Official Report: Minutes of Evidence

The Chairperson (Mr Irwin): I welcome Ms Louise Warde Hunter, head of central policy; Ms Colette McMaster, director of food, farm and rural policy division; and Astrid Stuart, head of rural proofing branch. I suggest that officials address each key issue in turn and then take questions. This may take some time, but at least we can be sure that all areas will be covered. I ask you to kick off, and we will take it from there.

Ms Louise Warde Hunter (Department of Agriculture and Rural Development): Thank you very much, indeed, Chair. You have covered the approach, which I hope members will find helpful. I appreciate the pressures on the Committee's time.

There are 11 issues to go through. As the Committee will probably deem the first two to be the most substantive, I will do a bit more of a preamble on those. I want to give you a quick canter through the 11 issues, just to signpost them for members, and then I will go into the first issue, before pausing to take members' questions. The 11 issues are as follows: the nature of the statutory duty in clause 1; the inclusion of some public authorities other than Departments and councils in the Bill; the perception that the Bill lacks teeth or sanctions; the scope of the statutory duty in clause 1; the power for DARD to issue guidance, advice and information; the provision of training; the transparency of reporting arrangements; the purpose of the proposed cooperation arrangements; the terminology used in the Bill; the measures to review and evaluate the effectiveness of the Bill; and, finally, whether the Bill should make specific provision for decisions on rural school closures — I think that was raised by Mrs Dobson previously.

If I may, I will just make a very quick point before going into the first issue. We recognise that primary legislation is, by its very nature, high level. The purpose, of course, is to change the law, and therefore the Bill contains only the statutory duties and powers that are required to put the new arrangements in place. Guidance issued by DARD will contain greater detail on how rural needs are to be considered by the public authorities, such as how to complete a rural-proofing assessment. I just wanted to refresh our minds on that.

The first issue is the nature of the duty, which is in clause 1. Specifically, the nature of the duty means the issue of "due regard". Committee members and Chair, you will recall this was raised. This is the bit that requires public authorities to consider rural needs in their policy development and service delivery. We have to consider the language. The wording of the duty to consider rural needs should not be read in isolation; it should be considered in the context of the Bill and taken as part of the whole package. The duty in the Bill to consider rural needs, together with the monitoring and reporting arrangements, will require Departments and councils to be able to demonstrate clearly that they have considered rural needs when developing policies and strategies and delivering public services. They will be required to provide information on how they fulfil the duty, which will be published and laid before the Assembly. DARD also plans a range of non-legislative measures to support the Bill, including revised guidance, which I mentioned a moment ago, and training, to support public authorities in carrying out their duties.

A number of stakeholders suggested in their written and oral evidence to the Committee that the wording should be amended so that the clause reads:

As I explained in my earlier briefing to the Committee on 3 November, we considered, during the drafting of the Bill, whether the duty in clause 1 could be framed in terms of "due regard" to rural needs rather than "consider" rural needs. As I outlined to the Committee at that time, we had been working on our understanding, based on our legal advice, that a duty to have due regard was a much higher level of duty and could result in an increased administrative burden on duty holders. We have consulted our legal advisers again, and this has been confirmed in legal advice since the issue was raised by stakeholders at the evidence session last week. Moreover, as a duty to have "due regard" is justiciable, it would bring an increased risk of legal challenges to government policies and decisions and the costs associated with such challenges. I may not have made that crystal clear last time, but it is very important that I raise it now.

Stakeholders have suggested adding wording to clause 1 requiring public authorities to mitigate any adverse impact that a policy or strategy may have on rural communities. Again, we discussed that issue with the Committee previously. A duty to take mitigating measures would go beyond the aim of this Bill, which is to ensure that rural needs are considered as an integral part of policy development and service delivery across government and that any impacts on rural areas are properly assessed, so that an informed decision can be made on whether a policy should be adjusted to meet rural needs. However — this is the distinction — a duty to mitigate would mean, effectively, that public authorities would be required to undertake their functions in a particular way. That would not only have financial implications, but there could be circumstances in which compliance with a duty to mitigate would require a public authority to change a policy in a way that was unlawful, potentially, for other reasons, because, for example, of European law or human rights obligations. Furthermore, mitigation may not be the only action a public authority could take in circumstances where an adverse impact was identified. For example, it could decide not to proceed with the proposed policy that could cause the adverse impact or it could take some other form of positive action. For those reasons, a duty to "consider rural needs" has been included in the Bill, rather than a duty to mitigate or take reasonable steps to mitigate.

Just before I pause, I will make a point on the nature of the duty with regard to guidance. The Northern Ireland Local Government Association (NILGA) in its oral evidence suggested including an additional requirement in the Bill for public authorities to have regard to any guidance issued by DARD. If this is something that the Committee wishes to pursue, we will need to consider the implications it would have and identify the benefits, if any, it would bring, over and above the existing provisions.

I will pause here, Chair. We are happy to take any questions on the nature of the duty as outlined in clause 1.

The Chairperson (Mr Irwin): Are you saying, in effect, that you feel or your legal advice states that what the public authority must have "due regard" to is not suitable?

