Official Report: Minutes of Evidence

The Deputy Chairperson (Mrs Cameron): I welcome Ms Julie Broadway and Ms Brenda Kelly. I invite you to brief the Committee on the Department's responses to the concerns raised by the Committee at its meeting on 8 October.

Ms Julie Broadway (Department of the Environment): As you said, we provided an update on the revised version of the draft standing orders at the meeting of 8 October, focusing on the amendment to be made to address the concerns raised about there not being a filter mechanism in the regulations for called-in decisions that would require a qualified majority vote. Following that meeting, you asked for some further information.

One of the queries was about why the change was necessary. As you know, the aim of the regulations is to give practical effect to the arrangements for the protection of the interests of minorities in council decision-making. The regulations include provision for the procedure that should be followed by a council in connection with a request for a reconsideration of a decision. As part of this process, section 41(2) of the Local Government Act (Northern Ireland) 2014 says:

if 15% of the members of the council have requested the call-in of a decision on the grounds that, if implemented, it would have a disproportionately adverse impact on any section of the inhabitants of the district. The draft regulations laid in the Assembly on 5 February provide that all decisions called in on adverse impact grounds must be taken by a qualified majority. Concerns were raised about the fact that there was no filter mechanism.

The revised draft regulations amend that provision to include a filter mechanism for decisions called in on adverse impact grounds that would require a qualified majority. The Committee had asked about the proposed wording for the filter mechanism and, in particular, why it differed from the wording used by councils during the shadow period. I understand that this is referring to the wording set out in standing orders regulations that were issued for consultation in June 2014 and which were accompanied by a set of draft model standing orders. The regulations issued for consultation proposed that where the opinion of the barrister or solicitor confirms that a call-in made on adverse impact grounds has merit — that was the word used in those draft regulations — then the decision would require a qualified majority.

Before we laid the regulations in the Assembly, we got legal advice that, as the 2014 Act makes no specific provision for obtaining an opinion on the merit of a request for reconsideration, the draft regulations could not specify that only cases where the legal opinion confirms that the call-in has merit would require a qualified majority. The regulations were amended to reflect that advice. We wrote to the Committee on 3 February to explain that that change had taken place. Therefore, the draft regulations laid in the Assembly in February had no filter mechanism.

Following the Assembly debate, in order to address the concerns raised about the absence of a filter mechanism, the Department sought legal advice on provisions that could be included to ensure that the opinion of the barrister or solicitor could act as some form of filter mechanism. Advice was specifically sought on whether provision could be made to ensure that a qualified majority would be required in relation to a council's decision on a call-in where the opinion of the barrister or solicitor indicated that members have demonstrated that the decision would disproportionately affect a section of the inhabitants of the district adversely: in other words, that a qualified majority would be required where the legal opinion indicates that section 41(1)(b) of the 2014 Act would apply.

The advice that the Department received indicated that the effect of that proposal would be to delegate the question of whether a qualified majority vote is required in the given circumstances to the barrister or solicitor. It advised that, as section 41(2) of the 2014 Act does not direct that the opinion should address the question of whether a call-in is sound and as the soundness of the call-in is not a legal question, it was concluded that including such a provision would be ultra vires, so we could not use that wording to provide the filter mechanism. However, the legal advice indicated that consideration could be given to providing that a qualified majority would be required in cases where the opinion of the barrister or solicitor indicates that the decision would be unlawful. Having regard to the legal advice, the draft regulations were revised to provide that a qualified majority would be required for a council's decision on a call-in made in accordance with section 41(1)(b) and if there was a risk that the decision was outside the powers of the council, was incompatible with EU or convention rights or was not in compliance with the council's equality scheme.

