Committee for the Office of the First Minister and deputy First Minister Report on the Committee’s Proposals for a Northern Ireland Public Services Ombudsman Bill Volume One Together with the Minutes of Proceedings, Minutes of Evidence and Written Submissions relating to the Report Ordered by the Committee for the Office of the First Minister and deputy First Minister to be printed 27 June 2013 Report: NIA 120/11-15 (Committee for the Office of the First Minister and deputy First Minister) REPORT EMBARGOED UNTIL COMMENCEMENT OF THE DEBATE IN PLENARY Mandate 2011/15 Seventh Report Membership and Powers Membership and Powers Powers The Committee for the Office of the First Minister and deputy First Minister is a Statutory Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the Northern Ireland Act 1998 and under Assembly Standing Order 48. The Committee has a scrutiny, policy development and consultation role with respect to the Office of the First Minister and deputy First Minister and has a role in the initiation of legislation. The Committee has the power to; ■ consider and advise on Departmental Budgets and Annual Plans in the context of the overall budget allocation; ■ approve relevant secondary legislation and take the Committee stage of primary legislation; ■ call for persons and papers; ■ initiate inquiries and make reports; and ■ consider and advise on matters brought to the Committee by the First Minister and deputy First Minister. Membership The Committee has eleven members, including a Chairperson and Deputy Chairperson, and a quorum of five members. The membership of the Committee is as follows: ■ Mr. Mike Nesbitt (Chairperson) ■ Mr. Chris Lyttle (Deputy Chairperson) ■ Mr. Leslie Cree1 ■ Mr. Colum Eastwood ■ Miss Megan Fearon2 ■ Mrs. Brenda Hale3 ■ Mr. Alex Maskey ■ Ms. Bronwyn McGahan4 ■ Mr. Stephen Moutray5 ■ Mr. George Robinson ■ Mr Jimmy Spratt6 1 With effect from 11 March 2013 Mr Leslie Cree replaced Mr Robin Swann 2 With effect from 10 September 2012 Ms Megan Fearon replaced Mr Francie Molloy 3 With effect from 1 October 2012 Mrs Brenda Hale replaced Mr Trevor Clarke 4 With effect from 10 September 2012 Ms Bronwyn McGahan replaced Ms Caitríona Ruane 5 With effect from 1 October 2012 Mr Stephen Moutray replaced Mr William Humphrey 6 With effect from 15 April 2013 Mr Jimmy Spratt replaced Mr Paul Givan i Report on the Committee’s Proposals for a Northern Ireland Public Services Ombudsman Bill - Volume One List of Abbreviations C&AG Comptroller and Auditor General DEL Department of Employment and Learning DOE Department of the Environment DFP Department of Finance and Personnel DHSSPS Department of Health, Social Security and Public Safety DoJ Department of Justice DRD Department of Regional Development ECHR European Convention on Human Rights ECNI Equality Commission for Northern Ireland E&LBs Education and Library Boards FE Further Education HMRC Her Majesty’s Revenue and Customs HSC Health and Social Care MEP Member of the European Parliament MLA Member of the Northern Ireland Legislative Assembly MoD Ministry of Defence MP Member of Parliament NI Northern Ireland NICS Northern Ireland Civil Service NIAO Northern Ireland Audit Office NICCY Northern Ireland Commissioner for Children and Young People NIJAO Northern Ireland Judicial Appointments Ombudsman NIPSO Northern Ireland Public Services Ombudsman OFMDFM Office of the First Minister and the deputy First Minister PAC Public Accounts Committee of the Northern Ireland Assembly RoI Republic of Ireland UK United Kingdom ii Table of Contents Table of Contents Volume 1 List of Abbreviations Used in the Report ii Executive Summary 1 Introduction 3 Background 4 Merger of the existing offices 5 Title of new office 5 Term of appointment 5 Recruitment and selection of the NIPSO 5 Formal appointment 6 Assembly competence to alter current appointment mechanism 6 Removal from office 7 Restrictions on appointment and on leaving office 7 Temporary vacancy in the office 8 Salary and pension 8 Transfer of staff 9 Relationship with the Assembly 10 Financial accountability 10 Remit of NIPSO 11 Bodies within the NIPSO’s remit 11 NI Assembly Commission and NI Audit Office 11 Schools 11 Institutions of Further and Higher Education 12 Public Procurement 13 Public Sector Employment 13 Social Care – professional judgement 14 Complaints 16 Rights of appeal or legal redress as a bar to investigation 16 Role of MLAs in bringing complaints to the NIPSO 16 Aggrieved person’s representative 16 NIPSO may accept complaints from a public body 16 Oral and written complaints 17 Residency requirement 17 iii Report on the Committee’s Proposals for a Northern Ireland Public Services Ombudsman Bill - Volume One Time limit for making complaints and ‘signposting’ duty for public bodies 18 Reports on investigations and publication in the public interest 18 Enforcement 20 Enforcement/compensation in the County Court and public bodies’ right to a formal hearing with legal representation 20 Application to the Attorney General for Northern Ireland 22 Reports to the Assembly 22 Further proposals 24 Notices prohibiting disclosure of information 24 Obligations of confidentiality or secrecy 24 Legal privilege 25 Information sharing/co-operation 26 Requirement on public bodies to provide facilities to the NIPSO 27 Power to take action to resolve a complaint short of full investigation 27 Own initiative investigations 27 Ministers’ proposals 29 Northern Ireland Judicial Appointments Ombudsman 29 Local Government Standards 30 NIPSO’s relationship with the Assembly 31 Equality considerations 32 Financial implications 33 Appendix 1 Minutes of Proceedings 37 Appendix 2 Minutes of Evidence 83 Appendix 3 Consultation 2010 165 Appendix 4 Consultation 2012 403 Volume 2 Appendix 5 Correspondence 477 Appendix 6 Research 713 Appendix 7 Deloitte Review and other papers 791 iv Executive Summary Executive Summary The Committee for the Office of the First Minister and deputy First Minister in this mandate, and the 2007-2011 mandate, has developed policy proposals to combine the offices of the Assembly Ombudsman for Northern Ireland and the Northern Ireland Commissioner for Complaints with their current powers remit and responsibilities – subject to the proposals set out below and in the main body of this Report. The proposals would also reform jurisdiction and powers and provide for appointment of the Northern Ireland Public Services Ombudsman (NIPSO) by Her Majesty on the nomination of the Assembly and for the NIPSO to report to the Assembly and Assembly Committees on a basis to be laid down in Standing Orders. Westminster legislation is likely to be required to enable the Assembly to confidently legislate on a small number of matters within the proposed Bill. Following consideration of this report the Committee will seek the assistance and consent of the Secretary of State in bringing forward relevant legislation. ■ The new office would be known as the Northern Ireland Public Services Ombudsman or NIPSO; ■ Appointment as NIPSO would be for a single, non-renewable, fixed term of seven years; ■ The mechanics of recruitment and selection of a suitable candidate would be under the auspices of the Assembly Commission; ■ Formal appointment would be by Her Majesty on the nomination of the Assembly and removal before expiry of the fixed term would reflect the appointment arrangements; ■ There would be restrictions on appointment and on leaving office aimed at avoiding actual or perceived conflicts of interest; ■ Temporary vacancies in office would be provided for by appointment of an acting NIPSO; ■ The NIPSO’s salary would be determined by the Assembly Commission subject to an upper limit; ■ Existing staff/secondees would have the opportunity to transfer to the NIPSO; ■ The NIPSO would have a similar relationship to the Assembly as the Comptroller and Auditor General; ■ Where the current legislation indicates a requirement for approval by or accountability to a NI Department this would transfer to the Assembly or its Committees as provided for in the Assembly’s Standing Orders; ■ In relation to budget and spending the NIPSO would be accountable to an Assembly Committee as provided for in Standing Orders; ■ The NIPSO’s remit would include schools, the Assembly Commission, the Northern Ireland Audit Office and further and higher education institutions, in addition to bodies currently within the Assembly Ombudsman/Commissioner for Complaints remit. ■ The NIPSO’s remit would not include public sector employment issues; ■ In relation to public procurement the NIPSO’s remit would be extended and complaints regarding professional judgment in social care would be dealt with on the same basis as complaints regarding clinical judgement in health care; ■ Complaints could be made orally (if reduced to writing and agreed within 20 working days) and the NIPSO would have discretion in relation to accepting different written forms of complaint; ■ Complaints could be made directly by the aggrieved person, by their Member of the Northern Ireland Legislative Assembly (MLA) or by the aggrieved person’s representative; 1 Report on the Committee’s Proposals for a Northern Ireland Public Services Ombudsman Bill - Volume One ■ Complaints could also be referred to the NIPSO for determination - by a public body which had sought unsuccessfully to resolve an issue; ■ The Northern Ireland residency requirement for complainants would be removed; ■ The time limit for making a complaint would be reduced from