Official Report: Minutes of Evidence

The Chairperson (Mr Buckley): From the transport and roads asset management (TRAM) group at the Department for Infrastructure, I welcome Mark McPeak, acting director of road asset management, to talk about the operational aspects of the Bill; Graeme Belshaw, who works in organisation design and improvement, to talk about stakeholder issues; and John Gamble, who works in the transport policy division, to talk about legislative issues.

Gentlemen, you are all very welcome to the Committee meeting. I seek agreement from the Committee that the session be recorded by Hansard.

The Chairperson (Mr Buckley): I will hand over to the officials to give some broad remarks before members' questions.

Mr Mark McPeak (Department for Infrastructure): Thank you, Chair and Committee members, for the opportunity to provide evidence on the private Member's Bill that was introduced by Paula Bradshaw on the display of flags and emblems, thereby allowing the Department to assist the Committee in scrutinising it.

The Department recognises the importance of addressing the display of flags and emblems that contribute to intimidation, fear, community tension or public safety concerns and supports the overall objective of the Bill. As the Bill moves through its remaining stages in the Assembly, the Department considers that it may benefit from further examination to ensure that it is deliverable in practice.

The Bill seeks to establish a statutory framework for the assessment and, where appropriate, removal of flags and emblems that are attached to public street furniture and displayed in a public place. In doing so, it would place significant new responsibilities on the Department, including assessment, decision-making, consultation, enforcement, notification arrangements and the development of a code of practice. Those are not functions that the Department currently undertakes, and the Bill's implementation would require new governance, operational and decision-making arrangements.

At present, the Department's operational role is centred on road safety, the protection of public infrastructure and the safety of its staff and contractors. The Department does not currently have a statutory role in assessing the content, symbolism or wider community impact of flags and emblems. Matters relating to community relations, public order or potential criminality are generally addressed through existing arrangements, which involve the PSNI and other relevant bodies. The Bill would make the Department responsible for determining whether certain flags and emblems that are attached to public street furniture should be removed. That represents a significant expansion of the Department's role into an area that involves community relations, equality and human rights considerations. To implement the framework, the Department would need to establish processes for receiving notifications, assessing displays, making determinations, maintaining records and, where appropriate, arranging removal.

The Bill would require the Department to apply a range of statutory tests. Removal would be mandatory in certain circumstances, including where a display is "intimidatory or threatening", "likely to stir up hatred" or "fear" or associated with a "proscribed organisation". In other cases, there would be a presumption in favour of removal, including where displays are "offensive", adversely affect community relations, demarcate territory or create "a public hazard". The Department would also need to consider factors such as local views, the circumstances of the display and the importance of living "free from harassment or intimidation". Many of those tests involve subjective judgements and would require clear guidance, robust governance and transparent decision-making processes. The Department would be required, after consulting a range of statutory bodies and considering the recommendations of the Commission on Flags, Identity, Culture and Tradition (FICT), to prepare, publish and keep under review a code of practice.

The Department considers that implementation of the Bill would have staff and financial implications that could not be absorbed within existing resources without impacting on the delivery of current statutory functions. The Bill would likely require the establishment of a dedicated team with operational, policy, legal and administrative experience. It is difficult at this stage to estimate the level of resource that would be required, as that depends on factors such as case volumes, complexity and the extent of any potential legal challenges. The team would need to establish a code of practice and then manage notifications, collate and maintain information on the location and nature of displays, undertake assessments and evidence gathering, consult stakeholders and carry out enforcement activity.

In addition to staffing costs, removing attachments using specialist contractors would have financial implications.

In summary, the Department supports the objective of the Bill and is content to support its progression in principle. The Bill would place substantial new statutory, operational and regulatory responsibilities on the Department that extend significantly beyond its current infrastructure role. Further examination of the Bill would be beneficial to ensure that it is clear, workable and supported by the appropriate powers, expertise and resources, including funding. Officials will be happy to take questions from the Committee to assist members with their scrutiny of the Bill.

The Chairperson (Mr Buckley): Thank you, Mark. At the outset, I say that I have significant sympathy with you guys who are before the Committee. I outlined my concerns about the Bill at the Second Stage, and I have continued to raise those concerns. At a time when Northern Ireland's infrastructure is under immense pressure, your job description as the acting director of road asset management comes with significant responsibility. I would much rather have you gentlemen before the Committee to talk about road maintenance infrastructure, ongoing concerns and road safety, but, instead, we are taking up time today to discuss flags. I understand that flags are important and mean a lot of different things to a lot of different people in Northern Ireland. However, it is unfair in the extreme to expect any departmental official to enter into the sphere of the flag debate in Northern Ireland and to make decisions that could sometimes put them at risk and create difficult community relations. I want to see DFI staff getting on with the day job.

As the Committee Chair, I have a duty to facilitate scrutiny of the Bill, which passed the Second Stage. I have a lot of questions that pertain to the Bill, and I understand that you might not be able to answer them all. However, I have to ask the questions, given that the Second Stage debate was cut short.

I will start with a simple question. Can you explain what expertise exists in the Department for Infrastructure that equips your officials to determine whether a flag, as identified in clause 1, is intimidatory, threatening, offensive, abusive, insulting, antagonistic or not conducive to good community relations?

Mr McPeak: I will try to answer that question. Currently, based on our statutory duties, the Department would not have a role in establishing the content of an attachment. Our current duties for attachments in the road space or road boundary fall under the Roads (Northern Ireland) Order 1993. The best way to explain the road boundary is that it is between hedge and hedge. Article 87 of the Roads Order stipulates that it is an offence to place an attachment in, on or attached to a structure of the road. Our role, in turn, is to determine whether the attachment causes an immediate public safety risk.

At the moment, because of the lack of resources and funding, the Department's core priorities are purely operational and involve managing the road network with a focus on public safety. We would take action on attachments to our assets, where there is an immediate public safety issue.

The Chairperson (Mr Buckley): I totally understand and expect that where there is a public safety risk. The question that I asked you — your answer has been very diplomatic — is about the expertise in the Department to make judgement calls on subjective terms. I am sure that you have looked at clause 1 in detail. What expertise exists for an individual in the Department for Infrastructure to make the assessment of whether something is intimidatory, threatening, offensive, abusive, insulting or antagonistic?

Mr McPeak: The Department does not have the expertise to make those judgement calls or, arguably, the statutory remit to do so.

The Chairperson (Mr Buckley): OK. In your opinion, are road engineers, street lighting staff or operational officials really the appropriate people to make highly sensitive judgements about identity, culture, community relations and, potentially, terrorism?

Mr McPeak: No.

The Chairperson (Mr Buckley): No. Thank you.

I will move to who makes the decision. If a complaint is received tomorrow that a Union flag, an Irish tricolour, an Ulster banner, a Palestine flag or another national or cultural flag is intimidating or offensive in a particular location, who in DFI would decide whether or not clause 1 applies?

Mr McPeak: Do you mean with regard to the way the Bill is written and if the Bill was enacted?

The Chairperson (Mr Buckley): Yes, purely if the Bill was enacted.

Mr McPeak: The code of practice in the Bill at clause 4 would, arguably, set out the rules and an assessment process for the Department to make the final decision with regard to what the content of the attachment would be. In that process, there is work to be done to generate and develop a code of practice. I assume that there is a connection between clause 4 and clauses 1 and 2, because it is not clear in the Bill if there is a connection. However, we assume that clause 4 is connected to both those clauses. To make the judgement calls that are in clauses 1 and 2, the Department would probably need to rely on advice from other bodies, particularly those that are experts in that field. The Department, in the development of the code of practice, would want that code of practice to be transparent, justifiable and subject to challenge. There would need to be a clear decision-making process in place to allow the Department to take advice and make a decision.

The Chairperson (Mr Buckley): The Bill would place a statutory duty on the Department, so I am sure that you have thought through possible scenarios about who in the Department would ultimately have to make the decision. Whether or not there is a code of practice in place — the Bill indicates that there would be — it still requires decision-making in the Department. The Bill states:

those criteria are met. It goes on to say:

What grade of official will be making the call on the opinion of the Department?

