Official Report: Minutes of Evidence

The Chairperson (Mr Martin): I welcome Julie-Ann, Jim, Alison and Stuart from the Department's Bill team, who we have seen a few times at Committee.

Are members content that this session is recorded by Hansard?

The Chairperson (Mr Martin): I invite you to make an opening statement, after which, you can expect some questions.

Ms Alison Clydesdale (Department for Infrastructure): Good morning, Chair and members, and thank you for inviting us to answer further queries on the Water, Sustainable Drainage and Flood Management Bill. I am joined by our Bill team, Julie-Ann and Jim, alongside Stuart, from the Department's sustainable drainage directorate. Before we take questions, I thought it might be useful to run through the Minister's position on a range of queries that have been raised in relation to the Bill since we last appeared before the Committee on 15 April.

To recap, the homeowner flood protection grant scheme does not provide a grant for sea protection. In clauses 7 and 8, the Department is replicating the powers that were previously provided under section 2(2) of and schedule 2 to the European Communities Act 1972 in relation to the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) — the EIA regs — and the floods directive, because the Department no longer has those powers following EU exit and now requires those powers in order to amend or replace the existing regulations, as would have been the case under the 1972 Act.

The Committee had asked about the age of 21 in clause 9. That reflects the definition of a criminal offence, as defined in the European Union (Withdrawal) Act 2018.

At our previous session, you asked about the Bill's commencement. The Minister has confirmed that the majority of clauses will be commenced as soon as practicable after Royal Assent, with clauses 2 to 5 and clause 6, which cover sustainable drainage systems (SuDS) and the homeowner flood protection grant scheme, being commenced after further consultation on the draft regulations, and clause 11 being commenced once the new operating procedures have been agreed. The Minister has also confirmed that she is content for the term "a person" in clause 2(5) to be removed and replaced by "the Department, a local authority or the water undertaker", which are the three bodies most likely to take on the role of SuDS approval body following consultation.

The Committee raised a query about the power to impose penalties under clause 3. The Minister has confirmed that her approach is consistent with other areas where taking a power to impose penalties is preferable to allow a district judge the discretion to impose a penalty, having regard for the merits of the case before them. In any case, the requirement is subject to draft affirmative procedure in the Assembly, which will ensure that the Assembly has scrutiny over penalty levels. The Minister has, however, suggested defining further in the Bill the possible types of offences, such as where construction is commenced without approval or does not conform to the approved proposals, where there are breaches or where drainage features are altered without approval.

I trust that that has been a helpful recap of the queries raised to date and the Department's position on them. My colleagues and I are happy to take questions.

The Chairperson (Mr Martin): That is great. Thank you very much, Alison. This is a bonus to add to your frequent flyer miles at Committee. That was helpful.

I will start off. In the evidence that you just gave, you referred to correspondence that the Committee has seen. The Minister is happy for the clauses that you mentioned to be commenced "as soon as practicable". How long is "as soon as practicable"? What timescale are we talking about?

Ms Clydesdale: It is relatively short. To commence, you need a commencement order, which has to be drafted and then laid in the Business Office. That takes a pretty short time.

The Chairperson (Mr Martin): Right. The Committee has been discussing "mays" and "musts", and there are a lot of "mays" in the Bill. Is the Department at all of the view that it could change some of the "mays" to "musts" so that it could be commenced immediately? What are the outstanding issues for the Department that mean that this should not be commenced immediately? If it can be done "as soon as practicable", why the slight reluctance to start immediately?

Ms Clydesdale: Do you mean the whole Bill?

The Chairperson (Mr Martin): I am referring to that phrase. You said that the clauses that you mentioned would be commenced "as soon as practicable". I am talking about those clauses. Is there any reason why they cannot be commenced immediately?

Ms Clydesdale: We do not know the date on which the Bill will receive Royal Assent. "As soon as practicable" means once we know the date. Once the Bill has received Royal Assent, the commencement orders can start to be prepared. Clauses 2, 5 and 6 are the elements that need further consultation, for example on SuDS and the homeowner flood protection grant scheme. Further consultation needs to be carried out on those, and it would be unusual to commence until the clauses are ready. Clause 11 is on miscommunication. Northern Ireland Water is preparing operational guidelines on that, so that clause will not be commenced until the guidelines are ready.

