Official Report: Minutes of Evidence

The Chairperson (Mr Martin): I invite Julie-Ann, Jim, Alison and, coming back for a second appearance, Stuart and Barry to the Committee. I seek the Committee's agreement that the session be reported by Hansard.

The Chairperson (Mr Martin): I invite the departmental officials to make an opening statement, after which the Committee will have some questions.

Ms Alison Clydesdale (Department for Infrastructure): Good afternoon, Chair, and thank you for inviting us here today to discuss the Water, Sustainable Drainage and Flood Management Bill. I am joined by Julie-Ann Dutton and Jim McComish from the Bill team and Stuart Wightman and Barry Spiers from the sustainable drainage directorate, from whom you have already heard.

As it has been a while since we last appeared before the Committee, I will recap on the general purpose of the Bill. Its aim is primarily to improve processes for Northern Ireland Water, reduce pollution and help us to meet the challenges in how we use our water resources and get on a path to integrating natural drainage systems into our storm water infrastructure.

Over the weeks, I have noted with interest the many stakeholders from whom you have taken evidence. Many of them support the aspects of the Bill that will improve the processes for Northern Ireland Water. Those aspects are, in the main, cost-neutral, specifically the temporary use bans that place restrictions on water use during times of drought or:

as set out in clause 1; article 161 agreements being registered in the statutory charges register, as set out in clause 10; powers for Northern Ireland Water to correct misconnections, such as by correcting pipes carrying waste water that have been wrongly connected to a surface water drain, or vice versa, and to recover costs, as set out in clause 11; and adoption of pre-1973 private drainage infrastructure, as set out in clause 12.

Other key elements of the Bill are set out in clause 6, which provides the Department with powers to introduce grants similar to those already available under the homeowner flood protection grant scheme; clauses 7 and 8, which allow the Department to issue new secondary regulations to update the existing floods directive regulations and the drainage environmental impact assessment regulations respectively, thereby allowing the Department to keep up to date with modern developments in those areas by providing regulation-making powers, as the power to amend those regulations was removed following withdrawal from the EU; and clause 9, which sets out the limitations of powers in any regulations made under clauses 7 and 8 and largely reflects the broad powers previously available under section 2(2) of the European Communities Act 1972.

I noted the Committee's concerns about the Bill's providing enabling powers, with further secondary legislation to come. That is in line with many other Bills, a recent example being the Bill that became the School Uniforms (Guidelines and Allowances) Act (Northern Ireland) 2026, which provides enabling powers to issue statutory guidelines to schools. The policy detail is set out in those guidelines, and that is similar to the approach that we have suggested here. I also noted that, in some evidence sessions, stakeholders focused very much on sustainable drainage systems (SuDS) policy and the clauses relating to that. For now, I am going to hand over to Stuart, who can discuss the SuDS clauses in more detail.

Mr Stuart Wightman (Department for Infrastructure): Thanks, Alison. Chair, as Alison stated, I will take the Committee through clauses 2 to 5, which cover the SuDS elements of the Bill. I am conscious that we covered some of these points earlier, and I am also mindful that these clauses have been the focus of some your questions and concerns in the previous session.

Clause 2 gives the Department the power to make regulations covering how sustainable drainage systems are designed, constructed, operated and maintained. It is also under that clause that any requirement for SuDS approval will be introduced, including the establishment of any new SuDS approval body. At this stage, it is difficult to be specific about the identity of the specified person. We discussed that at the end of the previous session. However, it is likely that it would be an organisation drawn from those included in the recent consultation. You saw the responses in Barry's slides.

Clause 3 gives the Department the power to issue guidance on sustainable drainage systems, such as technical standards or design manuals. It would also allow for ancillary powers, including regulations covering appeals processes, inspection and enforcement and offences and penalties. The clause also includes the power to amend or repeal existing legislation where necessary to ensure that the SuDS operates effectively. However, to ensure democratic oversight, any such regulations require Assembly approval, meaning that they would be subject to affirmative resolution.

Clauses 4 and 5 relate to definitions. Clause 4 defines what is meant by a sustainable drainage system and then goes on to define it more broadly. Clause 5 provides for a consequential amendment to the Water and Sewerage Services Order, reflecting the broader definition of SuDS introduced by this legislation. I think that you picked up on that point in the recent letter.

Chair, that concludes the overview of clauses 2 to 5, and I hand back to Alison.

Ms Clydesdale: Chair and members, thank you for your time. My colleagues and I are happy to take any questions.

