COMMITTEE FOR THE ENVIRONMENT

OFFICIAL REPORT

(Hansard)

Goods Vehicles (Licensing of Operators) Bill

13 November 2008

Members present for all or part of the proceedings:
Mr Patsy McGlone (Chairperson)
Mr Cathal Boylan (Deputy Chairperson)
Mr Trevor Clarke
Mr David Ford
Mr David McClarty
Mr Ian McCrea
Mr Alastair Ross
Mr Peter Weir

Witnesses:
Mr Donald Armstrong )
Mr John Brogan ) Department of the Environment
Mrs Gillian McIntyre )
Mr John McMullan )

The Chairperson (Mr McGlone):
We shall begin our discussion of the Goods Vehicle (Licensing of Operators) Bill. Several issues have arisen. I want to thank Donald Armstrong and his departmental staff for burning the midnight oil in order to prepare the documentation that has been tabled, some of which arrived this morning. I propose that the Clerk of Bills gives us an overview of the first document — the note from the Examiner of Statutory Rules — because it is relevant to our deliberations.

The Clerk of Bills:
The Examiner of Statutory Rules has responded to the points that were raised by the Department in response to the Committee’s queries about the powers to make subordinate legislation in the Bill. Most queries centred on whether to use draft affirmative procedure, which is longer and requires a vote in the Assembly, or negative resolution procedure, which means that if no specific query is raised, the legislation is brought to the Assembly and goes through unchallenged. That, therefore, is the essential point for members to consider.

The response addresses some of the points that the Department raised. In particular, it addresses the Department’s concern about a certain group of provisions: if the Committee were to use the draft affirmative procedure for the entire Bill, several provisions would bind the Department to using that in the future, even for small and insignificant drafts. However, the Examiner of Statutory Rules believes that that point can be addressed. One of the Committee’s options is to ask the Department to reply to that response.

It is time to make a decision on some of those clauses. The Department has stated that it is happy to move to draft affirmative procedure on some of them. It is a question, therefore, of leaving those out.

Mr Weir:
That seems to be a sensible approach. The Committee wanted certain amendments to be made to the legislation and required clarification on some elements. It strikes me, however, that on some points it is more a question of the Committee requiring some peace of mind and an assurance that it is not writing a blank cheque to the Department in relation to some of the regulations. If we were to press for the affirmative resolution procedure, that would be a safeguard and give us peace of mind. People would not come to us with concerns about future changes to the regulations. The Committee has the opportunity to say yes or no to that at this stage.

The Chairperson:
Donald, will you and your team take the Committee through the individual items of correspondence? First, we have one more clause to discuss.

Mr Donald Armstrong (Department of the Environment):

I was going to suggest that we discuss that first, and that would leave only the outstanding issues.

The Chairperson:
We still have a fair bit to get through. Will you talk us through clause 60?

Mr John Brogan (Department of the Environment):
Clause 60 is another standard feature in primary legislation, and it deals with the arrangements for commencing the various provisions in the Bill. Some may commence immediately on Royal Assent, and others — generally the majority — commence as and when the systems are in place to deal with them. The power in clause 60 will be used to bring provisions into effect at different times.

Clause 61 is the final clause and simply provides the name of the Bill.

Schedule 1, as drafted, would provide the definition of a small goods vehicle. The Department proposes to amend the Bill by removing schedule 1. That relates to the amendment to clause 1. The Committee has agreed to an amendment that would provide for the Department to define in more detail the meaning of the term “small goods vehicle” in regulations. The removal of schedule 1 would happen during Consideration Stage: the Minister would oppose the schedule during the debate.

Schedule 2 deals with the transfer of operating centres. It outlines the detailed arrangements for transfer, and was referred to in clause 30. It provides for the transfer of an operating centre, either as part of an application for a new licence or for an application for a variation of an existing licence.

Schedule 3 is quite extensive, and introduces a major addition to the powers of enforcement. It has been in place in Great Britain since about 2000, and, in essence, it provides the power to impound any vehicle and its contents or load if that vehicle is detected as being used on the road without an operator’s licence. It is broadly an enabling power, and we will need a host of regulations to set out the details of the scheme. Those details would concern how a vehicle would be immobilised and removed from the side of the road, when and how it would be returned or disposed of, and what would happen to the contents.

The Committee may want to note that a number of offences are outlined in the schedule. Paragraph 4 explains that it will be an offence to remove or to attempt to remove an immobilisation device — commonly called a clamp — that has been fixed to a vehicle. Under paragraph 4(2), it will be an offence to remove or interfere with an immobilisation notice attached to a vehicle. Paragraph 16 outlines that it will be an offence to make a false declaration to secure possession of the vehicle. The penalty for that will be a fine of up to level four, which is £2,500, or imprisonment for two years, or both.

The Department proposes an amendment to schedule 3. It is another amendment taken from the Local Transport Bill [HL], which is going through Westminster. It relates to the return or disposal of vehicles that have been impounded. The amendment is to paragraph 7, and is designed to make it easier for the owner to have his or her vehicle returned. It will make it possible for the return of the vehicle without the need for the owner to apply to the Department in certain prescribed circumstances. We would like to replicate the amendment to reflect the GB legislation so that the systems in GB and Northern Ireland remain consistent.

The Chairperson:
Is it the case that even if the owner was not guilty, he or she would still have to apply for the return of their vehicle? Do you mean that in circumstances in which no offence has been committed the vehicle would automatically be returned?

Mr Brogan:
That is correct; they would not have to go through the process of having to apply to the Department for the return of the vehicle. It is hoped that it will make it easier for the owner of the vehicle in certain circumstances. The amendment can be found in the list of amendments that have been provided:

“Schedule 3, page 47, line 29, leave out from ‘for’ to end of line 30 and insert ‘authorising a vehicle detained by virtue of paragraph 1 to be returned to the owner, in prescribed circumstances, without the need for any application under paragraph 8.’”

The Chairperson:
Are members content?

Members indicated assent.

Mr Brogan:
Schedule 4 to the Bill defines a large goods vehicle, and it imposes a requirement on the driver of a large goods vehicle to carry certain documents. A large goods vehicle is one that has a plated weight over 16,260 kg or an unladen weight over 5,080 kg. The driver of a large goods vehicle will have to carry a consignment note any time that it is used for carrying goods, and the detail of what will be required in the consignment note will be outlined in the regulations.

Under paragraph 2(6) of schedule 4 to the Bill, it will be an offence to use a vehicle without carrying a consignment note. Furthermore, it will be an offence to fail to preserve the consignment note — when the journey has been completed — for a prescribed period. Any individual who is guilty of such an offence is liable to a fine not exceeding level 4, which is £2,500.

