Official Report (Hansard)

Committee for Health, Social Services and Public Safety

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The Chairperson (Ms Maeve McLaughlin): Eilís, you are back again.  You have had a busy day with the Committee.  You are very welcome.  We also have Ms Donna Ruddy, head of child protection at the Department, and Hugh Connor, chair of the Safeguarding Board. The three of you are very welcome.  I ask you to make your presentation, and we will then open it up to members' comments and questions.

Before we start, Hugh, I am mindful that we received an email this afternoon directly from the Safeguarding Board.  We fully understand, as a Committee, that there are PSNI investigations ongoing and that criminal prosecutions may or may not be brought.  We intend that our questions will not touch on those issues.  However, if you feel that our questions are in any way straying into that remit, you are quite within your rights to bring that to our attention, and we can consider what action to take.  I reiterate that we are very mindful that there are ongoing investigations.  Do you want to add anything, given that the email was sent?

Mr Hugh Connor (Safeguarding Board for Northern Ireland): Thank you for that sentiment.  My intention in drawing that to the Committee's attention was that it is clearly necessary for you to receive information.  Some of the information there has the potential, if developed further, to be confidential, to have some impact on the review and to cause some distress for the individuals.  I wanted to draw that to the Committee's attention.  Thank you for those sentiments.

Ms Eilís McDaniel (Department of Health, Social Services and Public Safety): Thank you, Chair.  Members are aware that the Department is seeking the agreement of the Committee to amend the Safeguarding Board for Northern Ireland (Membership, Procedure, Functions and Committee) Regulations (Northern Ireland) 2012 for the purpose of changing current quorum requirements and to add a designated doctor to the membership of the SBNI.  The Department has reflected on the evidence given to the Committee and subsequent comments from Committee members at both the 10 September and 17 September sessions, and has provided an options paper for your consideration.

I will begin by stating that the current quorum arrangements for the SBNI are presenting some difficulties in practice.  While the SBNI is reporting 70% attendance on average at meetings of the board, the last two meetings of the board, for example, have not been quorate because more than two thirds of the membership — the current quorum requirement — were not in attendance.  The quorum difficulties have become accentuated by — not caused by; that is a significant point — the ongoing thematic review, which will potentially encounter quorum difficulties because of declarations of interest in matters either under discussion or for decision that relate to the review.

I should emphasise that quorum difficulties linked to the thematic review caused by numbers declaring an interest are expected to be infrequent.  There have been no quorum problems generated by the thematic review to date during a period of almost 10 months.  In the main, the key difficulty will be the signing off of the review report.  It has already been agreed that those members of the SBNI with an interest in any of the 22 cases under review will have no role in approving the final report before its submission to the Minister.  They will be given sight of the report for factual accuracy checking only prior to it being signed off by those members of the board who have no prior connection with any of the 22 cases.

It appears that the proposal to significantly reduce the quorum requirement, and the link made by the Department between quorum and the ongoing thematic review, have led to questions about the independence of the review.  Consequently, the Committee asked for an options paper from the Department, which is included in your papers for today.  The paper presents three possible quorum options and identifies a preferred option.  It also sets out in some detail the measures put in place by the chair of the SBNI to ensure that the thematic review is undertaken in a way that is robustly independent and is seen to be so.  I do not intend to restate what those measures are, but the chair of the SBNI, Hugh Connor, is here today to answer questions that members might have about how the thematic review is being conducted.

I will turn to the options for dealing with the quorum difficulties.  Members are aware that the regulations governing the SBNI currently require more than two thirds of the membership to be present to enable the SBNI to transact any business.  It is clear that the initial policy decision to set attendance levels and the seniority of members high is proving difficult in practice.  It is also clear that, if we are going to continue to require high levels of attendance by member organisations, a system of deputisation will need to be introduced.  That was a recommendation of the SBNI in its response to the consultation on the original proposal to reduce the quorum to one third of SBNI members.

While the method of deputisation suggested by the SBNI is attractive, we have been advised by lawyers that we do not have the primary legislative powers to introduce a system of deputisation in that way.  However, it is possible to introduce deputies by way of an amendment to regulation 3 of the SBNI regulations.  That will involve naming the deputy alongside the post-holder already named in the regulations; for example, an assistant director in the Health and Social Care Board alongside the director, or a chief superintendent of the PSNI alongside an assistant chief constable.

