Northern Ireland Assembly, 5 February 2001
59 contributions from 26 members. The official report.
Street Trading Bill: Consideration Stage
John (Speaker, Belfast East)
As no amendments to clauses 1 to 8 have been tabled, I propose, by leave of the Assembly, to group those clauses.
Clauses 1 to 8 ordered to stand part of the Bill.
Clause 9 (Discretionary grounds for refusing an application)
Fred Cobain (UUP, Belfast North)
I beg to move amendment 1: In page 6, line 36, leave out "or".
The following amendments stood on the Marshalled List:
No 2:
"or
(iv) there are sufficient traders trading in the street from shops or otherwise in the articles, things or services in which the applicant desires to trade." — [Mr Cobain]
No 3 (amendment to amendment 2):
"street, or at premises adjoining it, in the articles, things or services in which the applicant wishes to trade." — [Mr Morrow]
No 4:
"( ) it is believed that the preparation or sale of a specified type of article or thing would adversely affect the general amenity of the area." — [Mr S Wilson]
Fred Cobain (UUP, Belfast North)
The Social Development Committee took evidence from a number of sources and considered the Bill in depth. In general, the Bill is welcomed by the Committee, as it provides for a modern and effective framework for the regulation of street trading in our towns and cities.
It is the Committee’s belief that this Bill will have an important and enduring impact on modern trading in towns and cities throughout Northern Ireland. This Bill is a long-overdue response to a rapidly deteriorating situation. Illegal trading on our streets has long been on the increase. There is huge opposition to the spread of unsightly street trading, which operates in flagrant disregard of existing but outdated legislation. This Bill represents a complex piece of legislation that deals with issues that have not been dealt with for well over 70 years.
The Social Development Committee is agreed that it is necessary to modernise legislation and introduce meaningful control over illegal street trading. It also wants to strive to add to the new sense of vitality and vibrancy that is developing in our towns and cities. As a Committee which is concerned with the regeneration of Northern Ireland’s towns and cities, we want to play our role in encouraging ingenuity and new dimensions.
Therefore the Assembly needs to get this legislation right, not only for the health, safety and convenience of the public, but also for the sake of those street traders who bring a welcome blend of colour and character to commercial areas. To further this objective, the Committee is proposing two amendments to clause 9. The Committee feels that if, for example, there are already five people selling flowers in a particular location, or that there is a plethora of burger bars, a council may occasionally want to use this as grounds to refuse an application.
Difficulties with regard to planning legislation have arisen in the past due to a lack of an adequacy clause. These difficulties will also apply to street trading. There could be 10 burger bars or hot-food takeaways on one stretch of the road. Nothing can be done about that under the Bill as it is currently drafted. It may be suitable to have 10 pitches in a street, but it may not be desirable for them all to sell the same thing.
By way of illustration, the Committee believes that 10 burger bars in one street would undoubtedly have an adverse affect on an area’s amenity due to odour, litter, noise and so forth. Adequacy could be used in that scenario. The Committee believes that it is essential for the Bill to have a clause covering the need for adequacy for certain types of street trading.
I ask the Assembly to fully support the Committee’s views on this. I know that the Minister and his Department have subsequently considered the aspects of adequacy and my Committee’s deep concerns. In light of this amendment, they have tabled their own amendment to ensure that this addition to the Bill is an effective and integral part of regulating street trading in our towns and cities. I commend the Minister and his Department for this, and I urge the Assembly’s full support in endorsing these amendments.
Sammy Wilson (DUP, Belfast East)
Are we dealing only with amendment 2?
John (Speaker, Belfast East)
The Assembly is dealing with the first group of amendments — numbers 1 to 4 — including the amendment standing in your own name.
Sammy Wilson (DUP, Belfast East)
I welcome the fact that this Bill has finally come before the House. It would be remiss of me if I did not pay tribute to Nigel Dodds, former Minister for Social Development, and to Maurice Morrow for bringing this forward.
During the direct rule period, councils across Northern Ireland waited approximately 5 years for this legislation’s introduction. They highlighted the inadequacy of the existing street trading legislation and the fact that those who chose to trade illegally in town and city streets across Northern Ireland faced little or no sanction. Despite the urgency of the case, especially in Belfast — but in other towns across the Province too — the direct rule Administration showed no haste in bringing forward adequate and proper legislation. The fact that this legislation is before the House today is an indication that matters are responded to when local people are in charge of issues in Northern Ireland.
I want to make it clear that this legislation is not about stopping street trading. In many cases, street trading can add to the colour and vibrancy of a town and a city. It provides a different type of shopping experience, which many of us have viewed as an asset in other cities. However, the situation in Northern Ireland was that street trading was not an asset in many town centres; it had become a detriment to them. Indeed, the number of complaints and letters I have had would indicate that.
This piece of legislation is welcome, as there will now be effective sanctions for councils to use against those who choose to trade in our streets illegally. However, as with all pieces of legislation, and especially those drawn up by people who are not the actual practitioners of the law, there can be gaps.
One such gap will be dealt with by amendment 4, which is being moved in my name. It deals with the nuisance that can be caused by some activities, especially those that do not sit easily with the trading activities located beside them. For example, in a number of places across Belfast outdoor burger bars are located at the doors of shops selling clothes. Inevitably, food preparation creates a smell, which in many cases wafts into the premises and clings to the clothes. Those traders — who are paying substantial rates and who have a substantial investment in their business — find that their business is being affected detrimentally.
Although it may be a huge nuisance for the clothes shops in question, it would not constitute a nuisance as defined in the Public Health Act, because it does not lead to rodent infestation, or whatever. Therefore there needs to be a clause to give councils discretionary powers to look at that type of situation.
There may be a number of objections to this, and I want to deal with some of them quickly. When the Committee discussed the matter the first objection was that an amendment such as this would be so general that it could be interpreted too widely and, therefore, would not make for good legislation. I suppose that suggestion also applies to the amendment that has been moved by the Chairperson of the Social Development Committee.
Looking at the Street Trading Bill, one can see that this argument is not unique to amendment 4. Indeed, the very nature of this type of legislation requires that you cannot be too descriptive — otherwise many types of activities could fall outside the legislation. For example, in clause 9 the first provision that a council may use to refuse an application is that the location at which the applicant wishes to trade as a stationary trader is unsuitable. It could be argued that that provision is fairly wide. Another provision is that it the trading would cause "undue interference or inconvenience". Others provide for the revocation of a licence if someone "has persistently failed" to do something or other. None of those terms are defined.
Therefore anyone who says that this amendment will widen the legislation too much or will make it too vague fails to understand the very nature of the type of legislation we are dealing with. It cannot be prescriptive. If it were, it would not work because there would always be loopholes.
Another argument that has been made is that the amendment would discriminate against a particular kind of trader. For example, I have mentioned hot-food bars. The defence against that is bizarre. Those who say that this is not necessary argue that a council could stop all hot-food bars if it so wished. Indeed, it was suggested that a council should have the power to say that an activity is not permitted. A clause that gives a council some discretion and allows an activity in a suitable place is a better alternative to using the legislation as a sledgehammer and banning all activities that might cause the difficulties I referred to earlier.