The Chairperson (Mr Martin): That is fine. The Department is considering tabling an amendment to change the specified "person" to the three options that you cited and that we saw in correspondence, which are, from memory, the Department, a local authority and the water undertaker. Is that right?

Ms Clydesdale: Yes.

The Chairperson (Mr Martin): What is your understanding of the phrase "local authority" in that amendment? "Water undertaker" means Northern Ireland Water — it is the water undertaker — and we know who the Department is. What is a "local authority"?

Mr Stuart Wightman (Department for Infrastructure): "Local authority" means a council.

The Chairperson (Mr Martin): A council?

Mr Wightman: "Local authority" means local government. It would not necessarily be an individual council.

The Chairperson (Mr Martin): Could it be 11 councils? Am I right in saying that the response that we got from you is in the singular? Can you check that for me?

I do not have it here, but I think that it was.

A rustling of papers to start the Committee.

Mr Wightman: We can clarify whether it is singular or plural, Chair. In previous sessions, we talked about the need for a single authority rather than multiple authorities. I take your point.

The Chairperson (Mr Martin): I am pretty sure that it is singular. "Person" will be changed. For clarity, the Committee is happy that the Department drafts the clause and gives us sight of that as soon as possible. We have a level of policy intent around that, but we would want to see the clause as expeditiously as possible. That will benefit us and yourselves. My understanding is that that change will be to either "the Department", "water undertaker" or "local authority", which is singular. If you draft that clause along the lines that you have indicated to us, that would be a single local authority. Is that right?

Ms Clydesdale: It would depend on the definition of "local authority". If those are the words that are used in the final clause, it would have to be defined. I do not think that the intention is that it will be a single council. We will have to seek advice on the drafting.

The Chairperson (Mr Martin): Members may pick up on this in their questioning, but it is fair to say that the one thing that the Committee was mindful of — it is possibly something that you got back in your consultation — is that we do not want 11 SuDS approval bodies across Northern Ireland. You should be mindful of that in the drafting of the clause.

I move now to offences and penalties. We have a response from you to correspondence that the Committee sent to you following your previous visit — I do not know what page it is in the tabled papers, but I have written "9" and "10" for members. I have printed out tables 1 and 2 from that response. Table 1 is headed:

which is what we are talking about. To a degree, subject to the Department providing us with a clause that details more cleanly who that body is, the Committee may be minded to consider that, for a range of reasons. Tidying up that clause is important for a range of reasons. However, that leaves us with clause 3 and table 2, which is:

We have had some debate around that, and we have received legal advice from the Examiner of Statutory Rules (ESR). So far, you have given us a slightly — I do not want to say "vague", because that might be inappropriate. You have given us a general sense of what those offences might be, but no guidance around what the penalties for those offences would be. I had a look at Northern Ireland legislation. You have cited the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011, the Noise Act 1996 and the Welfare of Animals Act (Northern Ireland) 2011 as examples of primary legislation with penalties set by regs. The Assembly was not established in 1996. I have had a look at the legislation that has been introduced since 2002. Do you know what percentage of legislation comes through the Assembly without maximum penalties set in primary legislation? Would you say that it is a small number?

Ms Clydesdale: I would not have that information, Chair.

The Chairperson (Mr Martin): The amount of legislation that has come through the Assembly since 2002, without maximum penalties set in primary legislation, is 1·3%. Just over 1% of all the legislation that has come through the Assembly has had its penalties set by regs. That is a startling figure and not one that, I imagine, the Department would seek to aspire to. Of all the legislation that has come through this place, 1·3% has had maximum penalties that have been set by regs. That is not acceptable: it is not what the Committee aspires to, and it is probably not what the Department should aspire to.

