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Committee for Thursday 20 June 2002 MINUTES OF EVIDENCE Local Government (Miscellaneous Provisions)
Bill: Members present: Rev Dr William McCrea (Chairperson) Witnesses: Dr T Power ) The Chairperson: I welcome Dr Tracy Power and Ms Marie Finnegan. We have received a copy of the further proposed amendments. Ms Finnegan: Mr John McConnell sends his apologies. If we work from the draft, I will refer to the additional amendments. There is nothing on page 1 that we need to refer to. On page 2, in general, we were content with the changes in relation to clause 2(7), clause 4(1), and the beginning of clause 4(2). However, I do want to say something about clause 4(2)(a) at the bottom of the page. The Office of Legislative Counsel (OLC) asked some questions about the timing of any reduction from the general grant, and we thought it would be appropriate to make provision for the phasing of a reduction over more than one financial year, which might accommodate a district council in particular circumstances. Therefore the wording of the proposed amendment to clause 4(2)(a) reflects the facility for district councils to repay the amount over several years. The added parts are in brackets: "(or in each of such financial years as are so specified)" and "(or is so specified in relation to that year)". That brings us to clause 4(3). The clause itself was fine, but we have proposed an additional provision, paragraph (3)(b), to cover the eventuality of the Assembly’s non-approval of the Order — where the Assembly does not agree with the amount or the timing of the reduction. It reads: "If that draft order is not so approved, the Department may prepare and lay before the Assembly a new draft order and document complying with subsection (2); and subsection (3)(a) and this subsection apply in relation to that draft order as they apply in relation to the original draft order." I remind Members that any draft Order would come before the Environment Committee in the first instance. That would be the first opportunity to challenge the Department’s proposal; there would then be a further opportunity should the Assembly not approve the Order. That is what new clause 4(3)(b) will be saying. The Chairperson: You know that the Committee would not be behind the door about that. If we feel strongly about it, we will certainly be willing to challenge. Ms Finnegan: The Committee could challenge a proposal before it ever got to the Assembly and we would take it back. However, if the proposal went through the Committee and went to the Assembly, the Assembly or somebody outside the Committee could challenge it. That might result in non-approval, and we would have to revisit the Order and go through the stages again. Clause 4(4)(a) has been re-worded in our proposed amendment: "In subsections (1) and (2) "relevant report" means a report made by a local government auditor under section 80,88 or 89A of the Local Government Act (Northern Ireland) 1972 (c.9)." In other words, we have expanded the original wording to include sections 80, 88 and 89A of the Local Government Act (Northern Ireland) 1972. Section 80 refers to the report on the annual audit of accounts of district councils. Section 88 is where the Department directs a local government auditor to carry out an extraordinary audit. Section 89A is a report on a value for money audit, and again that would have been requested by the Department. Having amended the wording of clause 4(4)b, the OLC then recommended that we drop clause 4(4)(b). I was a bit hesitant about that last week, and said then that it might change the existing powers of the auditor. The OLC had provided for other types of reports that the Department might want to rely on, and that was really in anticipation of any changes that might be made to local authority auditing under the Audit and Accountability Bill. The Department of Finance and Personnel is taking that Bill forward, but, at present, the Executive Committee has not yet cleared the policy memorandum. The OLC therefore decided that, even if we are thinking of something like that, it really is too soon to include it, so we have taken that out. The Chairperson: I want Members to declare their interest, to keep everyone correct. [The Chairperson, Deputy Chairperson, Mr M Murphy and Mr Poots declared an interest.] Ms Finnegan: That brings us to clause 6. The changes that we had already made to clause 6 were in relation to subsections (3), (5) and (6). Last week Members appeared to be reasonably satisfied with the amendments. However, clarification may be required about the Department of Enterprise, Trade and Investment’s guidance. I said last week that the guidance would be non-statutory, and having checked that out, can confirm that that is the case. The Department of Enterprise, Trade and Investment would prepare any guidance, in partnership with district councils. Therefore, district councils should be in agreement with the guidance, and be prepared to work within its parameters. Should a district council carry out some project outside of the guidance, then that would be open to challenge. That is where the local government auditor would step in. The auditors would be aware that there is guidance for district councils to follow. I have discussed this with the chief local government auditor, and he