Official Report: Minutes of Evidence

The Chairperson (Mr Butler): I have pleasure in welcoming again departmental officials John Terrington and Elaine McCrory to the meeting. I will go through each clause one at a time and state what it does and summarise the position as at our previous meeting on 10 April. I will then ask members to pose any last questions that they may have to officials. I will then wrap up each clause by requesting that each member informally states their position so that we know where we are for next week's formal clause-by-clause scrutiny.

Clause 1, "Aid in the fruit and vegetables sector: amendment of the CMO Regulation", amends assimilated law EU 1308/2013, the Common Organisation of the Markets in Agricultural Products (CMO) regulations, in relation to the fruit and vegetables aid scheme (FVAS) to remove any requirement for all eligible claims to be funded and enables the Department to continue the FVAS on a discretionary basis. It also includes transitional provisions for existing FVAS programmes.

At our previous meeting, we considered the Department's response, which stated that the Minister is not minded to amend clause 1, as we requested, for a number of reasons, those being that he has already provided assurance that he will not end the existing scheme until a suitable successor is in place and because the policy aim of the Bill is to make support discretionary. The response stated that, if 4·1% of the value of marketed production (VMP) baseline were included in the Bill, further primary legislation would be needed to amend that and that an alternative to the VMP calculation may be more attractive to other subsectors.

There followed a question-and-answer session on clause 1, at which the Committee heard that the 4·1% VMP was a cap on the original EU scheme and not a baseline and that DAERA was concerned that, with the closure of the scheme in England, producer organisations (POs) with a majority of their growers based there could set up their headquarters here, resulting in fruit and veg aid benefiting growers in other jurisdictions.

Do Members have any further questions on clause 1, bearing in mind what we have heard from the mushroom sector? We have had assurances from the Minister regarding the extension of the FVAS and the development of the new scheme in co-design with the sector. Are there any other questions? Does further clarity need to be sought?

Miss McIlveen: I am conscious of the Minister's assurance in correspondence that he will not end the existing scheme until a suitable successor is in place. However, we have only his word for it. I am still a bit nervous about that because it is not in the Bill.

Mr John Terrington (Department of Agriculture, Environment and Rural Affairs): First, as we have made clear, if an application comes this year, it will be for a three-year programme, without debate. There is a commitment in the legislation. The Minister has given his commitment, so, if there is nothing else after three years, I imagine that the scheme will run. We would be into another mandate, however, so it is impossible to say what would happen then.

The discretionary power does not close the scheme. The only way to close the scheme would be by using the powers in clause 2, because the scheme would still be there. In future, the Minister could decide not to fund an individual application; that is likely to happen because it would bust the bank in some way.

Miss McIlveen: The legislation ultimately closes the scheme. You are saying that there is an assurance from the Minister that the scheme will not be closed until a suitable scheme is co-designed.

Ms Elaine McCrory (Department of Agriculture, Environment and Rural Affairs): The Bill does not close the scheme.

Mr Terrington: The legislation does not close the scheme.

Ms McCrory: The Bill — clause 1 — purely makes the aid discretionary.

Mr Terrington: I refer to the UK-wide Agriculture Act 2020, under which the Department for Environment, Food and Rural Affairs (DEFRA) took equivalent powers. The powers are called "powers to amend with the aim of closing", or thereabouts. That was a policy direction. No policy direction is set in this Bill. There is certainly no closure of the scheme by the Bill.

Miss McIlveen: OK. If the Bill were not before us or if the Committee were to decide not to support its progress, what difference would that make?

Mr Terrington: First, the scheme would continue as is — I accept that — with the same rules. As the Chair said, it would run the considerable risk of the Executive's earmarked funding for agriculture, fisheries, agrienvironment and rural affairs being used for the benefit of non-Northern Ireland growers. Ultimately, if other POs were to come on the scene, it could lead to a pretty sizeable increase in the budget requirement for the sector and, potentially, other sectors or on the budget more generally.

Secondly and importantly, it would also mean that there would be no scope to change the scheme. You will have heard from stakeholders calls for changes that would align with their nearest competitors due to changes that have happened in the EU since Brexit. There are changes that would not happen, leaving producers with a continuing competitive disadvantage for the three years of the first programme or until such times as there was further legislation to provide us with the powers to make those changes. Those are the two prongs of the Bill.

The Chairperson (Mr Butler): If there is nothing that members want clarity on, I will bring clause 1 — [Inaudible.]

The Chairperson (Mr Butler): I will not bring it to a conclusion until we get a chance to state our positions on clause 1. I request that members state their positions on clause 1. This is your opportunity to have on the record your summarised position on the clause.

There are no major issues around where we start, so I will start in an anticlockwise direction from the top of the table. Patsy, do you have a position on clause 1?

Mr McGlone: I have reservations about the implications of it, but it seems that, to use that terrible phrase, we are where we are.

Mr Blair: Content.

Mr McAleer: I withhold support for clause 1.

Mr Irwin: I have concerns about it too. I withhold support too.