Mr McPeak: Normally, our procedures are that there would be a policy in place. That policy is cleared at a higher level. I said in my opening remarks that we suspect that we would need a dedicated team. That team would be led by a senior official. That senior official would be responsible for delivering policy, which, essentially, will be the code of practice.

The Chairperson (Mr Buckley): What grade of official do you envisage that to be?

Mr McPeak: I imagine that it would be a grade 7.

The Chairperson (Mr Buckley): OK. What qualifications would they have?

Mr McPeak: I suspect that they would not be operational engineering-wise or in the professional and technical category. I suspect that they would be more in the general service category.

The Chairperson (Mr Buckley): OK. Ultimately, in the Department, there is a —. Sorry.

Mr John Gamble (Department for Infrastructure): I will add something about the code of practice. There is not, in the Bill, an offence of not complying with the code of practice. I know that this does not directly answer your question, Chair, but it is just to make you aware that the Department would have no way, under the Bill as currently structured, to enforce any non-compliance with the code of practice. Hypothetically, if we produce that code and it is approved by the Assembly, there is nothing in the Bill, as drafted, that creates an offence if people do not comply with the code. It will just be a guide.

The Chairperson (Mr Buckley): That is a very important point that I was going to come to. We certainly need to give some considerable weight to that, because that was used as a robust defence of the Bill and its practicalities during the Second Stage debate.

My understanding of the Department is that the Minister is at the top of the tree and is the ultimate decision maker and that all other staff are subservient to and servants of that direction. If there was controversy around a decision on how a flag is viewed, would the Minister of the day have had sight of that decision before it was made?

Mr McPeak: That is a good question. I go back to the point that the code of practice needs to be clear, auditable, transparent and generated in a way that is logical and, arguably, uses existing legislation to make such judgement calls.

The Chairperson (Mr Buckley): Would you expect a code of practice to exclude any input from or consideration by the Minister of the day, and would that be normal when it comes to operational matters in a Department relating to the Minister?

Mr McPeak: That would certainly not be normal.

The Chairperson (Mr Buckley): No, I would not have thought so.

Would you envisage individual officers being personally identified as having made decisions about highly contentious flags?

Mr McPeak: Sorry, would you say that again?

The Chairperson (Mr Buckley): Would you envisage any individual official being personally identifiable having taken such controversial decisions? I have seen officials come before a Committee where there was an audit trail — which there normally is for good public prudence — that could ultimately identify an individual of your Department who made a controversial decision. Do you anticipate or envisage that being the case as the Bill is drafted?

Mr McPeak: No.

The Chairperson (Mr Buckley): Why?

Mr McPeak: I envisage that the code of practice would be in place and that the dedicated team in place to enact the decision-making process would need to meet regularly as a group and agree, taking all the advice needed to be able to make a decision. In my opinion, at this early stage, and without even understanding or having clarity about what the code of practice needs to include, that governance process should be carried out as a group. Arguably, that team, at a board level, would make a joint decision as opposed to it being one individual.

The Chairperson (Mr Buckley): There would be a Civil Service lead — at grade 7, I think, you said — so ultimately there would be the potential for that person to be identified publicly as leading the team that made a controversial decision, which stokes a number of concerns of public interest.

Mr McPeak: I agree. That grade 7 would be responsible for taking forward the procedures within the code of practice.

The Chairperson (Mr Buckley): What protection would those officials have against threats or intimidation arising from their decisions?

Mr McPeak: That is a really good question.

The Chairperson (Mr Buckley): The Department has no clarity on that as the Bill is drafted at this stage.

Mr McPeak: Yes.

The Chairperson (Mr Buckley): OK.

The next question follows concerns that I raised in the debate at Second Stage. How would DFI determine objectively whether a lawful national flag was intimidatory or threatening?

Mr Gamble: That speaks directly to the drafting of the Bill and concerns that we identified. At the moment, clause 1 places a duty on the Department to act where there is offence, and there is a list of descriptions, such as "offensive", "insulting" and so on. There is no information on how we determine that. Normally, in Bills of that type, you might expect to see in the explanation of the interpretation something along the lines of, "Insulting means such and such" or for it to refer to another Act or piece of legislation to state specifically what that means. That is absent from the draft at the moment, so we do not have a guide as to how we would determine what insults one person and what insults someone else and so on, and that would be very much subjective for the Department.

The Chairperson (Mr Buckley): I appreciate the conundrum that that creates for a departmental official. Can you understand the conundrum that that creates for me as an elected representative who has such subjective legislation before him? In Northern Ireland, we know that two people in this room can have a very different opinion on a particular flag. When we look at language such as "intimidatory or threatening" or other words that are used in the Bill, in a subjective fashion, how can we expect departmental staff to make judgement calls on something as subjective as that when we have elected representatives who cannot agree on particular terminology and what it means to different individuals? Is that a fair assessment for me as Committee Chair when I come to scrutinise the Bill about how dangerous a position subjective terms in that field place you as officials in when it comes to drafting and trying to make workable a Bill that places a statutory duty on you as officials? You can understand that.

Mr Gamble: There will certainly be a need for clearer drafting, and some of the terms used will need to be extrapolated somewhat.

The Chairperson (Mr Buckley): OK. From your knowledge and understanding, is the test the identity of the flag, the intention of whomever erected it, the perception of the complaint, the location or a combination of all four?

Mr Gamble: It could potentially be all of the above. We have not really been able to work that out yet. We are at an early stage. We have had some conversations with the Bill sponsor and our legal teams, which have been very positive. Those are ongoing. However, we are still trying to hammer out what that actually means and how the tests, taken together, impose a duty on us, as a Department, because, at the moment, that is not clear in the Bill.

The Chairperson (Mr Buckley): You said that discussions have been positive. Have they clarified whether the test is the identity of the flag, the intention of whomever erected it, the perception of the complaint or the location?

Mr Gamble: Not as yet, no.

The Chairperson (Mr Buckley): There has been no clarity.

Mr Gamble: We hope to get that.

The Chairperson (Mr Buckley): How would you describe that as "positive" if you do not have clarity and we are now at Committee Stage?

Mr Gamble: It is positive that they agreed to engage with us.

The Chairperson (Mr Buckley): Is it fair to say that, following that engagement, you are still no clearer as to those particular tests?

Mr Gamble: In fairness to the Bill sponsor — I do not want to speak on their behalf — they are aware of our concerns and have committed to working with us to try to have a conversation about those concerns going forward. We think that that is positive.

The Chairperson (Mr Buckley): Test: if 10 residents say that a flag is "threatening", and 10 say that it is "legitimate cultural expression", what does DFI do?

Mr McPeak: I go back to my original comment about developing a code of practice and that public-interest test within it. It is really important that the code of practice sets out a clear, logical decision-making process around what would meet each of those tests. The Department's view is that, arguably, there is already statutory legislation in place that makes those tests, and it is a matter of whether that statutory legislation should be included in or form part of the code of practice. The way in which the Department needs to develop the code of practice will have to be explored as the Bill goes through the stages. Importantly, however, there would need to be the potential for other stakeholders to provide advice. As the Bill is written at the moment, the Department is the decision maker, but to get advice from other bodies with expertise to inform a decision is, arguably, what the code of practice would provide clarity on.

The Chairperson (Mr Buckley): I appreciate that it is not the Department's Bill. However, it places a statutory duty on your Department, and therefore the questions are valid. The Department does not have a view on how it would solve the issue if 10 residents say yes to the flag and 10 say no, or a suggestion to make to the Bill sponsor when it comes to drafting an amendment. I do not know the answer to that question nor how I would solve that issue.

Mr McPeak: I go back to the point that it requires the development of a code of practice and the tests within that code of practice. Whatever that code of practice looks like, it needs to be transparent and justifiable and to enable clear decision-making, so that, if that decision is tested, it is robust.