We have identified three quorum options, including the one-third option consulted on previously, which, we fully acknowledge, did not have the support of the SBNI and was rejected by the Committee.  It is also not in keeping with the original policy intention of securing attendance by senior representatives of member organisations in large numbers.  However, without support for a system of deputisation or an arrangement that permits a different quorum calculation to take account of declarations of interest, it may be the only viable option.  It is also in keeping with accepted quorum practice in other HSC bodies and the practice of a number of local safeguarding children boards in England and Wales.

The second option is that suggested by the SBNI in its consultation response; that is, that the quorum should be set at 51% of the membership.  Under that option, the SBNI would be quorate if 15 member organisations attended meetings of the board.  Also, in relation to voting rights, which are impacted by declarations of interest, the SBNI recommendation is that the quorum should be calculated on the basis of 51% of the total board membership minus any agency or member declaring an interest.  Under that arrangement, the resulting figure will fluctuate depending on the numbers who attend and the numbers who declare an interest.  In practice, it could mean that the SBNI could proceed with business with as few as eight members with voting rights.  If this option is adopted, we would not support a system of deputisation as the level of quorum should permit the SBNI to function without any degree of compromise.  We also have some concerns that this option confuses "quorum" with "majority decision-making".  Paragraph 6 of schedule 1 of the regulations already requires:

"Every decision at a meeting shall be determined by a majority of the votes of the members present".

That equates to 51% or more of the votes cast. 

The third option is the preferred option.  This approach was suggested by the Committee at the evidence session on 10 September.  Under that option, the existing quorum requirement of two thirds would be retained and would be supported by amendments to regulation 3 to enable deputising to take place, better facilitating attendance at board meetings by member organisations.  In addition, it is proposed to introduce a second supporting quorum arrangement, which would apply only where more than one-third of the total membership of the SBNI — that is, 10 members — declares an interest.  In those circumstances, the quorum requirement would be two-thirds of the remaining members.  Under that arrangement, we propose to permit deputising, and will amend regulation 3 accordingly.  Deputisation will maximise attendance, making a general quorum requirement of two thirds deliverable in practice, and is in keeping with the original policy intention. 

That proposal is similar to that suggested by the SBNI at option 2.  However, the SBNI proposal would permit a reduced quorum requirement when any number of members declare an interest.  Under this option, exceptional circumstances measured by an unusually large number of members declaring an interest must apply before the different quorum formula can be employed.  That is likely to be the case when the thematic review report comes before the SBNI for approval.  The workability of the two-thirds formula in exceptional circumstances will require good attendance by SBNI members in the first place, which, as I said, will be facilitated by deputisation.  Again, this is in keeping with the original policy intention.  This option has the support of the SBNI and would apply to meetings of the SBNI and its statutory subcommittees; that is, safeguarding panels and the case management review panel. 

That brings me to the end of my presentation.  It summarises what is contained in the options paper, and I will now hand over to the chair of the SBNI, who wants to deal with matters specifically relating to the ongoing thematic review.  We will take questions afterwards.

Mr Connor: I just want to make a couple of comments, if I may, Chair.  You will all know that the Minister issued his direction to the Safeguarding Board on this matter in December 2013.  One of the things that I want to stress to the Committee is that, while we work on this and talk a lot about it, we are doing lots of other things in the general and broader field of child sexual exploitation.  I think that it is really important that the Committee is aware of that, albeit that I know we are likely to concentrate this afternoon on the thematic review. 

Eilís highlighted what the Safeguarding Board's concerns were in relation to the quorum issue.  Our favoured option was to retain a high level of quorum — two thirds — and to move to some deputisation.  Our second favourite option, if that were not possible, was to move to a figure of 51%, because we believe that symbolically and in reality it is important that the board has senior and high levels of representation.  Unless you ask me, I probably will not make any more comments about quorum.