said that if he came across a case where a district council had gone outside the guidance, he would look first to section 81 of the Local Government Act (Northern Ireland) 1972, which relates to surcharge, and consider if the expenditure was unlawful. A case might also arise in which the district council is guilty of wilful misconduct by doing something that it knew it ought not to — for example, ignoring the guidelines that are there. The bottom line is that if the guidance is there, district councils are expected to adhere to it. I hope that clarifies this amendment. The Chairperson: On clause 6, and the introduction of subsection (3) in the working draft: where, under existing legislative provision, are the powers for district councils to make compensation payments to landowners whose land has been vested under the economic development powers of this clause? Ms Finnegan: There is a section in the 1972 Act on the vesting of land, and there is also a whole schedule setting out all of the instructions and requirements. That schedule refers to a district council’s ability to pay compensation, which can be by agreement, or settled by the Lands Tribunal. There is detailed legislation on vesting powers. The Chairperson: We will have to get that checked. Ms Finnegan: As well as a reference in the body of the 1972 Act, a whole schedule is devoted to vesting. The Chairperson: It would be helpful if you could let us have the copy of the relevant part. We would like that checked out, just to keep ourselves right. Mr Poots: Clause 7(2) still contains the dreadful word "impose". Other Members of the Committee have mentioned this. I strongly resist the word "impose". It should be removed; I do not think there is any need for it. Ms Finnegan: I cannot take questions on clause 7. The Chairperson: We will discuss clause 7 with the Northern Ireland Office. Ms Finnegan: I will pass on your remarks to David Barr and John McConnell. The Chairperson: To be fair, they could not give us an answer on this either. Mr Poots: I am not getting into the community safety aspect — it is just the wording, which is "confer or impose" as opposed to confer. Ms Finnegan: I realise that this matter was raised before, and I will tell David Barr that it was raised again this morning. Mr Poots: We are strongly opposed to the word "impose". The Chairperson: David Barr said that this provision gave district councils powers to enhance community safety, but was not imposing such a function upon them. When it comes to the actual wording in the Bill we find that the provision does include the word "impose", which takes away from the meaning of his presentation to us. In fact, it says the very opposite, because his interpretation was to permit district councils that wanted to, to do it. Once you put in the word "impose", it actually goes further and deeper. You leave the door open to an imposition of community safety functions, and that has been raised a number of times. The rest of the wording is acceptable. The Northern Ireland Office has sent us a copy of some responses this morning, and Members will have an opportunity to read them before next week’s meeting. Clause 6(6) of the working draft refers to consultation: "The Department of Enterprise, Trade and Investment may, after consultation with district councils, issue guidance as to the exercise by district councils of their powers under this section." Should that consultation not also include interested bodies and persons that the Department consider appropriate? District councils are mentioned; however, other parts of the Bill mention interested bodies or persons that the Department considers appropriate. Ms Finnegan: Yes, it occurs at two other places in the Bill. The Department of Enterprise, Trade and Investment’s officials gave us the impression that they would be happy to consult with other bodies, and they mentioned Invest Northern Ireland and SOLACE. The Chairperson: It allows us to leave that door open. Ms Finnegan: Yes. We could include the words, but I will confirm that with the Department. The Chairperson: Should clause 4(7) not read that regulations under subsections (4) and (5) shall be subject to negative resolution? Ms Finnegan: That issue was raised before, and we talked to the OLC about it. They stressed that the subsection did not need to go beyond the current wording, and that the only time when we would have to specify a subsection is when there is a mixture of regulations within a clause. In that case some regulations might be subject to affirmative resolution and others subject to negative resolution. The Chairperson: The Committee would like to have its own legal advice on that point. Ms Finnegan: In clause 4 we have introduced an Order that would be laid before the Assembly. That legislation, in a sense, would be subject to affirmative resolution. The Chairperson: We will study that. Ms Finnegan: The only reference to regulations in clause 4 is in subsection (5). Ultimately, the only regulations mentioned in clause 4 that are subject to negative resolution are mentioned in subsection (5), but I accept that the Committee will want to check that. The Chairperson: We appreciate your assistance and your amenable approach to suggestions from the Committee. 20 June 2002 (part i)/ Menu / 27 June 2002 (part i) |
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