Ms Warde Hunter: I am happy to invite Colette McMaster to contribute. Our legal advice has been that this would be the increased imposition of a duty on the duty holders and could bring in — and this is a key thing and is something that the Committee has had an interest in before now — administrative, bureaucratic and financial implications. Our legal advice has been entirely consistent. We returned to the issue after stakeholders raised it, and we got, perhaps not unexpectedly, the same advice. I needed to air that with the Committee. It certainly seems to be an elevated and more enhanced duty, but it brings with it the corollary of additional implications, potentially bureaucratic, administrative and financial ones.

The Chairperson (Mr Irwin): Are you proposing a duty to mitigate?

Ms Warde Hunter: No. Again, it is back to the issue of whether a duty to mitigate would even have been required. Using the word "mitigate" could place a Department or statutory body in a potential conflict position, because it could be inferred that it is being prescriptive, and an authority or Department could then, potentially, find itself with a clash between existing law — European human rights law or other legal duties — and the duty to mitigate. The point I was trying to make is that there are other ways that do not require legislation, in which public authorities could look to take positive action, but articulating this in the Bill has a very specific implication.

Mr McMullan: How do councils deal with section 75 when there is a diverse range of people living in a council area? They would have the same problem. How do they get over that?

Ms Warde Hunter: I will invite Colette or Astrid to respond. Forgive me, but I do not know the precise the wording of section 75. I understand the principles of section 75 absolutely but, in terms of the requirement placed on councils, I am not familiar with the exact wording. Is it about a "duty", "due regard" or "consider"? I understand what you are trying to say though about the implications.

Mr McMullan: The way I read this is that it will be up to councils to take decisions. They can go different ways to take a decision and would not have to adhere to what is in front of them. I am skirting around this a wee bit and being very careful in what I am saying. We are giving councils too much latitude here. There is nothing tying them down to really accepting rurality. How do the bigger councils separate rurality from the urban way of life? That is what this is all about.

Ms Warde Hunter: I will invite colleagues to chip in and support my answer to you, Mr McMullan. My understanding has always been a requirement that — and that is specifically what you are interested in at the moment — the local authority has to consider the needs of the rural dweller in any decision it is making, in the design of its policy, and in the implementation of its policies. DARD is not proposing, through the current wording, to prescribe exactly how any local authority or Department should do that, but we are requiring that they must evidence the fact that they have taken the needs of rural dwellers into account in developing and implementing their policies and services. They must be able to demonstrate not only that they have done it but how they have done it. Through the collation of information, which is another power later in the Bill, we will then be able to hold them to account. Chair, may I bring Colette in to support that answer?

Mrs Colette McMaster (Department of Agriculture and Rural Development): The Bill will put a duty on Departments and councils to consider rural needs. That will be a statutory duty, and they will have to be able to report on what they have done to demonstrate that they have considered rural needs. It will be a duty as opposed to something that they can choose to do. The overall intention of the Bill is to embed this as part of the routine in which councils and Departments consider and design policies, and make decisions about services.

You spoke about having looked at the use of the term "due regard" and how that would be a higher level duty. We have weighed the balance of how the Bill can deliver the benefits of getting an embedded way of considering rural needs in place against the potential costs and administrative burden of doing that. A "due regard" duty would be more onerous and more administratively burdensome. After weighing these up, the benefits can be achieved, in the Bill as drafted, through using the word "consider".

Mr McMullan: I am only going by what NILGA and the Society of Local Authority Chief Executives (SOLACE) have both come out with on the phrase "due regard". They were happy with it, said it was workable and did not see a problem with it. The rural White Paper has been out since 2002, and there is no evidence that councils wanted the phrase "due regard" taken off it in any way. They ticked the box and moved on; nothing has changed. This Bill is all about getting that change.

Mrs McMaster: Rural proofing has been a commitment on Departments since 2002, but it has not extended to councils before. This Bill extends it beyond Departments, which will mean councils doing it for the first time. The timing is good, because they will be doing it as part of their progressive planning. So, there is an opportunity for them to start to build this in as part of their new processes.

Mr Byrne: I am concerned that if the Department sticks to the phrase "must consider rural needs", it will be a fatal flaw in any effect the Bill will have. The whole essence of the Rural Needs Bill is to bring in something meaningful that will challenge DARD and other Departments to make sure that they have a statutory duty to address rural needs meaningfully.

Given the consideration that other bodies like SOLACE, NILGA, ourselves and others have made about having a meaningful Bill, I request that the Department gives due consideration to the most important sentence in the Bill in relation to progress that is required. Otherwise, we are going to have a half-baked Bill that will not have the desired consequences.

Ms Warde Hunter: I appreciate that comment and I am happy to bring it back. I should have said in my introductory comments that we have brought to the Minister all the information on what the stakeholders have been saying and on the issues that have been aired to the Minister, and she is considering things. We will convey any comments the Committee makes today back to the Minister as quickly as we can.

Mr Byrne: Can I further clarify, Louise, that you said that the Department's concern would be in relation to the legal and resource implications?

Ms Warde Hunter: The legal advices were based on our understanding the distinction between the two types of duties. They pointed out that the due regard duty, potentially, had greater administrative and resource implications. So, there was a corollary to the higher threshold of the other duty.

