Environment Committee invokes Section 44..

Interesting development in the ongoing saga of the Causeway Visitor’s Centre. The Assembly’s Environment Committee voted to ask the Speaker to formally request documents relating to the Environment Minister, the DUP’s Arlene Foster, statement that she was “of a mind to approve” Seymour Sweeney’s private development proposal. As well as the official advice she received they’ll possibly be looking for any signs of lobbying “either supporting or opposing the application” and, in particular, any communications from Ian Paisley Jnr. The Committee had warned the minister in November that they would exercise that power.. but according to the DUP statement, who along with the Alliance party members voted against, the decision was in defiance of legal advice. As with the age of the Causeway there are alternative views of that advice..The mechanism the Committee has invoked is Section 44 of the Northern Ireland Act 1998

44 Power to call for witnesses and documents

(1) The Assembly may require any person—
(a) to attend its proceedings for the purpose of giving evidence; or
(b) to produce documents in his custody or under his control, relating to any of the matters mentioned in subsection (2).

(2) Those matters are—
(a) transferred matters concerning Northern Ireland;
(b) other matters in relation to which statutory functions are exercisable by Ministers or the Northern Ireland departments.
[added emphasis]

(3) The power in subsection (1) is exercisable in relation to a person outside Northern Ireland only in connection with the discharge by him of functions relating to matters within subsection (2).

(4) That power is not exercisable in relation to a person who is or has been a Minister of the Crown, or a person who is or has been in Crown employment within the meaning of Article 236 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996, in connection with the discharge of any functions prior to the appointed day.

(5) That power is not exercisable in relation to—
(a) a person discharging functions of any body whose functions relate to excepted matters, in connection with the discharge by him of those functions;
(b) a person discharging functions of any body whose functions relate to reserved matters, in connection with the discharge by him of those functions;
(c) a judge of any court or a member of any tribunal which exercises the judicial power of the State.

(6) That power may be exercised by a committee of the Assembly only if the committee is expressly authorised to do so by standing orders.

(7) The Presiding Officer shall give the person in question notice in writing specifying—
(a) the time and place at which the person is to attend and the particular matters relating to which he is required to give evidence; or
(b) the documents, or types of documents, which he is to produce, the date by which he is to produce them and the particular matters to which they are to relate.

(8) Such notice shall be given—
(a) in the case of an individual, by sending it, by registered post or the recorded delivery service, addressed to him at his usual or last known address or, where he has given an address for service, at that address;
(b) in any other case, by sending it, by registered post or the recorded delivery service, addressed to the person at the person’s registered or principal office.

(9) A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Northern Ireland.

(10) In this section “statutory functions” means functions conferred by virtue of any enactment.

And The relevant Standing Order 46 – which grants the power to use Section 44 to Statutory Committees.

  • Yee Ha! Here we go!

    Interesting development indeed. Not least because of the other shoe that dropped, but went unnoticed above:

    “The motion was backed by the SDLP, Sinn Fein and the Ulster Unionists”

    As I read it, even Alliance were voting merely to allow La Belle Foster a bit more time.

  • DC

    What’s the Alliance Party playing at.

    Momentum builds up with concerns over potential excessive interference by Ian Og with the Causeway that not only goes back to cutting across a ‘peace-deal’ and constitutional politics at St Andrews, but also has created unbearable delays in the decision-making process to the point where a final decision seems unattainable.

    Why support a motion and allow even more time, as time can be the ultimate aid to a person who is already flapping over an application that even a ‘reasonable student’ likely could have concluded on by now.

    Foster’s dithering, matched with contradictory mindedness, followed by even more dithering, is making the media and MLAs, Joe Public too, wonder what on earth the problem is with that bit of flat earth up on that Northern coast.

    So, why the need to stall for even more time whenever forever and a day has passed in relation this Causeway application, it really is bordering on incompetence of Foster not to get her act together.

    Foster was in the News Letter releasing in it, prior to hosting a charitable event at Stormont in support of a heart defect condition, pictures of her and her baby son who suffered from such a defect. Call it cynical, but why of all times disclose such personal information around a sensitive family matter then run a charitable event with all the hob-nobs unless to work the media round to a more charitable stance.

