Environment and Infrastructure Policy Review Committee

PP 2016/0065

ENVIRONMENT AND INFRASTRUCTURE POLICY REVIEW COMMITTEE

SECOND REPORT FOR THE SESSION

2015-2016

Statutory Procedure for Complaints Against Local Authorities

ENVIRONMENT AND INFRASTRUCTURE POLICY REVIEW COMMITTEE SECOND REPORT FOR THE SESSION 2015-2016 Statutory Procedure for Complaints Against Local Authorities

There shall be three Policy Review Committees which shall be Standing Committees of the Court. They shall scrutinise the implemented policies, as deemed necessary by each Committee, of the Departments and Offices indicated in this paragraph together with the associated Statutory Boards and other bodies:

• Environment and Infrastructure Committee: Department of Environment, Food and Agriculture; and Department of Infrastructure;

Each Policy Review Committee shall in addition be entitled to take evidence from witnesses, whether representing a Department, Office, Statutory Board or other organisation within its remit or not, in cases where the subject matter cuts across different areas of responsibility of different Departments, Offices, Statutory Boards or other organisations. The Policy Review Committees may also hold joint sittings for deliberative purposes or to take evidence. The Chairmen of the Policy Review Committees shall agree on the scope of a Policy Review Committee’s inquiry where the subject cuts across the respective boundaries of the Policy Review Committees’ remits.

Each Policy Review Committee shall have –

(a) a Chairman elected by Tynwald,

(b) two other Members.

Members of Tynwald shall not be eligible for membership of the Committee, if, for the time being, they hold any of the following offices: President of Tynwald, member of the Council of Ministers, member of the Treasury Department referred to in section 1(2)(b) of the Government Departments Act 1987.

The Policy Review Committees shall be authorised in terms of sections 3 and 4 of the Tynwald Proceedings Act 1876 as amended and of Standing Orders to take evidence and to summon the attendance of witnesses and further to require the attendance of Ministers for the purpose of assisting the Committee (or Committees, if sitting jointly).

The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984. Committee Membership

Mr T P Wild MLC (Chairman)

Mr G D Cregeen MHK (Malew and Santon)

Mr D J Quirk MHK (Onchan)

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im

All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW. Table of Contents

I. BACKGROUND: COMMITTEE MEMBERSHIP AND THE INVESTIGATION...... 1

II. SCOPE OF THE INVESTIGATION ...... 3

III. INVESTIGATION OF THE LACUNA ...... 3

IV. THE TYNWALD COMMISSIONER FOR ADMINISTRATION...... 5

V. RECOMMENDATIONS OF THE SELECT COMMITTEE ON LOCAL AUTHORITIES: MEMBERS’ INTERESTS...... 11

VI. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS...... 13

WRITTEN EVIDENCE ...... 15

APPENDIX 1 1ST DECEMBER 2014 - LETTER OF REFERRAL FROM MR D QUIRK MHK INCLUDING COPY OF LETTER FROM MR JR HAMILTON 17

APPENDIX 2 10TH DECEMBER 2014 – EMAIL FROM MR W GREENHOW, CHIEF SECRETARY ISLE OF MAN GOVERNMENT 23

APPENDIX 3 8TH JANUARY 2015 - LETTER FROM MR D QUIRK MHK INCLUDING COPY OF LETTER FROM MR JR HAMILTON INCLUDING LEGAL OPINION FROM MR S GOLDBERG 27

APPENDIX 4 18TH FEBRUARY 2015 - LETTER FROM MR NJ BLACK, CHIEF EXECUTIVE DEPARTMENT OF INFRASTRUCTURE 37

APPENDIX 5 25TH FEBRUARY 2015 - LETTER FROM MR W GREENHOW, CHIEF SECRETARY ISLE OF MAN GOVERNMENT 43

APPENDIX 6 17TH JUNE 2015 - LETTER FROM MR JLM QUINN, ACTING ATTORNEY GENERAL 47

APPENDIX 7 22ND DECEMBER 2015 - LETTER FROM MR D QUIRK MHK, ENCLOSING A COPY LETTER FROM MR JR HAMILTON TO MR W GREENHOW, CHIEF SECRETARY ISLE OF MAN GOVERNMENT 53

APPENDIX 8 AUGUST 2009 – COUNCIL OF MINISTERS CONSULTATION ON THE TYNWALD COMMISSIONER FOR ADMINISTRATION A DRAFT BILL 59

APPENDIX 9 JULY 2010 – SUMMARY OF RESPONSES TO THE CONSULTATION ON THE DRAFT TYNWALD COMMISSIONER FOR ADMINISTRATION BILL 109

To: The Hon Clare M Christian, President of Tynwald,

and the Hon Council and Keys in Tynwald assembled

ENVIRONMENT AND INFRASTRUCTURE POLICY REVIEW COMMITTEE SECOND REPORT FOR THE SESSION 2015-2016 Statutory Procedure for Complaints Against Local Authorities

I. BACKGROUND: COMMITTEE MEMBERSHIP AND THE INVESTIGATION

1. The Committee was established in 2011 with a remit to scrutinise the implemented policies of three Departments including the Department of Infrastructure. The remit of the Committee was written into the Standing Orders of Tynwald Court by resolution in May 2011 with effect from October 2011. Members were first elected to the Committee in November 2011.

2. At the start of this investigation in December 2014 the Members of the Committee were; Mr Dudley Butt MLC (Chairman), Mr Tony Wild MLC and Mr John Shimmin MHK.

3. In February 2015 Mr Shimmin was appointed Minister for Policy and Reform, a position which precluded him from being a member of this committee. Mr Butt’s term of office as a Member of the Legislative Council ceased on 28th February 2015 and he did not stand for re-election.

4. At the March 2015 sitting of Tynwald Court, Mr Graham Cregeen MHK was elected to the Committee to replace Mr Shimmin.

5. At the May 2015 sitting of Tynwald Court, Mr Wild was elected to replace Mr Butt as Chairman of the Committee. A further Committee Member was therefore required and Mr David Quirk MHK was elected.

1 6. This investigation has been undertaken in response to a letter of referral sent to us on 1st December 2014 by Mr David Quirk MHK on behalf of his constituent Mr JR Hamilton.1 This was around six months before Mr Quirk was elected to the Committee. The request was that this Committee investigate the provisions in the Local Government Act 1985 for the Department of Infrastructure to investigate a complaint about a Local Authority, particularly an apparent lacuna with respect to effective remedy in the event a complaint is upheld. Mr Hamilton asked specifically that consideration be given to:

An Independent Tribunal/Authority to be established with mandatory powers to investigate, report and make recommendations in relation to complaints against Local Authority Members or its Officers, on matters of wrongdoing, maladministration, misconduct or any other of their actions or comments in the process of undertaking any of their duties or functions but not limited only to failure to act, but also to the manner in which they have acted in any discussions, processes or associated matters.2

7. The apparent lacuna was identified as a result of a preliminary investigation into a complaint about the conduct of a member of a local authority, referred to the Department of Infrastructure by Mr Hamilton, via an advocate, in April 2013.

8. On the 10th December 2014 we received a copy of an email from Mr Will Greenhow, Chief Secretary, supporting Mr Hamilton’s request and asking that this Committee consider accepting the referral.3

9. On the 8th January 2015 Mr Quirk forwarded additional correspondence from Mr Hamilton which included:

a copy of the relevant sections of the legal opinion of Counsel on the interpretation of the Act 4which identify the lacuna within the legislation5

10. A copy of this legal opinion provided by Mr Simon Goldberg, of Trinity Chambers, Newcastle upon Tyne can be found in Appendix 3.

11. At a meeting on 28th January 2015 we began an investigation.

1 Appendix 1 - Letter from Mr D Quirk MHK 2 Appendix 1 - Copy letter from Mr JR Hamilton 3 Appendix 2 4 ss 4 - 5 Local Government Act 1985 5 Appendix 3

2 II. SCOPE OF THE INVESTIGATION

12. This investigation included consideration of the apparent lacuna in sections 4 and 5 of the Local Government Act 1985.

13. This investigation did not consider the original complaint of Mr Hamilton against a local authority, apart from reviewing progress with the recommendations of the Select Committee on Local Authorities: Members’ Interests6 which was set up following a Petition for Redress of Grievance on the subject submitted by Mr Hamilton on Tynwald Day 2011.

III. INVESTIGATION OF THE LACUNA

14. We asked the Department of Infrastructure and the Isle of Man Government Chief Secretary, Mr Will Greenhow, how they perceived the apparent lacuna and what solutions they would propose.

15. The Department of Infrastructure responded in a letter dated 18th February 2015, stating:

The Department, whilst noting the opinion of Mr Goldberg, does not ‘perceive’ there to be any problem with the operation of section 4 of the 1985 Act in so far as the provision clearly provides for the relevant Department to cause an inquiry (notwithstanding the element of discretion to the Department to do so) in respect to the manner in which any functions of a local authority are carried out by the authority. To the extent that a case against an Authority has been proven in respect of its failure to discharge a function, the remedy is provided by means of section 5(2) of the Act,7

16. The Department provided a list of the statutory functions of local authorities8 and concluded that they did not agree with the opinion of Mr Goldberg that there would be no effective remedy under the Act should a local authority fail to perform these duties.9

17. With respect to the matter of awarding tenders, the process referred to in Mr Hamilton’s earlier complaint, the Department noted:

6 http://www.tynwald.org.im/business/committee/LAMI/Pages/default.aspx 7 Appendix 4 8 Appendix 4 9 Appendix 3 – Legal Opinion - para 11

3 it is entirely reasonable that the award of tenders process may be said to fall within what may be classed as ‘general or administrative duties’ of a local authority and therefore fall within the provisions of section 72 of the 1985 Act. As such, and when set against this context and that of paragraph 11 of the extract, Mr Goldberg is advancing the opinion that the provisions of the Local Government Act 1985 are silent such that under the Act there is no effective remedy in those instances where a local authority has not (correctly) exercised its powers or performed its duties or there has been misfeasance in respect to its general or administrative duties.10; and that:

responding to Mr Goldberg’s opinion re the silence of the Act in respect to the provision of an effective remedy for allegations of misfeasance, the Department would state that such a remedy is in fact provided by an action in Court in respect to the public law of tort11

18. The department stated that it had maintained this view throughout the period of correspondence with Mr Hamilton and further:

That the Department would also state that as Local Authorities are separate legal entities of themselves, there remains an onus upon them to satisfy their legal responsibilities in respect to the undertaking of their functions/powers/duties.12

19. We considered the view of the Department which was that section 4 of the 1985 Act provided for statutory oversight with respect to whether statutory functions were being performed and, that where it was found they were not, that an effective remedy was provided in section 5.

The Committee concludes that where a member of the public has a concern about the exercise of local authority functions or the action or inaction of a local authority member, section 4 of the Local Government Act 1985 does not provide an effective remedy. This is because section 4 is primarily concerned with the delivery of public services and whether in a case of insufficiency the Department should make an order to transfer functions under section 5. However in a case where an individual member of the public has been affected by an unfair decision or action a legal remedy is available by way of a Petition of Doleance.

10 Appendix 4 11 Appendix 4 12 Appendix 4

4 20. We noted that in spite of this view the Department had undertaken a preliminary investigation into the complaint of Mr Hamilton and concluded that ‘a section 4 inquiry was not necessary’.

21. The Department’s view regarding section 4 inquiries was that they would ‘be best conducted by a wholly independent body or person’.

22. The Chief Secretary supported this view stating:

the merits of establishing a provision for an independent body (or person) to deal with Section 4 inquiries in the future should be fully considered,13

The Committee concludes that investigation of complaints about any function or actions of a local authority, member or officer should be undertaken by an independent third party.

IV. THE TYNWALD COMMISSIONER FOR ADMINISTRATION

23. We asked the Acting Attorney General to provide a view on the evidence received, specifically:

a. Letter from the Chief Secretary of the 25th February 2015 b. Letter from the Department of Infrastructure of 18th February 2015 c. Counsel opinion provided to Mr J R Hamilton by Mr Simon Goldberg 24. In his response the Acting Attorney General states:

It was arguably to address concerns of the nature of the lacuna expressed by Mr Goldberg, on behalf of Mr Hamilton, under the Local Government Act 1985 that Tynwald enacted the Tynwald Commissioner for Administration Act 2011 (“the 2011 Act”). Had the 2011 Act been in operation at the time of the original conduct about which the complaint is made, the Commissioner would have had the power to investigate the complaint if he had so wished. This power is because local authorities are specified authorities for the purposes of the 2011 Act by virtue of their inclusion in Schedule 2 to the 2011 Act. The Commissioner could then have conducted an inquiry and prepared a report for Tynwald on the issues and made recommendations. It is to be noted however that the Commissioner would not have had power to order a review of a decision

13 Appendix 5

5 impugned in that report. So if the 2011 Act had been in operation it would, at the very least, have enabled proper public debate on the issue.14

25. We considered whether, if brought into force, the Tynwald Commissioner for Administration Act 201115 could provide a solution to the requirement for an independent investigator of complaints against Local Authorities.

26. When the Tynwald Commissioner for Administration Bill was read for the second time in the House of Keys, Mr Brown, Hon. Member for Castletown, in moving, said:

Mr Speaker, the 29 clause Bill will introduce a fully independent, non- governmental official for the purpose of resolving complaints about the delivery of public services16

27. In the Act17 a local authority is a listed authority (Schedule 2)

The Committee concludes that a Tynwald Commissioner appointed under the Tynwald Commissioner for Administration Act 2011 would be an independent third party with the power to address complaints about local authorities.

28. In his letter of the 22nd December 2015 to Mr W Greenhow, Chief Secretary, Mr Hamilton writes, with respect to his original request (which is noted in paragraph 6 of this report), that:

It is clear from the Tynwald Commissioner for Administration Act that the powers therein are inadequate to ensure that a proper investigation of a complaint must be undertaken18

29. He lists the following as restrictions of the Act:

a) Matters of maladministration in connection with administrative functions.

b) The complainant must have sustained injustice or hardship as a result of the wrongdoing.