Paragraph 3 of schedule 4 to the Bill provides information on the power on an authorised person to have the document produced for inspection and copying. It will be an offence not to comply with that requirement, and anyone who does so is liable to a fine at level 3, which is £1,000.

Under paragraph 4 of schedule 4 to the Bill, it will be an offence to falsify any consignment note. Such an offence will be subject to — on summary conviction — a fine at level 5, or, on conviction on indictment, to up to two years’ imprisonment, or the fine, or both.

Schedule 5 and schedule 6 to the Bill contain a list of consequential amendments and repeals, arising from the implementation of the Bill. The Transport Act ( Northern Ireland) 1967 will be heavily amended to remove references to Part III that currently provide for operator licensing.

The Chairperson:
Does any member want to ask a question on anything from clause 60 to the schedules?

Mr T Clarke:
Schedule 1 of the Bill provides a definition of small goods vehicles, and you have commented on large goods vehicles. Why is everything not the same, regardless of the size of the vehicle or the goods that they carry? Why is there a need for two separate parts — small and large vehicles?

Mr D Armstrong:
It relates to the use of consignment notes, which will state what the vehicle is carrying. The differences are recognised in the hire-or-reward sector in GB, and we are transferring it from one Bill to another. Large loads, not the vehicles, will be subject to consignment notes. It is not about defining large vehicles per se —

Mr T Clarke:
It is referred to in relation to large vehicles only.

Mr D Armstrong:
It is not for small loads. It is for large vehicles and large loads only.

Mr T Clarke:
What is the purpose of it? Are we using it because it is used in GB?

Mr D Armstrong:
Small goods vehicles are exempt from the requirements of the legislation if they are under 3·5 tons, so they would not require it.

Mr T Clarke:
What about vehicles that are over 3·5 tons, which are not defined as large vehicles.

Mr D Armstrong:
That is correct; because it is between the two. I am not sure why it is tied down to the larger vehicles; I will have another look at it.

Mr T Clarke:
If you are trying to regulate everyone, it seems silly to make a difference between two parts of the sector.

Mr D Armstrong:
For the most part, the hire-or-reward sector carries the large loads; it does not affect the own-account sector. If we were to extend it, consignment notes would be a vast issue.

Mr T Clarke:
Large vehicles are vehicles with a relevant plated weight of over 16,260 kg. Therefore all 7·5-ton vehicles will be excluded.

Mr D Armstrong:
They would be excluded, because they do not fall within that gross weight. If the requirement for consignment notes were extended to those vehicles, there would be a massive increase in the amount used. However, I will go back and work out the rationale.

Mr T Clarke:
Why are consignment notes required for the large vehicles?

Mr D Armstrong:
I am not clear on the rationale for that. However, I will come back to you with details on their purpose. It might relate to the controlling of the movement of goods.

Mr T Clarke:
I thought that that was the purpose of consignment notes. It is equally as important to know what goods are contained on a 7·5-ton lorry, as it to know what goods are contained on a 16-ton lorry or a 26-ton lorry.

Mr D Armstrong:
I will examine the rationale behind that. Are you suggesting that we also require drivers of lower-weight vehicles to carry consignment notes in order to widen the scope?

Mr T Clarke:
Despite the definition in the Bill, I do not think that there should be a differentiation between vehicles that need to carry consignment notes and those that do not.

Mr D Armstrong:
The Committee can consider the issue once I have examined the rationale behind that.

The Chairperson:
Before we move on to discuss other issues, I advise members that the Committee recently received letters on the issue of an independent regulator from Karen Magill of the Federation of Passenger Transport; Aodhan O’Donnell of the Consumer Council; and Tom Wilson of the Freight Transport Association (FTA). A letter, dated 12 November, was also received from Phil Flanders of the Road Haulage Association (RHA) on same issue.

Mr D Armstrong:
Shall we first deal with the issue of a traffic commissioner, given that you just mentioned those letters?

The Chairperson:
That might not be a bad idea.

Mr Brogan:In the letter dated 12 November 2008, the Department tried to set out in a table the main points to consider about negative resolution and affirmative resolution and to try to demonstrate the level of scrutiny that is in place for both.

The Department’s position is that the scrutiny that the Committee gives to an SL1 is rigorous. Indeed, that scrutiny is crucial, regardless of whether a regulation goes through under negative resolution or affirmative resolution. The SL1 stage is the point at which most attention is given and most questions can be asked, and officials will be present to try to answer them.

The second part of the process is the point at which the two systems diverge. In the case of regulations that are subject to negative resolution, the regulations are laid before the Assembly, and Members still have the opportunity to vote against the negative resolution. In those circumstances, the regulation would fall and the Assembly would have to have the regulation annulled. It has happened. I have given an example of the Local Government Pensions Scheme (Amendment No. 2) Regulations ( Northern Ireland) 2007. Therefore, the process works.

Following the Committee’s scrutiny of the regulation, it becomes law when a motion affirming the regulation is passed in the Assembly. We have some experience of that as well. In particular, the Motor Vehicles (Wearing of Seatbelts) (Amendment) Regulations ( Northern Ireland) 2008 went through on affirmative resolution. However, on that occasion — as in the case of the previous regulations that I mentioned — the Minister simply tabled the motion on the Floor of the House. No one really opened the debate, no questions were raised and the regulations were affirmed.

With regard to the Bill itself, for the convenience of everyone concerned in the latter stages of operator licensing legislation — that would be the individual operators, the associations, the legal profession, tribunal staff and the departmental staff who are asked to administer the new system — we had planned and hoped to develop one consolidated set of regulations that would include as much of the detailed administrative material as possible. We wanted to avoid a situation in which the regulations would be split into six or seven different sets, which would prove difficult to administer. We have taken further legal advice, as the letter says:

“to the effect that a mixture of affirmative and negative resolution requirements throughout the Bill is likely to inhibit the Department’s ability to produce … consolidated set of general regulations.”

We really must set out those regulations that will be subject to affirmative resolution and keep them separate from those that will be subject to negative resolution. There should not be a mix. The Chairperson mentioned a pick-and-mix situation. It is clear that that must be avoided at all costs.

Members expressed some concern about offences that appear in clause 57(8) of the Bill. There was some concern that the Committee might be signing up to regulations that would contain details of those offences, but that the provision for the offence and the penalty would appear in the Bill itself. The concern seemed to be that the Committee was not aware of what exactly it was signing up to.

