Appendix 1
GOVERNMENT RESPONSE
For six months after the establishment of the
Office, the Ombudsman had to operate without formal guidance from
the Government. Mr Ian Pearson, the Minister, said that he was
not aware of difficulties which had arisen as a result, but the
Ombudsman noted the absence of the guidance in her evidence to
us. At the point at which maximum support was required to ensure
the successful launch of a key part of the new policing framework
for Northern Ireland, the Government should have had formal guidance
in place. In its response to this report we would like the Government
to explain why the guidance was not available to the Ombudsman
on time. (Paragraph 19).
The Government accepts that it would have been desirable
to have the guidance available in November 2000 when the Ombudsman
began her work. However, it should be remembered that a significant
amount of work was needed to ensure that this unique office was
opened on time.
The guidance referred to is the "Guidance on
Police Unsatisfactory Performance, Complaints and Misconduct Procedures"
issued in May 2001. This guidance sets out "the procedures
for dealing with unsatisfactory performance, complaints from the
public, misconduct matters, Chief Constable's review and appeals
to the Police Appeals Tribunals".
The guidance was not specific to the operation of
the Ombudsman's office. It set out guidance on the overall procedures
for handling police complaints and misconduct, which included
the Ombudsman's office. A wide range of issues were still at
that time in the process of being addressed in November 2000 and
it would not have been possible to issue the guidance at that
point. The preparation of the guidance involved working with
wide range of interested parties - NIO, RUC, police representative
bodies, Director of Public Prosecutions as well as the Ombudsman
herself. Given the complexity of some of the issues, this consultation
did take longer than expected. In preparing guidance we had considered
it important to take account of all relevant views, rather than
produce a document which might have to be revisited with amendments
or be the source of dispute. The view of the Government was that
it was more important for the Ombudsman to begin her work than
to wait for the Guidance to be completed.
At no time in the past five years have we been made
aware of any adverse impact the delay in issuing the guidance
may have had on the operation of the new police complaints system
or the performance of the Ombudsman's office.
The Office of the Police Ombudsman has made significant
progress in consolidating its role, and its contribution to developing
policing policy and practice has been positive. We were told about
improvements in the PSNI's working practices, including reductions
in police use of batons, and live fire. This has been achieved
within a relatively short period of time and in difficult political
circumstances. We welcome the constructive working relationship
that has developed between the top managements of the PSNI and
the Ombudsman. (Paragraph 27).
The Government welcomes the constructive working
relationship between the top managements of the PSNI and the Ombudsman.
The Ombudsman and the Northern Ireland Policing
Board must ensure that they are taking all steps necessary to
maintain full cooperation at all levels. There is clearly a difference
of opinion between the Board and the Ombudsman over what constitutes
appropriate frequency of contact. The Board said that the present
frequency of meetings appears sufficient, although it made clear
that this would be kept under review. However, such fundamental
differences ought never to occur. We expect to see a structure
of communication put in place quickly which is fully acceptable
to both the Ombudsman and the Board. (Paragraph 28).
The Government recognises that both the Policing
Board and the Ombudsman's office are important parts of the new
policing arrangements in Northern Ireland. It is important that
the respective role of each is recognised and valued by the other
and a protocol setting out new arrangements is in the process
of being agreed by the Board and the Ombudsman.
We are surprised that the Office's present "case
management system" has failed completely and is having to
be scrapped so soon after its installation at the considerable
replacement cost of over £2.4 million over seven years. While
we appreciate the difficulties involved in anticipating how such
systems will operate in practice, we note that, despite expenditure
of £72,000 on consultancy advice and the experience of the
"IT strand team", the project implementation team failed
to identify an IT system capable of functioning satisfactorily.
The new "case handling system" must be made to operate
effectively over a much longer period. (Paragraph 32).
The Government accepts that the new system must operate
effectively over a longer period than the current system.
The Government notes the Committee's concern about
the need to replace the Ombudsman's "case handling system"
after only four years in operation. We do not accept that the
system "failed completely". The present system has
adequately supported the Ombudsman's work for four years, coping
with some 18,000 allegations. The experience gained in those
years has identified the improvements required to support the
Ombudsman's future workload.
We do not agree that the project implementation team
failed to identify an IT system capable of functioning satisfactorily.