14 Appendix 6 15 http://legislation.gov.im/cms/images/LEGISLATION/PRINCIPAL/2011/2011- 0013/TynwaldCommissionerforAdministrationAct2011_4.pdf 16 Hansard House of Keys 2nd November 2010 – Item 4.3 - http://www.tynwald.org.im/business/OPIndexHansard0811/5205.pdf 17 http://legislation.gov.im/cms/images/LEGISLATION/PRINCIPAL/2011/2011- 0013/TynwaldCommissionerforAdministrationAct2011_4.pdf 18 Appendix 7

6 c) A complaint must first be made to the Local Authority who has taken all reasonable steps to deal with the complaint.

d) The power to investigate is at the discretion of the Commissioner.

e) The Commissioner recommendations are not binding.

Further that:

A) Any matters of wrongdoing of which a valid complaint is made ought to be investigated.

B) Any matters of wrongdoing of which any person makes a valid complaint ought to be investigated.

C) A complaint cannot first be made to the Local Authority, as its Board Members or Senior Officers cannot investigate themselves.

D) It ought to be a mandatory requirement to investigate a complaint. Should the Commissioner decide not to investigate there is nothing a complainant can do about the decision. This is no better than the provisions under the existing Section 4 Act.

E) The Commissioners recommendations ought to be binding and have a time limit for implementation. The Select Committee's recommendation on members Interests is a case in point. It's now over three years since these recommendations were made, which have still not been implemented.

30. We noted that a consultation19 was issued before the Bill was introduced, explaining its intended effect and inviting comments. The responses to the consultation were published by the Chief Secretary’s Office.20 In some cases, points raised resulted in changes to the proposed legislation and, where changes were not made, the reasons were explained. Some of the points are related to the concerns raised by Mr Hamilton.

31. With respect to paragraph 29 point a), in section 9 of the Act - ‘Matters which may be investigated’, it states:

(1) The matters which the Commissioner is entitled to investigate are —

(a) any action taken by or on behalf of a listed authority in the exercise of administrative functions of the authority; and

19 Appendix 8 - https://www.gov.im/ConsultationDetail.gov?id=99 20 Appendix 9 - https://www.gov.im/ConsultationDetail.gov?id=99

7 (b) any alleged service failure.

(2) In this Act “service failure” means —

(a) any failure in a service provided by a listed authority;

(b) any failure of the listed authority to provide a service which it was a function of that authority to provide.21

In 5.3.2 of the Consultation22 it states:

The Commissioner will investigate any administrative action of an authority for the purpose of deciding whether there is evidence of maladministration; to mediate complaints and to review, and to suggest improvements to, administrative practices and procedures. The matter must be in respect of which a complaint has been made to the Commissioner or a request for an investigation has been made by a listed authority.

32. During the consultation there was a proposal for a restriction in relation to investigations of local authorities, namely that:

The application of the Bill to local authorities should be limited to statutory functions23

This was rejected and the Bill was not changed. The reason given was:

All decisions of a local authority should be open to independent scrutiny. The UK has Local Government Ombudsmen separate from their Government Ombudsmen, however it would not be cost effective or relevant to have local authorities separated from the commissioner system in the Island.24

33. We noted that as a result of feedback to the consultation the scope of what could be investigated had been widened to include ‘failure to provide reasons’.25

34. We also noted that the Act includes provisions, not in the draft Bill issued with the consultation, for the Commissioner to exercise discretion in his decision to conduct an investigation. It says:

21 http://legislation.gov.im/cms/images/LEGISLATION/PRINCIPAL/2011/2011- 0013/TynwaldCommissionerforAdministrationAct2011_4.pdf 22 Appendix 8 23 Appendix 9 – Annex B, Item 1. 24 Appendix 9 – Annex B, Item 1. 25 Appendix 9 – Annex A, Item 2

8 Despite subsection (2)(k) and (l) the Commissioner may conduct an investigation, even though the complainant has or had such a right or remedy as is mentioned there, if satisfied that it is neither reasonable nor expedient to expect the complainant to exercise, or have exercised, that right or invoke that remedy, having regard to—

(a) the inability of the complainant to bear the costs likely to be incurred;

(b) the likelihood that those costs will be disproportionate;

(d) any other reason which appears sufficient to the Commissioner.26

The Committee concludes that the scope of the Tynwald Commissioner for Administration Act 2011, taking into account the discretion of the Commissioner with respect to what may be investigated, is sufficiently broad.

35. With respect to paragraph 29 point b) we consider that the requirement for a complainant to have suffered some sort of injustice or hardship is an appropriate restriction when the cost of investigation will be met from public funds.

36. With respect to paragraph 29 point c) and C) we consider that it is appropriate for the recipient of a complaint to be given the opportunity to resolve an issue through their own complaints process, which will usually contain safeguards to prevent staff or officials investigating themselves, before it is brought to the attention of an external investigator.

37. With respect to paragraph 29 points d), A), B) and D) we noted the consultation feedback where a similar concern was raised:

Power to determine whether to initiate, continue or discontinue an investigation. The Bill states that if the Commissioner declines to investigate, reasons must be given. However, would it not be more appropriate to include in the Bill those circumstances in which the Commissioner might determine not to investigate – e.g. if they believes the complaint to be frivolous or vexatious?27

This did not result in a change to the draft legislation and the reason given was that the:

26 Tynwald Commissioner for Administration Act 2011 s.11 (3) 27 Appendix 9 – Annex B, Item 7

9 Commissioner has to prepare a statement under clause 14 as to the reasons for the decision not to investigate a complaint which is considered sufficient provision in the Bill. There should not be a prescriptive list.28

38. This finality of a decision not to investigate was discussed during the second reading of Clause 14 of the Bill in Legislative Council. Some Members raised concerns about the lack of an appeal against the decision not to investigate but the clause was passed.29

39. We agree that a prescriptive list of reasons not to investigate is not required, the Commissioner should be able to make a decision and provide the reasons. However we consider the lack of an appeal option for a complainant who is not satisfied with the reasons given to be a weakness in the legislation as drafted.

The Committee concludes that where the Commissioner decides not to investigate that there should be a final right of appeal against the decision not to investigate.

Recommendation 1

That Tynwald requires the Council of Ministers to bring forward an amendment to the Act by 31st December 2016 to make provision for a right of appeal against a decision not to investigate.

40. With respect to paragraph 29 points e), and E) we noted the consultation feedback where a similar concern was raised, that:

The Commissioner should be empowered to take steps to secure redress and require a public body to cooperate with such steps.

The Bill was not changed and the reason given was:

The Commissioner should not be able to compel listed authorities to do anything which would include the payment of compensation. However the Commissioner can make recommendations and draw issues to the attention of Tynwald and therefore he/she will be a powerful and influential figure.

28 Appendix 9 – Annex B, Item 7 29 Hansard of the Legislative Council – 25 Jan 2011 – lines 2860-2934

10 cannot be rejected irrationally, having regard to the legislative intention which underlies the Ombudsman’s legislation.30

41. We agreed that a report to Tynwald which may include recommendations should be a powerful tool but that this had not always been the case in the past and this point is considered in more detail in Section V of this report.

The Committee concludes that the purpose of the Tynwald Commissioner for Administration Act 2011 is to provide a formalised, independent and accessible system for addressing complaints against public bodies, including Local Authorities.

42. The Committee met with the current Minister for Policy and Reform, Hon John Shimmin MHK on 15th March 2016. He confirmed that work to make it possible to appoint a Tynwald Commissioner for Administration is underway and possible solutions are being discussed.

Recommendation 2

That Tynwald calls on the Council of Ministers to undertake whatever work is necessary to ensure that a Tynwald Commissioner for Administration is appointed before 31st December 2016.

V. RECOMMENDATIONS OF THE SELECT COMMITTEE ON LOCAL AUTHORITIES: MEMBERS’ INTERESTS

43. With respect to paragraph 29 point E) above we noted with concern the time taken to action the recommendations of the Select Committee on Local Authorities: Members’ Interests31 which was formed in 2011, reporting in 201232.

44. We noted that the recommendations were marked as ‘Implemented’ in the 2014 Tynwald Policy Decisions Report. The Department of Infrastructure said:

The Department is preparing drafting instructions for the Attorney Generals Chambers so as to allow the relevant provisions to be included in the draft Local Government Amendment Bill. 33

30 Appendix 9 – Annex B, Item 3 31 http://www.tynwald.org.im/business/committee/LAMI 32 http://www.tynwald.org.im/business/pp/Reports/2012-PP-0107.pdf 33 http://www.tynwald.org.im/business/opqp/sittings/Tynwald%2020142016/2014-GD-0062.pdf - p26

11 45. The Department of Infrastructure have confirmed that all of the recommendations will be covered in a future Local Government Amendment Bill. But in reply to a question in Oral Evidence on 11 Nov 2016 confirmed that this legislation was not a priority for 2015-16.34

46. So two years after the Department marked these recommendations as complete in the Tynwald Policy Decisions report we note, with concern, that this legislation has not begun its passage through the Branches of Tynwald.

47. We understand that legislative and Departmental priorities are influenced by many things and they change. However an intention to complete the action required by a recommendation of Tynwald is not the same as completing it and it should not have been reported as such.

Recommendation 3

That the Council of Ministers must ensure that the Decision Status is correctly reported in the annual Tynwald Policy Decisions Report and that items are not removed before they are actually completed.

Recommendation 4

That recommendations not completed within 12 months of their approval by Tynwald must be updated to provide an expected completion date and the reason for delay explained.

48. Recommendations made by the Tynwald Commissioner will need to be treated very seriously and so these should be completed within a maximum of 12 months from the time of approval.

Recommendation 5

That any recommendation of the Tynwald Commissioner for Administration, approved by Tynwald, must be actioned within 12 months, or sooner if specified, and that they will not be marked as completed until the Commissioner is satisfied.

34 Q60 http://www.tynwald.org.im/business/hansard/20002020/envii151111.pdf

12 VI. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS

The Committee concludes that investigation of complaints about any function or actions of a local authority, member or officer should be undertaken by an independent third party.

The Committee concludes that where the Commissioner decides not to investigate that there should be a final right of appeal against the decision not to investigate.

Recommendation 1

That Tynwald requires the Council of Ministers to bring forward an amendment to the Act by 31st December 2016 to make provision for a right of appeal against a decision not to investigate.

13 Recommendation 2

That Tynwald calls on the Council of Ministers to undertake whatever work is necessary to ensure that a Tynwald Commissioner for Administration is appointed before 31st December 2016.

Recommendation 3

Recommendation 4

That recommendations not completed within 12 months of their approval by Tynwald must be updated to provide an expected completion date and the reason for delay explained.

Recommendation 5

T P Wild (Chairman)

G D Cregeen

D J Quirk

May 2016

14 WRITTEN EVIDENCE

15 16 APPENDIX 1 1st December 2014 - Letter of referral from Mr D Quirk MHK including copy of letter from Mr JR Hamilton

17 18 19 20 21 22 APPENDIX 2 10th December 2014 – Email from Mr W Greenhow, Chief Secretary Isle of Man Government

23 24 25 26 APPENDIX 3 8th January 2015 - Letter from Mr D Quirk MHK including copy of letter from Mr JR Hamilton including legal opinion from Mr S Goldberg

27 28 29 30 31 32 33 34 35 36 APPENDIX 4 18th February 2015 - Letter from Mr NJ Black, Chief Executive Department of Infrastructure

37 38 39 40 41 42 APPENDIX 5 25th February 2015 - Letter from Mr W Greenhow, Chief Secretary Isle of Man Government

43 44 45 46 APPENDIX 6 17th June 2015 - Letter from Mr JLM Quinn, Acting Attorney General

47 48 49 50 51 52 APPENDIX 7 22nd December 2015 - Letter from Mr D Quirk MHK, enclosing a copy letter from Mr JR Hamilton to Mr W Greenhow, Chief Secretary Isle of Man Government

53 54 55 56 57 58 APPENDIX 8 August 2009 – Council of Ministers Consultation on the Tynwald Commissioner for Administration A Draft Bill

59 60

Council of Ministers Consultation on the Tynwald Commissioner for Administration

A Draft Bill

August61 2009

Tynwald Commissioner For Administration

Contents

Section Page

1. Introduction 2

2. Background 2

3. The Tynwald Commissioner for Administration Bill 3

4. Consultation Process 5

5. Summary of the Provisions 7

5.1 Appointment of the Tynwald Commissioner for Administration 7

5.2 Functions of the Tynwald Commissioner for Administration 8

5.3 Investigations 8

5.4 Complaints 10

5.5 Evidence Gathering 11

5.6 Reports 12

6. Mechanisms currently available for registering complaints 14

6.1.1 Existing Complaints Procedure 14

6.1.2 Parliamentary 14

6.1.3 Petition for the Redress of Grievance 14

6.1.4 Petition of Doleance to Court 15

Appendix 1 The draft Tynwald Commissioner for Administration Bill Appendix 2 Impact Assessment Appendix 3 Personal Liability Designated Persons Appendix 4 List of Consultees Appendix 5 Code of Conduct on Consultation

1 62

1. Introduction

1.1 There is a need for the Isle of Man Government to demonstrate publicly that it requires public bodies to be open to independent scrutiny of their administrative processes and decisions and this can be best done by an Ombudsman who will be known as the Tynwald Commissioner for Administration (the Commissioner).

1.2 The Commissioner will investigate complaints from members of the public who feel they have been unfairly treated by certain organisations. The office will be impartial and independent. If the Commissioner found a complaint was justified he or she will take steps to secure redress for the complainant.

1.3 Members of the public are too often left with no alternative but to pursue their grievances against public bodies through political or parliamentary channels. The existence of a specialised officer with statutory powers to investigate complaints significantly strengthened their ability to secure redress.

2. Background

2.1 In 2004 the Council of Ministers Report ‘Review of the Current Standardised Complaints Procedure and Case for the Establishment of an Ombudsman’ was received by Tynwald and its recommendations adopted.

2.2 A principle recommendation contained within the Report was that there would be merit in establishing an Ombudsman Scheme to provide a fair and impartial assessment of complaints which is divorced from either political or administrative involvement.

2.3 The Bill has been drafted alongside the Tynwald Auditor General Bill as it is felt that the two Bills together will ensure good governance and provide the public with confidence that the Government is concerned about how it deals with members of the public and with public money.