I suspect that the main reason why I was asked to attend was to contribute to any discussion about the ongoing investigation.  I do so to explain and answer any questions that members might have in relation to the comments or statements that we discussed a few weeks ago.  Clearly, the role and function that I have had has, I believe, been to take the ministerial direction with the powers that it conveyed and, in so doing, to produce a proper, thorough and comprehensive review — a learning document that will assist the service — but also to do so in a lawful way, which means that there are some impediments.  One of the impediments is the comments made about the compromising, interfering and undermining of a police investigation.  The second is the overarching legislation and, in particular, some of the sections of the Data Protection Act 1998 that have an impact on how far the board is able to act.  My reason for being here is to make sure that the Committee understands what the issues are, to answer any questions and, if there are things that I have not considered, to take those away and reconsider them.

The Chairperson (Ms Maeve McLaughlin): Thank you for that, Hugh.  Eilís, my question is directed towards you initially.  From the Department's point of view, is the Safeguarding Board the most effective vehicle for the thematic review?

Ms McDaniel: We continue to have confidence in the thematic review, and some of that confidence is drawn from the way in which the chair of the SBNI has set up the review.  Our options paper sets out very clearly some of the mechanisms that have been put in place to create a firewall between the conduct of the review and the membership of the SBNI.  The chair has to be commended for his efforts to ensure that the review is sufficiently independent and, more importantly, is seen to be independent.

The Chairperson (Ms Maeve McLaughlin): Despite the clear and obvious issues with conflicts of interest, the issues with data protection, criminal proceedings and over-18s still stand if the quorum is reduced in any shape, form or fashion.

Ms McDaniel: Those issues demonstrate that this is a complex exercise.  It is complex by virtue of the fact that it involves 22 very vulnerable young people.  It is also made complex by the fact that we have an ongoing police investigation.  In my view, none of those things will go away, regardless of how we undertake a review of those cases.  That includes a review by way of a statutory inquiry or, as was suggested at our previous meeting, passing responsibility for this exercise to the Kathleen Marshall inquiry.  The review involves complex issues, and my view is that they will not go away if we decide that it will be undertaken in a different way.

The Chairperson (Ms Maeve McLaughlin): If this were an inquiry set up under the Inquiries Act, how would that assist the process?

Ms McDaniel: I still think that you have to take account of an ongoing police investigation.  While there is nothing to prevent a statutory inquiry from happening alongside other proceedings, including criminal proceedings, there are powers in the Inquiries Act to suspend an inquiry pending a determination by a criminal investigation.

The Chairperson (Ms Maeve McLaughlin): If there are criminal proceedings, of course they have to be taken into account.  Nobody is disputing that.  My question is specifically on the issues with data protection and the powers that go with that and the powers under the Inquiries Act.

Ms McDaniel: We need to go back to what we are trying to do here.  This is intended to be a learning exercise.  We want to learn from the way in which 22 cases were handled by a range of agencies that were involved with those cases.  The SBNI has the statutory powers to review those 22 cases.  If you take this somewhere else, it will probably take longer to deliver and will certainly be more costly to deliver.  Will it deliver anything different from what the SBNI will deliver?  I am not certain.  It will certainly deliver it more slowly than the SBNI.

The Chairperson (Ms Maeve McLaughlin): With respect, it is a wee bit more than being a learning experience or learning from these processes, because we could reflect back to 2009 and the work from Barnardo’s, which clearly flagged up the issue of child sexual exploitation and, beyond that, mandated organisations and Departments to do certain things.  Whilst this is a complex issue, and there is always learning, equally there is a need for accountability and ensuring that we do all in our power to stop this happening.  If we have gathered anything from the English experience, it is about the need to have accountability mechanisms in place and independence.  I listened carefully to the professor who recently came over to discuss the Rotherham experience, when she spoke about a collective failure across systems, agencies and Departments.  We clearly need to get this right.  My view is that — I am looking to Hugh on this — even by reducing the quorum or looking at the hybrid model, we will still face the obstacles that were flagged up a number of weeks ago in Committee by the Department and the Safeguarding Board.  Those obstacles are not only conflicts of interest but criminal proceedings, over-18s and data protection.

Mr Connor: Chairman, in many ways, I readily understand the Committee's difficulties, because it is about justice being seen to be done and things being seen to be transparent.  There are three different groupings.  First, I vividly recall the discussion on the issue, probably around this table and certainly in the House, maybe a year ago, when MLAs expressed real concerns that the process must be seen to be fair.  The costs that are being incurred for the review are all due to my attempt to put in place a process that is seen to be fair and to have a sizeable number of cases in which the process will be totally transparent.  All the information from the relevant agencies will be made available, independently scrutinised and will come back through a process that will be independently quality assured.  I can offer you reassurance about that.

