Report on the Public Services Ombudsperson Bill
Together with the Minutes of Proceedings of the Committee, the Minutes of Evidence, Written Submissions and Correspondence and other papers relating to the Report
Ordered by the Ad Hoc Committee on the Public Services Ombudsperson Bill to be printed on
29 September 2015
Mandate 2011/16 Number of Report - NIA 263/11-16 First Report
Executive Summary
1. This report sets out the Ad Hoc Committee’s consideration of the Public Services Ombudsperson Bill. The main aim of the Bill is to combine the offices of the Assembly Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints into a single office to be known as the Northern Ireland Public Services Ombudsperson (‘the NIPSO’), combining the powers and remit of the existing offices. The Bill will also reform remit and powers and provide for appointment of the NIPSO on the nomination of the Assembly and for the NIPSO to report to the Assembly and Assembly committees.
2. The Committee called for evidence on the Bill and received 34 written submissions and held a number of oral evidence sessions. The Committee considered the issues raised by stakeholders and sought views from the Committee for the Office of the First Minister and deputy First Minister (OFMDFM) as the sponsor of the Bill.
Amendments
3. The Committee considered stakeholder comments on use of the term Ombudsperson rather than Ombudsman. The Committee noted the Committee for the Office of the First Minister and deputy First Minister’s intention that the term be unambiguously gender neutral and also considered a briefing paper prepared for the Committee for OFMDFM by Assembly Research and Information Service on the etymology of the term Ombudsman. The Committee agreed by majority to propose amendments to the Bill to change Ombudsperson to Ombudsman. Given that there are 247 instances in the Bill as introduced, the Committee agreed that amendments to the first instance in Clause 1, to the short title and long title should be tabled in the name of the Chairperson in advance of consideration stage with amendments to subsequent Clauses and Schedules to be dealt with at further consideration stage.
4. During the period covered by this report, the Committee for OFMDFM as the sponsor of the Bill, proposed a number of amendments following legal advice and stakeholder comments. The full text of all amendments is contained in the Clause by Clause consideration section of this report.
Key issues
5. During consideration of the Bill, the Committee identified a number of key issues:
- Power to investigate on own initiative (as relating to Clause 8)
- Recommendations of payment to persons aggrieved (as relating to Clause 11)
- Inclusion of universities within the NIPSO’s remit (as relating to Clause 18)
- Legal representation, legal privilege and court proceedings and privileged information (as relating to Clauses 30, 32, 38 and 47)
- Reports to the Assembly (as relating to Clause 37)
- Budget of the NIPSO (as relating to Schedule 1)
Power to investigate on own initiative (as relating to Clause 8)
6. This is the power for the NIPSO to launch an investigation without waiting for a complaint from a person aggrieved. This is a new power which isn’t exercisable by the existing offices. The criteria for own initiative investigations are similar to the criteria for ordinary investigations. The key difference is that the NIPSO can only launch an own initiative investigation where there is a reasonable suspicion of systemic maladministration or systemic injustice (injustice consequent on the exercise of clinical or professional judgement in health and social care). This power is common to most European ombudsmen and to those in Australia and New Zealand.
7. The Committee noted that while a number of stakeholders welcomed the power of own initiative, others expressed concerns in relation to a perceived lack of clarity in respect of the criteria to be used by the NIPSO. Concerns were also expressed by the Commissioner for Older People for Northern Ireland (COPNI) on the potential for duplication with the statutory duties of her office.
8. The Committee noted the provisions in Clause 9 for the NIPSO to establish and publish the criteria to be used in determining whether to commence an own initiative investigation. The Committee also noted that Clause 42 of the Bill requires the NIPSO to consult COPNI if the NIPSO, at any stage in the course of considering a complaint or conducting an investigation, forms the opinion that the matter could be the subject of an investigation by the Commissioner for Older People and hence duplication is unlikely.