The Chairperson (Mr Buckley): Those concerns go to the very core of the Bill. It is OK to introduce the Bill's principles and intentions at Second Stage. The Department has said that it supports the Bill's principles and intentions, but then it goes on to say, "However ... However ... However". I support the, "However ... However ... However", because, when the Bill meets the litmus test and hits the rubber to the road, it falls far short. I need to know the answers to these questions before I could say confidently that, number one, it would enable you to fulfil the statutory duty that it would place on you and, number two, it would not waste precious departmental resource or lead to increased agitation and have a negative impact on community relations. What if one person complains? Is the one person's stated fear sufficient to trigger an assessment?

Mr Gamble: No thought is given to that in the Bill. Again, as Mark said, a code of practice may address that. However, there remains the fact that, at the moment, the Bill does not create an offence for non-compliance with that code of practice. The code of practice would exist, but the only offence in the Bill is obstruction of a DFI official in removal of a flag or emblem. Therefore, people can theoretically contravene a code of practice that might be produced in the future, but, as the Bill is drafted —

The Chairperson (Mr Buckley): There would be no legal —.

Mr Gamble: — that is not an offence.

The Chairperson (Mr Buckley): OK.

I want to move to property. Can you confirm that the Bill does not restrict DFI's duty to DFI-owned street furniture only?

Mr Gamble: As drafted, it is wider than that. The description of "public street furniture" could theoretically include things such as bins and fences but not temporary structures. It would not be just lighting columns or DFI-owned assets; it would be wider than that. We hope that the Bill sponsor will address that.

The Chairperson (Mr Buckley): I have it in front of me. Clause 7(1) states:

We know that DFI has responsibility for most, but not all, lamp posts. We know that it does not have responsibility for bus shelters, by and large. Will you confirm to the Committee that a lot of that "public street furniture" falls outside the Department's current remit?

Mr Gamble: That is correct.

The Chairperson (Mr Buckley): Therefore, the Assembly would be imposing a statutory duty on DFI officials to remove property from street furniture belonging to another public authority. Is that not true?

Mr McPeak: Article 87 provides the Department with the discretionary power to remove anything in or on a road or within a road boundary.

Mr Gamble: To clarify, that is article 87 of the Roads Order 1993.

The Chairperson (Mr Buckley): That is a fair point. Do you agree that a lot of the issues that I have raised about "public street furniture" would not always pertain to the road boundary?

Mr McPeak: They do not, but those that pertain to the road boundary, including an electric pole —.

The Chairperson (Mr Buckley): So, if there were a road safety issue, the Department could in theory remove said object.

Mr McPeak: Yes.

The Chairperson (Mr Buckley): That seems sensible. However, when it comes to removing flags that are deemed to be "intimidatory or threatening" — whatever that means; we have not got to the bottom of that — and we take into account the wide range of objects that could be included in the definition of "public street furniture", it would be quite an onus on a Department that already has quite a considerable number of items of "public street furniture" as defined in the Bill, but it would not be exclusive to the Department.

Mr McPeak: At the moment, the Department does not distinguish between the content of an attachment.

The Chairperson (Mr Buckley): OK.

Setting aside the public safety concerns that you have touched on, Mark, what legal authority would your staff have to enter another public body's property and interfere with its assets?

Mr Gamble: Again, that refers back to article 87 of the 1993 Order. The only time that we can identify where we, as a Department, would be able to go into another body's property would be where something on that property was causing a risk to public safety on the road. The Bill as drafted widens that somewhat. We do not have a clear picture of how we would have access to some of the properties that are described. For example, if a flag or emblem were identified in a public space used for entertainment purposes or public events, such as a community hall, it is not clear, under the terms of the Bill, whether the Department could remove that without permission.

The Chairperson (Mr Buckley): Who would carry the liability if DFI were to damage another public body's property? What if community tension were to rise due to the removal of said object from public street furniture, and that resulted in damage to that particular body's property? Who would carry that liability?

Mr Gamble: That is a good question, Chair. I do not think that that is covered in the terms of the Bill. Mark, do you have anything to add?

Mr McPeak: I think that we would have to take that away and check.

Mr Gamble: We would have to come back on that, Chair.

The Chairperson (Mr Buckley): There is a theme here, gentlemen. It is not the fault of those who are sitting before me. Can you give me a clear direction? The Department supports the principle of the Bill, but the, "However ... However ... However" tells me that the legislation is not coherent. In your time as representatives of the Department for Infrastructure, have you ever dealt with a piece of legislation that has so many potential loopholes and unintended consequences as the Bill before you today does?

Mr Gamble: I think that this is our first private Member's Bill, Chair, but —

The Chairperson (Mr Buckley): Unlucky for you.

Mr Gamble: — I have worked on previous Bills. Given a lot of the issues that we have identified, about which you have heard something, there needs to be more conversation with the Bill sponsor and possibly legal advisers to see how we could resolve some of the ambiguities. There are anomalous issues in the Bill that we could not resolve ourselves.

The Chairperson (Mr Buckley): Let us say that DFI determines that the Bill requires a flag to be removed. DFI requests PSNI assistance, because there is a risk of disorder. If the PSNI declines to provide that assistance, what does the Department do?

Mr McPeak: First, the Department has good relationships with the PSNI. I have not had any experience of the police declining support for the Department when it needs it. I would like to think that any decision that we take, where there is a need for removal, would be supported by the police. As I said earlier, if it breaches existing legislation on terrorism or public order, the police provide assistance to our specialist contractors to remove it.

The Chairperson (Mr Buckley): "Good relationships" mean very little when we talk about a statutory duty that remains with DFI.

Mr McPeak: I agree.

The Chairperson (Mr Buckley): That is a problem. We can have relationships but the statutory duty remains with the Department to remove. Clause 6 states that DFI "may" request police assistance where it considers there to be "a breach of the peace" or where obstruction may arise. It does not mean that it is guaranteed.

Mr McPeak: As part of this process, there is an opportunity for the Department to firm up a formal process of support.

The Chairperson (Mr Buckley): The RaISE paper raised some of those concerns with us and stated that it was unclear what would happen if the PSNI assistance was requested but not provided or where DFI and the PSNI disagreed about the risk of a breach of the peace. Does the Bill potentially leave DFI with an absolute statutory duty to carry out an operation that the police may ultimately consider is too dangerous to support?

Mr McPeak: I go back to what I said 10 minutes ago on the requirement of the code of practice and the steps to go through in that code of practice. I suspect that one of the bodies associated with providing advice may be the police in order to meet legislation that currently sits with them. Arguably, as part of that code of practice process, they would be involved not in the decision but in providing advice, along with a number of other bodies.

The Chairperson (Mr Buckley): Does that have the potential to draw the police into some of those matters before a decision would be made, or is it purely for assessment?

Mr McPeak: It is for assessment purposes.

The Chairperson (Mr Buckley): Would you ever instruct a DFI employee to enter an area or remove a flag associated with a proscribed paramilitary organisation without police protection?

Mr McPeak: At the moment — I will answer your question — the Department's process regarding the receipt of complaints about flags that are not an immediate risk to the public's safety involves a joint protocol in which we go through a set of standards and procedures. If we receive a complaint, we seek advice from the PSNI on whether its removal would contribute towards community risk or tension.

The Chairperson (Mr Buckley): In short, you would never instruct a DFI official to enter an area to remove a flag associated with a proscribed paramilitary organisation without police protection. Is that a fair assertion? Yes or no?

Mr McPeak: We would instruct an official or a contractor to go in only if it were safe to do so.

The Chairperson (Mr Buckley): How can DFI guarantee compliance with the statutory requirement contained in the Bill to remove it "as soon as is possible", as described, if the PSNI support is not available?

Mr McPeak: I suspect that the PSNI support would need to be available as part of that process.

The Chairperson (Mr Buckley): "Suspect" and "good relationships" mean nothing when you have a statutory duty to remove it as soon as is possible. You are going to fail in your statutory duty.

