Agenda item

            The Chief Executive submitted for the Committee’s consideration the undernoted report in relation to the Northern Ireland Assembly’s Committee for the Environment’s Consultation on the Local Government (Miscellaneous Provisions) Bill:

 

“1.0      Relevant Background Information

 

1.1       The Northern Ireland Assembly’s Committee for the Environment is taking forward the ‘Committee Stage’ (i.e. detailed investigation) of the Local Government (Miscellaneous Provisions) Bill with a view to submitting a final recommendations report to the Assembly in due course. As part of this process the Committee have issued a copy of the draft legislative Bill and accompanying Explanatory Memorandum for consultation.  The deadline for the submission of written responses to the draft Bill is 14th August 2009.

 

1.2       The Bill is structured in three parts with Part 1 referring to Contracts of Councils, Part 2 dealing with Local Government Reorganisation and Part 3 dealing with Supplementary issues.  

 

1.3       Members will note that Part 1 of the Bill originated as the Local Government (Contracts and Compulsory Purchase) Bill which sought to clarify the powers of district councils to enter into long-term service contracts with the private sector (e.g Public Private Partnerships or Private Finance Initiatives type contracts).  The Bill also sought to give councils the power to vest land for waste management purposes. 

 

1.4       The need for the Bill has arisen because of an EC Landfill Directive (1999/31/EC) which requires Member States to meet recycling targets from 2010 through to 2020 to reduce the volume of biodegradable waste being sent to landfill.  District councils are responsible for the collection and disposal of waste and it is imperative that they meet the Landfill Directive targets to avoid possible infraction proceedings and associated fines. The Bill provides enabling provisions to allow councils to enter into PPP/PFI type contracts with private sector contractors to build necessary waste facilities and provide recycling services.

 

1.5       In order to ensure that the tight RPA implementation programme was deliverable and to fast-track necessary legislation, the DoE recently extended the scope of the Bill, adding Parts 2 and 3 which deal with Local Government Reorganisation.  A summary of the provisions contained within the Bill is outlined below:

 

1.      to enable councils to vest land for waste management purposes

 

2.      to enable the Department of the Environment (DOE) to issue directions to existing councils as a means of control, so that in the lead up to the establishment of the 11 new district councils as part of the RPA reorganisation of local government, councils will not be able to dispose of land or enter into long-term financial commitments (e.g. capital contracts) above specified values

 

3.      to enable the DOE to make regulations for the establishment of statutory transition committees for the purpose of preparing for, and giving full effect to, the reorganisation of local government and the establishment of the 11 new councils.

 

4.      to enable the DOE to make regulations for the introduction of severance arrangements for elected members

 

2.0       Key Issues

 

2.1       It is important to recognise that the draft Local Government Miscellaneous Provisions Bill is largely enabling legislation and the detail around the specific provisions referred to above will be outlined in subsequent subordinate legislation (i.e. detailed regulations). The Explanatory Memorandum attached to the draft Bill (refer to paragraph 10-14) states that separate consultation has taken place in respect of the establishment of statutory transition committees and the introduction of a Members’ severance scheme and indicates that the comments received as part of these consultation exercises will be used to inform the drafting of regulations around these issues. In the Explanatory Memorandum the DoE accepts that there has been no formal consultation undertaken in regard to the proposals for the introduction of interim financial controls on councils.

 

2.2       Members will recall that the SP&R Committee previously considered DoE consultation proposals in relation to the establishment of statutory transition committees and the introduction of a severance scheme for Elected Members and submitted its formal views to the DoE.

 

2.3       Given the previous consultation undertaken by the Department, it is unclear what level of consultation/engagement will be undertaken with local government in relation to the drafting of the detailed regulations which will underpin the primary Bill.

 

2.4       Whist the Council will clearly seek assurances, as part of its consultation response, from the Committee for the Environment that further engagement with the Council will be undertaken as part of the drafting of regulations, there is a potential risk that any consideration/consultation on the emerging regulations could be limited to the NI Assembly, the Executive and the Committee for the Environment.  At present, there are no BelfastCity Council members on the Committee for the Environment which could reduce the ability of the Council to impact on the drafting of any related regulations.