We believe that the IT Strand Team and consultants identified
a system which fully met the requirements asked of it in 2000.
Mrs O'Loan, who was Police Ombudsman designate leading up to
the establishment of the office, was a member of the Project Board
which gave the final approval to the system.
The new system will take account of software and
other developments and changes since 2000, and its introduction
will ensure that the Ombudsman is better placed to address the
current and projected needs of the office and external stakeholders.
The Ombudsman's office is following the correct procedures
and practices in considering a new system. As well as following
HMT guidance it has set up an internal Project Team reporting
to a Project Implementation Board which consults with the Ombudsman's
Senior Management Team. This Project Implementation Board sets
the objectives, approves required specifications at all stages
to completion including business cases. In addition the project
has been given Gateway 1 Review (business justification) by an
external reviewer and has been considered by the NIO's Financial
Services Division. It is currently involved in a Gateway 2 Review
process (specifically about a procurement strategy). These measures,
together with the research and work carried out by the Ombudsman's
office itself, show the commitment and efforts in place to ensure
that the new case handling system is the most effective and efficient
available.
It is crucial to the credibility of the Office
that the Ombudsman's formal presentation of her performance in
the Annual Report should be of the very highest quality. It must
be comprehensive, fully transparent, easily comprehensible, and
should track progress on key targets year on year in a consistent
format. There is some way to go before this standard of rigour
is achieved. We expect to see an improvement in the presentation
of the Annual Report in future years. (Paragraph 35).
The Government believes that for all bodies the presentation
of a comprehensive, transparent and easily comprehensible annual
report, which tracks progress towards key targets, is important
for the organisation itself and to the general observer.
Securing the confidence of both the public and
police is crucial to the credibility of the new police complaints
system. We were told that the Ombudsman has actively engaged with
the public, securing a high level of confidence in both communities
in Northern Ireland. (Paragraph
44).
The Government welcomes the fact that the Ombudsman's
office, and the new police complaints system, enjoys substantial
support in the community.
Developing trust on the part of the police in
Northern Ireland in the Office of the Police Ombudsman depends
on a positive and proactive approach by the top managements of
the police and the Office, and we are satisfied that substantial
efforts are being made by both in this direction. While we acknowledge
the particular difficulty of the Ombudsman's task in securing
the trust of rank and file police officers, we are concerned about
the low level of confidence which police officers appear to have
in the Ombudsman and, in particular, their perception that the
system is neither impartial nor fair. Everything possible must
be done to improve officers' confidence in the present system
of complaints. We warmly welcome the agreement between the PSNI,
police staff associations, and Ombudsman to work jointly to improve
confidence. This is a solid start on which we expect all parties
to build. (Paragraph 45).
The Government recognises that often the relationships
between a complaints investigation body and the people it investigates
will generate tensions and suspicions. In noting that a complaints
investigation system is there to help ensure the highest standards
of conduct the Police Ombudsman's investigations can, and often
do, vindicate the actions of officers. The Government hopes that
the decision to set up a joint Working Committee between the Ombudsman's
office and the police representative bodies will assist in explaining
and resolving suspicions and misunderstandings about the complaints
system and the Ombudsman's role.
While the outcome of investigations conducted
by the Ombudsman are a matter for her Office, it is vital that
in all respects the manner in which these investigations are conducted
represent the highest professional standards, and it appears that
she is seeking to achieve this goal. We warmly support such an
approach and, in particular, commend the Office for seeking to
keep complainants and officers fully informed as work progresses.
We have heard complaints in other inquiries that this is not done
sufficiently in police investigations, and a punctilious adherence
to this practice will enable the Ombudsman to set a 'gold standard'
for procedure in this area.
(Paragraph 48).
The Government welcomes the work of the Ombudsman's
office to ensure that the handling of complaints is carried through
in a professional way and that the relevant staff are fully trained
for this purpose.
We were surprised to learn from the Department
that complaints referred to it for examination, are considered
not at Ministerial level, but by officials only. Mr Ian Pearson,
the Minister, appeared not to have been fully briefed on how such
complaints were handled, but said that the present arrangements
were not satisfactory.
After we finished taking the evidence for this inquiry, Mr Pearson
confirmed that the Department had put in place arrangements to
ensure that complaints of maladministration made against the Ombudsman
will be seen invariably, and in detail, by a Minister. (Paragraph
50).