    It was all very sad re her son; but, the integrity of the Minister and Jnr Minister should not be allowed to be hidden by emotional heart rendering of the public at a time when Foster needs to sort out on the public’s behalf that outstanding Causeway application.

    Because failure to do so places concerns over the integrity of those in office and whenever you brawl in a hall with venom, expect those that wanted such a democracy back then to come back at you almost 10 years later to ask what the problem is within your own camp when in office as to the ability to deliver public services.

  • DC

    Re: that ‘brawl in the hall’ – it was a certain bitter Ian Paisley Jnr who shreeked out that day to those around him in the crowd that Trimble was, quote:

    “not credible”, he said.

    “He’s not credible” was what Jnr shouted whilst the scuffles broke out.

    Well well, not credible?

  • Tkmaxx

    The Causeway story probably has legs and Ian jnr may have more questions to answer. But as someone knows Arlene ( but does nt often agree with her politically) its too cynical to suggest that her support for the charity tiny lives in some way was used this week to distract from the paisley woes is completely wrong. In fact any suggestion is offensive. T

  • DC

    TK,

    *She* *chose* *recently* to release those *baby pics* of the health scare which did not happen this year or the last.

    In fact from the News Letter, ahem:

    “Little Ben Foster was put under anaesthetic and taken to the operating theatre just three weeks after he was born in September 2006.”

    That’s right, not this year, not even LAST year but in 2006.

    Understand rubberband.

  • Peter Brown

    Although I agree that the Causeway story has yet to run its full course having listened to Weir run rings round McGlone on Evening Extra tonight it appears that the Committee is totally premature in invoking s44 and has no power to scrutinise a decision that hasn’t even been made yet and therefore may fall foul of sub section (6) above – as Weir put it if they were Councillors they’d be being surcharged for this! IPJ is giving SF SDLP and SF a penalty kick and it looks like true to form in the case of the UUP and SDLP they’re going to miss!

  • Pete Baker

    Peter

    The relevant Standing Order [46] authorising Statutory Committees to use Section 44 – as required by sub section (6) above.

    (2) Statutory Committees shall have the powers described in paragraph 9 of Strand One of the Belfast Agreement (CM 3883) and may, in particular, exercise the power in section 44(1) of the Northern Ireland Act 1998.

    Where in Section 44 do you see a reference that could be interpreted as ‘only when a decision has been finalised’?

  • Rory

    I had no idea whatsoever that Ms Foster had any connection with a charity known as “Tiny Lives” (sweet, ain’t it?). But having struggled for two decades as a charity accountant, for the most part in a high profile UK childrens’ charity, vainly attempting to ward off the baleful influence of those public personages who linked themselves to the charity in order that they might benefit from the reflected goodwill and that unquestioning acceptance of their saintliness that such association with the good work that the charity workers were doing implied, I now look upon her with a jaundiced eye.

    I have two hard golden rules about those who publicly flaunt their “goodness”:

    1. Never leave them alone with your wallet.

    2. Never allow them to babysit.

    I should add that it would be unthinkable that the necessity for such application of the golden rules would ever apply to Ms Foster, who, I am sure is a model of rectitude and…and… that other thingy which I can’t quite recall at the moment. Sort of “quite nice” really but Roget provides no answer.

  • DC

    In relation to Para 9 of Strand One, it states:

    ‘The Committees will have a scrutiny; policy development role and consultation role with respect to the Department with which each is associated.’

    Now, it appears that the Minister seems to need a little helping hand with developing an appropriate policy for the Causeway, so call forth the papers for Committee deliberation.

    So it would seem that the Committee has the right to call for papers to assist even at a Committee-level power. They have already done that, but failed to receive a response.

    The application information is supposedly being held over in order to help the Minister make a decision but already time has passed since that call for papers at Committee level, still no decision either, so any wonder exasperation is setting in.

  • BonarLaw

    DC

    para 9 of Strand One has what legal force exactly?

    BTW your dig at Foster was low even for this site.

  • DC

    The only people mentioning legal advice are those sitting on the papers not able to reach a decision, dithering incompetents.

