Official Report: Tuesday 20 October 2015


The Assembly met at 10:30 am (Mr Speaker in the Chair).
Members observed two minutes' silence.

Committee Business

Mr Speaker: I call the Chairperson of the Committee for the Office of the First Minister and deputy First Minister to move the Bill.

Moved.—[Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Mr Speaker: Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There are three groups of amendments, and we will debate the amendments in each group in turn. The amendments in group 1 deal with name changes and technical matters. The second debate will be on amendments relating to the powers and remit of the ombudsperson. The third debate will be on amendments dealing with the complaints handling procedure.

I remind Members intending to speak that, during the debates on the three groups of amendments, they should address all the amendments in each group on which they wish to comment. Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

Clause 1 (The Northern Ireland Public Services Ombudsperson)

Mr Speaker: We now come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate all the other amendments in group 1, along with the opposition to clause 52 stand part. These amendments deal with name changes and technical matters. Members should note that amendment No 10 is consequential to amendment No 9; amendment No 130 is consequential to amendment Nos 1 and 76; and amendment No 131 is consequential to amendment Nos 1, 76 and 130.

Opposition to clause 52 has been tabled by Mr Nesbitt as Chairperson of the Committee for the Office of the First Minister and deputy First Minister. I call the Chairperson of the Ad Hoc Committee on the Public Services Ombudsperson Bill, Lord Morrow, to move amendment No 1 and address the other amendments in the group.

In page 1, line 4, leave out "Ombudsperson" and insert "Ombudsman".

The following amendments stood on the Marshalled List:

No 2: In page 1, line 4, after "Ombudsperson" insert "(in this Act "the Ombudsperson")". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 3: In page 1, line 5, leave out subsection (2). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 5: In clause 2, page 2, line 1, leave out subsection (2) and insert

"(2) But this is subject to—
 
(a) the power of the Assembly Commission to determine the salary, pension and terms of appointment of the Ombudsperson under paragraphs 6, 7 and 8 of Schedule 1,
 
(b) the power of the Assembly to request Her Majesty to remove the Ombudsperson from office under paragraph 9 of Schedule 1,
 
(c) the power of the Department of Finance and Personnel to direct the form of accounts the Ombudsperson must prepare, under paragraph 7 of Schedule 2, or sections 9 to 13 of the Government Resources and Accounts Act (Northern Ireland) 2001.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 6: In clause 9, page 4, line 18, after "publish" insert "and have regard to". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 7: In clause 12, page 5, line 5, leave out "First Minister and deputy First Minister acting jointly may" and insert

"Office of the First Minister and deputy First Minister may, with the concurrence of the Assembly Commission". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 8: In clause 12, page 5, line 27, at end insert

"(b) its expenses are defrayed out of moneys appropriated by Act of Parliament,". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 9: In clause 12, page 5, line 31, leave out "First Minister and deputy First Minister acting jointly" and insert

"Office of the First Minister and deputy First Minister". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 10: In clause 12, page 5, line 33, leave out "they think" and insert "it thinks". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 14: In clause 15, page 6, line 22, after "decision" insert "of that body". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 16: In clause 16, page 6, line 31, after "decision" insert "of that body". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 20: In clause 17, page 7, line 15, after "decision" insert "of that body". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 25: In clause 19, page 8, line 10, leave out "First Minister and deputy First Minister acting jointly may" and insert

"Office of the First Minister and deputy First Minister may, with the concurrence of the Assembly Commission". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 26: In clause 22, page 9, line 7, after "may" insert

", with the concurrence of the Office of the First Minister and deputy First Minister". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 28: In clause 24, page 9, line 24, leave out "it is reasonable to do so in the circumstances" and insert

"there are special circumstances which make it proper to do so". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 36: In clause 28, page 10, line 35, leave out "it is reasonable to do so" and insert

"there are special circumstances which make it proper to do so". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 37: In clause 30, page 11, line 36, leave out "furnishes" and insert "provides". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 38: In clause 30, page 12, line 1, leave out "furnishing" and insert "providing". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 39: In clause 31, page 12, line 12, leave out "supply" and insert "provide". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 40: In clause 31, page 12, line 16, leave out "supply" and insert "provide". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 41: In clause 31, page 12, line 24, leave out "supply" and insert "provide". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 42: In clause 32, page 12, line 38, leave out "supply" and insert "provide". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 43: In clause 33, page 13, line 6, leave out "officer" and insert "member of staff". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 55: In clause 37, page 14, line 24, after "investigation" insert

"(other than one under section 8)". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 56: In clause 38, page 14, line 35, leave out "in accordance with section 32(2)" and insert

"under section 31(1) by virtue of section 32(2)". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 57: In clause 41, page 16, line 26, after "give" insert "written". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 61: In clause 47, page 19, line 27, leave out "in accordance with section 32(2)" and insert

"under section 31(1) by virtue of section 32(2)". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 62: In clause 48, page 19, line 35, leave out "or an officer of the Ombudsperson". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 63: In clause 49, page 20, line 11, at end insert

"(3) The person holding office as Northern Ireland Judicial Appointments Ombudsman immediately before the coming into operation of this section ceases to hold that office upon the coming into operation of this section.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 64: In clause 50, page 20, line 15, at end insert

""action taken by a listed authority" has the meaning given in section 13,". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 66: In clause 50, page 20, leave out lines 34 to 38 and insert

"(a) Minister of a Northern Ireland department, and
 
(b) junior Minister,". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 68: In clause 50, page 20, line 38, at end insert

""Northern Ireland Minister" has the same meaning as in the Northern Ireland Act 1998,". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 70: After clause 51 insert

"Orders
 
52.—(1) No order to which subsection (2) applies is to be made unless a draft of the order has been laid before, and approved by resolution of, the Assembly.
 
(2) This subsection applies to an order under section 12(2), 19(3), 22(2) or 51.
 
(3) Orders under paragraph 6(1) of Schedule 1 are subject to negative resolution.
 
(4) Orders mentioned in this section may contain such incidental, consequential, supplementary, transitional and savings provisions as appear to the authority making them to be necessary or expedient." — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 72: In clause 55, page 22, line 2, leave out "paragraph 11" and insert "paragraphs 5(2) and 11". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 73: In clause 55, page 22, line 3, at end insert

"(a) section 14(2)(d),". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 74: In clause 55, page 22, line 23, at end insert

"(c) section 11(c),
 
(d) section 29,
 
(e) section 30(4),
 
(f) section 36,
 
(g) section 37(3).". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 76: In clause 56, page 22, line 25, leave out "Ombudsperson" and insert "Ombudsman". — [Lord Morrow (The Chairperson of the Ad Hoc Committee on the Public Services Ombudsperson Bill).]

No 77: In schedule 1, page 23, line 5, at end insert

"1.—(1) The person for the time being holding the office of the Northern Ireland Public Services Ombudsperson is by that name a corporation sole.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 78: In schedule 1, page 24, line 40, leave out sub-paragraph (4) and insert

"(4) But—
 
(a) a person is not disqualified from being appointed as Ombudsperson by virtue of being the Northern Ireland Judicial Appointments Ombudsman,
 
(b) the Ombudsperson is not prevented from being appointed as the Northern Ireland Judicial Appointments Ombudsman.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 81: In schedule 2, page 28, line 40, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 82: In schedule 2, page 29, line 4, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 83: In schedule 2, page 29, line 11, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 84: In schedule 2, page 29, line 12, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 85: In schedule 2, page 29, line 13, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 86: In schedule 2, page 29, line 19, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 87: In schedule 2, page 29, line 22, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 88: In schedule 2, page 29, line 24, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 89: In schedule 2, page 30, line 16, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 90: In schedule 2, page 30, line 21, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 91: In schedule 2, page 30, line 36, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 92: In schedule 2, page 31, line 3, leave out sub-paragraph (2) and insert

"(2) Accordingly, Article 4(4) to (6) of, and Schedule 1 to, the Commissioner for Complaints (Northern Ireland) Order 1996, or, as the case may be, Article 5(4) to (6) of, and Schedule 1 to, the Ombudsman (Northern Ireland) Order 1996 continue to have effect with respect to such persons.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 93: In schedule 2, page 31, line 7, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 94: In schedule 2, page 31, line 10, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 95: In schedule 2, page 31, line 31, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 96: In schedule 2, page 31, line 31, leave out "but" and insert "and". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 97: In schedule 2, page 31, line 32, leave out "no complaint was" and insert

"a complaint could have been, but was not". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 98: In schedule 2, page 31, line 33, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 99: In schedule 2, page 31, line 34, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 100: In schedule 2, page 32, line 1, leave out "appointed" and insert "transfer". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 101: In schedule 3, page 32, leave out lines 9 to 21 and insert

"Northern Ireland Departments
 
A Northern Ireland department". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 102: In schedule 3, page 32, line 29, leave out "A" and insert

"The board of governors of a". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 105: In schedule 3, page 33, leave out lines 30 to 32. — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 106: In schedule 3, page 34, line 26, at end insert

"The Health and Safety Executive for Northern Ireland" — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 109: In schedule 4, page 35, line 30, leave out "Article 110 of the Planning (Northern Ireland) Order 1991" and insert

"section 203 of the Planning Act (Northern Ireland) 2011". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 110: In schedule 5, page 36, line 17, leave out paragraph 3. — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 111: In schedule 5, page 36, line 31, leave out sub-paragraph (2) and insert

"(2) But the Ombudsperson may investigate that action, notwithstanding any limitation of time imposed by section 26, if conditions 1 and 2 are satisfied.
 
(3) Condition 1 is that—
 
(a) the Attorney General has decided not to proceed with an investigation,
 
(b) the Attorney General has decided not to institute proceedings, or
 
(c) there has been a final determination of those proceedings.
 
(4) Condition 2 is that—
 
(a) a person aggrieved complains that the action resulted in the person aggrieved sustaining injustice in consequence of maladministration,
 
(b) that injustice has not been remedied, and
 
(c) the Ombudsperson is satisfied that there are reasonable grounds for that complaint.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 112: In schedule 6, page 39, line 27, at end insert

"9. Omit paragraph 13 (financial provisions and directions).". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 113: In schedule 6, page 39, line 33, after "Assembly" insert "Commission". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 114: In schedule 6, page 39, line 36, after ""Assembly" insert "Commission". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 129: In schedule 9, page 46, line 40, at end insert
"







The Ombudsman and Commissioner for Complaints (Amendment) Act (Northern Ireland) 2015

The whole Act.
 

 
" — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 130: In the long title, leave out first "Ombudsperson" and insert "Ombudsman". — [Lord Morrow (The Chairperson of the Ad Hoc Committee on the Public Services Ombudsperson Bill).]

No 131: In the long title, leave out second "Ombudsperson" and insert "Ombudsman". — [Lord Morrow (The Chairperson of the Ad Hoc Committee on the Public Services Ombudsperson Bill).]

Lord Morrow: As Chairman of the former Ad Hoc Committee on the Public Services Ombudsperson Bill, I would like to thank the members of the Committee, those who provided evidence to the Committee, the OFMDFM Committee Bill team, supporting officials and the Committee support team for the time and effort that they put into the Bill and into the preparation of the Committee’s report. The Ad Hoc Committee, by its very nature, carried out its scrutiny of the Bill in a relatively short period of time, and I am appreciative of the consideration paid by the members of the Committee during this period.

The aim of the Bill is to combine the offices of the Assembly Ombudsman and the Commissioner for Complaints into a single office for public service complaints — the Northern Ireland Public Services Ombudsperson, or NIPSO. The Bill not only combines the powers and remit of the existing offices but provides for the appointment of the NIPSO on the nomination of the Assembly and for the NIPSO to report to the Assembly.

While the Committee did not oppose any clauses in or schedules to the Bill in its consideration and was content with the amendments put forward by the OFMDFM Committee prior to its formal clause-by-clause scrutiny, members expressed concerns on a number of issues and made recommendations to the OFMDFM Committee, as the sponsor of the Bill, to take steps to address the Committee’s concerns. I will address these concerns throughout the course of the debate.

With regard to amendment No 1 and the other amendments proposed by the Ad Hoc Committee, namely amendment Nos 76, 130 and 131, the Committee is proposing that the title of the new office will be the Public Services Ombudsman. The Ad Hoc Committee considered the usage of the term "ombudsperson" in the Bill as drafted and noted that the OFMDFM Committee’s intention was that the name be unambiguously gender-neutral.

The Committee noted the comments of the International Ombudsman Institute, the Ombudsman Association and the Welsh and Irish ombudsmen that the term is already gender-neutral, that it is a trusted and recognised brand and that to change the title could cause confusion among the public. The Committee noted the Scandinavian origin of the term and its original meaning in Swedish as "representative". While, initially, some members of the Committee preferred ombudsperson as an explicitly gender-neutral form, following consideration of a research paper on the etymology of the term, the Committee agreed to propose amendments to change "ombudsperson" to "ombudsman".

There are over 200 instances of the word "ombudsperson" in the Bill, and the Committee, seeking an efficient and practical means of effecting its amendments, agreed that it would seek amendments to the first instances of the term in the Bill — that is, in clause 1 — and to the short and long titles at this Consideration Stage and, depending on the outcome of today’s proceedings, intends to table amendments to the other affected clauses at Further Consideration Stage. I understand that the OFMDFM Committee, as sponsor of the Bill, is content with the Ad Hoc Committee’s amendments to change "ombudsperson" to "ombudsman".

The Ad Hoc Committee did not have sight of amendment No 73 prior to the Committee’s formal clause-by-clause scrutiny and, therefore, does not have a view.

The Ad Hoc Committee considered the remaining technical amendments in this group proposed by the OFMDFM Committee following briefings from the Bill team and was content to agree them. The Chairperson of the OFMDFM Committee will, no doubt, explain the intentions behind those amendments in his contribution to the debate.

The Ad Hoc Committee considered clause 37, to which amendment No 55 relates, at length in its deliberations. Clause 37 provides the power for the NIPSO to lay a special report before the Assembly if, after conducting an investigation, it appears to the NIPSO that an injustice has been sustained and that the injustice has not been or will not be remedied or adequately remedied. The Committee noted evidence welcoming this provision as a means of strengthening the office of the NIPSO but also noted the concerns of representatives of the medical profession that such a power could be construed as coercive and have significant reputational impact, for example, for a general practitioner.

The Committee noted that the Ombudsman (Northern Ireland) Order 1996 provides for the laying of a special report before the Assembly. As at clause 11, the Committee noted stakeholder concerns with regard to potential implications of an ongoing judicial review and the laying of special reports. In considering legal advice on this issue, the Committee noted that the judicial review relates to the Commissioner for Complaints Order and that any decision on powers exercisable under the Commissioner for Complaints Order cannot be read across to this Bill. The Committee also noted that the NIPSO, as a public authority, will be required by section 6 of the Human Rights Act 1998 to act in a manner that is compatible with rights under the European Convention on Human Rights, including article 6, the right to a fair hearing, and article 8, the right to a private and family life, and to ensure that it discharges its functions in a manner that is procedurally fair.

While the Committee was content to agree clause 37 and amendment No 55, it expressed its reservations in respect of the provisions in this clause for the NIPSO to lay a special report before the Assembly and was concerned that such a power could potentially be construed as coercive and that such a report had the potential to have a detrimental impact on a medical practitioner. Accordingly, the Committee recommended that the Committee for the Office of the First Minister and deputy First Minister, as sponsor of the Bill, satisfies itself that there are proper safeguards and procedural fairness before any such power is exercised.

