Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr A Doherty
Mr Ford
Mr Molloy
Mr McClarty
Mr Poots

Witnesses:

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

The Chairperson, the Deputy Chairperson, Mr McClarty, Mr Molloy and Mr Poots declared an interest.

The Chairperson: I welcome Mr John McConnell, Mr David Barr, Dr Tracy Power and Ms Marie Finnegan from the Department of the Environment. You have been very helpful in our meetings to date, and we appreciate that. We should like you to make an opening statement, after which we shall ask questions.

Mr McConnell: We shall take you through our working draft. I apologise for its lateness; there is much for us to do before we reach this stage in consultation with the draftsman.

Ms Finnegan: Clause 4(4), which we will come to later, has yet to be finalised. The Office of the Legislative Counsel and Local Government Audit Office have been consulted, but we shall have to go back to them. The Minister has not seen the draft, and will not do so until it achieves its final form. Of the Bill’s 11 clauses, four — clauses 2, 4, 6 and 7 — will have to be amended. I shall deal with the first three, and Mr Barr will take clause 7.

I begin with clause 2, which is concerned with subordinate legislation connected with the general grant. We have drafted a new subsection (7). The new subsection makes provision for consultation on the regulations referred to in subsection (6). The wording in 2(7)(b), "such other interested bodies or persons", will allow for consultation with any interested bodies, including the Northern Ireland Public Service Alliance (NIPSA) and other associations or bodies with employee interests. You will be familiar with similar wording used later in the Bill in clause 4. We are also suggesting an amendment to that clause, and we shall come to that in due course. In clause 2, we have removed the words "bodies representative of district councils".

Mr A Doherty: The provision allows the Department to consult "such other interested bodies or persons … as the Department considers appropriate." If a body or person believes that they have an interest and wishes to be consulted, but the Department considers that inappropriate, does the Department have to defend its decision?

Mr McConnell: Yes, we would have to defend our decision. Although I am speculating, I believe that any body that thought that it had a right to be consulted, and which the Department did not consult, would have recourse to the courts.

Mr Ford: NIPSA has previously suggested that the clause should be phrased to include "bodies representative of council staff". Is that wording used anywhere in other legislation?

Mr McConnell: I am not aware of anywhere that it is used. Indeed, part of our difficulty is in using parliamentary language that the draftsman is comfortable with. Mr Ford highlighted that point. The draftsman is comfortable with the language and believes that the terms do not exclude anyone. However, if a body that thought it should be included were excluded, it would still have recourse to the courts. As the provision is quite wide, it is hoped that such recourse would never be needed.

Mr Ford: I hope that we agree that it is preferable that the Department should presume that the interested bodies included bodies representing staff and that nobody should have to go to court over it.

The Chairperson: There appears to have been a very clear statement that that was the intent. Is that correct?

Mr McConnell: Absolutely. We want to be as inclusive as possible.

Mr Ford: If that is the draftsman’s language, and that is your intent, then fair enough.

Ms Finnegan: There is quite a bit of detail in clause 4, which relates to reductions in grant where there has been a failure on the part of a district council. We are proposing substantial changes. There are now seven proposed subsections, where previously there were five. Subsection 4 has not yet been finalised. Further work must be done on that.

Mr McConnell: I shall amplify that. We are trying to reflect what the Committee has asked us to do. It is a matter of getting the wording right, which is not easy. Increased and closer working relationships with the Committee Clerk on such issues, as long as we can reflect the Committee’s wishes, will mean that we will not have to continually bother the Committee members.

Ms Finnegan: The Committee wanted us to address the roles of the local government auditor, the Department and the Assembly: specifically, the auditor’s reporting role, the Department’s recommending role and the Assembly’s approving role.

The Office of the Legislative Counsel (OLC) has highlighted some reservations, but has also suggested a solution. The OLC said that our suggestion might not be constitutionally proper. The OLC explained that the Assembly is a legislative body, not a judicial body or one with an administrative role. The OLC said that the proposal appears to set the Assembly in the role of adjudicating authority as to the amount to be deducted from the grant. The district council involved would then be able to have that decision reconsidered through a judicial review.

