Official Report: Minutes of Evidence

The Chairperson (Mr Irwin): I welcome Colette McMaster and Astrid Stuart. You are very welcome. We ask you to make a presentation, and we will then ask you some questions.

Mrs Colette McMaster (Department of Agriculture and Rural Development): Thank you, Chair. Following the Committee's informal clause-by-clause consideration of the Bill on 8 December, the Department has provided, in response to the Committee's request, a written indication of the Minister's position on each of the amendments that the Committee agreed, subject to any Executive agreement that is required. The Committee has also been provided with details of the legal advice obtained by DARD on the issue of mitigating adverse impact and a letter of intent from the Minister outlining how the Department plans to clarify in guidance definitions of rural areas and social and economic needs. We intend today to outline the Minister's position on the Committee's amendments. We will also highlight the key points in the legal advice on the issue of mitigating adverse impact.

Turning first to the Committee's amendments to the Bill, we propose to go through these as they are set out in the matrix that the Committee Clerk forwarded following last week's meeting. In relation to each, I will indicate the Minister's decision on whether she wishes to support the amendment, subject to any Executive agreement that might be required, or to oppose the amendment. The Committee agreed to request DARD's comments on four amendments to clause 1.

The first amendment, on page 1, line 2, is to change public authority "must consider" rural needs to "must have due regard to" rural needs. The Minister has indicated that she wishes to support this amendment, subject to Executive agreement. In considering the amendment, the Minister has reflected on the views expressed by stakeholders in their written and oral evidence to the Committee, and also the view of the Committee. She agrees that a "due regard" duty would be a stronger duty than a duty to "consider" rural needs. It would require public authorities to take rural needs into account in developing policies, strategies and plans and designing and delivering public services. Her view is that this higher duty would make the rural needs legislation even stronger. While a "due regard" duty would require some additional administrative resource, that would be proportionate to the better outcomes that it could deliver.

The second amendment, on page 1, lines 3 and 4, is to change "policies, strategies and plans" to "policies, strategies, plans and budgets". The Minister has indicated that she will oppose this amendment to clause 1. The reason for that decision is that the allocation of budgets is already implicit in the Bill in its reference to plans. By mentioning budgets specifically in the Bill, there would be the risk that courts could interpret that other aspects of plans are deliberately excluded because they have not been specifically listed. In other words, listing one aspect of plans could be interpreted by the courts as an intentional omission of others. The Minister wishes to avoid this unnecessary risk.

The third amendment, on page 1, line 9, is to add to the Bill those public authorities that are listed in the draft Local Government (Community Planning Partners) Order (Northern Ireland) 2015. The Minister has indicated that she wishes to support the amendment, subject to Executive agreement. The Minister agrees that the inclusion of the proposed community planning partners in the Bill would provide a good degree of cohesion across government, particularly in view of the new arrangements for community planning. There has been widespread support for the proposal to extend the Bill to arm's-length bodies, given that they are often responsible for delivering services that are likely to impact on the lives of rural dwellers. Whilst the amendment would not allow time for further consultation at this stage on the specific listed bodies to be included in the Bill, should the proposed amendment ultimately be agreed by the Assembly, the commencement provisions in the Bill will provide flexibility as to when the various provisions of the Bill come into force. That will allow for a later commencement date for those bodies, to ensure that they have sufficient time to prepare for their new statutory duties.

The Committee's fourth amendment to clause 1 is to include a provision to allow for the list of other public authorities to be reviewed within an agreed time frame. The Minister has indicated that she wishes to support that amendment, which would place an explicit and time-bound duty on DARD to review the list of public authorities. DARD would have power under clause 2 to bring forward subordinate legislation to make changes to that list, should that be considered necessary following the review.

The Committee has proposed one amendment to clause 2. That is on page 1, line 19 and is to change the word "may" to "will". The effect of that would be to place a duty on DARD to provide guidance, advice and information and to undertake or commission research on matters connected with rural needs. The Minister has indicated that she wishes to support that amendment, which will strengthen DARD's role in providing support for rural proofing and the implementation of the Bill. I should point out that the Office of Legislative Counsel has advised that the wording of such an amendment would be "must" rather than "will", but that can be addressed when drafting the amendments.

The final amendment agreed by the Committee last week was to clause 3. That is to add on page 2, line 12 a provision that requires the Minister of Agriculture and Rural Development to make an annual statement to the Assembly on the proposed monitoring report that DARD is to prepare and lay before the Assembly. The Minister has indicated that she wishes to support that amendment. She agrees that the amendment would enhance the monitoring and reporting arrangements provided for in clause 3 and would help raise awareness of the importance of taking account of rural needs and of the availability of information relating to how public authorities discharge their statutory duty. To further address the concerns raised by stakeholders about the transparency and availability of the annual monitoring report, the Minister has indicated that she also wishes to propose a further amendment to clause 3 to require DARD to publish the annual monitoring report, in addition to the requirement to lay it before the Assembly.

The Committee did not propose any amendments to clauses 4, 5, 6 or 7.