The Chairperson (Mr Martin): That is great. Thank you very much, Alison. I will start off, if that is OK. You referenced the School Uniforms (Guidelines and Allowances) Act in your opening statement, and it is referenced in the letter that the Committee received as an example of secondary legislative-making powers in Northern Ireland primary legislation. You mentioned, correctly, that that piece of primary legislation gives a range of enabling powers that will rely on future guidance. I had a quick look at that Act, and I saw that there are a quite a few sections in which it says that the Department of Education "must", and there are guidelines under the chapter where "must" is used. Clause 2 of the Bill that you have brought to us contains lots of use of the word "may". Clause 2(1) states: "The Department may make regulations", clause 2(2) states: "Regulations may make provision" and so forth. Do you think there is a fair comparison between this Bill and the School Uniforms Act as example of an Act that provides wide-ranging enabling powers? Maybe you will or will not agree that the Bill that you have brought to the Committee already has those.

Ms Clydesdale: The drafting of the Bill was undertaken by the Office of the Legislative Counsel (OLC), and the drafting that it has provided us with was to reflect the policy proposals that were agreed by the Executive. Indeed, we briefed the Committee back in April 2024 on those policy proposals. The current drafting is what OLC appears to think best delivers our policy intent. As well as referencing the School Uniforms Act, the Minister has referenced a number of other Acts that operate in the same way in providing enabling powers. She has referred to those in the letter. The Climate Change Act (Northern Ireland) 2022 and our Water and Sewerage Services (Northern Ireland) Order 2006 provide that. The use of "may" has been recommended by OLC on this occasion. Clause 2 is about sustainable drainage systems. Is there anything that you want to add, Stuart?

Mr Wightman: It is probably set out in the response. In the previous session, we talked about an evolutionary approach to bringing some of these proposals in. One reason to have "may" is that it facilitates an evolutionary approach and does not bring about everything in one bang. There is a case to be made for testing this out. I talked about maybe phasing in SuDS in one area, learning from the experience there and then rolling it out further. That can be done through regulatory amendments rather than through primary legislation.

The Chairperson (Mr Martin): I agree. There are things that you would not want to see in the Bill, and I accept that. Staying with the example that you used, Alison, of the School Uniforms Act, at Committee Stage, some members were very keen to include a figure for the upper end of a school uniform cost for schools. That would have been a disaster for a range of reasons, not least the unintended consequences and the fact that it would not take into account legislation, and I said that at Committee Stage. I accept the argument that some things should be in the Bill, and some things should not. Would you describe the Bill more as an enabling framework or a detailed legislative scheme?

Ms Clydesdale: I would describe it as a primary Bill that brings forward enabling powers to allow us to bring further secondary legislation as required, as policy is developed. It would be, generally, in line with other Bills. The drafting was undertaken by OLC. We provided the OLC with instructions based on the policy proposals, and this is OLC's recommendation as to how it should go forward. It is obviously the expert in the drafting of legislation.

The Chairperson (Mr Martin): It would be fair to say that once OLC finishes its work and provides you with that draft, the Minister confirms it. What we are seeing in the Bill is what the Minister wants. It is not what OLC wants. I am making the point that the Minister has said that this is exactly what she wants, otherwise she could go back to OLC and ask it to redraft.

I have a couple of questions, and I suspect that colleagues will have also have questions. We have talked about the SuDS approval body in previous Committee sessions. Clause 2(4) and clause 2(5) provide for a body to be established. They do not specify its structure, governance, accountability or associated costs. I accept that you might not see some of those in a Bill, and we have dealt at some level with the fact that the Department does not yet know how much it will cost. I imagine that that is because you are relying on the future development of the Bill. Do you accept that it is unusual to create a body but not specify it in primary legislation?

Mr Wightman: There are examples in legislation, even in the 2006 Order. There are examples where a potential function is not specified by one organisation; it might be a number of organisations. As Alison said, we put our policy aims into instructions to OLC, and the Bill is the output of its expertise. There are examples in various statutes where, if it is unclear, for example, the Department tends to be given powers to designate another organisation to do things on its behalf. In this case, OLC's advice to us was to include the phrase "specified person".

The Chairperson (Mr Martin): I am happy for you guys to come back to me on that and give me some examples of other primary legislation that has come through — you mentioned the 2006 Order — that effectively created a body but did not clearly designate what that body would be. That would be useful. I am happy to get that in writing if you want to come back to me on that.

Clause 3 creates the offences and penalties through regulations. There is no definition in the Bill of the nature of those or the maximum penalties. Is that something that the Department wanted? Did the OLC advise that that was best practice?

Ms Clydesdale: Are you talking about SuDS in clause 3?

The Chairperson (Mr Martin): Yes. The Bill enables the creation of offences and penalties through regulations, but the clause does not clearly set out the maximum penalties.