Mr McPeak: I understand the dilemma.

The Chairperson (Mr Buckley): I need clear answers from Department officials about the workability of the legislation when there is such concern about its workability.

Mr McPeak: We are not disagreeing. As I said in my opening remarks, we support the objective of the Bill, but a number of amendments are needed to make it practically deliverable.

The Chairperson (Mr Buckley): Have trade unions representing the staff who might physically undertake the removals or be involved in a new team or in a consultation role been consulted on how that might impact on their members' rights?

Mr McPeak: Not yet.

The Chairperson (Mr Buckley): Is that something that you intend to do?

Mr McPeak: We will consider it, yes.

The Chairperson (Mr Buckley): OK. Is it correct that DFI's existing external contractors have in the past refused to become involved in removing contentious material?

Mr McPeak: I will again refer to our protocol and procedures, under which we need assurance that there is no risk of community tension before allowing our staff or a contractor to enter an area to remove an attachment.

The Chairperson (Mr Buckley): That answer is forward-looking. I am talking about in the past.

Mr McPeak: It is the same.

The Chairperson (Mr Buckley): No. The question is direct: have DFI's existing external contractors ever refused to become involved in removing contentious material? I know the answer, but I want to hear it affirmed at the Committee. What is the answer?

Mr McPeak: They have refused only on the basis that the Department has not received confirmation that their doing so would not raise community tensions.

The Chairperson (Mr Buckley): In short, yes, they have refused on the basis that you outlined.

Mr McPeak: Yes, and we would support them.

The Chairperson (Mr Buckley): OK. You would support them in that.

If the Bill were to become law tomorrow, is it the expectation that DFI's own industrial staff would physically remove contentious flags?

Mr McPeak: In short, no.

The Chairperson (Mr Buckley): What does commercial contractors being unwilling to undertake the very activity that the Assembly will place a statutory duty on civil servants to perform tell us about the practicalities of the legislation? Regardless of the physical removal of a flag, the work of which, on occasion, your external contractors have not fulfilled because of the risk of community tension, we would be passing on to civil servants to decide whether it should be removed. How can you square that circle?

Mr McPeak: The contractors that we operate are operational contractors. The contractor to which you referred is a mechanical and electrical contractor who maintains street lights. Its remit is not to remove attachments.

The Chairperson (Mr Buckley): Rightly so.

Mr McPeak: The Department has probably over 80 operational contracts. They are procured in a certain way in order to deliver road maintenance services. They are not procured to remove attachments.

The Chairperson (Mr Buckley): I understand that, but we would now be placing a statutory duty on a Department, so civil servants would have to perform the decision-making. Is it fair to expect them to make the same decisions? If a group of those civil servants were to meet and come to the same conclusions as your external contractors have done, what would happen?

Mr McPeak: I was deliberate in my opening remarks in referring to "specialist contractors". If the Bill is enacted, it is likely that the Department will have to procure or get access to specialist contractors to remove attachments.

The Chairperson (Mr Buckley): Specialist contractors do not come cheap. That is one thing that I have learnt in my time working in local government and as an MLA. DFI told Research and Information Service (RaISe) staff in August that the detail of staff resources had not been explored yet. You have fleshed out in part, Mark, what you would require. How many additional staff would DFI therefore require in order to implement the Bill?

Mr McPeak: That is an extremely difficult question to answer, and I am unable to answer it today. We have looked at the functions that a team would need to undertake to deliver the Bill as drafted. When it comes to the functional requirements that I indicated in my opening remarks, the first thing to say is that it would all depend on the volume of attachments needing to go through the public interest test. What appears to be unclear in the Bill is how the information needed for that would be gathered. The Bill talks about a voluntary notification system. We have not, however, been able to find anything in the Bill to explain how the information would be collected. I can only assume that there would need to be a team to collect that information, and arguably to inspect and gather it. The explanatory and financial memorandum (EFM) refers to a "targeted and proportionate" approach. At the minute, we do not know what that would look like. We will need to engage with the Bill sponsor to get an indication of what it would look like.

The Chairperson (Mr Buckley): You outlined how it is difficult for you to ascertain how many additional employees the Department would need or expect to get. The number would largely be based on assessed need.

Mr McPeak: Yes, and that is just the starting point.

The Chairperson (Mr Buckley): That is the starting point, because —.

Mr McPeak: There would be a need to monitor the notification process on the portal. We would need to triage anything that is reported, just as we do when we get a report of a pothole defect, where we triage it to ascertain its importance and significance. We would need to develop a code of practice. A team would be needed for that, including to consult on it. We would need an assessment support team to assess all the information that has been gathered. We would need to carry out consultation and community engagement, for which strict governance would be needed. For operations, there would be planning, delivery and contractual management to consider, as well as site access, traffic management, staff safety and liaison with the PSNI. The Bill gets into removal and enforcement activities, including evidence gathering and the handling and disposal of items. It will potentially be a significant issue, with a significant team being needed for it.

The Chairperson (Mr Buckley): A significant team could be needed, but you are not able to define that. I do not blame you for that, but how do you think it feels for —?

Mr McPeak: May I add one thing?

The Chairperson (Mr Buckley): Go ahead.

Mr McPeak: The Department has a remit for 26,000 kilometres of road network. The Bill imposes a duty beyond that remit. Where the boundary is, we are not quite sure. It will potentially be significant, however.

The Chairperson (Mr Buckley): Can you imagine the difficulty that the Committee is put in, given that we are not able to ascertain those exact details? We would potentially be recommending imposing a new statutory duty on the Department, which already has the strains and complications that come with that particular issue.

Your budgetary position is a nightmare scenario right now. You talked about that. We know that road asset management, for which you are an acting director, is under considerable stress and pressure. From which existing DFI functions — road maintenance, street lighting, drainage, transport or elsewhere — would resource be lost in order to fund the responsibility to remove flags? There is very little extra money coming your way. How would the Department re-profile its current finances to pay for those additional staff and the responsibilities that the Bill would introduce?

Mr McPeak: My pre-prepared answer —

The Chairperson (Mr Buckley): I want to hear it.

Mr McPeak: — is that the Department would not be able to absorb the cost without there being an impact on other statutory duties.

The Chairperson (Mr Buckley): To enact the Bill as drafted and to fulfil the statutory duty that you would be responsible for, you could therefore not, out of the current funding envelope, provide the same level of service for road maintenance, street lighting, transport, drainage and other responsibilities of the Department. As things stand, is that a fair assessment?

Mr McPeak: Without additional funding and resources, yes.

The Chairperson (Mr Buckley): I have many more questions, but I will now bring in members and hope that I get a chance to come back in. I thank you, as officials, for answering those questions respectfully. I will be as sceptical and concerned about the Bill when I am leaving the room as I was when I walked in. It is an opportunity to throw a problem that exists in Northern Ireland on to your lap, when you have other significant responsibilities to be dealing with. The Bill certainly will not pass my sniff test for what legislation should mean for practical delivery on the ground.

Mr Stewart: Gentlemen, thank you so much for coming along. I also have a great deal of sympathy for you. I respect the work that you do in carrying out all the statutory obligations that you currently have. When we continually hear words and phrases from you such as "unclear", "ambiguity", "needs clarification", "not sure how it would operate in practice", "not sure of the logistical and financial costs", and we are six months from the end of the mandate, without having any idea of how this will operate in practice, I really feel for you.

Although I accept that you support the Bill in principle, I imagine that, deep down, you and each and every one of the officials behind the scenes would run a mile from the statutory obligations that are set out in the Bill as drafted. I know that I certainly would. It is important to put that on the record. A massive number of questions remain unanswered by you, through no fault of your own, so it is only right and proper that the Committee extend the Committee Stage as much as possible, Chair, so that we can properly scrutinise the Bill, given its potentially far-reaching consequences. I would like to have seen an even lengthier extension be requested.