Clause 57(8) deals with offences against administrative types of material, and it might be very difficult to separate them from the main set of omnibus regulations. We tried to set out that where a provision in the regulation states that a licence holder must do x, the regulation would be subject to negative resolution procedure. On the other hand, where a provision in the regulation states that if the licence holder fails to do x, he commits an offence, the regulation would be subject to affirmative resolution procedure. Again, that would leave the matter quite hard to understand and the application of the law quite difficult.

In conclusion, although we have no particular concerns about the form of control, we are concerned about how it might affect the future development of regulations. Our key message is that, in our opinion, it is appropriate for regulations that seek to implement a policy or a change in policy to be subject to affirmative resolution, while it would be appropriate to make regulations that involve matters of a procedural or administrative nature subject to negative resolution. It should be borne in mind that the most rigorous scrutiny takes place at the SL1 scrutiny stage, regardless of whether the procedure used is negative or affirmative. I am sure that quite a few colleagues will testify to the rigour of that scrutiny.

The Chairperson:
They obviously have experience of it.

I would appreciate your views on the first document in the folder, which is a note dated 13 November from the Examiner of Statutory Rules on the Bill’s powers to raise secondary legislation. This is probably the first time that you have seen the document, so I obviously do not expect a response today. You will probably wish to consult the Department’s legal advisers. I am not in a position to adjudicate your response. Issues have been raised in the document, and we will get a bit more detail from the examiner, just to satisfy ourselves.

The next document, which contains a list of training centres, is simply to be noted. The following document gives an example of a statutory notice, and is an issue on which we had sought detail from the Department. We can simply note that document. We now move on to a document that gives a view on the independent regulator, and that will be dealt with later.

The next document deals with the designation of a property as an operating centre and the implications for the Planning Service. It is not really a matter to be simply noted. Donald, can you give us an overview on the progress that has been made to allay some of the concerns that were expressed in numerous Committee meetings?

Mr D Armstrong:
Our understanding is that the main concern is the potential involvement of the Planning Service. The concern was that when a place is designated as an operating centre — irrespective of whether the premises are used for parking or as a base from which a business operates — that will in some way trigger the interest of the Planning Service, and, ultimately, lead to enforcement proceedings. I take it that, in essence, the worry is that if a place is designated as an operating centre, even if it is a private house, the Planning Service will take an interest. That is our understanding of members’ concerns.

The Chairperson:
Yes, that is correct.

Mr D Armstrong:
We sought to address that concern in the letter from the departmental Assembly liaison officer (DALO). Several steps were taken. First, we sought further legal clarification on the matter, and the finding is that there is no change in relation to planning issues. The Bill deals with goods vehicle licensing and its clauses relate to this particular Bill — or Act, as it will become when it is enacted. The first piece of advice was that that in no way, and cannot, affect what might happen within the planning system.

It was also suggested that calling something an “operating centre” does not affect how planning rules apply to it. It could be called “the circus” or anything — the Planning Service is interested in what something does and its use, not what it is called. Therefore, the legal advice is that there would be a planning interest only if there were a simultaneous change to planning laws that refer to what we now call “operating centres”. The planning system is entirely separate and will continue to operate under its own rules; it has nothing whatsoever to do with this. That is the legal advice that was obtained by the Department.

That opinion also confirmed that adding clarification on the face of this Bill will not lead to a change to planning and would add no value to the system, because planning is under separate legislation. In order to allay the Committee’s fears, the Department took up the suggestion made by Mr Ford at the previous meeting to have the Minister make a declaration at Consideration Stage that would provide the assurance that the Committee seeks, and that would be recorded in the Official Report.

The Department has subsequently conferred with planning officials and produced a statement that the Minister might make during that debate. Obviously, the Minister must approve the detail of that statement, but it could be included in his speech. If that allays the fears of the Committee, it may be the way to progress. The Minister’s statement may read:

“Following a designation by the Department of a place as an “Operating Centre” under the GV (LOO) Bill, the issue of read-across into interest or action by Planning Service may be of concern to some.

I want to give you an assurance that the designation of a property as an Operating Centre will not in itself have any read-across to Planning action; nor will it be used by, or influence any action by Planning Service as to the use of the property.

Irrespective of this assurance, it is the responsibility of all land owners to ensure that the use of their property satisfies the requirements of planning law.”

The Department proposes that the Minister makes that statement in order satisfy the Committee’s concerns.

The Chairperson:
Will you expand on the binding nature and the legitimacy of that statement in relation to planning law? I recognise that there is an opt-out in the last sentence.

Mr D Armstrong:
The opt-out is not in relation to operating centres, it states categorically that anybody who owns property must be sure that their land use satisfies planning law.

The Chairperson:
I appreciate that.

Mr D Armstrong:
The statement is binding because it is being made by a Minister who is responsible for both planning and road safety.

Mr T Clarke:
How does that statement compare with a previous guidance note from the Minister that the Planning Service did not understand?

The Chairperson:
To be fair, Donald and his departmental team cannot answer for the Planning Service. I want to know what weight is attached to the statement in respect of the interpretation of planning policy by planning officials. If, for example, the Committee accepts this solution as read — and a statement made by a Minister is one thing — I want to satisfy myself about the weight attached to that statement in the interpretation of planning law.

Mr D Armstrong:
The interpretation of planning law is separate, and what this statement is saying is that —

The Chairperson:
No, sorry, maybe —

Mr Weir:
The Chairperson is asking what effect the statement will have.

The Chairperson:
Yes, in relation to the interpretation of planning law. I am probably asking the wrong person, but the answer will form an important part of the Committee’s deliberations.

Mr D Armstrong:
From the Department’s discussion with planning officials, who are satisfied with the statement, the interpretation is that when a place is designated as an operating centre, that declaration means that planning will have no interest in it. The Planning Service is interested only in how a property is being used — what is materially happening on it.

The Chairperson:
I appreciate that, but what is the statement’s import? In other words, will it be more than a public statement in the Assembly and have a bearing on the interpretation of planning policy?

Mr D Armstrong:
The statement is a direction by the Minister that the Planning Service will not have any interest in a property because of its designation or any interest in the designation.

Mr Ford:
My understanding is that the Minister’s statement goes further than that. I am slightly horrified that I cannot get clarification on the matter. My understanding is that if there is a lack of clarity in the Bill’s wording, the courts will take account of the statement that a Minister makes to introduce a Bill or a clause because it is the basis upon which the legislature passes the legislation. That is why I asked for the statement. It seems that the third paragraph raises all of people’s previous fears.

The Chairperson:
It does.

