Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mr A Doherty
Mr Ford
Mr McClarty
Mr M Murphy
Mr Poots
Mr Watson

Witnesses:

Mr D Barr ) The Department
Ms M Finnegan ) of the Environment
Dr T Power )
Mr J McConnell )

The Chairperson: There are some outstanding issues that you may want to address before we move on to the other questions.

Ms Finnegan: I shall update you, clause by clause, on what the Department has done. As regards clause 2(4), the Department has accepted that it will amend the explanatory and financial memorandum to match the Bill, but it will not amend the Bill. It will do that on the basis of legal advice. The subsection is simply a definition of "formula". We have agreed to amend the wording of clause 2(5) to reflect the consultation of district councils and other bodies that represent them.

The Chairperson: As regards clause 2(4), if the explanatory and financial memorandum is wrong — as we drew to your attention in questions (a) and (b) — where in the Bill is the power to amend the Regulations relating to the formula?

Ms Finnegan: I shall clarify the effect of the different subsections of clause 2. Clause 2(1) is an enabling power to make Regulations for the formula; subsection 5 is also an enabling power. It will be used to introduce any supplementary provisions or refinements by Regulation. When we introduce the formula for the first time, it will be on the strength of clause 2(1); however, if we wish to revise the data used in the formula, we will lean on subsection 5. We would consult councils on any changes that we propose, and we would then draft subordinate legislation to bring before the Committee.

Mr Ford: The Department referred today to consultation on subsection 5 solely with district councils and other bodies. The Committee asked about consultation with other interests such as staff. Do you intend to confine the legislative reference to consultation with councils, or will you include other appropriate bodies?

Ms Finnegan: I said "other bodies representative of councils".

Mr Ford: Yes. However, that is not what I was talking about.

Ms Finnegan: The Department, if it wishes to extend the exercise, could consult with any body.

The Chairperson: The wording of clause 4(4) implies a limit, because it is specific. It refers to

Mr McConnell: The Department is still discussing the issue, but it could refer to "other interested bodies", for example.

Mr Ford: I would be happy with that. However, the document mentions only consultation with district councils — not the other relevant bodies.

The Chairperson: That is an important point; the Committee wants to ensure that the consultation includes bodies representative of councils and other interested parties, including those representative of council workers.

Mr McConnell: There was no intention to exclude anyone. It was purely an effort to get those people who had — [Interruption].

The Chairperson: The Committee will take that in good faith, but we would like to see it in writing.

Mr McConnell: You will see it.

Ms Finnegan: The Department accepts the Committee’s view on clause 4 and will re-draft subsections 4(1) and 4(2) to update the existing legislation. The Committee will recall that the draft mirrored the existing provisions; therefore, it will have a different effect. The legislation will spell out the role of the local government auditor with reference to his reporting a case to the Department; the role of the Department in recommending to the Assembly the amount to be deducted from the general grant; and the role of the Assembly in approving the reduction. No reduction will be made without the Assembly’s approval. The wording of the Bill will be changed substantially.

The Chairperson: The Committee asked before about the wording of clause 4(1)(b), which mentions "any other relevant circumstances". Would it not be better to make that clearer, by rewording it to "other circumstances relevant to a district council"?

Ms Finnegan: I shall use an example to explain that point. The Department said that it felt the need to retain the wording "other relevant circumstances".

The Chairperson: You misunderstand me. I do not claim that those words should be excluded. However, the Committee suggests that the phrase "other circumstances relevant to a district council" might be clearer. The wording must be examined carefully.

Ms Finnegan: We will reconsider the matter. Would it require a big extension?

Mr McConnell: We will return to the Committee when we have reviewed the matter. Would it help if we discussed a district council’s functions or other relevant points?

Ms Finnegan: Some points about clause 4 have not been clarified. They were not specifically referred to in the Committee’s letters, but they have since been raised. Clause 4(5), which we discussed last week, states:

I am still not entirely persuaded by your previous point. Negative resolution may be legally acceptable for Regulations made under subsection 3, but that does not persuade the Committee that it should not prefer affirmative resolution.

Mr McConnell: The Department has no choice; its legal adviser said that we must apply the method of negative resolution.

The Chairperson: It may be helpful if the Committee seeks legal advice on the matter.