I will turn now to the further matter on which the Committee sought additional clarification. The Committee discussed last week the suggestion by some stakeholders of including a requirement in the Rural Needs Bill that, where adverse impact is identified, public authorities should take reasonable steps to mitigate such impacts. Before coming to a view on that suggestion, the Committee agreed to request that DARD provide details of the legal advice on the issue of mitigating adverse impact. On 10 December 2015, DARD wrote to the Clerk of the Committee to set out the legal advice obtained on that matter. That advice has indicated a number of difficulties with the suggestion. For that reason, the Minister has indicated that she would be minded to oppose such an amendment to include a duty to take mitigating measures, should the Committee propose one.

To summarise the legal advice, there is a difference between, on the one hand, considering whether the implementation of a policy or strategy might have an adverse impact and considering whether mitigating actions might be appropriate and, on the other hand, a duty on public authorities to take mitigating measures. Rural proofing is not intended to promote any particular objective in relation to rural areas. Rather, it is a means by which public authorities consider whether any given policy or strategy is likely to have a different impact in rural areas; make a proper assessment of those impacts, if they are likely to be significant; and consider whether to adjust a policy or strategy to meet the rural needs and circumstances. The language used in legislation must be appropriate for this purpose but must not distort overall policy-making by making benefits for rural areas itself a policy objective or the subject of a duty.

Considering whether there is an adverse impact and whether mitigating actions might be appropriate would be part and parcel of a duty to have due regard to rural needs, which is one of the amendments that the Committee has proposed and that the Minister has indicated she will support. A "due regard" duty, therefore, already includes an obligation on the public authority to consider what, if any, mitigating measures may be taken where a particular policy with which it decides to proceed has an adverse impact on rural needs. In other words, a duty to have due regard is a means of providing the appropriate levels of consideration. However, a duty to take mitigating measures would go well beyond that. It would require public authorities to carry out their functions in a particular way, and would restrict the discretion of a public authority to take decisions about how it exercises its functions.

I hope that the written responses on the presentation have provided the Committee with a clear picture of the Minister's position on each of the amendments agreed during the informal clause-by-clause consideration of the Bill last week and, with further clarification, assist the Committee's consideration regarding the issue of mitigating adverse impact.

We are happy to take questions. I hope that that was helpful.

The Chairperson (Mr Irwin): Right, OK, thank you. There are a few potential amendments where you indicate that you are willing to make the amendments, subject to Executive approval. Can you expand on that? What do you mean by "Executive approval"? When are you likely to get it? In your opinion, how likely is it that the Executive will approve the amendments?

Mrs McMaster: On the first duty, changing the duty "to consider" to "have due regard to" is a change in the policy that was agreed by the Executive. The policy agreed was "to consider", so there is a change in that respect. That will need further Executive agreement, because it is a change. In proceeding with the Bill and amendments, if that is what the Committee has agreed — the Minister has agreed to support that — it will go back to the Executive at an early stage.

The Chairperson (Mr Irwin): Will we know by the end of this week? There is an Executive meeting this week. Will we know by 18 December whether the Executive have agreed these amendments?

Mrs McMaster: I do not know whether we will know. It may be something that is for consideration at the next Executive meeting or in the new year.

The Chairperson (Mr Irwin): I would have thought that it was quite important that it would automatically be on the agenda. If we are under pressure to deliver this Bill, I would have thought it would be very important that the Executive look at this sooner rather than later.

Mrs McMaster: I am sure that the Minister will be very keen for the Executive to consider this as early as possible.

The second one is about putting the other public authorities into the Bill. Again, that is a change to the policy that was agreed with the Executive. The agreed policy was specifically to include provision to extend the Bill to include other public authorities by means of subordinate legislation. So that, again, is one that will need to go before the Executive and have cover from them.

The Chairperson (Mr Irwin): OK. Can you confirm to me and the Committee that you will have the actual draft amendments for the Committee to consider on 12 January?

Mrs McMaster: That is our intention, yes.

The Chairperson (Mr Irwin): That is OK.

Mr McMullan: I want to ask about clause 2, page 1, line 19 — leaving out "may" and inserting "will". Is that a big difference?

Mrs McMaster: The change from "may" to "will"? We are saying, in drafting of the amendment, that it will be "must".

Mr McMullan: That is OK.

Mr Swann: Colette, the proposed amendment to clause 1, lines 3 and 4, includes the words "and budgets". The last time you were here you said that budgets were understood to be part of the plans. The theory was that there is nothing wrong with specifying them as being separate. Surely the word "and", in legal terms, separates them as being different, does it not?

Mrs McMaster: Since we were before the Committee last week, we have taken further legal advice on that, which has confirmed that the budgets are part of plans. The risk comes from starting to pick out elements of the plan and specify aspects of it. If budgets are specified, that is one aspect of a plan, but we would not then be listing all the other sorts of aspects.

Mr Swann: But then "plans" is still listed as a catch-all.

Mrs McMaster: Yes, but if one aspect of a plan is highlighted, that could be interpreted as other aspects being deliberately omitted. That could be down to the court's interpretation. That is the risk.

Mr Swann: I am reading this slightly differently. A budget could be a stand-alone aspect as well, rather than being part of a plan.