Another argument suggested that if there were clothes shops on a street, that street should not be designated as being suitable for street trading. That is more all-embracing than the discretionary power suggested in the amendment.
It was also argued — and I found this bizarre — that since the Bill deals with public health matters there should be changes made to the public health legislation. However, the House is not dealing with the kind of nuisance that that is designed to deal with. The Bill is dealing with specific reasons for considering if a location is suitable or unsuitable for street trading. When the Social Development Committee discussed the Bill it was repeatedly stated that if there was already legislation in place to deal with an activity then one should go back to the primary legislation. In the Bill there are references to street trading interfering with car parking. One may therefore argue that the matter should be dealt with under traffic legislation. There are also references to traders who use under-age people on their stalls, so it could be argued that it should be dealt with under child protection legislation.
There will be a certain amount of crossover in the legislation. The amendment gives councils the discretionary power to look at situations where they have to justify their reasons for making a decision if an appeal is made against that decision. That will be a problem. Therefore it is important that it is dealt with now and that effective legislation is introduced. In six months’ time the Assembly will not want councils deciding that changes have to be made in health legislation or some other legislation. Those changes could take a year or two to get through.
Many street traders want to go into city centres to offer a different shopping experience and to add colour to them. However, there are others who seek to abuse the system and to use every available loophole. It is important that the Assembly introduce effective, watertight legislation that will enable councils to properly control the activities that go on in towns and cities.
Alban Maginness (Social Democratic and Labour Party, Belfast North)
I support the amendments that have been presented by the Chairperson of the Social Development Committee and by Mr Sammy Wilson. The Assembly is aiming for controlled and regulated street trading. The amendments will assist in that and make effective control of street trading possible.
Members do not want to put anyone off the streets. We want to see people on the streets, trading in a regulated, controlled fashion. We do not want to see any illegal street trading, and this legislation will deal effectively with that.
Mr Wilson’s amendment is a very valuable contribution. There is a problem. It may not be the most serious problem, but ordinary retailers in the centre of Belfast, Derry or other towns could have their trade adversely affected by the smells from burger stands, which will inevitably contaminate clothing and other items in their shops. It is a very effective amendment, but there may be other problems relating to the general amenity of the area. The legislation should also include a weapon to deal with that.
The argument is that clause 9(1)(a)(i) could deal with it. That is being put forward as an effective means for dealing with that problem or series of problems. That may well be, but Mr Wilson’s amendment will deal with this problem. It will bring certainty to the legislation, and that is very important. It should also be remembered that this will be a discretionary power given to the council, and not something that will act as a total block or prohibition on the type of activity that could lead to a nuisance for ordinary retailers.
Amendment 4, together with clause 9(1)(a)(i), is a belt-and-braces exercise. If it cannot be dealt with under clause 9(1)(a)(i), then it can be dealt with under Mr Wilson’s amendment. It has particular value in strengthening the legislation, and Members should seek to strengthen it rather than allow some sort of vagueness or escape that would not deal with the problem of street trading.
Therefore I am happy to support amendment 4 and also amendments 1, 2 and 3.
Nigel Dodds (DUP, Belfast North)
We welcome the Consideration Stage of the Bill. When I was Minister, the Department for Social Development gave high priority to this Bill because we believed, and still believe, that illegal street trading is a major problem, particularly in Belfast city centre. It has been around for a long time and Belfast City Council, as well as other local authorities and councillors, has been anxious to see progress on reforming the law, which is totally inadequate as it currently stands.
Therefore we welcome the fact that we have reached this important stage in getting the legislation through the Assembly. I believe it will make a real difference. As Members will be aware, the current position is regulated by legislation, passed in 1929, that was designed for a situation totally different from that which currently prevails on our streets.
Every year, particularly in the run-up to Christmas, we see a flourishing illegal market. We can even see it in the city centre at the moment. I have received numerous complaints, as have others, about the way in which these stalls are operated, the total lack of regulation and of any proper health or hygiene standards appropriate to the selling of food, and the obstruction caused to users of the footpaths, particularly disabled people, mothers with prams and young children and the elderly. There is very little redress, in many cases, where goods of a shoddy or unfit nature are sold. There is very little comeback for those who purchase goods at those illegal stalls.
The centre of Belfast has been turned into some sort of shabby street market. In some of our prime retail areas, traders and shopkeepers paying very high rents and rates are being grossly disadvantaged by this sort of illegal activity. I want to stress, as others have stressed, that we are not against properly regulated street trading — it can add vibrancy and colour to our streets. But what is happening at present is simply unacceptable on a number of fronts and it has to be dealt with. I know from my own experience that Belfast City Council has tried and tried to enforce the old legislation, which has proved totally inadequate. At the same time, it has been looking at ways to encourage legal street trading and to encourage something that will add to our city centre and bring people in, rather than turning people off as the current situation does.
I welcome these proposals. I am glad that the Minister has listened carefully to the arguments that have been put forward by Members. I thank him for taking the time to meet with a number of us. I know that he has also spoken to the Committee about these issues. I believe that the legislation as presented, which I hope will go through this House, will go a long way to ensuring that we do not have to endure another Christmas like those we have previously endured, particularly on the streets of Belfast city centre. I believe that this will make a real difference to illegal street trading.
I particularly welcome the clauses that ensure that councils will have real powers to seize goods that are being traded illegally. That will give councils an opportunity to put a speedy end to illegal street trading. After taking people to court, and in many cases trying to find out who they are, what their real names are and what their proper addresses are, you discover that at the end of the day all they receive is a rather small fine. It has proved totally inadequate.
I support the amendments tabled by the Committee and by Mr Wilson. I believe that he outlined very succinctly the reasons behind the addition of his amendment. It is important that there should be in this legislation the sort of provision that he has tabled to take account of the impact that the preparation and sale of certain types of articles, particularly burgers and hot food, have on the general amenity of the area. It is important that that is included in the legislation as one of the factors that can be taken into account. I hope that the House will support that amendment.
We have an opportunity, through this legislation, to make a real difference. It will be warmly welcomed and applauded by local authority and council officials who have to enforce action against illegal street trading. This will give them the ammunition and power to carry out that work for the benefit of our town and city centres and for our residents.
Maurice Morrow (DUP, Fermanagh and South Tyrone)
I want to acknowledge an important point that a number of Members have made, which is that this Bill cannot be interpreted as anti-street trading legislation. It is anything but that. It is an attempt to tidy up the situation.
I thank the Chairman of the Social Development Committee, Mr Cobain, for outlining why the Committee is bringing this amendment before the House. I understand the Committee’s desire to allow district councils to have control over the proliferation of particular types of goods, and I am happy, therefore, to accept the amendment in principle.
However, the Department’s legislative draftsman has advised that the wording of the proposed amendment is flawed as the definition of "street" in the Bill specifically excludes any area in enclosed premises. Therefore the wording "trading in the street from shops" would not be technically correct. The opportunity has been taken to replace the word "desires" with the word "wishes" since this would be consistent with similar provisions within the Bill such as in clause 5 (4)(b) and clause 9(1)(a). I hope Members will accept the amendments. The changes will not, in any way, affect the content of the amendment — they are very much technical changes.
