Official Report: Minutes of Evidence

The Chairperson (Ms Lo): From the local government policy division, I welcome Julie Broadway, John Murphy and the director, Linda MacHugh. This session is being recorded by Hansard.

Obviously, we are a bit concerned about the flat level salary of £27,000. You explained in your paper that that may be the easiest way to do things rather than trying to look at posts that are more sensitive to influencing councillors. However, members will probably want to hear the rationale for that and follow up with questions.

Ms Linda MacHugh (Department of the Environment): The Local Government Act 2014 amended the 1972 Local Government Act to remove the blanket ban on any employees of councils being councillors. It also provided the enabling power for the Department to specify officers and areas of employment to whom and where the ban would continue to apply.

There are three categories. One is geographic, so any council employee cannot be a councillor on their employing council. Secondly, we would specify any statutory post holder in a council, including the clerk of a council, the chief finance officer, the scrutiny officer and any post that is in the statute. The third one, which seems to be the one that you want more information on, is trying to define in legislation those posts that might be seen to be politically sensitive and to which the ban should also apply.

We were trying to find the methodology for defining this, and it was not the easiest thing to do for a number of reasons. First, we looked at descriptors — actual descriptions of post holders — but, because there is not a unified system across the whole of local government, it was impossible to define them in legislation. We were also given very strong legal advice that, if we were to try to do that, then by simply changing a post holder's name you could change their eligibility, and the issue of sub-delegation came into play. So, we went firmly down the route of trying to set a salary band.

We looked at other jurisdictions where salary bands are set, including the Republic of Ireland, and we looked at the Civil Service salary bands. It would have been an easier job if there had been some sort of homogeny across local government on salary bands, but there is not. A post in one council might be paid at a different level to a similar post in another. One of the reasons why we set it at around £27,000 was because we felt that that was the level below which it was unlikely that people would be in politically sensitive jobs, whilst bearing in mind that things vary from council to council. In the Civil Service, you cannot be involved in politics at a national or Assembly level at anything above administrative officer (AO) level. The top of that band is £22,000, so £27,000 is higher.

The Chairperson (Ms Lo): Is that in the Civil Service?

Ms MacHugh: Yes. You can go into local politics, but I think that the rationale is that that is a different level of politics, so the likelihood of a conflict of interest is lessened. Above that, you can be a councillor with, I think, the express permission of your line manager.

The Chairperson (Ms Lo): Is that at AO grade?

Ms MacHugh: Yes. That is why the level was set as it was.

The Chairperson (Ms Lo): Is it now at EO1 grade?

Ms MacHugh: Yes. It is sort of the equivalent. As I said, it is difficult to compare what is quite a structured methodology in the Civil Service with a fairly unstructured situation in local government.

The Chairperson (Ms Lo): Will you have to review the salary grade as we go on? In 10 years' time, £27,000 will not be the same as £27,000 now.

Ms MacHugh: It would be at a spine point. As the salary of that spine point increases, the level would increase.

The Chairperson (Ms Lo): Are you talking about the spine point rather than actual cash pay?

Ms MacHugh: Yes.

Mr Boylan: Welcome back. Thank you very much. I have two comments to make. You outlined the geographical stat and the other point. The main point, obviously, is conflict of interest. You could be sitting in a position where you could influence a certain situation. Trying to get that cannot have been easy. What other models are out there, and how do you learn? That is the main basis of a conflict of interest.

I could discuss a full- or part-time post for you, but salaries are normally set at a certain rate for doing a certain thing. It is hard to quantify exactly what type of job it is. Do you know what I mean? I know that you are trying to set it at a salary for the statutory position of somebody at a higher level and all that. I am not saying that it has been an easy thing to do; that is obvious from your explanation. I am trying to get a better understanding. Clearly, the main thing for us when we do this is to get the communication out about why that is. We do not want to deny people the opportunity to sit on council and to play their part, whatever that role may be. I am looking for comments on that, really.

Mr John Murphy (Department of the Environment): Using the EO1 grade in the Civil Service as a comparator, as Linda said, that is in the intermediate group, so people at that grade could be involved in local politics with the permission of their line manager. There is also the fact that, above EO1 in the Civil Service, you start to get into positions where you are likely to be providing advice to Ministers regularly. That was a cut-off point because you are not then in the position where political impartiality is necessary.

Mr Boylan: What is the story about confining the hours?

Ms MacHugh: Again, it would be at spinal column point 32, so if you are a part-time member of staff, your salary would be proportionate to your part-time role but you would still be at spine point 32. Although we put £27,000 in the document as an indicator of the salary level, I think that it is the spinal point that we need to specify.

Mr Murphy: That is what we need to specify.

Mr Boylan: OK.