The Committee noted that the Audit Committee is seeking resolution through a protocol with DFP and is seeking ministerial agreement to a memorandum of understanding (MOU) between the Assembly and the Executive on the budget process where such a protocol could be included. However, the Audit Committee is not aware that such a resolution is imminent and states that it is likely that, as currently drafted, schedule 1(17) would allow for similar issues to arise in respect of the NIPSO and the budget of the NIPSO's office. The Committee sought the views of the Committee for the Office of the First Minister and deputy First Minister on the concerns expressed by the Audit Committee. The Committee for the Office of the First Minister and deputy First Minister noted the Audit Committee's comments but did not propose to bring forward amendments in this regard. The Committee for the Office of the First Minister and deputy First Minister noted the distinction made between the Audit Committee agreeing the estimate and its being included in the Finance Minister's Budget Bill. However, the Committee for the Office of the First Minister and deputy First Minister noted that, to date, there had been no divergence between the agreed estimate and the figure included in the Budget Bill. It further noted that the Audit Committee was seeking to resolve the issue through a protocol with DFP.

The Ad Hoc Committee was content to agree schedule 1 but draws the Assembly's attention to the concerns expressed by the Audit Committee that schedule 1 may not provide the NIPSO with sufficient protection from the Executive controlling or directing its access to resources. The Committee strongly recommends that the Committee for —


10.45 am

Mr A Maginness: I thank the Member for giving way. I think that this is an important point not just politically but constitutionally: if the Assembly is given the power to appoint and provide for, in payment to and the terms and conditions of, the NIPSO, that power should not be restricted by the Department of Finance and Personnel through funding. It is very important that the office of the ombudsman is seen to be and is, in fact, independent and properly resourced, and no constraints should be placed on it by the political office of the Department of Health and Social Services. The point that I am making to Lord Morrow is, I think, a very important and crucial part of the Assembly's considerations. Any safeguards that the Member has talked about must be foolproof and guarantee that independence, not just to the NIPSO but to the Assembly itself.

Lord Morrow: I thank Mr Maginness for the points that he makes. I have heard what he has said, and I think that similar points were made during the journey of the Bill through the Ad Hoc Committee.

The Committee strongly recommends that the OFMDFM Committee, as sponsor of the Bill, takes steps to address the concerns raised by the Audit Committee to ensure that there is sufficient protection from the Executive controlling or directing the NIPSO’s access to resources. The Committee notes that the Audit Committee has urged the Minister of Finance and Personnel to agree a proposed memorandum of understanding between the Assembly and the Executive on the budget process in which a protocol to resolve similar issues in respect of the budget of the Audit Office could be included. The Committee also notes that, to date, no such protocol or MOU has been agreed.

The Ad Hoc Committee recommends that an MOU acknowledging and safeguarding the NIPSO's financial independence should be agreed with DFP at the earliest opportunity. I look forward to hearing from the Chairperson of the OFMDFM Committee on how the Committee proposes to address the Ad Hoc Committee's recommendations and the Audit Committee's concerns.

The Ad Hoc Committee was content to agree the remaining technical amendments in this group proposed by the OFMDFM Committee.

Ms McGahan: Go raibh maith agat. I welcome the opportunity to speak on the Bill. I have been involved in it from its very inception, and although I am off the OFMDFM Committee, I still feel that I have a role to play.

The Chair will be aware that we are broadly happy with the provisions in the Bill. From its very inception, we opposed clauses 2, 3, 40 and 41, so it will come as no surprise that our party will oppose some of the amendments.

We will oppose amendment Nos 1, 76, 130 and 131 on the change from "ombudsperson" to "ombudsman". We live in a very progressive society. My understanding is that the term "ombudsperson" is used in America, and I do not believe that there is any confusion out there.

We will also oppose amendment No 5 on the appointment of the ombudsman by the Queen. We do not believe that the Queen has any role to play in that; it should be the Assembly. It is a point of principle. Again, the Committee Chairperson will be well aware of our stance from the very beginning; we are on record in regard to that matter.

We are also opposed to amendment Nos 57, 58 and 59 on disclosure contrary to public interest. We raised serious concerns throughout the discussions at Committee regarding national security and the involvement of the Secretary of State. When we were formulating our policy recommendations, the evidence showed that the policy was not utilised in any other region, so we did not believe that there was a need. However, it went to a vote, and the Committee voted to include the recommendation and to amend all the clauses that flowed from it.

That is all I have to say at the moment. I look forward to further consideration of the Bill.

Mr Eastwood: I give a broad welcome to the legislation. It is good and useful, and it is important that a Committee such as the OFMDFM Committee has done the work to bring such an important Bill to the House. It is a lesson for the rest of the Committees that that can be done well and properly. I sat on the OFMDFM Committee when the Bill was beginning its long process. I have not been on that Committee in quite a while, but we are here now. For my sins, I also sat on the Ad Hoc Committee, and we had some good debates on some of the issues.

I will focus on one issue in the first group of amendments: clause 37 and the laying of reports. We had concerns, as did the BMA, about the impact of general health practitioners being named on the schedule as some of the people who could be investigated by the ombudsman. We were slightly concerned about the size of a one- or two-person doctors' surgery compared with a trust or a Department and how all that fits together. We went through all the details, and, whilst we still have reservations, we are broadly content, having discussed the issues with the ombudsman.

The laying of reports concerned us. The potential for an individual doctor or a doctors' surgery being named at the Health Committee, for example, could be overreaching and have dire consequences for an individual doctor or a doctors' surgery. Given how connected and close our community is, the reputational damage to somebody around that type of activity could be very severe. We had those discussions in Committee and also spoke to the ombudsman, and we are broadly content now. The ombudsman said that he would be happy for those reports to be anonymised. We will keep a watchful eye on how that plays out, but, if we ever get to the stage of laying one of those reports to the Committee, it is important that they are anonymised to protect the individual doctors concerned. There are other issues, but that deals with many of the issues about general practitioners.

Mr Lunn: I was a member of the Ad Hoc Committee, and I will speak about the amendments that deal with the name of the ombudsman or ombudsperson.

Before I do that, I want to say that I agree with Mr Eastwood's comments about the laying of special reports. That may need more attention, along with representation at an ombudsman's hearing or, as he calls it, an inquisitorial process. At the moment, the Bill appears to allow the ombudsman, if a professional person is before him, to advise him that he may need legal representation. My concern is that it may be too late at that point. He may already have compromised his position, and, if a case has to go on to County Court level, the details of the ombudsman's hearing are discoverable. The laying of special reports, particularly for an individual GP or single-practice GP, is a cause for concern. We will have to return to that.

There is nothing sexist, or whatever the word might be, about the word "ombudsman".

As the Chairman said, it goes back into modern history and almost into prehistory. It is not an English word; it appears to be a Scandinavian word. It is in use around the world. I accept Ms McGahan's point that it is not in use in America now, but if you look around the near continent and anywhere else they have ombudsmen, you see that in only a very few circumstances do they call them ombudspersons. Some commissioners in some countries are referred to as "ombudspersons", but the general rule, historically based, is "ombudsman".

Mr Hazzard: I thank the Member for giving way. I would have taken a view similar to him until I did a wee bit of digging into this. You are right to reference the historical connotations when it comes to "ombudsman". It comes from the Old Norse: "umbodh":"commission"; "madhr":"man". That is something that we need to bear in mind.

When the Member started speaking today, a few times he referred to "he, he, he, he" when he referred to "ombudsman". So, it is not a sexist term, but if we are going to set up a new office, we maybe could break away from this, which leads us to always say "he" or "him, when it could be gender-neutral if we went for "ombudsperson".

Mr Lunn: Yes, I accept the rebuke from Mr Hazzard and his comment. I will, frankly, never manage to wholly convert to using "they" rather than "he" or "she". It is the way we are, but it does not mean any offence. I am sure he knows that.

Formal use of the word goes back to 1809, when the Swedish Parliamentary Ombudsman was formed. However, it was referred to in 1713 by the Swedish King Charles XII as Högste Ombudsmannen. If you want to trace it right back, you can find it in China in the Qin dynasty of 221 BC, never mind in the Korean history of the Joseon dynasty, which was around the same time. I could take you to the Turkish use of the word from 634 to 644. You could go on like this, but the fact is that down the centuries it has been common practice to use the term "ombudsman". There are plenty of female persons in the position of ombudsman around the world right now who have no problem with being called "the ombudsman". They quite value the phrase, actually.

That was the reason I proposed this amendment at Committee, and I will stand by it. It is a pity that we cannot agree about it, but there is no offence intended. I refer back to the "Women in Politics" report, which, I think, I instituted. I think that my record on this is good enough that if I occasionally say "he" instead of "she" or "they", you will forgive me.

Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister): On behalf of the Committee, I thank the Lord Morrow and the Ad Hoc Committee for the invaluable work it has done on the Public Services Ombudsperson Bill. Also thanks to the stakeholders who made submissions or gave evidence to the Ad Hoc Committee, Ministers and their officials, and the Ombudsman's Office, which contributed to the Committee's thinking during the Committee Stage.

The Ad Hoc Committee recommended that the OFMDFM Committee satisfied itself that there were adequate safeguards in place in relation to the exercise of the power to make a special report to the Assembly. That was in light of concerns raised that the naming of listed authorities in such reports could be construed as coercive. The OFMDFM Committee considered that point and took advice on it, concluding that we are content that it will be a matter for NIPSO, as a public authority, to exercise the power to make a special report in the manner that is compatible with the convention rights of the listed authority.

The power to make a report to the legislature is a key feature of other ombudsman legislation and underpins their authority. The Parliamentary and Health Service Ombudsman for England has made reports to Parliament about individuals who are general healthcare providers. I remind Members that this is a power that can be exercised only where NIPSO finds that the person aggrieved has sustained an injustice and that this has not or will not be remedied. I think that this place should be informed when that happens.


11.00 am

I will now address the concerns by Lord Morrow and Mr Eastwood, among others. It is a balance between the prospective reputational damage, for example to a doctor or a small GP surgery, and the fact that NIPSO has concluded that there has been an injustice that has not and will not be remedied.

The Audit Committee highlighted to the Ad Hoc Committee that, while the Audit Committee approves the budget estimate of the Comptroller and Auditor General and will approve the estimate of the NIPSO, this would not rule the possibility that the Department of Finance and Personnel might take a different view. The Committee for OFMDFM is aware that the Committee for Finance and Personnel has been working to address this issue. The Committee for OFMDFM will explore this again with both the Finance Committee and the Audit Committee to see if we can identify how best to progress and conclude a memorandum of understanding, which has been suggested as the best way of resolving the difficulties and tensions inherent in the involvement of the Executive in the Budget process for the bodies that scrutinise it. Lord Morrow talked of sufficient protection from interference by the Executive in setting the Budget for a scrutiny body of that Executive.

I note that the Ad Hoc Committee was content with the provision in the Bill that requires listed authorities to disclose to the NIPSO relevant information that would otherwise be privileged, such as relevant legal advice. I refer here to clause 32(2). I note that some Members continue to have concerns about that issue. I can assure Members that the Committee for OFMDFM, like the Ad Hoc Committee, took advice on this issue. The Committee for OFMDFM is satisfied that there are sufficient safeguards in the Bill to avoid information being used to the detriment of the listed authority. The content of the advice cannot be disclosed in the NIPSO's reports, as covered by clause 38, or used in court proceedings, as covered by clause 47. The normal privilege attaching to legal advice is not lost through disclosure to the NIPSO.

I now turn to the amendments before us. I will comment first on the Ad Hoc Committee's amendments to change "Ombudsperson" to "Ombudsman", namely amendment Nos 1, 76, 130 and 131. The Committee for OFMDFM, in light of the views expressed by the Ad Hoc Committee, commissioned more research on the etymology of the term "Ombudsman". In the end, the Committee was satisfied that the term is not gender-specific. There was cross-party support for the Ad Hoc Committee's amendments, although I note the contributions from Sinn Féin Members this morning.

The Committee for OFMDFM has proposed amendment Nos 2, 3 and 77 on foot of a suggestion from the Office of the Legislative Counsel. That is a recommendation that provision for the NIPSO to be a corporation sole would be preferable. I would like to thank the Office of the Legislative Counsel for that and a number of other very helpful comments. The effect of amendment No 77 is to provide that the NIPSO will be a corporation sole. That is in line with similar provision for the Comptroller and Auditor General and others.

Amendment No 3 removes the current provision in clause 1(2), which would have established the office of the ombudsperson. Amendment No 2 inserts "(in this Act 'the Ombudsperson')" at the end of clause 1(1) because this interpretation provision would have been lost with the removal of clause 1(2). I accept that, if amendment Nos 1 and 3 are made, clause 1(1) will read:

"There is to be a Northern Ireland Public Services Ombudsman (in this Act 'the Ombudsperson')."

However, this can be easily remedied at Further Consideration Stage.

Clause 2 declares that the NIPSO is independent and not subject to the direction or control of Ministers, Departments or the Assembly. However, all public servants must be accountable, not least for the public moneys that they receive. The Committee took the view that, where possible, accountability should be to the Assembly; to the legislature rather than the Executive. We felt that accountability should be clearly stated in clause 2(2) but, having reflected on comments received at Committee Stage, we agreed that not all the provisions referenced in clause 2(2) amounted to powers of direction and control.

Amendment No 5 changes clause 2(2) by both reducing the number of provisions referenced and making it clear what the nature of the provisions were, such as the setting of salary and other terms and conditions, the power of the Assembly to request the NIPSO's removal, which requires the support of two thirds of all MLAs, and financial accountability.

Clauses 8 and 9 provide for own-initiative investigations by the NIPSO. Clause 9 states that the NIPSO must publish the criteria for launching such an investigation. Amendment No 6 makes it explicit that the NIPSO must also have regard for those criteria.

Amendment No 7 reflects two changes suggested by the Examiner of Statutory Rules. I thank the Examiner for his report on the delegated powers, which the Ad Hoc Committee shared with us.

Clause 12 provides that the First Minister and deputy First Minister, acting jointly, may, by order, amend the schedule of listed authorities in schedule 3 that the NIPSO may investigate. The Examiner pointed out that such powers traditionally lie with Departments, and amendment No 7 provides for the power to lie with the Office of the First Minister and deputy First Minister. Amendment Nos 9, 10 and 25 reflect similar change.

Amendment No 7 also makes provision for another suggestion, namely that the power in clause 12 to amend the schedule of listed authorities is exercised with:

"the concurrence of the Assembly Commission".

That reflects the Committee for OFMDFM's policy of aligning the NIPSO with the Assembly. However, the Committee wishes to consider that approach further. On that basis, it has decided not to move amendment No 7 and come back to this issue at Further Consideration Stage.

Amendment No 25 introduces the same requirement in clause 19, which empowers OFMDFM to update the schedule of tribunals in schedule 4. Amendment No 26 mirrors this approach by providing that the power in clause 22 for the Assembly Commission to, by order, amend schedule 5 — which deals with matters that are excluded from investigation — is exercised with the concurrence of OFMDFM. The Committee has decided to not move amendment Nos 25 and 26. That will allow us time for further consideration and we will revisit them at Further Consideration Stage as necessary.

Amendment No 8 touches on clause 12, which sets some criteria for exercising the power to add new bodies to the schedule of listed authorities, one of which is being publicly funded. Amendment No 8 supplements the list of possible public funding mechanisms in clause 12(5) by inserting reference to expenses being:

"defrayed out of moneys appropriated by Act of Parliament".

Amendment Nos 14, 16 and 20 insert the words, "of that body", to avoid any possible misreading of clauses 15(2)(c), 16(2)(b) and 17(2)(c).

Amendment Nos 28 and 36 provide for standard wording across the clauses, where the NIPSO is deciding whether to accept a complaint that has been submitted or referred outside a time limit and where a complaints procedure has not been invoked and exhausted.

Clauses 24 and 28 are amended to reflect the wording in clause 26(4) so that the NIPSO may exercise discretion where:

"there are special circumstances which make it proper to do so".