Mr Byrne: I think that we should aim for the higher threshold; otherwise, we will be accused by future generations of missing a trick when we had an opportunity to do something relevant.

Mr Anderson: Following on from Joe, you tell us that we cannot use the phrase "due regard" because it will have an extra administrative burden or that there will be financial implications, but we talk about giving this Rural Needs Bill teeth. I am concerned that we cannot put those words in and about leaving the word "consider" in the Bill. If we use that language instead of giving it teeth by using "due regard", it will have a lesser effect. Can you explain why the Department wants to go down that line?

Ms Warde Hunter: In reply to the earlier question from the previous member asking whether there was a legal implication, I had said that the duty of "due regard" could be subject to judicial review, which could bring with it an increased risk; and, again, that might have the financial implications of legal challenges to government policies and decisions. So, legal advice is designed to give you the full picture, including the potential for the level of risk that government and local authorities might be exposed to. It was weighing up the balance —

Mr Anderson: Do you think that this is a high level of risk legally?

Ms Warde Hunter: The advice has been repeated. The risk is elevated by placing this duty, and I will invite colleagues who have spoken directly with the Departmental Solicitor's Office (DSO) in particular to comment on that. The DSO told us that we have an increased risk, that is, an increased threshold and a higher level duty and an increased risk of legal challenge.

Ultimately, this is a decision to be taken, and this is the power of bringing it to the Committee to test the waters as to whether you put something on the statute books. If the implications are that there will be further challenges to government, potentially, through judicial review, is that what is desired when the objective is about trying to ensure that we conduct analysis, and undertake and commit to reflect rural needs in the development of policies and delivery of services? Is this a level of risk that government is prepared to live with?

Mr Anderson: So, how is that level of risk lessened if we use the word "consider"? Is it giving the Bill fewer teeth? Is the risk not there if we use the word "consider"?

Ms Warde Hunter: The word "consider" is different. It is the legal interpretation of what that means.

Mr Anderson: Interpretation.

Ms Warde Hunter: Yes. To go back to —

Mr Anderson: Do you not agree that the Bill is less effective if we use that word, getting away from the legalities of it?

Ms Warde Hunter: Clearly, the impact of the language could be stronger. The phrase "due regard" carries a higher threshold and, potentially, a heavier weight, including a higher risk. The implications of that have to be weighed in the balance when placing a statutory duty at all in the first place.

If the objective was to put rural needs and the needs of rural dwellers firmly on the map, which is clearly something that the Executive wanted to do in 2002 and 2009, and to put in place a statutory duty, is saying "consider" an important and efficient way of doing that? Do you want to go even higher than that and say that the level of the duty has to be framed in the language of "due regard"? With that comes the attendant risk. That has been a balancing act. When the Minister brought her policy and consulted on it and weighed all of that up, she went with the phrase "consider" because of what that denoted. I do not know whether you would like any other colleagues to help complement the answer that I have sought to give you, Mr Anderson.

Mr Anderson: You have explained that quite well, Louise. With the higher level of effectiveness of the terminology, you are telling us that we run a higher risk legally.

Ms Warde Hunter: Potentially. That is a very important issue to consider. However, I am hearing around the table the challenges around the rigour of the higher duty. Some members are wondering now whether that was the desirable thing if you are really going to make an impact with the Bill.

Mr Anderson: Thank you.

The Chairperson (Mr Irwin): OK, members?

Ms Warde Hunter: Are you happy if I keep going, Chair?

The Chairperson (Mr Irwin): Yes.

Ms Warde Hunter: I have to figure out where I am in my notes.

The next area is the inclusion of other public authorities from the outset. There is a call by a number of stakeholders for the inclusion of other public authorities, in addition to Departments and district councils, on the face of the Bill. This issue was also raised during the Second Stage debate. As we have explained in previous briefings on the Bill's provisions, one of the reasons why the Bill was drafted to include a power for DARD to extend the Bill to other public authorities at a later stage, rather than specifying them in the Bill, is to allow for further consultation on which other public authorities should be included and from when. This will also allow the new arrangements to embed effectively in central and local government before extending them further to other public authorities. As a result, other bodies will have a reasonable time to prepare for the introduction of the new statutory duties to be placed upon them.

The comments from stakeholders support the extension of the duty to other public bodies. What they have asked about is the possibility of including other authorities on the face of the Bill from the outset. The Committee will be aware that this issue was raised during the Second Stage debate and that the Minister has indicated that she is open to considering the issue further. That is the latest update on that. I am very happy to take any questions that members might have on it.

Mr Byrne: This stipulation about the type of body that is going to be required to address the issue is crucial. Last week, I raised the issue of the voluntary and community sector very often being involved in partnerships with service level provision for the elderly, for example, some preschool provision and the rural community transport partnerships. Is there any way that we can encompass that role, which has developed almost in a haphazard way but is providing a very important function and service in rural communities? I am worried that they are going to get shafted, if you will pardon the expression, if we do not give some consideration to having a wider definition of the bodies charged with delivery of the rural needs service.

Ms Warde Hunter: You are making a specific interpretation, Mr Byrne, around extending the duty to other statutory partners. The purpose and intent of the Bill was to place a duty and requirement on Departments and local authorities and, potentially, other public bodies. We know that there is a list of statutory bodies that are considered partnership bodies, which the Committee for the Environment is looking at that at the moment. There is a list from that other Bill that is going through.

