Official Report: Minutes of Evidence
Ad Hoc Committee on the Public Services Ombudsperson Bill, meeting on Tuesday, 30 June 2015
Members present for all or part of the proceedings:
Lord Morrow (Chairperson)
Mr S Anderson
Mr L Cree
Ms M McLaughlin
Mr A Maginness
Mr Jim Wells
Witnesses:
Mr Alyn Hicks, Bill Team
Mr Jonathan McMillen, Legal Services
Public Services Ombudsperson Bill: Committee Deliberations
The Chairperson (Lord Morrow): Joining the meeting are Mr Hicks and Mr McMillen from the Ombudsperson Bill team. You are very welcome, and thank you for coming.
I remind members that 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. We will go through each clause and ask whether you are content with the clause as drafted; whether you require further information; or whether you wish to go back to the Committee for the Office of the First Minister and deputy First Minister.
The Clerk's brief outlines the clauses and issues that we will deal with today, namely, schedules 1 and 3; clause 18 and the related clause 23; and clauses 32, 38 and 47. Members have the response from the OFMDFM Committee to a number of issues raised at previous meetings of the Ad Hoc Committee. There is also a table of the deferred issues that it is proposed we consider at this meeting.
I advise members that clause 1 introduces schedule 1 and sets out the administrative detail of the establishment of the Northern Ireland Public Services Ombudsperson (NIPSO). On 9 June, the Committee agreed schedule 1 but also agreed to forward the Audit Committee submission to the OFMDFM Committee for comment. Members have a copy of the submission, in which the Audit Committee expresses its concern that schedule 1, paragraph 17, as drafted:
"may not provide the NIPSO with sufficient protection from the Executive controlling or directing its access to resources."
The Audit (Northern Ireland) Order 1987 provides for the Comptroller and Auditor General (C&AG) to prepare Estimates for the use of resources by the Northern Ireland Audit Office (NIAO), and the Northern Ireland Act 1998 provides for the Audit Committee to lay the Estimate before the Assembly.
"The Audit Committee's experience is that, despite it having this statutory function, DFP and the Executive have nonetheless sought to direct what the NIAO's budget should be."
The Audit Committee is seeking resolution through a protocol with the Department of Finance and Personnel (DFP) and is seeking ministerial agreement to a memorandum of understanding between the Assembly and the Executive on the budget process, in which such a protocol could be included. However, the Audit Committee is not aware that such a resolution is imminent and states:
"It is likely that as currently drafted, or without additional legislative provision, paragraph 17 of schedule 1 would allow for similar issues to arise in respect of the NIPSO and the budget of the NIPSO's office."
In the table of deferred considerations, members will see that the OFMDFM Committee considered the Audit Committee's submission regarding the position in respect of the Estimate of the Northern Ireland Audit Office. The OFMDFM Committee decided not to propose to table any amendments. It also considered the issue raised by the Audit Committee in relation to the Assembly not having the:
"power to pass at any time a resolution which reduces the salary payable to a person holding the office".
The Committee for OFMDFM responded that the matter could be brought to the Floor of the Assembly for debate, and a Member could pray against the order. It felt that this was a sufficient safeguard. Mr Hicks and Mr McMillen, do you wish to comment at this stage on the issues raised by the Audit Committee or the response from the Committee for OFMDFM?
Mr Alyn Hicks (Bill Team): Briefly, Chair, the OFMDFM Committee considered very carefully the Audit Committee's suggestions in relation to the process for agreeing the Estimate of the NIPSO's expenses. The Committee had modelled them on the Audit Committee's role in the NIAO budget. The Committee noted the distinction made between the Committee agreeing an Estimate and it being included in the Finance Minister's Budget Bill. The Committee also noted that, to date, there had been no divergence between the agreed Estimate and the figure included in the Budget Bill. It also noted that the Audit Committee was seeking to resolve the issue through a protocol with DFP. It was on that basis that the OFMDFM Committee was content to continue to keep the provision on the same terms as for the NIAO budget. The Committee also noted the provision that prevents the C&AG's salary being reduced. Chair, I think that you summarised the Committee's rationale, which is that, if there was an issue, it could be brought to the Floor of the House.