Amendment Nos 37 to 43 inclusive standardise some of the terminology in the Bill, such as changing "furnish" and "supply" to "provide", and other similar changes.

Clause 37 deals with the NIPSO's laying of reports before the Assembly. Amendment No 55 clarifies that clause 37(2) does not apply to a report on an own-initiative investigation. Such reports are required to be laid in the Assembly by clause 37(3).

Amendment Nos 56 and 61, to clauses 38 and 47 respectively, insert references to the NIPSO's power to obtain information and documents under clause 31.

Amendment No 57 requires that any non-disclosure notice served under clause 41 must be in writing.

Amendment No 62, which applies to clause 48, omits the words:

"or an officer of the Ombudsperson".

Those words are unnecessary in light of the Committee's proposed amendment to the power to delegation in schedule 1 to the Bill. That is amendment No 79 to schedule 1, which we shall come to later.

Amendment No 63 deals with clause 49 and provides for the office of the Northern Ireland Judicial Appointments Ombudsman (NIJAO) to be held by the NIPSO. Amendment No 63 provides that the current NIJAO will cease to hold office when clause 49 comes into operation.

Amendment Nos 64, 66 and 68 inclusive amend clause 50 on interpretation. Amendment No 64 points the reader to the definition of "action taken by a listed authority" in clause 13. Amendment Nos 66 and 68 amend the provision dealing with Ministers so that "Minister" means a Minister of a Northern Ireland Department and a junior Minister and provides that "Northern Ireland Minister" has the same meaning as in the Northern Ireland Act 1998.

Amendment No 70 inserts, in effect, a new clause to replace clause 52, which the Committee opposes standing part of the Bill. The purpose is to make clearer provision for the exercise of delegated powers under the Bill in line with the recommendations of the Examiner of Statutory Rules, including changing the mechanism for certain order-making powers from affirmative to draft affirmative, requiring an order to be laid in draft and approved by the Assembly before the order is made.

Amendment No 72 commences the power for the Department of Finance and Personnel to make arrangements for the transfer of staff one month after Royal Assent. Amendment Nos 73 and 74 postpone the commencement dates for certain provisions to coincide with universities coming within the NIPSO’s remit on 1 October 2016 and own-initiative investigation powers, which will commence on 1 April 2018.

Amendment No 78 amends schedule 1 sub-paragraph 5(4). It makes clear that someone who is currently the Judicial Appointments Ombudsman is not disqualified from being appointed as the NIPSO. Schedule 2 paragraph 11 ensures that the current ombudsman would not be disqualified. It also ensures that appointment of the NIPSO as the Judicial Appointments Ombudsman is not prevented by paragraph 5(2), which prevents the NIPSO holding any other office.

We now come to 17 identical technical amendments and to schedule 2, which deals with the transfer of assets, staff and other transitional issues. They are amendment Nos 81 to 91, 93 to 95 and 98 to 100. References to "appointed day" become "transfer day", which is 1 April 2016.

Amendment No 92 replaces paragraph 8(2) of schedule 2. It preserves the provisions of the current legislation dealing with the pensions of previous ombudsmen to avoid any detriment to them from the repeal of the current legislation.

Amendment Nos 96 and 97 amend schedule 2 paragraph 10(1) to allow complaints to be made to the NIPSO in respect of the actions of listed authorities that predate the transfer day and which could have given rise to a complaint. Where a complaint is made after the transfer day, the provisions of the NIPSO legislation will apply.

Amendment No 101 amends the schedule of listed authorities in schedule 3, by replacing the individually named Northern Ireland Departments with a generic "A Northern Ireland Department".

Amendment No 102 changes the reference to "a grant-aided school" to refer to "the board of governors of a grant-aided school".

Amendment Nos 105 and 106 remove the entry for Health and Safety Agency, which was accidentally included in schedule 3, and relocate the entry for "Health and Safety Executive".

Amendment No 109 updates the statutory provision under which the Planning Appeals Commission is constituted. That reflects changes that were made after the NIPSO Bill had been introduced.

Amendment No 110 removes paragraph 3 of schedule 5. That provision excluded complaints between a healthcare body and a general healthcare provider about the arrangements between them. It is not needed because of the provision for complaints to come from a member of the public, that is, an individual or body other than a listed authority.

Amendment No 111 simply restructures paragraph 5(2) of schedule 5 to make it easier for the reader.

Amendment No 112 inserts words in schedule 6, which deals with the Northern Ireland Judicial Appointments Ombudsman, in order to repeal the provision of the Justice (Northern Ireland) Act 2002 that requires the Department of Justice to pay the expenses of the Judicial Appointments Ombudsman. The current ombudsman and the Department have agreed a reallocation of budget to cover NIJAO expenses.

Amendment Nos 113 and 114 deal with provisions of the Justice (Northern Ireland) Act, which require the NIJAO to lay an annual report and a power to direct the NIJAO to report on certain matters.


11.15 am

The general approach taken was that the annual report should be laid in the Assembly, rather than given to the Minister of Justice as at present, and that the power to direct the Northern Ireland Judicial Appointments Ombudsman to report on a particular subject should be similarly given within the Assembly. However, the Committee agreed to bring amendments Nos 113 and 114 to give that power of direction to the Assembly Commission.

Amendment No 129 includes in the table of repeals at schedule 9, the Ombudsman and Commissioner for Complaints (Amendment) Act (Northern Ireland) 2015, which the Assembly passed earlier this year to allow the acting ombudsman's term of appointment to be extended and to provide time for the Assembly to deal with this NIPSO Bill. It can safely be removed on commencement of the NIPSO Act.

That concludes my comments on this round.

Lord Morrow: In winding up on the first part of the debate, I would like to comment briefly in relation to some of the things that some Members have been saying. I will be very brief.

I was not aware that there was any division in relation to whether the person should be called an "ombudsperson" or "ombudsman". I think it was generally taken in the Committee that this was the road to go and I am a wee bit surprised that some are seeking to make an issue out of that particular point now, on the Floor of the Assembly. However, we have heard what has been said.

Also, we have not heard of the opposition to "Her Majesty" before either or, at least, I cannot recall it.

Mr Eastwood spoke in relation to clause 37, on the laying of special reports and the potential naming of a GP by a NIPSO. Yes, that was a matter that was discussed and stood quite a bit of debate and discussion and it was something that the Committee was perhaps exercised on, but we were able to proceed.

Trevor Lunn said that he shares the SDLP's concern on special reports and also concern that the provision of legal representation is at the NIPSO's discretion. He is quite correct. He gave us some history lesson in relation to the name of the ombudsman. He is quite correct when he says that it is of Scandinavian origins. He went on to remind us that it went back to the days of Charles XII. I think that Charles XII reigned somewhere between the late 1600s and the early 1700s. I hope I am correct in that, but I have no doubt that some of our historians will stand up and challenge me if it is not correct.

In respect of the technical amendments in this group proposed by the Committee for OFMDFM, Mr Nesbitt has provided the House with the Committee's intentions behind those amendments and I do not propose to rehearse those again.

In closing on this group of amendments, I thank all the Members who have contributed to the debate so far.

Question put, That amendment No 1 be made.

The Assembly divided:

Question accordingly agreed to.

Amendment No 2 made:

In page 1, line 4, after "Ombudsperson" insert "(in this Act "the Ombudsperson")". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 3 made:

In page 1, line 5, leave out subsection (2). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Mr Speaker: We now come to the second group of amendments for debate. With amendment No 4, it will be convenient to debate the other amendments in this group, which deal with the powers and remit of the ombudsperson. Members should note that amendment Nos 21 and 22 are mutually exclusive; amendment No 59 is consequential to amendment No 58; amendment No 108 is consequential to amendment No 24; amendment Nos 119 and 120 are mutually exclusive; and amendment Nos 121 to 123, 125 and 128 are all consequential to amendment No 115.

I call the Chairperson of the Committee for OFMDFM, Mr Mike Nesbitt, to move amendment No 4 and to address the other amendments in this group.

Mr Nesbitt: I beg to move amendment No 4:

In page 1, line 7, after "investigate" insert "alleged".

The following amendments stood on the Marshalled List:

No 11: In clause 14, page 6, line 8, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 12: In clause 15, page 6, line 18, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 13: In clause 15, page 6, line 20, leave out paragraph (b). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 15: In clause 16, page 6, line 29, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 17: In clause 16, page 6, line 32, leave out "clinical" and insert "professional". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 18: In clause 17, page 7, line 10, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 19: In clause 17, page 7, line 13, leave out paragraph (b). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 21: In clause 18, page 7, line 26, leave out subsection (2) and insert

"(2) The Ombudsperson may investigate alleged maladministration through action taken by a university in the exercise of administrative functions, in respect of students enrolled in courses validated by the university.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 22: In clause 18, page 7, line 27, leave out "in respect of students". — [Mr Allister.]

No 23: In clause 18, page 7, line 28, leave out subsection (3). — [Mr Allister.]

No 24: In clause 18, page 7, line 37, at end insert

"(7) In this Act, references to a university include references to a constituent college, school or hall or other institution of a university.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 53: In clause 35, page 14, line 5, leave out subsection (1) and insert

"(1) This section—
 
(a) applies where the Ombudsperson proposes to publish a report of a type referred to in section [Meaning of complaints handling procedure: Amendment 34](1), but
 
(b) does not apply in respect of an investigation conducted under section 8.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 54: In clause 35, page 14, leave out subsections (1) to (4) and insert

"(1) The Ombudsperson shall publish all reports of a type referred to in section [Meaning of complaints handling procedure: Amendment 34](1) on the public website of the Ombudsperson, with personal details redacted upon the request of any person affected, unless the Ombudsperson believes it would not be in the public interest to publish the report.". — [Mr Allister.]

No 58: In clause 41, page 17, line 1, leave out "the Secretary of State" and insert

"each of the office holders named in section 41(2)". — [Mr Allister.]

No 59: In clause 41, page 17, line 4, leave out subsection (5) and insert

"(5) The Ombudsperson must lay before the Assembly copies of all such memoranda and any revisions to them.". — [Mr Allister.]

No 60: In clause 42, page 17, line 38, at end insert

"(i) a local government auditor within the meaning of Article 4 of the Local Government (Northern Ireland) Order 2005,
 
(j) the Comptroller and Auditor General, and
 
(k) the Health and Social Care Regulation and Quality Improvement Authority under the Health and Social Care (Reform) Act (Northern Ireland) 2009.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 79: In schedule 1, page 27, line 4, at end insert

"Delegation of functions
 
14.—(1) Any function of the Ombudsperson may be performed by any member of staff of the Ombudsperson authorised by the Ombudsperson for that purpose.
 
(2) Any function of the Ombudsperson may be performed by any other person authorised by the Ombudsperson for that purpose if—
 
(a) that other person is suitably qualified to do so, and
 
(b) there are special circumstances which make it proper to do so." — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 80: In schedule 1, page 27, line 19, leave out sub-paragraph (5). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 103: In schedule 3, page 32, line 31, at end insert

"The General Teaching Council for Northern Ireland". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 104: In schedule 3, page 33, line 10, at end insert

"The Police Rehabilitation and Retraining Trust". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 107: In schedule 3, page 34, leave out line 32. — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 108: In schedule 3, page 35, leave out lines 2 and 3. — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 115: In schedule 7, page 40, line 7, leave out paragraph 2. — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 116: In schedule 7, page 40, line 19, at end insert

"3. After section 56 insert—
 
"Adjudication hearings
 
Adjudication hearings
 
56A.—(1) Where the Commissioner proposes to make an adjudication under section 55(5)(c), the Commissioner may first hold an adjudication hearing.
 
(2) The adjudication hearing must be held in public save to the extent that the Commissioner determines that this would not be in the public interest.
 
(3) Subject to—
 
(a) subsection (2), and
 
(b) the provisions of the 2015 Act which apply to adjudication hearings by virtue of section 63,
 
the procedure for an adjudication hearing is to be such as the Commissioner considers appropriate in the circumstances of the case.".". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 117: In schedule 7, page 40, line 19, at end insert

"4. In section 59 (decision following report) after subsection (7) insert—
 
"(7A) Where the Commissioner censures a person under subsection (4), the Commissioner must give notice to the clerk of the council concerned—
 
(a) stating that the person has failed to comply with the code of conduct;
 
(b) specifying the details of that failure; and
 
(c) stating that the person is censured in the terms the Commissioner has decided.".". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 118: In schedule 7, page 40, line 19, at end insert

"5. In section 59(10)—
 
(a) in subsection (a) omit "and",
 
(b) in subsection (b), at the end insert?

"and
 
(c) may be published elsewhere." — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 119: In schedule 7, page 40, leave out line 22 and insert

"63.—(1) The provisions of the 2015 Act set out below have effect in relation to this Part as follows.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 120: In schedule 7, page 40, leave out line 22 and insert

"63.—(1) The provisions of the 2015 Act set out below have effect in relation to this Part as follows, and as if the references to the Ombudsperson in the 2015 Act were references to the Commissioner.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 121: In schedule 7, page 40, line 34, leave out "Ombudsperson" and insert "Commissioner". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 122: In schedule 7, page 40, line 40, leave out "Ombudsperson" and insert "Commissioner". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 123: In schedule 7, page 41, line 4, leave out "Ombudsperson" and insert "Commissioner". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 124: In schedule 7, page 41, leave out lines 10 to 12 and insert

"(c) applies as if the reference in section 40(2)(e) to section 42 (consultation and co-operation with other ombudspersons) only applied in respect of the persons listed in section 42(4)(i) and (j) (local government auditor and Comptroller and Auditor General),
 
(d) applies as if the references to section 45 and 46 (court proceedings) were omitted.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 125: In schedule 7, page 41, line 16, leave out "Ombudsperson" and insert "Commissioner". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 126: In schedule 7, page 41, leave out lines 18 and 19. — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 127: In schedule 7, page 41, line 21, at end insert

"(9) The following provisions of the 2015 Act apply in relation to an adjudication hearing under section 56A as they apply in relation to an investigation under the 2015 Act—
 
(a) section 30(7)(b) of the 2015 Act (legal representation),
 
(b) section 30(8) of the 2015 Act (payments to persons giving evidence),
 
(c) section 31(3) of the 2015 Act (power to compel witnesses and require production of documents), and
 
(d) section 33 of the 2015 Act (obstruction and contempt) except for subsection (3).".". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 128: In schedule 7, page 41, leave out line 27 and insert

""the Commissioner" means the Ombudsperson (within the meaning of the 2015 Act) who is to be known, for the purposes of exercising functions under this Part, as the Northern Ireland Local Government Commissioner for Standards;".". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Mr Nesbitt: Amendment No 4 makes it clear that the principal purpose of the NIPSO is to investigate alleged maladministration and avoid any suggestion of prejudging the result of that investigation.

Amendment No 11 qualifies the NIPSO's power of investigation of complaints of maladministration by making it explicit that the power exists only for alleged maladministration through action taken in the exercise of administrative functions. While maladministration obviously suggests that the power of investigation related to administrative actions, the Committee was content to insert the explicit qualifying words. Those can also be found in amendment Nos 12, 15, 18 and 21, covering all the bodies that can be investigated in clauses 14 to 18.

Amendment Nos 13, 17 and 19 deal with the NIPSO's power to investigate complaints in the health and social care sector — complaints about the merits of a decision to the extent that it was taken in consequence of the exercise of professional or clinical judgement. The amendments remove reference to clinical judgement as a separate category so that the powers of investigation in clauses 15 to 17 cover professional judgement, reflecting the approach taken in the Welsh ombudsman legislation.