I know that at the last meeting of the Environment Committee an issue was raised about the wording of that provision and, in particular, the use of the council's equality scheme. Some concerns were raised that, as the content of equality schemes varies across councils, call-in might apply differently across councils. It may be useful to think about the purpose of the legal opinion. The requirement for the legal opinion is designed to inform the reconsideration of the decision. It is then up to the councillors to make the decision, with knowledge of the opinion of the solicitor on whether it would be unlawful or contrary to the equality scheme. Also, the members who called in the decision will have given their reasons as to why they believe it , if implemented, would have a disproportionate adverse impact, and they would also set out on whom, they believe, it would have such an impact. So, in reconsidering the decision, the council would have that additional information to hand.

The Deputy Chairperson (Mrs Cameron): I will pause you there for a second. Hansard is struggling with the recording because of mobile phone interference. Please switch off your mobile phones and get them off the table. That would be useful; otherwise we will have no Hansard report. I am sorry for interrupting you; please continue.

Ms Broadway: The Committee also discussed the issue of identifying the impact on people and communities when calling in a decision, on the grounds that it

and asked for information on the guidance to be issued to assist councillors. The draft regulations themselves provide a definition of what

means. It really is any section of the inhabitants that is clearly identifiable by location, interest or other category. So, it is up to the members who are calling in a decision to identify who, they believe, it would have an impact on.

There is no definition in the legislation for the term "disproportionate adverse impact". That is just the normal term for what disproportionate would be. The Equality Commission for Northern Ireland's 'Guide for Public Authorities' defines adverse impact as occurring,

Those are the two definitions. However, it is intended to issue guidance on the call-in process, and that will provide guidance on those definitions. Of course, when that guidance is finalised, we will bring it back to the Committee.

Are there any questions?

Mr Boylan: Thank you very much. I am easing my way back in, so I have just a couple of points to make. I remember some of the debate on this. There are three points. There is the point about it being outside the powers of the council, the incompatibility with EU law and the compliance with the council equality scheme. In terms of the powers, when would that arise? I thought that, under the general power of competence, it would cover. It is not enshrined in the Act now. I am trying to get an example.

Ms Broadway: The general power of competence would cover cases where there is no other legislation to govern something. But, for example, if other legislation says that a council must do something in a particular way, or must not do something, and the council acts contrary to legislation and does that thing, the barrister or solicitor would bring that to the attention of the council.

Mr Boylan: We had a discussion about other international obligations before. You mentioned incompatibility with EU law. Have you considered that in terms of international obligations?

Ms Broadway: No, the advice we got from our legal advisers was it should be section 75 and other EC and human rights.

Mr Boylan: I asked because we are still going back to the minority rights and the whole call-in procedure. That is why we brought it up in the first place. Does your legal advice say otherwise?

Ms Broadway: That really covers section 75, quite a lot of which is a combination of what is in EU legislation and human rights.

Mr Boylan: The other point is on compliance or non-compliance with the council's equality scheme. We discussed the definition of good relations. Where is that in the realm of things?

Ms Broadway: The councils have a duty of equality and good relations under section 75 and, by mentioning the EC and human rights, that would be covered. They have duties, as public authorities, under section 75.

Mr Boylan: Do you feel that, in terms of equality of opportunity, that is all covered?

Ms Broadway: Yes.

Mr Boylan: We had a discussion before, even with the Minister, and we had brought it forward until there was a proper definition of good relations. There may be problems in this. I have been off, and I am bringing this issue back to the party because I have some concerns. We tried to get a proper definition of good relations that would narrow it down and tighten it for councils. I want clarity on some of those points.

Ms Broadway: The fact is that councils, as public authorities, have a duty to comply with section 75, which covers good relations.

Mrs Overend: Thanks for attempting to make it clear. I am not sure that I get every single thing. How are you progressing with the panel of legal experts that we talked about at previous meetings?