The OLC has come up with a possible solution that would involve the Assembly as a legislative body. The solution involves a Statutory Rule subject to approval by the Assembly under normal procedures. The Department would lay before the Assembly a draft Order, together with a document setting out the details, which would include the local government audit report and the Department of the Environment’s proposal for the amount to be deducted. The proposed redraft contains new subsections (2) and (3) to deal with that arrangement.

As you have received the document for the first time this morning, you will want time to consider it.

The Chairperson: We will have that checked by our legal office.

Mr McConnell: That would be appreciated, rather than having toing and froing if a difficulty or problem arises. It is our intention to reflect the wishes of the Committee in the legislation.

Ms Finnegan: The local government auditor’s role is provided for in the proposed subsection (4), which defines "relevant report". Those words are suggested for insertion into subsection (1). Subsection (4) needs to be re-examined in relation to other legislative references to the auditor’s duties. We have given one example, but there may be others, and we need to be sure that we are covering all of them.

Mr Poots: Will that enhance the powers of the local government auditor?

Ms Finnegan: We are saying here that the auditor may have these powers already, and we want to make reference to them.

Mr Poots: You use the word "may".

Ms Finnegan: The work is not finalised. There is more to do on it.

Mr McConnell: That is why we have more work to do. Legally, we must consult again to see if the auditor has those powers. I am sorry for using the term "may", but that is all we can say at the present.

Ms Finnegan: One other point on the proposed change is that we must consider whether we should extend subsection (3) to deal with the case where the Assembly does not agree with the amount proposed by the Department of the Environment. That is not covered in the draft, but was covered at an earlier meeting. We will consider that aspect, also.

In paragraph 4(1)(b), members wanted the word "excessive" related to the circumstances of the council in question. That was raised a few times. The legislative draftsman has examined the wording and has amended it slightly. To explain, the proposed wording of the paragraph has two aspects. First, the word "excessive" is linked to "having regard to the council’s financial resources". The wording relates excessive expenditure to the council’s total budget resources. The draftsman is happy that the wording reflects that.

We consider that the words "other circumstances relevant to the council" are still necessary in this paragraph, as that would address non-adherence to the Department’s statutory directions or non-application of the code of practice on local authority accounts. Two separate matters are being addressed there. You will want to consider that further.

The Chairperson: We will now consider clause 4. Have members any specific points they wish to raise? We need to get clarification on the matter. It would be interesting to see that the local government auditor fulfils his current role, before increasing it.

Mr McConnell: The intention is not to do that, but to ensure that we do not cut across existing legislation.

Mr Poots: I am surprised that there is so little clarity on the matter. Has the local government auditor been exercising some of these powers, or not exercising his existing powers?

Ms Finnegan: This power has been in existence since the Local Government &c. (Northern Ireland) Order 1972. According to our records, it has never been applied. A deduction has never been made from a council in relation to general grant. When we were drafting the Bill we felt that the power should be retained, as there was no reason to scrap it. The Committee looked at the matter from a different angle and felt that the Assembly should have a role, so we have proposed fairly dramatic changes.

Mr Ford: We have received one witness submission questioning which aspect of the general grant might be reduced. There was a query about it being applied to the derating element. My reading of it is that this could still apply to the derating element.

Ms Finnegan: That is correct.

Mr Ford: That may, or may not, be valid. You wish to retain that option, given that some councils will only have the derating element.

Ms Finnegan: All councils are entitled to the derating element.

Mr Ford: Yes, but for some councils it is the only grant.

Ms Finnegan: Yes. I take your point. It is intended that it should apply to all general grants.

Mr Ford: Presumably the "other circumstances relevant" in paragraph 4(1)(b) might include equality and environment, for those of us who are keen on the five Es, rather than the three Es named in paragraph 4(1)(a). A council might wish to substantiate any expenditure on that basis, and could make a case to the Assembly that that was the reason why it had incurred certain expenditure.

Mr McConnell: Paragraph 4(1)(b) is wide enough to cover that. It does not prohibit councils from making cases. There are soft cases and hard cases, and the soft issues must be taken into account along with the hard issues. That will be for the Assembly to determine.