Ms Clydesdale: No, clause 3 does not; they will be set out in secondary legislation.

The Chairperson (Mr Martin): Yes. Are you content with that approach? Do you think that those penalties should be in secondary legislation, rather than in the Bill?

Ms Clydesdale: Yes, I am content with that approach.

The Chairperson (Mr Martin): We have received evidence from the Examiner of Statutory Rules (ESR) in that regard. I will not quote her directly, but I think that her view is that it is very unusual that, rather than having penalties in a Bill, that it is being left to the discretion of a Department to come up with whatever figure it chooses in the future through secondary legislation. How do you feel about that?

Ms Clydesdale: The issue with clause 3 and the penalties under it, which is part of the SuDS provisions, is that we have not yet defined the offences. As I think Stuart referenced, that will come through as part of the further consultation process. I am not sure how we could put that in the Bill at the moment when we have not defined the potential offences.

Stuart, is there anything that you want to add about clause 3?

Mr Wightman: There is an element of comparing apples with oranges there, because there are different types of offences. As I mentioned earlier, the SuDS approval body might have an enforcement role to ensure that the SuDS are maintained properly. That is one type of enforcement. Another type of enforcement would exist if a system was not constructed in the way in which it was supposed to be. There are different types. Until that policy is worked through, it is not possible to set that out.

The Chairperson (Mr Martin): That takes me to one of the issues that you touched on, Alison, which Stuart also mentioned earlier. The ESR thinks that it is fairly unusual that you cannot put penalties in the Bill, but your words, more or less, were that you cannot do that because you are not sure what the offences are. That is fairly unusual as well. I suppose that you can defend that by saying, "Well, look, that's all going to come through secondary legislaiton". I would have liked that to be more developed and put in the Bill. My first question to you, Alison, was about whether this is an enabling power or a legislative scheme. Lots of it is coming later. There is probably good reason for some of it coming later, but I sense that most of it is coming later, and I am worried about that, and I am probably not the only one. We have written to the Minister, and she has given us her view on it. It will be up to the Committee to decide whether it agrees.

I have one more question for you, and I will then hand over to colleagues. It is about the scope of clauses 6 to 9, which are on flood protection. The scheme in the Bill as drafted is for homeowners only. Have you considered other at-risk groups, such as renters or social housing tenants? I might have missed them, but I do not think that others are covered in the Bill.

Ms Clydesdale: Do you mean the homeowner flood protection grant scheme?

The Chairperson (Mr Martin): Yes.

Ms Clydesdale: The clauses as drafted reflect the pilot scheme that has been running since 2022. They are for households.

The Chairperson (Mr Martin): Yes. Do you want to expand a wee bit on that?

Ms Clydesdale: The purpose of the powers in relation to the homeowner flood protection grant scheme is to put the pilot scheme on a statutory footing, so that it can continue to be funded. In fact, there is a duty to fund it. The pilot scheme was for private households. The powers as drafted are simply to put the pilot scheme on a statutory footing. At the moment, there are no powers to extend it to businesses or social housing. Private landlords, however, are eligible to apply. You may be aware that DFE is working closely with DFI Rivers in that regard to look at a pilot scheme for businesses. The provision for social housing is already funded through public funding from the Housing Executive. It would be for those organisations to determine whether property-level protection was required. To go back to your original question, the powers in the Bill are only for households.

The Chairperson (Mr Martin): OK. At this point, do you intend to extend clauses 6 to 9 on flood protection to anyone other than homeowners?

Ms Clydesdale: Not at the moment, given the way that the clauses are drafted. As I said, DFE, with DFI's help, is developing a pilot scheme for businesses on property protection. As regards social housing, that would be a matter for the Department for Communities or the Housing Executive.

The Chairperson (Mr Martin): OK, that is fine; thank you.

Mr Stewart: Thanks again for coming along. I appreciate that this is not the first time that you have been here. Given the evidence that we have received so far from the various stakeholders, has anything come to light on the back of that, alongside the consultation, that might result in the Department or the Minister tabling amendments that are not just tidying-up amendments? Is there anything that you have looked at and said, "That is a fair point and something that we may want to amend at this stage", rather than in secondary legislation?

Ms Clydesdale: I do not have anything. I do not know whether anyone else wants to add anything.

Mr Wightman: We touched on the "specified person" issue earlier. I told the Chair that we would speak to OLC to get advice and that we would speak to the Minister about trying to narrow that down. That is probably the only thing.