9. The Committee was content with the provisions of Clause 8
Recommendations of payment to persons aggrieved (as relating to Clause 11)
10. The Medical Protection Society, Law Society for Northern Ireland, British Medical Association and Medical Defence Union raised concerns about the power in Clause 11 (b)(ii) for the Ombudsperson to recommend that a listed authority make a payment to the person aggrieved where it appears to be desirable in order to bring about a settlement. Concerns were expressed that this power creates a parallel jurisdiction to award compensation without the necessary safeguards that have evolved in civil court proceedings.
11. The Committee sought legal advice in respect of the issues raised by stakeholders. The Committee considered the legal advice and was satisfied that the provisions in Clause 11 do not create a parallel jurisdiction to award compensation as the NIPSO does not have the power under the Bill to award compensation. The Committee notes that a listed authority may apply for judicial review and that the provisions of Clause 44 provide that that an aggrieved person may apply to the court for relief.
12. The Committee also considered the evidence provided by the British Medical Association in respect of JR55 –v- the Northern Ireland Commissioner for Complaints – an ongoing case on which the appeal hearing in the Supreme Court is expected in March 2016. The BMA believes that the outcome of this case will have implications for provisions within the Bill at Clause 11(b)(ii) – recommendation of a payment to the person aggrieved – and Clause 34(2) reports on investigations. The Committee noted that JR55 refers to legislation which will be repealed by the Bill but sought comment from the Committee for OFMDFM as sponsor of the Bill. The Committee also sought legal advice in respect of this case and its potential implications for this Bill.
13. The Committee considered this legal advice and noted that the decision of the Supreme Court in respect of JR55 will authoritatively state the powers conferred by the Commissioner for Complaints (Northern Ireland) Order 1996, including whether under this Order, the Commissioner has the power to recommend a ‘consolatory’ payment. Under this Public Services Ombudsperson Bill, the Ombudsperson will have express power to recommend a payment to a person aggrieved. The Committee noted that the decision of the Supreme Court on the powers exercisable under the Commissioner for Complaints Order cannot be read across to this Bill.
14. The Committee was content with the provisions of Clause 11.
Inclusion of universities within the NIPSO’s remit (as relating to Clause 18)
15. This Clause introduces a new power for the NIPSO to investigate maladministration as it relates to universities. This supersedes the existing power of the Board of Visitors of a university to investigate complaints by students. This Clause provides that the NIPSO should deal with complaints of maladministration from students and the Board of Visitors would continue to deal with other categories of complaint. The NIPSO has no jurisdiction to investigate a matter to the extent that it relates to academic judgement.
16. In their written submissions and oral evidence to the Committee, neither Queen’s University Belfast (QUB) nor the Ulster University accepted the proposed jurisdiction of the NIPSO over the universities. Both institutions were of the view that this proposed Clause duplicated the work of the existing Board of Visitors which they considered offered a more flexible alternative remedy for students.
17. This view was not shared by the student bodies who responded to the call for evidence. QUB Students’ Union considered that complaints from students should be transferred completely to the Ombudsperson and that the Board of Visitors should be excluded from considering any complaints in relation to student matters. The NUS-USI expressed significant concerns about the Bill which they considered did not go far enough and called for an independent adjudicator/Ombudsperson which addresses the broadest range of complaints and appeals from students, not simply maladministration. Colleges NI and the NUS-USI also sought clarification on the role of the NIPSO in respect of the six regional colleges of further education
18. The Committee considered these issues and also sought legal advice in respect of implications on the powers granted to the NIPSO of the recent ruling by Mr Justice Horner in the matter of an application by CS for Judicial Review and in the matter of decisions taken by the Queen’s University of Belfast. The Committee considered the legal advice and was satisfied that Clause 18 does not interfere with the limits on the availability of judicial review in relation to the jurisdiction of the Board of Visitors.
19. With regard to the role of the NIPSO in respect of the colleges of further education, the Committee noted that such colleges are brought within the remit of the NIPSO by their inclusion in the listed authorities in Schedule 3 as ‘an institution of further education’.
20. The Committee was content with the provisions of Clause 18. The Committee noted the concerns of Mr Alban Maginness in respect of the inclusion of universities in the remit of the Public Services Ombudsperson.