As somebody who used to work for a long time in the voluntary sector, I understand the principle of including the third sector, as it is a very important delivery mechanism. However, this would risk placing a duty on NGOs and voluntary organisations to demonstrate how, in shaping policy and delivering their services, they take account of rural needs. It takes me back to the conversations that we had about how you would work with the private sector, what would be the remit of the Bill and how it could possibly influence the behaviours of private business in terms of their appearance, support, visibility and contribution in rural communities. Coming from the perspective of wanting to put our arms around the NGOs — I have great respect for the sector — my concern is that there would be quite serious implications for that sector if we placed the duty on it. I have to confess that I even wonder whether it would be possible to do that. I am unsighted on that bit. I understand the spirit of the question, but I am not sure that this measure — this duty — is the appropriate vehicle.

Mr Byrne: I recognise what you are saying, Louise, and I accept that there is a haze of uncertainty. However, given the reality of what has been happening with rural services and provision over the last 20 years, we have to give some recognition, in some way, to the good work done by those voluntary and community groups or partnerships, which very often get some grant aid from Departments or councils. They have developed an infrastructure and a service provision that is very relevant at a local level. I certainly believe that the voluntary and community sector contribution has to be recognised, at least in a baseline assessment of the resourcing that has gone on in the past and the infrastructure that has been established. If we had not had the voluntary and community sector getting involved on a needs basis and on a service basis, we would be in a much worse position than we are in. As a consequence of the Bill, we want to get to a better position relative to the current position that we are now in.

Ms Warde Hunter: I understand that. I think that recognising the contribution made by voluntary and community organisations to rural communities and the delivery of services, in partnership with statutory bodies, is very significant. I go back to my point: I am not sure that, in seeking to acknowledge and pay respect to the third sector, as I call it, in that way, the measure and the duty in the Bill that we want to place on Departments, local authorities and other public bodies is the right way to do it. Having said that, I recognise that — this came out in the stakeholder comments — rural voluntary and community organisations will be very important in how the Bill is given life and how the legislation is enacted, because I have no doubt that they will take an active role in monitoring and holding to account Departments, local authorities and other bodies. I think that they will have a very distinctive role to play, given their immense knowledge of the needs of rural dwellers, in their contribution to monitoring and, indeed, evaluation. If the Bill successfully makes it on to the statute book and then, no doubt, comes to be reviewed, they will be part of the constituency that will need to be involved in reviewing the efficacy of the Act.

Mr McAleer: The Bill obviously applies to government Departments and councils, but when you have a situation whereby, for some Departments, most of their functions are discharged by ALBs, how does it make sense that the Bill only applies to the Department but not to the ALBs that perhaps discharge most of the responsibilities of that Department?

Ms Warde Hunter: What we were seeking to do was make provision for the other non-departmental public bodies to be added to it. Colette has helpfully just opened up the page. We were already looking at what other bodies might be involved. The list that I have in front of me, I suspect, bears a very close resemblance to the list that is being scrutinised by another Committee at the moment. In our consultation, we asked what other bodies might be involved — the Education Authority; the health and social care trusts and board; the Public Health Agency; the PSNI; the Housing Executive; the Fire and Rescue Service; Invest NI; the Arts Council; Tourism NI; Sport NI and the Commissioner for Older People for NI . There was quite a range brought up. That is the weighing up at the moment as to whether the proposal is to bring forward the list that appears on the face of the Bill from the get-go, but those organisations themselves were not individually consulted, nor were other ALBs. For instance, I do not believe that our own largest ALB, the Agri-Food and Biosciences Institute, was specifically consulted, so there may be issues around that. That is not to say that it could not happen, but the point was that we were making provision that those could be added at a later date. Is that right, Colette?

Mrs McMaster: That is right. Some of them, as part of the consultation, came back and said that they were already doing it on a voluntary basis anyway and would be happy to be included on the face of the Bill, but not all ALBs came back. That was the thinking behind having a power to extend the provision later, because there would be a wider consultation. For those organisations that were not already doing it, that extension would allow time for them to prepare and get ready to start doing it. That is the thinking behind the existing provision in the Bill.

Mr McAleer: That leads on to my next question. Rural proofing has been around since 2002, so most of those organisations — all of them — should be aware of what it entails. What was the reason for not including some of the organisations that you have already referred to? If they believe that it will take them time to work out how it will impact upon their decision-making and policy development, is there any merit in looking at the possibility of the Bill impacting on them at a later stage once they get their heads around what is required of them?

Ms Warde Hunter: That is certainly a potential option. If a list was to appear on the face of the Bill, I am sure there could be an issue about when it might then come into effect. I think that could very well be an option.