Mr Ford:
If the Department decides that the third paragraph must be included, it would be somewhat better to be recast and inserted as the second paragraph. People are interested in the read-across. Of course, people must satisfy planning law. However, nothing on the face of the Bill has anything to do with planning.

Mr Weir:
Furthermore, it is a truism that it will be the responsibility of all landowners to ensure that their properties satisfy planning law, irrespective of whether that is written in the Bill. However, in the context of what appears in the statement, the problem with that is that it muddies the waters. I am not sure what the third paragraph adds. A greater degree of clarity is provided in paragraphs one and two.

The Chairperson:
You are probably not in a position to interpret that.

Mr D Armstrong:
John McMullan from our branch in Clarence Court can provide some clarity.

The Chairperson:
You have not switched to Planning Service yet, John.

Mr D Armstrong:
He has not, yet.

Mr Boylan:
The problem that arises with the third paragraph is the change of use of a building or facility, which requires someone to notify the Planning Service. That is where the problem lies. An established business may have problems when it extends. Any new businesses must notify the Planning Service of a change of use.

Mr T Clarke:
There is also the 10-year rule.

Mr Boylan:
Yes, that is another part of it. The problem lies with having to notify the Planning Service of a building’s change of use. That has been the problem from the start. That is why we have raised planning permission so often. It is all right to give someone an operator’s licence, but what if that person has nowhere to operate? Perhaps, John can answer that.

The Chairperson:
John, I do not ask you to pronounce on planning policy or its interpretation.

Mr John McMullan (Department of the Environment):
I am not sure that I am qualified to do so. I am not sure whether I will clarify the matter or add to the confusion.

As regards a Minister’s statement on a Bill as it goes through the Assembly or Westminster, for years, a Minister’s comments could not be taken into account in the interpretation of the Bill. Eventually, a case went to the House of Lords at Westminster, namely Pepper v Hart, which changed the view on that. The House of Lords’ judgement, which, therefore, also has effect in Northern Ireland, was that when a Minister makes statement in the House about the interpretation of the Bill, it can, as Mr Ford said, be used as the interpretation that is applied when the legislation is considered. It cannot be said that the Minister’s statement is not worth the paper on which it is written.

The Chairperson:
I understand that. We all understand what the problem is. Although it is not of your making, it has a knock-on effect.

Mr D Armstrong:
Can you clarify whether the problem is with the statement itself or with its principle?

The Chairperson:
The problem is with the interpretation and the weight that is given to the statement. The statement has a rider at the end of it and, perhaps, could be worded slightly differently. The issue is the weight that is given to the statement in the interpretation of planning policy. John referred to the Pepper v Hart case. Given the Committee’s level of concern on the matter, we must seek opinion from Assembly Legal Services about the weight that is given to the statement and how it is worded — irrespective of its text — and how it may allay, ease or otherwise the interpretation of operating centres.

I want to expand on that so you are aware of the main issue, Donald. There are probably a lot of operating centres out there and our main concern is that once the legislation is advertised in the local press, objections to the Planning Service may be generated almost immediately, specifically regarding enforcement. Therefore, there is a need for clarity about the circumstances of the planning issue.

I am aware that you cannot answer on behalf of the Planning Service, and I would not ask you to second-guess its stance. You are working with the information that you have, but the Committee must get more detail on that, specifically with regard to Pepper v Hart — was it Pepper or Peppard?

Mr McMullan:
It is Pepper; as in salt and pepper. [Laughter.]

The Chairperson:
We need more information on the Pepper v Hart case so that we can relate it to the Legal Services here. We need that detail before we can consider the text of the Minister’s statement.

Mr Ford:
I was going to suggest that perhaps those two issues could go together. I am grateful to John for reminding me the name of the Pepper v Hart case — I will probably remember that from now on.

That point seems to build on what Peter and I said earlier — that we could at least ask the officials to examine whether it is possible to drop the third paragraph entirely and perhaps insert something at the start of the second paragraph, which reflects the Minister’s responsibility for the Bill and the Planning Service.

The Chairperson:
The third paragraph was taken as read.

Mr D Armstrong:
The third paragraph stands without the Bill.

The Chairperson:
It is superfluous, therefore.

Mr Ford:
However, adding that paragraph results in a negative impression being given.

The Chairperson:
I agree; it switches the import and the effect of anything that the Minister may say. In other words, on the one hand he is saying yes — or maybe — and on the other hand he is saying maybe not.

Mr D Armstrong:
To clarify; does the Committee want us to work with the planning officials to redraft the statement in light of those remarks?

Mr Ford:
Yes; perhaps Peter and I could write it for you, if that would help?

Mr D Armstrong:
He has probably written it already.

The Chairperson:
We will check how the paragraph affects the level of import and value of what the Minister says.

Mr D Armstrong:
Another aspect is that if a person makes an objection and there is a material change in the use of a particular property, the Planning Service would certainly be interested, irrespective of whether we have designated it as an operating centre. If people have a legitimate reason—

Mr Boylan:
That is the problem.

Mr D Armstrong:
Yes; but that problem could exist already. All that we would be doing is providing the notification that would trigger someone’s mind in relation to the issue. If a breach has happened already, the Bill is not triggering the problem; rather, it is making people aware of the avenue that they can take if they want to object to a problem.

Mr T Clarke:
Currently, after someone finishes work, they can park their vehicle at their home at night. The Bill will deem the place where they now park as an operating centre.

The Chairperson:
Yes, officially that will be the case.

Mr T Clarke:
That means that the Bill will make a difference. When discussing another part of the Bill, you mentioned that people would be allowed to park emergency vehicles at their homes for a percentage of time and it would not be considered an operating centre. However, when they are not parking there, they are parking at their official operating centre, which nearly legitimises that as being the place of work. Therefore, you have created a problem because you have allowed those people to park at their homes for a percentage of time, so you have created a difference.

Mr D Armstrong:
We were talking about the place where vehicles are normally parked when not in use?

Mr T Clarke:
The place where it is normally parked would be the operating centre. However, you have distinguished between the operating centre and instances when someone is on call and takes the vehicle home occasionally.

Mr D Armstrong:
Any people who take their vehicles home occasionally when they are on call would not nominate their home as an operating centre.

Mr T Clarke:
I am unclear as to why you have made the difference.

Mr D Armstrong:
The people who normally take their vehicles home would have to nominate their home as an operating centre. However, the Planning Service has said on several occasions that that does not in itself create a planning interest because there is no material change of use.

Mr T Clarke:
To muddy the waters a wee bit more, there is also the issue of the numbers. The one-vehicle issue must be addressed.