Amendment Nos 21 to 24 and amendment No 108 all touch on the NIPSO's proposed power of investigation in respect of universities. Amendment Nos 22 and 23 were tabled by Mr Allister, and I will come to them in a moment. The effect of amendment Nos 24 and 108 are to relocate a provision clarifying that:

"references to a university include references to a constituent college, school or hall or other institution of a university",

from the notes at the end of schedule 3 to the end of clause 18.

Amendment No 21 makes it clear that the power of investigation relates to complaints from students enrolled in courses validated by the university. The theological colleges that are members of the Queen's University Institute of Theology offer a range of courses, and not all their students are students at Queen's. Some are enrolled in courses validated by the University of Chester and the University of Cumbria, as well as others. The effect of amendment No 21 is to ensure that it is only those students at the theological colleges enrolled in courses validated by Queen’s who can complain to the NIPSO. The universities of Chester and Cumbria, and, indeed, the Open University, provide their students with access to the Office of the Independent Adjudicator at the conclusion of the internal complaints procedure.

While the Committee for OFMDFM's amendments would ensure that it is only students enrolled in courses validated by the university who can complain to the NIPSO, amendment Nos 22 and 23 from Mr Allister appear to take the policy in the opposite direction so that anybody could complain about a university. The Committee considered amendment Nos 22 and 23, together with Mr Allister's comments at Second Stage, and agreed not to support them. The fundamental question here is this: who are the users or consumers of the publicly funded services — namely, higher education — being provided by the universities? Clearly, the answer is that the students are.

Amendment No 53 clarifies that the power of publication of reports in the public interest in clause 35 does not apply to reports of own-initiative investigations. Publication of own-initiative investigation reports is dealt with by clause 36. Such reports must be published.

Mr Allister's amendment No 54 to clause 35 would in effect replace the Committee's proposal for publication of reports where the NIPSO considers it is in the public interest to do so with a requirement for the NIPSO to publish all investigation reports on the NIPSO website, unless the NIPSO believes that it would not be in the public interest to publish. Personal details would be redacted on the request of any person affected.

I remind Members that, at present, the reports of the ombudsman and the Commissioner for Complaints are not published and that the legislation prevents disclosure, save in very limited circumstances, one of which is the ombudsman's report to the Assembly. Other ombudsmen publish case summaries on their websites and, in some cases, more detailed reports of their investigations.

The Committee considered that the confidential nature of the investigation and the distribution of the report only to those immediately involved in the complaint tended to encourage open and frank engagement in the process, while the prospect of greater publicity may be a corresponding disincentive. In bringing forward its proposal in clause 35 for the publication of reports where the NIPSO considered it was in the public interest to do so, the Committee had regard to the views of the current ombudsman. The Committee considers that that represents the best balance and agreed that it would not support amendment No 54.

Mr Allister’s amendment No 58 would amend clause 41. Clause 41 provides that OFMDFM, acting jointly, a Northern Ireland Minister or the Secretary of State may serve a non-disclosure notice on the NIPSO where the Minister is of the opinion that the disclosure of a document or information would be prejudicial to the safety of Northern Ireland or the United Kingdom or otherwise contrary to the public interest. Clause 41(4) provides that the Secretary of State and the NIPSO must enter into a memorandum of understanding concerning the exercise of their functions in relation to that section. Amendment No 58 would require that all those who can serve a non-disclosure notice must enter into such a memorandum with the NIPSO, and amendment No 59 provides for a new clause 41(5) to allow for memoranda with a variety of Ministers rather than a single memorandum with the Secretary of State.

By way of background, the Committee considered a request from the Secretary of State for a mechanism in the Bill to help inform her decisions regarding the exercise of that power. The Committee agreed, by a majority, that that mechanism would be a memorandum of understanding to be agreed between the Secretary of State and the NIPSO concerning the exercise of their functions in relation to clause 41, and that the memorandum agreed would be laid in the Assembly. The underlying reason for that provision is that the Secretary of State would not normally be aware of what documents or information were being provided to the NIPSO and, therefore, would not be in a position to consider if a further disclosure by the NIPSO would be prejudicial to the safety of Northern Ireland or the United Kingdom or otherwise contrary to the public interest. Northern Ireland Ministers, on the other hand, would be in a position to be briefed about what information their Departments or agencies were disclosing to the NIPSO and be able to consider whether a non-disclosure notice was required. Therefore, the Committee does not consider that Mr Allister’s amendment is required and does not support it.

Amendment No 60 adds to the list of bodies with which the NIPSO must consult and may cooperate with under clause 42. Those are the local government auditor, the Comptroller and Auditor General and the Regulation and Quality Improvement Authority (RQIA), given its role in the regulation of health and social care bodies. The point of that provision is to avoid the duplication of functions, investigations and costs, and to enable maximum cooperation.

Amendment No 79 inserts a new provision in schedule 1 of the Bill that provides for delegation by the NIPSO to any member of staff. It also includes a new power to delegate to any other suitably qualified person where there are special circumstances that make it proper to do so. The ombudsman requested that power to manage circumstances where a conflict of interest might arise.

Amendment No 80 removes the current delegation provision at paragraph 14(5) of schedule 1.

Amendment Nos 103, 104 and 107 bring the General Teaching Council within the NIPSO’s remit — that is at the council’s request — add a newly created body, the Police Rehabilitation and Retraining Trust — that came in at the request of the Department of Justice — and remove, at the request of the Department of Agriculture and Rural Development, the Rural Development Council, which is independent and not core funded.

We now come to schedule 7, which deals with the NIPSO’s role in relation to investigations of complaints about breaches of the local government code of conduct under Part 9 of the Local Government Act (Northern Ireland) 2014. Amendment No 128 provides that the ombudsperson is to be known as the Northern Ireland Local Government Commissioner for Standards when investigating under the 2014 Act. That change was requested by the current ombudsman, and the Minister was content. As a result, we no longer need a number of provisions that insert "Ombudsperson’ at various places in the 2014 Act. Most notably, amendment No 115 removes a long list of such insertions, as do amendment Nos 121, 122, 123 and 125.


11.45 am

Amendment No 116 was requested by the current ombudsman, following agreement with the Minister of the Environment. It inserts a new section, 56A, into the 2014 Local Government Act to make explicit provision that the commissioner may, following a code of conduct investigation, hold an adjudication hearing and, where he or she does so, such a hearing must be in public.

Amendment No 127 provides that the NIPSO Bill provisions relating to legal representation, witness expenses, the power to compel witnesses and require production of documents, as well as the provisions relating to obstruction and contempt, apply in relation to an adjudication hearing as they apply in relation to a NIPSO investigation.

Amendment No 118 was also requested by the ombudsman. It will allow the commissioner to publish reports of investigations under the Local Government Act on his or her website.

Amendment No 117 provides that where the commissioner censures someone, notice must be given to the clerk of the council concerned.

The Committee has laid two amendments that touch on the opening paragraph of the new section 63 to be inserted in the 2014 Act on page 40 of the Bill. The Committee prefers the late, revised form of amendment No 120, and, accordingly, I will not be moving the earlier version in amendment No 119. Amendment No 120 provides for the applicable powers in the 2015 Act to be read as if they applied as if references to the ombudsperson were references to the commissioner. I will also mention, at this stage, that the Committee has agreed not to move amendment Nos 113 and 114, to allow further time for consideration of allocating functions to the Assembly Commission.

Amendment No 124 provides for the commissioner to exercise the NIPSO’s consultation and cooperation powers in relation to the Local Government Auditor and the Comptroller and Auditor General, in light of their remit in relation to the work of councils.

Amendment No 126 omits a reference to the expenses of the NIPSO in discharging this local government role. This is adequately set out in the Local Government Act 2014.

That concludes my remarks on this mid-section of our debate.

Lord Morrow: With regard to the amendment Nos 4, 11 to 13, 15 and 17 to 19, proposed by the Committee for OFMDFM, the Ad Hoc Committee noted that these amendments qualify the power of investigation of the NIPSO, in that the powers would relate to alleged maladministration through action taken in the exercise of administrative functions and would exclude any judicial or quasi-judicial functions. The Committee also noted the clarification provided with respect to the distinction between clinical and professional judgement. The Committee was content with these amendments.

In respect of clause 18, the Committee considered this new power for the NIPSO to investigate maladministration as it relates to universities, superseding the existing power of the board of visitors of a university to investigate complaints by students. The Committee noted the views of the universities, which felt that the existing board of visitors' system offered a more flexible remedy for students. Conversely, student representatives felt that the board of visitors should be excluded from considering any complaints in relation to student matters.

During its deliberations, the Committee sought clarification from the Committee for OFMDFM on the jurisdiction of the NIPSO in respect of constituent and theological colleges. The Committee noted that amendment No 21 clarifies the situation for students of theological colleges and ensures that only those students enrolled in courses validated by universities here can complain to the NIPSO.

The Committee noted that amendment No 24 provides clarity in respect of constituent colleges and that amendment No 108 moves the provisions in respect of amendment No 24 from schedule 3 to clause 18. The Ad Hoc Committee was content with these amendments proposed by the Committee for OFMDFM, but noted the concerns of some members in relation to the inclusion of universities within the NIPSO’s remit.

I move now to Mr Allister's amendment Nos 22 and 23 in respect of clause 18. The Ad Hoc Committee did not consider those prior to formal clause-by-clause scrutiny and, therefore, has no view. The Committee did, however, take note of Mr Allister's comments on those provisions in the Second Stage debate and raised the issues with the Northern Ireland Ombudsman when he gave evidence in May. It may be helpful to outline the ombudsman's response.

With regard to the NIPSO not having the power to investigate complaints made by university staff, the ombudsman highlighted the fact that the Committee for OFMDFM, in developing its policy proposals, decided that it was no longer defensible for only people in the public sector to have access to the NIPSO on employment issues and that there were other suitable mechanisms, such as the Equality Commission, industrial tribunals and so forth, for the resolution of such complaints. The ombudsman stated:

"it would not be consistent to abolish the employment jurisdiction in the public service and, at the same time, to be bringing university employment issues into the jurisdiction of the ombudsman. We are putting the employment issues of public servants and civil servants on the same footing as everybody else now across Northern Ireland."

I move now to Mr Allister's amendment No 53 to clause 35. The Committee did not have sight of the amendment prior to formal clause-by-clause scrutiny and therefore does not have a view. The Committee, during its deliberations on clause 35, noted that a number of stakeholders, in their response to the call for evidence, recommended that reports by the NIPSO be published. However, concerns were expressed by representatives of the medical profession about the publication of reports on investigations involving issues of clinical judgement. They recommended that reports on the exercise of clinical judgement not be published.

The Committee noted that the intention of the Bill, as drafted, is to leave to the NIPSO's discretion the determination of whether a report raises an issue of sufficient public interest to warrant publication. The Committee heard from the ombudsman that the publication of all reports would have resource implications. He said that moving to a position in which all reports should be put into the public domain would, he envisaged, develop over time as capacity and expertise in the ombudsman's office built. The Committee was content to agree amendment No 54 proposed by the Committee for OFMDFM to clarify the situation on the publication of reports in the public interest.

Amendment Nos 58 and 59, in the name of Mr Allister, relate to clause 41. The Committee did not have sight of the amendments prior to formal clause-by-clause scrutiny and therefore does not have a view.

The Committee, in its consideration of clause 41, which relates to disclosure contrary to public interest, noted that there is similar provision in legislation for the Scottish and Welsh ombudsmen and for the parliamentary ombudsman.

The Committee noted comments from the ombudsman:

"a memorandum of understanding with the Secretary of State is on narrow grounds to cover issues of national security. The Secretary of State is in a different position as regards NIPSO from Executive Ministers whose actions will be overseen by NIPSO. There would be a substantial risk of the perception that the NIPSO was not independent from the Executive if it were to enter into an MOU with the head of the Department he has power to investigate. This proposal would undermine the independence of the NIPSO. I consider that to extend an MOU to Executive Ministers would raise in the public’s mind suspicion and a perception of lack of independence and I do not consider it is necessary or desirable to extend this."

The Ad Hoc Committee had considered amendment Nos 60, 115, 119, 126 and 128 in this group prior to formal clause-by-clause scrutiny. The Committee noted that they were largely technical in nature, provided clarity on which provisions would have effect in relation to the Local Government Act and removed unnecessary drafting.

The Committee was content to agree those amendments.

With regard to amendment No 79 to schedule 1, which is proposed by the Committee for the Office of the First Minister and deputy First Minister, the Committee noted correspondence from the Northern Ireland Ombudsman seeking this amendment in order to provide for delegation to any other person to, first, allow for delegation of an investigation to another ombudsman should a conflict arise and, secondly, to provide for an external review process. As the amendment was not available for the Committee's consideration prior to formal clause-by-clause scrutiny, the Committee did not take a view.

Regarding amendment Nos 103, 104 and 107 on the listed authorities in schedule 3, the Committee noted various requests made to the Committee for OFMDFM for amendment to schedule 3, namely from the General Teaching Council and the Department of Justice to add the Police Rehabilitation and Retraining Trust to the listed authorities under the remit of the NIPSO. The Committee also noted that the Department of Agriculture and Rural Development sought the removal of the Rural Development Council from the listed authorities. The Committee for OFMDFM's amendments to give effect to these changes to schedule 3 were not available for the Ad Hoc Committee's formal clause-by-clause consideration, and the Committee did not take a view.

The Committee did not have sight of the remaining amendments in the group prior to the formal clause-by-clause scrutiny and therefore did not take a view.

Mr Maskey: Go raibh maith agat, a Cheann Comhairle. I rise to make a number of points on this group. First, I thank all the officials, who have been very supportive of the Committee in our fairly lengthy and protracted deliberations on the Bill, including the Bill Office officials, who have been helpful and supportive to all members.

Earlier, my colleague Bronwyn McGahan made it clear that we are very much in support of the Bill, albeit that we are opposed to a small number of its provisions, particularly the relationship that the Bill wants there to be in the appointment of the ombudsperson by "Her Majesty", as referred to in the Bill; issues around disclosure in relation to the Official Secrets Act; public interest matters; and, equally, the proposed involvement of the Secretary of State. We are opposed to those matters and have made that very clear consistently. I note that Lord Morrow said that he had never heard those issues or concerns. That may well have been the case at the Ad Hoc Committee; I do not know as I am not a member of that Committee. Certainly, at the principal Committee, the Committee for OFMDFM, concerns were routinely and consistently raised at every occasion when the matter arose in deliberations. I think that the Committee Chairperson would acknowledge that. Obviously, we did not get support for that and, again, that is a matter of record, but we are very much in support of the intent of the Bill itself.

As has been made very clear, the Bill is about merging the office of the independent Commissioner for Complaints with the ombudsman's office, as it is currently, into the new NIPSO. We believe that the new provisions in their totality will actually enhance the protections of members of the public who may well fall foul of any deficits that there may well be in the public sector and in public-service delivery. Again, I put on record that, as far as we are concerned, we all know that the vast majority of public servants and those who are charged with responsibility to dispense public services are absolutely 100% professional, have personal and professional integrity and deliver a perfect or very good service, but of course there are always cracks in the various systems. The Bill is designed to try to ensure that people who fall foul of any of those deficits have the maximum protection at their disposal.

We have considered all the matters long and hard. Some of the decisions that the Committee has reached, mostly by way of consensus, have been on the basis of the balance of the evidence that was presented to us. I think that the Chairperson highlighted a number of those very well in his remarks, particularly when opening this group.


12.00 noon

I would just like to make a couple of points. We will oppose a number of amendments in this group. We will oppose amendment Nos 22 and 23, moved by Mr Jim Allister. As has already been suggested, these relate to whether this remit would be exclusively at the disposal of students or whether it would bring in others. It is important to reiterate the point that this is about the delivery of public services at the discretion of the recipient of those services where it is believed that there has been a failure. Staff and others have other recourse to redress if they feel the need for it. On that basis, we are opposed to amendment Nos 22 and 23.