I thank Mr Wilson for explaining the reasons behind his proposed amendment to clause 9. The provisions of the Public Health (Ireland) Act 1878 deal with the issue of odours in a general way. However, they are totally ineffective in dealing with the problem of people selling burgers in the street — a concept that was unheard of when the legislation was introduced.
I understand the concern that odours from those traders could permeate shops, particularly clothing shops. This provision will provide councils with powers to deal with a very specific problem. Therefore I propose to accept the amendment. However, I have some reservations about the precise wording of the amendment. I want to consider that in greater detail, and I may bring forward refinements at the Further Consideration Stage. I do not think there are any other points that need to be dealt with at this particular point.
Fred Cobain (UUP, Belfast North)
The Committee welcomes the Minister’s comments — especially the intentions to strengthen and improve the quality and clarity of the legislation. I thank the Minister for his time and for his response the Committee. I think everyone in the House will be pleased if the legislation, as it stands, goes through.
Amendment 1 agreed to.
Amendment (No 2) proposed: In page 6, after line 40, insert
"or
(iv) there are sufficient traders trading in the street from shops or otherwise in the articles, things on services in which the applicant desires to trade". — [Mr Cobain]
John (Speaker, Belfast East)
Because amendment 3 is an amendment to amendment 2, we will take amendment 3 — if moved — and vote on that and then vote on the amendment as amended, if it is amended.
Amendment (No 3)(amendment to amendment 2) made: Leave out from "street" to the end and add
"street, or at premises adjoining it, in the articles, things or services in which the applicant wishes to trade". — [Mr Morrow]
Amendment 2, as amended, made: In page 6, after line 40 insert
"or
(iv) there are sufficient traders trading in the street, or at premises adjoining it, in the articles, things or services in which the applicant wishes to trade. — [Mr Cobain]
Amendment (No 4) made: In page 6, after line 40 insert
" ( ) it is believed that the preparation or sale of a specified type of article or thing would adversely affect the general amenity of the area". — [Mr S Wilson]
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10 (Revocation, etc. of street trading licences)
Maurice Morrow (DUP, Fermanagh and South Tyrone)
I beg to move amendment 5: In page 7, line 32, leave out ‘applicant’ and insert "licence holder".
The following amendments stood on the Marshalled List:
No 6
No 7
These amendments set out the circumstances in which a district council may revoke an existing street trading licence. As a licence will already be in existence, the provisions will only be relevant to licence holders. However, at three places in the clause, reference is being made to the "applicant". The amendments correct those errors.
Amendment 5 agreed to.
Amendment (No 6) made: In page 7, line 33, leave out "applicant" and insert "licence holder". — [Mr Morrow]
Amendment (No 7) made: In page 7, line 40, leave out "applicant" and insert "licence holder". — [Mr Morrow]
Clause 10, as amended, ordered to stand part of the Bill.
Clauses 11 to 16 ordered to stand part of the Bill.
Clause 17 (Unlicensed street trading)
Maurice Morrow (DUP, Fermanagh and South Tyrone)
I beg to move amendment 8: In page 13, line 8, insert
"( ) is the holder of a street trading licence and contravenes a condition of a kind specified in paragraph (a) or (c) of section 7(1);".
The following amendment stood on the Marshalled List:
No 9 (clause 21): In page 16, line 11, leave out "(a) to (g)" and insert "(b), (d), (e), (f) or (g)". — [Mr Morrow]
Amendment 8 will make it an offence to engage in street trading without a full-term licence, or contrary to the terms of a temporary licence. Anyone doing so will be liable to have his or her goods and equipment seized by a district council.
The Bill, as currently drafted, makes it an offence for a licensed trader to trade in a location, or on a day, or at a time, not specified on the licence. However, it does not permit a council to seize the goods of the offender. That could leave the door open for unscrupulous traders to apply for a licence for one street, with the sole intention of trading in a more lucrative street. It could take several months to have the licence revoked, during which time the person could continue to trade illegally without the threat of seizure.
The most appropriate solution to the problem is my amendment to clause 17. This will make it an offence — under clause 17 — for a street trading licence holder to trade in a different place, on a different day, or at a different time, to that specified in the licence. Persons reasonably suspected of committing an offence under clause 17 may have their goods seized. Licensed traders will therefore be brought under this sanction. A consequential amendment will be required in clause 21(a) to remove the reference there to paragraph (a) and (c) of clause 7 and bring it into line with clause 17.
Nigel Dodds (DUP, Belfast North)
I welcome the amendment. Clearly, there was clearly a gap in which those who obtained a licence for one location could move to another location. There would still be penalties under the original drafting of the legislation, taking the form of fines if prosecution were to result.
Clearly, one of the problems with the original legislation we are now reforming is that there are penalties in the form of fines but, by the time that people are taken through the courts and fined, the damage is already done and the illegal activity has been allowed to continue. This amendment will close that gap. It will ensure that powers of seizure will apply on the part of the local authority to those who have a licence to trade in one location but attempt to move to another. The amendment is to be warmly welcomed because that was clearly going to be a problem for councils. I commend the Minister for recognising that and for moving to close the gap. I trust that it will have the support of the House.
Sammy Wilson (DUP, Belfast East)
I also welcome the fact that a considerable gap in the legislation has been closed by the inclusion of this amendment. As clause 17 stood, all that could have happened had someone obtained a licence, as Mr Dodds has said, is that he could have been taken to court and the maximum level 3 fine imposed. This shows the importance of being able to scrutinise legislation more closely in the House. In Belfast, we have often found that some of the unscrupulous traders are quite happy to go to court and to have a fine imposed — sometimes a number of fines. Then, when trading is a bit slack, they go to jail for a week or so instead of paying the fines, and that is the end of the story. This change will prevent that. Anyone with a licence who traded in the wrong place — perhaps used the licence to get the door open and then waltzed all around a town or city — will now no longer be able to do so, because the seizure powers will apply.
When we looked at this, the argument was that a council could revoke a licence. However, clause 10 states that a licence can be revoked only if a person persistently trades in the wrong place or breaks the terms of the licence. As Mr Dodds has said, someone who wished to abuse his licence by trading in a more lucrative patch than that originally designated for him has been able to keep on doing so for a considerable time before the council could revoke the licence. Fines have not been effective, and the revocation of a licence cannot be done immediately. In proposing this amendment, therefore, the Minister has recognised that the legislation fell far short of what was required to deal with those traders who abused the conditions of their licences, and that is to be welcomed.
Maurice Morrow (DUP, Fermanagh and South Tyrone)
I do not wish to add anything to what I have already said. I understand that the two Members who spoke support the amendment enthusiastically, and I commend it to the House.
Amendment 8 agreed to.
Clause 17, as amended, ordered to stand part of the Bill.
John (Speaker, Belfast East)
No amendments have been tabled to clauses 18 to 20. I therefore propose, by leave, to put the question on those clauses en bloc.