Mr Stewart: That would be a very good one, Stuart. I want to echo the Chair's comments and the feedback that we got from the likes of the Construction Employers Federation (CEF) and developers. The success or failure of this legislation will be based on approval and maintenance, neither of which I am clear on. There is a will to do it, but I am no clearer on how the body will approve the consistency of approach, which I know you want to achieve, and, ultimately, on who will maintain it and who will pay for it. In the previous session and in other evidence sessions, we touched on the ambiguity that exists in current developments where there are maintenance charges. The councils abdicate responsibility, and DFI does not want to cut the grass or maintain the SuDS. At this time, as a legislator who is trying scrutinise the Bill, I do not have a clue how it is going to achieve its outcome. I believe that the intent is good, but I am none the wiser as to how we are going to get to those two critical points, where approval is successful and consistent and maintenance is achieved. I am not trying to be deliberately antagonistic or problematic. Rather, I am highlighting a key frustrating point, which is that, after all of this, I still do not know how we are going to get to where we want to get to. Do you see where I am coming from?

Ms Clydesdale: Absolutely. I appreciate that, and I listened to the CEF session. I noted, however, that most of its concerns were around the SuDS aspects of the Bill. At the end of that session, the CEF representatives said that they were content with the other clauses in relation to the powers for Northern Ireland Water. Most of the queries in that evidence session were around SuDS.

Mr Stewart: It is a SuDS Bill, to be fair, and that is the main thrust and key aspect of it. Those are the key bits that I have the most concerns about — how we get approval and how we —.

Ms Clydesdale: Indeed, but many of the other aspects of the Bill are to do with important powers for Northern Ireland Water in relation to hosepipe bans, misconnections and all of those things. Those are very important powers for Northern Ireland Water.

Mr Stewart: I agree, 100%. There is no one on the Committee who has not articulated their support for the intent of the Bill. It will provide NI Water with wide-ranging powers to tidy up some other network issues. That, however, does not detract from the serious concerns that we have about how we achieve what we want to achieve and how we maintain that. Until that is done, I will be less than confident.

Mr Wightman: I do not want to repeat what I said earlier, but, in her response, the Minister said that she is committed to, and we will be consulting on, options around each aspect of the new regime later in the year, and that will cover design standards and guidance. We have the Dublin example that we can learn from. It will cover the approval of the design and the construction, so that we can go out and inspect how that is going to work. It will cover maintenance. The operational side is often forgotten about; some of these things need to be operated.

Mr Stewart: Absolutely.

Mr Wightman: We will set out all those aspects in detail during the consultation in the autumn. That is the plan. I recognise that we are sitting here today. We talked about it in the previous session. We have seen from the consultation responses that certain possible preferences are coming out. We will go into that in more detail later in the year, and we will have costings and stuff in that to help the public with their choices, as I said earlier.

Mr Stewart: I would have been more confident had we had all that information now, given the time that has elapsed. I would be more confident if we knew how the whole package would fit together and, ultimately, how the bang for the buck would be achieved. I would like to know now, when we are doing this, that I can be confident in what is coming afterwards, but, at the minute, I do not feel like I am.

Ms Clydesdale: It may be helpful to reflect on the original policy consultation that took place in 2022. As I said, the Committee was briefed at that time. The policy proposals in relation to the SuDS clauses were to bring forward statutory guidance, and the Bill reflects the policy proposals that were agreed by the Executive.

Ms Julie-Ann Dutton (Department for Infrastructure): It is also important to note that all the proposals for future regulations will be brought to the Committee. You will have a chance to discuss all the options, and everything will be put to you to enable you to consider how it should be brought forward.

Mr Stewart: I do not dismiss that. That will be essential. I just think that, given how far we have come, how key a pillar this is of the three-pronged approach and how massive it could well be, it would have been nice to have all that at this stage for the legislation.

The Chairperson (Mr Martin): It is a big prong, John.

Mr Stewart: It is.

Anyway, that is all from me at this stage. I appreciate your time.

The Chairperson (Mr Martin): I have a list here. Julie-Ann, if it is OK, I will pick up on something that you mentioned about the scrutiny aspect of the secondary legislation. You made the point that anything that is in regs will come to the Committee. Do you accept the point that, when something is in primary legislation, it cannot be undone until you get more primary legislation? Essentially, whilst anything that is agreed through regs will come to the Committee, what is agreed in the Bill is significantly harder to change — let me put it in that context — than anything else in secondary legislation.

Ms Dutton: Yes. Changing the Bill will require a primary Bill, but that is why the powers are left to future regulations. It means that all those matters can be thrashed out in greater detail. You can scrutinise those in great detail and agree how the regulation should be framed.

The Chairperson (Mr Martin): I accept that point, and I see where you went with that. You are right. My point is that we have to get this right, because this is primary legislation. I accept that leaving it open to a degree leaves enabling powers for the future and that they will be subject to scrutiny. Our difficulty is that whatever we pass at the Committee, be it right or wrong or somewhere in the middle, is incredibly difficult to change if it passes through the Assembly. I accept that that works both ways when it comes to what you are talking about.