 

2.5       Therefore, it is necessary for the Council to reinforce, in its response to the Committee for the Environment on the Miscellaneous Provisions Bill and the relevant Clauses contained therein, those pertinent issues and policy positions previously agreed by the SP&R Committee. The key issues, which have been addressed in detail within the draft response attached at Appendix 2, are listed below for reference:

 

·         that local government should be further engaged in the drafting of any subsequent regulations and, in particular, those pertaining to Clause 14 (i.e. constitution of statutory transition committees; Clause 15 (i.e. functions to be undertaken by statutory transition committees; Clause 17 (i.e. severance payments for councillors).

 

·         that arc 21 has already provided a response on behalf of member councils in respect of Part 1 of the Bill (Contracts of Councils) and Part 3 (compulsory acquisition of land for waste management purposes)

 

·         whilst recognising the potential need to introduce interim controls on specified financial activities undertaken by those existing councils which are to merge in the period leading up to their dissolution and the establishment of the new 11 councils, such controls should not apply to Belfast City Council given its unique position.

 

·         In relation to the Department’s powers to give direction and make regulations in Chapters 2 and 3, that it is clear that the Department has the power to do so with specific reference to any particular Council or transition committee.  This will be necessary for the Department to make particular provision in relation to the case of Belfast and/or the Lisburn/Castlereagh Transition Committee

 

·         In respect of disposals and contracts of existing councils, that the specified transition committee referred to is the transitional committee that would otherwise hold or have responsibility for the subject land/capital contract post RPA.

 

2.6       An initial draft response to the consultation document is set out at Appendix 2 for Members’ consideration and comment.  It would be the intention that a revised draft response, taking account of comments raised by Members, would be submitted to the Committee for the Environment by 14th August 2009 (on the basis that it would be subject to ratification by Council on 1st September).

 

3.0       Resource Implications

 

            There are no financial or Human Resource implications contained within this report

 

4.0       Recommendations

 

            Members are asked to:

 

(i)      note the contents of this report and the draft response attached at Appendix 2; and

 

(ii)     approve the submission of the draft response to the NI Assembly Committee for the Environment, subject to the incorporation of any comments received by Members;

 

 

5.0       Decision Tracking

 

            Following approval by the Council’s Strategic Policy and resources Committee, at its meeting on 7th August, Kevin Heaney, RPA Programme Coordinator will submit the Council’s response to NI Assembly’s Committee for the Environment, subject to ratification to ratification by Council on 1st September 2009.

 

Draft Response

 

1.0       Introduction

 

1.1       Belfast City Council welcomes the opportunity to respond to the Local Government (Miscellaneous Provisions) Bill issued for consultation by the Committee for the Environment and would hope that the comments outlined within this response are constructive in nature and add value to the future drafting of necessary subordinate legislation.

 

1.2       The Council have a number of general comments to make in regard to the content of the draft legislation as well as specific feedback on individual clauses where appropriate.

 

2.0       General Comments

 

2.1       Whilst the Council would have no major issues, in principle, with the Bill, it is conscious that much of the detail around the out workings of this legislation will be set out within the subsequent subordinate legislation (regulations).  Whilst the explanatory memorandum suggests that such regulations will take account of previous consultation exercises undertaken by the Department of the Environment (DoE) on the establishment of statutory transition committees and the introduction of a severance scheme for elected Members (both of which Belfast City Council has formally submitted  consultation responses to the severance and statutory transition committees (on which Belfast City Council has formally responded to the DoE), it is unclear what level of further engagement will take place between the Department, the Committee for the Environment and local councils during the Committee stage and the subsequent drafting of any subordinate legislation (regulations).

 

2.2       Belfast City Council feel that in accordance with good practice, the Department should ensure that local councils are consulted in the drafting of the relevant detailed subordinate regulations and, in particular, with respect to Clause 14 (constitution of statutory transition committees; Clause 15 (functions to be undertaken by Statutory Transition Committees; Clause 17 (severance payments for councillors).