Clauses 18 to 20 ordered to stand part of the Bill.
Clause 21 (Other offences)
Amendment (No 9) made:
Clause 21, as amended, ordered to stand part of the Bill.
Clauses 22 to 30 ordered to stand part of the Bill.
Schedules 1 to 3 agreed to.
Long title agreed to.
John (Speaker, Belfast East)
That concludes the Consideration Stage of the Street Trading Bill, which now stands referred to the Speaker.
Assembly: Oral Answers to Questions
John (Speaker, Belfast East)
I want to draw the attention of the House to the fact that three questions to the Minister of the Environment for this afternoon have been redirected. It was only at 9 o’clock this morning that the Business Office was advised that these questions — number 4, from Mr John Fee; number 9, in the name of Mr P J Bradley; and number 10, in the name of Mr Jim Wilson — had been transferred to the Department for Regional Development.
Advice was received earlier that question 5, in the name of Mr Kieran McCarthy, would be answered by the Minister of Finance and Personnel.
I draw this matter to the attention of the House because it was a very late call, and Members who tabled other questions will need to know the facts. I have also asked that the matter be shown on the annunicator. It is not helpful to the House when calls of this kind are made at such a late stage.
Peter Robinson (DUP, Belfast East)
This seems to be occurring regularly. The Table Office in the House of Commons would not accept a question not properly directed. It is not the job of the Speaker to waste his time and, indeed, ours in going through this procedure regularly. Surely we can get a system in the Assembly and the Departments to ensure that every question on the Paper is directed to the appropriate Minister.
John (Speaker, Belfast East)
In fairness to the Business Office, I should say that the dilemma is that there is not always complete clarity on the part of Departments as to the boundaries for certain questions. On occasions, when the Business Office advises a Member that it believes his question to be outside the remit of one Department and within that of another, the Member is insistent that this is not the case. Usually, though not invariably, it turns out that the Business Office is correct.
Frequently, in the first instance, there is a lack of clarity on the part of Departments as to who precisely should take responsibility. I accept entirely that this does not make good use of the time of the Speaker or of the House. I trust that, as these issues are clarified, we will be able to set sound precedents.
Eamonn ONeill (Social Democratic and Labour Party, South Down)
Is it not true that when a Member is denied the opportunity of putting his question on the day for which it is tabled, he gets a written reply, disadvantaging him in that he is not able to ask a supplementary?
John (Speaker, Belfast East)
The Member is entirely correct. It is also a disadvantage to the House, in that other Members too are unable to ask supplementary questions. When there is such a late call — as has happened on three questions — Members may have sought to be present to ask supplementary questions. This creates considerable inconvenience for the House and is not satisfactory, which is why I have conveyed the matter to the Civil Service authorities.
Jim Wilson (UUP, South Antrim)
Further to that point of order, Mr Speaker. When I framed my question — you will obviously not permit me to go into detail about it — I was clearly drawing attention to a road safety matter in connection with reckless driving on the outside lane of the M2 in rush-hour traffic. It was clearly framed so as to be referred to Minister Sam Foster, as he is responsible for road safety. Somewhere along the way — and I have yet to discover where — the wording in my question was changed to "traffic-calming measures". I can understand why someone might have wanted to change it, but it has resulted in the question being redirected to another Minister. It was a late call, and I was disappointed to be told about it only this morning.
John (Speaker, Belfast East)
It would be wrong to take up the House’s time to go into the detail of the matter, but if the Member looks at the three questions he will find that the common factor is road safety. That is why they were directed to the Department of the Environment. The response was that responsibility might lie with the Department of the Environment but that since all the questions sought action and the only Department that could actually do anything about them was the one with responsibility for the roads in question, the matter was being transferred. It is an interesting dilemma, but it is a decision of the Executive, and one upon which the House voted at an early stage.
P J Bradley (Social Democratic and Labour Party, South Down)
Further to that point of order —
John (Speaker, Belfast East)
This is not an opportunity for those whose questions were not put to find a way of getting them on the record. However, if it strictly a point of order, I will take it.
P J Bradley (Social Democratic and Labour Party, South Down)
It is a correction. I was only seeking information — not asking for anything to be done. Is it unreasonable to expect the Minister for Regional Development to take my supplementary question today and give me an immediate written reply?
John (Speaker, Belfast East)
The Member is one of the few I have heard who only asked for information and did not want anything to be done. That is an interesting proposition. The Member will receive a written response from the Minister, as his Colleague indicated. It will be received, I trust, at an early stage. If not, perhaps the Member will advise me so that I may take the matter up on his behalf.
Alex Maskey (Sinn Féin, Belfast West)
On a point of order, Mr Speaker. In relation to Mr Bradley’s comments, very often when one asks a question, it would be very foolish to expect something to be done — but we will leave that to one side. Following on from Jim Wilson’s comments, I know from my recent dealings with the Department of the Environment — having put a number of questions down — that it is very quick to say that the matter is nothing to do with it. Mr Speaker, I would like you to analyse the way in which this matter has been dealt with by the Department of the Environment. The Department of the Environment does have responsibility for road safety measures, and it could at least have had the courtesy to give Members responses to their questions, even if only to the effect that it wanted to refer matters to the Department for Regional Development. The Department of the Environment does have a legal responsibility for road safety measures.
John (Speaker, Belfast East)
I certainly undertake to look at the matter. There may be a question as to whether this is a matter upon which the Speaker can rule. However, if there is concern or discontent on the part of Members — and from the response it seems that there is — there may be another appropriate avenue to address the matter. I will advise Members as to how they might raise the question — and the Floor of the House will not necessarily be the appropriate place.
Sam Foster (UUP, Fermanagh and South Tyrone)
On a —
John (Speaker, Belfast East)
Is it a point of order.
Sam Foster (UUP, Fermanagh and South Tyrone)
I just want to make it clear that —
John (Speaker, Belfast East)
I am sorry, but I cannot allow the Minister to make a point. However, perhaps we will be permitted to proceed to the next item on the Order Paper.
Derek Hussey (UUP, West Tyrone)
I am awaiting a ruling on a point of order which is relative to this afternoon’s —
John (Speaker, Belfast East)
Order. I have sought to take that issue up with the Member outside. I will either do that or give a ruling at the beginning of Question Time today. I will say no more at this stage.
Planning (Compensation, Etc.) Bill: Final Stage
Sam Foster (UUP, Fermanagh and South Tyrone)
I beg to move
That the Planning (Compensation, etc.) Bill (NIA 7/00) do now pass.
This Bill will repeal various provisions in the Land Development Values Compensation Act (Northern Ireland) 1965 and the Planning (Northern Ireland) Order 1972. It will also correct a minor drafting error in the Planning (Northern Ireland) Order 1991. Parts I and II of the 1965 Act have been obsolete for some time now, and the last records of any compensation paid under them date back to 1988. A repeal of these parts can be regarded, therefore, as a tidying-up exercise.