Mr Eastwood: Thank you. I do not really get it. I understand why you have to come up with some reason; you have to cut it off somehow, and it is very difficult to identify what is politically sensitive. However, councils are very different to the Civil Service. Staff will not be giving any advice to Ministers, and members of councils will come into contact with all levels of council staff. I know that you have to do it somehow — I think that you have to do it somehow — but I am really confused about why you have come up with that particular figure for council staff. Who above that grade is going to be in a politically sensitive position? I know that your life is being made quite difficult in trying to figure out how that works, but I think that this has been plucked out of the air, with people saying, "This is how the Civil Service does it, so we will do it like that". I am not sure that that is right. I do not think that it compares very well.

Ms MacHugh: Actually, the Civil Service is lower than that. The figure is £22,000, and that is roughly comparable with the situation down South, where the figure is, I think, €35,000.

Mr Eastwood: There are a lot of things in Southern local government that we would not copy. Do you know what I mean?

Ms MacHugh: I know that. We were trying to compare it with other parts of local government in other jurisdictions.

Mr Eastwood: I can see why you would not have very senior people on councils. However, I think that we are in danger of restricting good people who have advanced through councils. We are talking about people who are in different councils, so is that not still the case? They are not going to be on the same council that they are working in. I can understand that the top few positions would be barred because they have enough to be doing. Aside from that, I do not really get why you would just pick a number and stop it there.

Mr Murphy: It is about trying to strike a balance. In the Republic, it concerns anybody who has remuneration above that of a clerk. If we had applied that to ours, it would have cut out a lot of people. So, we are trying to sort of —

Mr Eastwood: I am sorry; my point is that I do not understand why they do it at all at that level. I do not think that we should just necessarily take that logic and apply it to a few ranks higher or whatever it is. If the reasoning is they are going to be in different councils anyway, so the people who are very senior positions should be stopped, I think that it makes a lot of sense, but I do not know how you can leave out those people between that figure and £40,000, for example.

Ms Julie Broadway (Department of the Environment): It was difficult. One of the things that we looked at was whether it was possible to use descriptors in the legislation to specify posts. However, as Linda mentioned, it is actually very difficult to do that, and it could be amended just by someone changing the line manager structure or the title of a particular job. We were advised that you could not do it that way.

Mr Eastwood: There are people working in the community relations element of some councils who are on less money than that. They are still working in what you would probably describe as sensitive enough areas, but they might be on £25,000. They will be able to apply, but the person who has actually advanced further through that department, maybe because they are more talented or whatever, is not able to apply. I find that kind of strange.

Ms MacHugh: Yes. I suppose the difficulty in putting this into legislation is that we have to be clear and we have to cut it off somewhere. The very clear legal advice was that we could not, for example, leave it up to councils to determine, whereby they might say, "That post might be paid less, but it is more politically sensitive than this one, which is paid more". In legal terms, that is subdelegation, and we could not do that. The Department has to be the body that defines this, so no matter what we do, we will have to set the level at something.

The Chairperson (Ms Lo): Linda, do you have to have that third criterion on pay? You already have the geographical disqualification and the employment disqualification, but do you need that pay disqualification?

Mr Murphy: The positions that you would be specifying by name are the most senior but, if you did not have the financial category, that would mean that directors and others of that level who are regularly engaging and are maybe working directly with a committee or the council would be able to stand for election.

Mr Eastwood: In a different council, though.

The Chairperson (Ms Lo): In another council.

Mr Murphy: Yes, but for the public it still brings in that person's political impartiality. Even though they may be working for another council, they will still be bringing those political views into the advice that they give to council by which they are employed.

Ms MacHugh: Through the consultation process on the Local Government Bill and, indeed, the consultation on these regulations, I do not think that anybody is really saying that we should not have this other category. As you will be aware, some of the respondents have said that the spinal point should be slightly higher, but the highest that was proposed was around £37,000. It is not a massive jump to the £70,000 or £80,000, which is director level. I think that at times during the process quite strong political concern has been expressed to us about lifting this ban at all. We are trying to strike a balance between lifting the ban and allowing people in non-politically sensitive posts to be councillors whilst providing some sort of protection so that people with politically sensitive posts will still be barred.

Mr Eastwood: I am not going to die in a ditch over it. I just feel that the particular figure is —

The Chairperson (Ms Lo): It is a bit arbitrary.

Mr Eastwood: It could be higher. I am not saying that they will be queuing up around the corner to run for council either.

The Chairperson (Ms Lo): Do you think that you are on safe ground legally from people above £27,000 challenging it and saying that it is arbitrary figure?

Ms Broadway: That could happen. As you know, the reason that we had to amend the legislation was because of the issue of there being a blanket ban, which we are removing. As Linda explained, it has been quite difficult to define in legislation.

The Chairperson (Ms Lo): Did you consult with the unions or the Northern Ireland Local Government Association (NILGA) on this when you had the public consultation?