I have one more question before I bring in Andrew. I will pick up on what the Deputy Chair highlighted. John mentioned costs, and we talked about that with Stuart earlier. We asked the Department:

The Minister replied in a letter that you are "developing a detailed Business Case". That took me to the Bill's EFM. For those who are watching and do not know what an EFM is, I say that it is an explanatory and financial memorandum. When it comes to the financial effects of the Bill, there is not much there. I am trying to be kind. All that it says is:

Unless you correct me, I do not see any other indications in the EFM of the financial aspects of the Bill or how much it might cost. Am I right in saying that?

Ms Clydesdale: Absolutely. I agree that there is not much about the financial effects of the Bill. That is because, from the clauses that relate to it and the powers that it will have, there will be only some minor administrative costs for Northern Ireland Water. The Bill allows Northern Ireland Water to correct unlawful misconnections and to recoup the costs from a landowner if that landowner refuses to fix the misconnection; therefore, that will not be at a cost to Northern Ireland Water. In relation to the powers to adopt the pre-1973 private drainage infrastructure, Northern Ireland Water may share the costs with landowners. The exact cost of that is unknown at this point, because the costs would be site specific. Northern Ireland Water would need to manage that within its agreed budget allocations.

Stuart has covered the potential for additional SuDS costs. There will be more clarity on that as the policy is developed.

The Chairperson (Mr Martin): Is it fair to say, Alison, that we would be passing legislation to grant enabling powers to a currently unspecified future body without knowing how much it will cost? How much it might cost is not in the EFM of the Bill on which we are sighted. Is that fair enough, or would you —?

Ms Clydesdale: That is fair enough. As Stuart said, the costs are not known at this point.

The Chairperson (Mr Martin): OK. Do you agree that the fact that we are being asked to rubber-stamp legislation that means that regs will come in at some point to create a body, when we are not sure how much that body will cost, presents us, as a scrutiny Committee, with at least some level of problem? The Department can guesstimate how much it will cost but is not sure and has certainly not yet told the Committee. We are being asked to pass legislation that enables those powers without knowing the cost; it is certainly not in the EFM. Is it fair to say that?

Ms Clydesdale: I go back to Julie-Ann's point: the Bill provides enabling powers to bring forward secondary legislation. At that point, if the secondary legislation is subject to the draft affirmative procedure, the Committee and Assembly will have an opportunity to scrutinise that legislation. I presume, although I look to Stuart on this, that we would have a lot more detail on the costs, at that point.

Mr Wightman: I will come in on the back of what Julie-Ann and Alison said. The Bill itself does not introduce SuDS costs. It is the subordinate legislation that will bring in those costs, down the line. It will bring in costs in that we, as a team in the Department, are going to go off and do the detailed work, and there will be the cost of doing that work. To be clear, the regulations will be subject to affirmative resolution. My understanding is that a draft of the regs will have to be laid and there will have to be a motion, so there will be an opportunity for the regulations to be debated.

The Chairperson (Mr Martin): That is fine.

I call Justin.

Mr McNulty: Thank you, Chair. Thank you, Andrew, for facilitating —.

The Chairperson (Mr Martin): Andrew does not even realise —

Mr McMurray: Oh, flip me, I never consented to that.

The Chairperson (Mr Martin): — that, on my Post-it note from the Clerk, it says, "Justin has to go, so he outranks Andrew".

Mr McNulty: I jumped the queue, Andrew.

Mr McMurray: I want d'Hondt to be put in place. [Laughter.]

The Chairperson (Mr Martin): He wants d'Hondt. D'Hondt would blow Justin out of the water. Away you go, Justin.

Mr McNulty: I appreciate that. Thanks, folks. Sorry, I missed your full evidence session; I was meeting St Louise's College.

Are we overthinking the body? Does there need to be a body? Would it not just be incumbent on planning and NI Water to manage the standards? The standards are the key piece of the work, which states, "These are the requirements for developments. You must adhere to those standards. If you don't, enforcement will take over". Are we overcomplicating it?

Mr Wightman: I understand what you are saying. In the questions that we showed on the slides earlier, we included the example of the creation of a new body. That is probably unrealistic, because the most likely outcome is that the function will be carried out by one of the existing organisations. Northern Ireland Water will clearly have a role. Northern Ireland Water currently adopts hard SuDS, and that may or may not change in the new regime. Unfortunately, because of the way that the legislation is set up and the fact that are working from the Water and Sewerage Services Order 2006, as amended, we even have to tweak the definition of "sustainable drainage", for example, because we have to cover hard SuDS and soft SuDS. When we look at organisations, the way that it has been set up probably looks quite complex.