I think that the Committee has been pretty clear on what it wants to see in clause 3: amendments to specify types of offences and the penalty to be set for those offences. That is a pretty reasonable ask from the Committee for powers in that area. We are content that the advice that we have received on that is fairly sound. Do you think that the Department will bring us, within the next three weeks, offences and penalties that meet the criteria that I have set out?

Ms Clydesdale: We would need to go back to the Minister and seek her advice on that.

The Chairperson (Mr Martin): What has the Minister's advice been on that so far? What has she indicated to you?

Ms Clydesdale: The Department's position is as we stated when we wrote back to the Committee on the penalties.

The Chairperson (Mr Martin): OK. Do you think that the Minister will light a fire under this and get us a list of offences and penalties within the next three weeks?

Ms Clydesdale: I cannot answer that, Chair, but we can certainly take that back to her.

The Chairperson (Mr Martin): I will pause there, folks.

Mr Stewart: Thanks, folks, for coming along. The Chair has covered a couple of the important points. I would like to go back to the point about commencement orders being made "as soon as practicable". I have previously made the point that we have seen examples of legislation that had great intent and used the word "may" a lot about great things that should happen, but, a decade on, we have not really seen anything happen as a result. I could point to the graduated driver licensing (GDL), which I welcome and has finally come on the back of legislation that was approved 11 years ago. Although the intent at the time may be great, we could be forgiven for being cynical whenever there is no time frame for implementation. Do you accept that?

Ms Clydesdale: The structure of the Bill and the clauses on commencement were provided to us on advice, based on the Minister's policy position. It is not unusual for a Bill to provide for separate commencement orders to be brought forward. The one with which I am most familiar is, of course, the Reservoirs Act (Northern Ireland) 2015, for which we are bringing forward commencement orders. A commencement order can just be laid. Depending on the nature of the commencement order, it may not need to come before a Committee. Commencing something is a fairly straightforward process: a commencement order is not complicated legislation. It is normal to bring forward primary legislation with separate commencement orders.

Mr Stewart: It is not difficult, but sometimes it can take a decade, and that is the frustration. I appreciate that there are hiatuses and changes in ministerial direction, but it is frustrating when we see that nothing has happened 10 years after things were passed in legislation.

I have a concern around these clauses being commenced "as soon as practicable". Given that there is an ongoing consultation on the approval body and the responsibility, post the SuDS Bill, and so that people can have some faith in the Department's and the Minister's intentions to see this be delivered, when, in an ideal world, would you expect to see everything that may happen as a result of the Bill happen? When do you expect the intent to have sustainable drainage systems, and a system in place to maintain them, to be delivered on? Are you talking about it being six months or a decade? I am not being flippant: two pieces of legislation that were approved by the Department have still not been fully implemented a decade later. I am not being facetious; I am just being realistic.

Ms Clydesdale: Absolutely not. What "as practicable" will mean depends on when the Bill gains Royal Assent. Royal Assent has to be achieved before we can bring forward a commencement order, and that will depend on the passage of the Bill through the Assembly. In the event that the Bill goes through the Assembly by March 2027 and Royal Assent is gained by July 2027 — that is an example timeline — it will be possible to bring forward the commencement orders then. Of course, the Assembly needs to be in place for us to be able to do that. If we were to gain Royal Assent in the summer, the first opportunity to lay the commencement orders would probably be the following September, after recess.

Mr Stewart: OK. So, if everything were to go really well — we approve the Bill, it receives Royal Assent by July next year and there was a Minister in place — you are talking about things being in place by September 2027. Is that realistic, if all the ducks were in line?

Ms Clydesdale: It is very hard to say, given the number of variables, but that is certainly what we are aiming for.

Mr Stewart: I appreciate that. I know that it has been drafted in a way that gives you flexibility, and I understand that you do not want to be tied down, but I assume that someone in the Department says, "Do you know what? We're not 100% over the approval body or the person, and we're not entirely sure whether it's going to be the local authority or a management company, and we're not entirely sure who's going to pay for it, but we've a pretty good idea, so, if this all goes to plan, we're going to be here". I assume that somebody knows what it will look like in an ideal world. I get that there are variables, and we will be constructive, but someone must know how it is going to look.

Mr Wightman: May I come in?