Secondly, we have a number of cases on which it is unlikely that we will be able to make any commentary, and it was always unlikely that we would be able to do that.  I suspect that any inquiry would be unlikely to make any commentary on this, because the review is running simultaneously with a criminal investigation, which was always likely to trump our review.

We also have a third group, which I referred to at the previous meeting:  it is the small group of cases in which there were concerns about the welfare rights of the individuals.  I know that the Committee and certainly the SBNI have always had a view that we want to be conscious of the rights of the 22 young people while also seeking to learn lessons for our wider population.  Judgements are being made that it would not be in the best interests of that group because of the potential harm or distress that would be caused and its implications for data protection.

I am seeking to work with those organisations, not to have an independent review of those files because that is outwith my power but rather to conduct a desktop review of those cases with those organisations so that the learning in each case will be incorporated into the report.  Given the context, I think that that is the most that the Safeguarding Board can do to try to fulfil its responsibilities to the Committee and to the Minister.  I think that we will produce a report that will be an honest review.  It will have lessons and learning for the system and will identify shortcomings.  I suspect that, when the report is available, that is possibly the time when the Committee may decide whether there were big gaps in the process; that is my personal view.  I suggest that we are so far into the process now that it would be wise to allow the process to continue and to learn lessons.

The Chairperson (Ms Maeve McLaughlin): With respect, Hugh, I am hearing the word "learning".  The whole remit of the thematic review was to make a judgement on how effective these organisations were in safeguarding the 22 children in care.

Mr Connor: That was one of the four major areas of responsibility.

The Chairperson (Ms Maeve McLaughlin): I suggest that it is a main plank.

Mr Connor: I will not argue with that.

The Chairperson (Ms Maeve McLaughlin): It is much more than simply learning.

Mr Connor: We were required to answer four questions on behalf of the Minister, and we will address those questions in the report.  That will include how effectively organisations work together to protect those children.

The Chairperson (Ms Maeve McLaughlin): However, you know the point that I am getting to.

Mr Connor: Yes, I do.

The Chairperson (Ms Maeve McLaughlin): Too many of those organisations are now sitting on your board, and there is a direct conflict of interest.  It seems to me that there has been a shift in focus to learning as opposed to making a judgement, which was what we set out to do.  I am going to move on, and we can come back to this issue because a number of members have indicated that they wish to speak.

Mr McKinney: There are a lot of issues here.  Clearly, you have gone away from our last Committee meeting and come back with another proposal.  Are you content with that proposal?

Mr Connor: In relation to quoracy, I am content.

Mr McKinney: The last time that you gave evidence to us, you said that you were against the diminution of the quorum in the way that had been proposed.

Mr Connor: The Department's proposal relates to deputisation, retaining the quoracy at the 66% level but allowing those senior staff to nominate senior dedicated deputies and, in so doing, to retain the 66% quoracy.  That was our original recommendation, so I am content.

Mr McKinney: At our last meeting, we talked about perception.  I will go back to the original announcement between the inquiry and your process.  Questions were being asked at that time about why the Barnardo's report's recommendations had not been implemented and who was going to ask the hard questions about that.  Now we are hearing that a lot of it is about learning.  Is this the soft end of the original problems with the issue?  Even with some of the deputisation issues, the perception will be that you have been mending this cart as it goes along the road to try to get an outcome and get the inquiry finished.

Mr Connor: If you are addressing that question —

Mr McKinney: I am addressing it generally.

Ms McDaniel: The Chair referred to the Rotherham inquiry.  Alexis Jay undertook that inquiry on behalf of the council.  We brought her over here at the end of September, and the Chair and others attended that meeting.  In my mind, there is no significant difference in the way in which the SBNI review is being undertaken and the way in which the Rotherham inquiry was undertaken, led by Professor Jay.

Professor Jay made a point when she was here, on 30 September, that the inquiry exercise was to identify learning and what needed to be done to make things better for young people in the future.  When individuals needed to be held to account, there were separate processes for that.  It is no different from what is being done by way of the thematic review because if, as part of that review, individuals are found to be wanting, processes for dealing with them in those circumstances would then be called on.  I am thinking about disciplinary procedures or processes, for example, but I come back to the key issue that the primary point of this exercise was to learn from the way in which those 22 cases had been handled for the purpose of putting different arrangements in place, if that is what is necessary, to ensure, as far as possible, that it does not happen again.