You are right: if you simplify it at the highest level, it is about getting out good guidance for developers and builders to follow, as they have done in Dublin; enforcing the guidance and making sure that any designs that are submitted are in line with it; going out and making sure that it is built in line with the guidance; and making sure that it is maintained, because there will be guidance on how things should be maintained. Putting that regime in place will be complex. However, you are right: that is, in essence, what we are trying to do.

Mr McNulty: Thanks very much, folks.

Mr McMurray: Thank you very much. I will be echoing what some members have said. The idea and emphasis behind sustainable drainage are supported and necessary and will be positive going forward. However, there are some concerns, which we want to air.

You touched on the flood protection grants — you mentioned the pilot scheme — but they are not available for commercial businesses. I am speaking as a representative for South Down, where there was extensive flooding of commercial areas in Downpatrick. You mentioned the pilot scheme, which is for homeowners. There are plenty of rented properties. Why can it not be expanded to commercial and rented properties? Is there scope to do a pilot scheme? Is there legislation that could expand the pilot scheme? That is a concern that has been brought to the Committee by those who have experienced flooding.

Ms Clydesdale: As I said earlier, DFE is developing a pilot business property-level protection scheme, and DFI Rivers is helping it in that regard. If that is successful, when it is run, that proposal would fill the gap — or at least go some way towards filling it — for businesses and allow them to avail themselves of a grant that is similar to that for homeowners. At the minute, that falls under the remit of DFE, which is developing a pilot scheme.

Mr McMurray: Does it not become slightly clunky if two similar pieces of legislation are running concurrently or not concurrently?

Ms Clydesdale: DFE is piloting it first. My understanding is that that will be the first step before it would bring forward anything more formal.

Mr McMurray: I appreciate that some of these points have been touched on, but I want to highlight our concerns. Given that some of my questions have been asked already, my contribution will be more like comments.

The Chair made a point about the primary legislation. We have had advice that any approval body should be set up by primary legislation. I am not au fait with it, but to have it set up by regulation or secondary legislation causes me concern. We have had expert advice that said, "This is not how it should be done", and then, with the greatest respect, we have you guys saying, "This is how we're going to do it". How does that marry up?

Mr Wightman: Alison and I both mentioned the OLC. We set out our policy aims in instructions to the OLC. It is the expert in this and, in this case, has set out "specified person". We can go away and look at that, speak to OLC and get advice on it. "Specified person" covers it, because, as we have talked about, there are multiple options at this stage.

Mr McMurray: My concern is that, when it comes in as legislation, as we have seen in other areas, the judge will read it, and, if it is not clear, we will be in a state of confusion again. Again, it touches on the management issues. I will leave it at that.

There are quite a few Henry VIII powers, with:

Is that an excessive use? Are there a lot of them? Is that normal? I first remember hearing the terms back when Brexit was being knocked about. Is it excessive?

Ms Clydesdale: No, it is not excessive. Three clauses — clauses 3(4), 9 and 13 — contain Henry VIII powers. Henry VIII powers have become more widespread in modern legislation. They are helpful in that they allow the Department to amend primary legislation, which allows policy changes to be made via secondary legislation rather than having to introduce new primary legislation. Given the time that it takes to introduce primary legislation, it is quicker to make changes through secondary legislation. There are three such clauses in the Bill: that is not excessive.

The Chairperson (Mr Martin): We will stay on Henry VIII clauses, Alison. As you said, they are not unusual. Are the Henry VIII clauses in the Bill narrow enough in scope to meet the criteria for their inclusion? Henry VIII clauses are judged by their scope. You were absolutely right to say that it is not unusual to have them and that they are quite useful. However, when it comes to how Henry VIII clauses are drafted, it is about their scope. Are you content that they are narrowly enough drafted not to be problematic in other ways, such as in giving the Department too many powers?

Ms Clydesdale: I am content with them. For example, clause 13 is a standard clause that allows the Department to make changes. I do not know whether Julie-Ann or Jim wants to add anything about Henry VIII powers.

Mr Jim McComish (Department for Infrastructure): Clause 13 mirrors article 306 of the Water and Sewerage Services (Northern Ireland) Order 2006. Subject to the affirmative resolution procedure, it is a power to make ancillary provision. That is not always necessary, but, in this case, we think that it is justified. It ensures that, under the Act, a number of fairly technical alterations can be efficiently implemented without the need for further primary legislation.

The Chairperson (Mr Martin): Alison mentioned that there are three Henry VIII clauses. Jim, do you want to take us through the other ones?