Mrs McMaster: The budget will always be part of the plan to deliver on policies and strategies or services and so on. That is the intention of the word "plan".

Mr Swann: I see a separation through the use of "and". In legal parlance, maybe it means something different.

Mrs McMaster: It is just clarifying the further discussion that we have had with our advisory team since we were last here.

Mr Swann: What are the other parts of a plan if we are not talking about the budget?

Mrs McMaster: A budget will assist in the delivery of the plan —

Mr Swann: I get that. What are the other bits that you are concerned about being pulled out and not specified?

Mrs McMaster: We have not defined what is in a plan, but it is intended to include everything that a public authority would take into account when doing its planning. We do not want limit the Bill and the due regard that is to be taken of rural needs by defining specific aspects of their planning, so it will encompass all aspects of planning. That is the intention.

The Chairperson (Mr Irwin): If no other member wants to ask a question, we will move on. Thank you.

The first area for potential amendment is in connection with leaving out "consider" and replacing it with "due regard". The Minister is prepared to support that potential amendment, subject to the agreement of the Executive. Are members content with the DARD position on clause 1 in connection with "due regard"?

The Chairperson (Mr Irwin): The second potential amendment is in connection with leaving out "strategies and plans" and inserting "strategies, plans and budgets". The Minister is not prepared to support that amendment. The rationale for that is detailed in the tabled papers and has been discussed today. Are members content with the DARD position on that matter?

Mr Swann: I am still not 100% convinced. Have we seen a copy of that legal advice?

The Committee Clerk: No. We do not see the Department's legal advice.

Mr Anderson: We have been told by Colette that budgets will always be part of any plan.

The Chairperson (Mr Irwin): I think we are splitting hairs.

Mr Swann: Which of the stakeholders wanted us to look at budgets as a distinct —

The Committee Clerk: I do not have that information with me, sorry.

Mr Swann: It does not matter.

The Chairperson (Mr Irwin): Are members content with the DARD position? We are probably splitting hairs.

Mr Anderson: The budgets are in the plans. Run with it.

The Chairperson (Mr Irwin): The third potential amendment deals with inserting a provision to mitigate adverse impact. The Minister is not prepared to support this amendment. The rationale for this is also detailed and has been discussed today. Are members content with the advice that DARD has received in clause 1 in connection with a provision to mitigate adverse impact? Members, any views?

I will ask again. Are members content with the advice that DARD has received?

The Chairperson (Mr Irwin): The next matter concerns the insertion of the public bodies listed in the draft Local Government (Community Planning Partners) Order (Northern Ireland) 2015 into the Bill. The Minister is prepared to support this amendment, subject to the agreement of the Executive. The rationale for this is also detailed, and has been discussed today. Again, are members content with the DARD position?

The Chairperson (Mr Irwin): The next potential amendment is in connection with the provision of a review of the public bodies listed in the Bill within an agreed timescale. The Minister is prepared to support the amendment. The rationale for this is also detailed and has been discussed today. Are members content with the DARD position on clause 1?

The Chairperson (Mr Irwin): We will now complete our informal consideration of clause 1. Are members content with clause 1 as per the proposed amendments, with the proviso that the Committee has yet to see the actual amendments?

The Chairperson (Mr Irwin): We will now move to clause 2, where we have one potential amendment. This concerns the replacement of the word "may" with "will". The Minister is prepared to support this amendment but that the replacement word should be "must" rather than "will". The rationale for this is also detailed and has been discussed today. Are members content with the DARD position?

The Chairperson (Mr Irwin): We will now complete our informal consideration of clause 2. Are members content with clause 2 as per the proposed amendment, with the proviso that the Committee has yet to see the actual amendment?

The Chairperson (Mr Irwin): We will now move to clause 3. The next potential amendment is in connection with the statement of the Minister to the Assembly on the annual report. The Minister is prepared to support this amendment, and that the amendment will include a provision to publicise the report. The rationale for this is also detailed, and has been discussed today. Are members content with the DARD position on this?

The Chairperson (Mr Irwin): We will now complete our informal consideration of clause 3. Are members content with clause 3 as per the proposed amendment, with the proviso that the Committee has yet to see the actual amendment?

The Chairperson (Mr Irwin): We will now move to clause 4. No matters were raised in connection with clause 4. Informally, are members content with clause 4?

The Chairperson (Mr Irwin): We will now move to clause 5. No matters were raised in connection with clause 5. Informally, are members content with clause 5?

The Chairperson (Mr Irwin): We will now move to clause 6. Members requested that DARD provide a letter that states its intent regarding clarification, definitions and guidance. Are members content with the DARD letter of intent?

The Chairperson (Mr Irwin): No other matters were raised in connection with clause 6. Informally, are members content with clause 6?

The Chairperson (Mr Irwin): No matters were raised in connection with clause 7. Informally, are members content with clause 7?

The Chairperson (Mr Irwin): This completes our informal clause-by-clause consideration. We will meet again on Tuesday 12 January to consider the actual amendments and to complete our formal clause-by-clause consideration.