Official Report: Minutes of Evidence

The Chairperson (Mr Butler): I welcome Zita Hale, deputy director of DAERA's agricultural policy division, who is here to brief the Committee.

Ms Zita Hale (Department of Agriculture, Environment and Rural Affairs): The Examiner of Statutory Rules brought it to the Department's attention that amendments will be required to the Horticulture Pilot Scheme Regulations (Northern Ireland) 2025 so that they more fully align with the provisions of the parent Act used, which is the Agriculture Act (Northern Ireland) 1949, and that similar amendments will be used for the Beef Carbon Reduction Scheme Regulations (Northern Ireland) 2023 and the Suckler Cow Scheme Regulations (Northern Ireland) 2025.

There are two proposed changes to each of those statutory rules (SRs). First, we clarify the powers of authorised persons in each SR. We give a definition and reflect that the authorised person powers are made in pursuance of section 40 of the Agriculture Act (Northern Ireland) 1949. That gives detail to the powers that already exist in that primary Act.

Secondly, we have removed the offences and penalties regulation for each scheme: the level 5 fine of £5,000 for persons who are found guilty of obstructing an authorised person or a person accompanying an authorised person; and the level 3 fine of £1,000 for an applicant, employee, agent or contractor or tenant of an applicant who is found guilty of not assisting an authorised person. In the view of the Examiner, there is already sufficient provision for a level 3 fine in the Agriculture Act 1949.

The Chairperson (Mr Butler): Thank you very much. The need for the SL1 appears to demonstrate the difficulties that the Department faces in having to rely on old legislation as the source of its powers to make new, environmentally focused farming policies. Has the Department considered any ways around that, or do we simply have to wait until the new Agriculture Bill has been enacted to get more appropriate powers?

Ms Hale: For some of our programmes, we rely on the Agriculture Act 1949, but a lot of the new work streams rely on retained EU law and the Agriculture Act 2020. That is why not all the regulations that were made under the sustainable agriculture policy have that issue. We are doing our best to get programmes out the door and use the primary powers that we have. There are conversations afoot in the Department about when we can then resource and look at a future agriculture Act.

The Chairperson (Mr Butler): Not to prejudice any ongoing proceedings by the Department under its inspection regime, but can you give a worked example that demonstrates operationally the need to change or update the legislation? Do you have a worked example that the Department may have experienced?

Ms Hale: I am trying to think of an example. As the focus is more on environmental programmes, we are amending retained EU law at the minute, and thus far, it has given us sufficient provision. However, there is a view that, further down the line, as we focus more on the environment, we will need those amendments to the Agriculture Act. I cannot give you an exact example off the top of my head.

The Chairperson (Mr Butler): That is fine. Lastly, what does this look like in the other UK devolved jurisdictions? Is it similar? Is it reflective? Do the penalties align with those in the other jurisdictions?

Ms Hale: If other jurisdictions are using retained EU law, the fines and penalties will be similar. Other devolved Administrations have brought in their own Agriculture Acts. I would need to look at how their offences and penalties provisions are framed and get back to you.

The Chairperson (Mr Butler): Will you do that?

Ms Hale: Yes.

The Chairperson (Mr Butler): I appreciate that.

Mr McCrossan: I will ask a few light questions to get clarity. Why were the original scheme regulations not detected during the drafting or scrutiny?

Ms Hale: Our interpretation of the primary Act was that we had the powers to define the offences and penalties, because the Agriculture Act confers powers to make regulations and include incidental or supplemental provisions. Our interpretation of that was that we could be quite specific about the offences and penalties.

On the authorised officers, through the amendment, we are giving clarity to powers that we already have. There was a concern that they could be misinterpreted or that we were acting ultra vires, but really what we are doing is giving a bit of flesh to what powers an authorised person has when they enter a premises and what information they can collate, count or record in their inspection role.

Mr McCrossan: OK. Importantly, what checks are now in place to ensure that future regulations are legally sound before being enacted?