Mr McComish: We will look again at clause 9, which relates to flood risk assessment and the management of environmental impact assessments (EIAs). The powers referred to in that clause, which are conferred by clauses 7 and 8, are subject to certain exceptions. Under the powers:

may be made in the areas of flood risk management and EIAs for drainage works. However, the powers may not be exercised to impose taxation, to make retrospective provision or to create a criminal offence, so clause 9 is a limiting power. We seek to replicate the powers under the European Communities Act 1972 that we lost following withdrawal from the European Union.

The Chairperson (Mr Martin): Which Act did you mention, Jim?

Mr McComish: The European Communities Act 1972.

The Chairperson (Mr Martin): In bullet point form, what does it do?

Mr McComish: Well —.

The Chairperson (Mr Martin): In broad terms.

Mr McComish: It enabled us to make the Water Environment (Floods Directive) Regulations (Northern Ireland) 2009 and the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2017, which allowed us to keep pace with developments in those areas.

Ms Clydesdale: I will add to that. Before EU exit, section 2(2) of the European Communities Act 1972 allowed the Department to make regulations to bring into force European law. Since EU exit, as you are aware, that provision was repealed across the board. That means that the Department no longer has the ability to regulate those areas by subordinate legislation — that is lost — so, as Jim said, all that it is about is trying to replicate that ability.

The Chairperson (Mr Martin): OK. I do not pretend to understand what that means, but I know that somebody will come before the Committee and explain it to me.

I had one more question, but Stephen has his hand up on the screen. Stephen, it is all yours.

I love saying this: you are muted.

There you go; that is you. You are live, Stephen.

Mr Dunne: Sorry, Chair. You were correct.

Apologies, folks. Thank you for the presentation. A lot of good and valuable stuff has been covered. I will just echo some of the concerns that have been articulated well by Committee colleagues about the limited detail on the costings, the approval body and the maintenance, which the Deputy Chair mentioned. The medium- and long-term maintenance causes me some concern. We see the problem weekly at a constituency level.

I have a brief question, which Alison may be able to touch on. When the consultation closed in December, did anything in it give you, as officials, any concern?

Ms Clydesdale: That is a question for Stuart.

Mr Wightman: Do you mean with regard to maintenance, or more generally?

Mr Dunne: Generally. I made the same points earlier about some of the concerns that I have.

Mr Wightman: I will start and then hand over to Barry. When we asked about approval bodies and maintenance bodies, there were no clear winners in the mixture of responses. To a certain extent, we expected that. There is an element of turkeys voting for Christmas here with regard to payments. There were a lot of "Other" responses and hybrid models put forward that we will have to consider. There was certainly overwhelming support for the SuDS management train, which I was surprised about, because it is a new concept, particularly here.

Maybe our questions could have been better worded. We asked whether people agreed that SuDS should be mandatory and that the SuDS management train approach should be the preferred solution for new developments, and a few "No" responses were given on the basis that exceptions were needed, because not every site will have the topography or the ground conditions to deal with nature-based solutions. We accept that. There will probably have to be caveats. Generally, however, there were no real surprises. Representatives of the construction industry whom we have met have been pro nature-based solutions, which may not have been the case a few years back.

Mr Barry Spiers (Department for Infrastructure): The other thing was the lack of clarity, which we touched on earlier. Justin asked whether other, existing approval bodies could take on that role. One of the things that came out of the consultation was that the industry really wants clarity about who is responsible for approving proposals, whom guidance should come from and who is responsible for maintaining the system. No matter what we do, we have to get clarity on those issues. That was a big point.

The other concern was something that Stuart has already touched on. At the start of the consultation, we had a clunky question asking whether people agreed that SuDS should be mandatory. We probably knew that the answer to that would not be yes, because there are some locations and sites where SuDS will just not be possible. That was the only other area where respondents said, "We support it but not everywhere", because of site constraints, contaminated land and various other issues that were cited.

Mr Dunne: OK. Thanks for that. That ties in to where we are coming from. Ultimately, we also want clarity, as does the sector and everybody around the table who is taking an interest. That is where there is an opportunity, hopefully, to get more meat on the bones of this. There is probably not enough meat on them at this stage. Hopefully, there will be an opportunity to build on that and learn from it.

The Chairperson (Mr Martin): Have you anything else, Stephen?

Mr Dunne: No, that is me.

The Chairperson (Mr Martin): Thanks very much. Those were good questions.

Mr McMurray: Thanks for bringing me back in, Chair. It is the way of things: you hear something being said that triggers a memory, and you check your notes.

