Standing Committee B
Thursday 12 March 1998
(Afternoon)
[Miss Ann Widdecombe in the Chair]
Clause 53
Complaints--informal resolution
Question proposed [this day], That the clause stand part of the Bill.
4.30 pm
Question again proposed.
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Tony Worthington): May I just confirm that I shall write to the hon. Member for North-East Cambridgeshire (Mr. Moss) in the terms that I outlined this morning?
Mr. Malcolm Moss (North-East Cambridgeshire): I am most grateful and look forward to hearing from the Under-Secretary in the next few days.
Question put and agreed to.
Clause 53 ordered to stand part of the Bill.
Clause 54
Complaints--formal investigation
Mr. Moss: I beg to move amendment No. 124, in page 27, line 19, leave out
and insert `shall'.
This too is a drafting amendment. Since only two alternatives are given in the relevant subsection, the word ``shall'' strikes me as more appropriate than ``may''. The ombudsman would not be required to undertake any course besides those two alternatives. Either he would do as provided for in subsection (3)(a) and
``formally investigate the complaint in accordance with section 56'',
or he would, under subsection (3)(b),
``refer the complaint to the Chief Constable for formal investigation by a police officer in accordance with section 57.''
I should be interested to hear the Minister's defence of the present wording of the clause.
The Minister of State, Northern Ireland Office (Mr. Adam Ingram): That was a very short speech. I do not know whether this is a probing amendment, but I do not think that we shall need a long debate. The amendment would place an extra requirement on the ombudsman to investigate a complaint in cases where informal resolution was not possible. That would be additional to the requirement to investigate serious complaints and those other matters, such as public interest cases, referred to under clause 55.
I understand the reasons for the amendment, but it goes against the underlying principle of allowing the ombudsman power and flexibility to deal with cases as he or she sees fit. The amendment would, by removing discretion, require the ombudsman still to conduct a formal investigation even after determining, on preliminary investigation, that there was no substance to an allegation. In addition, the amendment would require the ombudsman to conduct a series of formal investigations of repeated and possibly vexatious complaints by an individual on one issue.
Clause 54(3) states:
``In the case of any other complaint, the Ombudsman may as he thinks fit--
That allows the ombudsman to use his discretion. He need not refer the cases for the reasons set out. The use of the word ``shall'' would automatically apply the logic of referral to such cases as I have described. It would remove the ombudsman's discretion and flexibility--which both the Government and, I am sure, the hon. Member for North-East Cambridgeshire, think he should retain. On those grounds, I ask the hon. Gentleman to withdraw the amendment.
Mr. Moss: That was an interesting response from the Minister. He was in Committee for only part of the debate this morning so he may have missed some salient points, one of which was about the origin of the ombudsman's power to discontinue cases. The Minister is now saying that that discontinuance derives from here.
I had thought that there were only two alternatives under clause 54: either the ombudsman says that the complaint is serious and deals with it accordingly under clause 56; or, in the case of ``any other complaint'', as stated in subsection (3), he adopts one course or the other. However, the fact that the ombudsman may act ``as he thinks fit'' means that he has the option of formal investigstion under paragraph (a); of referring to the Chief Constable under pargraph (b); and, it now seems, a third option of discontinuing a case on the grounds that the complaints are vexatious, malicious or spurious.
If that is the case, it is helpful. Flexibility is important, but I am unsure whether the wording includes the third possibility for the ombudsman. If the Minister is giving me a categoric assurance that that is the case, it is a good point to have cleared up, but it was not so clear in this morning's deabte. We were unsure about the grounds on which the ombudsman could terminate cases. Clause 64 was cited as an example with reference to guidelines for regulations.
Mr. Ingram: The hon. Gentleman is right that I was not present for the final part of our earlier sitting. He is now saying that he wants the Bill to include some extra strategy for the ombudsman, but his amendment would not achieve that; it would achieve the opposite, by closing it off. In what ways will the amendment provide the extra strategy that he wants?
Mr. Moss: The Minister makes a valid point. My interpretation of the orginal words--before I tabled the amendment--was that the ombudsman had only two options. It seemed that ``shall'' clarified the situation by applying either to one option or the other. But the Minister, by stressing that the ombudsman may act ``as he thinks fit'', is giving him other options--but they are not specified.
Mr. Ingram: He does not have to.
Mr. Moss: I sometimes wish I were a lawyer. Would it not be clearer to refer to (a), (b) or (c), the last specifying that the ombudsman does not proceed with the case? That seems to be what the Minister is saying, but I did not originally interpret the provision that way--hence my emphasis on ``shall''. I am grateful for the clarification.
Mr. Ingram: The hon. Gentleman has not answered my question. If an extra strategy for the ombudsman is so important, what amendments has he tabled to achieve it?
Mr. Moss: I have not yet tabled amendments to deal specifically with that, but there is plenty of time. In the two previous clause stand part debates we had a long discussion about the ombudsman's role. The Under-Secretary said that he would write to us on some of the important issues that we raised. If the letter clarifies them, fine; we need not return to them on Report. But if not, we reserve the right to table amendments accordingly.
The amendment was an attempt to strengthen the wording but I confess that I interpreted the aims of the Bill. I happily accept that in addition to options (a) and (b) the possibility of a third option--for the ombudsman to do neither--lies behind the amendment. If he does neither, what does he do? The sensible thing would be to write to complain, saying ``We've been through various stages and I do not think that there is a basis for this complaint.'' But the Bill does not allow for that. Where else is it written that he will reach a conclusion, and terminate?
