Members present:

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

Witnesses:

Ms H Anderson ) Department of the
Ms A Hall ) Environment

The Chairperson: You are very welcome, Ms Helen Anderson and Ms Ann Hall, to the Environment Committee.

Ms Anderson: I apologise for the background notes being late, but as we work through them some of the detail will be ironed out.

The Committee will be familiar with the background to the proposed Local Air Quality Management Bill. By way of recap, the Bill is required to enable implementation of an EC Directive on ambient air quality assessment and management. It will also satisfy the Programme for Government and the Investing for Health commitment to have in place, by May 2003, a policy on legislative framework to deliver Northern Ireland’s contribution to the targets in the UK air quality strategy.

I will work through the Bill clause by clause and will stop if members have any comments or questions.

Clause 1 states that the Bill contains provisions for implementation of the EC Directive.

Clause 2 requires the Department to prepare and publish a statement or strategy document setting out the air quality strategy for Northern Ireland. The strategy should contain policies for the assessment and management of air quality, which have been formulated to prevent or mitigate the effects of pollution. The strategy should also set out the European framework within which it must work and include standards and objectives for specific pollutants and a timetable for the achievement of those. It should also set out the steps and measures that Government are proposing to take. The strategy may be a joint one with other administrations or a Northern Ireland regional one.

In response to the consultation document, the Royal Town Planning Institute suggested that there should be joint responsibility between Departments to draw up an air quality strategy. However, responsibility has been placed on the Department of the Environment as the one best placed with regard to technical and policy expertise. It will involve other relevant Departments in the preparation of an air quality strategy. Subsection (7) requires the Department to consult relevant authorities when preparing or modifying the strategy to include Government Departments.

The Chairperson: You say that the Department of the Environment should be the relevant Department, and the Royal Town Planning Institute suggested that a composite number of Departments should draw up the strategy. As the lead Department, will you take on board what the other Departments say and reflect that in the strategy? It is to be hoped that the Department of the Environment will not go off on its own and say "We hear you, but we are the final arbitrator".

Ms Anderson: That will not be the case, because the strategy must identify measures that Government will take. Those measures would be taken by Northern Ireland Departments as a corporate body, as opposed to just the Department of the Environment. There would be no question of the Department of the Environment overriding other Departments in that respect.

The Chairperson: If members want to ask a question, please do. In your summary you did not touch on the point in clause 2(1): "The Department shall as soon as possible prepare". How long is a piece of string?

Ms Anderson: A strategy is already in place. Northern Ireland is currently signed up to the air quality strategy for England, Scotland, Wales and Northern Ireland.

The Chairperson: So, how long is "as soon as possible"?

Ms Anderson: A decision will be made as to whether those words should be deleted from the Bill because the Department is already involved in a strategy; it is not futuristic. We signed up to a strategy in 1997 and it is reviewed continuously, so those words are somewhat misleading.

The Chairperson: Are you already in consultation with the other Departments? Do they know that this strategy has already been drawn up, and have they been given a copy?

Ms Anderson: Other Departments have been involved in the discussions on the strategy. Departments have been involved in discussions on introducing the Bill and putting the requirement for this strategy in statute. An agreement has been signed up to, but it does not have a statutory remit in Northern Ireland.

Mr A Doherty: The Bill has considerable implications for local authorities, and puts a certain responsibility on local authorities. Will the consultation include local authorities from the beginning?

Ms Anderson: The Department will engage in discussions with district councils over the summer. The Department will invite them to workshop sessions to explain the importance of the Bill and to take on board their views. There is also subordinate legislation and a set of Regulations that prescribe who the relevant authorities are. Other Departments and public bodies that we would view as stakeholders in the Bill are likely to be involved in the discussions.

The Chairperson: Will the Committee receive copies of any comments that district councils make?

Ms Anderson: When we take on board the comments from those various stakeholders, we intend to share a synopsis of the outcomes with you.

Clause 3 places a responsibility on a district council to carry out a review of the air quality, and the likely future air quality, within its area. Where a review has been carried out, an assessment should be made of whether the air quality standards and objectives are being achieved within a specified period. A district council will then be required to identify particular parts within its area where the standards are not likely to be achieved.

Mr Poots: How does that differ from the current situation in district councils?