The Chairperson:
During last week’s meeting, Mr Kirk suggested that the Planning Service’s interpretation of how an operating centre applies to single and multiple vehicles may differ.

Mr D Armstrong:
That concern already exists. If my memory serves me right, he discussed fact and degree. The fact of parking and the degree of it are two different issues.

Mr T Clarke:
The problem only exists with heavier vehicles. It is no problem for people in rural locations who have two large vehicles on a farm. However, the introduction of the concept of smaller vehicles is a problem for people who are doing this already.

Mr D Armstrong:
Simon Kirk said that if that will be an issue in the future, it must be an issue now. For example, if two vehicles caused a planning difficulty, it would exist irrespective of whether or not we designate an operating centre.

The Chairperson:
The only reason that the Committee considered that issue is because of the Bill and its ramifications. We will seek further clarity.

Mr D Armstrong:
We will return with the redefinition that Mr Ford is applying to us.

The Chairperson:
We will move on.

Mr D Armstrong:
The letter at tab 7 of the packs arose from the Committee’s concern about clause 4(4), which states that a vehicle with an operator’s licence must be registered in the United Kingdom under the Vehicle Excise and Registration Act 1994 (VERA). The Chairperson raised the issue that someone who operates a business situated near the Irish border may employ people from both jurisdictions.

The Chairperson:
It would apply to someone who has a business that operates on the entire island. I know many people do that.

Mr D Armstrong:
The paper, which is quite extensive, outlines the reasoning behind that clause. The first reason concerns enforcement. We have access to the records of vehicles registered under VERA and, therefore, can take enforcement action against the owners of those vehicles. However, enforcement against owners of foreign vehicles is different from enforcement against owners of vehicles that are registered in the United Kingdom or Northern Ireland. Owners of foreign vehicles can commit offences, drive across the border and avoid detection; we have no access to their record base.

The Chairperson:
We must determine how to gain access to that record base, rather than discuss the registration process.

Mr D Armstrong:
Yes, that is the enforcement issue.

The Chairperson:
We are discussing parity with GB. However, without getting into the politics, we have a land border here. There are two jurisdictions and, because of the EU, people operate businesses on the entire island. The issue is why we do not have the access to information, not as a reason for including this in Bill.

Mr D Armstrong:
That is one solution to the enforcement difficulty. For example, if a vehicle registered in the Irish Republic is working in Northern Ireland and is breaching tachograph rules, we have no power to visit the operating centre and demand to see tachograph and maintenance records.

The Chairperson:
If the operating centre is here, it could be coincidental that the vehicles are registered in the rest of Ireland.

Mr D Armstrong:
I will address that legal issue later. I am talking about a foreign-registered vehicle that is based in its own operating centre across the border, where the vehicle is normally kept when not in use. When considering a foreign vehicle based at a centre in Northern Ireland, we come to legal issues, and we can deal with those.

I want to comment on parity with GB. At the last meeting, we said that the clause that we were considering was not on the face of the GB Act. That is true, however, it is still is a requirement in GB. For example, in an appeal concerning Reids Transport, the transport tribunal in London stated that:

“when an operator obtains an operator’s licence in Great Britain, there is an on-going obligation to comply in every respect with the domestic law of Great Britain, including vehicle excise duty legislation.”

Foreign vehicles cannot comply with that.

The Vehicle Excise and Registration Act 1994 states that:

“A duty of excise (“vehicle excise duty”) shall be charged in respect of every mechanically propelled vehicle which is used, or kept, on a public road in the United Kingdom and shall be paid on a licence to be taken out by the person keeping the vehicle.”

Again, a foreign vehicle cannot comply with the requirements of VERA if it is normally kept within the United Kingdom.

Fairness is one of the basic underlying principles of operator licensing, and it is recommended that all operators licensed in GB be treated equally, and to the same standard and requirements met by them. By taxing vehicles abroad, a company will not have paid the vehicle excise duty and thereby cannot contain competitive advantage.

The strongest point, in relation to the requirement, can be found in paragraph 9 of the letter that we received, which states that:

“In addition to the requirement for vehicles to be within VERA, vehicles used under a GB road freight operator’s licence must have an operating centre in Great Britain.”

If the operating centre is not in Great Britain, we cannot enforce that; that is the point that has been made.

An operating centre is the place to which a vehicle is normally returned when not in use — its home. Under licensing law, vehicles registered in Ireland cannot be regarded as being normally kept within the UK. The vehicle licensing has to be transferred, and that applies to any vehicle, including a car. If a vehicle is normally registered in the United Kingdom, by law, it must be on the registration system within the United Kingdom. A visiting vehicle can stay in the country for a limited period of time, but, without registering within the United Kingdom, it cannot stay as a permanent vehicle.

A further element is introduced if that vehicle is from another member state, irrespective of whether it is from Ireland, France or Poland. Under EU cabotage rules, that vehicle cannot take on contracts, of which operating licensing would be one; it can only do ad hoc work within the United Kingdom for a limited period of time. Vehicles from the South, which as part of their business operate from an operating centre in Northern Ireland, would be in breach of EU cabotage rules.

For all those reasons — enforcement, legal and European — we suggest that the clause remain as it is, and that it is in keeping with what is happening in the rest of the United Kingdom.

The Chairperson:
Is it in keeping with what is happening in the rest of the EU, where there are quite clearly land borders involved?

Mr D Armstrong:
I do not know what is happening with the rest of the EU; however, the cabotage rules apply across the EU and a person cannot be resident in one member state and operate a business in another.

The Chairperson:
Is that not the nature of economies and businesses within the EU?

Mr D Armstrong:
There is nothing to stop an operator having, for example, drivers from across the border; there are lots of foreign drivers.

The Chairperson:
There are also foreign drivers from other parts of the world.

Mr D Armstrong:
The issue is having the vehicle registered in another EU state.

The Chairperson:
I am interested to find out about this issue a like-for-like situation. For example, in France and Spain, where there is a shared land border.

Mr T Clarke:
Why not compare it with our neighbours? They have the same rules, and do not allow Northern registered vehicles to stay in the South.

The Chairperson:
I understand that; however, just because they are doing one thing does not necessarily mean that that is the right way to approach it.

Mr Boylan:
I agree.

The Chairperson:
I am anxious to hear how this is applied in areas where a land border is shared with other jurisdictions; we are not like for like with GB.

Mr D Armstrong:
The capitage rules still apply across the board.

The Chairperson:
The EU legislation is being cited a lot, I want to hear how it works in application.

The proposed introduction of a traffic commissioner is the next topic for discussion.

Mr Boylan:
What procedures does the South have for the traffic commissioner?