Mr. Ingram: My hon. Friend the Under-Secretary of State will write to members of the Committee on the basis of this morning's discussions. This matter will be dealt with, and the details spelt out eventually in regulations under clause 64. I hope that the letter will help the hon. Gentleman to understand what we aim to achieve with the various decision-making tiers given to the ombudsman, and the way in which the powers vested in him would be used under regulations. This will be clarified in regulations. We are also examining ways of specifying the powers to the satisfaction not only of members of the Committee but of those who will have to live with the legislation.
Mr. Moss: That is all very well, but the regulations will not appear until the Bill becomes an Act of Parliament, by which time it will be too late to do much about it in Committee or on the Floor of the House. If it is done by statutory instrument, Order in Council and Northern Ireland legislation, we shall have a debate, but we shall not be able to make changes. The appropriate time to flag up our concerns is now. Perhaps when we reach clause 64 we shall have a more in-depth debate about the practicalities of achieving the Government's aim.
The provision is specific in stating that the ombudsman must do certain things in two instances. The first is clear-cut, where he determines a complaint to be serious: he investigates it formally, in accordance with clause 56. In the second, with other types of complaint, he does one of two things. The Minister says that he can do a third. For clarification, perhaps it would be useful to include the third choice under a subparagraph (c). My amendment does not suggest that, but I am happy to accept that that is what the Bill seeks--although it is not written in terms that would help people those who read it.
I am happy to withdraw the amendment, and I look forward to our discussions on clause 64. My purpose was simply to tidy up the meaning that I interpreted in the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Seamus Mallon (Newry and Armagh): I beg to move amendment No. 42, in page 27, line 22, at beginning insert
`providing the complainant gives his consent,'.
The essence of the amendment is that it would apply a similar procedure to an increasingly grey area with complaints that are dealt with informally as well as those that clause 50 describes as serious. The question of definition was raised at our previous sitting, when many members of the Committee, including me, said that difficulties could arise because of a lack of definition following a serious incident or the results of one. Because there is no absolute position within the definition, every attempt should be made to ensure that the complainant has the same options open to him as he would have if it were a serious complaint or if it were one that was going to be resolved informally.
4.45 pm
Why does a complainant in this middle grouping, which would probably constitute the greatest number of complaints at any given time, not have the same option as a complainant in a lesser case? I know that that is not the accurate term. Less serious cases, for want of a better phrase, cannot be dealt with informally unless the complainant gives consent. They must reside with the ombudsman to investigate and adjudicate.
In absolute terms it is decided that the ombudsman will refer this broader mass of cases which stop short of being determined as serious and are not capable of being resolved informally. I agree that that is in accord with the ombudsman's control of the process. But why should someone in those circumstances not have the same right to give consent as the person in the informal resolution category? What is the reason for that? Does it make sense? If one argued, as doubtless that Minister will, that this retains the ombudsman's independence and leaves him in control of the procedure, surely the clause that required the complaint to be dealt with informally restricts his role.
This goes to the heart of some of the problems that we shall be dealing with in other parts of the Bill. I believe that the wishes of the complainant should be of distinct importance here. If that person has absolute confidence in the system of policing and says that he would like it to be investigated by the Chief Constable and a policeman in accordance with clause 57, there is no problem. That is not compromised by the right of another person who, for whatever reason, good or bad, does not share that confidence to say, ``No, I won't give my consent; I would like it to be processed in the other way.''
I should like to hear the arguments against this because it impinges upon some of the later amendments. If the Bill ensured that every complaint was investigated by the ombudsman or his agent, my argument would still be valid although perhaps not so strong. But that is not the case. I know that I am straying from the amendment, but one of the schedules impinges on the ombudsman's independence and makes imperative what he should do and how he should do it. If that schedule did not exist, the import of my argument would lessen, but it is there and I ask the Minister to clarify the matter.
One startling factor in Dr. Hayes' report that is seldom referred to is the prediction that the cost of processing police complaints would fall under the proposed system from £7 million to £2 million, give or take a few pounds. It would be the first time in my life that the cost of something dropped so radically without reason. Are the necessary resources hidden in the proposal? If, in effect, the ombudsman was constrained, and he lost that £5 million before he started, the only way that he could operate would be by having complaints investigated by the Chief Constable and an officer of the RUC, under this proposal.
Perhaps it is a scepticism that develops with age, but I am beginning to wonder how the cost involved will fall from £7 million to £2 million. The sceptic could see the matter as a means of protecting the budget--I hope that the Minister will take that point seriously. The more that is moved to the Chief Constable, his investigators and their procedures, the less is spent from the ombudsman's budget. The Minister will probably tell me that that is far too cynical, but we must know how the £5 million saving will be made.
The amendment is no more an infringement of the requirements than the clause, which states that a complaint is not suitable for informal resolution unless the complainant gives the ombudsman his consent. Why not, therefore, accept the amendment?
The difficult element is what will develop later: the police investigating the police, politicians investigating politicians, or housewives investigating housewives. It is not just a policing matter; and important principle could, finally and for ever, have been written into the Bill. The Minister could have said, ``Look, we know this has been a problem over the years and now is the time to solve it in legislation.'' If that were the case, and the ombudsman could, if he wished, appoint members of the police to investigate complaints, it would be a different scenario. But is is not, by definition, because the schedule states that the ombudsman ``shall'' appoint members of the RUC for that purpose.
The citizen should have the right to say, ``Hold on a minute. This is a new dispensation, a new ball game, a new ombudsman and a new process. I do not give my consent for my case to be investigated in the old way, I want it to be investigated in the new way.'' I look forward to the Minister's explanation. As a canny Scotsman, he will not fail, I am sure, to explain how he will save £5 million.
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