Ms Hale: We have a regulation group in the Department that meets regularly to test each other's regulations, in particular those that use the Agriculture Act and retained EU law. We have raised the issue with that group, and we will also raise it with other groups that may, perchance, use the Agriculture Act as a primary power. For quite a number of years, we did not have to use the provisions that we are now using. We are relying on them more heavily, so we will bring that to the attention of all groups in the Department.

Mr McCrossan: I have a few more points. We talk a lot, particularly in the wake of what is happening in Lough Neagh, about deterrence and general enforcement. Does removing offence provisions in this case weaken deterrence and leave gaps in the enforcement process?

Ms Hale: It does not weaken the powers of an authorised person; it just clarifies them. Lough Neagh is not my area.

Mr McCrossan: I am using that as an example. Over the past two weeks, we have talked a lot in the Assembly about deterrence and proper penalties to ensure good enforcement. I am asking whether removing the offence provisions will weaken those powers.

Ms Hale: In many ways, all that has changed is the maximum fine for failing to comply with an authorised person, which has gone from £5,000 back down to £1,000. I am sure that there are other offences and penalties in legislation for other parts of the Department, but I cannot —

Mr McCrossan: If the fine, as a deterrent, drops from £5,000 to £1,000, that is a weakened enforcement action. That is an issue.

Ms Hale: Yes. There is a weakness there, but there are other penalties built into legislation. For example, if someone does not adhere to eligibility criteria, they risk losing their farm sustainability payment or other payments. Those penalties create a greater deterrent. This is a belt-and-braces measure. I have had a few conversations around the Department, and we rarely get to that stage with the provisions.

Mr McCrossan: I appreciate that answer. You have clarified the situation for me.

Would the changes have retrospective impact on farmers who may already have been penalised?

Ms Hale: The Department will look at that to check whether anyone has been affected. As I said, we are really only starting to rely on the Agriculture Act as a primary power. Work will have to be carried out to see whether anyone has been impacted on by the changes.

Mr McCrossan: Surely, in the eyes of the law and fairness, if the Department acted ultra vires, there would be a retrospective impact on those who were penalised.

Ms Hale: We will have to look at that. As I said, it is only recently that we have been using that primary power for these types of programmes. I have made a few enquiries as to how many people would be affected by the change, but another piece of work needs to be done to see whether it would have a significant impact on a number of people.

Mr McCrossan: Will you update the Committee?

Ms Hale: I am happy to update you on the findings.

Mr McCrossan: Finally, how will the Department communicate the changes to stakeholders to avoid confusion amongst scheme participants?

Ms Hale: We have a conduit through the agriculture policy stakeholder group. We will certainly advise that group and take its advice on what types of communication with stakeholders would be required. I want to make it clear that the provisions for fines of £5,000 and £1,000 still exist in legislation for cases, such as the farm sustainability payments, where the primary power is European legislation. We will certainly take the agriculture policy stakeholder group's advice on that.

Mr McCrossan: Thank you.

Ms Finnegan: Can the Department confirm that the SL1 is solely to update departmental names and does not involve any policy or operational changes?

Ms Hale: There are no operational changes.

Ms Finnegan: OK. That is fine. Thank you.

Mr Blair: Some of my questions were covered in the answers to Daniel's questions. For clarification, this is really a case of regulations that were introduced in 2023 and 2025 being brought into line with an Act that was written in 1949.

Ms Hale: Exactly.

Mr Blair: Is any work ongoing towards agricultural policy or a new Act that will look closely again at the limits on those penalties, so that we can make progress on that? I think that work is being done across the Department, but we probably need to hear a bit more about it.

Ms Hale: There is no ongoing work on that with regard to the Agriculture Act, but I can bring that back to the Department. As you would expect, our focus and priority is roll-out of programmes under the sustainable agriculture programme.

Mr Blair: OK. Thank you.

The Chairperson (Mr Butler): Are there any other questions for Zita? No. Thank you very much, Zita. We let you off easy today.