Legal representation, legal privilege and court proceedings and privileged information (as relating to Clauses 30, 32, 38, and 47)
21. The Law Society of Northern Ireland, Colleges NI, the Bar Council, Medical Protection Society and British Medical Association raised strong concerns that Clauses 30(6) and 30(7)(b) create a fundamental imbalance in the legislation in favour of the Ombudsperson and would appear incompatible with the basic right to legal representation and that these proposals raise serious issues of proportionality and right to a fair hearing under Article 6 of the European Convention on Human Rights (ECHR). In addition, these stakeholders expressed concerns about the provisions of Clause 32 and the basic right against self-incrimination and the right of legal professional privilege. Concerns were also expressed on the provisions of Clauses 38 and 47 which stakeholders regarded as ineffective as a safeguard in relation to privileged information.
22. The Committee considered these issues at length and sought legal advice in respect of the issues raised by the stakeholders. The Committee noted that the Ombudsman (Northern Ireland) Order 1996 provides that bodies within the Ombudsman’s remit cannot rely on privilege which would be allowed by law in legal proceedings as grounds for the non-production of relevant documents. The Committee considered the legal advice and was satisfied that, in respect of Clause 30, the discretion provided is capable of being exercised in accordance with the principles of fairness and does not give rise to a breach of Convention rights. In respect of Clauses 32 and 38, the Committee noted that the provisions of Clause 32 are subject to the provisions of Clause 38. The Committee also noted that in respect of Clause 47 that while a report of the NIPSO may be produced in evidence it is rebuttable and that where the NIPSO has obtained privileged or confidential information, in accordance with Clause 38(2) may disclose that such documents were obtained but must not disclose the content.
23. Accordingly the Committee was satisfied that the provisions of these Clauses do not breach Convention rights or interfere with privilege and was content with these Clauses. The Committee noted the concerns of Mr Alban Maginness, Mr Colum Eastwood and Mr Trevor Lunn in respect of provisions in the Bill on privileged and confidential information.
Reports to the Assembly (as relating to Clauses 37)
24. The NIPSO has several reporting obligations to the Assembly. Firstly, the NIPSO must lay an annual report before the Assembly. Secondly, in a particular case where an injustice has been uncovered by the NIPSO but not remedied, a report on that case can be laid before the Assembly. Thirdly, if an own initiative investigation has been launched, the NIPSO must report on this to the Assembly. Finally, the NIPSO has discretion to make any other reports to the Assembly thought suitable.
25. The Committee noted evidence welcoming this provision as a means of strengthening the office of the NIPSO and also noted the concerns of the Medical Defence Union and British Medical Association 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 the Ombudsman may lay a special report before the Assembly where injustice has been sustained by a person as a result of maladministration and that injustice has not been, or will not be, remedied. The Committee considered the issues raised by stakeholders and was content with Clause 37.
26. As at Clause 11, the Committee considered the evidence provided by the British Medical Association in respect of JR55 –v- the Northern Ireland Commissioner for Complaints and its view that the outcome of this case will have implications for provisions within the Bill at Clause 11(b)(ii) – recommendation of a payment to the person aggrieved – and Clause 34(2) reports on investigations. These concerns potentially also relate to Clause 37. The Committee noted that JR55 refers to legislation which will be repealed by the Bill but sought comment from the Committee for OFMDFM as sponsor of the Bill. The Committee also sought legal advice in respect of this case and its potential implications for this Bill.
27. At its meeting of 29 September 2015, the Committee considered the legal advice in respect of potential implications of JR55. The Committee noted that the decision of the Supreme Court in respect of JR55 will authoritatively state the powers conferred by the Commissioner for Complaints (Northern Ireland) Order 1996. The Committee also noted that while Article 19 of the Order provides that the ‘the Commissioner shall annually lay before the Assembly a general report on the performance of his functions…. and may from time to time lay such other reports before the Assembly as he thinks fit’, there is no reference in the Order to the laying of special reports before the Assembly. Under Clause 37 of this Bill, the Ombudsperson will have express power to lay a special report before the Assembly.