The more significant provisions in the 1965 Act, which are to be repealed, can be found in section 29. This section has been giving rise to significant payments by my Department for the past 10 years or more. Typically, we have been paying out approximately £100,000 per year, and the current liability is in the region of £1·5 million. Under this section, compensation can be claimed for a refusal of planning permission in certain circumstances laid down in the Act. This has mostly concerned the reconstruction of old buildings which were in existence on 4 November, 1965.
Planning decisions are made for the good of all the community, and there is no place in a modern planning system for compensation for the refusal of planning permission in any circumstances. As significant sums have already been paid out under parts I and II of the Act, and under section 29, this Bill will not repeal the recovery provisions in the Act. This means that where compensation has been paid and planning permission is subsequently given for relevant development on the site, the Department will seek to recover the compensation paid.
The provisions of the 1972 Order which are to be repealed provide for compensation for a refusal of consent for the alteration or extension of a listed building where the alteration or extension does not constitute development for the purposes of requiring planning permission. It makes little sense to compensate in respect of a control that was introduced to protect listed buildings, and there would be no claimants under these provisions.
The final purpose of the Bill is to correct a minor drafting error in the 1991 Order which relates to rights of entry. Those parts of the legislation which deal with compensation shall be effective from 23 October 2000, when the Bill was introduced in the Assembly. No claim for compensation will be paid in respect of a refusal of planning permission or listed building consent where such an application was made on, or after, this date. All other claims will be processed in the normal manner. This is a straightforward Bill which removes both irrelevant and costly provisions from the statute book and corrects a minor drafting error. It will bring Northern Ireland’s planning compensation law into line with that in the rest of the United Kingdom.
I thank Members for their contributions in the earlier stages. I am particularly grateful to the Chairperson and members of the Environment Committee, who carried out detailed, clause-by-clause scrutiny of the Bill. I also thank the Committee for affording my officials the opportunity to give evidence during that scrutiny process.
William McCrea (DUP, Mid Ulster)
I thank the Minister for his consultation with my Committee on this Bill. Having discussed it, we decided that no amendments were necessary. I therefore put on record the Committee’s agreement with the reasons for bringing Northern Ireland’s legislation into line with that in the rest of the United Kingdom.
Question put and agreed to.
Resolved:
That the Planning (Compensation, etc.) Bill (NIA 7/00) do now pass.
The sitting was suspended at 11.29 am.
On resuming —
Assembly: Oral Answers to Questions
John (Speaker, Belfast East)
At the sitting of the Assembly on Monday 29 January, Mr Hussey raised a point of order in relation to the ruling that his oral question on rural proofing to the First Minister and the Deputy First Minister was inadmissible. The question was ruled inadmissible on the grounds that it was a matter for the Minister of Agriculture and Rural Development. The Deputy Speaker who was in the Chair at the time undertook to examine the issue.
I have taken advice on this matter and am satisfied that the Business Office was to decide that the Department of Agriculture and Rural Development was the lead Department. This has been confirmed in writing by the Office of the First Minister and the Deputy First Minister. I have informed Mr Hussey of my decision.
However, his point of order raises a number of issues to do with convention on which clarification would be helpful to Members. First, appeals to the Speaker on the inadmissibility or otherwise of a question should in the first instance be made outside the Chamber. It would also be helpful if Members were to seek clarification on admissibility decisions from the Business Office before raising the issue with me.
Secondly, to ensure that the best use is made of Question Time, I remind Members that questions should be tabled to the Minister who has primary responsibility for the subject of the question — in other words, to the lead Department. The NNIA7 report of the First Minister and the Deputy First Minister of 15 February 1999 contains some clarification of departmental responsibilities, and copies of that report are available from the Printed Paper Office.
Finally, insofar as there is a problem with clarifying departmental responsibilities or procedures for questions, I undertook this morning to explore the difficulties with which Members are confronted. I will advise the House further on these.
John Fee (Social Democratic and Labour Party, Newry and Armagh)
On 18 December 2000 I raised an issue with regard to Standing Order 19(1). I was advised that where there is ambiguity about the responsibility of any Department, we should in the first instance take advice from the Business Office. This morning I was one of a number of Members whose questions were arbitrarily diverted to another Department. No notice was given, and in my view it was an extremely blatant attempt to subvert the authority of the Assembly. Standing Order 19(1) provides for a question to be asked of a Member of the Executive Committee relating to the public affairs with which his or her Department is officially connected or to any matter of administration for which he or she is responsible. Surely when a question is tabled and published on the Question Paper, the Minister should explain in the Chamber why he or she is absolving him or herself of either total responsibility or the lead responsibility for answering it.
John (Speaker, Belfast East)
This matter was raised by several Members this morning. The problem centres round the question of ministerial responsibility and clarification of which Minister is the lead Minister and which Department is the lead Department.
Secondly, there is the question of timing. It was particularly disruptive for Members to learn only this morning that some questions would not be asked this afternoon. It was also disruptive for other Members whose questions were further down the list or who wished to put supplementaries. Accordingly, this morning I undertook to look into the matter, which I discussed briefly with the Business Committee at a lunchtime meeting. We will try to clarify the issue, but I am not persuaded that it will be possible to do so on the Floor of the House. This may take a little time, but we must clarify the matter for everyone’s sake and for the better administration of the Executive and the House.
Ian Paisley (DUP, North Antrim)
On a point of order, Mr Speaker. At the end of the debate on the Garda Síochána on 30 January 2001, the question was raised whether this House has the right to discuss matters that are sub judice in another jurisdiction. The Deputy Speaker ruled that if a case might come before another jurisdiction this Assembly could not discuss it. I find that unacceptable.
It amazes me that any House that has no jurisdiction beyond its own can say that certain cases that are being heard in a court in a foreign country cannot be discussed by it. Madam Deputy Speaker Jane Morrice was to give the House an explanation, but as yet nothing has been forthcoming.
John (Speaker, Belfast East)
I was made aware of this matter. I have some sympathy with the Member’s concerns about the tight ruling. The Assembly’s legal advisers are deliberating on it, and I undertake to give a ruling as soon as possible.
Building Regulations 2000
James Leslie (UUP, North Antrim)
I beg to move the motion standing in the name of the Committee Chairperson:
That this Assembly annuls the Building Regulations (Northern Ireland) 2000 (SR 389/2000).
Members may wonder why a building regulation is being presented by the Department of Finance and Personnel. It is one of the consequences of the way in which Departments were divided at devolution. It is perhaps a little curious that this division moved from the Department of the Environment to the Department of Finance and Personnel. However, that is where it is, and therefore it is a matter for the Finance and Personnel Committee.
The Building Regulations (Northern Ireland) 2000 Statutory Rule was laid in the Assembly on 15 December. There was no pre-drafting scrutiny — it was not brought to the Committee for pre-drafting scrutiny prior to that, although the consultation on the contents of the regulations occurred in the middle of 2000. As Members are probably aware, once a rule has been formally laid with the Assembly, a Statutory Committee can do only one of two things with it: approve it or seek its annulment by the Assembly. There is no facility for amending a statutory rule. Consequently, the Committee found itself with what one might describe as a nuclear option. That was to annul the rule, given the Committee’s dissatisfaction with quite a number of its terms.