Mrs McMaster: The commencement of a particular provision can be provided for in the Bill when we commence different parts. We concluded after the consultation that we would provide the power to extend in the Bill, so, as it stands, that is what is in the Bill. If, for example, you were to explore listing arm's-length bodies on the face of the Bill at the outset, there would be a question about which ones you would include and which ones you would not. There is a question of whether it is appropriate. There are a huge number of them. Are some more relevant than others? That might be the question. There are different ways that you could look at that. Is it about thinking of those who are more likely to consider rural issues or have an impact on rural issues? There is no definitive list. I know that that sort of approach has been considered as part of local government establishing community planning processes. For example, some work has been done on identifying the NDPBs who might be community planning partners. Is that an appropriate approach to take, or is there is a different way of doing it for the Rural Needs Bill? As we have not gone down that road, there are areas that would still have to be considered if that was something that you wanted to explore.

Mr McAleer: I have one final point. You will know from the evidence that we have gathered from the stakeholders that there is a very strong view that the Bill should be as strong and as wide-ranging as possible from the outset. That was unanimous from what we picked up and one of the key issues that were raised. If the Bill will apply to all Departments, surely the rationale is it should also apply to all or most of their arm's-length bodies.

Ms Warde Hunter: As an extension of that.

Mr McAleer: It will apply to all the Departments.

Ms Warde Hunter: Absolutely. I take that point. I am very happy to take those additional comments back, specifically on the automatic extension to ALBs and the issue, if there is one, on the potential timing for that provision to be commenced. One issue on my mind is that, in putting a list in the Bill, one would want to make sure that, if that list needed to be added to, there was some other provision so that it could be added to. The list may be the best or most appropriate list now, but it clearly would not be exhaustive to cover every eventuality, because things change in the future.

Mr McAleer: Presumably the subordinate legislation would reflect that to an extent.

Ms Warde Hunter: It could, yes.

The Chairperson (Mr Irwin): Is there no way of including them without naming them individually? Probably not.

Ms Warde Hunter: As far as I know, it has to be. How many did I rattle off there? About 12 or 13? They would all have to appear as is.

The Chairperson (Mr Irwin): Where do you draw the line? If you went in to each one, there are probably more than 12 or 15. I would think that there is quite a number.

Mrs McMaster: Exactly. Perhaps Astrid can come in, but when we looked at it, we saw that there was no specific definition of an arm's-length body.

Ms Astrid Stuart (Department of Agriculture and Rural Development): We looked at and discussed the possibility of having a generic term for arm's-length bodies or non-departmental public bodies, but I understand that there is no legal definition of what those bodies would be. If we got into that, we would have to define what we mean by non-departmental public bodies, which bring us back to where we are.

The Chairperson (Mr Irwin): Square one.

Mrs McMaster: With the list.

The Chairperson (Mr Irwin): Any other members?

Ms Warde Hunter: Shall I just keep going?

The Chairperson (Mr Irwin): OK.

Ms Warde Hunter: The next one was the issue of the Bill's lack of teeth and enforcement mechanism and sanctions. We have outlined before how the monitoring and reporting arrangements that will be provided for the Bill are intended to ensure that public authorities provide information on how they complied with their duty, and that information will be made available for scrutiny by the Assembly and its Committees. The Department will work with public authorities in designing the content and format of the annual monitoring report to make sure that it is meaningful and gives a full account of how they have discharged their duty to consider rural needs. The report will be the means by which the Assembly can hold public authorities to account. Essentially, the proposed reporting requirements are the teeth within the Bill, and any sanction would be clearly within the hands of the Assembly.

It is difficult to envisage what would be an appropriate sanction on public authorities should they fail to comply with their duties under the legislation. It certainly would not be appropriate to include a power in the Bill for DARD or the future Department of Agriculture, Environment and Rural Affairs to sanction them; our legal advice has confirmed that to be the case. The monitoring and reporting arrangements within the Bill will be supported by non-legislative measures. Previously when we have spoken to the Committee, we have advised you that we believe that the cost of establishing a new enforcement mechanism or independent monitoring body would probably be prohibitive and unjustifiable, given the fiscal environment that we are in at the moment and, particularly, the existing routes of redress that are available.

It is important to highlight that we gave a commitment in our response to the public consultation on the Bill's policy proposals to consider how an element of independence could be incorporated into the process, and we want to take that forward in developing the implementation arrangements for the Bill. For example, we wish to explore how the interdepartmental committee on rural policy can play a role, and how best to incorporate stakeholder engagement into the new arrangements, which I referred to in a previous answer to Mr Byrne. That is where I have got to on the enforcement mechanisms, sanctions and the issue of lack of teeth.

I keep going back to the point that this report is coming up to be laid before the Assembly. I imagine that all the relevant Committees will be interested in working through it and seeing the implications about how their Departments have performed and what they have done. It is using our democratic mechanisms of government and governance here.

The Chairperson (Mr Irwin): In effect, it is probably quite difficult to hold councils to account. You expect public bodies to deliver as legislation demands. Holding them to account is, I suppose, not that easy, other than, as you say, to set up another body.

Ms Warde Hunter: Whether a separate organisation might be set up to do it was floated earlier. From what I read across the political spectrum, I appreciate that there has not been an appetite to set up a discrete organisation to do that. Our challenges have been to look at how we could do that best. The Department with the sponsorship role for local authorities would clearly have a particular interest in how its local authorities are doing.

Mr McMullan: Where does the Local Government Auditor come in? Will he or she play a role in this?

Ms Warde Hunter: In terms of the NIAO?