Mr D Armstrong:
In the South, the traffic-commissioner function is carried out by the Road Safety Authority.

Mr Boylan:
Is the traffic commissioner completely independent or is it Government funded?

Mr D Armstrong:
The system in the South is very similar to Northern Ireland’s current system — a Government agency carries out the traffic-commissioner function.

Members have raised the issue of a traffic commissioner at several meetings. The Committee has also forwarded letters that it has received on the matter to the Department. We have noted the views expressed in those letters, and I will refer to them shortly.

As I indicated at the previous meeting, the Department is in the early stages of a review of the management of operator-licensing regulation. That review will consider bus and taxi operators as well as goods-vehicle operators. We are assessing how operator-licensing regulation is managed in other countries.

We are considering the several options that have been suggested, and more suggestions will follow. One such option is to appoint a dedicated traffic commissioner for Northern Ireland. Members have discussed that option on several occasions, and it is preferred by the people who have written to the Committee. Another option is to attach responsibility for Northern Ireland to one of areas of GB where a traffic commissioner is already in place — Wales, Scotland or north-west England. A further option is to retain the traffic-commissioner function in the Department but detach it from the agency; in many senses, the Bill steers us towards the last option. We are happy to engage with the Committee as those options are fleshed out.

Members had asked whether it would be possible for the Bill to provide for the appointment of a traffic commissioner. We received legal advice, and the Department’s view is that, although the Bill covers the functionality of a traffic commissioner, it does not contain legislation on a commissioner’s appointment of staff, remuneration, pensions and so on. GB had a separate Bill for the appointment of traffic commissioners rather than using a Bill of this form. The Department feels that the appointment of a traffic commissioner in Northern Ireland should be covered by its own legislation because it covers such a wide remit.

The Department also feels that the provisions of the Bill would not compromise any future decisions regarding a traffic commissioner. Traffic commissioners in GB have all the powers that are contained in this Bill. Those powers could be very easily handed to a traffic commissioner without the Bill having to be changed. Members had suggested that the Bill should be future proofed by inserting the words “Department or traffic commissioner” or

“Department or such other body as may be prescribed.”

However, the Department’s view is that it would not be possible to make that reference, because there is no such legal entity in Northern Ireland. Indeed, we received legal advice to that effect.

We welcome the support for the Bill that is contained in the letters that were received by the Committee. The appointment of a traffic commissioner was one of the proposals of the Department’s 2003 review of road freight operator licensing. The Minister decided not to proceed with the introduction of a traffic commissioner following that exercise, preferring to consider the matter in a wider context. At no stage after that consultation was it suggested that a traffic commissioner would be included as part of this Bill. The letters received by the Committee contain a misunderstanding that there may have been communication to that effect. The legal advice was unequivocal in stating that amending the Bill is not possible because it would be unlawful.

The Department will continue to review the management of operator licensing for buses, freight and taxis, and we will co-operate with the Committee in that work. The Department is not in a position to determine the appointment of a traffic commissioner at this stage because it has not been accepted as a policy. However, we are not opposed to the general principle. The traffic-commissioner system seems to work very well in GB, where it is popular with the industry and the Government. We are content for the Committee to include a recommendation to that effect in its report on the licensing of this Bill, and we seek to proceed with it as quickly as possible.

The Chairperson:
Do members have any comments?

Mr Ford:
I am fascinated by paragraph 12 of the letter that has just been repeated by Donald. It states that:

“The legal advice is unequivocal. It is not possible to amend the Bill to provide for a Traffic Commissioner”.

That is not what the legal advice appears to be about. Rather, it appears to be about the legislative implications of including a provision in the Bill that might allow for a traffic commissioner at a future stage. We did not hear any reason why this Bill could not contain provision for a traffic commissioner to deal with freight transport.

Paragraph 5 states that the traffic commissioner was constituted in GB under the Public Passenger Vehicles Act 1981 and the Transport Act 1985, and that the road-freight legislation was added in 1995. Given that our problems are principally about road freight — with the exception of one or two minor passenger-transport operators from whom we have heard — it seems that the entirely logical corollary in Northern Ireland is that something should be done about a traffic commissioner for road freight at this stage. If appropriate, legislation regarding taxis and passenger vehicles could be added subsequently.

Can I confirm that there is no legal advice that states that provision for a traffic commissioner could not be added to the Bill at this stage? Paragraphs 5, 6, 7 and 8 of the letter refer to what might happen in the future as opposed to what would happen if that were added now.

Mr McMullan:
What you said is correct. Future-proofing the Bill could pre-empt the decisions of a future Minister, and our legal advice states that that is unlawful. The Bill could legally contain a schedule that sets out the constitution of the traffic commissioner, the appointment, the remuneration and other provisions.

However, we have not yet developed the policy far enough to allow that provision to be included in the Bill, but it could be included legally. Similar provision is contained in the Public Passenger Vehicles Act 1981 in GB, so such a provision could technically and legally be included in this Bill.

Mr D Armstrong:
The other issue that John raised, and which I mentioned during the previous meeting, was that we do not know what the best way forward is for Northern Ireland. We have not conducted a policy review, nor have we discussed — with the Committee or anybody else — the options that could be used for the management of operator licensing across Northern Ireland. To include a provision in the Bill that has neither been consulted on nor cleared in policy is something with which we would not be happy.

Mr Ross:
Would it not be preferable to see how the legislation works after it is introduced? If things do not go well or if there is room for improvement, a traffic commissioner could be considered at a later stage. That seems like a more logical way of proceeding.

Mr Boylan:
That is fair enough. We want the best possible model, although we might get off to a bad start if we follow the example of the NIEA (Northern Ireland Environment Agency). If we followed that example, a traffic commissioner could be appointed next week. I certainly agree that there should be an opportunity to see how this Bill works. The South uses the same model, and that works. If the model does not work, can provision be made in the Bill for the introduction of a traffic commissioner?

Mr D Armstrong:
No, the Bill cannot pre-empt the introduction of a traffic commissioner. The Department carried out a review of licences for taxi operators, and the Taxis Act ( Northern Ireland) 2008 is now in place. We did that with the knowledge that we would consider whether a traffic commissioner would be needed for future operation.

The Goods Vehicles (Licensing of Operators) Bill has been drafted with the same thought in mind. The need for a traffic commissioner has been considered, and, in conjunction with the Department for Regional Development (DRD), we are conducting a bus review, which has also been done with the same view in mind. All of that has been done knowing that consideration must be given to how the industry is regulated in Northern Ireland and knowing that we will try to introduce measures to do that. We have not taken a suck-it-and-see approach; we are committed to how it should be done on a wider basis.