 

2.3       Furthermore, the Council supports the intention that Clauses 14, 15 and 16 (and parts of Clause 3) be subject to affirmative resolution (i.e. to be debated) by the NI Assembly and would reiterate the need for the Minister, the Department and the Committee for the Environment to consult with all interested parties including local government in the drafting phase of any subordinate legislation related to these clauses.

 

3.0       Specific Comments on Clauses - It should be noted that BelfastCity Council have not commented on all Clauses set out within the Bill.

 

            Clauses 1-8: Contracts of Councils

 

            Explanatory Memorandum Overview:

 

            These provisions replicate existing legislation in Great Britain in the form of the Local Government (Contracts) Act 1997 and essentially clarify the powers of district councils to enter into PFI/PPP contracts with the private sector.  In Northern Ireland, these provisions started life in the shape of the Local Government (Contracts and Compulsory Purchase) Bill, the title of which has now been changed to the Local Government (Miscellaneous Provisions) Bill to reflect the additional provisions which have been introduced in relation to certain RPA Transition issues.

 

            BelfastCity Council comments:

 

·         In relation to the provisions set out in Part 1 'Contracts of Councils', arc21 has already responded to these on behalf of its member councils and BelfastCity Council do not see the need to make any further response.  arc21 had a number of concerns in relation to the provisions but these are not concerns in relation to any RPA issue and have, in any event, now been picked up by the Executive in the shape of the draft Waste Bill which is now also out for consultation and to which arc21 has again made a response on behalf of its member councils.

 

            Clause 9: Introductory section to Part 2 – Local Government Reorganisation

 

            Explanatory Memorandum Overview:

 

            This clause outlines the meaning of the phrases ‘existing council’; ‘new council’; ‘successor council’ and ‘predecessor council’ in respect of Part 2 of the Bill.

 

            BelfastCity Council comments:

 

·         The Council has concerns that in relation to both the power to give directions and the power to make regulations, it is not sufficiently clear that the Department has the power to do so with specific reference to any particular council or transition committee.  It may therefore be necessary for the Department to make particular provision in relation to the case of Belfast and/or the Lisburn/Castlereagh Transition Committee.

 

·         It is recommended that the legislation should therefore be clear that the Department has such a power to make specific regulations and this could be achieved by including a new sub-paragraph under Clause 9 (2)(c) to the effect that the power of the Department to give directions in Chapter 2 and to make regulations in Chapter 3 will include the power to do so in relation to the circumstances of one or more specified Councils.

 

            Clause 10: Control of disposals and contracts of existing councils

 

            Explanatory Memorandum Overview:

 

            This clause sets out a system of controls on disposals of land, and capital and non-capital contracts being entered into, by the current 26 district councils in the period leading up to their dissolution and the establishment of the 11 new district councils. The Department will have powers to direct that councils must obtain consent from their statutory transition committees before engaging in the specified activities, subject to minimum thresholds.

 

            BelfastCity Council comments:

 

·         The specified statutory transition committee referred to should be the transitional committee(s) that would otherwise hold or have responsibility for the subject land/capital contract post RPA. 

 

·         However, as BelfastCity Council has assets outside their current boundary the legislation should provide for the Belfast Transition Committee being the specified transition committee responsible for consenting to any disposals/contracts in respect of these assets.

 

·         References to specified sums, specified date and specified description will all require more detail as to amounts, thresholds etc, and district councils should be consulted on this whilst the detail is being developed in subordinate legislation.

 

·         Clause 10 (4) (c) provides that a direction may be varied or revoked by a subsequent direction.  However, clarity will be required around the proposed mechanism for varying or revoking the direction.   BelfastCity Council would recommend that Councils be consulted in any such instances and any variation or revoking of the direction will need to be agreed by Councils.  

 

            Clause 13: Contravention of direction

 

            Explanatory Memorandum Overview:

 

            This clause defines when a disposal of land made in contravention of a direction is to be declared void.