Mr Jonathan McMillen (Legal Services): No.
Mr A Maginness: In order to preserve the independence of the ombudsman, it was suggested that there be an amendment to the Bill — is that right?
Mr Hicks: I am not sure whether that is what the Audit Committee actually suggested. I think that it highlighted the situation in which it had found itself vis-à-vis the Northern Ireland Audit Office's Estimate, which the Audit Committee agrees.
Mr A Maginness: Yes, but I think that what the Audit Office is concerned about is DFP saying that its budget will be x, y, or z, and that this might amount to a reduction on the previous year's budget, which could impair the efficiency and independence of the Audit Office. Is that right? That was the concern expressed by the Audit Office. Is that a correct interpretation?
Mr Hicks: That is my understanding of the point being made, yes.
Mr A Maginness: By comparison, what is being suggested here is that the ombudsman could find himself or herself in a similar position, and it is to protect the independence of the ombudsman's office. Is that correct?
Mr Hicks: Yes. I think that the Committee looked at the model for the Audit Committee laying the Estimate for the Audit Office, and that provided a degree of independence from the Executive determining the budget. We are moving from a situation in which OFMDFM approved the current ombudsman and Commissioner for Complaints budget to a situation in which the Audit Committee would consider the Estimate.
Mr A Maginness: Would it be entirely within the remit of the Audit Committee to determine that particular budget? Is that correct?
Mr Hicks: I think that the ombudsman submits, there is an iteration with the Audit Committee, and then the Audit Committee approves the Estimate that has been agreed.
Mr Hicks: DFP has to be consulted on the NIPSO's Estimate, and I think that the Audit Committee then has to consider DFP's view. However, there is, I think, a distinction between the Estimate being agreed and the budget, which still belongs to the DFP, the Minister of Finance.
Mr A Maginness: That seems to provide a protection for the budgetary independence of the ombudsman.
Mr Hicks: My reading of the Audit Committee's submission — Jonathan may want to say something, too — was that it provides a degree of protection, but, ultimately, in the Committee's view, what goes into the Budget Bill is a matter for the Minister or the Department.
Mr McMillen: If I may assist, the model adopted copies the NIAO model because that is the most independent that we can make the process without infringing the constitutional principle of the financial initiative of the Crown, meaning that the Government propose expenditure and the legislature approves it. In the case of the Assembly, section 63 of the Northern Ireland Act requires the Minister of Finance to recommend a Budget to the Assembly. Ultimately, whatever figure is laid will have to be recommended by the Minister, and that gives effect to a very long-standing constitutional principle. With regard to that principle, the model adopted ensures the maximum possible independence for the ombudsperson, in that his budget is proposed and an estimate laid by a Committee rather than by a Minister.
Mr A Maginness: When the Minister lays his Budget, he is, in that particular aspect of it, really reflecting the consideration given to that by the Audit Committee.
Mr McMillen: One would expect the Budget Bill to reflect the figure proposed in the Estimate. That is the convention.
Mr McMillen: It is by convention, Mr Chairman, yes. The Budget Bill will always reflect the Estimates, but the Budget Bill must be recommended by the Minister. That is an excepted matter; the Assembly cannot affect that.
Mr Cree: That explains the existing situation very well, but I think that the fear is that, somehow, an unsympathetic Department of Finance and Personnel or Executive could hamstring the ombudsperson by cutting the budget too severely.
Mr McMillen: I understand that, but, equally, there is a risk that the Minister of Finance may not recommend the money proposed for the Assembly Commission, the Audit Office or any other body. That is the constitutional settlement.
Mr Cree: That is true, but the difference, of course, as you realise, is that, in the case of the Audit Office and the ombudsman, sometimes, in their work, they act, if you like, against the Departments. That puts a different slant on things.
Mr McMillen: That is true, and no doubt the C&AG, as with the ombudsperson, could be drawn into a position antithetical to that of a Minister, but, within the current framework, we are making the ombudsperson as independent as we can in terms of the funding afforded to the office. It should also be said that, as with any Budget Bill, if the Assembly does not like what is in it, it can simply refuse to pass it. That is the ultimate sanction.