2.4 By making it explicit that public bodies are expected to meet high standards it can give confidence to potential partners, the public, private, or voluntary sectors, and to the people of the Isle of Man.

2.5 The introduction of the Commissioner will be in support of the Government’s corporate governance mechanisms and controls which are designed to assist the Government in maintaining credibility and confidence in the public service. The three fundamental principles of corporate governance are:

2 63 Openness An open approach is required to ensure all interested parties are confident in the organisation itself. Being open in the disclosure of information leads to effective and timely action and lends itself to necessary scrutiny.

Integrity This is described as both straightforward dealing and completeness. It should be reflected in the honesty of an organisation’s annual report and its portrayal of a balanced view. The integrity of reports depends on the integrity of those who prepare and present them which, in turn, is a reflection of the professional standards within the organisation.

Accountability This is the process whereby individuals are responsible for their actions. It is achieved by all parties having a clear understanding of those responsibilities, and having clearly defined roles through a robust structure.

2.6 By defining the standards that government expects, and working in line with those standards, the public can be sure that things are being done correctly. This will ensure that the Government’s credibility and reputation is upheld. This is important not just locally, but, as the Isle of Man increasingly takes its place within the global arena, also internationally.

3. The Tynwald Commissioner for Administration

3.1 The Commissioner will be introduced through The Tynwald Commissioner for Administration Bill. The purpose of the Bill will be to introduce a formalised independent system whereby complaints against public bodies can be addressed, and the processes and decisions of public bodies thoroughly investigated by a person external from Government.

3.2 The most significant features of the Act are as follows:

3.2.1 Appointment The Commissioner will be selected by a Selection Committee and approved by Tynwald.

3.2.2 Independence The Commissioner will be independent in the performance of his or her functions.

3.2.3 Investigation The matters which the Commissioner could investigate are any actions taken by a listed authority (see section 5.3.1 of this Report) in the exercise of its administrative functions and any alleged service failure of that authority.

3.2.4 Conduct of Investigations Investigations must be conducted in private. The procedure for conducting a particular investigation will be a matter for the Commissioner to decide.

3 64 When conducting an investigation the Commissioner may require any person with information relevant to the case to furnish that information or attend before them.

3.2.5 Findings and Reports When the Commissioner carried out an investigation they must inform the complainant of the result of the investigation.

Where it appeared to the Commissioner that the response by the local authority to a finding which they have made is not satisfactory the Commissioner may make a special report on the matter to Tynwald.

The Commissioner must make an annual report on the performance of his or her functions to Tynwald.

3.2.6 Scope Excluded from examination or investigation by the Commissioner will be cases for example: • where the matter is before the Courts; • where the aggrieved person has a statutory right of appeal to the courts; • where there is a right of appeal to an independent appeal body; • related to recruitment or terms or conditions of employment.

4 65 4. Consultation Process

4.1 This consultation exercise is designed to invite comments on the Consultation document produced by the Council of Ministers with regard to the proposed provisions of the Tynwald Commissioner for Administration Bill.

4.2 A list of Consultees can be found at Appendix 4 of this document. If there is anyone not on the list who you think should be consulted please contact the Officer named below.

4.3 The Council of Ministers would welcome your views on the Report. To make comment on the proposals you can either use the comment boxes provided within this document or by another means but please make it clear to which proposal you are referring.

4.4 Comments should be submitted in writing by post, fax or email to: Rose Dawson Chief Secretary’s Office Government Office Bucks Road Douglas Isle of Man IM1 3PN

Tel. (01624) 685037 Fax. (01624) 685710 Email: [email protected]

4.5 When submitting your views please can you indicate whether you are responding on behalf of an organisation.

4.6 For additional hard copies please contact the Chief Secretary’s Office by telephoning 01624 687066. Hard copies will also be available from the Central Reference Library, Government Offices, Bucks Road, Douglas.

4.7 Electronic copies of this document are also available at www.gov.im/cso

4.8 To ensure that the process is open and honest and in line with the Government’s Code of Conduct on Consultation, as attached at Appendix 4, responses can only be accepted if you provide your name with your response.

4.9 Unless specifically requested otherwise, any responses received may be published either in part or in their entirety. Please mark your response clearly if you wish your response and

5 66 name to be kept confidential. Confidential responses will be included in any statistical summary and numbers of comments received.

4.10 A summary of the responses received will be published within 3 months of the closing date for this consultation, and will be made available on the Government website or by contacting the above named Officer.

4.11 The purpose of consultation is not to be a referendum but an information, views and evidence gathering exercise from which to take an informed decision on the proposal. In any consultation exercise the responses received do not guarantee changes will be made to what has been proposed.

Hon J A Brown, Chief Minister Issued August 2009

6 67 5. Summary of the Provisions

5.1 Appointment of the Tynwald Commissioner for Administration

5.1.1 The Tynwald Commissioner for Administration (the Commissioner) will be an Officer of Tynwald but will not be under the direction of Tynwald, Council of Ministers or Treasury except as provided by the Bill.

5.1.2 The Commissioner will have an appropriate knowledge and experience of the law and will be a person who commands the confidence of the public and Tynwald.

5.1.3 There are provisions in place to deal with terms and conditions, resignation and the removal of the Commissioner where circumstances dictate.

5.1.4 Although it is not possible to fully gauge the volume and nature of the complaints which will go to the Commissioner it is not considered that there will be sufficient volume of complaints to merit the appointment of a Commissioner on a full time basis. Furthermore the Commissioner will not be provided with any independent administration staff.

5.1.5 Therefore it is proposed to establish a contracted Commissioner with no dedicated office support at this time.

5.1.6 The part time appointment with no staff support will be closely monitored and the Bill will allow for the Commissioner to be appointed full time and for office accommodation to be provided. The Bill will further provide for the Commissioner to appoint staff and persons to provide services and/or advice with the approval of the Treasury.

5.1.7 If the Commissioner is unable to act for any reason, such as illness or a conflict of interest, then provisions contained within the Interpretation Act 1976 will be used to appoint an Acting Commissioner.

Comment:

7 68 5.2 Functions of the Tynwald Commissioner for Administration

5.2.1 The general functions of the Commissioner will be to conduct investigations into the actions and alleged service failures of listed authorities subject to the directions of Tynwald. The Commissioner will provide for a consistent external analysis of administration standards.

5.2.2 Examples of situations where the Commissioner may be able to provide a resolution or solution that will be difficult to achieve elsewhere are –

° where the complainant is seeking an explanation of the departmental action, this may or may not be coupled with the need for an apology; ° where the complaint is about delay in dealing with some matter; ° where the complainant cannot afford the time to spend in pursuing an action or does not have the temperament or capacity to look after his interest properly; ° where the action complained about has been taken in accordance with the provisions of the relevant legislation but is nevertheless unfair in its effect on the complainant.

Comment:

5.3 Investigations

5.3.1 The Commissioner will investigate any matter if it consists of action taken by or on behalf of the following listed authorities -

8 69 . by the Department of Local Government and the Environment and one or more local authorities. • The Manx Museum and National Trust. • The Civil Service Commission. • The Attorney General’s Chambers. • The General Registry. • The Chief Secretary’s Office. • Industrial Relations Officers appointed under section 5 of the Trade Disputes Act 1985. • Laxey Glen Flour Mills Ltd. • Radio Manx Ltd. • Isle of Man Gambling Supervision Commission. • Any person for the time being specified in section 3 of the Personal Liability (Ministers, Members and Officers) Act 2007 other the Chief Minister or a Minister (please refer to Appendix 3 for a full list of persons).

5.3.2 The Commissioner will investigate any administrative action of an authority for the purpose of deciding whether there is evidence of maladministration; to mediate complaints and to review, and to suggest improvements to, administrative practices and procedures. The matter must be in respect of which a complaint has been made to the Commissioner or a request for an investigation has been made by a listed authority.

5.3.3 The Bill contains some general principles to ensure that where a complaint or request that involves or affects matters some of which are capable of investigation by any of the relevant supervisors, including the Data Protection Supervisor or the Office of Fair Trading, evidence should be gathered once and once only and that evidence wherever desirable should be shared.

5.3.4 The Commissioner will have the power to determine whether to initiate, continue or discontinue an investigation.

Comment:

9 70 5.4 Complaints

5.4.1 A complaint can be made by a member of the public or referred to the Commissioner by a listed authority.

5.4.2 The Commissioner may only investigate a complaint if it is in connection with any action taken by or on behalf of a listed authority in the exercise of administrative functions of that authority or any alleged service failure by a listed authority. Furthermore the complainant must claim to have sustained injustice or hardship as a consequence of that maladministration or failure.

5.4.3 By service failure we mean any failure in a service provided by a listed authority; or any failure of the listed authority to provide a service which it was a function of that authority to provide.

5.4.4 As far as is reasonable a complaint must be addressed by the listed authority in question before being considered by the Commissioner.

5.4.5 The Commissioner may investigate a matter referred to above by virtue of a request from listed authority only if the Commissioner is satisfied that it has been alleged publicly (whether or not by a complainant) that one or more members of the public have sustained injustice or hardship and the listed authority in question has taken all reasonable steps to deal with the matter to which the allegation relates.

5.4.6 Generally, complaints must be made within 12 months of the day on which the complainant first had notice of the matter to which the complaint relates. The Commissioner has discretion to accept late complaints.

5.4.7 There are certain requirements in relation to the conduct of investigations, such as investigations being conducted in private, otherwise it is for the Commissioner to determine the procedure for conducting an investigation.

5.4.8 Tynwald can make general directions as to the procedure to be followed by the Commissioner when conducting investigations. Tynwald can also require the Commissioner to make a report to Tynwald upon such matters as Tynwald directs. However no direction from Tynwald may direct the Commissioner as to whether, or how, an individual investigation should be carried out.

5.4.9 There is a requirement for listed authorities to take reasonable steps to publicise the service of the Commissioner. The Commissioner may issue guidance to listed authorities to assist them in the performance of their duties in this respect.

10 71 5.4.10 The Bill will have effect in respect of any act or service failure occurring after the date on which it is passed.

Comment:

5.5 Evidence gathering

5.5.1 The Commissioner has a wide range of powers to require information to be supplied and documents to be produced which are relevant to an investigation.

5.5.2 The Commissioner can require the listed authority, any member, officer or staff member of the authority and any other person to supply information or documents.

5.5.3 The Commissioner is given the same powers as the High Court in respect of the attendance and examination of witnesses and the production of documents.

5.5.4 There are certain exemptions on the type of information and documents that the Commissioner can require such as information relating to the proceedings of the Council of Ministers.

5.5.5 There is an offence created under the Bill of obstruction and contempt.

(a) Where a person has obstructed the Commissioner in the exercise of his or her functions, or done any act or failed to take any action in relation to an investigation which will constitute a contempt of court in the High Court, the Commissioner may petition the High Court for that person to be dealt with as if they had committed a contempt of court.

(b) Where a person has obstructed the Commissioner in the course of his or her functions or has destroyed or falsified documents or evidence that person will be liable on conviction on information to custody for not more than 2 years, or a fine, or both; or

11 72 on summary conviction to custody for not more than 6 months, or a fine not exceeding £5,000.

5.5.6 The Commissioner is required to keep information provided to them confidential except in certain limited circumstances.

5.5.7 The exceptions to this rule, whereby relevant information may be disclosed, are:

• the purposes of either considering complaints or requests, undertaking an investigation, reporting on an investigation, or making a statement of reasons for not undertaking an investigation; • any proceedings for, or preliminary inquiries into, offences alleged under the Official Secrets Acts or in respect of perjury alleged to have been committed in the course of any investigation.

5.5.8 The Commissioner may disclose information obtained under the Bill to the Tynwald Auditor General, the Data Protection Supervisor, the Office of Fair Trading where the Commissioner forms the opinion that a complaint or request relates partly to a matter that could be the subject of an investigation by the particular office or office-holder.

5.5.9 The Chief Minister may give a non-disclosure notice to the Commissioner in respect of any document or information, however he may do so only if satisfied that the disclosure will prejudice the security, economic well being or international relations of the United Kingdom or of the Island.

Comment:

5.6 Reports

5.6.1 The Commissioner must report on investigations and is required to lay that Report before Tynwald.

12 73 5.6.2 There is provision for a special report where the Commissioner considers that injustice or hardship has been sustained by an individual and that the injustice or hardship has not been, or will not be, remedied.

5.6.3 The reports referred to above must not identify any person but may identify the listed authority.

5.6.4 There is also a requirement for the Commissioner to lay before Tynwald every October an annual report on the general exercise of his or her functions. The report can include general recommendations that the Commissioner may have arising from the exercise of his or her functions over the year.

Comment:

13 74 6. Mechanisms currently available for registering complaints

6.1 There are several mechanisms by which members of the public may register complaints about the Administration.

6.1.1 Existing Internal Complaints Procedure

The existing standardised complaints procedure within public authorities will be retained as the first stage in resolving grievances at line manager or chief officer level. This procedure will not change under the proposed introduction of the Tynwald Commissioner for Administration.

6.1.2 Parliamentary

A person may contact one of the 24 Members of the House of Keys or 8 Members of the Legislative Council directly requesting that they take forward a complaint on their behalf. A complaint may then be picked up and supported by a member: who may request that a Select Committee be set up to address the issue. The Member may progress it through normal Departmental complaints mechanisms, or refer it to one of the Members for the Department.

6.1.3 Petition for the Redress of Grievance

This ancient right (dating back at least to the 15th century) which is unique to the Isle of Man, must be exercised at the St Johns Tynwald on July 5th. A Petition for the Redress of Grievance must meet the following conditions:

• it must relate to either a matter of public interest or the public service (i.e. it must not be of a purely private concern but should have general implications; and

• it must relate to a matter falling within the province of Tynwald - this excludes matters which are under the control of the Parliament at Westminster, and matters in respect of which Tynwald has devolved power to another authority.

In particular, the petition should contain no reference to any matter capable of adjudication upon by the High Court of Justice or any tribunal or arbitration, or any formal officially recognised complaints procedure, unless the petition shows that in the particular circumstances it is not reasonable to expect the petitioner to resort or to have resorted to such remedy.