Mr McConnell: If the Committee’s legal advice conflicts with ours, we should discuss that.

The Chairperson: The Committee can assist in that way.

Ms Finnegan: Clause 6 deals with economic development. The Department conveyed the Committee’s views on clause 6(4) to the Department of Enterprise, Trade and Investment. We will meet departmental officials next Wednesday, the soonest date that we could arrange, to examine the wording and to address the matters of directions and consultation.

Mr McConnell: At our meeting with the Department, we will convey the Committee’s view of how the Bill should progress.

The Chairperson: The Committee will have to wait to see the wording of the subsection.

Ms Finnegan: On page nine of the original index of questions, the Department was asked whether councils retained all the proceeds of the disposal of land.

The Chairperson: Can we deal with page seven first?

Ms Finnegan: Yes. I apologise. In response to a question last week, I said that we had not consulted on the specific terms of the clause, but that we had consulted on the proposals of the 1997 consultation. There was a big response from councils, 23 of which supported the proposal to drop the 5p limit and to extend the powers to those councils that could acquire land, et cetera. Comments were made about going further than that, but the two Departments at that time, the former Department of the Environment (DOE) and the former Department of Economic Development (DED), would probably have considered those and did not take anything further on board. The draft legislation is exactly what was agreed then. There are no problems with that, and we will talk to DETI about directions, guidance, consultation, and so forth.

Mr McConnell: Until earlier this year, minimal pressure was put on the Department about this exercise. We tried to take a finance Bill through late, because of Peace II money and other factors. Councils prevailed upon us to fulfil our earlier obligations; that is to say, the responsibilities of all the Departments, not necessarily ours. We agreed that the legislation would be used as a vehicle to alter councils’ functions and to enable them to go beyond the 5p limit.

That is the history, and I am trying to get the legislation through so that councils can quickly obtain the Peace II moneys. We are addressing councils’ issues with them, but we need to do more work on this.

The Chairperson: What are you doing with the requests for the removal of the 5p expenditure limit?

Ms Finnegan: The existing legislation will be repealed, which will remove the 5p limit. That is not mentioned in the wording of the draft Bill, but it is unnecessary because of the repeal.

The Chairperson: Are you introducing any limit to replace the 5p limit?

Ms Finnegan: No.

A letter from the Committee, dated 23 May, raised the equality impact assessment, which was described in the explanatory and financial memorandum. That memorandum does not cover economic development, as the consultation took place before equality impact assessments were required. We propose to screen the economic development proposals, and we can do that fairly quickly and insert the results in the explanatory and financial memorandum as an amendment. It is possible that there will be no differential impact, but we must go through the procedure to ascertain that.

The Chairperson: The original question was whether councils had been specifically consulted about the precise terms of clause 6(4). Will the councils be consulted?

Mr McConnell: The Department is trying to enable councils to work beyond the 5p limit, and other relevant issues must be addressed. For the purposes of this exercise, the Department assumes that 23 of the 26 councils want to exercise their economic functions more freely. However, that requires more consultation, because some councils want to do more, and others wish to do less.

Ms Finnegan: The Department will be in a better position to assess that situation when it has examined the councils’ responses.

Mr McConnell: Some councils say that they want more power — perhaps they should have that. However, the prime function is to enact the legislation. If consultation is required on further issues, it is unlikely that the Bill will be passed. The Department is reflecting councils’ need for freedom to go beyond 5p in the pound. However, I will get back to you on the matter.

Ms Finnegan: Page nine asks whether councils retain all proceeds from the disposal of land. Section 59 of the Local Government Act (Northern Ireland) 1972 requires that capital receipts derived from the sale of any asset held by a council be initially offset against the repayment of any borrowings in relation to that asset. If there are no borrowings, or if only part of it needs to be offset against the borrowings, the council must come to the Department for approval to use those capital receipts for another purpose.

Last week, we discussed councils’ vesting powers in relation to economic development. Does the Committee want those powers built into the draft legislation? At present vesting powers are not allowed.

Mr Ford: I raised that point because a councillor asked me whether vesting powers were included. Last week you implied that vesting powers did not exist for the economic development function, even though they do in respect of other functions of the council. Why is that?

