Official Report: Minutes of Evidence

The Chairperson (Dr Archibald): Hi, Kellie and Colin. The Committee has just discussed our proposed amendments and the amendment that was put forward by the Department. I want to clarify the point in the departmental Assembly liaison officer's (DALO) letter about the day 1 right and the sentence that reads:

Can I ask for clarification of what that means?

Mr Colin Jack (Department for the Economy): Our understanding is that there is a principle of parity in relation to social security payments and so on and that statutory family-related payments are regarded as being part of that arrangement. As we understand it, there is an agreement between the Department of Finance and the Treasury that, should Northern Ireland make greater provision on a particular measure in excess of the provision in the rest of the UK, there could be a requirement on the Executive to pay the analogous costs for the whole of the UK and not just for Northern Ireland. Is that your understanding, Kellie?

Ms Kellie Sprott (Department for the Economy): Yes. I looked into it with colleagues from the Department for Communities. It is stated in the Treasury's consolidated budget guidance. The Treasury publishes a statement of funding policy every year in which there is a section dealing with policies that affect other Departments' spending. It is a very high-level document between Treasury and the Department of Finance here and in the other devolved Administrations. People who have dealt with such budgets before would be well versed on the parity issue.

The only thing that I will say in addition to what Colin said, which reflects my understanding, is that the Northern Ireland Executive would become liable to pay for the whole of the UK only if, in response to our doing something more favourable for people in Northern Ireland, GB thought that it was untenable for it not to do it as well and had to follow suit. The issue of parity would then come into play. You could see that being the case in something as emotive as this.

The Chairperson (Dr Archibald): OK. Have there been examples of that happening?

Ms Sprott: I am not aware of any examples in DFE. That is all that I can speak for. Colin might know of broader issues.

Mr Jack: We would need to make enquiries about whether there have been specific examples of that being invoked.

The Chairperson (Dr Archibald): Tell me this: would they have to prove that they took action because we took action? Would that have to be done legally?

Mr Jack: The agreement is controlled by the Treasury. I am not sure of the extent to which the Treasury looks into a lot of legal detail about that. It can decide. I imagine that it would be a ministerial decision in the Treasury whether to invoke it.

Mr Nesbitt: If you are right about that, can either of you explain why the UK Government did not adopt the welfare mitigations that we adopted and send us the bill?

Mr Jack: We were not asked that question before, but the answer is that there have been instances where the principle, as we understand it, could have been invoked but was not. That would be one of those situations.

Ms Sprott: While we would need to check with DFC colleagues in order to be absolutely sure, my observation on that, Mike, is that it was a UK Government stance to remove the welfare mitigations. They made a choice to do that. The fact that the Northern Ireland Executive decided that they were not prepared to do that and decided to keep certain bits in is a different scenario from the one that we are talking about here, in that we have decided to enhance provision. It is normal practice in employment law to have a 26-week qualifying period for pay. Therefore, what we are doing is enhancing protections. If, on the basis of our actions, the GB Government feel that it is untenable for them to hold their long-standing position, they may feel the need to enhance theirs as well. That is a slightly different nuance to the welfare situation.

The Chairperson (Dr Archibald): My understanding is that employment law is fully devolved, so we can break parity, as such, with what is done in Britain in respect of employment.

Mr Jack: There is scope for argument on that issue. The Minister's position is that there is a real, legal risk that that principle could be invoked on the issue. However, it is not a certainty. There is room for argument about whether it would be invoked.

The Chairperson (Dr Archibald): OK. That is helpful.

Mr Dickson: Following on from Mike's comments on welfare mitigations, prescriptions are free in Northern Ireland and paid for in England. Going back to employment law, in the past, time limits for unfair dismissal were different here from the rest of the UK because we have devolution of employment law. Nobody sought any retribution against us in respect of that.

Mr Jack: The distinction between those two issues and this one is that this one is closely related to the benefits system and the administration by Revenue and Customs of those payments and so on. Therefore, my understanding is that prescription charges — well, for prescription charges, there is a clear financial aspect — would not be covered by the principle. Our differences in employment law with regard to time periods for consultation on unfair dismissal, consultation in respect of redundancy and so on do not have direct financial consequences for the Executive.

Mr Dickson: Of course, they do.

Mr Jack: Well, perhaps, there are costs, perhaps, for the employers —.

Mr Dickson: I am not talking about —.

Mr Jack: Decisions were taken within the scope of devolved issues to do things differently in Northern Ireland.

Mr Dickson: We are not talking about consultation periods; we are talking about the right to bring a complaint of unfair dismissal. It was changed from six months to 26 weeks to two years, but those time changes did not happen in Northern Ireland.