14 75 A petition for the redress of grievance cannot change the immediate decision but it is possible to seek the appointment of a Select Committee to investigate whether procedural changes should be made to avoid recurrence of the grievance.

6.1.4 Petition of Doleance to Court

In a case where a person is in dispute with a Department over the merits of a decision, that person has the option of petitioning the High Court for a remedy, which is discretionary. That means that a successful applicant has no right to a remedy. The Court will take the following issues into account when deciding whether to grant a remedy –

• Any delay in bringing the case. • Whether the applicant has suffered substantial hardship. • Any impact the remedy may have on third parties. • Merits of the case.

If the High Court quashes a decision, it may send it back to the Department or Statutory Board with a direction that it be reconsidered and a decision reached in accordance with the Court’s findings.

6.2 Introducing this further stage, the right to appeal to the Tynwald Commissioner, should ensure that complaints are dealt with without recourse to the other more complex formal procedures such as Tynwald Select Committees, Petition for the Redress of Grievance or Petition of Doleance to Court.

6.3 These complex formal procedures are not appropriate in most instances. In particular the option of submitting a petition for redress does not provide a simple and quick means of redress. Petitions can only be submitted once a year and are dependent on being picked up by a member of the legislature. There is the attendant cost and difficulty of the petition having to be prepared in a form complying with Standing Orders of Tynwald. The Commissioner will provide an alternative which will be free, simple and available at all times.

6.4 The Bill will introduce a right of recourse to the Tynwald Commissioner which will usually be about how a public body has discharged its functions and will leave open the remedies in court in relation to the effect of the public body discharging them in that way.

15 76 Appendix 1

THE DRAFT TYNWALD COMMISSIONER FOR ADMINISTRATION BILL

Explanatory Memorandum 1. This Bill is promoted by the Council of Ministers. It provides for the appointment and functions of a new officer of Tynwald, the Tynwald Commissioner for Administration (referred to in this Memorandum as “the Commissioner”). 2. Part 1 (clauses 1 to 3) provides for the short title, commencement and interpretation. 3. Part 2 (clauses 4 to 19) provides for the appointment of the Commissioner, and the Commissioner’s powers and duties in relation to an investigation. 4. Clause 4 provides for the appointment of the Commissioner and is supplemented by the detailed provisions of Schedule 1. 5. Clause 5 introduces the Commissioner’s general functions 6. Clause 6 empowers Tynwald to give directions to the Commissioner about the general conduct of investigations. Subsection (3) however expressly precludes Tynwald giving directions in relation to the conduct of particular investigations. 7. Clause 7 specifies the Commissioner’s powers to investigate, while clause 8 and Schedule 3 specify which persons and classes of persons are liable to investigation. 8. Clause 9 specifies what the Commissioner may investigate. 9. Clause 10 provides for the making of complaints by members of the public. 10. Clause 11 excludes certain matters from investigation under the Act. 11. Clause 12 specifies who may complain to the Commissioner, while clause 13 provides time limits for investigations. 12. Clause 14 specifies the procedure to be followed where the Commissioner determines not to investigate a complaint. 13. Clause 15 prescribes the procedure to be followed in the conduct of an investigation. 14. Clause 16 sets out the Commissioner’s power to require evidence to be furnished to him or her. It also excludes the Crown’s right (insofar as vested in the Government of the Island) to assert the privilege against production which it would enjoy in legal proceedings. 15. Clause 17 deals with obstruction of the Commissioner’s investigations and punishment for contempt, applying the approach which would be taken in proceedings before the High Court. 16. Clause 18 deals with reports after investigations and clause 19 with special reports where it appears that an injustice will not be remedied. 17. Clause 20 deals with annual reports, clause 21 with the application of the law of defamation to inquiries and clause 22 with the confidentiality of information obtained during an investigation. 18. Clause 23 provides for consultation with the Tynwald Auditor General (whose office is created by the Tynwald Auditor General Bill of the present Session) and with other specified regulators. Clause 24 imposes a requirement on listed authorities to provide

16 77 information about the procedure for making a complaint to the Commissioner, while clause 25 contains transitional provision. 19. An impact assessment has been prepared in relation to this Bill. 20. In the view of the member moving the Bill, its provisions are compatible with the Convention rights within the meaning of the Human Rights Act 2001.

Arrangement of Sections PART 1 OPENING PROVISIONS 1. Short title 2. Commencement 3. Interpretation PART 2 APPOINTMENT AND FUNCTIONS OF TYNWALD COMMISSIONER FOR ADMINISTRATION 4. Appointment 5. General functions 6. Directions given by Tynwald 7. Power of investigation 8. Persons liable to investigation 9. Matters which may be investigated 10. Complaints from members of the public 11. Excluded matters 12. Complaints: who may complain 13. Complaints: time limits and procedure 14. Decision not to investigate 15. Investigation procedure 16. Evidence 17. Obstruction and contempt 18. Reports on investigations 19. Special reports PART 3 MISCELLANEOUS AND GENERAL 20. Annual reports etc. 21. Protection from actions for defamation 22. Confidentiality of information 23. Consultation with the Tynwald Auditor General and with regulators 24. Information about right to make complaint PART 4 CLOSING PROVISIONS 25. Transitional provision 26. Consequential amendments Schedules — Schedule 1 : The Tynwald Commissioner for Administration Schedule 2 : Persons liable to investigation under this Act

17 78

ISLE OF MAN Ellan Vannin

A BILL to make provision for the appointment and functions of the Tynwald Commissioner for Administration; and for connected purposes. BE IT ENACTED, by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Council and Keys in Tynwald assembled, and by the authority of the same, as follows:— PART I OPENING PROVISIONS 1 Short title The short title of this Act is the Tynwald Commissioner for Administration Act 2010. 2 Commencement (1) This Act, other than section 1 and this section, shall come into operation on such day as the Council of Ministers may by order appoint. (2) An order under subsection (1) may — (a) appoint different days for different provisions and for different purposes; (b) make such consequential, transitional or transitory provisions and savings (including transitory modifications to this Act) as the Council of Ministers considers necessary in connection with— (i) any provision brought into force in the order; or (ii) the partial operation of this Act. 3 Interpretation (1) In this Act — “action” includes failure to act; “the Commissioner” shall be construed in accordance with section 4(1) and (2); “complaint” means a complaint to the Commissioner; “complainant” has the meaning given in section 10(2); “listed authority” has the meaning given in section 8(1) and (2); “request” means a request for investigation under section 7(2); “service failure” has the meaning given in 9(2); “the Selection Committee” means the committee constituted under paragraph 1(1) of Schedule 1; “the Tynwald Management Committee” and “the Tynwald Public Accounts Committee” means the Committees of Tynwald specified for the purposes of this Act in a resolution of Tynwald. (2) For the purposes of this Act, action taken by or on behalf of a listed authority includes action taken by — (a) a member or committee of the authority;

18 79 (b) an officer or member of staff of the authority; (c) any person acting on behalf of the authority; and (d) any person to whom the authority has delegated functions. PART 2 APPOINTMENT AND FUNCTIONS OF TYNWALD COMMISSIONER FOR ADMINISTRATION 4 Appointment

S2002/11/1 (1) There shall be a Tynwald Commissioner for Administration (“the Commissioner”). (2) The Commissioner, in exercise of that officer’s functions, is not subject to the direction or control of — (a) Tynwald or any Committee of Tynwald; (b) the Legislative Council; (c) the House of Keys; (d) the Council of Ministers; (e) the Treasury; or any member of those bodies, except as provided by this Act (see, in particular, section 6). (3) The Commissioner shall be an officer of Tynwald. (4) Schedule 1 makes further provision about the appointment and functions of the Commissioner. 5 General functions The general functions of the Commissioner are to conduct investigations in accordance with section 7 into the actions and service failures of listed authorities, subject to directions given by Tynwald under section 6. Investigations by the Commissioner 6 Directions given by Tynwald S2002/16/4 (1) The Commissioner shall, in carrying out the functions of that office, comply with any directions given by Tynwald. (2) Any direction to the Commissioner under this section may, in particular — (a) make provision as to the procedure to be followed by the Commissioner when conducting investigations into complaints falling within such class or classes as may be specified in the direction (and different provision may be made in relation to different classes of complaint); or (b) require the Commissioner to make a report to Tynwald upon such matter relating to the exercise of the functions of the Commissioner as may be specified in the direction. (3) But no direction to the Commissioner by Tynwald under this section may direct the Commissioner as to whether, or how, any particular investigation is to be carried out. 7 Power of investigation S2002/11/2 (1) Subject to directions under section 6, the Commissioner may investigate any matter, whenever arising, if — (a) the matter consists of action taken by or on behalf of a listed authority,

19 80 (b) the matter is one which the Commissioner is entitled to investigate, and (c) a complaint in respect of the matter has been duly made to the Commissioner. (2) Subject to directions under section 6, the Commissioner may also investigate any matter, whenever arising, if — (a) paragraphs (a) and (b) of subsection (1) are satisfied, and (b) the listed authority liable to investigation has requested the Commissioner to investigate the matter. (3) It is for the Commissioner to decide whether to initiate, continue or discontinue an investigation under subsection (1) or (2). Nothing in this subsection limits the operation of section 4(2). (4) The Commissioner may take such action in connection with the complaint or request as the Commissioner thinks may be of assistance in reaching any such decision. (5) Such action may, in particular, include action with a view to resolving the complaint or request. (6) In exercising his or her functions in relation to a complaint or request which involves or affects matters some of which are capable of investigation by any of the relevant persons the Commissioner must have regard to the principles that so far as possible— (a) the Commissioner and the relevant persons should co-operate in the conduct of linked investigations; (b) matters should only be investigated once; and (c) evidence should only be taken once. (7) If the Commissioner and the relevant person cannot agree the way in which the principles in subsection (6) are to be applied in a particular case, they must seek, and comply with, the directions of the Chief Minister on the application of those principles. (8) In a case where subsection (7) applies and the relevant person is appointed by the Governor in Council, the Chief Minister must consult the Governor before giving directions under that subsection. (9) In this section “the relevant persons” are— (a) the Tynwald Auditor General; (b) the Data Protection Supervisor; (c) the commissioner appointed under paragraph 2(1) of Schedule 1 to the Police Act 1991; (d) a person appointed to audit an account under section 3 of the Audit Act 2006; and (e) a person appointed to undertake an extraordinary audit under section 11 of that Act. 8 Persons liable to investigation S2002/11/3 (1) The persons liable to investigation under this Act are the persons and classes of persons specified in Schedule 2. (2) References in this Act to a listed authority are references to any such person. (3) The Council of Ministers may by order amend Schedule 2. (4) No order under subsection (3) is to be made unless the Council of Ministers has consulted — (a) every listed authority to whom the order relates; and (b) every person who, were the order to be made, would become a listed authority. (5) An order under subsection (3) must not come into operation unless it is approved by Tynwald.

20 81 9 Matters which may be investigated S2002/11/5(1) & (2) (1) The matters which the Commissioner is entitled to investigate are — (a) any action taken by or on behalf of a listed authority in the exercise of administrative functions of the authority; and (b) any alleged service failure. (2) In this Act “service failure” means — (a) any failure in a service provided by a listed authority; (b) any failure of the listed authority to provide a service which it was a function of that authority to provide. (3) This Act has effect in respect of any act or service failure occurring after the date on which it is passed. 10 Complaints from members of the public 2002/11/5(3) – (7) (1) The Commissioner may investigate a matter falling within section 9(1) by virtue of a complaint only if — (a) a member of the public claims to have sustained injustice or hardship in consequence of — (i) maladministration in connection with an action falling within paragraph (a) of that subsection, or (ii) a service failure; (b) that member of the public has objected about the action or failure in writing to the listed authority whom the complainant alleges is responsible for it; and (c) the listed authority in question — (i) has in its view taken all reasonable steps to deal with the matter to which the allegation relates; or (ii) having been requested to do so by the complainant has not, within a period of 28 days following the complaint, or, in exceptional circumstances, such longer period not exceeding 3 months, as appears to the Commissioner to be reasonable, conducted a proper investigation into it. (2) A person making such a claim is referred to in this Act as the “complainant”. (3) The Commissioner may investigate a matter falling within section 9(1) by virtue of a request from listed authority only if the Commissioner is satisfied that — (a) it has been alleged publicly (whether or not by a complainant) that one or more members of the public have sustained injustice or hardship as mentioned in subsection (1): and (b) the listed authority in question has taken all reasonable steps to deal with the matter to which the allegation relates. (4) In this section “member of the public” means any individual or body of persons (whether incorporated or not) other than — (a) a listed authority; or (b) any other authority or body whose revenues consist wholly or mainly of money provided by Tynwald (whether directly or indirectly). (5) This section is subject to section 11. 11 Excluded matters

S2002/11/8 (1) The Commissioner must not investigate any matter specified in or under subsection (2).