We are also opposed to amendment No 54 on the basis that the ombudsman, the ombudsperson or the NIPSO will have all the latitude necessary to make judgement calls. On balance — the Chairperson of the OFMDFM Committee has already made this point — where reports will generally be withheld from those directly involved, that has led to better outcomes for the complainants. On balance, that is why we took that decision.

We are opposed to amendment Nos 58 and 59 because they relate to clause 41, and we have already made it clear that we are opposed to clause 41.

Mr A Maginness: I wish to refer to clauses 30 and 32. Clause 32(1) and (2) deals with legal privilege. Some issues were raised in relation to legal privilege, and it is worth addressing them. It has been suggested, in particular by the BMA, that those provisions would introduce a new power for the NIPSO to override legal professional privilege. In fact and, indeed, in law, that is not correct because the ombudsman's current powers in relation to investigations conducted as the Assembly Ombudsman under the Ombudsman (Northern Ireland) Order 1996 permit the ombudsman access to legal advice held by Northern Ireland Civil Service Departments and their statutory agencies. His practice has been to request access to legal advice infrequently and only where it is relevant to an investigation. The legal advice is, however, not shared with the complainant, or with any other person, and is held in confidence by the ombudsman and his staff.

I would certainly be very concerned if, in fact, that threatened legal privilege, as it is important that we preserve legal privilege. However, given the legal advice that the Ad Hoc Committee received on this matter, and considering what the ombudsman has said about this aspect of the Bill — that is, clause 32(1) and (2) — I am reassured that legal professional privilege is not threatened in a real sense by clause 32. Those who have, properly, raised criticisms about clause 32 should themselves be reassured that it does not stray into that area and that legal privilege is safeguarded in these circumstances.

I wanted to raise that because I know that it was a matter that concerned a number of people, not just the BMA but the Bar Council.

It also concerned the Law Society and others involved in the legal profession, but I think that the House can be assured that, in fact, legal professional privilege is protected, and the Bill continues with that protection.

Mr Nesbitt: I thank the Member for giving way because I very much value his assurance that he accepts that legal privilege is being protected, not least given his legal background. An earlier contributor felt that legal advice could be disclosed in the County Courts. I assure Members that that is not the case. The only person who will have access to privileged legal information will be the ombudsman, which will allow him or her to come to the right decision. The ombudsman will not disclose that legal privilege further under any circumstances, so, as Mr Maginness pointed out, that barrier is protected.

Mr A Maginness: I am grateful to Mr Nesbitt for his contribution. It is important to reassure the public generally and legal practitioners. Effectively, there is a firewall for the legal advice that the ombudsman receives, which does not permit such legal advice or information to go further than his office. It is important to remember that.

Another issue relates to clause 30(7)(b) and legal representation. That clause gives the NIPSO discretion to determine whether a person can be legally or otherwise represented. Subsection (7) states:

"In particular the Ombudsperson may—
(a) make such inquiries as are appropriate, and
(b) determine whether any person may be represented in the investigation by counsel, solicitor or otherwise."

The BMA raised that matter. It said that the opportunity currently exists in article 12 of the Commissioner for Complaints (Northern Ireland) Order 1996 for the body complained against to request a formal hearing and be legally represented. The BMA said that, under the Bill, that provision will be removed but that there is a right to legal representation at the ombudsman's discretion. That is correct: if this clause is accepted, there is now a discretion, in certain circumstances, for the ombudsman to permit legal representation.

I am not saying definitively at this point that I disagree with the removal of the automatic right of representation and that the discretion is wrong. What I do raise is the issue of whether the House should consider allowing the current situation to remain — an automatic right to legal representation in certain circumstances — as opposed to a discretion on the part of the ombudsman. I raise the issue because I think that the House should think carefully about this and reflect on it, and it may be that, at Further Consideration Stage, the matter could be re-examined by way of further amendment. Technically, it may prove difficult when considering whether or not that is possible. Nonetheless, the House should be sensitive to the matter and give it special consideration. There is a sense that, if there is not automatic legal representation, then the person or body being investigated would be at a disadvantage.

Mr Nesbitt: I thank the Member for giving way. I am not speaking as Committee Chairman on this occasion, because I do not think that we have looked at the issue in those terms. You said that we should consider these matters, and I very much agree. Perhaps we should look at the recent example of the historical institutional abuse (HIA) inquiry where, I think, the chair, Sir Anthony Hart, makes the call as to whether individuals or groups should have access to publicly funded legal representation. It may be an idea to examine the efficacy of how that regime has worked heretofore in the HIA inquiry.

Mr A Maginness: The Member makes a very good point. It may well be that the House prefers the new arrangement, or what is posited as the new arrangement, in terms of the ombudsman having that discretion.

I raise these points because I think that, where stakeholders go to the extent of giving evidence to a Committee — the Ad Hoc Committee in this instance — and make representations to individual Committee members and individual political parties in the House, we should at least ventilate those issues so that they are not forgotten about when we consider aspects of this Bill or, indeed, any other legislation.

I will just conclude by speaking about clause 11(b) on an investigation by the ombudsman, which states:

"where it appears to the Ombudsperson to be desirable, to bring about a settlement, including by recommending that—
(i) action be taken by the person aggrieved or listed authority, or
(ii) that the listed authority make a payment to the person aggrieved".

It has been suggested that this is, effectively, a compensatory payment that the ombudsman is imposing on the public body or individual complained about. That is an incorrect interpretation of the previous legislation and what is proposed in this Bill; he is making a recommendation. The whole approach of the ombudsman is to try to reach a settlement, and contained within that settlement is a recommendation. The person or body complained about does not have to accept the recommendation, although it has to be said that, in many instances, it is accepted. However, it is not, in fact, a compensatory payment: that should be made clear. That view has been expressed to the Ad Hoc Committee and to the House, and I think it is incorrect. Yes, in circumstances where the recommendation is rejected, the complainant can go to the County Court in order to have it determine what payment can, in fact, be made and effectively imposed upon the person or body complained about, but that is an entirely different situation. I just wanted to clarify that point, because I think it is important that the legal and factual situation be properly expressed in the House so that people outside are properly informed of the situation.

Mr Allister: There are three groups of amendments to the Bill, and I am going to speak primarily to amendment No 54 initially, because I think it raises a very important issue, touching upon the publication and outcome of complaints.

The presumption at the moment, contrary to the situation that prevails in some other jurisdictions, is that when a complaint is investigated by the ombudsman, the ombudsman's report effectively remains secret. It is not publicised. Indeed, those who bring complaints receive, along with the report, what to them, being unfamiliar with the territory, appears quite an intimidatory letter warning them that they must not disclose the content of the report. I do not think that that is in the public interest.


12.15 pm

The issue came to my attention particularly in the aftermath of the Presbyterian Mutual Society (PMS) saga, when a complainant made a very legitimate complaint, which was upheld, about how the Department had handled matters touching upon the PMS, yet he got a report in his favour with a severe warning not to publicise the report. Why? Because of the statutory presumption against publication. Was that in the public interest? I think not. I think that there were issues there that required and could have benefited from public knowledge and ventilation.

Then, when a constituent made a very serious and proper complaint against the Northern Trust and had the findings upheld, I asked the Department what action it takes on foot of reports from the ombudsman on health issues. I tabled that question, and it was answered on 17 October 2013. The question was:

"To ask the Minister of Health, Social Services and Public Safety what procedures and follow up exist to ensure that recommendations from the Ombudsman, when upholding a complaint in respect of the standard of care in a Health Service facility or administrative failures therein, are adequately acted upon; and whether his Department monitors such matters." — [Official Report, Bound Volume 88, WA339].

I will pause there to suggest that I would have thought that most members of the public would expect that, if there is an adverse finding in respect of how something is being done in the health service, the Minister of Health and the Department of Health would be in a position to monitor how matters have improved and to act upon, and ensure that the trust acts upon, the matters on which they were found wanting. However, the amazing answer from the Minister was:

"All investigations by the Ombudsman are conducted in private. The Ombudsman has no general powers to share information publicly. ... My Department, therefore, does not receive copies of the Ombudsman’s Investigation reports. These are strictly confidential and are only shared by the Ombudsman with those individuals/organisations concerned."

Here we have a situation under the current regime, which the Bill seeks to preserve, whereby a complaint — to the Northern Trust in this case — finds failures from which others can learn, yet that report is not even within the knowledge of the Department. That is appalling.

Mr Nesbitt: I thank the Member for giving way. Surely he recognises that, under our proposals, the NIPSO will have the right and the ability to publish when he believes that it is in the public interest.

Mr Allister: I understand that, but, at the moment, there has been no recourse to publication in the public interest. This is about the starting point. What is the starting point? Surely, the starting point should be a presumption in favour of publication, and that is what my amendment says. In circumstances when it is not in the public interest to publicise, you do not do so, but the presumption should be in favour of publication. I find it astounding, in the examples I have given, that there has been no publication of those reports and no assurance under this legislation that there would be publication.

What is the purpose, and where is the public interest, in concealing from the Department of Health findings against some of its arm's-length bodies? Yet, that is what has been happening and could continue to happen unless we take the initiative, reverse the onus and make presumption in favour of publication and cause non-publication to be demonstrated to be in the public interest.

Amendment No 54 is couched in the way it is to reverse that presumption and cause all reports to be publicised on the website, with personal details redacted where that is the request of the individual, organisation or staff within the organisation, unless the ombudsman thinks it would not be in the public interest to publicise the report at all.

What is there to lose with this approach? It is the commonsense, sensible approach to end the nonsense situation in which affected Departments may not even know about reports or that they should be monitoring the implementation of steps taken on the foot of those reports. At present, they are kept in the dark. That is in no one's interests. This is the logic that lies behind amendment No 54. I heard some people comment on it adversely. I trust that they will reconsider and take these points on board.

I was very surprised to hear that the ombudsman raised an objection on resource implications. This amendment calls for the report to be put on the website. Where are the resource implications in putting a report on the ombudsman's website so that anyone can view it, learn from it and avoid the mistakes that were made? There cannot be serious resource implications.

Mr Lyttle: I thank the Member for giving way. He has taken good time to make a point he feels strongly about. The Chair of the Committee for OFMDFM responded to make it clear that the power to publish would be provided for in the Bill on the decision of the ombudsman.

One concern raised with the Committee was that the approach being proposed by Mr Allister may, in some way, impede open and frank engagement in the process, while the prospect of greater guaranteed publicity could be a corresponding disincentive. Does he have any view in relation to those concerns?

Mr Allister: It is precisely because of there being some validity attaching to those concerns that the amendment is worded as it is, with the proviso that personal details are redacted upon the request of the person affected. So, yes, someone making a complaint but not wanting to be named across the media as the complainant, or have their details generally publicised, is protected in this amendment to, upon request, have their details redacted, so that no one need, or would, know who they are. Likewise, the person within the establishment who is being complained against, or whoever the individual is, could make that request.

The concern about disincentive is removed by the protection built into the amendment of allowing personal details to be redacted.

The further safety net is the giving to the ombudsperson the right to prevent publication if he thinks that that is in the public interest.

To me, this amendment turns the matter in the right direction by making the presumption and starting point publication subject to redaction, with the public interest recourse only used to prevent publication, rather than saying that there will be no publication unless, in the eyes of the ombudsman and no one else, in the public interest there can be publication. In what is supposed to be an open, transparent society where government and agencies are subject to scrutiny, I have to say that, logically and properly, the onus and the starting point should be a presumption of publication rather than a presumption of concealment. That is what this legislation presently makes as its starting point: concealment of the outcome of reports. I do not think that that is in the public interest. For the reasons that I have given, I recommend that amendment to the House.

The point on amendment Nos 22 and 23 is very simple. Within the education system, there are provisions for staff etc who feel wronged in how they have been treated. However, it is in-house supervision, where the visitors are appointed by the university. It lacks the transparency of a proper public scrutiny. I think it is appropriate that, if we are bringing the universities into the ambit of this Bill, we should bring all of their administration within the ambit of this Bill; not just how they deal with students but how they deal with staff. There have been a number of pretty dissatisfactory outcomes in respect of staff and visitor arrangements, so I think that there is nothing to lose by that.

On amendment Nos 58 and 59 I simply make the point that if local Ministers are to have the power under clause 41 to serve a notice preventing disclosure of documents prejudiced to the safety of Northern Ireland and therefore contrary to the public interest, it strikes me as rather incongruous that, if the Secretary of State is to exercise that function, she exercises it within the ambit of a memorandum of understanding with the ombudsman, but, if the local Minister is to exercise that function of preventing disclosure of documentation, he can do it at large with no restraint of any memorandum of understanding. I want to balance up that territory and say, if a memorandum of understanding is required for one, why not the other? Within both, there may need to be the protections that a memorandum of understanding would provide against unwarranted recourse to preventing disclosure by adopting the language that is easy to adopt, namely that this would be prejudicial to the interests or safety of Northern Ireland. Just as you would expect it for the Secretary of State, I would expect for any of the Ministers given that power the same memorandum of understanding or a parallel one to cover them. That is the logic and reason for those two amendments.

Mr Lyttle (The Deputy Chairperson of the Committee for the Office of the First Minister and deputy First Minister): I welcome the opportunity to wind up this group of amendments. I thank all the Members who have contributed to the debate. There has been a constructive engagement on the amendments throughout.


12.30 pm

The Chairperson of the Committee for OFMDFM set out its position on the amendments in effective detail, and I will not go through that again. Lord Morrow, as Chairperson of the Ad Hoc Committee, did the same. In particular, in response to the seeking of clarity on provisions relating to universities and theological colleges, he expressed reassurance. We then heard from a number of Members on the amendments.

Mr Maskey, on behalf of Sinn Féin, outlined support for the Bill, notwithstanding the objections consistently presented at Committee Stage to the appointment process and provisions for arrangements with the Secretary of State. He stated that the bringing together of the Commissioner for Complaints and the ombudsman was positive and that he hoped that that would enhance protection for the public in the delivery of public services. He also noted, helpfully, that the majority of our public servants seek to deliver an effective service with the utmost integrity at all times. He noted, as the Committee did, that Sinn Féin will oppose amendment Nos 22, 23, 54, 58 and 59.

Mr Maginness, on behalf of the SDLP, raised important points on clause 32(1)(2). He outlined how concerns about legal privilege, which were raised by stakeholders such as the BMA, the Bar Council and the Law Society, have been capably addressed. We also heard from the Chairperson, who spoke to reassure those bodies that legal professional privilege would not be altered by the Bill.

Mr Maginness also addressed clause 30 (7)(b) and asked for reflection on the introduction of discretion for the ombudsman to permit legal representation. The Chairperson of the Committee for OFMDFM gave the helpful example of the arrangements in place for the chair of the historical abuse inquiry, which may be worth examining.

Mr Allister spoke to the amendments that he tabled, and the Chairperson of the Committee for OFMDFM and I responded. On amendment No 54, the Chairperson and members of the Committee for OFMDFM are content that clause 34(2)(d) makes provision for a report to be provided to any person whom the ombudsman considers appropriate. Indeed, it creates the power for the ombudsman to publish a report when it is in the public interest to do so.

The Committee did not feel that the case had been made to reverse that arrangement, and we certainly do not agree with Mr Allister that the provisions proposed are in any way akin to concealment. This is very much about creating a system in which members of the public feel at ease and have a clear pathway to raising with the ombudsman's office their concerns about the delivery of public services. Of course, it is also about ensuring that, where the findings of any investigation are in the public interest, they are made fully and publicly available, and that any other persons whom the ombudsman considers appropriate are notified.

The Committee did not think that the case had been made for amendment Nos 22, 23, 58 and 59, and, as mentioned, will oppose them at this stage.