Mr McMullan: Yes, and making sure that councils live up to what they are supposed to do.

Ms Warde Hunter: In my broad experience of involvement with the NIAO or any of its reports, it has usually been about the deployment of financial resources. That is certainly something worth exploring. In previous discussion sessions, we raised the fact that the first port of call for any citizen who wanted to take a challenge would be with the Department involved, or with the local authority. If they feel that there had been maladministration, their next port of call is the ombudsman. Therefore, we could trace an issue of accountability and redress, if one was seeking address.

Mr McMullan: We talk about all these other bodies, but what about devolved bodies?

Ms Warde Hunter: Sorry?

Mr McMullan: Devolved matters that affect councils, such as matters that are devolved from Westminster to here.

Ms Warde Hunter: Sorry, just to make sure that I understand what you are saying, Mr McMullan; are you talking about how a devolved matter would be taken account of by —

Mr McMullan: Yes.

Ms Warde Hunter: If it is a devolved matter and either policy is being developed on it or it is operationalised by a Department or local authority, it sits within the day-to-day policy and delivery arrangements.

Mr McMullan: Will it be answerable to the local authority, or who will it be answerable to?

Ms Warde Hunter: I suspect that it would depend on — I am trying to get the texture. If you have an example for me, I might be more helpful.

Mr McMullan: I would call planning issues, fracking, gas exploration and things like that devolved matters.

Ms Warde Hunter: If it were to fall within the ambit of a Department, how it was taking that forward, shaping its policy, implementing it on the ground and how it worked with its statutory partners in any shape or form would all be subject to the statutory duty that this seeks to establish.

Mr McMullan: That is good — as long as that is put in there somewhere.

Ms Warde Hunter: That is my interpretation. I am happy to seek specific legal advice on that for you, but I suppose that I am saying that anything that is within a Department's remit is subject to this threshold.

Mr McMullan: That is OK. Thank you.

The Chairperson (Mr Irwin): Are there any other questions?

Ms Warde Hunter: I will try to speed up my comments on the notes, Chair. The next one was the scope of the duty in clause 1. It was suggested by a number of stakeholders that this clause should be amended to include the word "monitoring" of policy strategies and plans in addition to the developing, adopting, implementing or revising of them. We considered that "monitoring" suggests an ongoing activity rather than a function to be undertaken at the time of policy development or review, so its inclusion in the scope of the duty in clause 1 is likely to create a further administrative burden on public authorities.

Stakeholders also suggested that clause 1 should explicitly refer to budgets in addition to policies, strategies and plans. The public consultation document on the policy proposals for the Bill made clear that one of the policy objectives of the Bill is to ensure that rural issues are embedded in the development and delivery of all government strategies and policies, including spending plans. It is our understanding, based on that analysis, that clause 1 as it is drafted already provides for the duty to consider rural needs to apply in relation to spending plans and budgets.

A further issue regarding the scope of the duty in clause 1 was raised in written evidence to the Committee. The Probation Board for Northern Ireland was of the view that the duty should not apply to all policies in an organisation. The Probation Board suggested that the duty should be targeted at policies that affect the design and delivery of public services. One of the policy intentions of the Bill is to ensure that rural issues are embedded in the development and delivery of all government strategies and policies and the delivery of public services. We think that the word used in clause 1 reflects that intention. I think that we were just trying to pick out — this is being very precise — the language of monitoring and budgets. Having looked at all that, we believe that the proposed clause is sufficient to requirements.

The Chairperson (Mr Irwin): OK, members? Please, go ahead.

Ms Warde Hunter: The next one is the issues on guidance, information and advice and the provision of training. This is about the power in clause 2(a). Some stakeholders suggested the proposed power for DARD to take steps to provide guidance, advice and information on issues connected with rural needs should be a duty rather than an enabling power. It is important to highlight that the enabling power in clause 2(a) is in relation to DARD's providing guidance, advice and information to "any person" about issues connected with rural needs or ways of meeting those needs. Therefore, it is much broader in scope than a power to provide those particular public authorities that are affected by the Bill with guidance, advice and information on the exercise of their statutory duties.

A duty on DARD, as distinct from a power, to provide any person with guidance, advice and information on a wide range of matters connected with rural needs is therefore likely to have significant resourcing implications for us. For DARD, which is to be DAERA — the Department of Agriculture, Environment and Rural Affairs — there is a reality check about the implications that it would have for the Department. It may also perpetuate the current situation in which rural issues are seen solely as DARD's responsibility. I feel that it is very important to draw that to members' attention, because this is about making the issues of rural dwellers and rural needs a matter for all across government and not about keeping it in a silo in one Department.

As the Bill is currently drafted, DARD intends to use the power to issue guidance for public authorities specifically on the issue of their functions under the Bill. Any such guidance could also provide the means of clarifying the terminology used in the Bill, which was a further issue highlighted by some stakeholders. I will come back to that shortly. As a broader power, it provides DARD with the scope to provide advice to any person about issues that are connected with rural needs. I do not think that we would want to lose that flexibility that the provision provides.