    Either the Committee is perfunctionary or it takes measures to redress inexplicable delays in relation to the non-submission of papers to Committee to assist the minister in her role.

    Or, perhaps if the Minister could be so good to take a decision herself then that of itself would nothing less than perfunctionary as expected within her remit.

    When you’re Minister you take decisions, just take a decision, let’s get this over with.

    Or she can resign to spend more time with said loved one.

  • Billy

    BonarLaw

    “BTW your dig at Foster was low even for this site”

    Personally, I wouldn’t have written it.

    However, you really make me laugh. Based on your previous form, if this had been a dig at a Nationalist/Catholic politician, you wouldn’t have any objection to it.

    Pure hypocrisy.

  • Peter Brown

    The only people mentioning legal advice are those sitting on the papers

    If you had been listening to EE yesterday then maybe you could deal with the facts – the Commmittee had sought its own legall advice and then even the Chairman imlicitly accepted – ignored it.

    As for their powers check out Strand One – they have a scrutiny role and you cannot scrutinise a decision that has not already been made under administrative law

  • steve48

    Two points

    Arlene’s support for the two charities is understandable and should not be taken as opportunism. What was most disappointing was Martina Purdy doorstepping her about Giants Causeway during event. (ranks with jnr at St Andrews in terms of being inappropriate)

    I think the committee were premature and reacted to the news story rather than the timetable for the Ministers announcement. Neither Arlene nor Nigel can be happy at the mess jnr has created and while he seems happy to wallow in it his colleagues are more professional. Whatever the committee members are looking for it is unlikely to be in black and white in the papers they want. They will have to do more work to snare jnr. (though DUP may do it for them)

  • “9. The Committees will have a scrutiny, policy development and consultation role with respect to the Department with which each is associated, and will have a role in initiation of legislation. They will have the power to:
    • consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
    • approve relevant secondary legislation and take the Committee stage of relevant primary legislation;
    • call for persons and papers;
    • initiate enquiries and make reports;
    • consider and advise on matters brought to the Committee by its Minister.”

    Peter, they have the power to scrutinise the Department and to call for persons and papers so long as they act under the relevant section of standing orders – as I understand it.

  • IanB

    Makes you wonder what genuine environmentalist, South Down DUP MLA Jim Wells makes of all this?

    He must be fuming yet probably gagged – gotta suck being in the DUP and actually having some principles, though unfortunately no back bone or he would be shouting from the rooftops!

  • IanB, perhaps some of the assembly ‘fodder’ needs to be ‘scrotumised’ …

  • Peter Brown

    Nevin

    It may appear that way to a lay person but my professional understanding is and it is apparently reinforced by their own legal advice is that they can only scrutinise retrospectively – otherwise every applicant has the right to get the Committee to deliberate on their application even before the decision is made. They scrutinise the Departments decisions they don’t take them….

  • cut the bull

    I’m sure Ian senior is feeling severly embarrassedby all these accusations of Ian óg being a habitual spoof and his knowledge or non knowledge of Seymour Swindley.

    He must be particularly hurting that Daithí Mc Kay Sinn Féin,s young warroir in North Antrim and more so one of big Ian’s former comrades Jim Allister seem to be having a field day with all this at the expense of the DUP.

    I woder what the big man would be thinking. Would it go some thing like this.

    Listening to crying Allister

    Peter and Nigel called, when they got the word,
    they said “We suppose you’ve heard about Jim Allister.”
    So, I rushed to the window, and I looked outside,
    and I could hardly believe my eyes,
    Jim’s car pulled out of the DUP offices drive.

    I don’t why he’s leaving, or where he’s gonna go,
    I guess he’s took the hump, cos I’m sharing power with the Provos
    ‘Cause for twenty odd years I’ve been listening to crying Allister.
    Twenty odd years, just waitin’ for a chance,
    To tell him how I’m feeling, I’ll never give him a second glance,
    Now I’m glad I’ll get used to not listening to crying Allister.

    I took him under my wing, barely a kid outta the park,
    I taught him how to bite and how to bark……
    Wee Jimmy Allister.
    Now he walks to the door with his head held high,
    I thought for a moment, I’d love to give him a black eye,
    As wee Jimmy’s car pulled out of the DUP offices drive.