28. The Committee noted the comments of the Court of Appeal in JR55 which stated “Even assuming a power to lay such a report before the Assembly there would have to be proper safeguards and procedural fairness before any such power could be properly exercised”. The Committee 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 which is compatible with rights under the European Convention on Human Rights, including Article 6 (right to a fair hearing) and Article 8 (right to a private and family life); and to ensure that it discharges its functions in a manner which is procedurally fair.
29. The Committee expressed its reservations in respect of the provisions of this Clause for the NIPSO to lay a special report before the Assembly. The Committee considered legal advice on the issue. The Committee expressed concerns that this power could be potentially construed as coercive and that such a report had the potential to have a detrimental impact on a medical practitioner.
30. The Committee recommends 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.
Budget of the NIPSO (as relating to Schedule 1)
31. Schedule 1 is introduced by Clause 1 and sets out the administrative detail of the establishment of the NIPSO. The Committee noted that the Assembly’s Audit Committee, while content that it should have responsibility for agreeing the estimate of the NIPSO and laying it before the Assembly, expressed concerns that as currently drafted the Bill may not provide the NIPSO with sufficient protection from the Executive controlling or directing its access to resources.
32. The Audit Committee highlighted its experience with the agreement of the budget for the Northern Ireland Audit Office (NIAO). The Audit (Northern Ireland) Order 1987 provides for the Comptroller and Auditor General (C&AG) to prepare estimates for the use of resources by the NIAO and the Northern Ireland Act provides for the Audit Committee to lay the estimate before the Assembly. The Audit Committee’s experience is that, despite it having this statutory function, the Department of Finance and Personnel (DFP) and the Executive have nonetheless sought to direct what the NIAO’s budget should be.
33. 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 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 paragraph 17 of Schedule 1 would allow for similar issues to arise in respect of the NIPSO and the budget of the NIPSO’s office.
34. The Committee sought the views of the Committee for OFMDFM on the concerns expressed by the Audit Committee. The Committee for OFMDFM noted the Audit Committee’s comments but did not propose to bring forward amendments in this regard. The Committee for OFMDFM noted the distinction made between the Audit Committee agreeing the estimate and it being included in the Finance Minister’s Budget Bill. However, the Committee for OFMDFM noted that to date there had been no divergence between the agreed estimate and the figure included in the Budget Bill and it further noted the Audit Committee was seeking to resolve the issue through a protocol with DFP.
35. The 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.
36. The Committee strongly recommends that the Committee for OFMDFM as sponsor of the Bill takes steps to address the concerns raised by the Audit Committee in respect of ensuring 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 for Finance and Personnel to agree a proposed Memorandum of Understanding (MOU) 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 Northern Ireland Audit Office could be included. The Committee notes that to date, no such protocol or MOU has been agreed.
37. The Committee recommends that an MOU acknowledging and safeguarding the NIPSO’s financial independence should be agreed with DFP at the earliest opportunity.
Delegated Powers of the Bill
38. The Committee sought advice from the Examiner of Statutory Rules in relation to the powers within the Bill to make subordinate legislation. The Examiner drew attention to provisions in Clause 12(2) in relation to vesting of the power in the Office of the First Minister and deputy First Minister to amend the listed authorities in Schedule 3 by draft affirmative procedure subject to the concurrence of the Assembly Commission; Clause 19(3) as above in respect of amending the list of tribunals set out in Schedule 4; Clause 22(2) where the power of the Assembly Commission to amend by order matters excluded from the Ombudsperson’s jurisdiction as set out in Schedule 5 should be subject to draft affirmative resolution and subject to the concurrence of OFMDFM; and Clauses 51 and 52 on the power of the Assembly Commission to make further provision by order.
39. The Committee referred the Examiner’s comments to the Committee for OFMDFM and it confirmed that in response to the Examiner’s comments it would bring forward appropriate amendments.