Ms Anderson: District councils are engaged in a voluntary system; they conduct reviews and assessments, but there is no legal obligation on them. Clause 3 places a legal obligation on them to do what they are currently doing voluntarily. The last sentence indicates that the district council will then be required to identify particular parts, within its area, where the standards are not likely to be achieved. District councils are engaged in that part of the process, but have not yet reached the standard.

The Chairperson: Does each district council have the staff expertise to fulfil this Regulation?

Ms Anderson: As the Committee is already aware, all district councils are voluntarily engaged in undertaking these duties. In doing that, the staff have improved their skills. They have the baseline knowledge through their environmental health departments, which gives them the general expertise. That expertise has been built on, with the Department of the Environment funding training sessions and providing a freephone helpline number so that information is available to them. In addition, environmental health departments are in a grouping system, and the group officers have identified specialist pollution officers who have been assisting them. There is a good support mechanism, and to date district councils appear to be coping well.

The Chairperson: In clause 3, what does "shall from time to time cause a review" mean?

Ms Anderson: The intention is that subordinate legislation would prescribe what that relevant time would be. It could either be contained in guidance material, which would not have a statutory remit but which would simply make a recommendation about how frequently this would be, or it would be placed in the Regulations, which would specify a time period.

The Chairperson: We will review your answers to see if any other problems or questions need to be posed.

Ms Anderson: I appreciate that. It is useful for both of us to have this general overview.

The Chairperson: Twenty-four councils have taken up funding. Do the councils that have not taken up funding have the expertise?

Ms Anderson: The funding has been used mainly for capital works such as purchasing equipment. It has also been used to undertake specific studies such as fuel-use surveys. The technical know-how tends to reside with district councils, and the Department is supporting that through freephone information and in-house training.

The Chairperson: There must be a reason why councils have not taken up what could be regarded as important funding. If money is being used to buy equipment, surely councils would want to have it. Will you let the Committee know why two councils are not taking up the funding?

Ms Anderson: Yes.

Clause 4 refers to the designation of air quality management areas. It provides that where a district council carries out a review of air quality and finds that in a certain part of its area, air quality standards and objectives are not being met, or are unlikely to be met within the time period, it must make an Order designating that part of its area as an air quality management area. The district council is required to publish the Order. An Order may also be varied or revoked by a subsequent Order.

The Human Rights Commission, in reply to the consultation document, suggested that there should be more emphasis on informing the public and making information more easily available. Subsection (3) of the clause addresses the issue by requiring a district council to publish a notice of an Order and advise the public where a copy may be inspected free of charge.

The Chairperson: We have received a copy of the letter from the Northern Ireland Human Rights Commission. Members may wish to refer to it when considering the issue.

Ms Anderson: Several clauses, which we will come to as we work our way through the Bill, respond to the same concern.

Mr Poots: What will happen in an area that is designated?

Ms Anderson: Subsequent clauses indicate that the council and the relevant authorities have to develop an action plan that will detail actions that each body proposes to take to reduce pollution in that area to the acceptable standard.

Mr Poots: Will the relevant authorities include the Department of the Environment?

Ms Anderson: The relevant authorities will be specified by the Regulations, which will be subject to consultation. However, we propose that it would include bodies such as the Department of the Environment, the Department for Regional Development, in relation to Roads Service, and the Northern Ireland Housing Executive. The Regulations will be subject to consultation over the summer.

Mr M Murphy: Did the Human Rights Commission raise any queries about that?

Ms Anderson: The Human Rights Commission made the general point that it would like the Bill to include provision to increase public awareness to ensure that people are aware of the air quality in their area and what actions are being taken. We have included in the Bill, under various clauses and schedules, additional provisions that respond to that concern.

Mr Lewsley: Dunmurry had the highest level of pollution of any village in Northern Ireland, and Lisburn Borough Council put air quality controls in place. The problem is partly due to the fact that some of the area is not a smokeless zone. When you spoke about relevant bodies and action plans, what timescales are involved? Technically, the smokeless zone issue would be the responsibility of the Housing Executive.

Ms Anderson: You are referring to pollution being generated by domestic fires, some of which are in privately owned houses and others that are in Housing Executive homes. There will be a set of Regulations made under the Bill that will identify various pollutants by name and will give a time frame within which the levels of pollution must be reduced. The statutory time frame will come from those Regulations.

