An Act to make provision for the appointment and functions of
a Commissioner to investigate complaints alleged to arise from
administrative acts for which certain local or public bodies are
responsible and for purposes connected therewith.
[25th November 1969]
| 1. | (1) For the purposes of this Act there shall be appointed a Commissioner, to be known as the Northern Ireland Commissioner for Complaints.
| Appointment and tenure of office of Cornmissioner
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| (2) The Governor may from time to time appoint a person to be the Commissioner, and any person so appointed shall, subject to subsection (3), hold office during good behaviour.
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| (3) A person appointed to be the Commissioner-
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| may, at his own request, be relieved of office by the Governor;
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| (b)
| may be removed from office by the Governor in consequence of Addresses from both Houses of Parliament; and
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| (c)
| shall in any case vacate office on completing the year of service in which he attains the age of sixty-five years.
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| (4) In the Part substituted by section 10 of, and Schedule 3 to, the House of Commons Disqualification Act 1957 for Part III of Schedule 1 to that Act (which substituted Part specifies certain offices the holders of which are disqualified for membership of the Senate and of the House of Commons of Northern Ireland) the following entry shall be inserted at the appropriate point in alphabetical order:
The Northern Ireland Commissioner for Complaints.
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| 2. | (1) Subject to subsection (2), there shall be paid to the holder of the office of Commissioner a salary at such rate as Parliament may by resolution from time to time determine.
| Remuneration |
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| (2) The salary payable to a holder of the office of Commissioner shall be abated by the amount of any pension payable to him in respect of any public office in the United Kingdom or elsewhere to which he had previously been appointed or elected; but any such abatement shall be disregarded in computing that salary for the purposes of any pension or other benefit payable pursuant to an Order in Council made under section 13 (1) (a).
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| (3) Any salary payable under this section and any such last-mentioned pension or other benefit shall be charged on and issued out of the Consolidated Fund.
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| 3. | (1) The Commissioner may appoint such officers as he may determine with the approval of the Ministry of Finance as to numbers and conditions of service.
| Administrative provisions.
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| (2) The Northern Ireland Parliamentary Commissioner for Administration may authorise any of his officers to assist the Commissioner in the exercise of the Commissioner's functions under this Act.
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| (3) Any function of the Commissioner under this Act may be performed by any officer of the Commissioner or of the Northern Ireland Parliamentary Commissioner for Administration authorised for the purpose by the Commissioner.
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| (4) The expenses of the Commissioner under this Act, to such amount as may be approved by the Ministry of Finance, may be defrayed out of moneys provided by Parliament.
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| 4. | Subject to the provisions of any Order in Council for the time being in force under section 13 (1) (b), this Act applies to the local and public bodies listed in Schedule I.
| Local and public bodies subject to investigation by the Commissioner
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| 5. | (1) Subject to the provisions of this Act, the Commissioner may investigate any action taken by or on behalf of a local or public body to which this Act applies, being action taken in the exercise of the administrative functions of that body, where-
| Matters subject to investigation.
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| (a)
| a complaint is made to the Commissioner in accordance with this Act by a person who claims to have sustained injustice in consequence of maladministration in connection with the action so taken with a request to conduct an investigation thereon; and
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| (b)
| in such cases as may be prescribed, not being cases in which by virtue of subsection (2) payment of a fee is not required, the complaint is accompanied by a fee of such amount, not exceeding £5, as may be prescribed.
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| For the removal of doubt it is hereby declared that action taken in the exercise of the administrative functions of a body includes action taken by or on behalf of that body in relation to any appointment or employment in respect of which power to take action, or to determine or approve action to be taken, is vested in that body.
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| (2) The payment of any fee which may be prescribed pursuant to subsection (1) (b) shall not be required in any case in which the person aggrieved furnishes evidence from the Ministry of Health and Social Services that he is in receipt of supplementary benefit or furnishes evidence to the satisfaction of the Commissioner that he is a person whose disposable income and disposable capital, calculated pursuant to section 4 of the Legal Aid and Advice Act (Northern Ireland) 1965, are such that a contribution to the legal aid fund would not be payable by him under section 3 of that Act in respect of any proceeding and such payment-
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| (a)
| may, in addition, be waived or returned by the Commissioner at his discretion in any particular case;
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| (b)
| shall be returned in any case in which the Commissioner after investigation is satisfied that the matters alleged in the complaint are substantially true and that the person aggrieved had reasonable and probable cause for believing that the complaint was one which it was proper for the Commissioner to investigate; and
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| (c)
| if not so returned, shall be credited to the Exchequer.
