Official Report (Hansard)
Date: 06 December 2007
06 December 2007
Members present for all or part of the proceedings:
Mr Barry McElduff (Chairperson)
Mr Dominic Bradley
Mr Francie Broly
Mr Kieran McCarthy
Mr Nelson McCausland
Mr Paul Maskey
Mr Ken Robinson
Mr Jim Shannon
Mr Colin Jack ) Department of Culture, Arts and Leisure
Ms Julie Mapstone )
Mr Noel Kelly ) Departmental Solicitor’s Office
The Chairperson (Mr McElduff):
The Committee will continue its clause-by-clause scrutiny of the Libraries Bill.
The Committee Clerk:
Since the sound in this room is not as good as in our Committee Rooms, I ask the witnesses to speak up so that their voices will be picked up by the recording system and heard by Hansard.
I refer members to the new timetable for the Libraries Bill prepared by the Committee Office. The Committee has only three more meetings before it must complete its clause-by-clause scrutiny of the Bill. That means that all the outstanding issues with the Department must be resolved over the next three meetings; there is a small matter of Christmas to be considered.
I advise members that last week we covered most of the Bill’s clauses; some clauses, however, were deferred until today’s meeting. I welcome Mr Colin Jack and Ms Julie Mapstone from the Department of Culture, Arts and Leisure, and Mr Noel Kelly from the Departmental Solicitor’s Office; they are here to provide clarification on the clauses, should members require it. Mr Martin Wilson from the Assembly’s Bill Office is on hand to provide advice.
Clause 2 (Duty of Authority to provide library service)
I ask members to look at clause 2 and the accompanying memorandum. Clause 2 requires the library authority to provide a public library service for people living, working or studying here. It lists the duties of the library authority and enables it to work with other bodies; it also enables the authority to provide library services to visitors.
Issues were raised about this clause. Members queried whether the performance standards for the authority should have to be approved by the Assembly, but after hearing the Minister’s evidence, members decided on 25 October 2007 that they were content that the Minister would monitor standards and, ultimately, report to the Committee.
The Committee also asked the Minister to include a general phrase in clause 2 to make it the duty of the authority to collect and protect material of regional import. The Minister’s response was that the library-stock policy, including that on reference collections, is covered by clause 2(2)(a). He said that he expects to see the library authority develop a collection policy to enable access to local historical research material. However, the Minister is of the view that making it a legislative requirement that the authority must collect all material pertaining to the diaspora is too great a burden for the public library service. It could unbalance the book-purchase budget as well as leave the authority open to litigation should anything be omitted. At the Committee’s meeting of 22 November, members agreed that they were content with that response.
The Committee wrote to the Minister asking that he include the terms, “comprehensive” and “efficient” in the clause. The Minister replied that he is content with our proposals to include the terms “comprehensive” and “efficient” in the legislation and that the legislative draftsman will be asked to find the best way of incorporating those terms. We therefore have it in writing from the Minister that he will take our request on board.
Question, That the Committee is content with the clause, put and agreed to.
Clause 2 agreed to.
Schedule 1 (The Northern Ireland Library Authority)
Paragraph 2 of schedule 1 deals with the membership of the authority and specifies the number of members and experience required. The Committee raised issues about the size of the authority; the Bill specifies that it should have between seven and 14 members, but the Committee wrote to the Minister and asked that he amend the clause to allow for 20. In his letter of 27 November 2007 the Minister stated that he is still considering the issue.
At last week’s discussion we recommended a maximum of 17 or 19; most of whom should be elected local representatives and that the chairperson should always be an elected local representative. We use the term local representative to refer to someone in local government — a councillor. I refer members to the Education and Libraries ( Northern Ireland) Order 1986 for guidance on how members of the education and library boards were selected.
The Department has advised that Miss Irene Knox has devised an operational structure for the library authority, of which she is the chief executive designate, and the matter is with the permanent secretary for consideration. When the Minister has approved that structure, it will be forwarded to the Committee. When are we likely to receive it?
Ms Julie Mapstone (Department of Culture, Arts and Leisure):
I am not entirely sure but either just before or just after Christmas.
