse and also around freedom of information requests. Everyone seems to be pretty content. Are members content with the clause?

The Chairperson (Lord Morrow): Clause 42 provides that, if the NIPSO is investigating something that another ombudsperson is investigating, then the NIPSO must consult that ombudsperson. It also provides for the NIPSO to consult that other ombudsperson. The Commissioner for Older People raised some concerns about the clause. On 16 June, the Committee agreed to consider the clause when it reconsidered clause 8: 'Power to investigate on own initiative'. As you are aware, clause 8 was considered earlier today and was agreed. Do Mr Hicks or Mr McMillen wish to say anything on this one?

Mr McMillen: No comments.

The Chairperson (Lord Morrow): Members, do you have any views? I suspect not, since we discussed it earlier. Are members content with the clause as proposed?

The Chairperson (Lord Morrow): Clause 47 provides for information that is subject to legal privilege. The Bar Council and the Medical Protection Society raised some concerns about the clause. The Committee agreed to defer consideration of the clause until after it received legal advice, which, as you know, was considered earlier.

Mr Hicks: It is one of the protections.

The Chairperson (Lord Morrow): So, members, we have to park this one, too. Are you content with that procedure?

The Chairperson (Lord Morrow): Clause 49 provides that the Office of the Northern Ireland Judicial Appointments Ombudsman is automatically occupied by the person who is currently the NIPSO. Schedule 6 sets out more detail on how that is to work in practice. On 16 June, the Committee agreed to wait for the amendment to this clause by the Committee for OFMDFM. That has now been received and can be found at section 5.2 on page 75. The amendment is at line 11:

Mr Hicks and Mr McMillen, do you have any comments?

Mr Hicks: We have no comments unless there are questions.

The Chairperson (Lord Morrow): Have members any questions in respect of clause 49?

Mr A Maginness: This is a purely technical amendment, is it not?

Mr Hicks: Yes.

The Chairperson (Lord Morrow): Can I take it that members are content with the suggested amendment as read out?

The Chairperson (Lord Morrow): Let us move on. Clauses 51 and 52 give the Assembly Commission power to make further provision in order to give effect to the Bill. They also state the procedure to be followed in the making of subordinate legislation. On 16 June, the Committee agreed to await the response from the Committee for OFMDFM to the advice of the Examiner of Statutory Rules. On 18 June, the Committee received the response from the Committee for OFMDFM on that. Having noted the Examiner’s suggestion, it has agreed to request draft amendments to give effect to them. The only exception is the suggestion in paragraph 8 of the Examiner’s paper, on which the Committee for OFMDFM will seek the drafter’s advice. The Committee for OFMDFM has agreed to share those amendments, once it has had the opportunity consider and settle them. Mr McMillen and Mr Hicks, do you have any comments?

Mr Hicks: Let me just explain paragraph 8. The Examiner commented on the power for DFP to make regulations to address any problem that might arise for an existing previous officeholder's pension or a survivor of that officeholder. It has proved difficult to track down whether any people fall into that category. The Examiner suggests a different mechanism for preserving the relevant provisions of the 1996 orders on the statute book. The drafter's approach was to remove them; just repeal the 1996 orders if and when this legislation commences, a solution which was viewed as tidier from the point of view of the statute book. However, the OFMDFM Committee has asked the drafter to look at that again, in the light of the Examiner's comments.

The Chairperson (Lord Morrow): So, we are going to have to park this one also. Are members content with that?

The Chairperson (Lord Morrow): We are at schedule 7. This schedule contains amendments to Part 9 of the Local Government Act (Northern Ireland) 2014. The Committee has not yet received the suggested amendments from the OFMDFM Committee on schedule 7 and should, therefore, clarify whether it is still its intention to bring forward an amendment. Mr Hicks?

Mr Hicks: Yes, Chair. You kindly sent us the comments from OFMDFM and the Office of the Legislative Counsel (OLC) last week and on foot of that, as part of the request to the drafter, we have included the request to change the title of the commissioner for the purpose of investigations under the Local Government Act. The Minister of the Environment is content.

The Chairperson (Lord Morrow): That is not available yet?