The other issue that stakeholders raised about clause 2(a) was a suggestion that it should refer to the provision of training in addition to the provision of guidance, advice and information. Again, given that the clause empowers DARD to provide support to any person, the addition of training here could have significant resourcing implications, in that it could oblige DARD to meet the cost of providing any such training. We did not feel that it was appropriate to add that. There may be an unintended consequence, clearly with resourcing implications.

We acknowledge stakeholders' concerns about the availability of training to coincide with the commencement of the legislation. That is a very legitimate concern. DARD developed the content of the existing training with the involvement of stakeholders. It is delivered through the Centre for Applied Learning, which delivers training to all Departments. We imagine that a similar arrangement would apply in future. DARD would be responsible for developing the content of the training to assist public authorities in carrying out their duties, but it would not itself be responsible for the delivery of the training. That is a quite specific point, but it is important.

You can see a red flag coming up on behalf of DARD/DAERA, because there are concerns about the implications. Every word has an impact, and in this case, our concern about the addition of the word is around what additional implications it would have resource-wise.

The Chairperson (Mr Irwin): Are members clear on that? OK.

Ms Warde Hunter: I will rattle on, Chair, to the transparency of reporting arrangements. There was a concern about the transparency of the arrangements for reporting on the consideration of rural needs, which are provided for in clause 3. I have already mentioned the requirement for DARD to compile information provided by public authorities and to prepare an annual report to be laid before the Assembly. Several stakeholders believed that this arrangement would not ensure the level of transparency and accountability that they were seeking. They suggested an amendment that would provide for the Minister to make an annual statement in the Assembly on the impact of the Bill.

While, in principle, a revision could be included in the Bill for a ministerial statement to be made at the time of the monitoring report being laid before the Assembly, our legal advice is that it would not be appropriate for the Bill to specify that a statement should cover the impact of the Bill as was suggested, particularly as this would require a judgement to be made on the extent to which public authorities had discharged their duties under the legislation. This would go beyond the intended monitoring and reporting arrangements, which focus on scrutiny by the Assembly and its Committees, and could create a false accountability of public authorities to DARD. It has always been the policy intention that the annual monitoring report should be made publicly available, as well as being laid in the Assembly library. I hope that that helps members to understand that we have tried to address stakeholders' concerns about the availability and transparency of the information.

Thinking back, I reflected earlier on the perception that the only people who are interested in rural issues are DARD, which will become DAERA. There is a nuance here that I would want to draw to members' attention. Requiring the Minister of that Department to make a judgement call on that by making a statement gives it a particular colour, as opposed to it being the business of all Departments and, therefore, of interest to all Committees and the Assembly in its totality. I say that to clarify the words that I have read out.

The Chairperson (Mr Irwin): The thought behind that was that, if the Minister has to come annually to the Assembly, we find out how things are working. We need something to let Members know how it is developing and delivering. How do we see that being tangible on the ground, if we do not know that?

Ms Warde Hunter: We were just being scrupulous around the nuance of the DARD/DAERA Minister making his or her commentary and public authorities thinking that their reporting mechanism was purely through to that Department. I am happy to consider all these issues. At the request of the Committee, we will continue to examine them and tease that out. It was a particular interpretation, and I just wanted to flag that up. It gave us pause for thought.

Mr McAleer: I support what you said there, Chair. Having read the notes from last year's stakeholder forum, I know that transparency is a key issue. We want to see transparency. The fact is that, in these islands and maybe across Europe, this is the first time that we are putting rural proofing on a statutory basis. DARD is the Department that is bringing this forward. I believe that, in the interests of transparency, it should be possible for the Minister to make some sort of a statement, maybe not passing judgement so much on progress, but just giving us an update. A lot of the information will be provided by the Departments, the councils and any other bodies anyhow, so the statement could reflect a synopsis of all that, showing where implementation of the Bill is at any given time.

Ms Warde Hunter: That was our legal advice. Our legal advice was that it is not appropriate in the context. However, legal advice is exactly that: it is legal advice. It is still up to the Minister to develop her own view on that specific area. Again, I am conscious of time, but I am happy to take that issue away and look at it. I sense that, within Committee, that one bears further scrutiny.

The Chairperson (Mr Irwin): OK.

Mr Byrne: I want to recognise NILGA's comments on this, and also those of Derry City and Strabane District Council, and Armagh City, Banbridge and Craigavon (ABC) Borough Council. They are all expressing sentiments about the need for effective, ongoing appraisal by the Department. Obviously, an annual statement in the Assembly is crucial, so that Members have a chance to comment on how the Bill is being implemented and on progress.

Ms Warde Hunter: Thank you for that; it is helpful.

You will be relieved to hear, Chair, that the paragraphs are getting shorter and the clauses, perhaps, are less contentious. I turn to the purpose of the proposed cooperation arrangements. An issue with the cooperation arrangements in clause 4 was raised in one of the research papers presented to the Committee last week. The clause places a duty on DARD to:

The research paper highlighted that the purpose of that duty was not explicit in the Bill, and it was suggested that further clarity was needed as to what end, or benefit, the proposed cooperation and information-sharing arrangements were to be made. We believe that this is already sufficiently clear, and that the intention of clause 4 relates to the primary duty contained in clause 1, which is the duty to consider rural needs. It is quite a short Bill, and there are not very many clauses. Our legal advice suggested that that is connectable enough, to coin a new word. Colette might briefly add a little bit to that.