It will be of great benefit to Ministers if Committees are encouraged to engage in the pre-drafting scrutiny of statutory rules because Committees can provide extra eyes for the Ministers. That would lead to some improvement in a number of the regulations. Committees have the time to look into issues, and they can spend time mulling over them and taking evidence on them. That time is not necessarily available to Ministers. In particular, it was not available to the Finance Minister on 15 December when the Budget was being finalised. That was one of the busiest times of the year for the Minister, and for the Finance and Personnel Committee, which was also under considerable pressure at that time to deal with the Committee Stage of the Government Resources and Accounting Bill. That Bill will be coming before the House for its Consideration Stage very shortly.
Therefore, the timings were unfortunate, but I encourage the Finance and Personnel Minister and other Ministers to engage in some form of pre-drafting scrutiny with their Committees when looking ahead to the tabling of regulations.
This will be constructive and in the best interests of all concerned. I will deal with the substance of the regulation, but I am conscious that some other members of the Committee may want to comment so I will try to set out the general territory.
The Committee is in no doubt that many provisions in the statutory rule are well worth having and will be improvements to the current regulatory environment. However, the Committee as a whole was concerned about the way the provisions for protecting domestic properties against radon gas have been framed. At present, existing protection is provided by the designation of areas. The new regulations would change the designations. Some quite considerable new areas would become designated and other areas, which were previously designated, would become undesignated. The mode of designation is done on a grid square, which may be handy from a survey point of view, but it is not necessarily helpful when you are looking at building lines or the area of a development.
Radon occurs naturally and is a particular problem in areas where uranium and similar heavy elements in the underlying rock decay and produce other radioactive products that pass into the air. Radon gas increases the risk of lung cancer — I will discuss the statistics later.
As soon as the Committee had sight of this statutory rule, members immediately alighted on the radon issue and were concerned about it. Consequently, the Department was asked to provide expert guidance, and evidence was also taken from building regulators. Our concerns were underlined and reinforced by the evidence we heard.
I thank the Department of Finance and Personnel for their efforts. It was a short timescale, but a great effort was made to explain the technical background, and papers were swiftly provided for the Committee to consider the matter in more detail. It became apparent early in the process that the Committee should seek to annul this statutory rule, and, due to the timetabling of Assembly business, it was important that the motion be put down.
The Committee noted that the regulations relate to domestic dwellings, and members were concerned that they would not apply to non-domestic properties such as schools, libraries and leisure centres. Considerable numbers of people use those buildings and there would be risks to their health if the appropriate defence against radon were not put in place.
This statutory rule assumes that a survey of radon gas levels, based upon what is really an imperfect system of assessment, is sufficient to exclude large parts of the countryside from inclusion in the designated areas. The Assembly may be interested to hear that the Chief Building Control Officers’ Forum shares the views and concerns of the Finance and Personnel Committee. In its submission it stated
"Designated areas are determined on the basis of the probability of radon being present in that area. New houses which are not in a designated area may still have a radon problem."
When you look at the map you immediately find yourself asking why there is a clear area in the middle that seems to be surrounded by areas that are designated as having a radon risk. This led the Committee to conclude that the most sensible thing to do, given the widespread incidence of radon and the uncertainty of measurement, would be to designate the whole of Northern Ireland as a radon affected area.
Regulations should therefore be put in place requiring all new dwellings, and the other buildings which I mentioned earlier, to be protected against it.
In this context you clearly have to look at the cost of these measures. This was done during the consultation process. The figure generally quoted as the normal cost for making the necessary improvements to the foundations is between £100 and £150 per house. This figure applies if you do it before the house is built; the situation is far worse and more expensive if you have to do it retrospectively. However, the Chief Building Control Officers’ Forum said that it could cost up to £400 per house to provide a high degree of protection. This seems to be the maximum figure.
That is not the only element of these building regulations that adds to the cost of building houses. A number of other measures also increase costs. One relates to the guarding and protection of steps and ramps from impact — that is estimated to cost £100 but could cost up to £600 — and another relates to glazing on ground floors, which is also expected to cost about £100. A further regulation requires disabled access to be available at all ground-floor-level dwellings, which is expected to cost £1,100 per dwelling. However, when you look at the evidence gathered during the consultation process, you will find that of the three independent building contractors consulted, two opined that the likely cost would be rather more than that, and that where houses are built on a slope the cost could be several thousand pounds. A number of those consulted expressed the view that it was perhaps excessive to require every dwelling to have such access. When you add all of those things up, you can see that a number of the measures in here will add to the cost of building.
However, the Department’s own medical statistics show that in Northern Ireland about 60 deaths a year are believed to come from radon-related lung cancer. Various statistics have been provided about the probability of contracting lung cancer in this way. The lifetime risk of contracting lung cancer induced by radon at the action level — the level or concentration at which it triggers the existing regulations — has been estimated by the Imperial Cancer Research Fund as 1% for non-smokers. These statistics can be quite hard to extrapolate accurately; in brief, they set the maximum risk of contracting lung cancer during one’s lifetime at one in 10,000 in the lowest-risk areas. The actual figure is bound to be rather lower, however.
When put in perspective, the figure of 60 deaths per year from lung cancer that may result from radon represents quite a high probability. For instance, the number of deaths occurring from new variant CJD in the whole of the United Kingdom is lower than that. We have spent billions of pounds of public money on slaughtering cattle on the basis that there might be some connection between BSE and new variant CJD. In addition, hundreds of millions of pounds of agricultural profit have been swept away. I do not think the argument that it costs somewhere between £100 and £400 per house — albeit of private money, not public money — is a good one for suggesting that measures should not be taken to protect against radon. When all of that is taken into account, it is the view of the Committee that the present limited provision in the rule, which leaves out large areas of Northern Ireland from designation as a radon area, is unsatisfactory.
The Committee is unanimously agreed that the building industry should be required to provide radon protection to new dwellings in all parts of the country. We also ask the Minister to look again at the apparent omission of non-domestic properties and, in particular, places where children and young people gather — such as schools, libraries and leisure centres, not to mention hospitals — in the context of these regulations.
I dislike regulations almost as much as I dislike taxation. I firmly believe that we would be better governed if there were considerably less of both. There is probably a tendency — perhaps as a result of direct rule, aided and abetted by belonging to the European Union, which is a regulation-designing factory — to churn out these regulations. They receive very little or no scrutiny and we are then burdened with the cost of the consequences. Perhaps a lesson comes out of this episode: we have to find the time to look closely and carefully at the number of regulations we are passing.
In conclusion, in view of the inadequacies that I have outlined, I recommend to the Assembly that it should support the Department of Finance and Personnel Committee’s motion for annulment of the rule.
Donovan McClelland (Social Democratic and Labour Party, South Antrim)
Questions to Ministers took up some of the time allocated to this motion. I am afraid that I am going to have to limit speeches to seven minutes, which will enable us to hear from the Minister and have a winding-up speech and a vote.