Mr Cree: I suppose that, in theory, the Assembly could vote for more money. I do not know whether that has happened in recent times.
Mr McMillen: Any Budget Bill or public expenditure requires the authority of a Bill, but the Bill must be recommended by a Minister.
"in order to protect the independence of the C&AG, section 65(6) of the NI Act 1998 provides that the Assembly shall not have the power to pass at any time a resolution which reduces the salary payable to a person holding the office of C&AG for Northern Ireland at that time."
The Assembly does not have the power to interfere in that.
Mr McMillen: Mr Chairman, the Assembly does not have the power to reduce the salary payable to the C&AG, but it could reduce the amount allocated to the Northern Ireland Audit Office under the Budget Bill from year to year.
Mr McMillen: The Act protects the salary of the C&AG, but not the budget of the Audit Office.
Mr McMillen: The salary is paid from the Consolidated Fund.
Mr Cree: Until it would be reduced to below the salary of the ombudsman. Then there would be trouble, would there not?
The Chairperson (Lord Morrow): We had better cross that bridge when we come to it. OK, thank you. Let us move on.
Members, do you require further information or do you wish the schedule to go back to the Committee for the Office of the First Minister and deputy First Minister? No. OK. Are members content with schedule 1 as drafted?
Members indicated assent.
The Chairperson (Lord Morrow): We move to schedule 3, members, which sets out the administrative detail of the establishment of the NIPSO. The Northern Ireland Audit Office wished the schedule to be amended to identify expressly its functions under the Audit (Northern Ireland) Order 1987 and the Local Government (Northern Ireland) Order 2005. The Committee sought advice on this matter at last week's meeting.
The drafter considers that including a reference to the NI Audit Office in schedule 3 will be understood as a reference to the NIAO exercising all of its functions under every statutory provision. If the schedule was amended in this way for NIAO, and there was a subsequent change or addition to the applicable statutory provisions for the NIAO, schedule 3 would have to be amended.
In addition, a uniform approach would require that amendments be made for every listed authority. It would also be necessary to establish definitively that the statutory provisions mentioned for each listed authority were exhaustive of that particular authority's functions. As an example of the current approach, the Commissioner for Complaints Order does not include references to all the education statutes under which an education and library board has functions.
Mr Hicks and Mr McMillen, do you wish to comment?
Mr Hicks: I have nothing to add, Chair.
Mr McMillen: I have no comments, Mr Chairman.
Members indicated assent.
The Chairperson (Lord Morrow): 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 the university to investigate complaints from students unless on matters relating to academic judgement over which the ombudsperson has no jurisdiction. It also makes provision for transitional arrangements.
The Ad Hoc Committee is awaiting clarification in relation to the theological colleges from the Committee for OFMDFM, so we will not seek a Committee position on this clause as drafted today. However, we will seek a Committee position on the general principle of including universities within the NIPSO's remit.
We have submissions from Queen's University, Ulster University, Queen's student union, and the National Union of Students and Union of Students in Ireland (NUS-USI). The clause is linked to schedule 3 and clause 23.
Mr Hicks and Mr McMillen, do you wish to comment at this stage?
Mr Hicks: Not at this stage, Chair.
Mr McMillen: I have no comments, Mr Chairman.
Mr A Maginness: Yes. I still have an open mind on the substantive issue of the jurisdiction of the ombudsman in relation to the universities. I need to consult my party further on the matter. We await further information in any event. I suggest that we leave it open until such time as we receive that information.
The Chairperson (Lord Morrow): You have heard it suggested by Mr Maginness that we set this to one side in the meantime. I recognise that there are issues that members might want to talk to their party colleagues about. Since we have some time, now that we have an extension, I do not have a problem with parking this one.
Ms Maeve McLaughlin: I agree, given that further detail from the OFMDFM Committee is pending. The clause raised further issues, in that universities maybe approach this differently. It is important for us to access that detail, and I am happy that we park it in the short term.