Mr McConnell: That will have to be discussed with other Departments, because problems could arise. For instance, a situation may arise in which a council and the Department of Culture, Arts and Leisure wish to vest the same land for development. That will not necessarily be the case, but it will be investigated if the Committee wishes the Department to do so.

Mr Ford: Under the current vesting powers, is a council not required to have departmental approval to vest?

Mr McConnell: I do not suggest that economic development vesting powers are necessarily easy to confer, or that they are similar to other such powers. There are some differences, and departmental officials will explore those and outline them to the Committee later. A Department’s vesting powers for economic development may cut across those of a council, thereby creating difficulties. For example, a big development is proposed in Belfast, for which one Department seeks to acquire land. Belfast City Council may not agree to provide that land; it may want it for another purpose. We need to consider such factors.

If the Committee so wishes, the Department will return to confirm whether vesting powers in respect of economic development can be extended.

Mr Ford: There is potential for conflict between different public bodies, but that does not apply solely to councils’ economic development powers. That is why I suggested that if the Department’s approval is required for a council to vest, in any circumstances, it should negotiate with other Departments. In attempting to extend councils’ economic development powers, it would be illogical not to allow them vesting powers for that purpose, given that they have them for other functions.

Mr McConnell: The Department will report back on that issue. We are not opposed to the councils’ having vesting powers; we simply want to ensure that we make the correct decisions.

Mr A Doherty: The Department should consider that, according to some councillors, there would be significant benefits in including vesting powers in the Bill, as it would enable them to acquire brownfield sites that might not otherwise have been available to them.

Mr Barr: Thank you for giving me the opportunity to discuss the community safety strategy. In my response, I will review the queries that were raised. Under the Justice (Northern Ireland) Bill there are two forms of community safety partnership (CSP): voluntary CSPs, to be established under section 70 of the Bill, and permanent CSPs, which the NIO suggested should be formed under section 71.

Our Bill is concerned only with empowering councils to engage in voluntary CSPs. We must take care not to commit councils to permanent CSPs, which would have to be fully examined and consulted upon separately if, and when, the time is appropriate. The NIO said in its strategy that it did not propose to introduce permanent CSPs until the review of public administration has taken place. It would be wrong of the Department to advise the Committee, or anyone else, to commit district councils to permanent CSPs.

Clause 7(1) of the Local Government (Miscellaneous Provisions) Bill confers on councils the discretionary power to engage in voluntary CSPs. Clause 7(2) is not connected with permanent CSPs; it enables the Assembly to introduce a further dimension to community safety. For example, if provisions in respect of voluntary CSPs do not enable councils to carry out a preferred activity, the Assembly may confer additional powers; hence the use of the term "other" in the Bill. Alternatively, the Assembly may wish to place statutory duties on councils, hence the use of the term "impose". The Department would not impose any duty on councils without the will of the Assembly, and we made that clear in the Bill. It would be by affirmative resolution. It is important to remember that clause 7(2) does not override clause 7(1).

Ms Lewsley: If a council does not voluntarily create a community safety partnership, I assume that it cannot apply for the available funding?

Mr Barr: That is correct; the NIO is clear on that. It would fund the voluntary CSPs under section 70 of the Justice (Northern Ireland) Bill; therefore, a council would have to engage in CSPs to avail of that funding.

Mr Poots: Should not the "permanent" CSPs referred to under section 71 be described as "statutory" partnerships?

Mr Barr: I used the terms "voluntary" and "statutory" in my response in order to distinguish between the two. A further statutory power may be introduced by the NIO or a devolved Administration later.

Mr Poots: In outlining clause 7(1), you referred to voluntary community safety activity. Do you intend to include the word "voluntary" in the Bill?

Mr Barr: I do not think so, because we define clearly what we mean by CSPs in clause 7(4):

Mr Barr: Subsection 2 exists to enable the Assembly to introduce additional community safety powers, which may apply to all councils, if it wishes to do so. Some councils might not enter into voluntary CSPs, but the Assembly may decide that it wants all councils to carry out a certain activity under the community safety strategy. The word "impose" is included because provision is being made in primary legislation that will enable the Assembly to introduce subordinate legislation in the future.

Mr Poots: Does clause 2 refer specifically to section 70 and not to section 71?