Mr Stewart: Yes, please, Stuart; that would be useful.

Mr Wightman: There was an indicative timeline in the SuDS approval policy consultation that we did last year, which was that we would try to do the regulations towards the end of the first year of the next mandate. In order for those regulations to be made, the commencement orders would have to have gone live before then. If we are talking about the next mandate, we are probably talking about wanting to bring those regulations to the Assembly a year into the new mandate.

Mr Stewart: I am not trying to be difficult. I am trying to get the clarity that I need so that I can have faith in the Department's intention to do what needs to be done, and so that, in a decade's time, I am not sitting in an armchair, looking at whomever is doing the work then and saying, "It's a bit of a shame that all that work we did didn't deliver what it needed to deliver". That is all that I am doing. I am just trying to make sure that it happens.

Clause 2(6) states that "Regulations may make provision about" the adoption of SuDS. There has been a bit of a change. When we were talking about the approval body, we were talking about a local authority, but clause 2(6)(a) refers to "the adoption by public authorities". Are you using "public authority" and "local authority" as interchangeable terms for "local government"?

Ms Clydesdale: Again, that is something that will be looked at in detail at the drafting stage.

Mr Stewart: But it has been drafted here.

Ms Clydesdale: Yes.

Mr Stewart: When it states "the adoption by public authorities", do you mean local councils?

Ms Clydesdale: In this drafting?

Mr Stewart: In the legislation as drafted.

Ms Clydesdale: Yes.

Mr Stewart: So, that means local government. OK.

There is a consultation ongoing. Where does local government think that it could play a role in the adoption of sustainable urban drainage schemes? I am trying to get a feel for its assessment of its role, or its lack of a role, in taking those on.

Mr Wightman: Are you talking about local councils?

Mr Stewart: Yes, local public authorities.

Mr Wightman: I think that "public authorities" is a more general term.

Mr Stewart: Again, there is ambiguity.

Mr Wightman: No, "public authorities" is whichever public authority is involved. In other words, it could be a council, the undertaker or Northern Ireland Water.

Mr Stewart: In one instance, "local authority" means a council, but, when the Bill refers to a "public authority", it could mean any public body.

Mr Wightman: It would be a public body, as defined. We will need to define that.

Mr Stewart: Right.

Mr Wightman: Obviously, the proposals in our response, and the amendments that we will have to draft, will have to follow through the various clauses, to pick up those changes. That wording may or may not need to be changed.

Mr Stewart: In the Bill as written at the moment?

Mr Wightman: Yes, around public authorities. However, you are right: "local authorities" means local government, whereas "public authorities" is more of a general term.

Mr Stewart: OK. That is good to know.

I know that there is an ongoing consultation, but I am still keen to ask whether you have an idea of where responsibility for day-to-day maintenance, specific technical maintenance and paying for that will end up, once sustainable urban drainage schemes are up and running. Do you think that it will end up with the management company, or one of the umpteen public authorities?

Mr Wightman: We are in the process of developing a business case at the minute. The options were narrowed down to those three organisations. There is the approval and the adoption, and there is the operation and maintenance. Obviously, it depends on what comes out on the other side of the business case. We hope to consult later in the autumn, and we will have a preference in that consultation. We will consult on our preference and set out the evidence and rationale as to why we have selected it, but we are not there yet.

Mr Stewart: I turn to clause 6 on flood protection grants. Alison, I picked up your point that, although sea protection would not be included, a sea defence scheme is in place and would continue to operate for those who could avail themselves of it. What are the Department's intentions at this stage? The Bill provides that you "may" make grants by way of contribution; that is, presumably, still the intent. As you envisage that, what will it look like? Is the time frame for it similar to that for implementation of other measures post Royal Assent?

Ms Clydesdale: As you know, the homeowner flood protection grant scheme is a pilot scheme.

Mr Stewart: Yes.