The second part of your question relates to the Housing Executive, which has its own timetable for the fuel-switching process. The Bill works on the basis that it encourages the formation and continued operation of a partnership approach. In those circumstances, the district council would conduct its review and assessment and identify that home fire pollutants need to be reduced. The Housing Executive will then consider, with the district council, the level of reduction required and the time frame required for compliance under the Regulations, and the Housing Executive’s proposals for that period.

That partnership approach between the Housing Executive and the district council will mean that a satisfactory resolution can be reached. Where that is not possible, the matter would be referred to the Department of the Environment for arbitration. These other Regulations are not in place yet, but a hypothetical situation might arise where the Housing Executive proposes that implementation will take longer than the district council deems acceptable. The Department of the Environment will take on board the views of the Department for Social Development, as that Department funds the Housing Executive. The two relevant Ministers will consider that matter. If resolution were not achieved between the Ministers, the matter would be passed up to the Executive for determination. The ruling line of the Executive over the debate between Ministers is not contained in the legislation per se, but that is the framework in which this would operate.

The Department of the Environment’s intention is to draw up a draft protocol over the summer for Departments and the Executive, which would outline that arrangement, and pass it round them for consideration.

Ms Lewsley: If the Regulation is not implemented in the required timescale, who enforces it? Is there a penalty and to whom does that penalty refer?

Ms Anderson: The legislation does not impose a penalty, but seeks to put the mechanism in place. The means of ensuring that actions are taken is by direction and the legislation has retained a power of direction on the part of the Department of the Environment. The Department can only direct district councils, as it would not be in a position to direct other Departments. That would have to be resolved as a simple Government matter.

Mr A Doherty: Is there either a maximum or, more importantly, a minimum size for a designated area? I am thinking specifically of areas in a town or where there is serious traffic congestion. I can envisage a great increase in demand for ring roads and bypasses.

Ms Anderson: There is no minimum size as such, but the district council and the relevant authorities would have to be confident that any area to be designated is large enough to ensure that remedial measures will reduce pollution significantly. A designed area can be just a couple of streets, it does not need to be half a district council area.

The Chairperson: We will carry on with the next clause.

Ms Anderson: Clause 5 sets out the steps the district council must take after it has made a designation Order. We have discussed some of this already. Within a 12-month period, as specified in the Regulations, a district council must supplement the information it has on the designated area by carrying out an assessment. The councils are currently doing that voluntarily.

The assessment of air quality should cover the present and the likely future air quality standards or objectives and whether they are being or are not likely to be achieved. The district council will then be required to prepare a report of the findings of the assessment.

Several respondents raised issues in relation to clause 5, such as the road transportation unit of the Department for Regional Development, which raised concerns that it would receive early warning of the need for an action plan. Clause 5, subsections (2) and (3), require district councils to send papers to relevant authorities. That will be subject to Regulation, but it is likely that that will include the Department for Regional Development.

Copies of specific papers, such as Orders declaring a designated area, assessment results and reports, together with paragraph 2 of schedule 1, which provides for the exchange of information between district councils and relevant authorities, would be expected to highlight early warnings of possible action required by each party.

Another respondent, the Northern Ireland Local Government Association, stated that it would be essential for public bodies to be required to fulfil their responsibilities for improving air quality. Subsection (4) requires relevant authorities, which may include Departments but will be determined by Regulation, to submit proposals for the action plan to district councils.

Subsection (8) provides the Department with the role of arbitrator, should there be a dispute between district councils and Departments as to the content of an action plan. District councils suggested the policing role in response to the consultation document. In its letter of 16 May, the Committee for the Environment referred to disagreements between district councils and Government Departments. That aspect is covered in the Department of the Environment’s reply of 13 June, a copy of which is in members’ information folders. Clause 5(8) specifically refers to that issue, providing that the Department of the Environment will arbitrate. However, where the arbitration involves two or more Departments, Ministers will be involved in discussions, as will, ultimately, the Executive.

The Chairperson: After arbitration, the Committee considered what action would be taken against a council that failed to act or a Department that failed to carry out its departmental duty. The Committee responded to that in a letter. The Department of the Environment replied that

The Chairperson: With the greatest respect, you have to say that smilingly. When would one have the confidence to say that a Department "will" and that a council "shall" comply? Quite often, Departments are the offending bodies, yet there is nothing definite in the legislation to do anything about that.