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| (3) Except as hereinafter provided, the Commissioner shall not conduct an investigation under this Act in respect of any of the following matters, that is to say-
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| (a)
| any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted under any statutory provision or otherwise; or
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| (b)
| any action in respect of which the person aggrieved has or had a remedy .by way of proceedings in a court of law;
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| so, however, that the Commissioner may conduct an investigation-
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| | (i) notwithstanding that the person aggrieved has or had such a right or remedy as is mentioned in paragraph (a) or paragraph (b), if the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it; or
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| | (ii) notwithstanding that the person aggrieved had exercised such a right as is mentioned in paragraph (a), if he complains that the injustice sustained by him remains unremedied thereby and the Commissioner is satisfied that there are reasonable grounds for that complaint.
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| (4) Without prejudice to subsection (3), the Commissioner shall not conduct an investigation under this Act in respect of any such actions or matters as are described in Schedule 2 as from time to time in force by virtue of any Order in Council made under section 13 (1) (d) otherwise than as authorised by the proviso to paragraph 3 of that Schedule.
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| (5) In determining whether to initiate, continue or discontinue investigation under this Act, the Commissioner shall, subject to the foregoing provisions, act in accordance with his own discretion; and any question whether a complaint is duly made under this Act shall be determined by the Commissioner.
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| 6. | (1) A complaint under this Act may be made by any person aggrieved, not being-
| Provisions relating to complaints.
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| (a)
| a government department or a local body or other authority or body constituted for purposes of public service or of local government or for the purposes of carrying on under national or public ownership any industry or undertaking or part of an industry or undertaking;
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| (b)
| any other authority or body the majority of whose members are appointed by Her Majesty or the Governor or any Minister of the Crown or Minister of Northern Ireland or department of the government of the United Kingdom or of the government of Northern Ireland, or whose revenues consist wholly or mainly of moneys provided by Parliament or by the Parliament of the United Kingdom; or.
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| (c)
| a member, at the time of the action complained of, of the local or public body against whom the complaint is made.
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| (2) Where the person by whom a complaint might have been made under the foregoing provisions of this Act has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or other individual suitable to represent him; but except as aforesaid a complaint shall not be entertained under this Act unless made by the person aggrieved himself.
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| (3) A complaint shall not be entertained under this Act unless made in such form containing such particulars as may be prescribed and a separate complaint shall be made out in respect of each separate injustice alleged to have been sustained by the person aggrieved.
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| (4) A complaint shall not be entertained under this Act unless it is made to the Commissioner before a day falling not later than two months from the time when the person aggrieved first had knowledge, or might reasonably be deemed to have had knowledge, of the action complained of or not later than six months of the action complained of whichever of those days shall first occur but the Commissioner may conduct an investigation of a complaint not made within the time required by this subsection where he considers that there are special circumstances which make it proper to do so and where the action complained of did not occur earlier than one year before the passing of this Act.
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| (5) A complaint shall not be entertained under this Act unless the person aggrieved is resident in Northern Ireland (or, if he is dead, was so resident at the time of his death) or the complaint relates to action taken in relation to him while he was present in Northern Ireland or in relation to rights or obligations which accrued or arose in Northern Ireland.
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| 7. | (1) The purposes of the investigation by the Comissioner shall be-
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| (a)
| to ascertain if the matters alleged in the complaint (i) may properly warrant investigation by him under this Act, (ii) are in substance, true and (iii) disclose any maladministration by or on behalf of the body against whom the complaint is made; and, where it appears to him to be desirable,
| Purpose of investigation and provisions for giving effect to recommendations made thereon.
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| (b)
| to effect a settlement of the matter complained of or, if that is not possible, to state what action should in his opinion be taken by the body against whom the complaint is made to effect a fair settlement thereof or by that body or by the person aggrieved to remove, or have removed, the cause of the complaint.