Ms Clydesdale: We need the statutory powers to make it the Department's duty to provide for that. If the powers are approved, we will need to evaluate the pilot scheme to inform what a statutory scheme would look like. That would involve consultation, particularly on the eligibility criteria. The pilot scheme has, in general, been successful, but a consultation would be required to further refine the eligibility criteria and to put in place the lessons learned through the pilot scheme. It would probably be better to commence that provision when we have a better idea of what a final scheme would look like.

Mr Stewart: That consultation has not begun, but you have the evidence from the outworkings of the pilot. Is it the Minister's intention at this stage to maintain a pilot scheme until the regulations have been approved and are in place?

Ms Clydesdale: As far as I am aware — DFI Rivers run this — the pilot scheme will remain in place, but DFI Rivers is keen to have the powers because they will allow the scheme to be put on a statutory footing.

Mr Stewart: No problem. I will move on. The Chair made some good points about the power to impose penalties. It would be remiss of us not to take on board the concerns of the ESR in regard to that; she has made some valid points. I welcome your acceptance that some amendments are now appropriate. On the back of your previous evidence, I asked whether any amendments were thought to be needed; the answer at that stage was no. At least we have progressed in that respect, and the Committee may also table amendments. Is there a time frame for our seeing the wording of the possible amendments to clauses 2 and 3 so that we can ask the ESR to reassess those provisions? We are slightly running out of time.

Ms Clydesdale: There is no time frame at the moment. We were waiting for confirmation, which perhaps we have got this morning, that you were happy for us to go ahead and draft the amendments.

Mr Stewart: Yes. I do not want to speak for other members, but I am certainly keen to have them as soon as possible to see whether they meet the tests or we have to table our own amendments. It would be really useful to know that. I appreciate your coming along today.

The Chairperson (Mr Martin): We will give you that clarity. What John said reflected the fact that whether we want to table amendments is a decision for the Committee, but I am keen to see the amendments that you will draft.

Ms Ennis: I thank the guys from the Department for being here.

Alison, I will pick up the issue that John started with. We are perhaps in danger of straying from being constructive into being pedantic about terms such as "reasonably practicable", which create a legal duty to act promptly and reasonably but allow for real-world constraints. We are tying ourselves in knots on that. Alison has laid out exactly what the timeline would be if we were to meet all our targets in progressing the Bill through Committee Stage and back to the Floor. Such terms are legally accepted and defined, and there are examples in law of what would be acceptable in the event of a delay. Lack of planning is not acceptable; lack of foresight or administrative capability are not reasons for delay. Implementation of the Bill could be delayed only if there were serious safety concerns, for example. We are tying ourselves in knots when there is no need to do so, because the term is legally defined and there are legal protections for it.

We teased out clause 2 a little with the Examiner of Statutory Rules. Is it fair to say that retaining flexibility in identifying the approval body rather than fixing that rigidly in primary legislation would help the Department to adapt to policy or operational changes and thereby avoid repeatedly amending primary legislation? The Examiner of Statutory Rules indicated to the Committee that there are merits and benefits in the approval body being an existing, established body, because it would have the know-how, and the infrastructure would already be in place. Such a body would be able to do it in a more efficient and accessible way for the public. Is that your understanding of the rationale on those two issues?

Mr Wightman: Yes, it is correct that there is a need for a bit of flexibility around the organisation at this stage, because, as I mentioned in answer to the Deputy Chair's questions, we are going to go out for further consultation later this year. We have narrowed it down to those three organisations. We will do a business case and set out the rationale for which of those three organisations is best equipped to carry out the various functions.

Ms Clydesdale: On the "reasonably practicable" point, I agree with everything that you said. I will give one real-world example that is very easy to understand, given the current weather. Clause 1 is about "Water use bans", which are, essentially, hosepipe bans. Once Royal Assent is received, we will be very keen to commence that clause as soon as possible, because Northern Ireland Water needs that legislation in order to implement a hosepipe ban in weather such as this. There are a number of other clauses that will probably be reasonably easy to commence straight away. Is that right, Julie-Ann?