Mark, you said that you are currently responsible for maintaining 26,000 kilometres of road network. How many lamp posts, for example, are on those roads? How many currently have flags or emblems on them?

Mr McPeak: There are 300,000 lamp posts. I am not sure how many have attachments, but we now have in place a central register for gathering complaints. When we get multiple complaints about one flag or one location, the information is referred to the PSNI for guidance. On average, usually about 200 a year are referred to the PSNI. As I said about five minutes ago, we do not actively collate information on flags for which no complaint has been received.

Mr Stewart: There is no current system to do so either, so the Bill as drafted would set a requirement for a voluntary system for, I presume, DFI to establish, through a portal, where every piece of street furniture in your ownership and outside your ownership could be reported by anybody who wishes to put up a flag or emblem, and then every person who wishes either to complain about or support that could do so. Given what you know about developing such systems, has any assessment been done at all of how much that would cost, what level of engagement would be required and how much human resource would be required?

Mr McPeak: As you are probably aware, we already have a series of portals in place.

Mr Stewart: Yes.

Mr McPeak: We have one for reporting a street light outage and one for reporting advertisements and graffiti. Arguably, under the definition in article 87 of the Roads (Northern Ireland) Order 1993, an attachment can be an advertisement or graffiti and/or a flag or emblem, so it would not be too difficult to create a portal or add to the existing portal in order to allow people to comment or, arguably, complain about something that is attached to a lamp post. The system that is used at the minute is a digital map. We can find, digitally, where the location is. The only issue that we have is that the digital map covers only the DFI Roads divisional boundaries.

Mr Stewart: Exactly. It therefore does not include trees, bins, unadopted roads or any of the street furniture that may well be implied in clause 7 of the Bill.

Mr McPeak: It does not go any further than whatever the Department's responsibility for roads is.

Mr Stewart: The current system would not effectively meet the criteria in clause 7 regarding the broadness of the street furniture network that is referred to.

Mr McPeak: A significant change would need to be made to how the mapping is done and the location is identified, based on what any other "public place" might be.

Mr Stewart: Again, having a code of practice will be essential for dictating that, but, currently, if someone reports a traffic light or street light as being out, that is what it is. It goes on to the system and is triaged, and, hopefully, someone then goes out and repairs it, based on a road safety assessment etc. If 5,000 flags were reported over a period, what resource would be required then to go out, assess each of those flags to determine whether they are deemed "intimidatory or threatening", or whatever criteria are agreed, and then go back, triage the priorities, reassess them and potentially send out a contractor who has had to be brought in from outside the Department? Do you have any idea of how that process would work and what the affiliated costs could be?

Mr McPeak: The process would probably be similar to what we do when triaging a pothole. What is reported on the portal is not necessarily what is on the ground. The portal also has a facility for uploading photographs, but not everybody provides a photograph. A triage assessment would therefore be needed. As for the resource needed for doing that across 26,000 kilometres of road network and —

Mr Stewart: It would be impossible to assess.

Mr McPeak: — beyond, it would depend on the individual case.

Mr Stewart: Exactly. We do like flags in Northern Ireland, seemingly. There are a lot of flags.

We have talked about competing priorities, and I will give you an example. Say that someone reports that a street light is out. I know that you try to fix them all as quickly as possible, but doing so is not always realistic. Contractors have priorities. There may be a street light out in one street, but three flags may also be on that street. The priority in the statutory obligation in the Bill means that, once the flags have been triaged, assessed and deemed to be threatening, your contractor goes out and takes them down — we can look at the outworkings of that later — but the street light is left out. How do you make an assessment of which is a greater priority? I would much rather see contractors and officials repairing street lights and dealing with issues with roads. Could we have a situation in which there are two competing priorities, meaning that the street light stays out but that the three flags come down?

Mr McPeak: As I said, two different types of contractors would be involved.

Mr Stewart: I appreciate that, but one contractor might bypass the street light, while two might take down the —.

Mr McPeak: A mechanical and electrical contractor would fix the street light, and —.

Mr Stewart: Or not.

Mr McPeak: — that would take priority, because its being out is a public safety issue, owing to a lack of visibility.

If the Bill is enacted, a separate specialist contractor will be appointed by a team separate from the street lighting team, and that team's remit will be to manage whatever attachments are deemed to meet the test for removal.

Mr Stewart: Is it possible that it could cost more — the tendering process may or may not be based on cost per flag — for specialist street contractors to take down a flag than for them to replace a street light, given the security implications and everything else that goes with making such assessments?

Mr McPeak: I do not have any figures for commercial —.

Mr Stewart: But it could —.

Mr Gamble: May I jump in there, Mark? I want to flag the fact —. Sorry, I said that I would not use "flag" in that context today, and I just did. [Laughter.]

Mr Boylan: Do not worry, John. [Inaudible.]

In all seriousness, fair play, although you should have said "fleg". [Laughter.]

Mr Gamble: The phrase "as soon as is possible" in clause 1 is also unclear.

Mr Stewart: Yes, I will come on to that.

Mr Gamble: That is very relevant to what you are talking about, because there is nothing in the Bill to say whether it is 30 days or 30 minutes. That could speak to cost and urgency as well, and we do not have clarity about that in the Bill as drafted.

Mr Stewart: OK. That is another issue to do with ambiguity and uncertainty that we need to dive into.

We have talked about the police presence. How many examples are you aware of in the past year where the Department has contacted the police to get involved in assessing flags and taking them down? Are you aware of how many times that might have happened?

Mr McPeak: I do not have the figures, but my gut feeling is that the number is quite low. I will mention the immediate public safety risk first. There is a distinction to be made between attachments that raise public safety issues and flags. Flags are generally put high up on street lights. Generally, there is not a public safety issue with them. We generally do not intervene, because there is no public safety issue. An attachment becomes an immediate public safety issue, however, when it is attached to things such as railings at a pedestrian crossing, which are designed so that people can see through them, should a child run out on to a road. Such attachments are deemed to be a public safety issue owing to their blocking sight lines, but, generally, they are banners to advertise something such as a community fete, and there is contact information on them. In the vast majority of cases, the action that we take is to contact the person —.

Mr Stewart: You know whom they are. Their details are on the banner, because people want to sell things.

Mr McPeak: Yes, and when we explain to them that it is a public safety issue and why, they come straight out and take it away.

Mr Stewart: OK. I will return to the potential for tenders from private contractors. You use contractors at the moment, but you say that they are used for normal, day-to-day operations to fix street lighting and other things that people expect the Department for Infrastructure to do. I do not know which existing private contractors would want to join the flag police and assist in taking flags down. Have you assessed what such a tender document might look like, how many people might be required and how it even would be assessed?

Mr McPeak: No.

Mr Stewart: It may well be that you say, "We will anticipate the number of flags that will be put up this year. We'll assess the percentage of them that need to come down, and we'll then do it by unit". I say that because Birmingham City Council, which was referred to during the Second Stage debate, spent £157 per flag and a total of two and a bit million pounds on taking down flags last year.

You could do a lot with £2 million, and that would probably be the tip of the iceberg when it comes to the number of flags that go up in Northern Ireland. How would that be tendered for? How would you go about doing that?

Mr McPeak: If the Bill is enacted, the team that will be put in place would need to consider all those requirements, and we would probably seek advice. We would procure contracts, and I have no idea how many would be needed or what the commercial cost would be.

Mr Stewart: I have two final points. I mentioned the "low-hanging fruit" during the Second Stage debate. I anticipate that if there were displays of illegal paramilitary flags in a certain area, the police would be contacted for an assessment and may deem that there is a risk to life or property, but you would be obligated to take the flags down. Your contractors may say, "We are not going to do it without police support", or, "We want X amount of money, and we will do it under the cover of darkness". There will likely be repercussions, with more and more flags going up. Eventually, you may say that they cannot be removed because it is not worth the safety risk to your staff or the cost to the public purse and that the police will not support it. We will see the easy "low-hanging fruit" being dealt with: the Union flags will come down in certain areas that do not pose a threat, and the paramilitary flags from proscribed organisations will simply not be touched because the threat to your staff is too much of a risk, and the cost to the public purse is too much. Could the scenario that I have described could be one of the outworkings of the Bill?