 

            BelfastCity Council comments:

 

·         Clause 13 (1) Disposals made in contravention of directions being void – clarification will be required around the enforcement of this clause.  In particular, when a disposal has taken place and a 3^rd party is in occupation as the new legal owner, clarification will be required as to the legal effect of this clause.

 

            Clause 14: Statutory transition committees: constitution

 

            Explanatory Memorandum Overview:

 

            This clause makes provision about the establishment of statutory transition committees to manage, at a local level, the transition from the current configuration of 26 local government districts to the new 11 districts as set out in the Local Government (Boundaries) Act (Northern Ireland) 2008. The clause also provides the Department with the power to specify in regulations* the level of membership of the statutory transition committees, the process to be adopted by the current councils to determine their representation on the relevant transition committee, and the governance arrangements for the committees. It also provides for the regulations to make provision in relation to making payments to and facilities available to statutory transition committees.

 

            BelfastCity Council comments:

 

·         It is important to highlight that BelfastCity Council stands in somewhat of a different position to that of the other 25 Councils in regard to the RPA transition process, since all the other Councils are to be abolished and replaced by 10 new Councils.  As a result, the 25 Councils are to merge together in clusters and have formed voluntary Transition Committees, made up of elected Members from constituent Councils, for the purposes of managing the transition and convergence process. 

 

·         Whilst Belfast City Council will clearly become a new legal entity post RPA, it is not merging with any other council but rather assimilating, within its boundary, geographical areas from the current Castlereagh Borough and Lisburn City Council areas as set out within the Local Government Boundaries Commissioner’s Final Recommendations report published on 26th June 2009.

 

·         Accordingly, the previous Environment Minister Sammy Wilson supported the proposition that Belfast City Council manages its own transition process and that the Council’s Strategic Policy and Resources Committee be designated as the Belfast’s Transition Committee.  The Committee would comprise of twenty Members appointed on the basis of proportionality applying the D’hondt procedure, with an additional monthly meeting of the Committee to be designated for the purpose of RPA transition and associated change management business.

 

·         The Minister’s approval to this proposal was conveyed to the Council by letter of 2 February and accordingly the Strategic Policy and Resources Committee had met as a Transition Committee from March onwards.  The Belfast Transition Committee recognises the need to put in place formal engagement mechanisms between the Lisburn/Castlereagh Transition Committee and the Belfast Transition Committee to identify and resolve transitional related matters and to ensure service continuity for the citizen. 

 

·         Belfast City Council would recommend that the current governance arrangements for Belfast’s Transition Committee be retained with further consideration given, in drafting any subordinate legislation, to the introduction of a formal engagement mechanism between the Lisburn/Castlereagh Transition Committee and the Belfast Transition Committee to discuss transitional related matters.

 

·         Belfast City Council feel that in accordance with good practice, the Department should ensure that local councils are consulted in the drafting of the relevant detailed subordinate legislation which emerges from this Clause.

 

            Clause 15: Statutory transition committees: functions

 

            Explanatory Memorandum Overview:

 

            This clause provides the Department with the power to specify in regulations the functions and powers of a statutory transition committee in relation to delivering the transition process. It is intended that the functions of a statutory transition committee will include the development and management of the convergence of the plans and programmes of the current local government districts that will form the new districts; the development of strategies for estates and accommodation; the management of the transfer of assets and liabilities; the development of a preliminary staff structure for the new council; the appointment of a Chief Executive designate and key senior managers designate, and the preparation of a budget and the fixing of the rate for the new council district.

 

            BelfastCity Council comments:

 

·         Belfast City Council would recommend that consideration is given to the inclusion of the following additional provisions either within this Clause or within the regulations developed by the Department in relation to this Clause:-

 

-     enabling Statutory Transition Committees to establish Sub-Committees to consider specific issues as they feel appropriate.  It would be better to have this enabling provision in place from the outset rather than a Transition Committee finding that it would be necessary to establish a Sub?Committee and had no statutory powers to do so.