Patricia Lewsley (Social Democratic and Labour Party, Lagan Valley)
I welcome the opportunity to speak on this issue. Although I am a Committee member I am against the prayer of annulment going ahead. The building regulations, some of which Mr Leslie has mentioned, are a package. Therefore we cannot take out the piece of the package that we are not happy with and ask for the rest of the regulations to go through. They have to be passed as a package, which is why I will not be supporting this prayer of annulment.
I do not deny that radon is a very serious issue, but in some areas where there are high incidences of radon there is no protection. These regulations will give them immediate protection. The Minister has said that he might consult further on radon, so these regulations may be amended further down the line.
It is also important to discuss other issues included in these building regulations, with particular regard to disability access. I have often said that people with disabilities have been discriminated against in Northern Ireland for many years. This would have been a positive step for them. Under the proposed regulations, homes and ground floor accommodation will be upgraded from habitable to visitable. Therefore I propose that the regulations go forward.
The regulations also propose to introduce more up-to-date fire safety codes relating to means of escape and back-up power supply to domestic smoke detection systems. Considering the number of fire-related deaths in the past couple of months, it would be remiss of us, as an Assembly, not to put those regulations into place as soon as possible.
If these regulations go forward today, then they will be implemented from 1 April. If we vote for annulment, they will not be in place until April 2002. If we support these regulations, with the hope that there will be further consultation and an amendment further down the line, the operative date will be May 2002.
Because of the entire package, including the provisions relating to immediate protection from radon, disabled access and fire precautions, we should support the regulations.
Peter Robinson (DUP, Belfast East)
Many who will speak in the debate would, no doubt, have preferred it if the Minister had spoken earlier in the debate, so that they could have tailored their comments appropriately, in the knowledge of the position that he intended to adopt.
It might be useful if I were to point out to those who are not members of the Finance and Personnel Committee that there was — without exception — an acceptance on the part of the Committee that the risk was of a sufficiently high level for the matter to be treated with some urgency. So far as I am aware, there was no division among members of the Committee about the desired result.
There are, however, some procedural difficulties. I could characterise the division in the Committee as one between pragmatists and idealists. Some members realise that half a loaf is often better than no bread. However, because of the procedures, the Minister can tell the Committee that there can be no cherry-picking with the statutory rule — that it is all or nothing — and that there will be a consequence if we proceed with an annulment. The consequence would be a delay in the bringing into force of measures for the protection of the areas of Northern Ireland that are at highest risk from radon, as well as of other beneficial parts of the regulations, including those relating to disabled access. That is the downside; the upside is that the Department would come under additional pressure to deal with the issue in a more general way for Northern Ireland, as opposed to the present piecemeal approach. Many members of the Committee would be unable to tell the Minister how we would vote on the measure; we must wait until we hear the Minister’s response. The Committee would like a firm commitment from the Minister that he will take action soon to meet the Committee’s concerns.
There are cost ramifications for the end user; any costs placed on the builder of a house will be passed on to the purchaser. If, on further investigation, it appears that there is no risk to certain areas of Northern Ireland from radon gas, why should people in those areas be required to have protection from something from which they are not at risk?
Thus far, the consultation has been narrow. In correspondence with the Committee, the Minister put his hands up and recognised that the Committee should have been given an opportunity to consider the matter prior to the statutory rule’s being laid before the House. That would have allowed the Committee to hear views from a wider range of people, in addition to the building control officers and the Department. It would also be necessary to have the views of the construction industry.
Undoubtedly that can take place if the Minister agrees to take on board the issue and to have further and wider consultation. Eyebrows would be raised if, without there being scientific evidence of people being under threat, we were to say that, regardless of that, protection had to be made available. The bottom line for many of us is that it would be unwise for the Assembly if the Minister were to show a willingness to meet the Assembly’s position, to have the regulations annulled. In those circumstances those areas which are at highest risk would, in effect, be denied for at least a year the protection that they would have under these building regulations. It would be a strange set of circumstances were the Committee to say that in order to have a wider protection we were going to take away that protection for at least that period from those who most need it.
Having been on both sides of the fence, I say by way of advice — not of warning — to the Minister that the Committee feels that it has not been well treated in this issue, and in other respects. The Minister could relieve the Committee of some of its anxieties by firming up the remarks he will make to the House. I suspect that unless he goes a little further than he has thus far, there are those on the Committee who will feel obliged to divide the House on the matter. As a Minister, I am sure that at this stage he must be wondering what the outcome of that would be, given the precarious numerical circumstances of political parties in this House. In all circumstances the Minister would be best served were he to give as firm an undertaking as possible that he will carry out the fullest of consultation and that he will consider each of the other parts of Northern Ireland with a view to as soon as possible bringing forward regulations that will meet any further need identified by his investigations.
Alex Maskey (Sinn Féin, Belfast West)
Go raibh maith agat. I do not want to repeat the comments and sentiments of other Members, but, similarly, I would welcome any assurances that the Minister could give us so that we do not have to seek this annulment.
I have two further points to add to what is almost a questionnaire. Radon, like many other things, does not recognise borders. I have already asked the Minister what exchanges he has had with his counterpart in the Twenty-six Counties, and I await his response. We are told that, close to the border, there are areas of high radon contamination. Without repeating any points, I would like assurances with regard to the designation of areas as radon-affected.
I support the idea of further consultation on, and consideration of, this matter in the months ahead. If, for example, a developer were moving on a piece of property, only part of which was designated as radon-affected, would the highest levels of protection be required on any development on all of that site? I sought assurances from Department officials, but they were unable to give me a positive response. That question, therefore, needs to be addressed. We have been told that the designation issue is an administrative nightmare. For most Members who raised concerns, however, the issue was whether the entire area needed to be designated as radon-affected. Quite simply, further consideration is needed, and I am happy to support the general view of other Committee members if the Minister will assure us that we will have this consultation in the months ahead.
Seamus Close (Alliance, Lagan Valley)
From my standpoint, I am afraid, I require — and will be looking for — more than simple assurances. This issue is a very serious one — it involves lung cancer. According to the Department’s figures, every year in Northern Ireland 60 deaths are caused by radon-related lung cancer — 60 deaths per annum. I would consider even one such death as being too many, but 60 deaths is far beyond that. We have a responsibility to do everything in our power to ensure that there will be no deaths through cancer in Northern Ireland.
Unfortunately, we are living in a society, and among countries, where there is a radiation smog through which people are battling day and daily for their health. There are high-tension power lines and radio-telecommunication masts — I could go on. We have one of the highest rates of cancer in the Western World, and people ask why.
We have here an opportunity to do something about the situation — we can designate Northern Ireland as a radon-free area and thus take the necessary steps to prevent, wherever possible, those 60 deaths. The issue of finance should not be brought into the debate. What price would anyone in the House put on a human life? It is impossible to do that. That is the number one issue which makes me insist that this annulment go through today. Simple assurances are not enough.
But there is another issue: how the Assembly and its Committees have been dealt with over the past couple of years, and how they are to be dealt with in the future. How often have we heard comments such as "Yes, it would have been beneficial if we had had the time to come to the Committees to consult with you and to allow you to perform your statutory function"? How often have we said that the time allocated to us was totally inadequate?
