McCusker review of Pollock allegations published

The report by Tony McCusker, examining the allegations made against Department of Justice civil servants by Sam Pollock when he resigned as Chief Executive at the NI Police Ombudsman, has been published by the NI Justice Minister, David Ford.  Tony McCusker’s report is available here [pdf file].

As the report states at the outset

It is important to note that the Chief Executive did not at any time allege that the NIO or the DOJ had interfered in the investigative side of the Ombudsman’s Office.

A second report, on the operational independence of the Office of the Police Ombudsman for Northern Ireland from the PSNI, is still due. 

As Eamonn noted last night, the NI Police Ombudsman, Al Hutchinson, has welcomed “the main finding from the McCusker report that there is no evidence of systemic interference by officials from the Department of Justice in the work of this Office.”

“My Office is independent and it is an independence I will continue to protect.

“I also welcome any discussion the Minister and the community wish to have on the structure of this Office as it faces the future and on how society should deal with The Past.

“The Report also highlights issues about the actions of the Senior Director of Investigations. I am making immediate arrangements to have those issues investigated independently.”

The NI Justice Minister, David Ford, has also welcomed that finding, and highlighted another

David Ford said: “The report states that the Department should have been more interventionist when the office was facing internal difficulties.

“While I accept that comment, the debate which has taken place since these allegations were made highlights the real difficulties in officials taking such action in respect of an organisation that has independence as a cornerstone.

“That does not remove from the Department the need to sponsor the office effectively and the actions I have put in place to address the governance issues, alongside the existing sponsorship arrangements, should adress this area.”

The BBC, on the other hand, lead with the report’s criticism of Al Hutchinson’s ‘weak leadership’.

Mr McCusker appeared before the Stormont justice committee on Thursday.

Ulster Unionist member Basil McCrea said: “This report and your evidence has completely and utterly and totally shredded the credibility of the office of ombudsman.

“It has completely destroyed 10 years work.”

That seems somewhat excessive.  The report describes a case of office politics gone out of control.  But it also points to the problems caused by the NIO’s handling of the replacement of the previous Ombudsman, Dame Nuala O’Loan.  From the McCusker report [pdf file].

15. I have reviewed the various papers at length and spoken to some of those who were involved. I have a note which sets out details of a meeting which the Chief Executive had with the NIO in March 2007 in relation to the job specification for the appointment of the successor to Dame Nuala O’Loan. In fact Dame Nuala O’Loan was to attend the meeting, but was ill at the time. I have also seen other papers which suggest that details of the proposed appointment specification were circulated to the then Ombudsman and the Chief Executive beforehand. There appears to be less evidence of discussions around the terms offered to the new Ombudsman and the Permanent Secretary has accepted that perhaps there might have been more contact around those issues. In a way this heralded a further deterioration in the already apparent fraught relationship between the Chief Executive and the NIO. During the tenure of the previous Ombudsman there had been reported tensions in relation to the relative independence of the Office and counter concerns by the NIO about the relationship between the Ombudsman and the police. These tensions were added to at the time by a somewhat difficult exchange of correspondence between the Chief Executive and the NIO over the pension arrangements for the previous Ombudsman.

16. I take the view that the appointment of the Ombudsman was clearly a matter for the Secretary of State and fully within the administrative responsibilities of the NIO. Some, including the Chief Executive, have questioned the decision to allow former police officers to apply. But that was a political call then and will be again with the next appointment. A chief executive should not normally expect to be fully involved in such a process and the Chief Executive assures me that he did not seek such involvement. It seems evident that he and the previous Ombudsman were included in discussions/correspondence about the post specification, though not as involved in discussions about the job package which might have been expected. In my view it was not unreasonable for the Chief Executive to want input to discussions about the proposed financial package given his role as Accounting Officer.

17. By not fully consulting the Chief Executive on the financial package, at least informally, the NIO did not follow best practice in these matters and the climate was set for the unfortunate set of relationship difficulties which followed the appointment of the new Ombudsman.

The role of the Ombudsman’s Senior Director of Investigations comes under particular scrutiny.

30. The Ombudsman and the Chief Executive stated that they were unaware of either the Ministerial submission or the agreed and signed document. Both also say that they had not been kept up to speed by their Office officials about developments following the creation of the group in June 2009. They only realized that matters had been finalised and approved by the Minister following an email exchange in late November between an NIO official the Ombudsman and the Senior Director of Investigations about two specific recommendations of interest to the Committee of Ministers at Strasbourg. Senior officials indicated to me that they believed the Senior Director of Investigations was representing the views of the Ombudsman.

31. What can be drawn from this? I can readily understand why the Chief Executive might have believed that there was a determination by the NIO and sections within the Office not to allow the strengthening of the Office based on the recommendations of the previous Ombudsman. On the other hand the NIO officials and the Senior Director of Investigations are adamant that they were only implementing a position agreed by everyone including both the Ombudsman and the Chief Executive. Regardless of motivation, the way the process was handled was not satisfactory and did fuel a conspiracy theory. Critical in all of this was the position of the Ombudsman. It is surprising that he was not consulted about the final agreed position on the review recommendations or about how this was presented to the Minister. Lessons need to be learned and the issues should have been aired at a more senior level between the Ombudsman and the NIO.