The Chairperson:
What time frame is in place for that review, given that the Taxis Act ( Northern Ireland) 2008 has been passed?

Mr D Armstrong:
It is a normal time frame for primary legislation. This morning, I suggested to someone that, by the time the provisions of the Goods Vehicles (Licensing of Operators) Bill are in place in 2011, we should be well down the road of considering the overall management of the regulation of the industry. Therefore, the review will not come that far behind the introduction of the legislation. As you know, the legislation will not be introduced next week.

The Chairperson:
I did not mean to ask when the review would be completed; I meant to ask when it would start.

Mr D Armstrong:
The review has started. Consideration of operator licensing is consideration of the total resource.

The Chairperson:
Can you provide detail on how that is being done? Has a panel been set up, and has a group of stakeholders been identified?

Mr D Armstrong:
To date, research has been carried out on the management of the industry in other countries. Terms of reference for the review are being put together, and, after that, we will put our attention to the regulations that flow from the legislation.

The Chairperson:
So, the review has not commenced.

Mr D Armstrong:
It did commence. The member of staff who was working on it has moved to the Department of Finance and Personnel (DFP), so it has been parked for a short time. The review started, but, in recent months, it has not progressed.

Mr McMullan:
I wish to return to the point that was made by Mr Ross. We regard the Bill as a stepping stone towards a traffic commissioner, rather than a stumbling block to that. The Bill contains the same functionality as exists in GB. As Donald said, if the outcome is that there would not be enough cases to employ a traffic commissioner in Northern Ireland, perhaps Beverley Bell could be asked to examine our cases.

Mr Weir:
Lucky her. [Laughter.]

Mr McMullan:
The legislation would mean that a traffic commissioner from GB did not have to learn Northern Ireland law. The two laws would be compatible, and, therefore, that traffic commissioner would have a platform and a basis to take on a case.

Mr D Armstrong:
The mention of Beverley Bell was guaranteed to produce a response. When the letters mention an independent traffic commissioner, the thrust of the argument seems to be around the need to separate the role from the agency. By progressing with the Bill, we are satisfying the need for that separation.

The Chairperson:
Can you talk me through how that separation is happening please, Donald? It is not apparent to me that that is happening.

Mr D Armstrong:
The Driver and Vehicle Agency (DVA) manages road transport licensing. Therefore, a person who applies for a licence applies to the agency, and the agency grants the licence. The DVA is also the enforcement agency, so it gathers evidence for prosecutions. It puts the whole package together and revokes licences. The prosecution, the administration and the decision-making are all contained in that agency.

In GB, the equivalent agency is the Vehicle and Operator Services Agency (VOSA), but the decisions are taken by the Traffic Commission, which is separate, although VOSA’s staff work for the Traffic Commission.

In the Bill, we are proposing that the powers are separate from the agency — we could give the agency all the powers, but we feel that the powers should be separate. In light of the review of whether we have a traffic commissioner, its functions will already be separate and it will already be somewhat independent. It is also proofed, because it accountable to the Transport Tribunal or the Upper Tribunal. We are providing a degree of independence — there is one Department, but the functions are separated.

Mr T Clarke:
If there was a traffic commissioner here, what would be the effect on the licence application process? Who would be responsible for enforcement?

Mr T Clarke:
I can explain how it works in GB in very broad terms.

Mr T Clarke:
I would rather you said how it would work here.

Mr D Armstrong:
There will be an office of a regulator, whatever it is called, which will be separate from the agency. Applications for variations and new licences will go to the agency and reviews will be triggered. The office will be responsible for the decisions. The agency will provide the office with information on, for example, breaches of legislation and other issues that demonstrate whether the operator is — or is not — of repute and whether it is providing proper maintenance. Separate from that agency, the decisions will be taken by the regulator, whoever that may be.

Mr T Clarke:
So, the regulator would feed in information that comes directly from the agency?

Mr D Armstrong:
That is correct.

Mr T Clarke:
To what is the agency connected?

Mr D Armstrong:
The agency is part of the Department, but it is not part of the office of the regulator.

Mr T Clarke:
At the moment, the agency does everything — it is responsible for enforcement and then takes cases to the courts.

Mr D Armstrong:
It also takes the decisions on licences.

Mr T Clarke:
The only difference that a traffic commissioner would make to the process is that the agency would take the information that it collates to a different office. Therefore, is it not right that the decision has almost been made by the time the information would get to the traffic commissioner?

Mr D Armstrong:
No; the decisions will be taken by the regulator.

Mr T Clarke:
Regardless of whether there is good commissioner or not, does a lot not hinge on the quality of the enforcement? If the enforcement is not good, the quality of the commissioner will not make a difference to whether there is success.

Mr D Armstrong:
That is correct.

Mr T Clarke:
Therefore, the key is enforcement, rather than the existence of a traffic commissioner.

Mr D Armstrong:
The key is successful enforcement. In GB, VOSA enforcement officers provide the same information to the traffic commissioner, so the pattern is exactly the same.

Mr T Clarke:
But, the key is enforcement.

Mr D Armstrong:
The key is successful enforcement.

Mr Ford:
On the issue of independence, Committee members should examine the four letters that are in front of us, because the summary that we have received is not entirely fair.

In his letter, Phil Flanders from the Road Haulage Association (RHA) states:

“we were under the impression that once approved, enabling legislation would follow very soon thereafter to introduce an “independent regulator” similar to the role of Traffic Commissioner in GB.”

He also states that the RHA has no issue with role being a Civil Service one, as long as it is totally independent of DVA.

In her letter, Karen Magill from the Federation of Passenger Transport states:

“Prior to the 16 th, it was my understanding that as a result of this Bill, there would be an Independent Regulator and all the associated powers”.

In his letter, Aodhan O’Donnell states:

“The Consumer Council believes it is essential that this legislation includes the provision for an Independent Regulator … completely independent of enforcement agencies”.

Tom Wilson from the Freight Transport Association (FTA) goes beyond that stating:

“We were assured by the Department throughout our discussions that there would be provision within the Transport Bill enabling the appointment of an Independent Regulator or Traffic Commissioner (GB model)”.

The Department is saying that there has been a misunderstanding, but that is not consistent with the statement in Mr Wilson’s letter from 7 November 2008. What correspondence was there between those organisations, and are there any notes of meetings that they had with the Department? It is stretching the point a fair bit for one party to say that it was assured throughout its discussions, and another to say that there was a misunderstanding.

The Chairperson:
It is a wee bit hard to get your head round the compatibility of the two arguments.