The next step for the Committee is to agree a proposal on what it wishes to be included in the legislation and write to the Minister accordingly. The proposal must include a suggested minimum and maximum number of authority members. Does the Committee wish to state that most members and the chairperson must always be elected representatives drawn from local government? Do we wish to make any additional specifications? Jim, you feel strongly about the matter.
I certainly do, Chairman. It is important that the membership reflect elected representation across the Province, and we should stipulate that most members and the chairman will always be elected representatives. I am minded to go for 19 members, but I am conscious that some members may prefer to wait until the number of councils becomes known; although I am not sure when that will be. If we opt for 19 members, is there any way to change it?
Mr Colin Jack (Department of Culture, Arts and Leisure):
Since it is unlikely that the number of district councils will become clear before the Bill has been passed, it is important to establish principles on the balance of the authority’s membership. We need to take further advice on the precise wording of the legislation from the Office of the Legislative Counsel, the Office of the Commissioner for Public Appointments and other interested parties.
However, a range in the size of membership would allow adjustments to be made based on the number of councils that is eventually decided. We need a formula that will operate effectively now, with 26 councils, and which can be adapted to whatever number of councils there are in the future. I understand that seven, 11 and 15 are the options being considered.
Mr Martin Wilson ( Northern Ireland Assembly Bill Office):
One possible way of introducing flexibility would be to provide power to make an Order — a statutory rule that would give the Minister power to readdress the figures. If members are unhappy about including a range that would give the Minister the flexibility to vary the figures without any further need to consult the committee, they could stipulate a figure but provide the Minister with the power to make a statutory rule to vary it. However, the statutory rule would have to be approved by the Assembly, which would enable the Assembly to decide whether the change was acceptable.
Mr Noel Kelly (Departmental Solicitor’s Office):
That is a workable solution, but I will inject a note of caution: your proposition is that the Assembly should approve any regulation, in which case an amendment to introduce such a power would have to be careful to say that the regulation would be by way of positive resolution rather than negative resolution, because, as you appreciate, there are two ways of doing it. A negative resolution is made and becomes law and stays law until there is a motion to annul; you are choosing the other — [Interruption.]
Mr M Wilson:
No, I was not, Noel. I simply said that the Minister would be given the power to make a statutory rule; the Office of the Legislative Council would give advice on how the Assembly should deal with it. Negative resolution would probably be appropriate. Members will understand that negative resolution means that there must be a vote in the Assembly to refuse it, and that remains within the power of the Assembly. The Assembly can reject the proposed statutory rule after examining it. That should be sufficient; the change does not require affirmative resolution. It appears a bit over the top.
Mr N Kelly:
Either would work.
Jim, have we found a mechanism for what you hope to achieve?
I believe that we have found a mechanism that will bring everyone on board, although I leave the terminology to Martin, who can word it accordingly. The main thing is that the authority’s make-up reflects the geographical representation of the Province. We also want to ensure that elected members from local government form a majority and that the chairperson will always be an elected representative from one of the councils, whether there are 11 or 15 of them.
You recommend that the authority should have 17 or 19 members.
I was referring to the councils.
The membership of the authority should reflect that. I am in favour of 19; however, I am conscious that some members may feel that that number is not appropriate. Nevertheless, 19 is, I believe, the number that we should go for.
You are emphasising the democratic character of the authority.
Absolutely. That is my proposal. I thank Martin and Colin for their advice.
Our understanding of the Minister’s thinking on the matter is that the numbers proposed in schedule 1 as the minimum and maximum are likely to rise no matter how the schedule is amended.
Mr M Wilson:
To give effect to Jim’s proposal of 19 we would do away with the range provided in schedule 1(2)(b), and the Committee would ask that the legislation should specify a definitive number; in this case 19. In addition, the Minister would be provided with the power to make regulations.
I want to make sure that we specify a number. I propose 19, with the proviso that the Minister can increase it with the approval of the Assembly and the Committee.
Mr K Robinson:
We must go back to the principle that we are trying to establish. Through bitter experience, we have discovered that when local councillors are removed from a public body it ceases to function effectively. We have seen that in the Health Service over the years, so we are determined not to go down that path.