Mr Hicks: No. Just to put all those amendments into context, Chair; we are not going to have them for the OFMDFM Committee to look at tomorrow. So, it will be the following week — which, I appreciate, will be after your 30 June meeting — before we have the amendments for the OFMDFM Committee look at and then send back to you.

The Chairperson (Lord Morrow): You know where we are going with this one. It looks like we will have to park it while we await that information. Are members content with that?

The Chairperson (Lord Morrow): We will move on. The next amendment is to schedule 4, page 35, line 30:

Mr Hicks: That is simply updating a statutory reference.

The Chairperson (Lord Morrow): These are technical. Are members content?

The Chairperson (Lord Morrow): The next amendment is a new paragraph in schedule 6, page 9, line 27:

Mr Hicks: That adds another bit to the schedule of repeals and will repeal the part of the Justice Act 2002 that requires DOJ to be responsible for the expenses of the Northern Ireland Judicial Ombudsman. We do not need that any longer.

The Chairperson (Lord Morrow): Are members content with that?

The Chairperson (Lord Morrow): The next amendment is to schedule 9, page 46, line 40:

Is also says, "The whole Act".

Mr Hicks: You will be aware of the short Act that went through the Assembly. When this legislation commences, that legislation can be removed from the statute book. It is tidying up.

The Chairperson (Lord Morrow): Are members content with that amendment?

The Chairperson (Lord Morrow): Members, you will recall that the Committee forwarded the OLC's paper on the Bill to the Committee for OFMDFM on 16 June for comment. The Committee for OFMDFM has informed this Committee that it has considered the OLC's comments and has agreed to request draft amendments in a number of areas and seek the advice of the drafter on others. When the OFMDFM Committee has considered the drafter's advice, it will write to update this Committee.

Mr Hicks: I may have commented on that a moment ago. That is essentially what has happened, Chair. We are waiting on the drafter.

The Chairperson (Lord Morrow): Members, we will have to be content to await the OFMDFM Committee's response on the OLC amendments. When are we likely to have those? Do we know? Next week?

Mr Hicks: I hope we will have some of them for the OFMDFM Committee to look at. That will be tomorrow week, Chair, but I appreciate that that will be after your last meeting: so, not next week.

The Chairperson (Lord Morrow): It will be September. You will be well rested and back to go through this again.

Mr Hicks, can you clarify the situation around disclosure? A Minister can refuse to disclose a document that would otherwise be discoverable under a freedom of information request. There is some concern that there seems to be an anomaly there.

Mr Hicks: The power to gather evidence during an investigation is in clause 31. It states:

The ombudsperson has the same powers as the High Court in respect of the production of documents. So, I do not see any get-out there. I think the ombudsman — ombudsperson — has to get sight of the documents. There is provision for the service of the non-disclosure notice at clause 41, which was the subject of the earlier note from the OFMDFM Committee.

The Chairperson (Lord Morrow): Trevor, are you content with that? You had some comments on this one.

Mr Lunn: I think I must be getting demob happy, Chairman. I am completely lost with this. I just want to start over again; I might contribute.

The Chairperson (Lord Morrow): There will be another day; I assure you of that.

Mr A Maginness: Are you saying to us, as a Committee, that we should not have a concern in relation to a Minister being able to refuse information? What is the import of that?

Mr McMillen: The ombudsperson has powers that, in fact, exceed those of the High Court to require the production of information, because a Minister cannot rely, for example, on Crown immunity or legal professional privilege or anything of that nature. The usual protections for government information are disapplied by the Bill. There are no grounds on which a Minister could refuse to give information to the ombudsperson. However, it may be that the information that he or she supplies to the ombudsperson is made the subject of a non-disclosure notice. The ombudsperson will have it but may not be able to disclose it.

Mr A Maginness: Publicly?

Mr McMillen: Yes, publicly, although, as the Committee will be well aware, that power has been used only twice in 40 years in the entire UK, so it is highly unlikely.

Mr A Maginness: That is very helpful.

The Chairperson (Lord Morrow): That brings us to the end, Mr Hicks and Mr McMillen. Thank you for your attendance here today.