Mr McPeak: Again, going back to the code of practice, there needs to be a fair assessment of what would be deemed to pass the test for instruction for removal.

Mr Stewart: If the flag of a proscribed organisation does not meet the test, nothing will. If there are several of those flags in a certain area, but the police say that, in the interest of staff safety, they cannot give cover, it leaves the Department in a precarious position. The flags may stay up through no fault of yours, even though you have the statutory obligation to bring them down. That could be the outworking.

Mr McPeak: That is why we would need a specialist contractor that has been procured to take the flags down.

Mr Stewart: Absolutely. I have scores more questions, but I am conscious of the time. Thank you. We will come back to those issues.

The Chairperson (Mr Buckley): So do I.

Mr Boylan: Thank you very much for your presentation and responses so far. I have no doubt that it is a challenging business. My point is on clause 2, "Sensitive places". It states:

I will not name them all, but those are examples of the sensitive places. All Members get complaints about different types of flags every year. Unfortunately, I had to visit Craigavon Area Hospital on a number of occasions, particularly over the summer, and there are a number of one-identity flags on street furniture around that facility. I want to put on record that they are British-oriented flags. My question is on how this Bill might be enforced if enacted: how will the Bill ensure that those flags are removed?

Mr McPeak: Can I pause and reflect on the definition of a sensitive place? Do you want to cover that, John.

Mr Gamble: We think that "sensitive place" is a very wide definition. The Bill states that:

Again, it places an onus on the Department to consider whether Craigavon Area Hospital would be a place for us to decide on, or any other example that Members may care to bring up. Again, it brings the onus to the Department. The more you read the clauses that describe the "sensitive places" and the public places, the more you will conclude that there is no place that is not included unless you go up the Mourne Mountains. It is very broad.

Mr Boylan: Down through the years, we have changed the legislation from "may" to "must", and I am asking about it in that context. It is not a trick question; it is the way that I read the Bill. The Chair has forensically interrogated the Bill so far —

The Chairperson (Mr Buckley): There is more to come on that.

Mr Boylan: — but I would like to know how much engagement there has been throughout the process with other Departments and partners, such as the Department of Justice and the PSNI, who have a role to play.

Mr Graeme Belshaw (Department for Infrastructure): It is fair to say that stakeholder engagement has commenced but not concluded yet. We have reached out to all the organisations listed in clause 4. That will intensify over the coming days and weeks to try to ascertain what they envisage their role will be in the decision-making process and in providing advice and guidance to the Department to help us take the decisions that the Bill puts upon us.

Mr McPeak: DOJ and DFC are also part of that process.

Mr Belshaw: Over and above the four that are mentioned in clause 4, we have made contact with DOJ and DFC. That list may grow.

Mr Boylan: I do not want you to think that I am asking that question just about hospitals, but "medical facility" is listed in the Bill. There have been a number of complaints about the way that the Bill reads, and members will get complaints about other things. As part of our scrutiny role, I am just asking how that reads. Like I said, it is a challenge, and it is our job to scrutinise.

Mr McPeak: May I add something that I thought about last night? It is also unclear in that you could have a flag in a sensitive place, and you could have the same flag in another place that is arguably not sensitive, but do you take one down and not the other?

The Chairperson (Mr Buckley): That is a fair point. I want to come on to consistency across the board.

John, I do not want to put words in your mouth, but I want to put you over that last piece. The list of sensitive places is very long, and its closing piece in clause 2(3)(d) includes:

I am paraphrasing your words — you can make them clear — but you said that it is hard to identify an area in Northern Ireland that could not be deemed as being a sensitive place as per the legislation. Is that a fair comment?

Mr Gamble: I would struggle to think of anywhere, bar the top of Slieve Donard, that is not easily accessible to people of national and cultural identities or whatever descriptor you want to use. It would be useful to narrow that down a lot.

The Chairperson (Mr Buckley): That is fair enough. Slieve Donard will certainly get a mention in my next contribution.

Mr Dunne: Thank you, gentlemen, for your presentation. I certainly do not envy your task. We all appreciate the work that you are trying to do every day on the core statutory functions of your Department, and we are battling with that daily.

I am conscious that we have had 10 years of limited service, and I know that the TRAM group is well aware of the challenges that that entails. We battle around the table regularly on those issues to try to move beyond the limited service. I am keen to establish whether any assessment has been done of how you would define the service if the Bill were enacted. We always try to push to go beyond a limited service for improvements, but there is a fear that it could be reduced even further, given the significant costs that we have already identified. Do you have any assessment of that? Further to that, what core functions could be adversely impacted if your attention and expertise have to be diverted from your core responsibilities?

Mr McPeak: Can I clarify that, when you are asking us to define the service, do you mean the service of the Bill?

Mr Dunne: No, if the Bill were enacted, what impact would there be on the roads maintenance service, which is limited, as you know. That is the official definition.

Mr McPeak: I will give some quick background. Limited service has been in place for 11 years. The funding is well below the standard that we need to maintain our road network in a condition that is of an appropriate professional standard. The limited service is designed around managing public safety and targeting high traffic areas, certain classes of road and tackling what are arguably the most significant defects in it.

Reducing that service even more would be detrimental to the roads. It is the intrinsic fabric of the road network, so, as engineers, we would be concerned were that to happen.

The Department has very limited funding. There would be a risk —. Sorry, let me reword that: if there is a dedicated team and if there are additional costs associated with the Bill, that funding needs to come from somewhere. It could be resource funding, and you are right to label it against limited service, because that uses resource funding. The question is: would it necessarily impact on limited service or would it impact on something else? That is for the Department to decide when it comes to its priorities. We have different pots of money for doing different things, but it is a question of the cost implications and how the Department would carve out the savings needed to fund the team. I do not know the answer. There is a risk that it could be taken out of the limited service, but there is also a risk that it could be taken out of something else.

Mr Dunne: I appreciate that. A lot of good work has been done, even through the new road maintenance strategy, for example, and I would fear that the engineering focus on that could be that we could not see the benefits of that over the next short period of time.

In your written submission, you touched on the considerable additional functions that will be required:

Quite a wide-ranging area of work will be required. Obviously, I am keen to establish a price tag on those terms that I have mentioned. I appreciate that we have a huge number of questions, and it is fair to say that the Department has as well. I do not expect you to know the answers or intend to put you under pressure on that, but is there any price tag that can be associated with that? Previously, the Bill sponsor mentioned £27,000 as an annual cost. I am not sure where that figure was obtained, but certainly, from what we have heard today, it is fair to say that quite a few zeros will need to be added to that. Are there any comments around the costs of those specific new pieces of work that will be required?

Mr McPeak: At this stage, it is difficult to quantify the size of the team that will be required, but, as I said earlier, I suspect that it will be significant across 26,000 kilometres of road network and beyond. The remit in the Bill would extend far beyond what we are doing at the moment. It would all depend on how we gather information and how we assess it. All of the things that I listed are practical, operational things that need done by the background team. Even the simple things, like managing a contractor, are not easy. There is governance, 'Managing Public Money' and all the aspects that a team needs to deliver. I used the words "potentially significant" earlier on in terms of numbers.

Mr Dunne: Yes. We touched upon the far-reaching nature of some of the pieces there: council property, bins, bus shelters, fences and so on. The question really is where does it stop. You covered the geographical spread as well. I have huge concerns around where it is going and the impact on your core Department. You had a difficult winter last year. We are coming into the crunch period. We have all seen and felt the impact on our roads, for example, so I have some serious questions and the alarm bells are ringing even more after this session.

Just a final point around fines. Is it the case that your Department is not going to administer fines? There is some reference to the Courts and Tribunals Service. Is that correct? What is your understanding of how the fines process will work?

Mr McPeak: With regard to this Bill?