There is indecision about how many local councils there will be. However, the quality of the people who will be attracted to the new local councils with enhanced powers will probably be different from local government at present. That is no slight on those who are in local government; it is simply the case that the enhanced powers will attract certain people. With enhanced powers, the balance will change and local government will become a much more effective and attractive institution. Therefore we want to ensure that the principle of local accountability and greater local knowledge, which might be brought to bear by the new brand of councillor, is included.
We suspect that the public appointments structure encourages a very incestuous relationship among management boards — whether for library services, education or health — and a wealth of experience that could be brought to bear on those areas is being lost. That is the principle that we are trying to establish. Perhaps the numbers on the authority are superfluous, but they must reflect the new structures.
I wonder, Ken, whether the Committee must recommend a specified figure to the Department.
Mr K Robinson:
Is the number range being taken out of the equation? Are we being advised not to talk about a range?
The next stage is for the Committee to decide what it puts in its report, which the Department and the Minister will consider based on discussions with the Office of the Legislative Counsel and what it recommends as workable. The more detail the Committee provides on the principles that it wants to see enshrined in the legislation, the better. If the Committee has strong views on specific numbers, it would be helpful if it would specify them.
Mr K Robinson:
We wish to include the principle of geographical spread. I would hate to be left out of the loop when everything moves to Omagh. I have that in the back of my mind. [Laughter.]
That is an excellent point.
Mr K Robinson:
We are aware of issues such as geographical spread, gender and community attachment; the education and library boards manage to work under that umbrella. Those are the sort of principles that we want to establish.
Ken raised the notion of examining the quality of people who apply for positions rather than the quantity. Quality is important in such organisations. Normally appointments are made by somebody proposing one of his or her party members and the other members agreeing. The poor fellow might be illiterate, if you understand what I am saying — [Laughter.]
Which of your party members are you referring to?
Such a person would bring an interesting perspective on literacy to the new library authority.
There should be criteria for deciding whether a person is suitable to make judgements about education or library matters.
I want to conclude the debate on the size of the authority. Are we being prescriptive about the figure?
The Department would want to examine the issue of the quality of authority members. There are models that would allow an element of competition for the appointment of district council representatives to the library authority. For example, one could invite all 26 councils to nominate a person. Those candidates would be interviewed using the criteria applied to authority members who are chosen by public appointment. That is one way in which it could be done in the interim. Perhaps that process could be adapted in some way when there are fewer councils.
Mr D Bradley:
The Committee does not need to make a final decision now. Would it be helpful if the Committee Clerk gathered members’ views and came back next week with a form of words that the Committee could recommend to the Department?
Is that practical, Linda?
The Committee Clerk:
The Hansard report, which will contain the detail of members’ deliberations, will not be available, under Hansard procedures, until Thursday 13 December. That restricts members’ ability to discuss those issues before our last meeting.
Mr K Robinson:
Is it possible to get an early draft?
The Committee Clerk:
We can ask, but it will be up to Hansard.
Mr K Robinson:
Given its importance — it is the first Bill from the Department of Culture, Arts and Leisure to be introduced in the Assembly — perhaps Hansard will be in the Christmas spirit.
We will request that.
Mr K Robinson:
I got a hit straight away. [Laughter.]
From what Colin was saying, it is clear that the mechanism by which members will be selected for the authority will have to be flexible because it will relate to 26 councils initially, then, ultimately, to however many councils it is decided we should have. Nineteen is a reasonable number with which to start.
We will revisit that next week, with the benefit of the early Hansard report; we will need to zone in on a figure.
I am prepared to propose the figure of 19, as it will enable the authority to be representative of society. As Nelson said, it is a starting point; but we want to move towards a conclusion on this issue.
There will be a power to vary the number. Are Dominic and Francie OK with that?
Mr D Bradley:
We could rationalise the figure 19 by saying that it is one member for each constituency plus one.
You think too much.
I was thinking of a geographical spread.
The Committee’s view is that most authority members should be elected representatives.
I propose accordingly.
Are members agreed?
Members indicated assent.