Ms Broadway: We are quite far along the way with the panel. As you can imagine, quite a lot research needs to be done, because it very much depends on the nature of the panel; that is, whether it is statutory or is something that could be done as a shared service across councils. If it is to be a statutory panel, then who will pay for it? It has implications for expenditure. For example, some councils have their own embedded legal teams. If you set up a panel, will it include those legal teams or not? It would have implications for those legal teams. The Minister will be looking at that shortly. It may be that, because of the nature of some of the issues around this, it might have to be consulted on. If you are placing an additional burden on councils by saying, for example, that they are responsible for setting up the panel, then I would imagine that they would want to be consulted on that issue.

Mrs Overend: So, you do not have a time frame.

Ms Broadway: We do not have a time frame, but I imagine that we will put the paper on the various issues to the Minister next week. As soon as the Minister has had time to consider it, we will bring a paper to the Committee.

Mrs Overend: Thank you.

Lord Morrow: I have listened as carefully and intently as I can to what Julie has been telling us, and I am still not clear in my own mind. Let us take an example. A council makes a decision and gets between 500 and 2,000 objections. Yet, the end result is that there is nothing wrong with the decision: it is not offensive, nor does it impinge on anybody. Yet, those 500 or 2,000 people feel that it does. Is this not an example of where the filter system is not working? Surely, it would indicate — it does in my opinion, anyway — that there is something wrong with the decision or that it is perceived to be wrong.

Ms Broadway: I suppose it comes back to whether it has a disproportionate adverse impact. For example, it may be that everyone in a council area feels that putting up fees for using council facilities has an adverse impact, but the question is whether the decision has a disproportionate adverse impact on one community or group — older people or younger people under section 75. It is up to the councillors, when calling in the decision, to articulate why they believe that it will have an adverse impact. Then, when the council is taking the decision again, it can take that into account and may overturn the decision because of the information that has come to light.

Lord Morrow: That is a fair enough example. Let us take another example: a community — a hamlet or village — is to be the location of a development that impacts directly on the whole community and, in the opinion of the community, impacts in a negative way. In comes a flood of letters, and we will say that 2,000 out of a community of 2,300 sign a petition. Surely that is a clear indication that the community feels that it is being adversely impacted; yet the council may decide, "We do not think so".

Ms Broadway: If people representing the community call in that decision, it could be that when the council makes the decision again it goes ahead with the original decision, for business reasons or whatever, but a qualified majority vote will be required. If a decision is called in by a representative of the village, in your example, then, if it is shown that the decision has a disproportionate adverse impact, it will require a higher level to be in favour the second time.

Lord Morrow: I think I follow what you say. Then this wise solicitor looks at it, but he or she resides in Belfast, when the problem is in Omagh. Do you think that such a person could easily identify with the problem?

Ms Broadway: This is one of the many issues with the panel. Does it cover all of Northern Ireland, or should there be a panel for particular areas? Solicitors from those areas will possibly understand the issues better. There are a lot of issues that need to be thrashed out to do with the panel. As you say, if you have somebody on the panel from a different council area, they may not understand all the issues. There are lots of pros and cons to the various ways of constituting the panel.

Lord Morrow: You could say, "Well, ultimately they can take the matter to court." That is fine, but it is about finding the resources to apply for judicial reviews and all that. Those things cost money, and communities do not have that sort of resources at their fingertips. They are just left with a bad decision. Somebody might say, "That is fine. I live miles away from them. Soak it up and get on with it."

I hope that we do not have to make a decision on this today, because I want to think this one through. I have not got it squared in my own mind, by any stretch of the imagination. That is not any slight on our witnesses, because this report gives an honest explanation, and I appreciate that. It has given me more food for thought to take away.

Ms Broadway: We all want to get it right.

Lord Morrow: Yes, rather than do it quickly.

The Deputy Chairperson (Mrs Cameron): Do members have any further questions? I do not think that we will be able to resolve this today, but I will put it to members whether they wish to consider the statutory rule formally today or wait until the Minister has considered the issue of the panel of solicitors?

Lord Morrow: The latter.

The Deputy Chairperson (Mrs Cameron): Is that agreed?

The Deputy Chairperson (Mrs Cameron): Thank you very much for your time.