Mr Barr: Clause 2 is specific only to section 70 of the Justice (Northern Ireland) Bill.

Mr Poots: The Assembly can choose to impose it; therefore the CSP is not a voluntary function for local authorities.

Mr Barr: If it is the will of the Assembly, it can introduce an additional community safety power. I am not referring to the permanent CSPs, which may follow under section 71.

Mr Poots: That is my concern. You are considering introducing powers to enable the Assembly to impose the "voluntary" CSPs on local authorities, despite the fact that they had not previously volunteered to participate in them.

Mr Barr: We cannot predict what the will of the Assembly will be in a year’s time. Circumstances may change, with the result that the Assembly will wish to introduce an additional community safety power for all councils; hence the creation of the provision. However, that provision will be subject to detailed consultation with all local government interests, including this Committee. It would have to be passed through the Assembly by a process of affirmative resolution.

Mr Poots: I am trying to clarify this: if that provision is included, the voluntary aspect will be removed from section 70, because the Assembly will be able to override local authorities and create statutory obligations.

Mr McConnell: The Assembly can override local authorities in many circumstances; no trickery or deviousness is intended. For example, it was suggested in the NIO’s consultation paper that the community safety exercise and function would be transferred to the Assembly and the Executive. The Department was merely trying to provide for the possibility that the Assembly might wish to take that course; it is not a big issue.

The Chairperson: A more basic question remains. Councils find it difficult to get money for meaningful or urgent functions. I refer you to the Assembly’s debate, which I must consider. We hope to seek the opinion of the Society of Local Authority Chief Executives (SOLACE) because the Bill proposes to duplicate a duty that already exists. Councils will be paying for, and looking after, two groupings whose functions are identical — the community safety partnership and the district policing partnership.

Given that public bodies have to fight to acquire finance for major functions, where is the sense in giving councils £2 million to carry out a duplicate function? Councils are not crying out for duplicated functions; they need £2 million to fund their current functions, which they cannot finance. That point was raised in the House, therefore it must be considered, and I fear that the Assembly will vote against the Bill on that basis. The matter was highlighted by MLAs who are not members of the Environment Committee and by MPs at Westminster. The Department should reconsider the matter with the NIO. No council should have two committees that carry out the same function. Members of this Committee have declared their interests as councillors, so we know how difficult it is to get sufficient officers to carry out work, because they are strapped for finance.

Mr McConnell: There is no problem here, and the change did not happen as a result of the Department’s discussions with the NIO. The Department might not have been accused of being too helpful in the past; however, it will review the matter and come back to the Committee.

The Chairperson: I refer you to the debate in the Assembly.

Mr McConnell: If the Committee and the Assembly believe that the provision should not be included, we will look at it again and report back on the matter.

The Chairperson: The questions that were asked in the Assembly deserve to be answered. It would be remiss of the Committee to ignore Members’ opposition to the provision.

Mr McConnell: The Department was asked to facilitate councils’ ability to adopt a community safety strategy, but it does not want to contradict the will of the Committee or the Assembly. Its aim was simply to facilitate councils. I heard about community safety for the first time on 25 February 2002. The Committee has helped the Department to reach this stage of the process, and it will seek to resolve any difficulties.

The Chairperson: The debate in the Assembly raised matters that I had not considered, but they deserved to be reviewed. I ask the Department to do that before continuing to discuss the matter.

Mr Barr: I believed that the Committee was consulting with the NIO, because it led the initiative.

The Chairperson: It is.

Mr Barr: I assume that the Committee deals directly with the NIO.

The Chairperson: Yes.

Mr McConnell: It is our collective responsibility to enact this legislation in order to allow councils to do what they wish. The Department will return to the Committee on that point.

The Chairperson: Your Department is introducing this Bill, while it is facilitating another. The Committee is aware that the provision was to be contained in the Justice (Northern Ireland) Bill. We gave it a general welcome. However, questions that were asked in a recent debate must be answered.

Mr McConnell: Do those questions revolve around the term "impose" in the Bill?

The Chairperson: No. It is the more general point that councils would be given a duplicate function, which they would be duty bound to service.

Mr Barr: Councils would not be duty bound to service those functions. The Local Government (Miscellaneous Provisions) Bill provides an enabling power to enable councils to enter into community safety partnerships if they so wish. They are not required to do so.

