Official Report: Minutes of Evidence

The Chairperson (Mr Nesbitt): It is the intention of the Office of the First Minister and deputy First Minister that the Departments Bill will proceed under the accelerated passage procedure. We welcome junior Ministers McCann and Pengelly, who will address the three issues that are required under Standing Order 42(3), which are to advise a Committee of:

The junior Ministers are joined by departmental officials Tony Canavan and Geoffrey Simpson. Junior Ministers, over to you.

Mrs Pengelly (Junior Minister, Office of the First Minister and deputy First Minister): Chairman and members of the Committee, in their introduction to the document 'A Fresh Start: The Stormont Agreement and Implementation Plan', published on 17 November 2015, the First Minister and the deputy First Minister stated:

One way in which the agreement provides for that will be to deliver on the commitment in the Stormont House Agreement to reduce the number of Departments from 12 to nine in time for the 2016 Assembly election.

Reform of the structures of government here has been an issue for a long time. There was a commitment in the Programme for Government to agree changes to the structures, and those changes were to apply in the next mandate. In 2012, the Assembly and Executive Review Committee produced a report on the reduction in the number of Departments that identified areas of commonality broadly comparable to what is now being proposed.

On 2 March 2015, the decisions that had been reached by the Executive on the new departmental structures in consequence of the Stormont House Agreement were announced in a statement by the First Minister to the Assembly. He set out a future model of nine Departments with all the powers, functions and services of the current 12 Departments. No functions will be done away with and no policies terminated as a consequence of the restructuring. The nine Departments are to be known as the Department of Agriculture, Environment and Rural Affairs; the Department for Communities; the Department for the Economy; the Department of Education; the Department of Finance; the Department of Health; the Department for Infrastructure; the Department of Justice; and the Executive Office.

Establishing the new structure will necessitate amendments to the Departments (Northern Ireland) Order 1999, which provides the basis for the existing 12-Department structure. That is the purpose of the Departments Bill, which is to be introduced in the Assembly very shortly. The Bill will amend the 1999 Order and provides for the establishment of a new nine-Department structure by renaming seven Departments and dissolving three others. The names of two existing Departments — the Department of Education and the Department of Justice — are unchanged.

The Bill is an essential element in the restructuring process. It sets out the framework of nine Departments as envisaged by the Stormont House Agreement, which was endorsed by the party leaders and agreed by the Executive earlier this year. It is a short Bill, consisting of three clauses, to establish the agreed new departmental framework.

Clause 1 renames seven existing Departments and dissolves three, as is required to establish the new structures. It references schedule 1, which lists all nine future Departments. Clause 2 references schedules 2 and 3, which, respectively, contain consequential amendments and repeals. The most significant of those is the amendment of the Departments (Northern Ireland) Order 1999 to take account of the nine future Departments. Clause 3 simply gives the title of the Act and the arrangements for the commencement of clauses 1 and 2 on a day to be appointed by the First Minister and the deputy First Minister.

Changing the name of a Department does not in itself have any immediate impact on its functions. However, the dissolution of three Departments will involve the reallocation of their existing functions, and there is to be some additional rearrangement of the functions of others. Those details are not dealt with by the Departments Bill; instead, the reallocation of statutory functions will be provided for in a separate transfer of functions order, which is currently at an advanced stage of preparation. We will bring the draft order to the Committee very soon for consideration.

Ms J McCann (Junior Minister, Office of the First Minister and deputy First Minister): I will continue, if that is OK.

Although it was initially hoped to introduce the Departments Bill at an earlier stage, it is only now, at the conclusion of the recent talks process and the publication of 'A Fresh Start: The Stormont House Agreement and Implementation Plan' that it has been possible to bring forward the legislation. The Bill reaffirms the commitment to reduce the number of Departments from 12 to nine in time for the 2016 election and commits to introducing the Bill in the Assembly no later than the end of November 2015. The Executive have agreed to the Bill being brought forward under the accelerated passage procedure, and the First Minister and the deputy First Minister have written to the Speaker giving notice of the Bill's introduction and of the intention to seek Assembly approval for the use of accelerated passage.

The decisions taken on restructuring and on the reduction in the number of Departments will provide for a leaner, more streamlined and efficient Administration. There will be fewer Ministers and departmental hierarchies, permanent secretaries, central management units and press offices, and support functions can also be rationalised. However, we emphasise that no functions impacting on the public are being done away with, and no policies are being terminated. These are changes to the machinery of government.