In closing, I add my thanks to the officials who worked tirelessly on this group of amendments; the ombudsman, who engaged effectively; all stakeholders; the Ad Hoc Committee; and Members who contributed to this stage of the Bill.

Amendment No 4 agreed to.

Clause 1, as amended, ordered to stand part of the Bill.

Clause 2 (Independence)

Amendment No 5 made:

In page 2, line 1, leave out subsection (2) and insert

"(2) But this is subject to—
 
(a) the power of the Assembly Commission to determine the salary, pension and terms of appointment of the Ombudsperson under paragraphs 6, 7 and 8 of Schedule 1,
 
(b) the power of the Assembly to request Her Majesty to remove the Ombudsperson from office under paragraph 9 of Schedule 1,
 
(c) the power of the Department of Finance and Personnel to direct the form of accounts the Ombudsperson must prepare, under paragraph 7 of Schedule 2, or sections 9 to 13 of the Government Resources and Accounts Act (Northern Ireland) 2001.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 2, as amended, ordered to stand part of the Bill.

Clauses 3 to 8 ordered to stand part of the Bill.

Clause 9 (Criteria for own initiative investigations)

Amendment No 6 made:

In page 4, line 18, after "publish" insert "and have regard to". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 9, as amended, ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Clause 12 (Listed authorities)

Amendment No 7 not moved.

Amendment No 8 made:

In page 5, line 27, at end insert

"(b) its expenses are defrayed out of moneys appropriated by Act of Parliament,". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 9 made:

In page 5, line 31, leave out "First Minister and deputy First Minister acting jointly" and insert

"Office of the First Minister and deputy First Minister". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 10 made:

In page 5, line 33, leave out "they think" and insert "it thinks". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13 ordered to stand part of the Bill.

Clause 14 (Matters which may be investigated: general)

Amendment No 11 made:

In page 6, line 8, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 14, as amended, ordered to stand part of the Bill.

Clause 15 (Matters which may be investigated: health and social care bodies)

Amendment No 12 made:

In page 6, line 18, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 13 made:

In page 6, line 20, leave out paragraph (b). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 14 made:

In page 6, line 22, after "decision" insert "of that body". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Mr Speaker: You are getting good at this, Mr Nesbitt.

The Question is that clause 15, as amended, stand part of the Bill. All those in favour say Aye.

Mr Speaker: Contrary, No.

Clause 15, as amended, ordered to stand part of the Bill.

Mr Speaker: I am glad that the Ulster-Scots vote has been heard there.

Clause 16 (Matters which may be investigated: general health care providers)

Mr Speaker: I call Mr Nesbitt to move formally amendment No. 15.

Mr Speaker: That is very moving.

Amendment No 15 made:

In page 16, page 6, line 29, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 16 made:

In page 6, line 31, after "decision" insert "of that body". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 17 made:

In page 6, line 32, leave out "clinical" and insert "professional". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 (Matters which may be investigated: independent providers of health and social care)

Amendment No 18 made:

In page 7, line 10, after "taken" insert

"in the exercise of administrative functions". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 19 made:

In page 7, line 13, leave out paragraph (b). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Amendment No 20 made:

In page 7, line 15, after "decision" insert "of that body". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18 (Matters which may be investigated: universities)

Mr Speaker: Amendment No 21 is mutually exclusive with amendment No 22.

Amendment No 21 made:

In page 7, line 26, leave out subsection (2) and insert

"(2) The Ombudsperson may investigate alleged maladministration through action taken by a university in the exercise of administrative functions, in respect of students enrolled in courses validated by the university.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Mr Speaker: I will not call amendment No 22, as it is mutually exclusive with amendment No 21, which has been made.

Amendment No 23 not moved.

Mr Speaker: I call Mr Nesbitt to move formally amendment No 24. Amendment proposed —

I call Mr Nesbitt to move formally amendment —

I beg your pardon. Amendment No 24.

Mr Nesbitt: I thought that we were getting good at this. Moved, Mr Speaker.

Mr Speaker: You are getting good at it. I am getting worse.

Amendment No 24 made:

In page 7, line 37, at end insert

"(7) In this Act, references to a university include references to a constituent college, school or hall or other institution of a university.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Clause 18, as amended, ordered to stand part of the Bill.

Clause 19 (Administrative functions of staff of tribunals)

Mr Speaker: Amendment No 25 has already been debated.

Amendment No 25 not moved.

Clause 19 ordered to stand part of the Bill.

Clauses 20 and 21 ordered to stand part of the Bill.

Clause 22 (Other excluded matters)

Amendment No 26 not moved.

Clause 22 ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Clause 24 (Complaint Procedure to be invoked and exhausted)

Mr Speaker: You know that the Business Committee has agreed to meet at 1.00 pm. We can either take our ease until then or start the next group. I see you nodding. We will proceed and go as far as we can.

We now come to the third group of amendments for debate. With amendment No 27, it will be convenient to debate the other amendments in this group that deal with the complaints handling procedure. Members should note that amendments Nos 46 and 47 are both consequential to amendment No 45; amendment No 48 is consequential to amendment No 47; amendment No 49 is consequential to amendments Nos 47 and 48; amendment No 51 is consequential to amendments Nos 46 and 48; amendment No 65 is consequential to amendment No 44; amendment No 67 is consequential to amendment No 47; amendment No 69 is consequential to amendment No 45; amendment No 71 is consequential to amendment No 44; and amendment No 75 is consequential to amendments Nos 45 to 52.

If all that is clear, I call the Chairperson of the Committee for the Office of the First Minister and deputy First Minister, Mr Mike Nesbitt, to move amendment No 27 and to address the other amendments in the group.

Mr Nesbitt: I beg to move amendment No 27:

In page 9, line 22, leave out "complaints procedure" and insert "complaints handling procedure".

The following amendments stood on the Marshalled List:

No 29: In clause 25, page 9, line 26, leave out "complaints procedure" and insert "complaints handling procedure". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 30: In clause 25, page 9, line 28, leave out "complaints procedure" and insert "complaints handling procedure". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 31: In clause 25, page 9, line 30, leave out "complaints procedure" and insert "complaints handling procedure". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 32: In clause 26, page 10, line 2, leave out "complaints procedure" and insert "complaints handling procedure". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 33: In clause 26, page 10, line 5, leave out "complaints procedure" and insert "complaints handling procedure". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 34: In clause 27, page 10, leave out subsections (1) and (2). — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 35: In clause 27, page 10, line 22, leave out "complaints procedure" and insert "complaints handling procedure". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 44: After clause 33 insert

"PART 3
 
COMPLAINTS HANDLING PROCEDURE
 
Meaning of complaints handling procedure
 
34.—(1) In this Act "complaints handling procedure" is the procedure of a listed authority for—
 
(a) examining complaints, or
 
(b) reviewing decisions,
 
in respect of matters which the Ombudsperson may investigate.
 
(2) But for the purposes of this Act, the following do not form part of a complaints handling procedure—
 
(a) a right of appeal, complaint, reference or review to or before a tribunal constituted under any statutory provision or by virtue of Her Majesty’s prerogative,
 
(b) a remedy by way of proceedings in a court of law.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 45: After clause 33 insert

"Statement of principles
 
35.—(1) The Ombudsperson must publish a statement of principles concerning complaints handling procedures of listed authorities.
 
(2) The first statement of principles is not to be published unless a draft of the statement has been laid before, and approved by a resolution of, the Assembly.
 
(3) Before laying a draft statement of principles before the Assembly, the Ombudsperson must consult—
 
(a) Ministers of Northern Ireland departments, and
 
(b) such listed authorities and other persons as the Ombudsperson thinks fit.
 
(4) The Ombudsperson must, in preparing the draft statement of principles, have regard to any representations made during the consultation.
 
(5) The statement of principles comes into force when it is published by the Ombudsperson.
 
(6) The Ombudsperson may from time to time revise and re-publish the statement of principles.
 
(7) Where the Ombudsperson considers that any revision of the statement of principles is material, subsections (2) to (5) apply to that statement of principles as they do to the first statement of principles.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 46: After clause 33 insert

"Obligation for listed authority to have complaints handling procedure
 
36.—(1) A listed authority must ensure—
 
(a) it has a complaints handling procedure in respect of action taken by the listed authority, and
 
(b) any such procedure complies with the statement of principles.
 
(2) A listed authority which is responsible for a complaints handling procedure—
 
(a) in relation to, or
 
(b) operated by,
 
another listed authority, must ensure the procedure complies with the statement of principles." — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 47: After clause 33 insert

"Model complaints handling procedures
 
37.—(1) The Ombudsperson may publish model complaints handling procedures (referred to in this Act as "model CHP") for listed authorities.
 
(2) A model CHP must comply with the statement of principles.
 
(3) The Ombudsperson may publish different model CHPs for different purposes.
 
(4) Before publishing a model CHP the Ombudsperson must consult such listed authorities and other persons as the Ombudsperson thinks fit.
 
(5) The Ombudsperson may from time to time revise and re-publish any model CHP; and in doing so, subsection (4) applies.
 
(6) Where a model CHP is revised and re-published, section [Obligation for listed authority to comply with model CHPs: Amendment 48] has effect with the following modifications—
 
(a) any specification under section [Obligation for listed authority to comply with model CHPs: Amendment 48](1) in relation to the model CHP continues in effect as a specification in relation to the revised and re-published model CHP,
 
(b) any other reference to a model CHP is to the model CHP as revised and re-published,
 
(c) section [Obligation for listed authority to comply with model CHPs: Amendment 48](2)(b) is omitted.
 
(7) The Ombudsperson may withdraw any model CHP at any time; and any specification under section [Obligation for listed authority to comply with model CHPs: Amendment 48](1) in relation to the model CHP ceases to have effect upon that withdrawal.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 48: After clause 33 insert

"Obligation for listed authority to comply with model CHPs
 
38.—(1) The Ombudsperson may specify a listed authority to which a model CHP is relevant, and must notify the authority accordingly.
 
(2) Where subsection (1) applies—
 
(a) the listed authority must ensure that there is a complaints handling procedure which complies with the model CHP,
 
(b) the authority must submit a description of the complaints handling procedure, having taken account of the relevant model CHP, within 6 months of the specification.
 
(3) A listed authority may, with the consent of the Ombudsperson, modify the application of the model CHP which is relevant to it, but only to the extent that is necessary for the effective operation of the procedure by the authority.
 
(4) The Ombudsperson may revoke a specification at any time." — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 49: After clause 33 insert

"Declaration of non-compliance of complaints handling procedure
 
39.—(1) The Ombudsperson may make a declaration of non-compliance in relation to a complaints handling procedure if subsection (2) or (3) applies.
 
(2) This subsection applies where the Ombudsperson—
 
(a) has specified that a model CHP is relevant to a listed authority, and
 
(b) is of the opinion that a listed authority’s complaints handling procedure does not comply with the model CHP.
 
(3) This subsection applies where the Ombudsperson—
 
(a) has not specified that a model CHP is relevant to a listed authority, and
 
(b) is of the opinion that a listed authority’s complaints handling procedure does not comply with the statement of principles.
 
(4) Where a declaration is made, the Ombudsperson—
 
(a) must give reasons in writing,
 
(b) may specify such modifications to the complaints handling procedure as would result in the declaration being withdrawn.
 
(5) Where a declaration is made, the listed authority must submit a description of its complaints handling procedure to the Ombudsperson, having taken account of the reasons given under subsection (4)(a) and any modifications specified under (4)(b), within 2 months of the declaration.
 
(6) The Ombudsperson may withdraw a declaration at any time if the Ombudsperson thinks fit.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 50: After clause 33 insert

"Submission of description of complaints handling procedure: general
 
40.—(1) A listed authority must submit a description of its complaints handling procedure to the Ombudsperson if the Ombudsperson so directs.
 
(2) The description must be submitted within three months of being so directed, or such other period as the Ombudsperson may direct.
 
(3) Sections [Obligation for listed authority to comply with model CHPs: Amendment 48](2)(b) and [Declaration of non-compliance of complaints handling procedure: Amendment 49](5) are subject to any direction given under this section.
 
(4) Where a listed authority has submitted a description of its complaints handling procedure to the Ombudsperson under this Act or otherwise, the authority must provide such additional information in relation to that procedure as the Ombudsperson may reasonably request.
 
(5) The additional information must be provided within such period as the Ombudsperson directs.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 51: After clause 33 insert

"Application of other enactments
 
41. The duties in sections [Obligation for listed authority to have complaints handling procedure: Amendment 46] and [Obligation for listed authority to comply with model CHPs: Amendment 48](2)(a) do not apply to the extent that—
 
(a) the listed authority lacks necessary powers (other than by virtue of this Act) to ensure compliance with the duties, or
 
(b) the duties are inconsistent with any other statutory provision.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 52: After clause 33 insert

"Promotion of best practice etc.
 
42.—(1) The Ombudsperson must—
 
(a) monitor practice and identify any trends in practice as respects the way in which listed authorities handle complaints,
 
(b) promote best practice in relation to such complaints handling,
 
(c) encourage co-operation and the sharing of best practice among listed authorities in relation to complaints handling.
 
(2) A listed authority must co-operate with the Ombudsperson in the exercise of the function in subsection (1).
 
(3) The duty in subsection (2) does not apply to the extent that—
 
(a) the listed authority lacks the necessary powers (other than by virtue of this Act) to ensure compliance with the duty, or
 
(b) the duty is inconsistent with any other statutory provision.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 65: In clause 50, page 20, line 16, at end insert

""complaints handling procedure" has the meaning given in section [Meaning of complaints handling procedure: Amendment 44],". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 67: In clause 50, page 20, line 38, at end insert

""model CHP" has the meaning given in section [Model complaints handling procedures: Amendment 47],". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 69: In clause 50, page 21, line 1, at end insert

""statement of principles" has the meaning given in section [Statement of principles: Amendment 45],". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 71: In clause 55, page 21, line 31, at end insert

"(a) section [Meaning of complaints handling procedure: Amendment 44],". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

No 75: In clause 55, page 22, line 23, at end insert

"(7) Part 3 (other than section [Meaning of complaints handling procedure: Amendment 44]) comes into operation on such day as the Assembly Commission may by order appoint.". — [Mr Nesbitt (The Chairperson of the Committee for the Office of the First Minister and deputy First Minister).]

Mr Nesbitt: Thank you, Mr Speaker. These amendments were brought forward by the Committee for OFMDFM in the light of submissions received by the Ad Hoc Committee in relation to provisions for complaints handling procedures that were introduced in Scotland by the Public Services Reform (Scotland) Act 2010. The Scottish ombudsman made a submission to the Ad Hoc Committee and with reference to the ombudsman’s complaints standards team, which implemented changes, the ombudsman had this to say:

"This small team, working collaboratively with many others across the public services in Scotland, has arguably had greater impact on the day-to-day relationship between the public and public services than any other initiative undertaken by this office."

The Ad Hoc Committee also sought the views of the ombudsman on the proposal, who advised that his office’s research suggested the need for common complaints standards, principles and procedures across the public sector in Northern Ireland.

He believed that a complaints standards role for the NIPSO would not only facilitate the development of complaints handling in Northern Ireland, but would allow the Assembly and the Executive to make meaningful comparisons between the performance of bodies in each sector.

In light of the broad support for the proposals, the OFMDFM Committee agreed to bring these amendments. While the cost of introducing these changes in Scotland was relatively modest, the Committee agreed to leave commencement of these provisions to the Assembly Commission in light of current and ongoing financial constraints and with the hope that they will be commenced as soon as the necessary resources can be reasonably found.

Amendment No 27 aims to replace the phrase "complaints procedure" in clause 24 with the phrase "complaints handling procedure", as do amendment Nos 29, 30 to 33 and 35. These amendments would pave the way for the new Part 3 of the Bill, which would deal with complaints handling procedure, as, indeed, would amendment No 34.