Ms Anderson: In addition to the Bill, the Air Quality Limit Value Regulations (Northern Ireland) 2002, which came before the Committee several months ago and are now law, place a statutory duty on Northern Ireland Departments to achieve the European air quality limit values for a range of pollutants.

The Chairperson: To reinforce what is supposed to be included in the other Bill, would it not be beneficial to apply the statutory duty in this Bill to Departments?

Ms Anderson: This Bill places a statutory duty on district councils to undertake their duties, be they a review, an assessment or the declaration of an area. Councils will also be required to produce actions for inclusion in the action plan in pursuit of — not in compliance with — achievement of the air quality standards.

There is no provision in the Bill to take action against a district council that fails to achieve the air quality standards or objectives set down in statute. There is no provision on any party — central or local government — in relation to that. However, there is an onus on the relevant authorities to undertake the duties as laid down in statute. Subsequent Regulations will specify who those bodies are but it is likely, subject to consultation, that they will include the Department of the Environment, the Department for Regional Development, the Department for Social Development and the Northern Ireland Housing Executive. It is intended that those bodies will be required by statute to do certain tasks. If they fail to fulfil their obligations, the Bill does not go so far as to declare them guilty of an offence. They will be deemed to have committed an unlawful act or omitted to do an action which they ought to have done. There will be an obligation, but not a statutory obligation, on them.

However, those authorities will get caught under the limit value Regulations. The Northern Ireland Departments are responsible for delivery of the European Commission limit value Regulations for pollutants. If Northern Ireland fails to achieve the European standards, the Commission will take action against the Executive in the form of fines and penalties. Therefore the Bill does not contain a statutory provision, but there is an onus on the Department to comply because another set of Regulations places the duty firmly at its feet.

Mr A Doherty: I made this point to the Minister in the Chamber this week when the Second Stage of the Bill was presented. A council may carry out all that is required of it in clauses 3, 4 and 5 — designate areas, prepare and put in its final action plan — but if the Department is not satisfied, it may turn the entire thing on its head. There is no provision for a council to have the right to argue its case or a right to appeal the Department’s decision. If the Department is not satisfied with what the council has done, it can make a determination with which the council must comply. The Minister did not come back to me on that point, but I hope that there will be some answer to it.

Ms Anderson: The Department will respond to you in writing. The statute is framed as it is because of the onus that is placed on Departments under the limit value Regulations and by the European Commission. It is the responsibility of the Northern Ireland Departments, particularly the Department of the Environment, to ensure delivery of air quality improvements. Therefore the Department of the Environment and the other Departments will be held responsible by the European Commission, but the Department of the Environment is the final arbitrator. The Committee appears to be concerned about the lack of appeal and statutory duty on Departments, but the Department of the Environment will consider that.

Mr A Doherty: Arbitration implies give and take, but there does not seem to be any give and take in this instance.

Mr Armstrong: Is the Department held responsible if any one person does not comply with the Regulations? Is it correct that the onus does not fall below the top rung of the ladder?

Ms Anderson: With regard to the European Commission actions, yes.

Mr Armstrong: Therefore any financial penalty is imposed on the top rung of the ladder.

Ms Anderson: The only offence decided by the Bill is when an individual or body fails to allow access to premises or information. Powers of entry offences are created there. It is not an offence to fail to achieve the air quality standards.

Mr Armstrong: So the standards are for advice purposes?

Ms Anderson: The responsibility on district councils is in the operation of the mechanism — doing the reviews and assessments, declaring the area, and putting together the action plan in conjunction with other parties. The Department would have to specifically direct a district council to put in place a smoke control area. The measures that might tumble out of the Bill could be traffic reduction, which will ultimately fall to Roads Service in the Department for Regional Development, smoke control provisions, which would fall to the Housing Executive and to district councils, because district councils operate smoke control areas, the provision of grants, and so on. Really, the only measure likely to fall within the district council’s gift is smoke control, and they are grant-aided by the Department of the Environment for that.

I appreciate that there is much to get through. We will probably be back with the Committee on several occasions. I appreciate you trying to stay with us on it.