Mr Dunne: Yes.

Mr McPeak: Do you know, John?

Mr Gamble: Under the Bill as drafted, it would be a normal Magistrates' Court procedure. The same procedure would apply if it went to the police. We would have to decide whether an offence has been committed. Again, that would be subject to the standard scale. As I mentioned earlier, however, our understanding is that there is only one offence in the Bill as currently drafted. Non-compliance with any code of practice or failure to notify are not expressly included as offences. The only offence that is included at the moment is the obstruction of a DFI official in removing a flag or emblem. As you can imagine, there could well be a situation in which the police have had to get involved because someone has reacted negatively or violently towards a DFI official. I hope that that answers your question, but our understanding is that that is the only offence in the Bill, and that it will be processed through the Magistrates' Court.

Mr Dunne: And you would have to take the lead on that.

Mr Gamble: That is our understanding, yes.

Mr Dunne: OK. There are plenty more questions, but I am content. Thank you, gentlemen.

Mr McReynolds: Thank you, everyone, for coming in today. As someone who lives in east Belfast, I have found this conversation about flags to be quite interesting and informative. I fear that Mark has been doing the heavy lifting today, but he is doing a fantastic job. We are going back quite a lot to your opening statement, Mark. What is the current framework for flags on lamp posts? I wrote down that you used the phrase "existing arrangements". Can you tell us about those, and do you think that they are working?

Mr McPeak: I am not sure where to start, so I will start at the beginning. As I said earlier, article 87 of the Roads (Northern Ireland) Order 1993 makes it an offence to place any attachment, regardless of what it is, within the road boundary. The Department has a discretionary power to remove that attachment. I am not going to go off on a tangent; I will bring it back. Article 87 itself is not directed at attachments; it applies to anything that is placed on a road or within the road boundary and anything that is attached to a structure, so it is wide-ranging. We use article 87 to give us the discretionary power to remove, which is important. It is not a "must remove" power; otherwise, we would be removing every stone on every road.

As I have explained, at our core, everything that we do with our limited number of staff and limited funding is focused primarily on public safety. We have to maximise our resources in order to be able to do that across a 26,000 kilometre network. That is our core. We monitor the road network, gathering queries and complaints about attachments that could cause immediate public harm, and we take action. As I said earlier, we usually know where they are, because they are unintended. We take action on that.

Our other procedure applies where the issue is not one of public safety. We use the process that is contained in our joint protocol document, which dates back to 2005. We have developed added operational guidance. We go through a process in which we ask the PSNI whether the removal of a flag, for example, would cause a risk of community tension. We go through a step-by-step process, which includes other partner bodies. Ultimately, as I think I have said, the figures that I have are that there have been 800 references to the PSNI over the past five years, which is nearly 200 a year. We would need to get assurances that it would not cause any community tension before we took a flag down. We have not taken many down.

Mr McReynolds: That leads on to my next question. You say that you have not taken many down. How many have been removed in, say, the past three years?

Mr McPeak: My problem with giving you a figure is that I have tried to find that out over the past month, but I am not confident enough about the actual figure. I am confident with the figure of 801 over the past five years. From doing a bit of a search across the teams to try to find that out, I have found that not very many have been removed.

Mr McReynolds: As well as the Infrastructure Committee, I am on the Policing Board. I was contacted by residents who live close to Parliament Buildings about flags that had been erected illegally in their street. They had not seen flags in 10- or 15-plus years of living there. The individual who contacted me was keen to find out about that, so they submitted an FOI request. The figure that they got from DFI was that zero had been removed in three years. That is across Northern Ireland. If I wanted to erect a flag — I am aware that doing so is a breach of the 1993 Order and whatever else — how would I go about contacting the Department to do that? Who would take forward my request to erect a flag? I do not know if I would need to give a time period, but who would I contact?

Mr McPeak: The contact information is in the public domain. There are various channels through which the public can make an inquiry. There are 17 local offices across Northern Ireland that set that out, and all the generic email addresses and phone numbers are publicly available. However, it is an offence to attach. I do not believe that article 87 provides for the Department to be able to provide consent to allow an attachment.

Mr McReynolds: That is my next question. In a typical year, how many requests are received and how many are granted?

Mr McPeak: None would be granted. I am not sure how many have been —. It is an offence to attach, and the Department does not have authority to grant consent.

Mr McReynolds: That brings me on to two anecdotes. Residents who live near Parliament Buildings wanted to erect road safety signs. A lot of children live on that particular street. I remember a meeting that I had with a DFI official who became very animated and said, "No, you can't put anything up. If you put anything up, we will remove it the next day in the interests of road safety".

I have another anecdote. Flags typically go up in this area during the July holidays. I received continual contact from a resident who said that flags went up and that he was not particularly happy about it but that he understood. Now, 99% of the flags have been removed, and one remains. What happens in those circumstances in which residents understand that the flags have been erected unlawfully and have had no contact from DFI, despite contacting DFI about them, and the majority of the flags have been removed but one remains? What happens in those circumstances? Clearly, there has been an oversight — I understand that — but that flag should not be there. Given the circumstances, will the Department take that down proactively? What do you think about that anecdote?

Mr McPeak: We go back to our procedure. If we receive a complaint about a flag that is up, we go through the procedure — our operational guidance. Whether it comes down or not, we go through that guidance. If it is confirmed that taking it down will cause no community tension, we take it down.

Your point about the signs is important. It is the same article — article 87 — that deals with placing something on the road or within the road boundary. Placing a sign without lawful authority is an offence. That is why the officials said, "No, you can't do that. We can't give you permission. We will take them away".

Mr McReynolds: The community tension angle is what inhibits DFI in acting as quickly as it does on road safety signs.

Mr McPeak: Road safety signs would not present a community tension issue. They also probably fall under the Road Traffic Regulation (Northern Ireland) Order 1997, which provides for signage that is put up in accordance with proper procedures or temporary traffic management for current maintenance operations. That is where the lawful authority comes in. Otherwise, it is an offence.

Mr McReynolds: Can the erection of flags or emblems on lamp posts damage the lamp posts?

Mr McPeak: That is a really good point. I suspect — the Roads Order was written in 1993 — that the Department made that an offence in order to protect the asset. First, attaching something to a lamp post at that height requires someone to get on a ladder beside live traffic, so we would not consent to anyone putting an attachment on a lamp post. Secondly, a lamp post has an electrical cable in it. That in itself would not pose an immediate threat, but we would tackle the immediate threat to public safety. The protection of our infrastructure is an important aspect of this. We would not want to put people at risk by consenting to their putting something up. I do not know whether John wants to add anything to that.

Mr Gamble: No, I think you have covered it.

Mr McReynolds: I assume that TRAM engages with the PSNI. As a member of the Policing Board, I am aware of the memorandum of understanding (MOU) that was worked out. How is that working in your engagement with the PSNI?

Mr McPeak: The Department has really good engagement and good relationships with the PSNI. Is the MOU that you mentioned the one on the back of the service instruction?

Mr McReynolds: Yes.

Mr McPeak: Coincidentally, I met the PSNI yesterday. I actually have to chase up where the MOU is. There have been a couple of meetings between the PSNI and the Department, but they happened before my time — I have been in my role for three or four months — so I chased it up yesterday, and that was very helpful. The MOU is still in draft, but it sets out a multi-agency approach to putting in place something to deal with the response to complaints about displays and to ensure consistency across agencies in that multi-agency response to deal with the issue of complaints. I say "complaints" deliberately.

Mr McReynolds: A code of conduct has been mentioned a couple of times. From working on a Bill myself — I am not looking to bring that up now — I know the importance of democratic accountability in how all this works. Would it be helpful to present any such code to the Assembly in the form of regulations so that, in doing so, you would be democratically accountable to Members?