Ms Julie-Ann Dutton (Department for Infrastructure): There are several. We will commence the clause concerning the registration of article 161 agreements in the Statutory Charges Register as soon as we possibly can after receiving Royal Assent. The clauses concerning flood risk management regulations and the drainage works and environmental impact assessment (EIA) regulations will be commenced immediately or as soon as we can. The misconnections piece will be slightly delayed, because we are waiting for Northern Ireland Water to put in place amended procedures to deal with those, notwithstanding the fact that, by the time that we get Royal Assent, we may be in a different place. Once those amended procedures are in place, that can be commenced straight away. Quite a few clauses can be commenced almost immediately after the Bill receives Royal Assent. Another one relates to the adoption of pre-1973 sewerage. There are quite a lot. Certainly, it is not the intention of the Department or the Minister to delay the commencement orders by any means.

Ms Ennis: Just to clarify, it is not the case that the Department is not ready from an administrative point of view. It would have to be that there were serious safety concerns or some sort of emergency condition that would not allow for it. I want the Committee to be absolutely clear — perhaps we can put the issue with that term to bed after today — that it is not about a lack of planning. That term puts a legal duty on the Department to implement it as soon as possible. That is defined legally. There is a legal duty on the Department to do that. As I said, the only blockage to that implementation would be something such as a serious safety concern, not a lack of planning. I think that we have got clarity on that term.

I turn to the issue around naming the approval body. Do you agree with the assessment that its being an established body, be it a public authority or the water undertaker, will improve accessibility for the public and enhance efficiency?

Mr Wightman: Yes, as I said, it will be one of the three organisations. When we do our review and determine which organisation it will be, cost will be one element of that. It will be about which organisation is best placed from an efficiency point of view, because some of those functions are already carried out by, for example, the Department or NI Water. All that will be looked at when we are establishing which of the three organisations is best placed. Value for money will be one of the key criteria in that.

Ms Clydesdale: It is important that, when we come to drafting the amendment, flexibility is retained so that any one of those three bodies can be appointed. You would not want it to be drafted in a way that means that one of the bodies becomes the default, if further consultation proves that that is not the correct body. It will be important that the drafting facilitates that flexibility so that it could be any one of those bodies. At the moment, however, we think that it will be one of the three.

Ms Ennis: I understand the rationale for that. Thank you.

Mr McMurray: I will ask questions on clauses 2 and 3, because they are possibly the ones with the biggest issues, currently. On clause 2, when it comes to the appointment, some concerns seem to have been allayed. Questions get fired out, and then there is policy. One of the issues with the establishment is around who will feed, house and water it, if that makes sense. There will be an associated cost when it comes to that somewhere down the line. You have just referenced costs. Where does the Department see those additional costs, and how will they be dealt with when it comes to the legislation?

Mr Wightman: That is part of the business case, but you are totally right. There will be the approval. It is probably worth splitting it in two. When an application that has a SuDS system included in it comes into the approval process, that aspect is likely to be partly funded by some sort of application fee. That is the case in Wales, for example. Then there is the maintenance of those things once they are adopted. The way that it works in Wales at the minute is that there is a commuted sum, whereby the local authority comes in and adopts it, but it gets a commuted sum paid by the developer on adoption. Those are the sorts of options that we will look at. Certainly, as was even the case in the consultation that we did, it will be a combination of private funding and public funding. There will be a public expenditure cost, because it is a new regime, but we expect that some of those costs will be offset by the application fees in the application process. We also need to look at the maintenance arrangements and costs that there may be. It depends on which organisation gets involved. There will certainly be a public expenditure cost.

Mr McMurray: My next question is about clause 3. To be fair, clause 3 and the offences are causing me the most consternation. I cannot remember it exactly, but we had a reference to giving a district judge flexibility. As it has been issued to us, it is about where we see the power sitting. Do we see the power sitting in the legislature — here, if you will — or do we see it sitting somewhere else? How does the Department feel, in the first instance, about delegating? What are the practical workings-out if something untoward were to happen and the judge, as opposed to the Department, determines the maximum penalty?