The Chairperson: I would like you to keep going through this overview document. If you could continue to give us the overview, then we can ask specific questions.

Ms Anderson: Clause 6 refers to reserve powers that the Department has retained. This clause confers on the Department the power to exercise any of the air quality functions that should be undertaken by a district council. It also gives the power to the Department to recoup the costs of any exercise undertaken on a district council’s behalf. The Department also has the power to give direction to a district council, requiring it to carry out a specific action in relation to air quality. This clause also provides the power to the Department to give direction to a district council in order to implement aspects of European Union Treaties or any international agreement relating to the quality of air. A requirement is placed on the Department to publish any directions given, and to make copies available to the public. A district council must comply with any such direction given to it.

The Environment Committee enquired about the role of the Department in implementing this legislation, and we have responded to you at length on that. In particular, clause 6 (1) enables the Department to recoup reasonable costs for review and assessment work carried out on behalf of a district council. Clause 6(3) allows the Department to issue directions to district councils and clause 6(6) requires the Department to publish a notice of the direction.

This clause also covers the query from the Committee as to what action could be taken against a district council that fails to carry out its statutory duty. In addition, the Human Rights Commission, in its reply, suggested that there should be more emphasise on informing the public and making information more readily available. Clause 6(6) requires the Department to publish any direction it has given to the district council, therefore assisting in that respect.

Clause 7 lists, at great length, the Regulations that the Department would be able to make under this Bill. It provides the Department with the power to make Regulations to implement the air quality strategy, and to implement UK obligations under the European Union Treaties or other international obligations, or to make more detailed provision for the assessment or management of air quality. The Committee asked what levels of fines were proposed under the Bill, and we covered this at length in our response. I would direct you to that for information.

Generally, the only Regulations that the Department is proposing to make under the Bill at this time are Regulations that will specify who the relevant authorities are, and Regulations that set down the limit values for the range of pollutants. These are required to make the Bill work. We have no intention to issue any other Regulations at this time. You will also see in the list that it allows us the power to make Regulations in relation to a whole host of things.

The Bill puts in place a framework that will require the identification of our pollution problems; for example, which pollutants are concerned and where they occur geographically. The Department will then work with various stakeholders to consider what Regulations are required to remedy these problems. Regulations will be brought forward on a need basis, and will be subject to consultation.

Clause 8 provides the power to a relevant authority to make recommendations to a district council in respect of any of its air quality functions. A power is also given to the Department to issue guidance to a district council or a relevant authority concerning a district council’s or a relevant authority’s functions under the Act.

The Committee raised related issues in recent correspondence and asked for a copy of the guidance. We have given you the website address for the current guidance, and we will share with you the revised guidance when it becomes available. You also sought clarification of the meaning of councils being required to "have regard to recommendations made by the Department". This means that district councils will be required to take into account such recommendations, but they will not be legally obliged to adhere to them. It is standard legislative phraseology, and its interpretation does not appear to have caused significant problems. You might want to consider that response, and whether you wish to pursue that any further.

Clause 9 basically applies the provisions of schedule 1. We will deal with schedule 1 later, so there is nothing to look at in the clause itself.

We have already discussed this at some length. Clause 10 provides powers to the Department to make grants or loans — currently we are making grants — to any body or person carrying out work in relation to reviews, assessment, the drawing up of action plans, and the management of air quality. The Department will determine the amounts paid, and the terms and conditions for any payments or repayments.

A number of district councils, and also the Northern Ireland Local Government Association (NILGA) and the Chief Environmental Health Officers Group, are listed as having raised the issue of funding and the request for funding. We have given you a lengthy response to this, which basically says that moneys will be provided subject to budget outcomes. I anticipate that you will want to discuss this.

The Chairperson: The answer is certainly not a detailed one, and there are a lot of holes in it. We will certainly want to come back to this because it certainly does not satisfy anybody.

Ms Anderson: Clause 11 provides that an authorised person may exercise certain powers, which are specifically outlined in the legislation. In its reply to the consultation document the Human Rights Commission expressed an interest, and we have copied these to the Human Rights Commission. We are waiting for a response from them.

Basically, the powers of entry contained in this legislation are identical to those in a host of similar legislative instruments. If we need to, we can debate that.