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| (2) Where on an investigation made by him under this Act the Commissioner reports that a person aggrieved has sustained injustice in consequence of maladministration, the county court may on an application made to it by that person, in accordance with county court rules and upon notice to the body against whom the complaint investigated was made, by order award that person such damages as the court may think just in all the circumstances to compensate him for any loss or injury which he may have suffered on account of-
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| (a)
| expenses reasonably incurred by him in connection with the subject matter of the maladministration on which his complaint was founded; and
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| (b)
| his loss of opportunity of acquiring the benefit which he might reasonably be expected to have had but for such maladministration: subject, however, to the application of the same rule concerning the duty of a person to mitigate his loss as applies in relation to damages recoverable at common law.
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| (3) Where on application made to it under subsection (2) it appears to the county court that justice could only be done to the person aggrieved by directing the body against whom his complaint was made to take, or to refrain from taking, any particular action, the court may, if satisfied that in all the circumstances it is reasonable so to do, make an order containing such a direction and-
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| (i)
| for the purposes of such an order the county court shall have the like jurisdiction as the High Court to grant any mandatory or other injunction; and
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| (ii)
| disobedience to any such order by any body on whom notice of the making thereof was duly served or by any member or officer of that body may be treated as a contempt of court to which section 141 of the County Courts Act (Northern Ireland) 1959 applies.
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| (4) Without prejudice to sections 2 and 7 of the County Court Appeals Act (Northern Ireland) 1964, any local or public body or any person aggrieved who is dissatisfied with an order of a county court under subsection (2) or subsection (3) may appeal from that order as if it had been made in the exercise of the jurisdiction conferred by Part III of the County Courts Act (Northern Ireland) 1959 and the appeal were brought under section 1 of the said Act of 1964.
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| (5) Where on an investigation made by him under this Act the Commissioner reports that a person aggrieved has sustained injustice in consequence of maladministration and it appears to the Commissioner (whether or not so stated in his report) that-
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| (a)
| the local or public body against whom the investigation was made had previously engaged in conduct which was of the same kind as, or of a similar kind to, that which amounted to such maladministration; and
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| (b)
| such body is likely, unless restrained by order of the High Court under this subsection, to engage in future in such conduct;
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| the Attorney-General may, at the request of the Commissioner, apply to the High Court for the grant of such mandatory or other injunction, or such declaration or other relief as appears to the High Court to be proper in all the circumstances, including an injunction restraining that local or public body or any member or officer of that body from engaging in, or causing or permitting others to engage in, conduct of the same kind as that which amounted to such maladministration or conduct of any similar kind specified in an order of the High Court and, where any such application is made to it, the High Court, if satisfied as to the matters mentioned in paragraphs (a) and (b), may grant such mandatory or other injunction, or such declaration or other relief.
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| (6) The jurisdiction conferred by subsection (5) shall be exercisable by a single judge of the High Court without a jury, and for all purposes of or incidental to the exercise of that jurisdiction and the execution and enforcement of any orders under that subsection a judge of the High Court may exercise all the power, authority and jurisdiction vested in or capable of being exercised by the High Court in relation to the hearing or determination of any civil cause or matter within the jurisdiction of the Court.
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| (7) The High Court may, in determining for the purposes of an application made to it under subsection (5) whether or not a local or public body has engaged in a course of conduct, take into account not only the action investigated by the Commissioner on complaint of the person aggrieved but also any other action whether or not the subject of an investigation by the Commissioner which may appear to the High Court to be relevant.
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| (8) For the purposes of any proceedings authorised by this section, a recommendation of the Commissioner and any report of the Commissioner relating to the complaint in connection with which the recommendation is made shall, unless the contrary is proved, be accepted as evidence of the facts stated therein and in any such proceedings the authenticity of any such recommendation or report may be proved by production of a certificate of its authenticity signed by the Commissioner or an officer of the Commissioner.
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| (9) The powers conferred on a county court under subsections (2) and (3) may be exercised by that court notwithstanding anything to the contrary in any transferred provision which imposes limitations on its jurisdiction by reference to an amount claimed or to the value of property.
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| (10) Nothing in this section shall affect the right to bring any proceedings, whether civil or criminal, which might have been brought if this section had not been passed.
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| 8. | (1) Where the Commissioner proposes to conduct an investigation pursuant to a complaint under this Act, he shall furnish to-
| Procedure in respect of investigations
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| (a) |
the body concerned; and | |
| (b)
| any person who is alleged in the complaint to have taken or authorised the action complained of or who is otherwise involved in allegations made in the complaint;
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| information as to the allegations made in the complaint so far as they relate to that body or (as the case may be) to that person and the substance of any evidence which the Commissioner has reason to believe may be tendered in support of those allegations and shall afford to every such body or person an opportunity to comment on those allegations and to furnish oral or other evidence respecting them.