Amendments No 44 to 52 inclusive aim to introduce the new Part 3 into the Bill. That is closely modelled on the system in place in Scotland. Amendment No 44 aims to define the meaning of a complaints handling procedure (CHP). Amendment No 45 would require the NIPSO to consult Ministers and others on a draft statement of principles concerning complaints handling procedures and to have regard to any representations made. The NIPSO would then have to lay a draft statement of principles before the Assembly for approval and, subject to that approval, publish it. A similar procedure would apply to any revisions of those principles.

Amendment No 46 would require a listed authority to have a complaints handling procedure that complies with the statement of principles. Amendment No 47 would authorise the NIPSO to publish model complaints handling procedures that comply with the statement of principles after consultation with such listed authorities and others as the NIPSO thinks fit. Any revisions, again, would follow a similar process.

Amendment No 48 would provide that, where the NIPSO specifies a listed authority to which a model complaints handling procedure is relevant, that authority must ensure that its procedure complies with the model CHP and send a description of its procedure to the NIPSO within six months. Amendment No 49 would provide that the NIPSO may make a declaration that a procedure does not comply with a specified model CHP or with a statement of principles. The NIPSO would then have to give reasons and specify required modifications. A listed authority would then have to resubmit its procedure within two months, having taken account of the modifications.

Amendment No 50 would provide a general duty for a listed authority to submit a copy of its CHP to the NIPSO within three months of the NIPSO so directing, and such additional information in relation to the procedure as the NIPSO may reasonably request. Amendment No 51 would provide that the duties in amendment Nos 46, 47 and 48 would not apply where this would be inconsistent with any other statutory provision or where the listed authority would lack the necessary powers to ensure compliance with the duties.

Amendment No 52 would require the NIPSO to monitor the complaints handling practices of listed authorities and identify trends, promote best practice, and encourage cooperation and the sharing of best practice. Listed authorities would have to cooperate with the NIPSO in that regard, unless they lacked the power to do so or so doing would be inconsistent with any other statutory provision.

Mr Speaker, let me just amend what I said about amendment No 51: it would apply to duties in amendment Nos 46 and 48, not No 47.

Amendment Nos 65, 67 and 69 point the reader towards the relevant provisions that define key terms dealing with complaints handling procedures. Amendment No 71 would provide for commencement on the day after Royal Assent of the proposed new clause that would be inserted by amendment No 44, which would define "complaints handling procedure". That is necessary because the definition is required for other provisions of the Bill, not just the new Part 3.

Finally, amendment No 75 would provide that the other provisions in the proposed new Part 3 of the Bill would come into operation on such day as the Assembly Commission may, by order, appoint. That concludes my remarks on the third group of amendments.

Lord Morrow: The Ad Hoc Committee on the Public Services Ombudsperson Bill did not have sight of these amendments prior to its formal clause-by-clause scrutiny, and therefore there is no Ad Hoc Committee position on these amendments. However, I do wish to outline briefly the Committee's consideration of the role of the NIPSO in respect of complaints handling procedure.

The Committee noted ongoing communication between the Northern Ireland Ombudsman and the Committee for OFMDFM in relation to the potential for the NIPSO to play a design authority role in the public-sector complaints process and noted, indeed, that this was one of the themes in the Committee for OFMDFM's original consultation in 2010. The Committee noted that the Committee for OFMDFM and the ombudsman were initially of the view that the improvement of public complaint handling would be addressed through the investigation of complaints and resultant recommendations to the listed authorities involved, and noted that both were mindful of the potential resource implications for that additional role in the current financial climate.

The Ad Hoc Committee received correspondence from the ombudsman in June, providing details of legislation introduced in Scotland in 2010 that provided for the Scottish ombudsman to publish a model complaints handling procedure for listed authorities and compel bodies to adopt the model complaints handling policy. The NI Ombudsman regards uniformity of approach to complaints handling across all public services to be important, as the public are then aware of a simple streamlined approach and their right to complain to the ombudsman if they remain dissatisfied having exhausted the internal process of the listed authority.

The ombudsman's office published research into complaints handling in public-sector bodies in 2014, and the report on that research highlighted the need for complaints standards procedures, given the confusion experienced by the public when attempting to negotiate what the ombudsman referred to as "the complaints maze". The Committee noted that, as a result, the ombudsman now believes that such a complaints standards authority role for the NIPSO would facilitate refinement and development in handling public-sector complaints in Northern Ireland and noted that the Committee for OFMDFM, in consideration of the ombudsman's views, now also sees merit in such a role for the NIPSO, modelled on that of the Scottish ombudsman and subject to commencement by the Assembly Commission, dependent on the availability of resources for implementation.

The Ad Hoc Committee noted those developments but did not have sight of the Committee for OFMDFM's amendments on that additional role for the NIPSO prior to the formal clause-by-clause scrutiny and, therefore, did not take a view on those amendments.

Mr Speaker: The Business Committee has arranged to meet at 1.00 pm today. I propose, therefore, by leave of the Assembly, to suspend the sitting until 2.00 pm. When we return, the first item of business will be Question Time.

The debate stood suspended.

The sitting was suspended at 12.58 pm.

On resuming (Mr Deputy Speaker [Mr Beggs] in the Chair) —


2.00 pm

Oral Answers to Questions

Justice

Mr Ford (The Minister of Justice): The operational effectiveness of the 11 new PSNI district command units, established to match the current council structure, is an operational matter for the Chief Constable, who is accountable to the Policing Board. While fully respecting his operational independence, I have regular discussions with the Chief Constable in relation to the outcome of operational decisions properly taken by him and what steps I might take to support the PSNI in delivering its policing plan.

Mrs Dobson: I thank the Minister for his answer. I would like to record my dismay at the Minister failing to respond to the Adjournment debate on the topic that I tabled back in March about how the new structures would affect my constituents. Does the Minister not share the concerns of my constituents and of businesses about a town the size of Banbridge that is left without any response units?

Mr Ford: I am sorry, Deputy Speaker, but, as Minister, I simply cannot respond to points that are operational issues for the Chief Constable. Members may have a certain frustration about that, but that is the reality of the policing structures that exist in Northern Ireland. Indeed, if we look back at events perhaps 40 years ago in our history, we can see that there are good reasons why politicians should not get involved in operational policing issues. Whilst Mrs Dobson may well have genuine and reasonable concerns about policing in Banbridge, that is an issue that she must raise with the district commander and/or with the Chief Constable, but, I am afraid, not with me.

Mr Deputy Speaker (Mr Beggs): I omitted to advise Members that question 4 has been withdrawn.

Mr Ford: I am grateful for the opportunity to clarify the comments that were recently attributed to me in the Belfast 'News Letter'. I should start by setting the context for the meeting at which the alleged comment was made. It was arranged to discuss a specific life sentence prisoner who could benefit from early release arrangements as a result of the Northern Ireland (Sentences) Act 1998. It was not a discussion on the workings of the historical investigations unit (HIU).

In response to a question about the potential for changing the legislation in the area of home leave for early releases, I advised that that would require a change to Westminster legislation and that the issue in the future may affect only a very small number of prisoners. The comment was not made in relation to the likely number of convictions or the potential for prosecutions resulting from any investigations by the proposed HIU, as has been erroneously reported. A letter was published by the 'News Letter' correcting this serious misrepresentation of my comments on 10 October.

I have said previously and I emphasise again today that the HIU presents a unique opportunity for us to ensure that victims and relatives receive an independent, article 2-compliant investigation into the death of their loved one. I again urge my political colleagues to work together to resolve the current political challenges and ensure that the Stormont House Agreement is implemented in full in order that victims can receive the truth and justice that they deserve.

Mr Allister: Is the Minister not attempting but failing to be too smart by half in suggesting that he was talking about those who might, because of early release, be subject to these provisions of weekend release etc, when the reality is that people are going to be in that position only on foot of being convicted and subject to the 1998 arrangements through which they get early release? Therefore, it is a matter of the Justice Minister effectively saying that he expects only one or two convictions that would put people in that position. Does that not suggest that the HIU is window dressing, meant to placate victims, but that, in fact, it will ultimately deliver very little, at huge expense, and create further frustration for innocent victims?

Mr Deputy Speaker (Mr Beggs): The Member has asked his question.

Mr Allister: Is it not clear that that is the Minister's position?

Mr Ford: I am not sure that I should take any lessons about being too smart by half from Mr Allister, who seems to manage that quite frequently. I said exactly what I believe to be the truth, and I repeat that that was a truthful account of the circumstances. We were talking about the specifics of the possibility of somebody who, in the context of that particular case, lived close to the widow of the person who had been murdered, and who received home leave because of a quirk in the arrangements for those who receive life sentences being entitled to early release, even though they may also benefit from the Sentences Act, but it cannot be certain at any point that they will receive the benefit. It is a very limited number and is nothing to do with the principle of the HIU.

Whatever Mr Allister may wish to denigrate the attempts that some of us are making to ensure that victims receive justice or, if they cannot receive justice, receive the truth, I will continue to do that regardless of his attempts to denigrate it.

Mr A Maginness: Despite Mr Allister's negative approach to the HIU, will the Minister reassure the House that it is a valuable and necessary part of the Stormont House Agreement in addressing the past and giving some clear answers to the relatives of those who were slain during the Troubles?

Mr Ford: I am happy to agree with Mr Maginness's point. There is no doubt that there are those who continue to suffer, not least because of the fact that they have not received answers to matters relating to the death of their loved ones. I believe that the HIU has a very significant role that it can fulfill. It emphasises the importance, particularly on a day like today, of ensuring that we address those issues, meet the needs of those families who are suffering and get away from some of the misrepresentation about the HIU and what its effect would be and the kind of talk that has appeared in some of the media about amnesties. People need to look at the reality of what was agreed at Stormont House, and the politicians who are involved in the ongoing discussions need to ensure that we deliver and deliver speedily for the benefit of those bereaved families.

Mr Lyttle: Will the Minister of Justice confirm that there is no provision for amnesties in any part of the legacy arrangements proposed in the Stormont House Agreement? Will he also confirm that the core aim of that work is to improve access to justice, information and services for victims and survivors?

Mr Ford: I am happy to confirm that point. As I hinted in my response to Mr Maginness; unfortunately, there was a suggestion in one particular newspaper, which should not be dignified by being named here, that the proposals for the HIU would amount to an amnesty. A few days later, it announced that, as a result of its campaign, there would not be an amnesty.

Anybody who reads the words of the Stormont House Agreement will be absolutely clear that the provisions for limited immunity relate to only the information provided by an individual. If prosecutions are possible against that individual because of other information, those prosecutions will be taken. It is not an amnesty; it is a proper article 2 compliant investigation, and I want to see it in place as soon as possible.

Mr Ford: My Department is responsible for progressing the establishment of the independent historical investigations unit, which will investigate outstanding Troubles-related deaths and take on the legacy work of the Historical Enquiries Team and the Police Ombudsman. My officials continue to work with colleagues in the Northern Ireland Office to finalise the legislation that will, among other things, establish the HIU.

The legislation to deliver those elements, in the form of the Northern Ireland (Stormont House Agreement) Bill, is, of course, subject to the ongoing political talks. My officials have also commenced work on preparing for the implementation of the HIU, and, subject to political talks, that work will progress whilst the legislation is being debated in Parliament.

I have stated previously that the Stormont House Agreement Bill, and the HIU in particular, represents a unique opportunity to address some of the difficult issues of our past. I once again urge the parties to work creatively to reach political agreement. We simply cannot afford to miss the chance finally to build structures that are capable of dealing with our troubled past.

Mr Nesbitt: I thank the Minister for that. Given the publication earlier today of the assessment of parliamentary groups in Northern Ireland that was commissioned by the Secretary of State and the suggestion — the clear suggestion — that the deputy First Minister takes his instructions from the army council of the Provisional IRA, will the Minister agree with me that there can be no role for OFMDFM in the appointment of the director of the historical investigations unit?

Mr Ford: I am happy to agree with the point that Mr Nesbitt made — although I made that point before we got today's report — on the clear basis that I am keen to see the HIU operating as a policing body in line with the structures that we have for policing in Northern Ireland. On that basis, the appropriate body to make the appointment would be the Policing Board; not the DOJ, not OFMDFM, and not OFMDFM in consultation with the DOJ. I am quite happy to endorse Mr Nesbitt's points, although I think that I preceded him.

Mr B McCrea: I listened carefully to the Minister's answer when he said that we had to deal with our troubled past. I will follow on from Mr Nesbitt's question: where does the Minister think that we go from here, given that we have now discovered that everybody is still around and active in one shape or another? How can we deal with our troubled past if we will not accept what is going on in the present?

Mr Ford: Before people make detailed comments on the issues in today's report, I think that we need to look at the detail of the report and how it reflects on the activities and structures of a range of organisations. It is clear from the report that the leadership of all the organisations named, apart from the dissidents, is clearly on a path to a different future. I believe that that puts us into a different place, but, sadly, there does not seem to have been a great deal of progress since the last report from the Independent Monitoring Commission in 2011. The important issue is that we see leadership from political parties, complete the journey away from paramilitarism and violence and ensure that we provide an entirely normal and peaceful democratic society for our people in as short a time as is possible and realistic.

Mr Ford: The specific financial impact of alcohol and drugs to my Department has not been formally assessed. However, I have no doubt that substance misuse has an impact on expenditure in my Department, the Executive and the wider public sector.

Research on the impact of alcohol alone identified the cost to Northern Ireland to be around £900 million a year, with an annual cost to the Fire Service and the Police Service of up to £280 million and a cost of up to £104 million to the courts and prisons. Clearly, if costs associated with drug misuse were included, those figures would be significantly higher.

Responding to the overall impacts of substance misuse is a key focus of the Executive’s new strategic direction on alcohol and drugs. Although the Department of Health, Social Services and Public Safety leads on delivery, my Department is a key contributor to that work. That contribution includes the work of the Probation Board and the Youth Justice Agency to assess the treatment needs of offenders and to refer them to the appropriate support services. The Prison Service, working with health partners, also provides a continuum of treatment and support for those returning to the community.

While working in an environment of financial constraints, my Department remains committed to working with others to tackle the misuse of these substances across Northern Ireland.

Mr F McCann: Go raibh míle maith agat. I thank the Minister for his answer thus far. The issue is certainly getting worse in many communities across the North. What type of strategy has the Minister put in place with other Departments and agencies to try to deal effectively with this most serious of problems?

Mr Ford: As I said in my preliminary answer, the key issue is the Executive's new strategic direction on alcohol and drugs, whereby my Department plays a secondary role to the Department of Health — these issues predominantly relate to health — although, clearly, significant issues of criminal activity related to drug use also need to be addressed. There has been an increase in the number of drug seizures and prosecutions in recent years. It is not entirely clear whether that is an indication of increased criminal activity or whether better police activity is leading to more prosecutions. It is certainly a major priority for the PSNI and for a number of policing and community safety partnerships as well as the wider issues relating to Health and other Departments.

Mr Ford: Members will know that, as chair of the Organised Crime Task Force and as Justice Minister, I welcomed the passage of the legislation to give the National Crime Agency (NCA) a role here, which fits within our policing structures, in the devolved sphere from 20 May. I know — I discussed this with the director general on 1 October — that the NCA is making a significant contribution. That is reflected in the breadth and nature of its new activity and the enhanced support that it has been able to provide to law enforcement partners, especially the PSNI.

Significant elements of that include a joint PSNI and NCA investigation into the online access to and sharing of indecent images of children, which resulted in a number of searches and arrests. There have also been complex investigations originating outside Northern Ireland, which have spread to Northern Ireland, involving crimes such as drug offences. Those investigations have benefited from the NCA's broader reach across jurisdictions, as well as its ability to exercise constabulary powers within Northern Ireland.