21 82 (2) Those matters are — (a) matters certified by the Chief Minister to affect relations or dealings between the Government and any other government or international organisation; (b) action taken in any country or territory outside the Island by or on behalf of a listed authority; (c) action taken by or with the consent or authority of the Attorney General or Chief Constable for the purposes of, or in connection with, the investigation or prevention of crime or the protection of the security of the Island or the United Kingdom; (d) the commencement or conduct of — (i) civil or criminal proceedings before any court of law; or (ii) proceedings before any international court or tribunal; (e) action taken by any office-holder in, or member of the administrative staff of any court or tribunal, so far as that action is taken at the direction, or on the authority (whether express or implied), of any person acting in a judicial capacity or in the capacity of a member of a tribunal; (f) action taken by a person acting in an official capacity under the Criminal Injuries Compensation Scheme; (g) action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters; (h) action concerning — (i) the giving of instruction, whether secular or religious; or (ii) conduct, curriculum or discipline, in any educational establishment provided or maintained by the Department for Education; (i) action taken in matters relating to contractual or other commercial transactions of a listed authority, whether in the Island or elsewhere, other than — (i) transactions relating to the compulsory acquisition of land or where the circumstances are such that the land could be acquired compulsorily; (ii) the disposal as surplus of land acquired compulsorily or in the circumstances specified in sub- paragraph (i); (j) action in respect of which the complainant has a right of appeal, reference or review to or by an adjudicator, tribunal or other body; (k) action in respect of which the complainant has a remedy by way of proceedings in any court. (3) The Council of Ministers may by order amend subsection (2). (4) An order under subsection (3) shall not come into operation unless it is approved by Tynwald. 12 Complaints: who may complain

S2002/11/9 (1) A complaint may be made to the Commissioner — (a) by the complainant; or (b) by a person authorised in writing for the purpose by the complainant. (2) Despite subsection (1) — (a) if an individual by whom a complaint might have been made has died or is for any reason unable to act, the complaint may be made by — (i) any person authorised for the purpose of subsection (1)(b) before the individual's death or inability to act;

22 83 (ii) the individual's personal representatives or a member of the individual's family; or (iii) any other person appearing to the Commissioner to be suitable to represent the individual; (b) where a body by which a complaint might have been made is for any reason unable to act for itself, the complaint may be made by another person appearing to the Commissioner to be suitable to represent it. (3) The complainant must be resident in the Island at the time the complaint is made (or, if the person has died, must have been so resident at the time of death). This is subject to the following qualification. (4) Subsection (3) does not apply where the complaint relates to action taken — (a) in relation to a person while the person was present — (i) in the Island; or (ii) on a ship registered in the Island or an aircraft so registered; or (b) in relation to rights or obligations which accrued or arose in the Island or on such a ship or aircraft. 13 Complaints: time limits and procedure

S2002/11/10 (1) The Commissioner must not consider a complaint made — (a) more than 12 months after — (i) the act or omission giving rise to it came to the complainant’s knowledge; or (ii) the day on which it ought reasonably to have come to the complainant’s knowledge; or (b) more than 6 years after the date of the act or omission. (2) The Commissioner may consider a complaint made outside that period if satisfied that there are special circumstances which make it appropriate. (3) A complaint must be made in writing. (4) It is for the Commissioner to determine whether a complaint has been duly made. (5) In reckoning the period of 12 months referred to in subsection (1)(a) the time between the delivery of an objection to the listed authority and the giving of that authority’s response shall be disregarded. 14 Decision not to investigate

S2002/11/11 (1) If the Commissioner, after considering a complaint, decides not to investigate a complaint, the Commissioner must send a statement of the reasons for the decision to the persons specified in subsection (2). (2) Those persons are — (a) the complainant; (b) the listed authority in question; (c) any other person who is alleged in the complaint to have taken the action, or to have been responsible for the service failure, complained of; (d) if the complaint was made by a person authorised for the purpose of section 12(1)(b), that person; and (e) if the complaint was made by a person other than the complainant under section 12(2), that other person.

23 84 (3) Where a person referred to in subsection (2)(d) was authorised for the purpose of section 12(1)(b) in a particular capacity, but no longer acts in that capacity, the Commissioner must send the statement of reasons instead to such other person acting in that or a similar capacity as the Commissioner thinks fit. (4) If the Commissioner, after considering a request that the Commissioner investigate a matter, decides not to investigate it, the Commissioner must send a statement of the reasons for the decision to the person who made the request. 15 Investigation procedure

S2002/11/12 (1) An investigation under section 7 must be conducted in private. (2) Where the investigation is pursuant to a complaint, the Commissioner must give — (a) the listed authority in question, and (b) any other person who is alleged in the complaint to have taken the action which is its subject, an opportunity to comment on any allegations contained in the complaint. (3) In other respects the procedure for conducting the investigation is to be such as the Commissioner thinks fit. (4) The Commissioner may, in particular — (a) obtain information from such persons and in such manner, and make such inquiries, as the Commissioner thinks fit; (b) determine whether any person may be represented, by an advocate or otherwise, in the investigation. (5) The Commissioner may pay to — (a) the person by whom the complaint was made (where an investigation follows a complaint); and (b) any other person who attends or supplies information for the purposes of an investigation (whether or not following a complaint), such allowances in respect of expenses properly incurred by the person and by way of compensation for loss of time as the Treasury may by order determine. (6) The conduct of an investigation does not affect — (a) any action taken by the listed authority in question; (b) any power or duty of the listed authority to take further action with respect to any matter being investigated. (7) An order under subsection (5) shall not come into operation unless it is approved by Tynwald. 16 Evidence S2002/11/13 (1) Subject to subsection (10), for the purposes of an investigation, the Commissioner may require the listed authority in question and any of the persons mentioned in subsections (2) and (3) to supply information or produce documents relevant to the investigation. (2) Those persons are — (a) any member, officer or member of staff of the listed authority; and (b) any other person, who in the Commissioner's opinion is able to supply such information or to produce such documents.

24 85 (3) Where the listed authority in question is an office-holder in a department or statutory board, the Commissioner may also require — (a) any other office-holder in the department or statutory board; (b) any member of the Isle of Man Civil Service assigned to assist the office-holder under investigation in the exercise of the office-holder's functions, to supply information or to produce documents relevant to the investigation. (4) For the purposes of any such investigation the Commissioner has the same powers as the High Court in respect of — (a) the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad); and (b) the production of documents. (5) No obligation to maintain secrecy or other restriction on the disclosure of information, whether imposed by any enactment or by any rule of law, applies to the disclosure of information for the purposes of an investigation by the Commissioner. (6) The Crown in right of the Government in the Island is not entitled in relation to any investigation by the Commissioner to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings. (7) No person is or may be required or authorised by virtue of this Act to supply any information or answer any question relating to proceedings of the Council of Ministers or of any committee of the Council of Ministers, or to produce so much of any document as relates to such proceedings. (8) For the purposes of subsection (7), a certificate issued by the Chief Minister certifying that any information, question, document or part of a document so relates is conclusive. (9) Subject to subsections (5) and (6), no person is compelled, for the purposes of an investigation by the Commissioner, to give any evidence or produce any document which that person could not be compelled to give or to produce in civil proceedings in the High Court. (10) This Act does not authorise — (a) the Commissioner to require any person to produce; or (b) the listed authority in question and any of the persons mentioned in subsection (2), to produce, to the Commissioner any information or document originating from any person outside the Island unless that person’s written consent has first been obtained. 17 Obstruction and contempt S2002/11/14 (1) If — (a) a person, without lawful excuse, obstructs the Commissioner in the exercise of the Commissioner's functions; or (b) a person does any act or fails to take any action in relation to an investigation which, if the investigation were a proceeding in the High Court, would constitute contempt of court, the Commissioner may apply by petition to the High Court for the person to be dealt with in accordance with subsection (2). (2) Where such a petition is presented, the High Court may inquire into the matter and after hearing — (a) any witnesses who may be produced against or on behalf of the person in question; and (b) any statement which may be offered in defence, may deal with the person as if the person had committed a contempt of court in relation to the High Court.

25 86 (3) If a person — (a) without lawful excuse, obstructs the Commissioner in the course of the Commissioner’s functions; or (b) with the intention of obstructing the Commissioner in the course of the Commissioner’s functions, destroys or falsifies any document or other evidence relevant to those functions; that person commits an offence. (4) A person who commits an offence under subsection (3) is liable— (a) on conviction on information, to custody for not more than 2 years, or a fine, or both; or (b) on summary conviction to custody for not more than 6 months, or a fine not exceeding £5,000. (5) No-one shall be liable to be prosecuted for an offence under subsection (3) if a petition has been presented under subsection (1) in respect of the same conduct, and no-one shall be the subject of a petition under subsection (1) if a prosecution has been commenced against him or her in respect of the same conduct. (6) Nothing in this section is to be construed as applying to — (a) any action taken by the listed authority in question; (b) any power or duty of the listed authority to take further action with respect to any matter being investigated. 18 Reports on investigations

S2002/11/15 (1) After conducting an investigation, the Commissioner must — (a) if the investigation is pursuant to a complaint, send a report of the investigation to the persons specified in section 14(2) and to the Council of Ministers; (b) if the investigation is pursuant to a request, send a report of the investigation to the person specified in section 14(4) and to the Council of Ministers, and must lay a copy of the report before Tynwald. (2) Where a person referred to in subsection (1)(a) was authorised for the purpose of section 12(1)(b) in a particular capacity, but no longer acts in that capacity, the Commissioner must send the statement of reasons instead to such other person acting in that or a similar capacity as the Commissioner thinks fit. (3) Apart from identifying the listed authority in question, the report must not — (a) name any person; or (b) contain any particulars which, in the Commissioner's opinion, are likely to identify any person and can be omitted without impairing the effectiveness of the report, unless the Commissioner determines that it is necessary to do so. (4) The listed authority in question must, unless the Commissioner otherwise directs — (a) make arrangements, having effect for a period of at least 3 weeks, for allowing any person to — (i) inspect the report at any reasonable time; (ii) obtain a copy of it, or any part of it (whether or not on payment of a reasonable fee); and (b) publicise those arrangements. (5) In considering whether to make — (a) a determination under subsection (3); or (b) a direction under subsection (4), the Commissioner must take into account the public interest as well as the interests of the complainant (if the investigation is pursuant to a complaint) and of any other persons.

26 87 (6) Any person who obstructs another person seeking to inspect a report or obtain a copy of it or any part of it in pursuance of arrangements made under subsection (4) is guilty of an offence and liable, on summary conviction, to a fine not exceeding £2,500. 19 Special reports S2002/11/16 (1) This section applies where a report under section 18 finds that the complainant has sustained injustice or hardship as mentioned in section 10(1). (2) If, following the making of the report, it appears to the Commissioner that the injustice or hardship has not been, or will not be, remedied, the Commissioner may make a special report on the case. (3) The Commissioner must send a special report to the persons to whom the report under section 18 was sent. (4) Apart from identifying the listed authority in question, the special report must not— (a) mention the name of any person; or (b) contain any particulars which, in the Commissioner's opinion, are likely to identify any person and can be omitted without impairing the effectiveness of the report, unless the Commissioner determines that it is necessary to do so. (5) The Commissioner may make arrangements for the special report to be available to the public in such manner (whether or not on payment of a reasonable fee) as the Commissioner thinks fit. (6) The listed authority to which the special report relates is liable to reimburse the Commissioner in respect of any expenses incurred by the Commissioner by virtue of subsection (5). PART 3 MISCELLANEOUS AND GENERAL 20 Annual reports etc. P2002/11/17 (1) The Commissioner must lay before the October sitting of Tynwald, or the next practicable sitting, an annual report on the general exercise of the Commissioner's functions. (2) Such a report may include, in particular, any general recommendations which the Commissioner may have arising from the exercise of those functions in the period in question. (3) Tynwald may — (a) give the Commissioner directions as to the form and content of a report under subsection (1); and (b) may impose a requirement that the Commissioner include in the report matters specified in the direction. (4) The Commissioner must comply with any direction under subsection (3). (5) The Commissioner may from time to time lay before Tynwald such other reports with respect to the exercise of the Commissioner's functions as the Commissioner thinks fit. 21 Protection from actions for defamation

2002/11/18 (1) For the purposes of the law of defamation, the following are absolutely privileged — (a) any statement made by the Commissioner in pursuance of section 14, 18, 19 or 20; (b) any statement made by — (i) the complainant; (ii) a person authorised for the purpose of section 12(1)(b);

27 88 (iii) a person falling within section 12(2); or (iv) a listed authority, in communicating with the Commissioner for the purposes of this Act, or by the Commissioner in communicating with any such person or authority for those purposes; (c) any statement made in pursuance of arrangements under section 18(4) or 19(5). (2) In subsection (1), “statement” means words, pictures, visual images, gestures or any other method of signifying meaning. 22 Confidentiality of information

S2002/11/19 and 20 (1) Information obtained by the Commissioner or any of the Commissioner's advisers in connection with any matter in respect of which a complaint or a request has been made must not be disclosed except — (a) for any of the purposes specified in subsection (2); or (b) as permitted by subsection (3) or (5). (2) The purposes mentioned in subsection (1) are — (a) the purposes of — (i) any consideration of the complaint or request (including any statement under section 14); (ii) any investigation of the matter (including any report of such an investigation); (b) the purposes of any proceedings for — (i) an offence under the Official Secrets Act 1911 (an Act of Parliament), as that Act has effect in the Island, alleged to have been committed in respect of information obtained by the Commissioner; (ii) an offence of perjury alleged to have been committed in the course of any investigation of the matter; (c) the purposes of an inquiry with a view to the taking of any of the proceedings mentioned in paragraph (b); and (d) the purposes of any proceedings under section 13. (3) Where information referred to in subsection (1) is to the effect that any person is likely to constitute a threat to the health or safety of others, the Commissioner may disclose the information to any person to whom the Commissioner thinks it should be disclosed in order to safeguard the interests of those whose health and safety may be threatened as a result. (4) In relation to information disclosed under subsection (3), the Commissioner must inform the person from whom the information was obtained of the disclosure. (5) The Commissioner may disclose relevant information to a person specified in column 1 of the Table if the information appears to the Commissioner to relate to any matter specified in relation to that person in column 2. DISCLOSURE OF INFORMATION BY THE COMMISSIONER Person or body Matter The Tynwald Auditor General A matter in respect of which the Tynwald Auditor General could exercise of the powers conferred by the Tynwald Auditor General Act 2010. The Isle of Man Data Protection 1. A matter in respect of which the Supervisor Supervisor could exercise any power conferred by Part 5 (enforcement) of

28 89 the Data Protection Act 2002. 2. The commission of an offence under any provision of the Data Protection Act 2002 other than paragraph 12 of Schedule 8 (obstruction of execution of warrant). The commissioner appointed under A complaint which the commissioner paragraph 2(1) of Schedule 1 to the so appointed could investigate under Police Act 1991 (police that Schedule. complaints). The Isle of Man Office of Fair A matter which that Office could Trading investigate in exercise of its statutory functions. A person appointed to audit an The audit of an account under that account under section 3 of the section. Audit Act 2006 A person appointed to undertake The extraordinary audit of an account an extraordinary audit under under that section. section 11 of the Audit Act 2006