The Chairperson (Mr Butler): My perspective is that I see the risk in not doing it, because it leaves the scheme open to potential abuse from operators in England setting up their headquarters here. I also see some risks and share Michelle's position in respect of the assurance from the Minister to keep it open.

It is a mixture of responses. There is support from John and reserved responses from other members.

The Committee Clerk: Declan, do you support clause 1?

The Chairperson (Mr Butler): No, he is withholding support.

Mr McAleer: Just to be clear, is the formal clause-by-clause consideration next week?

The Committee Clerk: It is next week. We are just trying to get a view on it.

The Chairperson (Mr Butler): Next week, there will be no discussion on it. Next week, you will be asked whether or not you support it. It will not be a question of whether you reserve or withhold.

Mr McAleer: It is the final, final next week.

The Chairperson (Mr Butler): I just want to let members know that there will be no further discussion and no further questions next week. This is the time for that.

If there are no further questions for officials in regard to clause 1, I will bring it to a conclusion.

Clause 2 is "Aid in the fruit and vegetables sector: power to modify". Subsection (1) confers a power on DAERA to make regulations to modify the listed assimilated direct legislation relating to aid in the fruit and vegetables sector.

Subsection (2) provides power to make regulations regarding the review of decisions relating to such aid. It will allow provisions to be made for review procedures enabling remuneration and allowances to be paid in connection with the procedures and allowing fees to be charged in respect of the cost of the procedures.

Subsection (3) clarifies that the power to modify in subsection (1) includes power to modify provisions inserted in the same regulations by clause 1. We have sought further clarity regarding the breadth of delegated legislative powers and how DAERA intends to use them and its intentions in relation to revocation or repeal of the assimilation legislation.

We considered the response at our last meeting. It stated, in summary, that the enabling power in the Bill could allow for changes to improve the existing scheme; that no decision has been made on how the powers will be used until a successor scheme is advanced and it is not possible to be definitive; and that the powers provide for repeal/revocation of parts of existing legislation, if such parts are considered unsuitable for a Northern Ireland-only scheme.

Regarding a successful application for the extension of the current FVAS, the response stated that, if a PO submits a suitable three-year programme, the Department would be expected to match-fund eligible expenditure incurred for the full three years up the approved maximum funding and that business decisions made by the PO itself would also have a bearing on the level and duration of the funding.

Members, do you have any further questions on clause 2?

Mr Terrington: I will speak, if I may, Mr Chairman. Apologies for cutting across. You made a comment that the use of the powers would be only when a replacement has been co-designed. The Minister said in his statement before Easter, when introducing the corporate plan, that the powers would give the opportunity to make incremental changes in advance of that or as part of that to improve the scheme. If the powers were available now, we would certainly be discussing that with stakeholders and coming to the Committee with proposals to improve the scheme. As we have said all along, it is an EU scheme. We might not have the time to do everything that we want to do, but there may be scope to make the alignments that I mentioned in previous sessions or to do other things that may improve the administration of it. Again, on administration, it is an EU scheme, and we might like to streamline that, if the Department is taking on that role from the end of the year. There could well be incremental changes, using those powers, well in advance of any replacement .

The Chairperson (Mr Butler): OK. Thank you for the update.

Members, are there any further questions on clause 2, or do you need any clarification?

Before I move on, this is my mistake: we have Aoife online too, so I will make sure that I include Aoife in any further points.

There are no further questions and no need for further clarification. I request that members state their position on clause 2. This is your opportunity to have on the record your summarised position on clause 2. We will start in the same position, if that is OK. I hope that you do not feel put upon, Patsy. Do you have a position on clause 2?

Mr McGlone: No.

The Chairperson (Mr Butler): Do you have nothing to raise on that?

Mr McGlone: No, not in particular.

Mr Blair: Content.

Mr McAleer: Clause 1 is the —

The Chairperson (Mr Butler): Yes, the sticky one.

Mr McAleer: — sticky one.

Mr Irwin: I have some concerns again. I am not prepared to support it at this stage.

Miss McIlveen: Yes, I will reserve my opinion at this stage.

The Chairperson (Mr Butler): Aoife?

Is that a bit of a screen change there, no? OK.

There is support from John. I have no particular issue with clause 2, to be fair. Clause 1 is the sticky one for me.

Clause 3, "Information provision and promotion measures: power to modify", confers a power on DAERA to make regulations to modify the listed assimilated direct legislation relating to information provision and promotion measures.

Members, we sought clarification in relation to limitations of the powers and future intentions to revoke or repeal the assimilated legislation. The response stated that the powers will save the law from sunsetting. It may be a useful foundation for support for food promotion and could be used to revoke any part deemed unhelpful to a Northern Ireland-only call for applications or to revoke the legislation in its entirety if it is decided that it is no longer needed.

Before I invite questions, do you want to add anything, John or Elaine?

Mr Terrington: A small piece of clarification is that the Bill does not save the law from sunsetting. That goes back to the retained EU law —

The Chairperson (Mr Butler): The same as the previous one?