Mr Jack: No, they did not. However, we are talking about a financial protocol in this case.

Mr Dickson: Arguably, people were better off and employers had to pay more here.

Mr Jack: I suppose that people have stronger employment rights as a result of those changes not having been made in Northern Ireland, but —.

Mr Dickson: All that this payment seeks to do is give people enhanced rights.

Mr Jack: Yes, but it makes payments from the Consolidated Fund, which is a different scenario.

Mr Dickson: With respect, Chair, a line in a letter from the Department just does not cut it. We would require substantial chapter and verse and legal advice with respect to the matter.

The Chairperson (Dr Archibald): Thanks, Stewart. Peter wants to come in.

Mr Weir: Sorry, Chair. Are you referring to me?

The Chairperson (Dr Archibald): Yes.

Mr Weir: No. I indicated earlier that, on the parity issue, Keith would speak.

The Chairperson (Dr Archibald): Sorry, no problem. Go ahead, Keith.

Mr K Buchanan: Thank you. Colin and — sorry, I missed the lady's name. I apologise.

The Chairperson (Dr Archibald): Kellie.

Mr K Buchanan: In the paragraph in the letter that you refer to, there is a legal risk of significant financial liability. Have you any idea what that is? If the letter is factually correct, do you know what that financial liability could be in pounds and pence, theoretically?

Mr Jack: We could calculate it because it would be based on the Barnett formula. Northern Ireland's cost would be roughly 3% of the total UK cost. We have estimated the cost of the day 1 right to pay. Kellie, have you the figure to hand? We can certainly come back to the Committee with that figure.

Ms Sprott: I do not have it to hand just at the moment.

Mr Jack: We have done the calculations that would let us know that.

Mr K Buchanan: It would be good to know what the financial liability might be, if the letter is correct. We want to know what the financial figure is.

The Chairperson (Dr Archibald): No other member is indicating. Mike, do you want to come in? No? That is OK.

Thank you for the clarifications. We will go back into closed session now for further deliberation.

The Committee Clerk: Thank you, officials.

Mr Jack: Will you require us again, Chair?

The Committee Clerk: We are not sure, Chair. If the officials can remain available, it would be really helpful.

Mr Jack: OK. That is fine.

Mr Nesbitt: Sorry, Chair.

The Chairperson (Dr Archibald): Hold on a second. Go ahead, Mike.

Mr Nesbitt: Colin, is there a figure for day 1 rights in Northern Ireland?

Mr Jack: Yes, there is.

Mr Nesbitt: What is that?

Mr Jack: I do not have it to hand right now, but I could have it if we come back on again.

The Chairperson (Dr Archibald): We have it in one of the letters.

Mr Jack: We have given the Committee that figure before.

Mr Nesbitt: OK.

The Chairperson (Dr Archibald): OK, members, we are back in live session.

We will now proceed through the clauses of the Bill and put the Questions informally. Committee members will have the opportunity to formally consider the clauses at our next meeting. Where there are amendments, I will put a Question on the amendments first. If there is no consensus on the amendments, we will ask members to vote through a show of hands, and the Clerk will confirm the result of each vote.

The Chairperson (Dr Archibald): Members indicated that they were minded to amend clause 1 to provide for leave and pay for miscarriage to be introduced 12 months after Royal Assent. Is the Committee content with amendment No 1?

The Chairperson (Dr Archibald): Members indicated that they were minded to amend clause 2 to provide for miscarriage. Is the Committee content with amendment No 2?

The Chairperson (Dr Archibald): Members indicated that they were minded to amend clause 2 to remove the 26-week eligibility criteria. Is the Committee content with amendment No 7?

Some Members: Yes.

A Member: No.

The Committee Clerk: Chair, we can register that there is not consensus on that and leave a vote until Monday when we do this formally.

The Chairperson (Dr Archibald): OK. Is the Committee then content with clause 2, as amended? That will be both amendments.

The Committee Clerk: Again, that is amendment Nos 2 and 7, so there will be dissent on amendment No 7, and we can register that as well.

The Chairperson (Dr Archibald): Is the Committee content with clause 3?

The Chairperson (Dr Archibald): Members indicated that they were minded to amend clause 4 to provide for miscarriage. Is the Committee content with amendment Nos 3 and 4 in respect of that?

The Chairperson (Dr Archibald): Is the Committee content with clause 5?

The Chairperson (Dr Archibald): Members indicated that they were minded to amend the schedule to provide for miscarriage. Is the Committee content with amendment Nos 5 and 6?