Here “relevant information” means obtained by, or supplied to, the Commissioner or any of the Commissioner's advisers under or for the purposes of this Act. (6) Neither the Commissioner nor the Commissioner's advisers shall be competent to give evidence in any proceedings (other than proceedings referred to in subsection (2)) of matters coming to the knowledge of the Commissioner or those advisers in connection with any matter in respect of which a complaint or request has been made. (7) The Chief Minister may give notice in writing (“a non-disclosure notice”) to the Commissioner to with respect to — (a) any document or information specified in the notice; or (b) any class of document or information so specified. (8) The Chief Minister may only give the Commissioner a non-disclosure notice if satisfied that the disclosure of the document or information, or of documents or information of that class, would prejudice the security, economic well-being or international relations of the United Kingdom or of the Island. (9) If a non-disclosure notice is given, nothing in this Act authorises or requires the Commissioner or any of the Commissioner's advisers to communicate to any person or for any purpose any document or information specified in the notice, or any document or information of a class so specified. (10) In this section references to the Commissioner's advisers are to persons from whom the Commissioner obtains assistance or advice under paragraph 13 of Schedule 1. 23 Consultation with Tynwald Auditor General and regulators

S2002/11/21 (1) Where the Commissioner, at any stage in the course of considering a complaint or request, forms the opinion that the complaint or request relates partly to a matter which could be the subject of an investigation — (a) by the Tynwald Auditor General; (b) by the Isle of Man Data Protection Supervisor; (c) by the Children’s Commissioner;

29 90 (d) by the commissioner appointed under paragraph 2(1) of Schedule 1 to the Police Act 1991; or (e) by the Isle of Man Office of Fair Trading under Schedule 4 to the Financial Services Act 2008; the Commissioner must consult that person or body about the complaint or request. (2) If the Commissioner considers it necessary, the Commissioner must inform the complainant or the person who made the request of the steps necessary to initiate a complaint to the relevant person or body mentioned in subsection (1). (3) Where the Commissioner consults a person or body in accordance with this section, the consultations may extend to any matter relating to the complaint or request, including — (a) the conduct of any investigation into the matter to which the complaint or request relates, and (b) the form, content and publication of any report of the result of such an investigation. (4) Nothing in section 21(1) applies in relation to the disclosure of information in the course of consultation or co-operation under this section. (5) The Council of Ministers may by order amend subsection (1). (6) No order under subsection (5) may be made unless every office-holder to whom, or office to which, the order relates has been consulted. (7) An order under subsection (5) must not come into operation unless approved by Tynwald. 24 Information about right to make complaint

S2002/11/22 (1) A listed authority must take reasonable steps to publicise the application and effect of this Act in relation to the authority including, in particular, providing information about — (a) the right conferred by this Act to make a complaint; (b) the time limit for doing so; and (c) how to contact the Commissioner. (2) Information about the matters specified in subsection (1)(a) to (c) must be included in or provided with — (a) any document published by the listed authority and containing information about services provided by the authority to members of the public or about the procedures of the authority for dealing with complaints; (b) any document issued by the listed authority responding to a complaint made to it by any person who might be entitled to make a complaint to the Commissioner. (3) The Commissioner may issue guidance with respect to the performance by listed authorities of their duties under this section. PART 4 CLOSING PROVISIONS 25 Transitional provision In respect of complaints made about any action or alleged service failure occurring before the date on which section 13 comes into operation (“the commencement date”), the 12 month period referred to in it shall be calculated from the commencement date. 26 Consequential amendments (1) In Schedule 1 to the Civil Service Act 1990 (offices and employments outside the Civil Service) — (a) in Part I after “Tynwald Auditor General” insert “Tynwald Commissioner for Administration”; (b) in Part II after paragraph 4A insert —

30 91 “4B. Employment on the staff of the Tynwald Commissioner for Administration.”. (2) In the Personal Liability (Ministers, Members and Officers) Act 2007 in section 3(2) after paragraph (ib) insert— “(id) the person holding the office of Tynwald Commissioner for Administration; (ie) officers (permanent or temporary) serving on the staff of the Tynwald Commissioner for Administration.”.

31 92 SCHEDULES SCHEDULE 1 [Section 4(4)] 1 Selection of a candidate

(1) A candidate for appointment as the Commissioner must be selected by a committee (“the Selection Committee”) consisting of — (a) the Chair of the Tynwald Management Committee; (b) the Chair of the Tynwald Public Accounts Committee; and (c) the Chief Minister. (2) The Selection Committee must nominate a candidate for appointment after consulting such persons and bodies as appear to the Selection Committee to be appropriate. (3) The Selection Committee must seek the approval of Tynwald to the candidate it has selected, and if such approval is not obtained, must propose an alternative candidate. 2 Qualifications A candidate for appointment as the Commissioner must be a person whom the Selection Committee believes— (a) has an appropriate knowledge and experience of the law; and (b) will command the confidence of the public and Tynwald. 3 Disqualification (1) A person is not eligible to be a candidate for appointment as the Commissioner if that person is— (a) a member of Tynwald; (b) a member or officer of a local authority; (c) a member or officer of a body that is required to have its accounts audited in accordance with the Audit Act 2006 [c.15]; (d) an officer of Tynwald or a Branch of Tynwald; (e) a member of the staff of Tynwald or a Branch of Tynwald; (f) a member of the Isle of Man Civil Service; (g) a member of the Isle of Man Constabulary; (h) a member of the Isle of Man Prison Service. This is subject to sub-paragraph (3). (2) The Commissioner is not qualified for election or appointment to an office or employment mentioned in sub-paragraph (1). (3) A person who would be disqualified for appointment as Commissioner by sub-paragraph (1) may nevertheless — (a) be considered as a candidate if the person undertakes to resign the office or employment if appointed as Commissioner; and (b) be appointed as Commissioner once the person’s resignation has become effective.

32 93 4 Terms and conditions The terms and conditions of employment and the term of office of the Commissioner shall be such as Tynwald may determine after a recommendation by the Selection Committee. 5 Appointment of the Commissioner (1) Once the Selection Committee’s selection has been approved by Tynwald, the Commissioner shall, with effect from such date as the Commissioner and the Selection Committee may agree, be employed by Tynwald. (2) The Commissioner shall hold office for such term as is determined under paragraph 4, and may (but need not) be reappointed upon the expiry of that term. 6 Restrictions (1) The Commissioner must not — (a) enter into any other contract of employment; or (b) carry on any profession, trade or vocation, except with the approval of the Selection Committee. (2) The Selection Committee may attach conditions to such approval. 7 Resignation and removal The person holding the office of Commissioner — (a) may resign by written notice to the Clerk of Tynwald; and (b) may be removed from office by resolution of Tynwald in accordance with paragraph 8. 8 Procedure for removal (1) Tynwald may revoke the appointment of a person to the office of Commissioner on a motion in respect of which sub-paragraphs (2) to (4) are satisfied. (2) The motion must allege one of the following grounds for revocation, namely that the person holding the office of Commissioner— (a) has not carried out the duties of the office in a competent manner; (b) is incapacitated either mentally or physically from carrying out the duties of the office; (c) has neglected to carry out all or any of the duties of the office; (d) has failed to comply with the requirements of paragraph 6(1)(restrictions on other employment and professional activity); (e) has failed to comply with any term or condition of the appointment; (f) has engaged in conduct incompatible with the office of Commissioner; (g) has taken leave of absence not provided for by the terms and conditions of the appointment; or (h) has been convicted of an offence (whether in the Island or elsewhere) and by reason of that conviction shown himself or herself not to be a fit and proper person to continue to hold the office. (3) The motion must not be moved unless the person holding the office of Commissioner — (a) has been given a copy of a statement in support of the motion setting out details of the evidence relied upon in support of the alleged grounds for revocation; and (b) has been given such reasonable opportunity as the circumstances permit to prepare a written statement in respect of the evidence mentioned in paragraph (a).

33 94 (4) The Clerk of Tynwald must forward a copy of the statements to each member of Tynwald with the Order Paper for the sitting at which the motion is to be considered. (5) Once the motion has been tabled, the Selection Committee may suspend the Commissioner from office. (6) If the motion — (a) is withdrawn; (b) is lost after debate; or (c) is not debated within 3 months of being tabled, the Commissioner must be restored to office without loss of remuneration or any other benefits. 9 When office of Commissioner becomes vacant (1) The office of Commissioner becomes vacant if the term of appointment of the person holding the office expires and is not renewed. (2) It also becomes vacant if the person holding the office— (a) dies; (b) gives the Clerk of Tynwald written notice of resignation; (c) accepts nomination to become a member of Tynwald; (d) accepts an offer of appointment as — (i) an officer of Tynwald or a Branch of Tynwald; (ii) a member of the staff of Tynwald or a Branch of Tynwald; (iii) a member of the Isle of Man Civil Service; (iv) a member of the Isle of Man Constabulary; (v) a member of the Isle of Man Prison Service. (e) becomes a member, officer or servant of any local authority; (f) is compulsorily detained as a patient in a hospital (but otherwise than by virtue of Schedule 2A of the Summary Jurisdiction Act 1989, Schedule 1A of the Criminal Jurisdiction Act 1993, or section 2, 4, 5 or 132 of the Mental Health Act 1998 (short term detentions)); (g) has a receiver appointed in respect of his or her property; (h) becomes bankrupt or makes a composition or arrangement with his or her creditors; (i) is convicted, whether in the Island or elsewhere, of an offence involving corruption; or (j) is convicted, whether in the Island or elsewhere, of an offence and sentenced to custody. (3) It also becomes vacant if Tynwald acting in accordance with paragraph 8 revokes the appointment. 10 Exercise of functions during absence, inability or vacancy and delegation Section 20 of the Interpretation Act 1976 applies to the office of the Commissioner, but section 21 of that Act (power to delegate functions to deputy) does not. 11 General powers The Commissioner may, with the approval of the Treasury— (a) enter into contracts; and (b) acquire and dispose of land and other property. This paragraph does not limit the operation of section 26(3) of the Interpretation Act 1976.

34 95 12 Staff (1) The Commissioner may, with the approval of the Treasury as to numbers, appoint staff to assist in carrying out the Commissioner’s functions. (2) The terms and conditions of appointment of such staff, including arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of staff of the Commissioner shall be determined by the Commissioner with the approval of the Treasury. 13 Appointment of persons to provide services (1) The Commissioner may, with the approval of the Treasury, appoint any person to provide services by assisting or advising the Commissioner in carrying out his or her functions. (2) The fees and allowances to be paid to that such a person shall be determined by the Commissioner with the approval of the Treasury. 14 Validity of acts The validity of any act of the Commissioner is not affected by any defect in the appointment of the holder of that office, including a disqualification (if any) for holding that appointment. 15 Financial provision The following shall be a charge on the General Revenue of the Island – (a) the salary, pension and allowances of the Commissioner; and (b) any expenses incurred by the Commissioner in the exercise of the Commissioner’s functions. 16 Accounts and audit (1) The Commissioner must — (a) keep accounts; and (b) prepare annual accounts in respect of each financial year. (2) The accounts of the Commissioner are to be audited in accordance with arrangements made by the Treasury. (3) The financial year of the Commissioner is — (a) the period beginning with the date on which the first Commissioner is appointed and ending with 31 March next following that date; and (b) each successive period of 12 months ending with 31 March.

35 96 SCHEDULE 2 [Section 8(1)] LISTED AUTHORITIES S2002/11/Sch 2 pts 1&2

Departments. Statutory Boards. Local authorities. A joint committee of two or more local authorities. A joint board being a body corporate established under an enactment and consisting of members appointed— (a) by 2 or more local authorities; or (b) by the Department of Local Government and the Environment and one or more local authorities. The Manx Museum and National Trust. The Civil Service Commission. The Attorney General’s Chambers. The General Registry. The Chief Secretary’s Office. Industrial Relations Officers appointed under section 5 of the Trade Disputes Act 1985. Laxey Glen Flour Mills Ltd. Radio Manx Ltd. Isle of Man Gambling Supervision Commission. Any person for the time being specified in section 3 of the Personal Liability (Ministers, Members and Officers) Act 2007 other the Chief Minister or a Minister.

36 97 Appendix 2

THE IMPACT ASSESSMENT

IMPACT ASSESSMENT OF: Tynwald Commissioner for Administration Bill

DEPARTMENT: Council of Ministers

DATE: August 2009 VERSION NUMBER: 1

RELATED PUBLICATIONS: Council of Ministers Report ‘Review of the Current Standardised Complaints Procedure and Case for the Establishment of an Ombudsman’.

Responsible Officer: Jeanette Williams, Director of Policy, Chief Secretary’s Office Rose Dawson, Policy and Research Officer, Chief Secretary’s Office

Email Address: [email protected]

Telephone number: 01624 685037

SUMMARY: INTERVENTION AND OPTIONS

What is the Bill intended to do

The Isle of Man currently lacks a formalised independent system whereby complaints can be addressed, and the processes and decisions of authorities thoroughly investigated, by a person or body external from Government.

Most Western democracies have a system where an independent, non-government official will investigate complaints from the public about the administrative actions of public authorities (including government departments, boards and offices and agencies funded by government). The proposed Bill will introduce this system to the Isle of Man and will provide for an impartial form of alternate dispute resolution which will be flexible and accessible.

Nature of Problem

There is a need for the Isle of Man to demonstrate publicly that it requires its public authorities to be open to independent scrutiny of their administrative processes and decisions and this can be best done by an Ombudsman to be known as the Tynwald Commissioner for Administration (the Commissioner).

The majority of the time public authorities deal with the public in a satisfactory and efficient manner. However, there are times when the system does not operate in a correct manner and a person might need the help of the Commissioner to put things right.

Examples of situations where the Commissioner may be able to provide a resolution or solution that would be difficult to achieve elsewhere are –

° where the complainant is seeking an explanation of the departmental action, this may or may not be coupled with the need for an apology; ° where the complainant cannot afford the time to spend in pursuing an action or does not have the temperament or capacity to look after his interest properly;

37 98 ° where the action complained about has been taken in accordance with the provisions of the relevant legislation but is nevertheless unfair in its effect on the complainant.

The last three Annual Complaints Reports show that the figure for unresolved complaints at the end of an average year is 15 but this figure could rise once the public and Officials know that the Commissioner is available to assist.

Purpose of Proposal

The Commissioner will be a fully independent, non-Governmental official created for the purpose of resolving complaints about the delivery of public services.