It would, of course, have been preferable if the Bill had been introduced in time to proceed under the usual processes for Assembly Bills. However, progress only became possible following the conclusion of the recent talks process. With limited time available before the end of the current mandate, the Bill can now complete its passage only with some foreshortening of usual procedures. It is essential that the new structures be ready immediately following the 2016 Assembly election so that an Executive can be formed on the nine-Department basis when the next Assembly convenes. To achieve that, the Departments Bill must complete its passage in the Assembly and the transfer of functions order receive Assembly affirmation in good time before dissolution in mid March 2016. Failure to do so would mean that restructuring could not take place in 2016, and the incoming Executive after the election would have to be formed on the basis of the existing 12-Department structure. Those special circumstances have occasioned this exceptional request to the Assembly for the use of the accelerated passage procedure. The commitment in 'A Fresh Start' to a:

should reduce the likelihood of such circumstances reoccurring. 'A Fresh Start' has provided a basis for addressing some of our most intractable issues. It has made it possible for us to move forward with departmental restructuring, but the opportunity needs to be taken quickly, and we would welcome the Committee's support for our intention to seek Assembly approval to progress the Departments Bill through the accelerated passage procedure.

The Chairperson (Mr Nesbitt): To be clear, it is not up to the Committee to grant accelerated passage; that is up to the Assembly. You are simply asking whether we as a Committee will support you.

What if we did not have accelerated passage? What is the difference in the timeline between the accelerated passage procedure and the normal procedure?

Ms J McCann: As I said in my closing remarks, without using the accelerated passage procedure, it would not be possible to introduce the nine-Department structure after the election. We would be left with the 12-Department structure.

The Chairperson (Mr Nesbitt): Are you saying that, if it did not get accelerated passage, the Bill could not become law before the end of the mandate?

Ms J McCann: I am not sure about the law side of it. Do you want to come in on that?

Mr Geoffrey Simpson (Office of the First Minister and deputy First Minister): A transfer of functions order will need to be made, and that would be done after the Departments had been restructured on a nine-Department basis. That additional element after the Departments Bill has completed its passage in the Assembly needs to be factored it. That would have to be done before dissolution in March.

The Chairperson (Mr Nesbitt): Work on the reorganisation of the functionality of the nine Departments has begun, so it is not dependent on this.

Mr Simpson: Yes.

Mrs Pengelly: That work has commenced. There is a change management process in place, led by the head of the Civil Service. The process commenced back in the spring.

The programme board is being led by the permanent secretary in the Department for Employment and Learning. I understand that other work streams are being led by other senior responsible officers (SROs), with the aim and commitment given by the head of the Civil Service that the new departmental structures will be ready by day one of the next Administration.

The Chairperson (Mr Nesbitt): Functionality is existing functions being transferred from 12 departments to nine; it does not include looking at new functions.

Mrs Pengelly: No.

The Chairperson (Mr Nesbitt): For example, representatives for Strangford have a concern about coastal erosion, so we have to think about coastal management. Some of us thought that this was an opportunity to get it up the agenda, but we are being told that, because it will be a new policy, it will have to go out to consultation. It seems like a wasted opportunity.

Mrs Pengelly: That is our understanding. I assume that, if new departmental policies were being suggested, there would be a procedure for that. For example, those would be proposed and go out to consultation, and the next Administration could bring forward amending legislation or whatever would be required.

As you can see from the Bill, the detail on the statutory functions of Departments will be outlined in the transfer of functions order and not in this legislation. We can certainly commit to corresponding with you about what that procedure will look like. We took some advice on the consultation on this legislation. That advice was very clear that, because no departmental functions were being dropped and none additional coming in, there was no requirement for public consultation. That would not be the case if there were to be new proposals. There will be a procedure for that, so there is an opportunity moving forward.

The Chairperson (Mr Nesbitt): When did the Executive agree to accelerated passage?

Ms J McCann: It was not at the most recent Executive meeting but at the previous one, which was on 19 November.

Mr Lyttle: You are very welcome today. It is customary to congratulate you on your appointment, junior Minister Pengelly. I hope that, with your fellow junior Minister, you will visit the Committee more often than has been the case in the past. That leads me on to my first question: why is the Bill being introduced so late in the mandate, and do you think that that has reduced our opportunity to scrutinise properly what is proposed, given its significance?

Ms J McCann: To be honest with you, Chris, I understand the concern about accelerated passage. I was on Committees myself, so I understand why Members will be concerned. The reason is that the agreement was made in 'A Fresh Start' only in recent weeks. It was only after that that we could put this forward as an agreed Executive decision. I fully understand the concerns that you have that the Committee will not be given enough time to scrutinise the Bill. The timing is really crucial, however.