Clause 12 deals with offences by a person who obstructs an authorised officer in the exercise of his duties. It also states that it is an offence for a person, without reasonable excuse, to fail to comply with any requirement imposed under clause 11. Clause 11 is about powers of entry and permission to take samples, and so on. The current maximum fine is £5,000, which is standard level 5 on the current standard scale.

Clause 13 sets out the arrangements for disclosing information obtained under the provisions of this Act. Again, they are very similar to those in other legislation.

Clause 14 provides for Regulations to be made to modify provisions of this Act to enable the UK to give effect to Community obligations or international agreements.

The Chairperson: I would not want to stop you in your flight.

Ms Anderson: I appreciate the time constraint we are under, and that you have other Bills.

Clause 15 applies, with the omission of certain words, the provisions of sections of the Interpretation Act (Northern Ireland) 1954 relating to offences by a body corporate.

Clause 16 provides that where an offence is due to the fault of another, that other person can be held liable.

We have touched on clause 17 before, and you have voiced concerns in relation to the application of the Crown. This is the standard provision in relation to that, but we note your concerns.

Clause 18 specifies those Regulations made under this Act which are subject to affirmative resolution, and those which are subject to negative resolution. The affirmative ones are those which put fines in place; they would be presented to a session of the Assembly. The content is in the Bill itself. It also outlines the requirements of a direction given by the Department in relation to community obligations. There are specifics in relation to that.

Clause 19 defines various words used in the Act. The definition of "air" came up in the Assembly at Second Reading. In case any of you are wondering, I did not dream that up. The given definition of "air" might not be the definition that the man on the street would use, but it is the definition used in the Directive. To ensure effective and clear transposition of the Directive, we are legally advised to use their definition.

Clause 20 gives the short title, although it is not very short.

Schedule 1 sets out the detailed procedural instructions relating to consultation requirements — who has to be consulted, how it must be done, the exchange of information, the joint exercise of district council functions, public access to information, and fixed penalty notices. The Committee for Nature Conservation referred to the need to ensure that there was an exchange of information between district councils and the Department. The schedule contains a paragraph relating to that exchange of information — it provides between whom that exchange must be conducted, and what it must entail.

In the consultation, the Transport Division of Department for Regional Development also referred to the possible need for new traffic Regulations, and that is covered. There is an amendment to their Road Traffic Regulation Order, which gives them the power to produce subordinate legislation that could limit, either in total or in part, the vehicles that could gain access to an area. That would be a potential measure where traffic was a problem.

The Environment Committee also referred to the need for an exchange of information, and we have provided you with a detailed response. The reply from the Human Rights’ Commission suggested that there should be more information on informing the public. The part of the schedule that deals with that has been sent back to them, and we are awaiting comments from them.

The purpose of schedule 2 is to set out detailed procedural instructions for the use of warrants;, the obtaining of information that may be admissible in evidence; the securing of premises if you had to gain entry without the consent of the owner; and compensation — all of which relate to powers of entry. These are standard across other pieces of legislation, and we will debate those with you at greater length at some other time.

The last page of my summary highlights several other pertinent issues which did not really fit in under a particular clause. You will see how the queries raised by the respondents have been dealt with in the copies of our replies to them. I would also point out that I just have noticed that this is not actually the final draft. There are some other comments, and I will provide the amended version to the Committee Clerk. There is not much additional material in it, but it might just give you more clarity. There is nothing in it that would alter anything that we have discussed today. Thank you for staying with us on that gallop through the Bill.

The Chairperson: That was a sterling performance, so thank you very much indeed. It has been helpful, and it has been good for us to get that overview. Members and our officials can now take the Bill and go through it with more care using these notes. We will certainly want to revisit its financial aspects. I must declare an interest in that, because it deals with district councils. We will read this carefully and come back shortly. You may discuss with our officials when that might be. There is a lot here for thought and earnest consideration. Your presentation has certainly been helpful, and we deeply appreciate that.

That is as far as we will go today. It is more important that members carefully read this document with the Bill. We will come back at the next session and go into more depth with any questions or queries we might have. You will also have the proper draft then. Thank you very much indeed.

Ms Anderson: Thank you. This has been helpful to us as well as you, undoubtedly.

13 June 2002 / Menu / 20 June 2002 (part ii)