The Commissioner will investigate any matter if it consists of action taken by or on behalf of the following listed authorities -

• Departments. • Statutory Boards. • Local authorities. • A joint committee of two or more local authorities. • A joint board being a body corporate established under an enactment and consisting of members appointed— • by 2 or more local authorities; or • by the Department of Local Government and the Environment and one or more local authorities. • The Manx Museum and National Trust. • The Civil Service Commission. • The Attorney General’s Chambers. • The General Registry. • The Chief Secretary’s Office. • Industrial Relations Officers appointed under section 5 of the Trade Disputes Act 1985. • Laxey Glen Flour Mills Ltd. • Radio Manx Ltd. • Isle of Man Gambling Supervision Commission. • Any person for the time being specified in section 3 of the Personal Liability (Ministers, Members and Officers) Act 2007 other the Chief Minister or a Minister.

The existing standardised complaints procedure within public authorities will be retained as the first stage in resolving grievances at line manager or chief officer level. Introducing this further stage should ensure that complaints are dealt with without recourse to other more complex formal procedures such as Tynwald Select Committees, Petition of Doleance to Court or Petition for the redress of Grievance. The role of the Commissioner will be to:

a. Make their service available to all members of the public.

b. Be open, fair, and transparent.

c. Take complaints and investigate them impartially and provide recommendations when applicable.

38 99 d. Promote awareness and improvement in the Public Services.

The Bill will allow the Commissioner to appoint staff and other persons to provide services and/or advice.

It is thought necessary that the Commissioner should have appropriate knowledge and experience of the law. The Commissioner should also be a person of such standing within the community as to enjoy the confidence of the public and the Legislature.

Means by which it is to be achieved

Option 1 Do Nothing The option of retaining the status quo may lead to the Isle of Man being perceived as falling behind other Western democracies in being open to public inspection and censure.

Option 2 Introduce Tynwald Commissioner for Administration by Statute

It is suggested that the Commissioner be paid at the same rate as the High Bailiff.

Preferred Option Option 2A Establish a contracted Tynwald Commissioner with no office support

Although it is impossible to fully gauge the volume and nature of the complaints which will go to the Commissioner the Council of Ministers consider at this time that there will be insufficient volume of complaints to merit the appointment of a Commissioner on a full time basis. Furthermore Council do not consider it appropriate at this time to provide the Commissioner with independent administration staff.

Council propose that the Commissioner be contracted for a certain amount of hours per month at an hourly rate with the flexibility for additional hours if this should prove necessary, dependent on workload etc.

No Staff or office space will be provided at this time. The Commissioner will work from home and carry out any administration. Office supplies, computers etc. will be provided.

Costs will include - • one off costs of computer equipment and a mobile phone; • on-going costs associated with salary and office supplies.

This situation will be closely monitored and the Bill will allow for the Commissioner to be appointed full time and for office accommodation to be provided. The Bill further provides for the Commissioner to appoint staff and persons to provide services and/or advice.

Other options considered

Option 2B Establish a full time staffed office of the Tynwald Commissioner

The Office would be staffed by a small team comprised of a full time Caseworker and an Administrative Officer.

There would be a full time salary for the Tynwald Commissioner based on the High Bailiff’s salary.

39 100 There would be ongoing office costs comprising of office rent and services; communications; miscellaneous expenses.

There would be one off costs for the purchase of equipment and furniture.

Option 2C Establish a part time Tynwald Commissioner office with retained staff

The Caseworker and Administrative Officer would be paid a retainer based on a certain amount of hours worked.

Consideration would need to be given to providing office space for the limited term it would be used. Would have to be independent of Government and provide a cost effective answer.

There would be ongoing salary costs, office costs comprising of office rent and services; communications; miscellaneous expenses.

There would be one off costs for the purchase of equipment and furniture.

Ministerial sign off for Options stage

I have read the Impact Assessment and I am satisfied that given the available evidence, it represents a reasonable view of the likely costs and impact of the preferred option.

Signed Responsible Minister

Date

40 101 SUMMARY: ANALYSIS AND EVIDENCE

IMPACT OF PROPOSAL

Resource Issues - Financial (including manpower)

Statement It is not possible to know the number of complaints that the Commissioner may investigate during a year at this time although it is known that currently there are approximately 15 complaints that are unresolved annually. All that can realistically be done at this stage is to give an overall estimate of the potential cost based on a certain amount of hours per month based on the salary of the High Bailiff.

Likely Financial Costs £18,972 based on 26 hours per month

One Off Not known but will include IT costs, office supplies, mobile telephone.

Average Annual (excluding one off) £18,972

Likely Financial Benefits Unknown however there will be savings from Government Officials and Tynwald Members not being involved in a continuing process.

There may be savings from improved administration practices and procedures.

If the proposal introduces provisions that will require enforcement or monitoring who will undertake this and what is the likely annual cost The Commissioner will have the same powers as the High Court in respect of the attendance and examination of witnesses and the production of documents. The High Court may inquire into the matter and deal with the person as if he had committed contempt of court.

There is a penalty for obstruction of the Commissioners functions.

Are there any costs or benefits that are not financial i.e. social Improved administration practices and procedures leading to customer satisfaction.

Introducing this further stage should ensure that complaints are dealt with without the public needing to pursue more complex formal procedures such as Tynwald Select Committees, Petition of Doleance to Court or Petition for the Redress of Grievance.

Has Treasury Concurrence been given for the preferred option To be submitted to Treasury once Council approval has been received and consultation carried out.

Date of Treasury Concurrence

Key Assumptions / Sensitivities / Risks If there is a requirement for a full time Commissioner with office space and support staff the costs will be significantly higher.

Approximate date for legislation to be implemented if known Not known

41 102 Link to Government Strategic Plan Legislation and Regulation To provide a comprehensive social legislation programme

Government Spending and Revenues. Aim to provide high quality public services at maximum efficiency

Link to Department/Statutory Board/Office Aims and Objectives

Actively encourage improved efficiency within Departments, Boards and Offices. Progress legislation sponsored by the Council of Ministers.

SUMMARY: CONSULTATION

Consultation in line with Government standard consultation process Yes/No

Date 1st Consultation 29 June 2009 2nd Consultation …………………………………

Statement:

EVIDENCE BASE

In 2004 the Council of Ministers Report ‘Review of the Current Standardised Complaints Procedure and Case for the Establishment of an Ombudsman’ was received by Tynwald and its recommendations adopted.

A principle recommendation contained within the Report was that there is merit in establishing an Ombudsman Scheme to provide a fair and impartial assessment of complaints which is divorced from either political or administrative involvement.

Consideration has been given as to whether the Commissioner should be given a wider jurisdiction encompassing Police complaints and complaints against the Health Service. However such a broad jurisdiction would require legislation of some complexity and require an office and a large number of staff. The Commissioner and staff would be required to obtain a sizable knowledge about the different processes. It is felt that the investigation processes for the civil service, health service and the Constabulary are by their very nature different.

42 103 Appendix 3

PERSONAL LIABILITY DESIGNATED PERSONS

• Chief Minister; officers in the Chief Minister’s Office; • Minister; • Attorney General; officers in the Attorney General’s Chambers; • Chief Secretary; officers in the Chief Secretary’s Office; • Clerk of Tynwald; officers in the Clerk of Tynwald’s Office; • Chief Registrar; officers in any registry, office or division of the General Registry or the court service; • Trustees of the Isle of Man Post Office Superannuation Scheme 1999; • Gambling Supervision Commission; • Appointments Commission; • Independent Review Body; • War Pensions Committee; • Road Transport Licensing Committee; • Data Protection Supervisor; • Officers in the Office of the Data Protection Supervisor; • A person holding the Office of Industrial Relations Officer; • Officers appointed by the Civil Service Commission under section 3(2) of the Civil Service Act 19901 to provide secretarial or administrative support to an Industrial Relations Officer; • Chief Officer of the Personnel Office • Officers in the Personnel Office • Planning Committee

• Chairman and Panel Members of a Tribunal constituted under section 15A of the Advocates Act 1976; • Members of the Marketing Committee constituted under section 7 of the Agricultural Marketing (No. 2) Act 1948; • Chairman and Panel Members of the Criminal Injuries Compensation Tribunal constituted under the Criminal Injuries Compensation Scheme 1983; • Chairman and Panel Members of the Criminal Injuries Compensation Panel constituted under the Criminal Injuries Compensation Scheme 2005; • Members of the Independent Monitoring Board constituted under section 18 of the Custody Act 1995; • Members of the Parole Committee constituted under section 23 of the Custody Act 1995;

43 104 • Members of any governing body referred to in an instrument made by the Department of Education under section 5 of the Education Act 2001; • Members of a Committee established under section 12(3) of the Education Act 2001; • Members of any governing body referred to in an instrument made by the Department of Education under section 33(2) of the Education Act 2001; • Members of the Board of Education constituted under section 49 of the Education Act 2001; • persons appointed as Adjudicators under paragraph 4(1) of Schedule 4 to the Financial Services Act 2008; • Members of the Legal Aid Committee constituted under section 23 of the Legal Aid Act 1986 or any person referred to in section 23(2) attending in a Members place; • Members of the Mental Health Commission established under section 119 of the Mental Health Act 1998; • Members of an Endowment Committee constituted under paragraph 1 of the Third Schedule to the National Assistance (Isle of Man) Act 1951; • Members of any body or committee established under section 2 of the National Health Service Act 2001; • Members of the Police Advisory Group constituted under section 18(1)(a) of the Police Act 1993; • Members of the Police Consultative Forum constituted under section 18(1)(b) of the Police Act 1993; • a Committee constituted by the Manx Museum and National Trust under paragraph 4(1) of Schedule 2 to the Statutory Boards Act 1987 and section 3(3)(iii) of the Manx Museum and National Trust Act 1959; and • Chairman and Panel Members of a Part 1 and Part 2 Tribunal listed under Schedule 2 to the Tribunals Act 2006

44 105 Appendix 4

List of Direct Consultees

Tynwald members

Clerk of Tynwald

Secretary of the Tynwald Management Committee.

Secretary of the Tynwald Public Accounts Committee.

Departments, Statutory Boards and Offices

Attorney General’s Chambers

The Manx Museum and National Trust.

The Civil Service Commission

Industrial Relations Office

Appointments Commission

Laxey Glen Flour Mills Ltd.

Radio Manx Ltd.

Local Authorities

Chamber of Commerce

E. Paul Kerruish, Chair of Legislation Committee, Law Society

Citizens Advice • Douglas, Room 3, Promenade Church • Peel, Peel Town Hall, Derby Road • Port Erin, Thie Rosen, Castletown Road • Ramsey, Unit 4, Bourne Concourse, Parliament Square

45 106 Appendix 5

Consultation Code of Practice

This consultation follows the Code of Practice on Consultation the criteria for which are set below.

The Six Consultation Criteria

1. Consult widely throughout the process, allowing a minimum of 6 weeks for a minimum of one written consultation at least once during the development of the legislation or policy.

2. Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses.

3. Ensure your consultation is clear, concise and widely accessible.

4. Give feedback regarding the responses received and how the consultation process influenced the policy.

5. Monitor your Department’s effectiveness at consultation.

6. Ensure your consultation follows best practice, including carrying out an Impact Assessment if appropriate.

The full Code of Practice is available at www.gov.im/cso

46 107 108 APPENDIX 9 July 2010 – Summary of responses to the Consultation on the draft Tynwald Commissioner for Administration Bill

109 110

COUNCIL OF MINISTERS

Summary of Responses to the Consultation on the draft Tynwald Commissioner for Administration Bill

Council of Ministers Division Chief Secretary‟s Office Government Office Bucks Road Douglas, Isle of Man IM1 3PN

July 2010

111 Tynwald Commissioner for Administration Bill

Section Section Title Page no. no. 1. Introduction 3 2. Overall Responses 3 3. Amendments to the Bill 4 4. Responses that have not resulted in any changes to the 4 Bill 5. Establishment of the Office 4 6. Next Steps 5

Annex A Amendments to the Bill 6 B Responses that have not resulted in any changes to the 10 Bill C List of Respondents 13

112 Tynwald Commissioner for Administration Bill

1. Introduction

1.1 The Tynwald Commissioner for Administration Bill was issued for consultation by the Council of Ministers on 6 August 2009 with an extended deadline for responses of 16 October 2009.

1.2 The Bill would introduce the Tynwald Commissioner for Administration who would perform an Ombudsman role with power to investigate complaints from members of the public that they had suffered injustice or hardship as the result of alleged maladministration or service failure on the part of Government or other public body. Such an investigation could only be made after a complaint had first been pursued with the body in question.

1.3 The consultation document stated that a summary of the responses received would be published within 3 months of the closing date for the consultation. Unfortunately this deadline was not met due to the number of responses received and the complexities of some of the issues raised. This document indicates the responses received and whether they have been taken into account in the final drafting of the Bill.

1.4 The Bill has been amended in some areas based on the responses received.

2. Overall responses

2.1 The consultation document was issued to all Government Departments, Statutory Boards, Offices, local authorities and other interested parties such as Ombudsmen from other small jurisdictions. Thirty one responses to the consultation document were received some of them very detailed. A list of respondents is included in Annex C. The Council of Ministers welcomed the responses and considered each comment made in the final drafting of the Bill. On the whole the responses received were supportive of the need for the appointment of a Tynwald Commissioner for Administration, however concern was expressed with regards to the part time appointment of the Commissioner which is discussed further in section 5 below.

2.2 The issues raised are listed below in section 3 and Annex A as amendments made to the Bill; and in section 4 and Annex B as responses that have not resulted in any amendments to the Bill. Where an issue was raised by more than one respondent the issue is listed once to cover the related points made. Where there has been an issue raised that pertains to provisions within the Tynwald Commissioner for Administration Bill as well as the Tynwald Auditor General Bill an amendment has been made to both Bills. All points raised and the Council of Ministers consideration of these points have been summarised in this paper.

113 Tynwald Commissioner for Administration Bill

2.3 Typographical amendments and, in some cases, clarification amendments have not been listed.

3. Amendments to the Bill

The table at Annex A shows the responses received that have been taken into account and the Bill amended, together with the consideration of the Council of Ministers where appropriate.