2.15 pm

Mr Rogers: I thank the Minister for his response. Given the Secretary of State's statement today, which says that members of parliamentary groups continue to be engaged in violent activity that is directed by local leadership and conducted without sanction, will the PSNI be able to work with the NCA to deal with this problem?

Mr Ford: Mr Rogers make a valid point about today's report, but I am not sure whether the PSNI and the NCA cooperating on issues like this required that report. Of course, the NCA has other powers that were not available before 20 May, such as asset seizures, and I have no doubt that there will be movement in an area in which progress had slowed because of the inability of the NCA to operate for 18 months. Clearly, there are a number of issues. It also relates to a number of cross-border or near-border crimes, in particular. Fuel laundering has a habit of being concentrated around the border, and there is no doubt that the smuggling of tobacco and fuel is a significant issue. It is not simply a matter of the NCA cooperating with the PSNI; it is also about good work with other bodies, particularly an Garda Síochána, the Office of the Revenue Commissioners and HMRC, to ensure a joined-up approach against all of those crimes.

Mrs Overend: I thank the Minister for his responses so far. Given the undoubted success of the National Crime Agency in tackling serious and organised crime in Northern Ireland, does the Minister agree that the parties that thwarted efforts to enable the NCA to operate fully in the war against crime here made a major tactical blunder ?

Mr Ford: I thank Mrs Overend for the support that she and her colleagues gave to my efforts to get the NCA operational. Time will tell whether the lengthy debates on the fine-tuning of the details of police accountability mechanisms achieved significant changes beyond what was achieved from the early contact that I had with the Home Office. The important thing is that the NCA is now fully operational and is able to carry out its operations in the devolved sphere and work in the kind of partnerships that I just outlined to Mr Rogers.

Mr Ford: Section 8 of the Coroners Act 1959 places a duty on the PSNI to support the coroner's investigation into a death by providing him with all relevant information that it holds concerning that death. I fully recognise the importance of that disclosure in ensuring an effective investigation into a death, compliant with article 2 of the European Convention on Human Rights (ECHR). The process can be challenging, given the volume of material that may be relevant and the need for any redactions to protect individuals' rights under article 2 or article 8, or to protect national security.

The current draft Stormont House Agreement Bill includes proposals to regulate the onward disclosure of information by the historical investigations unit. The proposals remain subject to political discussion.

I am working to ensure that inquests can proceed in as timely a way as possible. Yesterday, I signed a commencement order that will make the Lord Chief Justice president of the Coroners' Courts with effect from 1 November. That will provide significant judicial leadership in addressing the problems and support a judicially led assessment of the state of readiness of the legacy inquest caseload.

To complement that work, I am inviting Criminal Justice Inspection Northern Ireland (CJINI) to undertake a review of the PSNI disclosure arrangements in support of the inquest and in discharge of its statutory duty.

I previously informed the House of other measures to improve the operation of inquests. There is no single answer to the challenge of legacy inquests. I am, however, taking all reasonable measures within my power, and working with other bodies and the judiciary, to improve the system so that it better delivers for bereaved families.

Mr McMullan: Go raibh maith agat. I thank the Minister for his answer. Does he agree that, where disclosure is prevented, there is the probability of an attempt to pervert the course of justice by covering up the criminal activity that was endemic due to the policy of collusion?

Mr Ford: No, Mr Deputy Speaker.

Mr Kennedy: I welcome the Minister's remarks. Can he outline the steps and measures that he is prepared to take to ensure that in legacy inquests at the Coroners' Court there will not be an exclusive and unfair focus on the state and security forces? How does he intend to address the concerns of a great many of us that there are those in political parties and other groups who seek to use the coronial system to simply rewrite the history of the Troubles?

Mr Ford: While I appreciate the point that Mr Kennedy is trying to make, I am not sure whether I actually have any powers to deal with the issues to which he refers. There is no doubt that the issue of the reopening of inquests is something which falls entirely to the Attorney General. Members may have seen the recent legal challenge around that point. I understand that something like 32 of those cases which have been re-referred by the Attorney General involve military witnesses, so there may well be a perception in some quarters. The reality is that the Attorney General reorders inquests on the basis of his best responsibilities as law officer. On that basis, the Courts and Tribunals Service makes the practical arrangements, working with coroners, to deliver those inquests. It is an issue that I believe might perhaps have been better addressed if there had been something like the historical institutional abuse inquiry to deal with legacy inquests, but we are where we are on the basis that there was no political agreement. In the meantime, the Courts and Tribunals Service and the judiciary will, I am sure, continue to carry out their obligations without any favour in either direction.

Mr Ford: Significant achievements have been made under the tackling violence at home strategy since it was introduced in 2005. These have included the introduction of multi-agency risk assessment conferencing; a 24-hour domestic-violence Freephone helpline, which expanded last year to include sexual violence; a number of domestic-violence media campaigns; and the introduction of routine enquiry in maternity units to encourage disclosure of domestic violence.

Within my Department, I have increased access to legal aid for victims to apply for non-molestation orders and piloted a new court listing arrangement in Derry, which seeks to improve the victim experience at court. In addition, integrated domestic abuse programmes, which encourage convicted perpetrators of domestic violence to take responsibility for their behaviour, have been developed and delivered.

I made provision in the Justice Act 2015 for domestic violence protection notices and orders, which protect victims of domestic violence who may be at risk of immediate harm and danger.

Looking to the future, my Department aims to build on these successes. On 24 September, an official briefed the Committee for Justice on the stopping domestic and sexual violence and abuse strategy. Consideration continues to be given as to how the aims of this strategy may be progressed by my Department and DHSSPS in the current difficult financial environment. The publication of the final strategy will be subject to clearance by the Health Minister and the Executive. In the meantime, I have instructed officials to take forward the implementation of justice priorities within that strategy.

Mr McCartney: Go raibh maith agat, a LeasCheann Comhairle. Gabhaim buíochas leis an Aire as an fhreagra sin. I thank the Minister for his answer. I welcome many of the steps which many agencies have taken in relation to domestic violence, and the Minister has outlined a number of them. In the absence of the strategy being rolled out, would the Minister give the House an assurance that it is not a budgetary requirement or deficit that prevents him from rolling out the strategy?

Mr Ford: I thank Mr McCartney for his general support of the process as Deputy Chairperson of the Committee. I cannot say whether it is a budgetary issue. The reality is that the budgetary costs to the Department of Justice are, I believe, manageable given the priority which we have put to dealing with domestic and sexual violence. It is not for me to speak for the Health Minister — when we have one — as to the priorities of that Department. I believe that the work that we are doing, which has been outlined to the Committee, whether on issues like the court listing arrangements, looking at domestic homicide reviews or looking at disclosure arrangements, is important for my Department to carry through. We will continue to do that work whilst hoping that we can get agreement about a joined-up strategy that will be fully comprehensive and better meet the needs of society.

Mr Dallat: I have listened very carefully to the Minister from this gathering of exclusively male political intellectuals. I just wonder whether he accepts that the vast majority of domestic violence cases are against women?

Does he recognise the wonderful work of Women's Aid, and has he sought its advice on putting together a strategy that might well address a very serious problem that, for most of the time, is kept quiet and under the carpet?

Mr Ford: Mr Dallat recounts that this is currently an exclusively male gathering, and it appears to be the case. I am sure, however, that he was glued to Radio Ulster at 6.05 pm last Friday to hear his colleague Dolores Kelly discuss the issue of domestic violence with me. Indeed, he might have noticed how full of praise Mrs Kelly was for the work that is being done by the DOJ, and I am sad that he did not manage to quote that.

It is certainly the case that the vast majority of victims of domestic and sexual violence are female, or, indeed, their children. They also suffer, whether directly or indirectly, because of violence in the home. On that basis, my understanding is that, as the strategy was being prepared, Women's Aid was one of a number of organisations that contributed. The challenge at this stage is not to have prepared the strategy but to put it into action. That is why, as I said to Mr McCartney, the DOJ is doing what it can on its responsible actions, but we really need agreement from the Minister of Health and the Executive, in a fully working arrangement, to ensure that we can carry the strategy forward in a comprehensive way.

Mr McCarthy: Does the Minister agree that the lack of Executive agreement on a domestic and sexual violence strategy is a direct consequence of the DUP's crazy in-out shenanigans over its ministerial responsibilities?

Mr Ford: I thank Mr McCarthy for his question. The current position is a consequence of the in-out ministerial thing, where, sadly, for a few minutes a week, we seem to have a Minister of Health, and so on. The Minister of Health has not found time to engage on the issue. Unfortunately, however, there were issues before now, and we did not deal with the matter as speedily as we should have done. I believe that my Department did all that it could on the work on the joint strategy but it is not for me to speak for the Department of Health. I just want to see Ministers back at work, the Executive functioning, the strategy agreed and all the action plans — the health bits as well as the justice bits, and also those bits that relate to other Departments in smaller areas — fully implemented.

Mr Deputy Speaker (Mr Beggs): Patsy McGlone is not in his place. Michael McGimpsey is not in his place. Pat Ramsey is not in his place. I call Colum Eastwood.

Mr Ford: The annual cross-border organised crime conference, attended by law enforcement officers and policymakers, was held on 30 September and 1 October. Over 100 delegates from North and South attended. This year's conference title was 'One step ahead — jointly meeting the threat'. The conference was opened by the Minister for Justice and Equality, Frances Fitzgerald TD; the Garda Commissioner, Nóirín O'Sullivan; the Chief Constable of the PSNI, George Hamilton; and me.

There were presentations and workshops on the illegal production of counterfeit goods, emerging technologies, foreign-national organised crime groups and the new fuel marker. The aim was to identify and consider new and developing organised crime threats; to further develop cooperation and partnership working across the border; to exchange ideas on best practice; and to consider lessons learned in order to enhance the response to organised crime in both jurisdictions.

Mr Eastwood: I thank the Minister for his answer thus far. Given the very recent tragedy of the murder of the guard across the border and the fact that the culprit was somebody from the North, is he confident that appropriate levels of intelligence-sharing are happening to ensure that those kinds of things cannot happen again?

Mr Ford: I think that Mr Eastwood has slightly expanded beyond the remit of the original question, Mr Deputy Speaker. The death of Garda Tony Golden was a great tragedy and the result of criminal activity perpetrated by somebody who originally lived in Northern Ireland and was then living in the Republic.

The issue of the organised crime response is not particularly relevant to such things, but, as I said, in the context of how we ensure the best possible public protection and how we deal with issues that relate to domestic and sexual violence, it may well be that we have a greater need to see matters joined up across the border when people move in that way.

I am not sure that I can say that the intelligence was necessarily shared exactly as it might have been in that particular case, but it is something that I have given a commitment to look at with my Department and in conjunction with the Department of Justice and Equality as part of our ongoing cross-border work.


2.30 pm

Mr Deputy Speaker (Mr Beggs): That is the end of our period for listed questions. We will now move to topical questions.

T1. Mr Allen asked the Minister of Justice for an update on his Department’s work with Ulster University to examine the challenges in removing peace walls. (AQT 3021/11-16)

Mr Ford: I thank Mr Allen for the question, and I think that I can now formally welcome him to his first time at Justice questions and to his first chance to ask a question.

The ongoing work on the details of getting rid of peace walls has been fairly significant for my Department. Work has been done by staff from Ulster University looking at how that is operating, and there is ongoing work looking at the best way of joining up the work that we do with that of other agencies. I am not in a position to present a formal report at this stage, but I believe that the contribution of the academics who have looked at the work from a slightly external position has been of benefit to my staff. There has certainly been very close engagement over the last while in dealing with that, and I think that it is something that shows the benefits of looking in a slightly wider way at some of the responsibilities that we have in government and of learning from that.

Mr Allen: I thank the Minister for his response. Can the Minister outline when he expects the results of the attitudes to peace walls survey to be released?

Mr Ford: I think that the next round of that survey is due to be released within the next few weeks. I will certainly see that, whenever it is released, it is placed in the Assembly Library, and Members will be informed of that. It is clear that, when he talked about attitudes to peace walls, Mr Allen raised a very significant issue, because there is no doubt that there are still those who feel the need for physical protection, particularly if they live close to interface structures, yet there are many others who recognise that the best interests of society are served by the removal of those structures, when we can deal with those genuine fears amongst those who live close to them. We will not develop a normal society, we will not grow our economy and we will not be able to move away from the issues of the past if we cannot continue the action that has seen six interface structures removed during my time as Minister and significant engagement on many others.

Mr Deputy Speaker (Mr Beggs): The Member listed for topical question 2 has withdrawn his name.

T3. Mr Rogers asked the Minister of Justice how significant the budget spend in his Department is for dealing with young people in the criminal justice system, particularly those with learning difficulties, when compared with other jurisdictions. (AQT 3023/11-16)

Mr Ford: That sounds like a question that has a well-prepared supplementary, and I congratulate Mr Rogers for that. I cannot at this stage give an assessment of expenditure in Northern Ireland compared with other neighbouring jurisdictions in the way that he has asked. Sadly, Ministers do not always have every last bit of detail at their fingertips when they answer topical questions, but if he wishes to expand on it in a supplementary, I will do my best either to answer or to see that we provide the information later.

Mr Rogers: You guessed right. Do you believe, Minister, that effective early intervention in the home and school would have a significant impact on the spend of your budget and that you could spend it in other ways, rather than having so much spent on education?

Mr Ford: I am certainly happy to agree with Mr Rogers on the point about the need for early intervention, which is a critical issue. When I look at early intervention, I can see it in two different categories. One is the very early life interventions, and the Department of Justice contributes to some of those projects on a cross-departmental basis even though, in very blunt terms, we are unlikely to see the benefit of that intervention in the DOJ for 12 or 14 years until young children have grown up and might become nuisances or criminals, whereas Education and Health will see their response back very quickly. I believe that, as part of a commitment to a joined-up approach, that is necessary.

I also think that, particularly through the work of PCSPs and others, we are seeing some good being done with young teenagers who are in danger of getting into trouble. I remember that, a couple of years ago, I saw three different projects within the space of about six weeks that were all doing that kind of work. They were organised by different organisations in different parts of Northern Ireland, but each was, fundamentally, about establishing personal relationships and providing good role models for young people. They were all excellent examples of how very modest investments were helping young people to stay out of trouble. I am committed to supporting that as best I can, given current budgetary constraints.

T4. Ms Boyle asked the Minister of Justice whether confidence in the policing and justice structures would be undermined if public interest immunity were granted in the Arlene Arkinson inquest. (AQT 3024/11-16)

Mr Ford: I am not in a position to give any assessment of what the public interest would be in that particular context. Ms Boyle, as a relevant constituency MLA, may have some slightly more specific ideas than I do, but the reality is that there are reasons why, at times, public interest immunity certificates are granted. Those do not fall to me — they tend to fall to the Secretary of State — so it would be very difficult for me to give any detail on that.

Ms Boyle: Go raibh maith agat. Minister, obviously you are the Minister, and people will look to you for public confidence. I am sure that you will join with me at this time in saying that our thoughts and prayers go out to the Arkinson family in seeking justice for Arlene. However, Minister, do you accept that many people believe that Robert Howard was an RUC Special Branch informant who was shielded by it from prosecution at that time and that the Chief Constable should state why public interest immunity has been sought?

Mr Ford: I cannot possibly answer that question. It may well be the case that individuals have concerns, but my Department does not have any responsibility for that issue.

T5. Mr Dallat asked the Minister of Justice, given that he will have been greatly excited by the recent announcement of yet another loyalist council to deal with paramilitaries that, 18 years on, remain outside the political process, whether he holds out any hope that this might end parallel policing and parallel courts of justice, which have been going on for far too long, particularly in north Antrim and east Derry. (AQT 3025/11-16)