Mrs McMaster: That is right. The whole purpose of the Bill is to:

That is what the Bill is about. Our legal advice is that any clause in it relates to that purpose. The duty of public authorities to consider rural needs in clause 1 is the primary duty here.

Ms Warde Hunter: Next is the terminology used in the Bill and the lack of definitions. The terminology included in the Bill was another issue raised by some stakeholders. A number of them suggested that greater clarity was needed on what was meant by some of the terms used, including "rural area", "rural needs", "revising policies" and "designing and delivering public services". As we have outlined to the Committee previously, while some terms are defined in the Bill, others, including the definition of "rural area", have not been included as those definitions are likely to change over time. DARD will produce and issue guidance that will provide further clarification on the meaning of terms used in the Bill, and it will also engage with public authorities in developing this guidance to help ensure that it will assist them in discharging their new duties. The point is that we are happy to bring forward that guidance and support on those terms. Hopefully, that will allay any worries that folk have around those precise terms.

The Chairperson (Mr Irwin): OK, members?

Mr McMullan: Just on that point about "rural needs" and clarification of some of those terms, the Noble indices, for example, are being looked at and could change. In their policy on planning, councils call areas "rural areas" for rural planning. That would have an effect on that.

Ms Warde Hunter: That is exactly the sort of thing that we would want to take account of in providing the supporting advice and guidance. Thank you.

The penultimate issue is review of the Bill and a baseline to measure the effectiveness of the Bill. Last week, one of the researchers highlighted the fact that there was no explicit commitment to review contained in the Bill's text. Our understanding is that it is not necessary to make specific provision for review, and that primary legislation can be reviewed at any time. However, we can clarify that it is intended to evaluate the effectiveness of the legislation at an important time. From discussions with the Minister, I know that the Minister is entirely committed to that.

We will also be exploring ways to evaluate the effectiveness of the Bill. One measure suggested last week was to establish a baseline of the quantum amount of money spent by public authorities on meeting rural needs. The Department notes the importance of establishing a baseline to measure the effectiveness of the Bill. We do not believe that measuring public expenditure on an urban/rural basis is perhaps the most effective way of doing that, because there could be difficulties in attributing spend to urban or rural areas if looking at regional services.

How specific policies across government are implemented will determine outcomes in rural areas, for example health, education and transport. It is intended that the rural proofing process will capture the intended outcomes of the policy so that they can be monitored. DARD maintains a rural statistics web page on its website. We draw together data from sources including census surveys and databases across government, and analyses of data on an urban/rural basis. That is important to draw upon. It includes outcomes in relation to health, crime, education and employment, which would clearly be of interest to public authorities and rural stakeholders. In addition, we would consider, as part of the development of the guidance and reporting template for the new arrangements, how the impact of rural proofing could be best measured at an individual policy level.

A significant issue raised by members was how we establish that baseline with the sources of information that we have. I think that it was just the point that money was not the only way to analyse it; it is one of a number of indicators.

Mr Byrne: I welcome the recognition that some sort of a baseline assessment is important. I encourage the Department to concentrate on that to make sure that we get the whole Bill starting on the right footing and that we retain the confidence of the rural communities.

Mr McMullan: I agree with what you are saying, because we do not want to see this getting burdened down with red tape and how much you are spending in every Department. I know what it is like in local authorities. You would have to widen that out to the police and to every service in the rural area, and it would take more than a year to get that done. So, no, we have to look at other ways of looking at that.

A lot of the things to gauge it on are already there. Take the rural development programme, for example. There are indicators in there of how these things work in the rural area. We have a lot of it there.

Ms Warde Hunter: This is about using sources of data and information in as clever and cohesive a way as we can. We will turn our minds to that with the support of partners. We have lots of great sources within DARD itself.

Mr McMullan: It is a time to use the information from the maximising access to services, grants and benefits in rural areas programme (MARA). There is a lot of information there that could be used.

Ms Warde Hunter: Thank you for that.

The final issue that we picked up from last week's meeting relates to the closure of rural schools. That was also highlighted during the Second Stage debate on the Bill. There was a suggestion that there may be scope to make provision in the Bill for the rural proofing of decisions on school closures to bring us into line with other parts of the UK.

The aim of the Bill is to ensure consideration of rural needs as integral to policy development, services and delivery across all functions of government. Therefore, it does not legislate for rural proofing in any specific policy area or type of decision. While the Bill will require public authorities to consider rural needs when taking decisions affecting schools — clearly, that would be a matter for the Department of Education and, once the NDPBs come aboard, the Education Authority — we do not consider it an appropriate vehicle for legislating for specific protection for rural schools. Placing the duty on the statutory authority is a generic provision. Whether it appears in the Bill or in a provision to be enacted later to enable the NDPB, you would have two big links to education through that. It would be through that route that the legislation would have an impact.

Finally, I appreciate that we have not covered every issue. It is like the 12 days of Christmas; we have 11 issues here. We have covered them as best we can. I am very appreciative of your time. If there is anything else that members would like to raise, of course, we will take that away. We have listened intently to all that members have said and their areas of concern.

The Chairperson (Mr Irwin): Any other comments, members? OK, thank you very much.