Written evidence to be reported to the House
Criminal Justice and Immigration Bill
1:10 pm
Stephen Shaw: Both I and my office welcome the Bill’s proposals. The office has been calling for them since it was established in 1994, and there has been a Government commitment going back the best part of 10 years. We welcome the proposals and believe that they will give us the proper authority to conduct our business, which is of considerable public importance and significance. We believe that insofar as the Bill codifies and in certain respects extends our powers, it is appropriate. It gives the office and the post holder equivalent authority with the chief inspector of prisons. When these proposals were first considered three or four years ago, I argued strongly that the post holder should benefit from having a royal warrant, not least to denote equivalent status with the chief inspector. But when it comes to practical issues, will it make a great deal of difference to how we conduct our business? The candid answer is no, it will not.
The clause sets out what we are entitled to do, how we go about our business and how we conclude our investigations, which in large part reflect our existing practice. It codifies that, puts it in a public form and reflects the important work that we do, which includes work that is part of the state’s compliance with article 2 of the European convention on human rights. However, in day-to-day terms it will not make a great deal of difference to how we conduct our business.
Although I very much welcome the proposals, which are largely right, it would be proper to share with the Committee the issue of whether the Bill as drafted provides the appropriate degree of independence for the commissioner, a statutory ombudsman. It is a principle going back to the first one in Sweden nearly 200 years ago, and a core international standard of what an ombudsman is, that they should not operate within the system but be freestanding and conspicuously independent of the services that they oversee. Under the Bill as drafted, the commissioner will be operating within a structure determined by the Secretary of State—in that sense, the ombudsman will be a departmental ombudsman.
My view, which I have shared with colleagues in the Ministry of Justice and elsewhere, is that it would be better if the commissioner was accountable directly to Parliament rather than to the Secretary of State and the Ministry. That would have two or three important benefits. First, the post holder would be more conspicuously independent; secondly—it may appear paradoxical but I believe it be true—the post holder would be more accountable were he or she responsible to and examined directly by Parliament. The third advantage, assuming that the measure goes through, is that it will be in place for many years to come, as no Government, of any party, will want to return to it in a hurry, so what is set up must stand the test of time.
Would the courts consider the ombudsman or commissioner to be sufficiently independent under the Bill as it stands to withstand challenges under article 2? At the moment perhaps they would, but if we consider how the law is likely to develop, an ombudsman operating under a departmental umbrella is likely to be challenged about the degree of independence he or she enjoys. In a recent case, the Parole Board was found wanting on exactly those grounds. The Ministry of Justice intends to appeal against that judgment and we shall have to wait for the outcome, but it seems to me that that is the way that the law is going. There are about half a dozen references in the Bill to what the Secretary of State may do or pay for, and it would be better if they were replaced by a reference to Parliament itself.