Mr Wightman: In bringing the process forward, we got advice. It may be worth drawing attention to Wales, which I mentioned. Similar to what we are proposing, Wales brought forward and set out its penalties in the Sustainable Drainage (Enforcement) (Wales) Order 2018, so a lot of its enforcement regime, along with the penalties, was set out in subordinate legislation. We are proposing regulations; Wales used an order. I am not an expert on whether it should sit in primary legislation or subordinate legislation. We will rely on the legal advice that we get on that point. However, it is worth setting out the precedent. We are following a similar approach to that in Wales in that regard.

Mr McMurray: That is contrary to the advice that we have been given, which is that it should be contained in the Bill. I speak for myself, but a concern has been reflected in that the penalties are not associated with the Bill, and that is an issue. There is no point in going over it any more, Chair, for we would be talking ourselves in circles. Thank you.

Ms Clydesdale: To add to that, though, it is important to note that, when the secondary regulations come through, they would have the amounts of penalties in them. At that stage, the Committee would have a chance to scrutinise them, as would the Assembly, because they will be draft affirmative. There are —.

The Chairperson (Mr Martin): But not to amend them. Sorry, Alison.

Ms Clydesdale: Not to amend them, no, but to scrutinise them, Chair. There is an element of safeguarding when you are leaving things to the discretion of a judge, because, then, the judge is using his discretion to impose the penalty, rather than it being a fixed penalty. That is the advice. That approach is in line and consistent with that for some of the environmental penalties that are enforced through DAERA and NIEA. That is the thinking, as opposed to that with fixed penalties, which is maybe more where you are moving towards.

Mr McMurray: There is an underlying concern that, if they are not in the Bill, it will cause an issue when a judge comes to interpret the legislation. As the Chair said, in 99% of the legislation that comes through, the offences are included. We do not want to be the 1% or whatever that causes confusion or ridicule. That is where I am at.

The Chairperson (Mr Martin): We might be referred to as the "1% Committee", Andrew.

Alison has explained that the offences and penalties will all be specified when the regulations come through at some point. What Andrew said reflects the feeling of the majority of the Committee: the approach taken by the Department in not specifying the offences and penalties in the Bill is highly unusual. I completely accept, Alison, that, at some point, those will be in regs and subject to Assembly scrutiny, but, as I pointed out, they are not subject to amendment or the possibility of amendment.

To make sure that I give everyone a fair chance, are there any other indications from Committee members? If not, the DFI officials are getting off incredibly lightly. This is absolutely ridiculous. Most of them are smiling now. Folks, thanks very much for attending. Do not get up yet, however, because it is certainly my view and, I sense, that of the Committee that, while you are here, we ask that you go and draft appropriate amendments to clauses 2 and 3, which we talked about today. We can write to you if you need more of an explanation about what exactly those should be, but you probably know the territory that we are talking about. It is about the references to a "specified person" and the bodies in clauses 2 and 3. Clearly, we would like to see amendments to clause 3. You mentioned the generic areas of offences. Just to make you aware — in case you leave the Committee not being aware of this — the Committee is minded to see considerably more detail on that. It is up to the Minister to decide whether she provides that, but that is certainly what the majority of the Committee is looking for. I say that so that you are left in no doubt about where the Committee is on this. Again, it is up to the Minister to decide what instruction she gives you and how far we get with this. I hope that that is helpful for you in understanding the Committee's expectations.

Ms Dutton: May I just clarify something? Is the Committee looking for more detail on the types of offences, the penalties or both?

The Chairperson (Mr Martin): Both. From memory — I do not have it in front of me, although I have a lot of paper here — there were four generic areas that the Minister had written about. I cannot speak for the Committee, but my sense, from the Committee's perspective, is that that is nowhere near the threshold of what we expect. I think that the Committee expects to see in the Bill clauses drafted by the Office of the Legislative Counsel (OLC), I imagine, on very specific offences and the penalties associated with that. Based on some of the evidence that you have given today, I know that it is your view that that is unlikely and that it will all happen in regs. It is not for the Committee or me to tell you what to do. I can only reflect the Committee's sense on this and what we expect as we move towards clause-by-clause consideration in about four weeks' time. It will be up to the Minister to decide what she wants to do about that. Hopefully, that is helpful. That is great. Thank you, folks.