You mentioned clause 9, which is:

Clauses 7 and 8 are "Flood risk: assessment and management" and "Drainage works: environmental impact assessment". I go back to some of the advice that we were given in previous sessions, which was that clauses 7 and 8 are logical and sensible but that having clause 9 directly after them creates a problem for clauses 7 and 8, in that it creates an offence without doing so explicitly. That comes back to some things that we have touched on. Is it up to us to tighten up some of the offences in the Bill, or was it left loose for a reason? That goes back to the point about how loose legislation keeps solicitors and barristers, with the greatest respect to them, in jobs, and they argue about it in front of your Honour, My Lord.

Mr McComish: It is really to make sure that we cannot exceed the powers that we had previously. It is a limiting power as such.

Mr McMurray: Do you not have a concern about having an offence that is not tightly specified? That point has been made to us.

Mr McComish: It is really about capping what the penalty can be, so that it cannot be excessive.

Mr McMurray: All right.

Ms Clydesdale: In fact, that is demonstrated. Clause 9 lists what those regulations cannot do, and those are the limitations of clause 7 and 8. Again, clauses 7 and 8 also link back to the Department's powers to update or amend certain regulations in the face of future developments that have been lost as a result of the EU exit. We are trying to replicate those through clauses 7, 8 and 9.

Mr McMurray: Thank you.

The Chairperson (Mr Martin): I have one more question. Clause 15 is the commencement clause. If my reading of the Bill, as drafted, is correct, it seems that not much happens until the Department makes the necessary orders. Is that right? Is my reading of clause 15 correct? Is it the case that, after Royal Assent, not much happens, apart from sections 13, 14 and 16, which is not very much, and that the meat of the Act will come into effect when the Department makes the subsequent order? Is that right?

Ms Clydesdale: The Department will be required to make a commencement order in order to give effect to the Bill. That is normal practice, and, indeed, we have that same process in the Reservoirs Act (Northern Ireland) 2015, where we are trying to bring forward commencement orders to give effect to the provisions. Yes, clause 15 details the clauses that will come into effect immediately, but the Department will need to bring forward a commencement order. Depending on the type of commencement order, it may or may not require Assembly scrutiny. Some commencement orders can just be laid.

Julie-Ann, do you have anything to add on that?

Ms Dutton: There are commencement orders for some of the clauses. Some of them will be brought forward in regulations.

The Chairperson (Mr Martin): My question, which, I think, you got, was about the fact that, when the Bill gets Royal Assent, quite a limited number of clauses will come into immediate effect. Is that correct?

Ms Clydesdale: That is correct.

The Chairperson (Mr Martin): It will be up to the Department to effectively commence other pieces of the Act when it deems it relevant to do so. Is that right?

Ms Dutton: That is right. For example, the temporary use bans could have an immediate commencement order. Other provisions will require more work.

The Chairperson (Mr Martin): OK. At this point, what is DFI's thinking on the timescale for bringing into effect the guts of the Bill, apart from clauses 13, 14 and 16?

Ms Clydesdale: That will depend on the available Assembly time and the timescale for the Bill's passage. Once the Bill receives Royal Assent, the Department is free to bring forward a commencement order as and when it can. Obviously, if we do not get Royal Assent until the end of the mandate, commencement orders cannot be brought forward until the next mandate. It absolutely depends on Assembly availability and time.

The Chairperson (Mr Martin): I am OK with that. Let us say that the Bill gets Royal Assent and becomes an Act before the end of the mandate. Am I right in saying that it will be up to the Department when to commence the vast majority of the operative clauses of the Bill, apart from clauses 13, 14 and 16? What is the Department's thinking about when it might put some of the clauses into operation, assuming that the Bill gets Royal Assent during this mandate and that those powers are conferred on it? Do you have any thinking on that at all?

Ms Dutton: We could probably proceed quickly with the temporary use bans, as I said.

The Chairperson (Mr Martin): Sorry, what clause is that, Julie-Ann?

Ms Dutton: It is clause 1.

The Chairperson (Mr Martin): Clause 1, which covers hosepipe bans.

Ms Dutton: Yes.

The Chairperson (Mr Martin): That is not the most controversial one.

Ms Dutton: No. The registration of article —.

Mr Wightman: I mentioned that SuDS are the priority in the next steps. One of the reasons why we took the consultation forward is that we want to get the regulations done ASAP. We want to be ready at the start of the next mandate. That is a priority for the Department. We want to make the regulations, and that cannot be done until the legislation has commenced.

The Chairperson (Mr Martin): OK.

Does anyone have any further points? Everyone is happy. OK.

Folks, thank you for coming in today. We appreciate it. I am sure that we will see you again between now and early July. We appreciate your time, and I know that the session ran late. There is extra appreciation from the Chair for sticking through it. Thank you.