Appointment of the Northern Ireland Assembly Commissioner for Standards
Committee Business
3:45 pm

Francie Molloy (Sinn Féin)

The next item of business is a joint motion from the Committee on Standards and Privileges and the Assembly Commission to appoint the Northern Ireland Assembly Commissioner for Standards. I call Mr Barry McElduff to speak on behalf of the Assembly Commission and move the motion.

Barry McElduff (Sinn Féin)

Go raibh maith agat, a Príomh-LeasCheann Comhairle. I beg to move

That this Assembly, in accordance with section 19(1) of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011, appoints Mr Douglas Bain as the Northern Ireland Assembly Commissioner for Standards for a term of five years from 17 September 2012.

Tá mé sásta an rún seo a mholadh. This time last year, the Assembly agreed to delegate to the Assembly Commission responsibility for making arrangements to identify, by fair and open competition, a person to be appointed as Assembly Commissioner for Standards. The Commission was also given responsibility for making arrangements for determining any criteria for appointment and for determining the terms and conditions on which such an appointment, when made, was to have effect.

I am pleased to be able to come to the House today to report on how the Commission made those arrangements and to seek the Assembly’s agreement to appoint Mr Douglas Bain as the new Assembly Commissioner for Standards. On terms and conditions, the Commission ultimately agreed that the commissioner should be paid a daily rate of £550. In so doing, we took account of the Committee on Standards and Privileges’ recommendation, which had been agreed by the Assembly, that the commissioner’s specific salary and terms and conditions should be broadly commensurate with those of comparable office holders.

The Commission agreed a fair and open competition process for identifying a person to be appointed as Commissioner for Standards. We agreed that the seven key principles of best practice in respect of public appointments should underpin that competition. I thank Felicity Houston, the former Commissioner for Public Appointments, who very kindly gave Assembly officials advice when they were drawing up the process for the Commission’s consideration.

The Commission agreed that a selection panel should be established and that it should include the Chairperson of the Committee on Standards and Privileges, as well as a member of the Assembly Commission, and I was duly appointed in that capacity. The panel was chaired by Stuart Allen, the Scottish Parliamentary Standards Commissioner. I thank all of the panel members for their participation and for taking time out of busy schedules to ensure that we identified the right person.

Unfortunately, an initial competition did not identify a suitable candidate. The Commission therefore agreed in January 2012 to carry out a further competition. The post was widely advertised and 25 applications were received. After having sifted the applications, the panel carried out interviews on 26 April this year. We were very impressed with everyone we interviewed. However, as a panel, Mr Bain impressed us most, and we concluded that he was our preferred candidate for appointment. Last week, a note was circulated to all Members that provided details of Mr Bain’s extensive, high-level experience.

I am confident that Mr Bain’s skills and experience will allow him to be an excellent Commissioner for Standards, and I ask the Assembly to agree to his appointment.

Jim Allister (Traditional Unionist Voice)

I am disappointed in the choice. I thought that this Assembly would see the necessity to strive to obtain somebody from well outside the Government ambit and the tendencies that come with that. Instead, it seems that the person chosen is someone who fits neatly within the quango circuit: someone whose past experience does not demonstrate the independence that one might have expected, but who comes from that particular setting. My anxieties are increased when I consider the findings of the Billy Wright inquiry in respect of Mr Bain, who, during the relevant time, was director of services in the Prison Service. Anyone who followed the Billy Wright inquiry will know that a core issue in it was the alleged destruction of and failure to disclose documents.

Here we are, appointing someone who will adjudicate over us, so to speak; who will tell us whether we have lived up to the standards expected of us; whether we have performed as we ought to or whether we fell down in any respect; and will, no doubt, be mindful of the Nolan principles, and all of that, in respect of the expectations that we face.

I invite Members to refresh their memories by re-reading some of the Billy Wright inquiry material. They will discover that a particular document lay at the heart of the non-disclosure. The existence of that document would appear to have been denied until a copy of it was delivered anonymously to Mr David Wright. The Prison Service then began to acknowledge its existence. It may not have been the core issue, but it was one of the core issues in the Billy Wright inquiry. When the chairman of that tribunal reached his decisions, he had some things to say about that particular issue. Paragraph 313 of chapter 6 of the inquiry report states:

“Mr Bain gave evidence that the file was … within his office as Director of Services with which he was very much hands-on. For the vast majority of its life this file was under his control, whether it was in his physical position or not. It bore a sticker on its outside cover with the words ‘Examined in connection with the BWI’.”