Mr Molloy: Over the years, some councils have not maintained small sections of road or pavement. Will that infrastructure and neglect be covered under clause 4? The Department of the Environment does not have that responsibility.

Ms Finnegan: I do not think that it will. The local government auditor would not pick that up.

Mr McConnell: None of these intentions would interfere with any existing powers, or lack of powers, that councils have. The primary legislation would cover that.

Mr Molloy: Other circumstances relevant to the council could justify it in making a payment.

Mr McConnell: The justification that councils would seek to make could only be made on the basis of something that the council had the power to do.

Ms Finnegan: If the auditor detected that councils had spent money on something for which they did not have authority, then that could be looked at and applied. Every case would have to be looked at on its merits.

The Chairperson: We may have to seek clarification from the auditor when we have the final copy of the Bill.

We will move on to the next clause.

Ms Finnegan: Clause 6 relates to economic development powers. In our proposed amendment, there are three new subsections — (3), (5) and (6).

Subsection (3) gives district councils vesting powers in relation to economic development activity. The wording we have used is "acquire it otherwise than by agreement". That is the standard wording for such a provision.

Subsection (5) makes it clear that district councils must follow any guidance relating to economic development issued by the Department of Enterprise, Trade and Investment (DETI). Subsection (6) is linked with subsection (5), and makes provision for DETI to issue such guidance following consultation with district councils.

Mr McConnell: To clarify that point, the wording is "shall have regard to any guidance".

Ms Finnegan: DETI has seen the wording of this draft and has this morning confirmed that it is content with it.

The Chairperson: What does "shall have regard" mean?

Mr McConnell: It means that they should take the guidance into account and be able to demonstrate that they have done so.

The Chairperson: There is no mention of the 5p in that clause.

Ms Finnegan: The 5p is automatically removed by the repeals at the end of the Bill.

The Chairperson: I just wanted to clarify that, and also that subsection (3) referred to vesting under the name of "the power to acquire land".

Ms Finnegan: Yes.

The Chairperson: Do Members have any comments to make on the proposed amendment of clause 6?

Mr Poots: From subsections (5) and (6) it is evident that, should a council wish to go down a certain route and DETI disagrees, the council would be obliged to take the Department’s advice. Is that correct?

Ms Finnegan: That is correct. The council would have to adhere to the Department’s guidelines.

The Chairperson: If, for example, a council had entered into consultation, and felt that the Department had ignored its recommendations, could the council take the Department to court?

Mr McConnell: I do not have the answer to that. We have not examined that possibility.

The Chairperson: Can we find that out? If a council reaches a unanimous decision to do something about economic development, but is advised by the Department to follow its advice, surely it is entitled to some recourse if it feels that the direction of the Department is wrong for its area?

Ms Finnegan: It is not much different from the present arrangements. Councils have to come to the Department of the Environment for project approval. We ask the Department of Enterprise, Trade and Investment for its advice, so that there is no overlap with the activities of LEDU, or of the new agency, Invest Northern Ireland.

The Chairperson: In planning, however, as you know, Planning Service goes to the Department of the Environment, which goes to the Department for Regional Development for advice on roads matters, for example. But the buck stops with the Department of the Environment. It can overrule the advice of the Department for Regional Development, and can give planning permission after it has taken the advice of the relevant Department. What happens in that instance? Your Department takes the advice of the Department of Enterprise, Trade and Investment.

Mr McConnell: It is a cumbersome matter. The Department of the Environment has no expertise in this field. We have no option but to consult with those that we regard as the experts. We have no expert knowledge to say that they are wrong. That is the situation at present. We will, however, get back to you on the point that you made.

The Chairperson: Equally, it could be said that you have no expert knowledge about roads. The Department for Regional Development and Roads Service could decide that a planning application was not acceptable. In the past, the final say on planning applications has been with the Department of the Environment, which has said that, although it has taken advice, it has still granted applications.

Mr McConnell: I understand what you are saying. I am not sure that we are talking about the same thing. We will certainly consider that point.

Ms Finnegan: The Department of Enterprise, Trade and Investment is clear about non-statutory guidelines. It would not class these provisions as statutory guidelines.