The Chairperson: Yes; however, if they entered into a community safety partnership, they would have to service it.

Mr Barr: The council would become a partner in the CSP. The Northern Ireland Office is providing funding to employ a co-ordinator. That may have been explained to the Committee.

Mr McConnell: Those are issues for the NIO to deal with. The duplication point is not one for the Department to deal with. I mistakenly addressed Mr Poots’s point about the term "impose" and missed the other point. The Department cannot decide whether the duplication of functions should be allowed to exist.

When the Committee discusses the matter with SOLACE, it will say that it was pushing for a general power for councils to enter into CSPs. The Department was merely responding to that request.

The Chairperson: That will be clarified when SOLACE comes before the Committee. The question was raised with that body, because it had not considered the duplication either.

Ms Lewsley: Councils wanted the power to enter into CSPs because money was being set aside for it. The problem is that councils will tap into the money if they can. I agree that there will be duplication. In the end, there could be competition between the two groups, especially as regards funding.

Mr McConnell: The Department is being asked to discuss matters for which it is not responsible. The function was proposed because the district councils lobbied the Secretary of State to be given a general power. The Department responded to allow the councils - [Interruption].

The Chairperson: That is why I ask the Department to discuss the duplication of functions with the NIO. The Committee is not asking you to answer questions.

Mr McConnell: We will raise that with the NIO. However, we would prefer if the NIO came back to the Committee. Is the Chairperson happy with that?

The Chairperson: I am happy with that. You have your own sins to answer for, therefore you should not have to answer for another body’s — is that what you are saying?

Mr McConnell: You may say that — I could not possibly comment.

Ms Lewsley: Can I have clarification? The key issue is that Mr McConnell has been lobbied to introduce legislation. He seems to be saying that he is blinkered; therefore, he cannot consider any other factor. He is not considering the other possible implications of the legislation. Is that not also part of his responsibility?

Mr McConnell: The Department is responding to a request from councils to introduce legislation. It assumes that, before doing so, councils would be aware of the implications of their request. I agree that CSPs would give councils an opportunity to do something good for communities and to acquire funding for that purpose.

As the Committee is aware, councils could engage in community safety strategies today, if they so wished, without this legislation — they could use 0.5p per pound to do so. The Department does not wish to impose a duty on councils in that regard.

The Chairperson: The Committee was lobbied solely by the Department on this matter. Before the proposal came forward, the Deputy Chairperson of the Committee — I am not certain whether it was Ms Lewsley or Ms Hanna at that time — and I received a telephone call about it from the Minister. The provision should have been contained in the Criminal Justice (Northern Ireland) Bill, but it is now being transferred for inclusion in the Local Government (Miscellaneous Provisions) Bill. In principle, the Committee did not object to the proposal, but it was not lobbied by councils to create the power.

Mr McConnell: I hope that SOLACE will convey the view that it gave to the NIO at the outset. The Department is here on account of that recommendation.

Mr Barr: The Department is not being blinkered in its approach; it has considered all the implications. It has been very careful not to commit district councils to any provision that might fall under section 71 of the Criminal Justice (Northern Ireland) Bill. The Local Government (Miscellaneous Provisions) Bill is geared towards considering what must be done under section 70.

The Chairperson: The Committee forwarded further general points to the Department.

Mr McConnell: Dr Power will discuss the proposed formula. First, I remind the Committee that on Wednesday 5 June, the Department is holding a briefing session for Mr Poots and other Members who wish to attend. The issue is difficult to grasp, although Members may have been briefed already.

Dr Power: Does the Committee wish me to discuss the subject now? I am aware that you may have run out of time.

The Chairperson: That is correct; the session has run 15 minutes beyond the time allotted. We will return to the matter at a later date.

Mr McConnell: In any case, the detail of the proposed formula could be explained better in an overall briefing.

The Chairperson: Thank you for attending the session. The Committee will consider carefully the points that the Department has made. Also, in the light of today’s discussion, the Department will have further matters to take into account.

Mr McConnell: Thank you, Chairperson. Our developing relationship will be very positive as regards the passage of the Local Government (Miscellaneous Provisions) Bill. I thank the Committee Clerk and his team.

The Chairperson: We appreciate your presence and the presentation.