 

·         Belfast City Council would recommend that  in accordance with good practice, the Department should ensure that local council’s are consulted during the development phase of any subordinate legislation relating to this clause

 

            Clause 16: Power to modify existing legislation

 

            Explanatory Memorandum Overview:

 

            While clauses 14 and 15 set out specific provisions in relation to the making of regulations* for the establishment and operation of statutory transition committees, this clause provides a power for the regulations to apply (with or without modification) or dis-apply the provisions of relevant local government or rating legislation.

 

            BelfastCity Council comments:

 

            Belfast City Council would recommend that in accordance with good practice, the Department should ensure that local councils are consulted during the development phase of any subordinate legislation relating to this clause.

 

            Clause 17: Severance payments to councillors

 

            Explanatory Memorandum Overview:

 

            The clause confers a power on the Department to make regulations providing for the making of severance payments to councillors who resign as councillors before the end of a specified period and who meet such other criteria as the Department may specify. The clause also amends section 4 of the Local Government Act (Northern Ireland) 1972 to provide that a person who has received a severance payment is disqualified from being elected, or being, a councillor.

 

            BelfastCity Council comments:

 

            Belfast City Council are supportive of the provisions outlined in Clause 17 in respect to Severance payments but would reiterate that requirement for local councils to be consulted during the development phase of any secondary legislation relating to this clause.

 

            The Council have already formally responded in April 2009 to the Department of the Environments consultation exercise in regard to proposals for the introduction of a Severance Arrangements and in accordance with that response would  recommend that the following issues be taken into consideration in the drafting of any subordinate legislation.

 

1.   A set amount of £1,000 per year being payable up to a maximum of 38 years;

 

2.   eligibility for severance being restricted to Members who have served a minimum of two Council terms;

 

3.   the inclusion of Members of the House of Lords in the severance scheme and also the inclusion of MLAs, MPs, and MEPs but on the basis that their entitlement to an award would be calculated only on those years of Local Government service which they have acquired prior to their election to another tier of Government;

 

4.   the next of kin of a Member being entitled to severance in the event that a Councillor dies after applying for severance but before the payment has been made;

 

5.   a recipient of severance having to repay it in full in the event that they return subsequently to serve in Local Government before a period of two Council terms has elapsed;

 

6.   Central Government being responsible for meeting the costs associated with the introduction of a severance scheme;

 

7.   the scheme should apply during the period from January, 2010 until the date of the Local Government elections in May, 2011, providing that the necessary legislation on co-option is implemented so as to avoid the potential risk of multiple bi-elections.

 

            Belfast City Council would recommend that in accordance with good practice, the Department should ensure that local council’s are consulted during the development phase of any subordinate legislation relating to this clause.

 

            Clause 18: Acquisition of land otherwise than by agreement

 

            Explanatory Memorandum Overview:

 

            This clause provides that councils may vest land for any of their purposes in Part 2 of the Waste and ContaminatedLand (Northern Ireland) Order 1997 – a provision that had been inadvertently omitted from that Order.

 

            BelfastCity Council comments:

 

            BelfastCity Council would recommend that the power for a district council to acquire land otherwise than by agreement should not be limited only to waste management purposes but should provide for district councils having a more general power to acquire land otherwise than by agreement exercisable in connection with their functions.

 

            Clause 20: Regulations and orders

 

            Explanatory Memorandum Overview:

 

            This clause essentially sets out the means by which the Department may make different regulations as provided for in the Bill.

 

            BelfastCity Council comments:

 

·         Belfast City Council would recommend that in accordance with good practice, the Department should ensure that local council’s are consulted during the development phase of any secondary legislation which has a direct impact upon them. 

 

·         The Council supports the intention that Clauses 14, 15 and 16 (and parts of Clause 3) be subject to affirmative resolution by the NI Assembly and would reiterate the need for the Minister and the Committee for the Environment to consult with all interested parties in the drafting phase of any secondary legislation related to these clauses.”

 

            The Committee approved the aforementioned comments as the Council’s response to the consultation exercise.