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| (2) Every investigation under this Act shall be conducted in private, but, except as provided by this section, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case.
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| (3) Without prejudice to the generality of subsection (2), the Commissioner may obtain information from such persons and in such manner and make such inquiries, as he thinks fit.
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| (4) The Commissioner shall not be obliged to hold any hearing, and no person shall be entitled as of right to be heard by the Commissioner but, if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds for making any report or recommendation that may adversely affect any local or other public body or any member or officer thereof or any Minister or department or other person, the Commissioner shall give to that body, member, officer, Minister, department or other person, as the case may be, if it or he should so desire, the opportunity of being examined by its or his own solicitor or counsel and the opportunity of testing by cross-examination, by its or his own solicitor or counsel or otherwise, any evidence which may affect it or him: and where such opportunities are given to a person other than the person aggrieved, the like opportunities shall be given to the person aggrieved.
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| (5) The Commissioner may, if he thinks fit, pay to the person by whom the complaint was made and to any other person who attends or furnishes information for the purposes of an investigation under this Act-
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| (a) | sums in respect of expenses properly incurred by them;
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| (b) | allowances by way of compensation for the loss of their time;
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| in accordance with such scales and subject to such conditions as the Ministry of Finance may determine.
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| (6) No investigation under this Act shall affect the validity of any action previously taken by the body concerned in the investigation or previously taken by any Minister or government department with respect to that body or any power or duty of that body, Minister or department to take further action with respect to any matters subject to the investigation.
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| 9. | (1) For the purposes of an investigation under this Act the Commissioner may require any person who in his opinion is able to furnish information or produce documents relevant to the investigation, to furnish any such information or produce any such document.
| Evidence on an investigation
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| (2) For the purposes of any such investigation the Commissioner shall have the same powers as the High Court in respect of-
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| (a)
| the attendance and examination of witnesses, including the administration of oaths or affirmations and the examination of witnesses abroad; and
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| (b) |
the production of documents. | |
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| (3) A person shall not be compelled for the purposes of any investigation under this Act to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before the High Court.
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| 10. | (1) If any person without lawful excuse obstructs the Commissioner or any officer of the Commissioner in the performance of his functions under this Act, or is guilty of any act or omission in relation to an investigation under this Act which, if that investigation were a proceeding in the High Court, would constitute contempt of court, the Commissioner may certify the offence to the High Court.
| Obstruction and contempt.
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| (2) Where an offence is certified under this section, the High Court may inquire into the matter and, after hearing-
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| (a)
| any witnesses who may be produced against or on behalf of the person charged with the offence; and
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| (b) |
any statement that may be offered in defence; |
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| deal with the person charged with the offence in any manner in which the Court could deal with him if he had committed the like offence in relation to the Court.
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| (3) Nothing in this section shall be construed as applying to the taking of any such action as is mentioned in section 8 (6).
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| 11. | (1) In any case where the Commissioner conducts an investigation under this Act or decides not to conduct such an investigation, he shall send to the person by whom the request for the investigation was made a report of the results of the investigation or, as the case may be, a statement of his reasons for not conducting an investigation.
| Reports by Commissioner.
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| (2) In any case where the Commissioner conducts an investigation under this Act, he shall also send a report of the results of the investigation to-
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the body concerned; | |
| (b)
| any person who is alleged in the relevant complaint to have taken or authorised the action complained of or otherwise to be involved in the allegations made in the complaint.
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| (3) The Commissioner shall annually lay before each House of Parliament a general report on the performance of his functions under this Act and may from time to time lay such other reports before Parliament as he may think fit.
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| (4) For the purposes of the law of defamation the publication by the Commissioner or his officers of any matter which the Commissioner is required or authorised to publish under this Act shall be absolutely privileged.
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| 12. | (1) It is hereby declared that the Commissioner and his officers hold office under Her Majesty within the meaning of the Official Secrets Act 1911.
| Provision for secrecy of information.