Mrs Pengelly: It is worth adding that the issue has been around for some time. AERC had looked at the issues, but I am not aware that it had proposed, for example, any new statutory functions. When AERC considered the issue back in 2012, its proposals broadly aligned with what is proposed here. The proposals were also released in the Stormont House Agreement, so they have been in the public square, as it were, for the past year. There is very clear and broad agreement to try to ensure that this happens before the next Administration. There is an urgency to this, but there has been considerable discussion around the issues for the past number of years.

Mr Lyttle: OK. I want to ask about some of the changes that will be delivered. The new Executive Office will, obviously, have reduced functions compared with the current OFMDFM: will that lead to a reduction in the number of Ministers — for example, junior Ministers — or special advisers (SpAds)?

Ms J McCann: The overall structure of the nine Departments will lead to a reduction in the number of Ministers and in other areas, which I mentioned in my opening comments. If there are only nine Departments, there will not be any call for the number of SpAds that there currently are in the 12 Departments. There will be reductions right across the piece, including in the number of permanent secretaries.

Mrs Pengelly: It should be said that no decision has been taken on those matters. I am sure that there will be consideration given to them. I also add that there are a number of special advisers in the Office of the First Minister and deputy First Minister, but there is a range of functions, and it is not just departmental policy areas. There is a very active role for them in the Executive agenda and in examining and trying to get agreement on a range of Executive papers. Therefore, the role and responsibilities of OFMDFM —

Mr Lyttle: They cannot have been very busy in the past year, given the lack of Executive meetings.

Mrs Pengelly: I am of the view that they have been exceptionally busy. Nevertheless, these issues have still to be decided on, and I understand that that will happen in due course.

Mr Lyttle: For example, is it under consideration to remove junior Minister roles from the Executive Office and have junior Minister roles in other Departments that have significant challenges, such as the Department of Health?

Mrs Pengelly: As outlined, no decisions have been taken on that issue. I am not sure that there has even been consideration of that, as yet. I assume that there will be in due course.

Mr Lyttle: OK. I will turn to specific issues. OFMDFM obviously had responsibility for considering young people's issues — significantly, the children's strategy and childcare provision. Where do you see those functions being dealt with? Are they going to be in the most appropriate Department?

Mrs Pengelly: As outlined — sorry.

Ms J McCann: Most of the issues that you mentioned will go to the Department of Education. Obviously, the appointments process will remain with the Executive Office, but 'A Fresh Start' lists what functions are coming out of which Departments and where those will be relocated. It will be an issue for further discussion before the Bill comes forward, but 'A Fresh Start' outlines that in great detail.

Mr Lyttle: Why do you think that the Department of Education is the most appropriate Department for those key areas?

Mrs Pengelly: It was an issue for Executive consideration, but very few of the issues are clear-cut. You have to look at the general functions and at where things align most appropriately. The Department of Education has always held a range of functions for children and young people. It has not simply been an "education" Department, so it is fitting that those functions are being moved there. However, as I said, that was not a decision for junior Ministers; it was a decision for consideration by the Executive and those parties.

Mr Lyttle: This is my final question, Chair. Another key cross-cutting issue is good relations. My understanding is that it is proposed that good relations will be split between the Executive Office and the Department for Communities: can you update us on that?

Mrs Pengelly: The idea is that the Executive Office will continue to try to drive forward cross-departmental policy development. One of the key challenges that we have identified in the Office of the First Minister and deputy First Minister is that, where a policy is clearly cross-departmental or cross-agency, it can be difficult to get traction in a Department with a much narrower statutory or policy remit. Therefore, it has been challenging to drive forward those agendas from the centre, but our clear understanding is that that is the right place for that to happen.

Policy responsibility for the like of good relations remains at the centre. We have looked at delivery mechanisms for that. For Together: Building a United Community, we adopted the approach of having an OFMDFM-led programme board with SROs for each of the signature projects in each of the Departments. Some of that has worked very well, although, for some SROs, it has been a little more challenging. We are acutely aware of the challenges around having an effective delivery mechanism where things sit in the Executive Office, but, as to who will be responsible under 'A Fresh Start', the proposal is for it to be an arm's-length body. There is therefore probably a change there from the Stormont House Agreement through to 'A Fresh Start'.

Ms J McCann: Community Relations Council (CRC) functions will not be split across Departments. They will be kept at the centre.

Mr Lyttle: Therefore, what good relations role is going to the Department for Communities?

Ms J McCann: The CRC roles are not splitting at all.

Mr Lyttle: It is not going there. OK. Clear feedback from many of the consultations and inquiries that we have had was that good relations is of such significance that it should be across all Departments because it needs that strategic Executive delivery.