Mr McKinney: Do you agree that you have not been able to interrogate those 22 cases to their full extent as a result of the process that you have embarked on?

Ms McDaniel: I accept that that is the case, and Hugh has explained why.  However, I make the point again that I am not convinced that doing this in another way will overcome that issue, for the reasons that we stated.

Mr McKinney: Yes, but you have an inquiry on one side that does not have proper powers and, on the other side, an inquiry that does not have the power to interrogate, notwithstanding the reasons that you gave for that.  We do not have a figure for what we have ended up with.  You illustrated that it would be less than 22.  I do not know whether you are investigating two or 10.  We do not know, and that is the process that you chose.  You are now saying that the flawed process that you chose may not produce another outcome against any other process.  That remains untested.

Ms McDaniel: Without disclosing a number, we can say that it is not two cases or anything like it.  Given the number of cases that will be reviewed as part of the exercise, there will be significant learning from it.  While there may be other cases that are subject to an ongoing police investigation, that investigation will come to an end at a point in time.  It is at that point that this exercise can be revisited for those remaining cases.  We have a significant — I use the word "significant" deliberately — number of cases being reviewed, and that has the potential to be added to when the ongoing police investigation concludes.

Mr McKinney: If this investigation and the police investigation were finished, what would be the imperative to open it up again?

Ms McDaniel: The imperative would be to see whether there is further learning to be had from the additional cases and to add to the themes that have been identified by the initial exercise.

Mr McKinney: Do you accept that there is significant room for flaw with the lessons learned and whether people are accountable?

Ms McDaniel: I do not know whether I would go so far as to use the word "flaw".

Mr Connor: There is certainly incompleteness.  If the Committee believes that it wants all 22 cases to be reviewed immediately, we cannot do that, Mr McKinney.  We do not have the powers to do it, and I do not know who would have the power.

Mr McKinney: Yes, but it comes back to the original question:  was the SBNI process appropriate in the first place?  Should it have been chosen?  I ask that because you now have to amend the rules to get the report through.  Whatever the levels of that, you have to do it.  Was the SBNI approach the right approach in the first place?  The Department was determined to push it through.  I remember the evidence session here or next door.  Was it the appropriate vehicle for proper, complete investigation?

Ms McDaniel: Given the powers available to us, I think that it probably was the best.  By that I mean that the SBNI has statutory functions, powers and duties, and we were making use of the powers available to it.

Mr McKinney: It does not, however, have powers to call, demand, insist or coerce, legally, people to come before it and do things.  We have heard that.  It is flawed.

Mr Connor: If that is what was sought, it will always fall short.

Mr McKinney: We could argue over the language, but it is not complete.  I would say that it is flawed, and that may cause a flaw in the outcome of its deliberations.

Ms McDaniel: Ideally, I would have liked all 22 cases to have been reviewed as part of the exercise.  That is where we started.

Mr McKinney: This goes back to my first point about perception.  If people think that you have lowered the bar against a flawed process, the total exercise will fail, in the public mind.  There is at least the possibility of that.

Mr Connor: That perception was one of the reasons why I was keen to raise the issue at my previous appearance before the Committee.  It is really important that the Committee understands what we can do, what our powers are, what we are committed to doing and how we are committed to doing it. Others may say that it is flawed, but I believe that we will bring before you a document that is as comprehensive as it can be in the circumstances and that will endeavour to learn from and to answer the question that was asked by the Minister's direction about how effective services were in protecting these children.  I believe that we will do that, but we will not be able to do it for all 22 children.

Mr Dunne: Thanks very much, folks.  For clarification:  is it correct that we are a year into this inquiry?  Are you confident about the level of work that has been done?  Do you have clear confidence that what has been done is of good standing?

Mr Connor: My very first task was to consider, with the Public Prosecution Service and the Police Service of Northern Ireland, the creation of a memorandum of understanding about how we would proceed to carry out this review in the context of an ongoing criminal investigation.

Mr Dunne: That is most important to everybody: there is an ongoing criminal investigation.