The Committee was also concerned about the constitution of the authority. We wrote to the Minister asking that sub-paragraph (2) be amended to state that the authority shall be:
“representative of the community in Northern Ireland”.
That is a direct quotation from section 73(4) the Northern Ireland Act 1998 regarding the constitution of the Equality Commission. The Minister has not yet replied.
Do Committee members wish that phrase to be included in sub-paragraph (2)? Furthermore, should it apply to the total membership of the authority or just the non-councillors?
The political representation will automatically include councillors from a cross-section of the community. The suggested amendment will be more relevant to the nominated members of the authority.
It would be sensible to defer sub-paragraph (2) until we receive the Minister’s response.
Schedule 1 referred for further consideration.
Schedule 2 (Transfer schemes)
Schedule 2 has 10 paragraphs and provides for a scheme for the transfer of property, rights and liabilities from the education and library boards to the library authority. Apart from paragraphs 1 and 4, no issues have been raised concerning schedule 2.
Paragraph 1 of schedule 2 deals with the “Creation and apportionment of property, rights and liabilities etc.” NIPSA feels that paragraph 1 does not create rights or liabilities between the transferred employee and the transferor and suggests that a further sub-paragraph be added to establish rights and liabilities.
The Committee requested that the Department and NIPSA’s legal counsel meet to sort out the issue. On 19 November, the Committee wrote to the Minister asking him the date on which the meeting was due to take place. As no response was received, this week the Central Committee Office sent a further request for an update. The Central Committee Office was told that a letter would be forthcoming from Julie Mapstone — who is head of the libraries branch in the Department and is responsible for implementing the new library authority outlined in the review of public administration — stating that there had not yet been a meeting between NIPSA’s legal counsel and the representatives from the Departmental Solicitor’s Office. However, the Committee has not yet received that letter.
The Minister gave an undertaking to the Committee when giving evidence on the Bill on 18 October:
It seems sensible to me to put the unions’ lawyer and the Department’s lawyer into one room to see if they can agree on a position — if that is possible to achieve. That is what we are doing. If an agreed position is reached, we will be in a good position to move forward, and we will report back to the Committee at the earliest opportunity.
That quote is from the Hansard report of 18 October 2007.
There are specific questions that the Committee wants the departmental officials to address. What is the state of play at present? Is the Department awaiting a response from NIPSA to its request for a meeting? Could the fact that the Department is represented by the Departmental Solicitor’s Office and NIPSA by senior counsel cause difficulty in arranging a meeting? If so, will the Department consider employing its own senior counsel? I ask for an undertaking that the meeting with NIPSA will take place.
Mr N Kelly:
In a letter to the Department, Mr Corey, NIPSA’s general secretary, states that senior counsel did not consider it appropriate to forward to a Department a copy of the full legal opinion that senior counsel had provided to NIPSA as his client.
What is the date of that letter?
Mr N Kelly:
Sixth November 2007; I will give the Committee a copy.
It is not for me to speculate on what was going through senior counsel’s mind, but, ordinarily, when a senior counsel, a junior counsel, a solicitor, an apprentice solicitor or a law clerk gives a legal opinion, it becomes the property of the client, and the client can do what he wants with it. He can put it on the internet, or, if he wants, he can run off copies and paste them on lamp posts outside City Hall. I do not understand the proposition. Mr Corey states in his letter that:
“Senior Counsel… did not consider it appropriate to forward to a Government Department a copy of his full legal opinion”.
However, I cannot comment further on that.
The letter goes on to say:
Mr O’Donoghue —
“has also advised and offered that any matters relating to the legal opinion can be discussed directly with Senior Counsel representing the Department.”
Mr Corey knows full well that senior counsel is not instructed on behalf of the Department. Therefore, to my mind, it is not co-operative when, according to Mr Corey, a position is taken by Mr O’Donoghue that he, Mr O’Donoghue, will not speak to anybody who does not have a wig and a silk gown. I cannot comment further on that either. That is the position; I will hand a copy of the letter to the Committee. There is not a great deal more that I can do to help the Committee. My opinion on the legal issues remains as it was.