    I don’t why he’s leaving, or where he’s gonna go,
    I guess he’s took the hump, cos I’m sharing power with the Provos
    ‘Cause for twenty odd years I’ve been listening to crying Allister.
    Twenty odd years, just waitin’ for a chance,
    To tell him how I’m feeling, I’ll never give him a second glance,
    Now I’m glad I’ll get used to not listening to crying Allister.

    Then Peter called back, and asked how I felt,
    He said “I know how to help get over Allister.”
    He said “Now, Allister is gone, but I’m still here.
    And you know I’ve been waiting twenty odd years……….”
    If you decide to step down as leader, I’ll always be here
    I looked at him sternly and he disappeared…….

    I don’t why he’s leaving, or where he’s gonna go,
    I guess he’s got his reasons, I’m not sure if I wanna know,
    if he tries to explain, I’ll need an interpreter you know,
    ‘Cause for twenty odd years I’ve been listening to crying Allister.
    Twenty odd years, just waitin’ for a chance,
    To tell him how I’m feeling, I’ll never give him a second glance,
    Now I’m glad I’ll get used to not listening to crying Allister.

    Oh, I’m sure I’ll get used to not listening to crying Allister…

  • Cut the bull

    I forgot he may also be saying

    Allister, Allister who the f***’s Jim Allister

  • Damian O’Loan

    “It may appear that way to a lay person but my professional understanding is and it is apparently reinforced by their own legal advice is that they can only scrutinise retrospectively – otherwise every applicant has the right to get the Committee to deliberate on their application even before the decision is made. They scrutinise the Departments decisions they don’t take them….”

    Peter,

    Is the indication then, that the Committee feels there is enough cause for concern at those actions already committed to justify the invocation of S44? What is the focus of the legal dispute? Thanks in advance…

  • Peter Brown

    According to Weir & McGlone on EE last night it appears that legal advice asked for by the committee told them invoking s44 was premature before a decision was taken (although neother explained why) and that the DUP & Alliance accepted this advice and the others didn’t. I’m assuming that the advice was you have no right to raise questions therefore no right to demand answers but that is an assumption on my part – FoIA might get to the truth of the matter. The Presiding Officer may not enforce the decision or the Minister may ignore it but I suspect its more about appearances than substance given McGlone’s dancing on the head of a pin last night…

  • Damian O’Loan

    Thanks Peter. Could any lawyers take on my question a bit more comprehensively?

    “Is the indication then, that the Committee feels there is enough cause for concern at those actions already committed to justify the invocation of S44? What is the focus of the legal dispute? Thanks in advance…”

  • Peter Brown @ 01:34 PM & @ 04:49 PM:

    Sorry: I’m probably being obtuse here, but I do not see it.

    I re-read the emphasised text in the rubric to this thread. That seems to give the Assembly rights to recall officials and Ministers in its remit. In other words, Ministers are creatures of the Assembly, not the other way round. Functions and decisions delegated to Ministers can be recalled and reclaimed.

    I am somewhat bemused to hear the argument that the Environment (or any other) Committee cannot “call in” a pending decision. If I am wrong, then we have forgone representative democracy and elected ourselves a Politburo or Directory. Nor does this give an applicant power to demand “the Committee to deliberate on their application even before the decision is made”: I would expect the Environment Committee to have powers in regard to decisions in its area. Are we saying, else, that only the Minister can deliberate? That the Minister must pronounce before the Committee even considers? In that case, we have the most streamlined planning process imaginable.

    Presumably, now, the next stage is for the Committee resolution to go before the full Assembly, whether or not the Minister pronounces. And quickly, too, for it is close to being a vote of limited confidence in the Minister. Presumably, too, the Assembly will vote on Party lines, which implies a 64-42 majority to “call in” the decision, and put it in the lap of the full Committee.

    Am I mistaken?