Mr Connor: Given that that was the case, and with the canvas of not compromising, undermining or interfering with that criminal investigation — that is a pretty broad canvas — we had to work closely with the Public Prosecution Service and the Police Service of Northern Ireland to try to agree a memorandum of understanding about how we would act and deal with that, and that took some time.

We also had to create a group of people who would support this work.  Section 16 of Eilís's options paper sets out the various arrangements that we have put in place.  One thing that I am really confident about is that we established a quality assurance team; that is at the fifth bullet point of section 16.  I outlined who the individuals are on that team.  I was very keen — I can say this publicly and with confidence — that the people whom we bring forward would be expert and experienced, and I was equally keen that they would commit their professional reputation and integrity to the process that we are putting in place being comprehensive.

I met those people as recently as last Wednesday.  We meet periodically about the review, and we discussed it last week.  I very clearly said to them that it was absolutely crucial that they were prepared to say that they believed that the process was fair, reasonable, and proportionate and was done properly, and that nothing was held back.  That was the challenge and the task for them.  I believe that those folks will give you a full and honest appraisal, and I believe that that appraisal will be along the lines that I described.

Mr Dunne: Eilís, are you satisfied with the work that has been done to date?

Ms McDaniel: I said today that I have confidence in the process of the review established by the chair of the SBNI.  The quality assurance team that Hugh referred to is only one part of that process.  A number of other measures are to be put in place to ensure that the review is sufficiently independent and is seen to be independent, so the answer to your question is yes — absolutely.

Mr Dunne: How will the process of bringing in the deputies move forward?

Ms McDaniel: It requires us to amend the regulations.  The regulations currently set out who the members of the SBNI are, and they include designations such as the director of social care at the Health and Social Care Board.  The proposal, by way of the preferred option, is to amend regulation 3 to name a deputy alongside the named person in the regulation.  That deputy may attend meetings of the SBNI in place of the originally named person.  It is a matter of fact that the people who are members of the board cannot attend all the time.  They are very senior people in their organisation, and they have competing priorities.  Sometimes, attendance at an SBNI meeting is not the priority at a particular time.  On reflection, even though we did not want to do it originally, it is probably now necessary to introduce a system of deputising.  That has been borne out in practice, and that is how we intend to do it.

Mr Dunne: Will the deputies be competent, professional people?

Ms McDaniel: We have asked for deputies to be named on the assumption that regulation 3 could be amended.  I assure members that the deputies who have been named by respective member organisations are very senior people in their organisation.  You will have, for example, an assistant director with direct responsibility for safeguarding in place of a director.

Mr Dunne: Will they be people who are committed to the task?

Ms McDaniel: Absolutely.  You will get the head of public protection in the PSNI in place of an assistant chief constable, and, for the district councils and the education and library boards, you will simply be swapping one chief executive for another chief executive.  In that sense, the deputy will be at the same level in the same body.

Mr Connor: When the Safeguarding Board discussed the matter, its view was that deputisation would be a boon but that it needed to be carefully controlled in two ways:  first, by naming people who were senior and dedicated so that it would not be a situation whereby one person deputises at one meeting and somebody else deputises at another meeting; and, secondly, the chair of the Safeguarding Board should be able to ensure, through discussion, that the senior staff continue to attend and that it does not become a de facto downgrading.  Those are the board's own comments, not the chair's or the Department's comments.  The board made those suggestions.  However, these are very, very senior staff; other events happen, and they are just called away.

The Chairperson (Ms Maeve McLaughlin): Thank you both for that.

The Committee will return to this matter in the next number of weeks.  With deputisation, whether or not a person is named, it is very apparent that the issues will remain the same.  That is the big challenge for us.  Whether the person is senior, junior or at whatever level, I have no doubt, Hugh, that it goes without saying that they take a professional approach to the work that they have to carry out.  We are all mindful of their vital work, but there are still issues, and I am not convinced that what I have heard about today will be an effective model.  I am certainly not convinced that, by reducing the quorum, by your own admission here today, you would remove those obstacles.  Those obstacles will remain for data protection and for the three or four issues that were highlighted today.  It is vital that we get this right.  As we go forward, I am not convinced that this is the appropriate vehicle, and what I have heard today has not reassured me of that.

Thank you for your time.  We will return to the issue.