Mr Poots: Will this legislation provide cover for councillors? We could be talking about substantial amounts of money being involved in funding economic development. Could a council take decisions that, in hindsight, were not in the community’s best interest? If that were so, the council would be squandering money. That has been the case in the past, and in cases where the Department of Enterprise, Trade and Investment has been consulted. Will this legislation remove the responsibilities from councillors per se and take away the possibility of them being surcharged for making such decisions?

Ms Finnegan: I do not think so. Economic development is a council function, and the acquisition of land or buildings is part of that. It would be for councils to decide how much to spend on that function within their overall budgets.

Mr McConnell: If a council were considering economic development and took advice from the Department of Enterprise, Trade and Investment, which said that the council was going about it in the wrong way, and the council proceeded in spite of the advice given, then its defence would be minimised. That would be the case in any circumstances where advice is taken and the choice is then made to ignore that advice.

It has always been an issue in Planning Service as to where responsibility would lie if advice from Roads Service, for instance, were ignored, planning permission were granted, and an accident took place. It has not happened yet. However, it is a possibility.

Mr Barr: I would like to begin with the broader issues about community safety partnerships that are concerning the Committee. I have contacted the Northern Ireland Office and relayed the message given to us last week by the Committee. I can confirm that a comprehensive response will be sent to the Committee as early as possible. The NIO may accept the Committee’s invitation to give evidence if the Committee feels it necessary. I have been asked to relay that to the Committee.

The Chairperson: The Committee has contacted the NIO, but its letter to us has not arrived yet. We wanted to talk to the officials eyeball-to-eyeball on this issue. However, they want to communicate by letter first, and the Committee has no problem with that. It would be helpful for the Committee to see what recognition they have taken of its concerns. Thank you for the part you have played.

Mr Barr: Turning to clause 7, and leaving that issue aside, the only amendment we are suggesting is at paragraph 7(1)(d). We are suggesting the addition of the words "(whether financially or otherwise)". Those words should be inserted, because some councils have suggested that the paragraph was not explicit enough to enable them to spend money, if they wished to do so, within their community safety partnerships. We are happy to add the words, and we are happy that councils will be satisfied with that.

We gave careful consideration to other matters that were discussed by councils, such as giving them the power to take the lead in community safety partnerships (CSPs), and to determine the membership of CSPs. We felt that that would be outside the remit of the Department of the Environment, particularly as the NIO strategy, which is currently being determined, will examine the membership and role of CSPs. It would be wrong for us to suggest that we give councils those powers in the context of the Bill. There is nothing to stop councils from taking the lead if that is the wish of a local CSP. One suspects that that will probably be the case, given councils’ representative role for local areas.

The NIO would probably like councils to take the lead role in CSPs, because of their expertise and knowledge of local areas. The NIO will be making resources available for the establishment of CSPs, and it has written to councils to explain that they will be funded if they decide to take the lead in a CSP. The Department felt that it would be inappropriate to give that specific power to councils in the Bill. We would prefer councils to go down the route of deciding themselves if they want to engage in CSPs and making their own case within those CSPs as to whether they want to take the lead role. The membership of a CSP should not be for any one member organisation to determine. That is why we feel that councils should not seek to take on that task.

Another issue that has been raised by the councils is the desire to undertake community safety outside of CSPs. We have explained on other occasions that section 115 of the Local Government Act 1972 enables councils to engage in community safety in its broadest terms, because that could be considered as looking after the well-being of local people. Section 115 is financially restricted to them, but there are some powers for them to engage in community safety if they wish.

When the Executive considered the initial policy paper and draft Bill, they thought that it would be wrong to give councils a wider power for community safety, at least until the community safety programme was bedded in. That is why we have included, under subsection 7(2), the power for the Department to "confer or impose on district councils" any functions aimed at enhancing community safety in their districts.

That will enable the Committee and district councils to be involved in consultation, and it will enable the Assembly to decide if councils should be given a broader power to engage in community safety. Hence, we have not extended to councils the power to undertake community safety outside of CSPs.

Those are the key areas that were raised by district councils. We are suggesting that there should be only one amendment proposed under this clause.