  • Peter Brown

    Let me speculate rather than even assume which is what I have been doing to date – I suspect that the relevant planning legislation says that the Minister takes big decisons like this (cf Direct Rules Ministers and Sprucefield) and therefore it is the now devolved Minister who takes the decision not the Executive or the Committee. If that is the case the Executive / Committee can scrutinise that decision once it has been taken but cannot change it (although presumably it could be open to legal challenge) and therefore because it shouldn’t be scrutinising the process the Committee has no right to invoke s44 any more than it does to do anything else it has no powers in relation to…cue proper planners / lawyers tearing me to shreds!

  • Peter Brown @ 07:18 PM:

    In short, this one’s going to Judicial Review?

  • Damian O’Loan

    Would much appreciate legal advice, but in its absence…

    I can’t see how this section is limited to Ministerial decisions as opposed to functions. Surely that would mean that a Minister could simply postpone on an eternally indefinite basis (Victims’ Commissioner?)? But I don’t understand it too well either.

    It strikes me that the spirit of the section is to command transparency over functions. As opposed to decisions. And surely the deliberative process is as important, if not more so, than the decision?

    Looked to the print media (online) for help, but to no avail. Shouldn’t there be at least something explaining the function of this Section? As clearly it provokes some confusion…

  • David Ford

    I’ll see if I can help.

    The Committee has operated on the basis that it has a statutory duty (from the Agreement and Section 29 of the Act) to ‘advise and assist’ the Minister in policy formulation. The protection of the Giants Causeway and its environs is a policy matter, given that there are express policies of UNESCO and in the Draft Northern Area Plan (valid on 10 September when Minister announced she was ‘minded to approve’ Seaport application). Therefore the Committee would have the right to call for papers on this policy issue.

    The Minister – from her letters – takes the view that she is merely considering an individual planning application. On that basis, she is entitled to refuse to release certain papers until her final decision is taken, when she will release them. (A cynic might say that she will have to release them anyway, since a judicial review on behalf of either applicant or objector is ‘possible’.)

    The Committee has considered using Section 44 for weeks. At yesterday’s meeting legal advice was received on that option. After considering that advice, the Committee considered a motion to invoke Section 44. I proposed an amendment which stated that we believed we had the authority to call for papers and, on the legal advice, agreed to reconsider the matter after 10 March.

    Readers can draw their inferences from that. My amendment was defeated and the motion was passed, both by 7-3, ie SF, SDLP, UUP outvoted DUP and Alliance (one DUP was absent).

    I have taken the view (since I read the 2003 UNESCO report the afternoon before the Minister attended the Committee on 20 September) that the Minister is wrong in her ‘minded to’ decision of 10 September. Even Peter Weir, speaking for the DUP on ‘Talkback’, acknowledged that I had been to the fore in demanding transparency.

    However, picking a losing fight is not generally smart. I am concerned that the Committee may have embarked on over-hasty action when there are other ways of continuing the fight to protect the World Heritage Site from inappropriate development.

  • Damian O’Loan

    Thank you for your full response.

    In the optimistic hope of a short dialogue, am I to understand then that you object to the action at the moment because the Minister’s language to date has indicated that she does not believe that

    “The protection of the Giants Causeway and its environs is a policy matter, given that there are express policies of UNESCO and in the Draft Northern Area Plan (valid on 10 September when Minister announced she was ‘minded to approve’ Seaport application).”

    and that therefore the papers would not be released?

    I can’t quite reconcile my reading of your logic and the effective use of Committee powers, as you outlined. Surely scrutiny involves asking questions you don’t expect to be answered? As journalists submit FoI’s they are certain will be fruitless, because this in itself is revelatory.

    If you would, in response, draw me back to your assertion that

    “However, picking a losing fight is not generally smart.”

    I would ask if you do not believe that any inference could rightly be drawn from a negative response from the Minister, that would therefore render the action “smart”?

    “I had been to the fore in demanding transparency. ” But the perception is that we haven’t had transparency, despite your (and others’) demands – so why aren’t you demanding it now?

    Finally, my inference is that you expect a decision on or by the 10th March – am I well off the mark?

  • David Ford

    Damian

    The Minister has already made it clear that she will not willingly release papers before a decision is made. Therefore the only way to have this done at this stage is by a successful use of Section 44.

    We already know the papers that she won’t release, so there is nothing to be learned from engaging m’learned friends.