Maurice Hayes, in his report "A Police Ombudsman
for Northern Ireland" recommended that she should be subject
to 'administrative accountability'. He suggested that complaints
of maladministration against the Police Ombudsman should be dealt
with by the Assembly Ombudsman. In the absence of devolution
of policing in NI it has not possible for the Assembly Ombudsman
to take on this role. The Government has, therefore, determined
that the Secretary of State should discharge this accountability
function on a non-statutory basis.
Complaints about maladministration against the Ombudsman's
office may be referred to the Secretary of State, provided that
the complainant has formally raised the specific issue with the
Ombudsman's office and is unhappy with the Ombudsman's written
explanation. This is consistent with the approach taken by the
Assembly Ombudsman in maladministration cases. The NIO would
then ask the Ombudsman's office for its comments and prepare advice
for the Minister. The Minister will determine if any further
action is required.
Complaints of maladministration do not include complaints
about the Ombudsman's decision on how to respond to a complaint
against the police, handle an investigation, or the outcome of
an investigation, or the Ombudsman's policy on dealing with complaints
against the police. The Ombudsman's independence in these areas
is set out in the Police Act 1998 and she has full discretion
in deciding whether and how to progress her investigations. The
Secretary of State (in practice, the Minister) does not interfere
with her investigations or review her decisions. The Secretary
of State can only review administrative decisions or actions.
This is entirely consistent with the approach taken by the Parliamentary
Commissioner for Administration and the Commissioner for Complaints.
It is most important that charges against the
Ombudsman of maladministration and decisions over possible referrals
to an independent person, should be taken at Ministerial level.
We were alarmed that the Minister had not been briefed on the
relevant procedures until the point at which we questioned him,
and welcome the assurance that we have been given that in future
all such papers will be seen at Ministerial level. We also recommend
that the Department should record the number of such complaints
it receives, and indicate the outcome in general terms, in the
Departmental Annual Report as a matter of routine. We consider
that this would aid transparency and improve confidence in the
present arrangements. (Paragraph 51).
The Government confirms that decisions on the outcome
of eligible maladministration complaints will be taken by the
Minister, in accordance with the commitment given by the Minister.
The Government also accepts the recommendation that NIO include
information on such complaints in its Annual Report. The Department
will, in future, include in its Annual Report the number of eligible
maladministration complaints, (i.e. where the complainant has
provided written evidence of formally raising the maladministration
issue with the Ombudsman's office and, having exhausted the Ombudsman's
own internal complaints arrangements, remains dissatisfied with
the response), referred to the NIO. The Department will provide
in its Report general information on the outcome of such complaints
received.
If there is prima facie evidence of maladministration,
the Northern Ireland Office can refer the complaint to an independent
person for investigation. This system is largely untried as no
referrals have yet been made by the Department to any independent
person. We think that the present arrangements should be given
the chance to 'bed down' subject to the Government accepting our
recommendations above. (Paragraph 55).
The Government notes that at para 17.23 of his
1997 report "A Police Ombudsman for Northern Ireland"
Maurice Hayes referred to the issue of complaints against the
Police Ombudsman saying that "the Police Ombudsman should
be added to the schedule of bodies in the jurisdiction of the
Assembly Ombudsman. This would provide for the investigation
of complaints about maladministration of the Police Ombudsman
in the exercise of his/her administrative functions without, of
course, forming a court of appeal against his/her decision on
complaints investigated on policies".
In the absence of devolution policing in Northern
Ireland has remained a "reserved" matter and it has
not been possible to implement this recommendation. The Government
therefore considers that arrangements mentioned in recommendations 9,
10 and 11 are interim arrangements until devolution of policing
takes place. They are not statutory arrangements. We would expect
that once devolution has taken place the maladministration complaints
against Police Ombudsman will be dealt with by the Assembly Ombudsman
as recommended by Dr Hayes.
We were told that the Ombudsman is currently engaging
with the police to ensure that they understand the process for
independent investigation. We welcome this, and we also consider
that there is a role here for the Government to ensure that all
those who may use the system are fully aware of it, and its operation.
However, if it becomes clear that, after a reasonable time, the
present arrangements are continuing to cause unease and are failing
to gain general respect and acceptance, then the Government must
consider what alternative procedures may be put in place to provide
assurance that complaints of maladministration against the Ombudsman
will be investigated fully and fairly. (Paragraph 56).