Ms J McCann: As you know, councils will be delivering on good relations as well. That will also happen, but the main body of good relations functions will stay in the Executive Office.

Mr Lyttle: Thank you.

The Chairperson (Mr Nesbitt): No one else has a question at present.

If accelerated passage is not granted by the Assembly, which Committee do you foresee taking the Committee Stage?

Mrs Pengelly: We have asked for advice on that matter, and my understanding is that we are still waiting for that advice to come back, unless we have heard something very recently. We will presumably follow that advice.

There is no reaction from Tony. I am not sure what that means.

Mr Tony Canavan (Office of the First Minister and deputy First Minister): This Committee would normally carry out the scrutiny functions for the Bill.

The Chairperson (Mr Nesbitt): Members, we are being asked to support a significant change to the way in which the devolved institutions do business but without a lot of the detail, not least on the transfer of functions order. Can you give the Committee an assurance that we will get the necessary time to scrutinise that when it comes forward?

Mrs Pengelly: My understanding is that it is currently at an advanced stage. I am not sure on the exact timing, but, if it is at an advanced stage, we will strive to get it to the Committee as soon as possible to maximise the examination of it. However, I point out that, as previously mentioned, because it will redistribute the current functions, there is to a certain extent a limitation on what changes there will be around the distribution of functions across the new nine-Department structure. In any case, we will strive to get it to you as soon as possible to ensure appropriate scrutiny.

Ms J McCann: We certainly give a commitment to work with the Committee on that.

The Chairperson (Mr Nesbitt): I emphasise again that there was an opportunity here to look at functions that are not currently taken on board. I know that there is a DUP Minister working on coastal erosion/management. The deputy First Minister gave me an assurance in the House that he was open to looking at it, but, clearly, under this set of proposals, it will not become a function per se.

Members, we will have to decide on this without having a lot of the detail and without knowing how many Ministers, particularly junior Ministers, there will be. For example, we do not know whether there will be a junior Minister for mental health, which I think would be an incredibly practical and popular move by the Executive. We are not yet seeing the transfer of functions order. The devil of the detail is not available to us at this time.

We appreciate you coming along to speak to us. It was remiss of me not to welcome junior Minister Pengelly: I wish you well in your time in post. Thank you very much.

Mrs Pengelly: Thank you.

The Chairperson (Mr Nesbitt): We now move on to making a decision. Members, it is a straight choice. I have to say that I am not persuaded that accelerated passage is required. A short Committee Stage would be very useful, given the amount of detail that is not available to us.

Mr Maskey: It is a fairly clear-cut issue. I take your point about accelerated passage generally — it is not something that I like to do, if we can avoid it — but we are up against time, and I think that most people will just want to get it done. I do not think that there are any surprises in the Bill. We could all argue for a junior Minister to take the lead on particular policy issues in almost any Department. You could say the same thing about the Department for Communities, for example, which will be a huge Department. It will have multiple functions, with each being very important in its own right. You could argue that.

I presume that the First Minister and the deputy First Minister at the time will decide whether they need junior Ministers, on the basis of what the demands will be. Who knows who the First Minister and the deputy First Minister will be then? I am happy to agree to accelerated passage being granted.

The Chairperson (Mr Nesbitt): OK. We need a proposal.

Mr Lyons: It is good to make it clear that the Bill is not about the transfer of functions. I know that Chris was starting to ask questions on that. There are a lot of questions that we will want to ask around the transfer of functions, and we will hopefully have an opportunity to do that.

I have absolutely no problem with the Bill. It is very straightforward, and I do not think that too many people, even around this table, will have any issues with what is in it. The most difficult stage comes next, which is about what functions will be transferred. However, what we have here — reducing the number of Departments to nine — is straightforward. Additional time would have been helpful, but we should just get on with it.

The Chairperson (Mr Nesbitt): That is the point: it would be useful to have more time. Nobody is arguing against the rationale for going from 12 Departments to nine; it is accelerated passage that is the issue.

Mr Lyttle: Chair, allow me to say very briefly that I share those concerns. Most likely, I will reluctantly accept accelerated passage, but the full consequences of the failure of the Executive to meet are transpiring and are impinging on what would otherwise be normal process.

The Chairperson (Mr Nesbitt): To sum up, nobody is arguing against the rationale of going from 12 Departments to nine: the question is the rationale for accelerated passage. Of course, it is also important to bear it in mind that we are being asked to support something that we cannot stop. It is up to the Assembly to grant accelerated passage. I ask for a proposal for or against accelerated passage.

Mr Lyons: I propose that we support it.

Mr Maskey: I second that.