Mr Gamble: That could be considered by the Bill sponsor. The code of practice that is referenced in the Bill does not have any legislative weight other than its existence as a guide. If it was brought before the Assembly for resolution, that would be something to think about in terms of subordinate legislation, but we are not entirely sure what powers there are in the Bill. It is for the legal advisers to reflect on that and come back to us. If you wanted something with more legislative teeth, however, it would need to be something more than what is in clause 4 as currently drafted.

Mr McReynolds: During the course of this conversation, I have received an email from someone complaining about flags that have still not been taken down. In listening to the conversation, I have heard concern about DFI rushing out to remove thousands of flags, but the creation of the portal would mean that you would know who has put the flags up, why, and when they will take them down. I would like to assume that most people would enter into that process in the spirit of good relations and sticking to the law, so only those who choose to operate outside that would affect DFI. I do not have the Bill in front of me, but I am keen to know what the Bill's commencement date will be.

Mr Gamble: At the moment, it is January 2029, but there is staggered commencement. Not all the clauses are drafted to commence at the same time. That goes back to wanting to give time for consideration of and consultation on the code of practice. We cannot see any policy reason why you would not commence the entire Bill at one time. As you flagged, you could have regulations to give effect to some parts of it at a later stage. Again, that is for the Bill sponsor to answer. We would not interrogate that too much. It is up to her to reflect on that and come back to us.

Mr McReynolds: My point is that it would not be incredibly onerous straight away, given that you have flexibility with the date of commencement to iron out issues and things like that. Thank you very much indeed. I appreciate it.

Mr Boggs: Thank you very much for coming in. I am the freshest face around the table, but I am not ignorant of the fact that, quite possibly, one of the reasons for the Bill sponsor's bringing forward legislation to try to deal with flags, emblems and whatever else is that we have not seen progress through the work that has already been done. I am thinking particularly of the Commission on Flags, Identity, Culture and Tradition (FICT). That is sitting there and could be progressed. Unfortunately, for whatever reason, some cannot bring themselves to progress that work. We therefore have a Bill, which is not perfect, that tries to do it in another way.

I go back to your response to Cathal on your ongoing engagement with other agencies and Departments. Is that in preparation for meeting and working with the Bill sponsor again to try to iron out some of the issues? You are, ultimately, taking on responsibility for removing flags and other material from land or property belonging to not only Departments but private organisations, the Housing Executive and our local councils. Are you therefore trying to work with other Departments and agencies to come to an agreement on possible departmental amendments about how they can work with you?

That is the first part. I will give you the second part as well. The Department may or may not have been engaged at some level in discussions about, and planning and preparation for, the production of a FICT report and action plan. Is any learning being taken from conversations with TEO, DOJ, your Department or other Departments that have been involved in those conversations about whatever is in the FICT report and action plan? Is any of that able to be applied through an amendment to the Bill? If we cannot get agreement to take the FICT proposals forward in their current form, is there anything in it that is beneficial to the Department and wider society that could be applied to the Bill?

Mr Belshaw: The stakeholder engagement at the moment is to help inform our views on the Bill. We want to complement and support the Committee's role in scrutinising the Bill and looking at amendments. As I said, we have reached out to all the organisations that are mentioned in clause 4, and a few others. Not a lot has happened at this stage, but that will intensify over the next while. We are looking to take the views of those organisations on whether the Bill is operable, what is required in terms of amendments and how they see their role in facilitating the Department to make decisions under the Bill as it stands.

The learning from the FICT report and the other work that has happened will absolutely be part of the conversations with, as you mentioned, the Executive Office, DFC, DOJ and others that we are engaging with. We are engaging with the new Office of Identity and Cultural Expression, whose representative worked on FICT. That will absolutely be part of the conversation going forward.

Mr Boggs: The basis of FICT was about bringing people along with the process and ensuring that there was buy-in not just from Departments, arm's-length bodies, the Housing Executive or whoever but from those who are contributing to the problem of flags and emblems across our communities, so that they feel that it is something that they can move along with and get involved in. There is a voluntary aspect to some of the Bill's provisions, particularly the online register. If we do not have buy-in, is that null and void at this stage? We will not necessarily get buy-in just by legislating, and I appreciate that. I would love it if what Peter talked about was the case and that people would respect it and contribute to it, because we do have really good work. I can point in my constituency to examples of good voluntary community accommodation that comes through hard work. That cannot be legislated for, but is there an element of the Bill that supports where there is community engagement, agreement and accommodation, because, without that local work, some of what is in the Bill does not really work? Maybe you cannot give a view, but you might understand where I am coming from. An online portal may be a useful tool, but in its current form is it going to address all the issues that we know about?

Mr Belshaw: I come back to the point that John made that there is no offence to not use the portal at this stage, so it becomes voluntary, and that cannot be enforced by the wording in the Bill at the moment. Stakeholder engagement and community work are vital, and we want to play our part by ensuring that the Bill is workable and operable, which is why we are trying to have fairly extensive stakeholder engagement.

Mr Boggs: I agree, and our party position is clear, which is that it is about getting local accommodation, agreement and buy-in. I am not saying that the Bill at the minute is not a tool for that, but we probably cannot rely totally on community engagement and local accommodation, important as they are, because, if they worked on their own, we would obviously not be having this discussion. We need to see something, and we believe that that is through FICT. You will maybe not want to comment on that. It is not the case that the Bill is rejected at the outset because community engagement is most effective, because we obviously still need to see something else to ensure that we overcome the issues, but thank you very much.

Chair, I apologise, but I need to leave at this stage. I have to run in five minutes or so and I do not want to make it look as if I am jumping out as soon as I have asked questions.

The Chairperson (Mr Buckley): That is an important point, and avoids me having to cut across any member. This has been thorough piece of scrutiny, and I thank the officials for their openness and candour in answering the questions. We have a number of members still to ask questions, and we also have supplementary questions that members wish to ask. We have to vacate the room, so I suggest that we pause now. We will invite the officials back for the remainder of the questions that members have. We have at least three members who did not ask questions but who indicated. There are also other members who want to ask questions, and they can be scheduled in, because the next session should be shorter. I am sure that the officials would be willing to answer all those questions, as they have done to date. We have a number of items of business that we need to conclude before we vacate the room. I see Mr McMurray looking at me blankly.

Mr McMurray: Not blankly, Chair, but with the greatest respect, for someone who did not want to talk about flags and would rather concentrate on bread-and-butter issues to take up 45 minutes and then not give other members an opportunity —. With the greatest respect, Chair, I do struggle with that.

The Chairperson (Mr Buckley): Your points are on the record. This is not my Bill. It is a private Member's Bill, therefore it requires appropriate scrutiny by the Committee. Additional time has now been allocated to the Committee, and the officials will be back, at which point — let me finish, and then I will come back to you — Mr McMurray, you will be the first member to ask questions, as per the list, and you can talk for as long or as little as you want to ask questions. I will give every single member the opportunity for full scrutiny of a piece of legislation that they do or do not have concerns about in the same way they would with any piece of private Member's legislation. This Committee is about scrutiny, and that is what I will ensure whilst I am Chair. Do you want to respond?

Mr McMurray: Point taken, Chair, but to take up 45 minutes and then not —. You are the Chair, so it is up to you to invite other members in. If you are taking up 45 minutes and then other members are not getting their chance, so be it. That is fair enough. That is fine.

The Chairperson (Mr Buckley): We may have a point of disagreement on that but, as Chair, I am entitled to ask as many questions as I like, as you will be. I give you this commitment: when we have officials back on this issue, you will be the first member called, followed by Harry Harvey and Justin McNulty, and, if we have time, any other member who wishes to ask questions. That is fair scrutiny, and you will find, with me as Chair, fair-handedness towards all members who wish to ask questions. Is that fair enough?

Mr McMurray: Thank you, Chair.

The Chairperson (Mr Buckley): Thank you. Briefly, Harry.

Mr Harvey: Just to say, Chair, that I am content with your decision to come back.

The Chairperson (Mr Buckley): Thank you very much, gentlemen. Officials will be in touch regarding the arrangement for a suitable time. We appreciate your time today. Thank you.