The reasons for the current interim arrangements
arise from the fact that in the absence of devolved administration
the Government was not able to pursue the specific recommendation
by Maurice Hayes in his 1997 report which led to the creation
of the current police complaints system.
We understand that no other Ombudsman is subject
to investigation by a Government department and we would intend
that other arrangements will be put in place on devolution of
policing.
In order to help clarify the arrangements the NIO
has written to the Police Ombudsman with proposed wording for
inclusion in the Ombudsman's explanatory literature.
We believe there is a strong case for amending
the Police (Northern Ireland) Act 1998 in order to give the Ombudsman
power to determine that a complaint is suitable for mediation
rather than formal investigation. We consider that this is likely
to facilitate greater flexibility in the complaints process, improve
its efficiency, and secure greater confidence in the system. The
evidence we received indicates that the proposed changes have
the support of the PSNI and police staff associations and we urge
the Government to introduce the necessary legislation speedily.
(Paragraph 63).
The Government has had a number of exchanges with
the Ombudsman's office on the issues of amended mediation and
conciliation. It is not yet clear precisely what changes will
make the police complaints system more flexible and efficient
as well as securing greater confidence in it.
We have encouraged the Ombudsman's office to consider
fully the detail of how mediation/conciliation would fit into
the police complaints system and to explore this directly with
those most affected ie PSNI and police officers, and with the
office of the Director of Public Prosecutions if the proposals
might impact on the referral of criminal cases to the DPP. In
this way it is hoped that a fully agreed approach to revised mediation
arrangements, and the new idea of conciliation, will enable the
Government properly and fully to consider the issue, determine
the impact on current legislation, and then approach Parliament
with a view to securing ready support for the necessary legislative
changes.
While it is not presently clear that the extensions
to the Ombudsman's remit sought by the Northern Ireland Human
Rights Commission are justified, we do believe that these proposals
have illuminated potential weaknesses in the present complaints
arrangements which have been identified by the Ombudsman herself.
We think that these deserve further, thorough consideration by
the Government. (Paragraph 68).
The Government will follow up the issues raised with
the Ombudsman, the Army and the PSNI.
In relation to extending the remit of the Ombudsman
to investigating alleged misconduct by soldiers (when operating
in direct support of the PSNI) the Committee will be aware that
the Government's current policing and security policy, as part
of its overall policy in Northern Ireland, is to reduce the need
for military support to the police. The Government's current
view is that extension of the Police Ombudsman's role to allow
her office to investigate the military in Northern Ireland is
not necessary, particularly where there are existing complaints
mechanisms to deal with complaints against soldiers in Northern
Ireland. We will, however, follow up the issue in discussion
with the Ombudsman, the Army and the PSNI.
With regard to retired police officers. The Ombudsman
can investigate an allegation of police misconduct whether or
not the officer concerned has retired. Such officers, when retired,
revert to civilian status and are no longer subject to any PSNI
disciplinary control. If the Ombudsman's investigation reveals
prima facie evidence of criminal activity, the Ombudsman's office
will prepare a file for the DPP in the normal way. Extending
the Ombudsman's powers to compel police officers to assist her
investigations would create legal and other difficulties.
With regard to the issue of the Ombudsman investigating
allegations of misconduct against police officers raised by complainants
who are not members of the public (ie other police officers) there
are differing views. In particular, the PSNI is concerned that
such an arrangement would cut across the PSNI's own internal grievance
procedures for handling these issues.
The Government notes the Committee's view that these
issues deserve further consideration, and will follow these points
up in discussion with the interested parties.
The importance of the Office actively engaging
with young people and increasing their awareness of the Office
cannot be overestimated. We welcome the joint initiatives undertaken
by the Ombudsman and the PSNI to improve young people's understanding
of the Office and the new complaints system. We expect these efforts
to continue to develop. We urge the Ombudsman to reconsider the
recommendations of the report by the Institute for Conflict Research,
in particular, whether a separate team should be set up within
the Office to deal specifically with complaints by young people.
(Paragraph 71).
The Government welcomes and pays tribute to the work
the Police Ombudsman's office does to increase awareness of its
role and the police complaints system across the community.
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