Mr Terrington: Yes. The retained EU law was revoked — sunsetted — everywhere else in the UK. We kept it here to provide for the possibility of it being used as amended by these powers. I do not think that we could use it now without these powers; it would, without doubt, be far too cumbersome if it were a Northern Ireland-only law. The powers are frozen in time since leaving EU. They were revoked everywhere else in the UK, but, because they had been used here and in the absence of an Assembly at the time that that happened, we still have the powers; we just do not have the power to do anything with them until the Bill is enacted.

The Chairperson (Mr Butler): That makes more sense.

Do any Members wish to get seek clarity on any points or require any more information? No. OK.

I will go around members the other way for clause 3, so that I do not pick on Patsy all the time. I request that Committee members state their position on clause 3. This is your opportunity to have on record your summarised position on the clause.

Mr Irwin: I still have some concerns, so I reserve the right to look at it in the future.

Miss McIlveen: I will leave it until next week.

Mr McAleer: My position is the same as it was last time. Clause 1 is the sticky clause.

The Chairperson (Mr Butler): Yes.

Mr Blair: Content.

Mr McGlone: Same as before.

The Chairperson (Mr Butler): OK. Aoife, are you able to indicate your position?

The Committee Clerk: Not to worry.

The Chairperson (Mr Butler): I have no issues with clause 3. For me, clause 1 is still the issue.

Clause 4 is entitled "Regulations". Subsections (1) and (2) provide that regulations made under the Bill:

and that such provision includes modification of any statutory provision.

Subsection (3) provides that the regulations under the Bill can be made only following approval by the Assembly. We sought further clarification on how the Department intends to use those broad powers. The response stated:

or

It stated that that will be the case:

The Department also stated:

Do members wish to seek any further clarification? Before that, is there anything that you want to add, John and Elaine?

Mr Terrington: No.

The Chairperson (Mr Butler): It is more straightforward, I think. Is everybody happy enough?

William, are you content with clause 4, or do you wish to reserve?

Mr Irwin: Reserve.

Miss McIlveen: Reserve.

Mr McAleer: Does the clause make it so that it is a requirement for the Assembly to approve regulations?

Mr Terrington: Yes. That is the case for any regulations made under it, including any consequential, transitional etc arrangements.

Mr McAleer: That is OK, Chair.

Mr Blair: I am content on the basis that any changes would have to come before the Assembly.

Mr McGlone: Same here.

The Chairperson (Mr Butler): Aoife? For the record, it is an important clause. OK. Thank you.

Clause 5 is "Interpretation" and provides interpretation of terms used in the Bill, including, importantly, what "modify" means and that it includes, "amend, repeal or revoke". We sought further clarification from the Department on the circumstances in which it would intend to use the powers. The response stated:

I think, John, that you alluded to that when you were talking about clause 2. The Department also states:

and that any:

We also asked the Minister whether he:

The response stated that the Minister would not bring forward such an amendment, as the scheme will not now close at the end of the year and a replacement scheme is to be co-designed. The Department also believes that it may need

and that those would be subject to the approval of the Assembly, which I see as a good thing. The Department does not think that it is

and thinks that the Minister needs flexibility to allocate support according to DAERA responsibilities.

John, are you content with that? Is it accurate enough?

Mr Terrington: Yes.

The Chairperson (Mr Butler): OK. Have members any comments or queries? It is probably a piece that we were looking at, so it is useful for making sure that the legislation is up to date and has no conflicting parts.

Members, if no further clarification is required, I will request that members state their position on clause 5. This is your opportunity to have on the record to have your summarised position. I will go to the Deputy Chair first.

Mr McAleer: Yes, I am OK with this one.

Mr Blair: OK.

Mr McGlone: Yes.

Miss McIlveen: I understand the position, but, again, I will hold it back for next week, just to be consistent.

Mr Irwin: Reserve.

The Chairperson (Mr Butler): Clause 5, in itself, is fine for me.

Aoife? I see a thumbs up for clause 5.

Áine?

The Committee Clerk: That is an "OK".

The Chairperson (Mr Butler): What do we get for a thumbs up and a high five? [Laughter.]

I think it means that Aoife really likes that clause. If we ever switch to electronic voting, we will have to have emojis.

Clause 6 is "Commencement and short title". Whoa, now we are getting into it. You thought clause 1 was tricky. Clause 6 provides that the Bill will come into operation on the day after it receives Royal Assent. It also specifies the short title, namely "The Agriculture Act (Northern Ireland) 2024". Members will recall that, at our last meeting, we had a closed deliberation session with the Bill Office and considered the possibility of requesting an amendment to the short title to provide clarity for the reader, as a number of us felt that the current title did not reflect the Bill's content.

I am glad to say, "We got it" — I am only joking. I ask for members' agreement to move into closed session with the Assembly Bill Clerk to seek advice on clause 6 and then the meeting will resume in public session at that point. Are members content?

The Chairperson (Mr Butler): Before we move to agenda item 10, I confirm for the record that, in the discussion during the closed session, it was agreed that the Committee was content with clause 6 and would not seek an amendment to the short title.