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| (2) Information obtained by the Commissioner or his officers in the course of, or for the purposes of, an investigation under this Act shall not be disclosed except for the purposes of-
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the investigation and of any report to be made thereon under this Act;
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| (b)
| any proceedings for an offence under the Official Secrets Acts 1911 to 1939 alleged to have been committed in respect of information obtained by the Commissioner or any of his officers by virtue of this Act;
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| (c)
| any proceedings for an offence of perjury alleged to have been committed in the course of an investigation under this Act;
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| (d)
| an inquiry with a view to the taking of proceedings of the kind mentioned in paragraphs (b) and (c); or
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| (e) |
any proceedings under section 7 or under section 10;
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| and the Commissioner and his officers shall not be compellable to give evidence in any proceedings (other than any such proceedings as are referred to in paragraph (b) or (c) or proceedings in the High Court under section 7 (5) or section 10) of matters coming to his or their knowledge in the course of an investigation under this Act.
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| (3) A Minister may give notice in writing to the Commissioner, with respect to any document or information specified in the notice, or any class of documents or information so specified, that in the opinion of the Minister the disclosure of that document or information, or of documents or information of that class would be prejudicial to the safety of Northern Ireland or the United Kingdom or otherwise contrary to the public interest; and where such a notice is given nothing in this Act shall be construed as authorising or requiring the Commissioner or any officer of the Commissioner to communicate to any person or for any purpose any document or information specified in the notice, or any document or information of a class so specified.
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| 13. | (1) The Governor may by Order in Council-
| Orders in Council. |
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| (a)
| make provision for the payment to any person who has held the office of Commissioner or in respect of the service of a person as Commissioner, of such pension and other benefits as may be specified in the Order;
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| (b)
| amend Schedule 1 by the alteration of any entry, or the removal or qualification of any entry, or the insertion of any additional entry;
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| (c)
| prescribe the fee, if any, to be paid under section 5 (1) (b) in respect of any complaint;
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| (d)
| amend Schedule 2 so as to exclude from the provisions of that Schedule any such action or matter as is described in the Order;
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| (e)
| prescribe the form in which complaints are required to be made under this Act and the particulars to be furnished in connection therewith; or
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| (f)
| make provision for any matter appearing to him to be necessary or advisable for carrying out effectively the intent or purpose of this Act or of any provision of this Act.
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| (2) Nothing in paragraph (b) of subsection (1) authorises the inclusion in Schedule 1 of any government department or of any authority or body other than an authority or body exercising functions entrusted to it by a transferred provision or having its expenses substantially defrayed out of moneys provided by Parliament.
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| (3) The Governor shall not be recommended to make any Order in Council under this section until a draft thereof has been laid before Parliament and approved by a resolution of each House of Parliament.
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| 14. | (1) In this Act-
| Interpretation. |
| "action" includes failure to act and other expressions connoting action shall be construed accordingly;
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| "the Commissioner" means the Northern Ireland Commissioner for Complaints;
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| "harbour authority" means a person or body of persons empowered under or by virtue of a transferred provision to make charges in respect of vessels entering a harbour in Northern Ireland or using facilities therein;
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| "local body" and "officer" have the meanings respectively given to them by section 17 (1) of the Local Government (Members and Officers) Act (Northern Ireland) 1964;
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| "Minister" means a Minister of Northern Ireland;
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| "person aggrieved" means the person who claims to have sustained such injustice as is mentioned in section 5 (1);
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| "prescribed" means prescribed by Order in Council made under section 13;
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| "professions supplementary to medicine" has the same meaning as in the Professions Supplementary to Medicine Act 1960;
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| "statutory provision" and "transferred provision" have the same meanings as in section 1 of the Interpretation Act (Northern Ireland) 1954;
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| "tribunal" includes any authority, body or person having power to determine any matter.
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| (2) It is hereby declared that nothing in this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a local or public body in the exercise of a discretion vested in that body.
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| (3) Any reference in this Act to a local or public body includes a reference to the members or officers of that body.
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| 15. | (1) This Act may be cited as the Commissioner for Complaints Act (Northern Ireland) 1969.
| Short title and commencement.
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| (2) Subsection (1) and this subsection shall come into operation on the passing of this Act and the other provisions of this Act shall come into operation on such day or days (not being in any case later than one month from the passing of this Act) as the Governor may by Order in Council appoint.
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| (3) Subject to section 6 (4) a complaint under this Act may be made in respect of matters which arose before the commencement of this Act.
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