I am writing to you in my capacity as Prisoner Ombudsman for Northern Ireland to express my concerns about aspects of the Ministry of Justice sponsored Criminal Justice & Immigration Bill. The part of this Bill which causes me concern is that which proposes to put the Office which I have held since May 2005 on a statutory footing. The proposed designation in the Bill is Northern Ireland Commissioner for Prison Complaints. The Bill also proposes doing this for the Prisons and Probation Ombudsman for England & Wales who would become Her Majesty's Commissioner for Offender Management and Prisons.

Firstly may I say that I agree strongly that it is proper that the Office of Prisoner Ombudsman should be placed upon a statutory footing. The essence of the reasons for this is that only by doing this can the Office be regarded as truly independent of the service to be scrutinised. I welcome this intent of the Bill therefore as an advance on the present status of the Office. The present arrangement where my substantive working link is almost exclusively to the Northern Ireland Prison Service is not sustainable.

My welcome for the statutory footing proposed in the Bill however is more than offset by my concerns that the independence of the Office of the Commissioner is to be seriously constrained. The Bill proposes to make the Office dependent upon the Secretary of State for resources and proposes that the Office Holder will be accountable to the Secretary of State. I have voiced my concerns on this to the Northern Ireland Office but am told that they are following provisions in the Bill for the Prisons and Probation Ombudsman for England & Wales. Having discussed this matter with the latter I can say that he shares my concerns regarding the diminished independence for our Offices which this legislation will entrench. Neither of us will be able to satisfy

Neither the British and Irish Ombudsman's criteria for an Ombudsman, or the standards for independence required for National Monitoring Bodies under the Optional Protocol on the Convention Against Torture (OPCAT). Furthermore the requirement of full independence for those appointed to monitor public services is clearly envisaged in virtually all international and domestic human rights law and structures and will not be delivered by the Bills proposals. The Lord Chief Justice for Northern Ireland has recently underscored the crucial nature of such transparent independence in Application for Judicial Review by C, A, W, M and McE, Neutral Citation No [2007] NIQB101 related to alleged surveillance of legal consultations in the case of those in custody. The courts judgement declared that the person providing the key safeguard in such situations must be located outside the statutory body applying the said surveillance. I think I can safely say that the required standard of independence for the Office of Northern Ireland Commissioner for Prison Complaints can only be satisfied by making the Office Holder accountable to Parliament and ultimately to the Northern Ireland Assembly following devolution of Criminal Justice.

The provisions in the Bill unless amended as I suggest will perpetuate and indeed make worse a very messy scrutiny landscape. For example the proposed Commissioner will continue to be subordinate to the Parliamentary Ombudsman until devolution of Criminal Justice to Northern Ireland and thereafter to the Assembly Ombudsman. Furthermore my existing ability to deal with prisoner healthcare complaints will disappear. The effect of this will be to have two 'ombudsmen' dealing with aspects of prisoner healthcare complaints. I will no longer be able to provide a simple, holistic complaints service. If full statutory footing had been provided for in the Bill there would be no need to exclude prisoner healthcare complaints from my remit since I would be able to deal with them on the same basis as and instead of the Health Service Ombudsman or upon devolution of criminal justice the Assembly Ombudsman/NI Commissioner for Complaints.

The Parliamentary Ombudsman has articulated similar concerns to my own regarding aspects of the Criminal Justice & Immigration Bill proposals and I am enclosing her comments together with related correspondence.

I am certain that the intention of Government in the Bill is to be seen to strengthen scrutiny of prisons. The provisions in the Bill which I have identified will have the opposite effect. This raises the question, why have specialist ombudsmen for prisons? The emergence of this specialism in England & Wales, in Northern Ireland and notably in Canada typically followed periods of particular difficulty in managing prisons. Furthermore the relevant international and domestic human rights legislation and associated jurisprudence clearly require enhanced scrutiny of custodial settings. It is beyond argument that custodial settings are high risk institutions and can only benefit from the specialist scrutiny which an Ombudsman for Prisons can bring.

I apologise for writing at such length but hope you will agree that this is an important issue. I am advised that the next parliamentary stage for this Bill is scheduled for 13^th January 2008 and I hope you will feel able to influence its ultimate form in favour of a more appropriate model for scrutiny of custodial settings in Northern Ireland and England & Wales.