    I continue to pursue other efforts to obtain information. It is fine to demand transparency, but when you aren’t getting it and the legal advice is against going the legal route, that is unlikely to be sensible.

    10 March is 6 months from 10 September.

  • Damian O’Loan

    I see, though I would maintain an uninformed scepticism towards the legal advice provided on behalf of the NIO. Best of luck with your ongoing work, and that of your Committee.

  • The Beach Tree

    David, Damien

    Surely the legal advice is provided by the Assembly’s own lawyers, not the NIO legal team?

    Secondly, legally I’m not sure how you can scrutinise a decision, before there legally is one to scrutinise, i.e. before it has been finalised. Is scruinising the decision, e.g. for unreasonableness not a seperate, if connected, argument to scrutinising the procedure. e.g. inordinate delay?

  • DC

    Sometimes it is necessary to resort to legal measures and lose in order to bolster a stronger case next time round in terms of getting the ‘right’ result or understanding due process in a context which is yet to be explored i.e. devolutionary powers and functions.

    First cases are necessary and it may not be a bad thing, as this is common practice in a legal environment, look at all the equality cases over new legislation, some win and some lose. A recent example was the school boy who had long hair and took a case against his school, who on this occasion lost.

    So, therefore, legal advice is legal advice and only due legal process can establish the binding outcome.

    As things stand, who says the judge or whoever it may be, wont come down in favour of the stance taken by the Committee given Ministerial tardiness leading to well justified concerns over maladministration.

    Both parties can resort to legal advice, so in terms of voter transparency what exactly was it that made it so desperately hopeless that the Alliance Party, the Opposition, had to fall in under the DUP and vote against the motion?

    It isn’t really about the planning application per se here, the concerns are that the DUP in the form of Ian Paisley Jnr shifted the Causeway from public to private control, by exploiting power channels available to himself that were unofficial to the application process and in doing so created an inappropriate, yet sufficiently overarching, lobby sphere, in the attempt to bring about a result favourable to him and his possible financial backers.

    The case is therefore that it should be argued as a policy switch if this helps any legal proceedings. *Or* just hand over the requested papers!

    No doubt Sweeney’s actual application for what is to be built there on his land and more is likely all well and very good; however, it is how he got that opportunity, sole opportunity, in the first place which is of a bigger concern. An opportunity delivered by Jnr potentially going ultra vires through exploitation of making ministerial doors open to him coupled with various ministerial bribery means. Potential Peace bribery for the then Prime Minister and potential party political bribery over Foster.

    One thing is for certain if Arlene Foster loses her job she need not apply to the Planning Service as effeciency and effectiveness in a high-workload environment seems to be well beyond her.

  • David Ford

    Beach Tree

    You’ll see that my first reference was to the Committee’s duty to ‘advise and assist’ the Minister. That’s what the Act says. I doubt if you can scrutinise a decision before it is taken, but you can certainly advise on a key policy matter at any time.

    The legal advice was provided by an independent QC at the request of the Assembly’s acting Legal Advisor. Had he suggested we had any realistic chance of success, I would have voted for action under Section 44.

  • The Beach Tree

    David

    Thank you for the clarification. The NIO legal adviser line from Damien threw me.

    p.s. Thank you even more on behalf of a close family member for your campaign re the demolition of the Hightown Bridge!

    Proper constituency politics are always very welcome. You have secured yourself at least one new vote to my knowledge 😉

  • DC

    Thanks too David for your reply on this matter.

    But I still can’t square this one off and here’s why:

    Alliance backed Ritchie over the funding issue which was apparently a loaded decision what with similar legal concerns; however, on this issue re the Causeway, such support wasn’t forthcoming, even though both situations have similar merits, both to do with individuals interfering in due process to achieve results that suit themselves; Hain for the loyalists and Paisley for his mate, and provider of house, Sweeney.

    If legal obstacles were such a concern why not shy away over Ritchie’s decision then?

    While I wouldn’t encourage the latter I thought both are worthy of support despite such legal consequences given the highly dubious actions of Mssrs Hain and Paisley both issues really, I suppose, involving funding allocation one way or the other.