At the risk of boring the Committee to death, it might be useful if I spoke briefly on The Transfer of Undertakings (Protection of Employment) Regulations (TUPE). I have run quickly through Mr Corey’s evidence to the Committee, and he is plain wrong about TUPE. It is a complex issue. I am conscious that the Committee is in an awkward position: it has heard an opinion from one experienced lawyer who is a QC; and it has an opinion from another experienced lawyer who is not a QC but who is a chairperson of employment tribunals. The two factors probably cancel each other out. That leaves the Committee faced with two competing legal opinions, without its own legal advice. There is not a much more that I can do to address that problem, but it might be of some assistance if I spoke generally about TUPE to highlight some of the issues, as I am concerned that Mr Corey appears to misunderstand the position.
Last week, the permanent secretary wrote to John Corey, restating that Noel is ready and willing to discuss the matter with senior counsel. To date, there has been no response.
Noel, it is certainly worth taking the time to comment on TUPE.
Mr N Kelly:
It might be of some use. I will not refer to each and every paragraph, but I will pass round a copy of ‘Staff Transfers in the Public Service: Statement of Practice’, which was prepared by the Westminster Government. It deals with the various situations that arise when staff are transferred in or out of the public sector or within the public sector. It is a policy document that draws on the legal principles involved. It sets the matter out clearly — if members could spare half a day to read it. I do not expect that they can. Its thrust is that where the TUPE regulations apply, they should apply; and where they do not, their principles should apply. In other words, legislation should be drafted to ensure that staff in the public sector who in certain circumstances might not be covered by TUPE would receive the same protection as those elsewhere who are automatically covered by TUPE.
What concerns me about the evidence that was provided by Mr Corey is that he states quite clearly that, in his view, TUPE does not apply to the public sector. That is simply wrong. I refer members to the The Transfer of Undertakings (Protection of Employment) Regulations 2006. I am amazed that Mr Corey would not be aware that regulation 3(4) states in absolutely plain terms that:
“these Regulations apply to—
(a) public and private undertakings engaged in economic activities whether or not they are operating for gain”.
The wording of the regulations is fairly obscure. That is because they are derived from the acquired rights directive in EU law.
The position is not that TUPE regulations do not apply to the public sector. That is clearly not the case. It is a good deal more complicated than that. The position is set out in paragraphs 17 to 20 of the Cabinet Office policy document that I have provided to the Committee, which refers to situations in which there are transfers and reorganisations in the public sector. That is applicable to the library sector, in which there are, clearly, transfers and reorganisations.
The legal position, which is set out in paragraph 18 of the Cabinet Office statement of practice, is that the application of the TUPE regulations is excluded only in a narrow range of circumstances. As of right, the TUPE regulations apply to all public-sector workers who are transferred, unless they fall into one narrow exemption, namely the reorganisation of public administrative functions. At first glance, one might believe that that wording is sufficient to exclude practically everyone. Again, I must stress that that comes from EU law, and is construed extremely strictly. Therefore, the exemption applies to the smallest possible group of people. Paragraph 18 of the policy document states that:
“Case law suggests that it excludes from the legislation’s application only a relatively limited range of situations involving the transfer of entities pursuing non-economic objectives within the public sector.”
The document goes on to state that:
“The Henke exception” —
- which is what I have been discussing —
— “has been thought to apply where: the reason for a transfer is only because there is a change of geographical boundaries and the type of public sector body carrying out the function does not change…or where the main function is a judicial, quasi-judicial or quasi-judicial regulatory function”.
It goes on to suggest that changes should be made to legislation in order to ensure that TUPE protection be afforded to all staff that might otherwise be excluded. Therefore, the situation is that there is a potential transfer of staff to whom it is unclear that the TUPE regulations should apply as of right.
In one interpretation, which has not been fully tested by the courts — although there are references in the footnotes to some decisions — most of the staff will be protected as of right by the TUPE regulations. In another interpretation, a great many of them will not. In order to avoid that confusion when there is a transfer of staff in the public sector, the legislation provides either that the wording of the TUPE regulations is simply replicated — in other words, that it will state specifically that contracts are passed on as they are, which, although I have paraphrased that to the nth degree, is, essentially, one alternative — or the other alternative, which is simply that the transfer is relevant for the purposes of the regulations. Either alternative works.