Mr D Armstrong:
Far be it from me to reflect on the understandings — or misunderstandings — of the FTA. The Department regularly meets with FTA and RHA in the Northern Ireland Road Freight Forum, which it chairs. The RHA and the FTA have met with officials and various Ministers to discuss the Bill, and at no time did we make any commitment to include in the Bill provision for a traffic commissioner — that is a misunderstanding.

Mr Ford:
Are saying that Mr Wilson’s statement is completely false?

Mr D Armstrong:
Yes.

The Chairperson:
To tie down the issue completely, was any commitment given to the introduction of a traffic commissioner or a similar regulatory body?

Mr D Armstrong:
No; there was a commitment to review the management of operator licensing in Northern Ireland. That has been consistent since 2004 or 2005. Never has a commitment been given to having a traffic commissioner for Northern Ireland, nor to include it in this Bill. There is no policy clearance to it. That is absolutely clear. It is a misunderstanding. The Bill can separate it from the enforcement function, but there was never any commitment given for a traffic commissioner.

Mr Boylan:
Has there always been the situation in GB where there has been a traffic commissioner, or was there an agency operating before that? Maybe we could have some results on how that operated before we decide.

Mr D Armstrong:
I think that it goes back to at least 1995, but I would have to check.

Mr Boylan:
Do you know what I mean? If there was an agency before the introduction of a traffic commissioner that —

Mr D Armstrong:
John is whispering 1981 — as far back as 1981.

Mr Boylan:
If there is an issue, and the results were coming out of that on how they operate, did that lead to the introduction of a traffic commissioner to get things done properly? We are now going to operate under an agency. I simply want to make a comparison.

Mr D Armstrong:
We are not proposing to operate under an agency; we are proposing to operate as a separate entity from an agency. The agency will have a different function.

Mr Boylan:
That is your interpretation. I will wait to see how you get on with that. I want to know if there is any information that we could use as a basis for comparison.

Mr T Clarke:
Is Tom Wilson correct where, in the last paragraph of his letter, he states that:

“this is not the case in GB where an independent Traffic Commissioner — appointed by the Secretary of State has been established for 75 years”?

Mr D Armstrong:
I have no idea where he got that from.

Mr T Clarke:
I would like to see the validity of his argument. It seems surprising that it has been established for so long, but it could take that long to get the person in place. I suppose that that did not start until the early 1990s, is that right?

Mr D Armstrong:
I think that Beverley Bell was talking about her own appointment.

Mr T Clarke:
Do you know how long they have had a commissioner for?

Mr D Armstrong:
I have no idea.

Mr T Clarke:
Could we find that out?

Mr D Armstrong:
We could certainly dig back through the history to see what we can find.

Mr T Clarke:
I do not think that you will have to go back 75 years.

The Chairperson:
For complete clarity, contained within the documentation that has been provided to members, in the paper entitled ‘Review of Road Freight Operator Licensing in Northern Ireland Summary of Responses to 2003 Consultation’, paragraph 16.3, the states that:

“The scale of operations in NI questions the need for a Traffic Commissioner for road-haulage matters only. However, with the Department’s on-going review of regulation of the taxi industry and the Department for Regional Development’s review of the regulation of the bus industry, the role of the Traffic Commissioner may well have merit. This will be explored further.”

At that point, the Road Haulage Association had an objection because of any discretionary powers being deemed to be unfair if a penalty-points system were to be used. That is not a question; I am quoting that for the record. That paragraph would be consistent with what you have just told us, Donald.

Mr D Armstrong:
It is, yes.

Mr McClarty:
Donald pointed out that the agency has its functions and that the Department’s functions are quite separate. Surely, in law, does an agent not work on behalf of the principle, and is therefore deemed to be acting on behalf of the principle? It is the same thing.

Mr D Armstrong:
It is the same department in law, but it will be a separated function in that the agency will be responsible for enforcement. The decision-making will be taken away from that completely. In one sense, you have a little cameo now of how the agency’s decisions are reviewed by the Department separately — I do that with panels. We have a separation of functions, and we very often disagree with the agency’s decision. There is that separation between the two.

In the GB model, although the traffic commissioner heads the body, the traffic commissioner’s staff are all VOSA staff, so there is a close working relationship, even though they are separate entities. We believe that we can administratively maintain that separation, pending the results of a review into how that should be done in future, and whether or not the traffic commissioner is best placed to carry out that function.

The Chairperson:
Do members wish to seek further clarification on those matters before we move on?

Mr Ford:
I wish to raise a separate issue. Given that we have just discovered that there is a significant difference in interpretations of previous discussions between the Department and the FTA, it would be appropriate to ask Mr Wilson or his colleagues what information they have that justifies the statement that he made in his letter of 7 November 2008. The Department has had an opportunity to comment on that statement, so it is appropriate that the FTA be given the opportunity to justify the comments that it made in that letter.

Mr T Clarke:
What bearing will that have on the matter?

Mr Ford:
It is a relevant issue. We should be told what processes have been gone through up to this stage.

The Chairperson:
It would be useful if there was any correspondence, but I do not think that that will be the case.

Mr T Clarke:
I do not think that we need the FTA to come here.

Mr Ford:
It need not take long, but it should be given the opportunity.

Mr T Clarke:
We did not consult on the issue, so we should have known at that stage that we were not going to consider the appointment of a commissioner. You are reading the part of the FTA’s letter in which it says, more or less, that it has been promised a commissioner as part of the Bill. As Donald said earlier, we did not consult on the appointment of a commissioner.

The Chairperson:
I believe that that was the case, Trevor. The appointment of a commissioner was part of the consultation — I read that bit out. That was consistent with the response that Donald has just given us. If someone has misinterpreted an issue, it will be important that we seek clarity on where those misinterpretations have come from. I realise that the issue falls outside the remit of the Bill.

Mr Ford:
I am sorry; I do not think that the issue is outside the remit of the Bill, particularly if a key body in the industry was given an assurance that what it had asked for would be included in the Bill, and that that body and the Department arrived at two entirely different interpretations of their discussions on the matter. I do not know how to cast that.

The Chairperson:
It is difficult to adjudicate on that matter. If the FTA is in receipt of correspondence from the Department that states otherwise, I am sure that we would welcome the opportunity to view that correspondence. I do not think that it will be there. However, we can ask the FTA whether it can verify its claim.

Mr I McCrea:
We can ask for any such information to be provided in writing.

The Chairperson:
Absolutely. We cannot accept any further witnesses at this stage. If there is something in black and white that is different — but it is not going to be there.

I thank the witnesses for their time. We will see each other again.