4. Responses that have not resulted in any changes to the Bill

The table at Annex B shows the responses received but which have not resulted in any changes to the Bill, together with the reason why.

5. Establishment of the Office

5.1 Concerns about the limited appointment of the Tynwald Commissioner were raised during consultation from a large number of respondents.

5.2 The original figures provided were based on the preferred option within the Impact Assessment of the establishment of a contracted Tynwald Commissioner with no office support. The likely financial cost for this option was estimated at £18,972 based on 26 hours per month with the annual salary based on that of the High Bailiff. There would be the flexibility for additional hours if this should prove necessary, dependent on workload and other relevant factors.

5.3 Costs will include -  one-off costs for computer equipment and a mobile phone;  ongoing costs associated with salary and office supplies.

5.4 It has been argued that the volume of complaints is likely to rise significantly once the Commissioner is in place. As well as a possible rise in the number of complaints the Commissioner will need to deal with a large number of enquiries to the „Office‟, either by telephone or by email, many from people who do not necessarily want to make a complaint but who are enquiring as to where they should seek to find information and in some case, simple explanations of documents. The Commissioner will also be investigating complaints from local authorities which will be additional to the current volume of complaints.

5.5 A number of options are being explored with regards to accommodation and administration support including -

114 Tynwald Commissioner for Administration Bill

a) If the Bill progresses through the Branches successfully the Tynwald Management Committee will explore possible accommodation within the Legislative Buildings, Finch Road. b) Initial discussions have taken place between Officers from the Chief Secretary‟s Office and the Department of Education as to the possibility of the Tynwald Commissioner and Education Commissioner sharing services.

5.6 The Bill does allow for the Commissioner to be appointed full time and for the Commissioner to appoint staff and persons to provide services and/or advice.

5.7 The option that most respondents thought was more realistic was a full time office- based position with support staff. Of course there would be ongoing office costs comprising of salaries; office rent and services; communications and miscellaneous expenses. There would also be one off costs associated with the purchase of equipment and furniture.

5.8 We can look at examples of other Jurisdictions us a guide as to possible levels of staff required to run such an Office -

 Bermuda has a population of 62,000 and has 4 members of staff.  Gibraltar has a population of 30,000 and a staff of 6.  York University‟s (Canada) Ombudsman services 60,000 people and has a staff of 6.

5.9 Whatever decision is taken with regards to the setting up of the Commissioners Office it must allow the role to perform its functions effectively.

5.10 There may be savings from Government Officials and Tynwald Members not being involved in a continuing process. There may indeed be savings from improved administration practices and procedures. However there is as yet no realistic published estimate of savings arising from the proposed establishment of the Commissioner.

5.11 Further work is required on the appointment of the Tynwald Commissioner and the establishment of their office.

6. Next Steps

The Bill will now be the subject of Parliamentary scrutiny. The legislative process is explained on the Tynwald Website under „How Bills become Law‟ on the following site http://www.tynwald.org.im/process/index.html.

115 Tynwald Commissioner for Administration Bill

Amendments to the Bill Annex A

Issue Raised Outcome

1. Public Officers need protection when providing information to Provision amended. the Commissioner on a highly confidential basis.

2. Often at the heart of a complaint is that the authority did not The definition of “action” has been amended to include “failure to provide adequately explain the reason of statutory basis for an action. reasons”.

3. The Surveillance Commissioner and the Communications Additions made. Commission should be included in the list of relevant persons who may be capable of investigating any matters that have come to the Commissioners attention.

116 4. The Commissioner should be given more discretion as to Provision amended. whether a complaint falls within the matters that he is required to investigate.

5. Any action taken by or with the consent or authority of the Provision amended. Financial Supervision Commission Enforcement Division in connection with the investigation or prevention of crime must be excluded from the Commissioners remit.

6. The Commissioner should be able to investigate whether Provision amended. appropriate procedure was followed in matters relating to contractual and commercial transactions.

7. There should be provision to ensure that the Commissioner can Provision amended. request that a listed authority refrain from exercising its powers until completion of the investigation.

Tynwald Commissioner for Administration Bill

Issue Raised Outcome

8. Concern was expressed that the Bill would allow the A new section has been inserted containing special rules about the Commissioner to have access to confidential information held by disclosure to the Commissioner of information that relates to a person‟s tax the Assessor of Income Tax. and customs affairs.

9. The provisions prevent listed authorities from requiring This was an unintended consequence and therefore the provision has been information from licence holders who are outside the Island. amended.

10. There is no provision to ensure that the Commissioner places Provision amended. Special Reports before Tynwald.

11. The Financial Supervision Commission and the Insurance and Provision amended. Pensions Authority need to be included in the table of persons or bodies to whom the Commissioner can disclose certain information if the information relates to any matter in respect of a 117 function of that person or body.

12. The general powers given to the Commissioner should Provision amended. exclude requiring any committee of Tynwald or its branches to part with papers and other information. This might affect the ability of the Public Accounts Committee or the Scrutiny Committee or individual select committees to have proper control over their papers.

13. Concern was expressed as to how the Commissioner will Bill amended so that if Tynwald chooses to appoint a select committee then interrelate with Tynwald Court proceedings. the select committee investigation should take precedence and the Commissioner would suspect their investigation.

Tynwald Commissioner for Administration Bill

Issue Raised Outcome

14. Where a complaint received by the Commissioner relates Provision amended. partly to a matter which could be the subject of an investigation by another regulator. The list of regulators with whom the Commissioner should consult should reflect the list of those persons with whom the Commissioner can disclose relevant information.

15. The issue of non-disclosure notices should not be the The provision is amended so that non-disclosure notices are given to the responsibility of the Chief Minister as there could be a perception Commissioner by the Attorney General. The Attorney General will give a of political interference if any elected Member is involved in a non-disclosure notice only if he is satisfied that the disclosure of the process. information would prejudice the security, economic well being or international relations of the UK or of the Island.

16. The Communications Commission should be included in the Provision amended. 118 list of persons or bodies that the Commissioner must consult if, when considering a complaint, the Commissioner forms an opinion that the complaint relates to a matter which could be the subject of an investigation by the person or body.

17. The following amendments have been made to the Appointment Schedule of the Bill -

 to allow the Tynwald Commissioner for Administration and the Tynwald Auditor General to be the same person;  to allow a member of the Selection Committee to appoint a substitute in their absence;  the disqualification provisions have been rewritten for clarity;  the restrictions on the Commissioner with regard to entering into any other contract of employment has been strengthened;  a motion for the removal of the Commissioner to be through the two Presiding Officers with advice from the Clerk of Tynwald;  to clarify what happens if a motion for the removal of the Commissioner is debated in Tynwald within 3 months of it being tabled, but is adjourned without a vote;  to provide that the expenses of the Commissioner must be approved by Treasury;  to include provisions with regard to delegation and discharge of function of the Commissioner.

Tynwald Commissioner for Administration Bill

Issue Raised Outcome

18. Is it right for Prison Officers to be „singled out‟ as disqualified The paragraph referring to Members of the Isle of Man Prison Service is under Schedule 1(3). removed from the Bill as prison officers are covered by another paragraph.

19. The following Regulatory Bodies will be excluded from the a) Financial Supervision Commission provisions of the Bill. b) Insurance and Pensions Authority c) Communications Commission These Body‟s decisions in the regulatory sphere are all subject to d) Gambling Supervision Commission judicial scrutiny. Regulators need to be demonstrably independent e) Radio Manx Ltd of government and free from interference by it. It would be inappropriate for the decisions of a sector regulator to be questioned by the Tynwald Commissioner.

20. Decisions of an Adjudicator have the same standing as a high a) Financial Services Ombudsman Scheme Adjudicators 119 court judgement and therefore it would not be appropriate for the Commissioner to investigate such decisions.

21. The following Officers will be excluded from the provisions of a) Clerk of Tynwald and officers working in his Office the Bill as they have their own complaints system. b) Chief Minister and Ministers (but for the avoidance of doubt only in relation to their personal acts, and not those of their staff)

Amendment to other Bills

22. Commissioner will be exempt from Jury Service under Schedule 1 to the Jury Act 1980.

Tynwald Commissioner for Administration Bill

Responses that have not resulted in any changes to the Bill Annex B

Issue Raised Reason for the Bill not being changed

1. The application of the Bill to local authorities should be limited All decisions of a local authority should be open to independent scrutiny. The to statutory functions. UK has Local Government Ombudsman separate from their Government Ombudsman, however it would not be cost effective or relevant to have local authorities separated from the Commissioner system on the Island.

2. The provision for listed authorities to request investigations A listed authority should be able to request the Commissioner to investigate should exclude investigations where no member of the public where there is no complaint. It is an important part of the Commissioners has complained, to prevent the Commissioner being used as a role. management consultant for authorities‟ internal systems.

3. The Commissioner should be empowered to take steps to The Commissioner should not be able to compel listed authorities to do

120 secure redress and require a public body to cooperate with such anything which would include the payment of compensation. However the steps. Commissioner can make recommendations and draw issues to the attention of Tynwald and therefore he/she will be a powerful and influential figure.

Note the UK jurisprudence of Regina (Bradley and Others) v Secretary of State for Work and Pensions and others (Court of Appeal, February 7, 2008). The Court of Appeal held that while Ombudsman findings are not binding, they cannot be rejected irrationally, having regard to the legislative intention which underlies the Ombudsman‟s legislation.

4. Where the action complained about has been taken in The Commissioner is not a Court so cannot set a precedent. The Commissioner accordance with the provisions of relevant legislation but is will be able to make recommendations to change legislation or to go against nevertheless unfair in its effect on the complainant. Would a what is set down in the legislation but listed authorities are not compelled to decision by the Commissioner undermine the legislation and follow. would a decision made by the Commissioner set a precedent?

Tynwald Commissioner for Administration Bill

Issue Raised Reason for the Bill not being changed

5. The reference to „once and once only‟ with regards to the The provision allows for the Commissioners discretion to take further evidence gathering of information of a complaint should be reconsidered. as the Commissioner only needs to have regard to evidence that has already The Commissioner must be able to initiate and conduct been taken so far as possible. investigations as he/she considers appropriate in the circumstances of the case. Whilst the Commissioner may welcome evidence already gathered by another entity, he/she must be able to re-visit the source of the evidence if required.

6. The requirement for complaints to be in writing is inconsistent Complaints to be made in writing including electronically, it has been decided with principles of ensuring accessibility to the Commissioners not to include verbal complaints in person as there would be no audit trail. mechanism of redressing perceived wrongs.

7. Power to determine whether to initiate, continue or discontinue Commissioner has to prepare a statement under clause 14 as to the reasons an investigation. The Bill states that if the Commissioner declines for the decision not to investigate a complaint which is considered sufficient 121 to investigate, reasons must be given. However, would it not be provision in the Bill. There should not be a prescriptive list. more appropriate to include in the Bill those circumstances in which the Commissioner might determine not to investigate – e.g. if they believes the complaint to be frivolous or vexatious?

8. Access to Council of Ministers papers should not be prevented. Under the Council of Ministers Act 1990 the proceedings of the Council of Ministers shall be confidential, and no member thereof, without the leave of the Chief Minister, shall divulge to any unauthorised person any matter or thing said or done therein.

It has been the practice of successive governments not to disclose the details of Council of Ministers proceedings. Similarly in the UK papers or information relating to the proceedings of the Cabinet Office are generally classified as restricted.

Tynwald Commissioner for Administration Bill

Issue Raised Reason for the Bill not being changed

9. Clause 22(2)(a)(ii) allows the Commissioner to disclose The provisions already ensure that the Commissioner must deal with the confidential information in his report of an investigation. disclosure of information with discretion. If it is an offence to disclose such Confidential information disclosed by the Commissioner in their information then the Commissioner will not include it within his Report. Report may be classified as „restricted‟ under the provisions of Schedule 6 of the Insurance Act 2008 and therefore it may be an offence for it to be disclosed in this way.

10. The listed authorities in Schedule 2 do not include grant aided This is already covered by clause 9(1)(a) “any action taken by or on behalf of a bodies for instance if a complaint was made against David Gray listed authority”. House would it be accepted and would it be included in the statistics as a complaint against Home Affairs (Probation)? Similar query with regards to the Victim Support Scheme and IoM Arts Council.

122 11. Will the records of the Commissioner be public records under The records will be public after 30 years unless that period is extended by the the Public Records Act 1999? Council of Ministers. The 30 year protection cannot be shortened by Council only lengthened. Schedule 1 of the Public Records Act applies.

12. Is there an appeal mechanism against the determination of The Commissioner will only be making recommendations and therefore there is the Commissioner? no appeal mechanism available.

Tynwald Commissioner for Administration Bill

Annex C

The list of respondents

Isle of Man Government

Attorney General Department of Tourism and Leisure Department of Transport Department of Health and Social Security Department of Home Affairs Communications Commission Financial Supervision Commission General Registry Insurance and Pensions Authority Office of Fair Trading Treasury, Income Tax

Local Authorities

Arbory Parish Commissioners Douglas Borough Council Marown Parish Commissioners Maughold Parish Commissioners Port Erin Commissioners Ramsey Town Commissioners Rushen Commissioners

Tynwald Members

Mr R W Henderson MHK Mr J P Watterson MHK Clerk of Tynwald

Interested Parties

Independent Review Body M Cornwell-Kelly, ex Clerk of Tynwald Radio Manx Ltd. Positive Action Group Arlene Brock, Ombudsman for Bermuda Mario Hook, Ombudsman for Gibraltar Executive Committee of the Association of British and Irish Ombudsman British Republic

Members of the public

W Gilbey A M Milburn Anonymous

123 Tynwald Commissioner for Administration Bill

The information in this booklet can be provided in large print on request

Council of Ministers Division Chief Secretary‟s Office Government Office Bucks Road Douglas, Isle of Man IM1 3PN

www.gov.im/cso

124

Parliamentary Copyright available from:

The Tynwald Library Legislative Buildings DOUGLAS Isle of Man, IM1 3PW British Isles May 2016 Tel: 01624 685520 Fax: 01624 685522 e-mail: [email protected] Price: £17.60