The Chairperson (Lord Morrow): That will give members the summer months. You can consider this one as you go on holiday. You could take it with you, read up on it and so on. You are very fortunate that you can dwell on this over the summer months. [Laughter.]
We will park it in the meantime and allow you to get on with it. I suspect that that will not happen.
Clause 23 reiterates that the prime function of the NIPSO is to investigate maladministration, save in cases where the investigation concerns clinical or professional judgement. Clause 23 interrelates with clause 18. The Committee agreed that it would defer consideration until that clause and the principle of the NIPSO's role with universities had been considered and agreed. The submission from NUS-USI stated that the clause should be removed in order to enable not only maladministration but other student complaints and appeals to be investigated.
Mr Hicks: It may be worth highlighting that other UK ombudsman legislation contains similar provisions establishing the foundation position that decisions taken without maladministration cannot be investigated by the ombudsman. The OFMDFM Committee's proposals did not envisage extending the NIPSO's remit beyond maladministration in respect of universities or any other listed authority, the only exception being professional judgement in relation to social care, which was consulted on in the original consultation.
The Chairperson (Lord Morrow): Does any member wish to ask any questions by way of clarification? If not, are members content with the proposed clause?
Members indicated assent.
The Chairperson (Lord Morrow): We move on to clause 26. While the Ad Hoc Committee agreed clause 26 on 9 June, it agreed, at the meeting of 23 June, to wait for a response from the ombudsman on the number of complaints made to the office after six months. The ombudsman has responded and confirmed that the office is unable to provide that information as it does not collate those figures. Do members have any views? Are you content with the agreed clause?
Members indicated assent.
The Chairperson (Lord Morrow): We move on to clause 32. The clause provides that the normal rules on confidential information and legal privilege do not apply to the purposes of the NIPSO investigating a listed authority. The Bar Council, the Law Society and the Medical Protection Society all had concerns about clause 32. The clause should be considered in conjunction with clause 38, which concerns information subject to legal privilege and which cannot be contained in a report; clause 47, which concerns information that cannot be used in court proceedings; and clauses 41 and 42, which relate to the disclosure of information obtained by the NIPSO during an investigation. The Ad Hoc Committee agreed to defer consideration of this clause until it received legal advice. That legal advice was provided to the Committee earlier in the meeting.
Mr Hicks and Mr McMillen, do you wish to comment?
The Chairperson (Lord Morrow): Members, you are in possession of the legal advice. Following the legal advice received, are you content with the clause?
Members indicated assent.
The Chairperson (Lord Morrow): Clause 38 provides that an 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. The Ad Hoc Committee agreed to defer consideration of this clause until it received legal advice. That advice has now been considered.
Mr Hicks and Mr McMillen, do you wish to comment?
The Chairperson (Lord Morrow): Has anyone any comments or questions for Mr McMillen or Mr Hicks. There are no questions. Are you content with the proposed clause?
Members indicated assent.
The Chairperson (Lord Morrow): We move on to clause 47, which provides for which information is subject to legal privilege. Previously, the Bar Council and the Medical Protection Society raised some concerns about this clause. The Committee agreed to defer its consideration until it received legal advice. As you are aware, the legal advice was considered earlier.
Mr Hicks or Mr McMillen, do you wish to comment?
Members indicated assent.
The Chairperson (Lord Morrow): I advise members that the Committee awaits information from the Committee for OFMDFM on a number of issues in order to reach a position on remaining matters. In Part 2, we await information on the inclusion of a Complaints Standards Authority role for the NIPSO. For clause 18, we require information on how the provisions relate to theological colleges. We await amendments to clauses 51 and 52 following advice from the Examiner of Statutory Rules on procedures for the making of subordinate legislation. In schedule 7, there are amendments to Part 9 of the Local Government Act (NI) 2014 and amendments following advice from the Office of the Legislative Counsel.
We will consider those outstanding items at our first meeting in September. If you have any questions for Mr Hicks or Mr McMillen, you should avail yourselves of their services now. Are members content?
Members indicated assent.
Mr McMillen: I am obliged, Mr Chairman.