Ms Broadway: Yes, and they responded.

The Chairperson (Ms Lo): What were their views?

Mr Murphy: They were recommending looking at a higher figure. They took the view that you could take people out of the system who may not be in politically sensitive posts. As Linda said, if you set it too high, while you deal with that section, you could equally have others who are in politically sensitive posts becoming eligible to stand for election as a councillor or to be co-opted. We want to try to prevent that as far as political impartiality is concerned.

The Chairperson (Ms Lo): It could be quite divisive to say, "You are below that grade and are not important, so it will not make any difference".

Mr Murphy: I suppose the same could apply if you were able to take the other option of using the descriptor. You could be brought in or out of the system because the council could change your line management structure. If you went for promotion, that would take you out. They are all fraught with particular issues, and it is just about trying to find the one that strikes it best within the vires that is available in the primary legislation.

Ms Broadway: Setting a level by pay scale or specifying the statutory process makes it very clear what is meant in the legislation, whereas, if you were to do it by descriptors of posts, it would not be clear whether someone would fall in or out.

The Chairperson (Ms Lo): It is hard to define.

Ms Broadway: Yes.

Mr I McCrea: I have never hidden the fact that I think that this should never happen. I would not say that it is dangerous, but I do not like it. I do not like the fact that council staff, of whatever levels, could be in another council 50 miles or five miles away.

From my perspective, it should be set at a lower salary grade. I accept Colum's point. Where do you draw the line? Any of us who have been on councils know that there is some level of engagement with staff at all levels. However, the lower the level of the post, the less politically sensitive it would be. I have issues with that.

I am not sure whether you mentioned the word "promotion". What would happen if someone was a member of council staff at E01 grade and got elected or co-opted to another council and was promoted and moved up to a different grade?

Ms MacHugh: They would have to decide whether being a councillor or being in employment was more important.

Mr I McCrea: Putting that to the side —

The Chairperson (Ms Lo): Which is only part-time.

Mr I McCrea: — is the promotion worth

Would they have to decide that?

Ms MacHugh: Yes, they would.

The Chairperson (Ms Lo): At that point, I will stop and welcome students from Bloomfield Collegiate School. You are very welcome. We are discussing with departmental officials draft legislation about employees of local councils. We are trying to decide at what grade or level they should be eligible to stand for local government elections.

Mr I McCrea: Do many council staff in the other jurisdictions that you spoke to seek election?

Mr Murphy: No. From what we could find out, it does not seem to be a significant issue.

Mr Boylan: We have seen the light and got sense on the matter.

Mr I McCrea: I did not think so. Thank you.

The Chairperson (Ms Lo): Is that because of the ban? No one was allowed to stand before.

Mr I McCrea: I was talking not about Northern Ireland but other jurisdictions.

The Chairperson (Ms Lo): OK. How many have stood? I would say that there would have been very few.

Ms Broadway: It has proved impossible to find that information out. We have tried.

Mr I McCrea: I do not think they exist.

The Chairperson (Ms Lo): I am sure that you will monitor that and tell us the next time you are with us.

Ms MacHugh: That is the other thing; we will monitor this on a fairly regular basis.

Mr Boylan: It will be interesting to see the options.

The Chairperson (Ms Lo): There is a legal obligation, and you have no other choice. You have to do it.

Mr A Maginness: My point arises from what Mr McCrea said. The question about how many angels can dance on the head of a pin springs to mind. It really is a very academic exercise. Whilst we have a duty to legislate, in reality, it will not cause us any great problems.

Mr Boylan: Whoever agreed that legislation?

Mr Eastwood: We will end up disagreeing.

Mr A Maginness: Unfortunately, this is in Hansard.

Mr Boylan: Disregard that last remark.

Mr A Maginness: Is it the case that there have been no real practical difficulties in England, Wales or Scotland?

Ms MacHugh: Not that we are aware of.

The Chairperson (Ms Lo): The Republic of Ireland has the ban on employees who earn below €35,000.

Mr A Maginness: Your suggestion reflects the cut-off point in the Republic.

Ms MacHugh: Public sector pay scales in the Republic are a bit higher than they are here.

Mr Boylan: We know — just a bit.

Ms MacHugh: It is certainly comparable.

Mr Murphy: It is comparable salary-wise, but we have made the level of exposure for councillors that little bit higher. In the Republic, it is set at the maximum clerical officer grade, which is the lowest administrative level. Of course, that reads across to any industrial or support grades that are on that sort of remuneration.

The Chairperson (Ms Lo): Before we let the officials go, are members content for the Department to proceed with drafting the SL1?

The Chairperson (Ms Lo): No one objects. You heard it there.

Mr I McCrea: I am objecting on principle.

The Chairperson (Ms Lo): Sometimes we have to do things that we think are maybe a bit daft. You have to go along with it. Thank you very much.