The Chairperson: First, the NIO has to deal with the central part, and then everything else will fall into place. The Committee needs to hear what the NIO says before we comment. However, that in no way detracts from anything that Mr Barr has said. It is genuinely to try to see where the Committee should go on the matter, because the wording will fall into place thereafter.

Mr Ford: You have made no response to the Society of Local Authority Chief Executives (SOLACE) point on emergency planning powers. Is that omission or commission?

Mr McConnell: There has been no consultation on emergency planning. We attend meetings on emergency planning, which are chaired by a member of SOLACE, and there is non-statutory work going on on emergency planning. However, it is my view — with a great deal of evidence to support me — that there is no concerted view in councils as to whether they should take on emergency planning.

As you know, SOLACE represents officers, and at the last meeting of the local government emergency management group (LGEM) that I attended, I asked each whether the chief executives had been requested to put emergency planning issues before their councils. I am waiting for a reply, because I do not think that that request has been made. Some councils favour considering emergency planning issues; others do not. The eastern group recently held a meeting at which the Department of the Environment assisted, and it was clear from that that several councillors were opposed to the idea.

Ms Lewsley, Mr Poots and Mr Ford said that this is an additional cost for councils. We are not sure if SOLACE speaks on behalf of elected members, and once we are clear on that, we will take its views and move into a consultative process in which the Committee will be involved. The Minister, Dermot Nesbitt, is aware of that situation.

The Chairperson: Perhaps we could write to individual councillors about that and request that chief executives put the matter before councils to get their opinions. As you know, elected members are an important part of councils.

Mr McConnell: You smiled when you said that, but in fact, all elected members have a mandate, which we in the Department of the Environment do not have. I take that seriously, and that is why I raised the issue at LGEM. Perhaps the Committee will consider asking SOLACE whether it represents councils’ views. However, that is a matter for the Committee.

Mr Poots: Emergency planning is in the remit of the Office of the First Minister and the Deputy First Minister; it is not a matter for the Department of the Environment. It is a function of chief executives to oversee emergency planning in their districts. Some members referred to putting something on paper to ensure that chief executives have more authority than at present to prepare for emergency planning. God forbid that something should happen, but if it did, the chief executive of the local council is the principal responsible officer.

Mr McConnell: In 1979, the Development Office co-ordinated emergency services in councils, and when that service was discontinued, chief executives became responsible. However, that duty was not given to councils, and you are right: chief executives are concerned about spending money, because councils do not cover that expenditure.

Section 115 of the Local Government Act 1972 covers that point. It states that councils can spend money on whatever they like. Although the First Minister and the Deputy First Minister may ultimately become responsible, the Department of the Environment would have to enact that power so that councils could operate it.

Mr Poots: I know.

Mr McConnell: However, the Department of the Environment is willing to do that.

The Chairperson: Councils want emergency planning included because it gives them that cover. That is why they have raised it under the auspices of SOLACE, rather than as councils.

Mr McConnell: That is right, and Mr Barr attended a meeting in Castlereagh at which it was clear that some councillors either did not want to take it on, or wanted to consider it further. That is why consultation in this area is necessary. I have some experience in this. For example, following the Omagh bomb, the chief executive of the council was seen to be in charge. Councillors came to him and asked what was happening and said that they wanted to be seen to be doing something. It was exactly the same in Castlereagh when the forensics laboratory was blown up; the council took the lead, and there was no question of looking round to see who else was taking the lead.

You may be interested to know that councils spent money for which they were not fully accountable. In both instances, money that had been spent on matters that were not the councils’ responsibility was refunded to them. We are already working on a protocol to guide councils, should they spend money, in the event of an emergency, that is not properly their responsibility.

The Chairperson: It is important to clarify that.

Ms Finnegan: As a result of the redraft, we must make changes to the explanatory and financial memorandum.

Mr McConnell: May I take this opportunity to thank the Committee? The Bill has improved because of the consultation and the scrutiny. I do not wish to impinge on the Committee’s responsibilities, but our timetable seeks to have the Bill in place in time to apply the new formula next year. We are in your hands.

The Chairperson: We shall endeavour to assist. Thank you very much.