There’s also room for criticism of “a job evaluation exercise carried out by the [NI Department of Finance and Personnel] Business Consultancy Service commissioned by NIO on behalf of the [Ombudsman’s] Office.”  And its aftermath.

38. Was this interference in the operation of the office? I view the possibility that the Senior Director of Investigations was made privy to the note from DFP officials by an DOJ official as disturbing and clearly interfering in the role of the Office, though I don’t believe this represented an example of systemic interference by DOJ. While the suggestion that the Senior Director of Investigations was made privy to the report from DFP consultants by an DOJ official is disputed, I believe that on the balance of probability he was either shown the report or was well briefed about its contents. As the document did not arrive with the Ombudsman’s Office until 19 July and as the Senior Director of Investigations was aware of its contents in late June I also conclude that it was more than likely that he gained this information from someone in DOJ.

39. This was a disturbing event and represents clear interference in the role of the Office and due process. It is also disturbing to note the comments of the Senior Director of Investigations about misleading the Independent Investigator. This is a matter which the Ombudsman will wish to consider carefully upon the return to work of the Senior Director of Investigations.

40. The Chief Executive clearly saw the content of the DFP consultant’s report as the basis of the “malicious allegations” mentioned in his resignation letters. Even during the grievance process where the content was presented to the Investigator as evidence, he had not been given an opportunity to view the report and saw it only recently on the basis of an FOI request. I believe that to be lacking in due process.

41. The grading issue was not well managed tactically by the NIO/DOJ, DFP, or the Ombudsman. However the behaviour of the Chief Executive was also seriously in breach of dignity at work principles in how he handled a number of these matters. The subsequent damage to relationships and morale within the office has been severe. Sides have been taken and it is fair to say that the overall impression is of a drift towards an ineffective office. It is impossible for an office to inspire confidence with the general public and with its key stakeholders when it appears its senior managers cannot manage even the most basic of personal relationships and conduct their conflict under the gaze of their staff. This was an occasion for decisive leadership and in my view it was missing.

And Tony McCusker’s conclusions in full

CONCLUSIONS

· I have not discovered any evidence of systemic interference or meddling by DOJ officials in the governance and functioning of the Office.

· There are, though, a number of issues which give cause for concern. Two issues which trouble me in particular relate to the outcome of the 5 year Review and the unfortunate consequences of the job evaluation exercise.

· On the 5 year review I am concerned that an agreement appears to have been concluded between the Senior Director of Investigations and a middle ranking official of the NIO without either the imprimatur of the Ombudsman or the knowledge of the Chief Executive. I am also surprised that the Ombudsman was not advised of the outcome of the work commissioned in June 2009 or, more critically, about the position attributed to him in the ministerial submission in October 2009.

· The issues triggered by the outcome of the regrading review have in my view been highly damaging to the morale and effectiveness of the Office. Matters remain unresolved and the consequences at a personal level are regrettable. The impact goes beyond those most involved and has had a demoralizing impact on the whole Office. In overall terms this was clumsy, poorly handled and, in my view should have been gripped much earlier and more decisively.

· The question of the Senior Director of Investigations being party to a controversial note prepared by DFP consultants which was then referenced in a subsequent grievance case taken against the Chief Executive, is a serious cause for concern.

· Discussions around the job evaluation issue have also revealed that the role and authority of the Chief Executive is disputed by the Ombudsman and the Senior Director of Investigations. While the Ombudsman views the two senior posts as in effect Deputy Ombudsmen, the Chief Executive sees his position differently citing not only custom and practice, but also the terms of the
Management Statement which seem unambiguous in terms of his primary advisory role in support of the Ombudsman.

· Overall governance problems were also raised in discussions and these need to be resolved quickly, and certainly before the appointment of a new Chief Executive. Various consultants’ reports have not helped. In my view they merely reflect the lack of clarity about the functionality of the Office and have diverted time and energy of the senior group and Directors away from their core functions and responsibilities.

· A recent Internal Audit report is an example. Referred to by many as damaging in its analysis of governance, I believe it to be as flawed as the others by not understanding the unique role of the Office and its sensitivities. The suggestion made in it that the two non-executive members of the Audit Committee might also become part of the Executive Board created by previous consultants seems to me to be politically naïve.

· I am not however persuaded that governance per se is the key issue. Though where governance is unclear, roles are disputed and personality clashes emerge, major problems are almost inevitable. However this is an organisation with a simple governance structure of a corporate sole, a relatively small senior group and with clear business objectives. It should therefore be relatively straightforward to have clarity about governance and senior roles and responsibilities. In successful organisations clarity of governance, business purpose and roles can cope with personality issues. Without that organisations inevitably become ineffective.

· While I have been critical of some aspects of the NIO/DOJ relationships with the Office I think it should also be recorded that they are exceptions and a great deal of co-operation is enjoyed by officials in both offices.

· Ironically I also believe that given what has gone on over the last number of years and particularly over the last 12 months, DOJ might have intervened more within the terms of the Management Statement and Ministerial responsibility when it became clear that the Office was not functioning effectively at senior level.

Pete Baker