That refers to the Billy Wright inquiry. The paragraph continues:

“The witness had never before seen a sticker like that. Mr Bain accepted that the file fell within the specification of documents served by the Inquiry. If, as the sticker indicates, it had been examined by the team tasked with producing documents in response to the specification, he had no explanation why it had not been produced, despite the file having been examined twice by the team. He accepted that the team had not exercised its judgement correctly. Instead, the existence of the file was very recently leaked anonymously to the Inquiry via the Wright family solicitor.”

Paragraph 6.314 of the report goes on to state that the:

“Director of Services at the material time, Mr Bain, knew that this file was regarded as important by the Inquiry. He was also well aware of its contents since it was his file.”

The report then states:

“We are surprised that after his return to work in December 2005 he took no steps to ascertain that its contents had been produced to the Inquiry.”

The report goes on to state that:

“Mr Bain also said he had no knowledge that HMP Maze Prisoner Security Files had been destroyed.”

If we skip a paragraph, we will find that paragraph 6.316 of the report states that:

“While all that might be accepted, the situation he found himself in was very different when he became aware that the HMP Maze Prisoner Security Files had been ‘destroyed by Security’ on a substantial scale. That he knew this is established in documents examined by the Inquiry. Although at first Mr Bain said he did not know that HMP Maze Prisoner Security Files were destroyed, he accepted that in the light of these documents, he knew in May 2004 that they had been. As he expressed it: ‘It wasn’t my recollection of events, but plainly I was aware of it at the time.’”

That was his explanation for giving evidence that said that he knew nothing about it.

The next paragraph states that:

“In our opinion the fact that he did not take any steps in light of his awareness of the destruction of these files was very surprising.”

Given the tenor of the language that tends to be used in such reports, an expression of surprise in the inquiry report stating that someone had not troubled themselves to take steps to tell the inquiry certain things and to make sure that certain things were brought to light is, of itself, quite damning of that individual. Yet that is the individual who has been brought to the House on recommendation to be appointed as overseer to examine how all of us conduct ourselves. I say that, on the strength of the Billy Wright inquiry, there are questions that remain unanswered over his conduct as the director of services in the Prison Service. For me, that begs the question about his suitability for appointment.

We are all aware that he also served as Chief Electoral Officer in the Electoral Office, and we all have our own views about that. My experience does not add to my level of confidence in him. Fundamentally, I think that the Assembly should pause on this appointment and should not push it through today. We should take time to reflect on what was said about Mr Bain in the Billy Wright inquiry and to consider whether he is really the individual that we are looking for as the overseer and holder of the very important post of Assembly Commissioner for Standards. I suggest that he is not and that the Assembly should pause and consider whether he is.

Tom Elliott (UUP)

I was not part of the overall appointment process, so I have a relatively limited knowledge of how this has happened. I apologise to Mr McElduff for not being here for his opening remarks, so some of the issues that I will raise may have been covered. If that is the case, whoever makes the winding-up speech can explain those points.

I am concerned about the entire process that has led us to this position. I am also concerned that we have got to it so quickly with very limited information coming back to Members. I note from the report that was in my pigeonhole today that, in the first round of applications, no candidate was deemed suitable. There was no indication of how many people who applied for the post were deemed unsuitable.

In the second round of applications, it appears that there were 25 applicants, of whom three were deemed suitable for interview. I have no idea how that process came about, other than there was an appointment from the Assembly Commission, one from the Committee on Standards and Privileges, and a third from an independent representative. I have significant questions about that process and how the appointment of Mr Bain was reached. I am not aware of any report being produced by the Commission or the Committee on the process or the appointment. I have significant queries, and I hope that the Member, during his winding-up speech, will take my interventions to establish some answers.

Alastair Ross (DUP)

I will first make some comments about the role of the Northern Ireland Assembly Commissioner for Standards. The new commissioner’s primary role is to investigate complaints that a breach of the Assembly’s code of conduct has occurred. The new commissioner will be able to initiate an investigation when no complaint has been received but when he believes that there has been a breach of the code of conduct. The commissioner will also be able to give advice on any matter of general principle relating to Members’ standards of conduct. As Members said, the role of the commissioner is, therefore, of the utmost importance in ensuring that MLAs uphold high standards of conduct in public life.

The Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011 provides for the commissioner’s role; it also provides for the commissioner’s independence and powers, which include the same powers as the Assembly to call for witnesses and documents. Given the importance and significance of this powerful role, it is important that we appoint a person who has the experience and expertise to undertake the duties with skill, wisdom and judgement. As Mr McElduff said in his opening remarks, I sat on the selection panel that identified Mr Bain as the preferred candidate. The competition was, of course, demanding, and as a panel, we were determined to get a high-quality candidate. The panel decided that we had such a candidate in Mr Bain. He has a legal and public service background as well as a track record of investigation and independence. He impressed the panel with his responses, and I am confident that he will make an excellent Commissioner for Standards.

For a number of years, the Assembly has had an interim arrangement to ensure that allegations of misconduct are independently investigated. As we appoint the new statutory commissioner today, it is appropriate that we acknowledge and recognise the work that the ombudsman has done as the Interim Assembly Commissioner for Standards. Dr Tom Frawley, supported by key staff in the ombudsman’s office, has been the Assembly’s dedicated servant during this period; he has had to investigate and consider many thorny and difficult issues. On behalf of the Assembly, I wish to thank him for his service. It is important to acknowledge today that the Assembly and the wider public have been well served by his support.

Jim Allister (Traditional Unionist Voice)

The Member tells us how impressed the panel was with Mr Bain. Is the Member impressed by what the Billy Wright inquiry had to say about Mr Bain? Does he really think that the flaws and deficiencies found there speak to the man who should be investigating anything in the Assembly?

Alastair Ross (DUP)

I thank the Member for his intervention. It is important and useful in a debate such as this that Members can put forward views about not being content.

As for an individual’s past and whether Members are content about a specific issue, the Assembly has a legal duty to ensure that whoever is appointed as commissioner is identified by fair and open competition. The Member suggested earlier that the Assembly should be looking to appoint someone from outside our quango culture — I cannot remember his exact words. The Assembly, of course, has to appoint somebody who applied for the post.

It is perhaps unfortunate that in the initial appointment procedure we did not have more candidates of the calibre we had hoped for. We went out on a further investigation and managed to get considerably more applicants for the post.

As I said, it is important that whoever was appointed was identified by a fair and open competition. The Commission agreed that the principles of best practice in respect of public appointments should underpin that competition, which meant identifying a preferred candidate based on merit and on agreed criteria that applied equally to all candidates. It would have been inappropriate for the panel to bring other matters into consideration when assessing candidates.

Tom Elliott (UUP)

I thank the Member for giving way on that point. There are a number of queries that I had about the initial process, and that was one of them. Was the initial process for applications identical to the second one? If not, how did it differ? How many people applied in the initial process?

Alastair Ross (DUP)

The clear difference between the first and second process was the individuals who applied; therefore it was not identical in that we had different candidates applying for the post. We had 25 applications when we re-advertised the post. We did not have enough candidates the first time, so we looked to advertise more widely and in specific areas to get candidates of a particular calibre. That was important in order to widen the field.

Roy Beggs (UUP)

I thank the Member for the explanation. He said that 25 people applied, but, if I picked it up right, only three were interviewed. That is a significant reduction in the number of candidates at the paper-sifting stage. What were the criteria used to cut down the number of candidates so harshly?

Alastair Ross (DUP)

We sought answers to a number of questions. There was a point-scoring system, as is the procedure in all such processes, and the panel sifted the applications on the basis of their answers. If candidates did not score highly enough in those categories, they did not get through the sifting exercise.

I must emphasise that the process was agreed by the panel. I hear that there are concerns from Ulster Unionist Party Members, but it was agreed by all members of the Committee on Standards and Privileges, including the Ulster Unionist member, and it was agreed unanimously by the Assembly Commission, which has representatives from all parties. It is important that that be noted.

In answer to Mr Elliott’s concern about the process going too quickly, under the original resolution passed by the Assembly, we should have had the new Commissioner for Standards in place before now. It was because we wanted to make sure that we had an applicant that everybody on the panel, on the Committee on Standards and Privileges and on the Commission could have confidence in that we prolonged the recruitment process and re-advertised to get more candidates. We wanted to make sure that we had a candidate that everybody felt comfortable supporting and that we would be able to get support for. That is why the process took longer than was initially thought. This has not in any way been rushed: we have taken our time.

Mr Bain has the skills and expertise necessary to make a good Commissioner for Standards, and I look forward to working with him over the rest of the mandate. I hope that Members from across the House will support the motion. I commend the motion to the House.

Question put and agreed to.

Resolved:

That this Assembly, in accordance with section 19(1) of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011, appoints Mr Douglas Bain as the Northern Ireland Assembly Commissioner for Standards for a term of five years from 17 September 2012.

Adjourned at 4.14 pm.