It appears that part of NIPSA’s reluctance to accept the Department’s action as valid is a reluctance to accept that it can simply be stated in primary legislation that the transfer is a relevant transfer.
Clearly, if it is a relevant transfer, all the protections afforded under the 2006 regulations automatically follow. I am assuming that part of NIPSA’s reluctance is based on that misapprehension.
However, I offer the Committee the following reassurance: it is being proposed that primary legislation means that The Transfer of Undertakings (Protection of Employment) Regulations 2006 applies to this transfer. The primary legislation — the Bill — makes it a relevant transfer.
It is also possible to do that by subordinate legislation — which makes it even clearer that it can be done by primary legislation. Paragraph 20 of the Cabinet Office document refers to an English Act — the Employment Relations Act 2004, which states that one can do precisely that. Section 38 of that Act includes a power that can be used to apply the requirements of TUPE specifically to transfers.
We have a similar provision in The Employment Relations ( Northern Ireland) Order 1999. If we wished, we could make provision by subordinate legislation. However, we have not done it by subordinate legislation because we have primary legislation. It is perfectly clear that primary legislation is better than subordinate legislation. However, that power is in reserve so that if, for example, there is a move within fisheries or some other part of the public sector that is not going to be implemented by legislation, the subordinate power in the 1999 Order to provide TUPE protection can be used.
I underline that reassurance, which can be summed up by saying that if something can be done by subordinate legislation, it can be done by primary legislation. I would stress that if it is a relevant transfer for the purposes of the 2006 regulations, it automatically takes with it all the other protections that appear to be concerning Mr Corey and Mr O’Donoghue — the right to be consulted, etc. If it is a relevant transfer, the regulations apply and those protections flow from that. I shall finish now, before members fall asleep. [Laughter.]
The Minister will be asked to write formally to the Committee to confirm that he has received legal advice on the matter and is satisfied with that advice, and that the Bill reflects that advice as drafted.
Mr D Bradley:
Would that include direct reference to the TUPE regulations?
The Bill Clerk:
All of what Mr Kelly has said is on the record, and will form part of the Committee’s report. The report will include a complete record of all the information that Mr Kelly has provided. The Minister will write to the Committee to state that he has been given advice and is satisfied with it, and is satisfied that his Bill incorporates that advice. It will be for the Committee to decide whether it accepts that.
Schedule 2 referred for further consideration.
Schedule 3 (Amendments)
Schedule 3 sets out the consequent amendments to other legislation as a result of the Bill. Schedule 4 set out consequent repeals.
At last week’s meeting, the Department advised that it may make amendments to schedules 3 and 4 to include reference to additional legislation. The Committee indicated that it was content with that arrangement.
The Committee accepts that this is a technical matter and that the amendments are necessary and consequent on the legislation. The Committee is content to leave the matter with the Department and the draftsman.
Question, That the Committee is content with the schedule, put and agreed to.
Schedule 3 agreed to.
There is certain territory into which the Committee should not stray at times. Mr Jack, have you anything to add?
I do not think that I have much more to say today. We will look forward to receiving the Committee’s report. There are still some significant issues on which the Committee has strong and important views. We will seek to advise the Minister as to how best the Department can take on board those views.
Schedule 4 (Repeals)
The Committee accepts that this is a technical matter and that the repeals are necessary and consequent on the legislation, and the Committee is content to leave this matter with the Department and the draftsman.
Question, That the Committee is content with the schedule, put and agreed to.
Schedule 4 agreed to.
Another issue is outstanding. I advise members that Ms Irene Knox, chief executive designate of the library authority, has advised that documentation on the operational structure of the authority will not be sent to the Committee until its meeting of 17 January 2008. She has indicated that she will be able to brief the Committee on that structure at that meeting.
That concludes our considerations of the Libraries Bill for this meeting. I thank the departmental officials for coming. I emphasise to Mr Jack the Committee’s desire for early responses to its requests.