We had another opportunity to do this when consultation was taking place. Let us look at the claim that there was a need to carry out further consultation with other organisations. I have a list here of some 58 organisations that were consulted on these regulations in draft form. Many of these organisations said to the Department that they wanted all of Northern Ireland to be designated a radon-free area. Yet we are told today that there needs to be more consultation. That "more consultation" can only mean consulting with the very same people who are on this list and have already been consulted.
What is the point of consultation when it is not listened to? Surely the most important people to be consulted on this are the building control officers who day and daily implement these regulations. What did the group of building control officers tell us? They said that Northern Ireland should be designated a radon-free zone. They told us that the current faffing around with regulations is leading to confusion with builders and has created a loss of credibility in the eyes of members of the building control profession. For example, sites previously designated as requiring radon protection are, under these new regulations, no longer deemed to need that protection. What sort of message is that sending? One day you are in, and the next day you are out. We have grey areas in Northern Ireland — in certain local government areas a field will be in, while the next will be out; one side of a road will be in, and the other will be out. What sort of confusion is that going to lead to?
What is the solution? Let these regulations go forward and, after a period of time, introduce yet further regulations to change yet again that which would have been in being for a matter of months.
The whole thing is farcical. A clear message has to go out that the Assembly and its Committees are not nodding dogs, rubber stamps or whatever terminology you want to use. A Northern Ireland Assembly in now in situ and we are here to represent the views of our electorate. If people decide, for whatever reason, not to consult us or give us opportunities to be consulted, the onus to rectify the situation will be left fairly on their shoulders. This Assembly cannot be treated like a dogsbody. There were plenty of opportunities to consult with the appropriate Committee, but someone, somewhere, decided not to bother.
The Committee has suggested that we wait for the Minister’s response to see whether we pursue this issue or not. I understand that specific assurances were sought from the Minister and that he gave a reply in which he was quite specific and said that he could not give us the precise assurances we were seeking. The Minister gave us our answer, and the Committee should therefore stand by its concern for the people of Northern Ireland and insist that this annulment take place.
Derek Hussey (UUP, West Tyrone)
I support the prayer of annulment which has been proposed by the Deputy Chairperson of the Finance and Personnel Committee.
The issue of inadequacy in the processing of new building regulations has quite properly been laid before the House, and we have no option but to consider this prayer of annulment. The great difficulty facing us is the fact that the majority of what is contained in the proposed new regulations is not contentious and, indeed, will lead to improved safety provision for all users of domestic properties and enhanced access for the disabled. Therefore it is fair to say that there is no desire to throw the baby out with the bath water. I sincerely trust that in his response to this debate the Minister can offer proper reassurance to the House that this will not happen.
By now Members will be well aware of the major area of concern to those of us who support the prayer of annulment, namely the regulations dealing with protection against the harmful effects of radon gas. I am not satisfied with the proposed regulations dealing with radon. As has already been said, we in the Committee have received support from the Chief Building Control Officers’ Forum in Northern Ireland. Departmental officials suggested that opposition to their proposed new regulations might be politically motivated — I think that is with a small "p" — but I am sure that everyone will agree that Northern Ireland’s chief building control officers have no axe to grind and that their opinions, based on technical expertise, should be taken seriously.
Radon gas can kill; it is therefore a matter of great concern that proper protection against its effects is in place for all the people of Northern Ireland. I live in an identified radon risk area, and it is not unusual in west Tyrone to find radon readings eight times in excess of the recommended maximum level. I have attended funerals of constituents whose early deaths were understood to have been caused in part by the effects of radon gas. I therefore have no hesitation in supporting the regulations to protect against radon. My concern is the lack of coverage for the rest of Northern Ireland.
Recent investigations by the National Radiological Protection Board indicate that every county in Northern Ireland is affected by radon. The Assembly and the Minister have a duty of care, a duty to ensure that the effects of radon are minimised throughout Northern Ireland and not just in areas where the risk is perceived to be greatest. The regulations contain a radon risk grid, and some areas are designated as not having a high enough risk to deserve proper regulatory cover.
I do not accept that, and neither does the Chief Building Control Officers’ Forum. Moreover, I would maintain that assumption rather than proper scientific investigation designates sections of the risk grid.
Effective protection at new-build stage costs a couple of hundred pounds, but to remedy radon intrusion in an existing building can cost thousands. Given the concerns that have arisen today, I urge the Minister to confirm that he intends to investigate further statutory rules that could extend radon designation to cover all of Northern Ireland, thus affording proper radon protection to all our citizens. He should also include non-domestic properties in radon protection regulations.
Finally, I ask the Minister to assure the Committee and the House that, in future, Committees will be given a proper opportunity to consider and scrutinise matters fully, prior to any rule’s being laid. While awaiting the Minister’s response, I support the prayer of annulment.
Jim Shannon (DUP, Strangford)
I want to dwell on the issue of radon gas, specifically because it is a distinct problem in the area I represent — both in the Assembly and on Ards Borough Council. There is a real need to bring the legislation forward now.
Radon gas is a natural killer — you cannot smell, see or taste it, but it is doing you harm. Mr Hussey mentioned the funerals he has attended in West Tyrone of people who have died as a result of it. It is a silent killer, responsible for 60 lung cancer deaths in the Province, as other Members have said. That shows the magnitude of the problem it creates for many of the people we represent. The gas is radioactive and can enter any building easily. It can seep through the ground or pass through floorboards, and when it becomes trapped in buildings without sufficient ventilation its effect on lung tissue can be lethal. That is what is happening in certain parts of our Province. While one sleeps, radon gas continues to percolate inside and outside houses and other property.
Many areas of the Province, apart from my constituency of Strangford, have a problem with this gas. In some areas it is more apparent and lethal than in others. In parts of east Down, radon concentrations need to be constantly monitored. One Member made the point that levels of radon could be up to eight times higher in parts of his constituency. There are areas in my constituency in which they are equally high.
The Department of the Environment provides free radon tests, but only for households considered to be at high risk. Tests to households in less affected areas normally cost £35.
Iris Robinson (DUP, Strangford)
Does the Member share my concern that building control officers experience great difficulty in enforcing the statutory rule when the designated areas defined in the regulations do not coincide with district council and building control areas?
Jim Shannon (DUP, Strangford)
I thank my Colleague, the MP-in-waiting for Strangford, for her comments, which were well made. Indeed, the building control regulations, as well as the environmental health regulations, were to be the subjects of my second point.
I want to highlight the £35 charge. Grants should be made available to those households with restricted finances. People on benefits, or those who need help, should qualify, so that tests can take place. Perhaps the Minister could comment on that in his summation of today’s comments.
Communities should not be left open to the health dangers associated with radon gas. That is why the co-operation of property surveyors, building control officers and environmental health officers is required to oversee the prevention of gas seeping into buildings. My Colleague referred to the issue of gas becoming trapped and therefore posing a health threat to those living in the house. The Building Regulations 2000 need to be established, setting out the new requirements that all new buildings, whether residential, commercial or public, must have radon measures installed, such as proper ventilation and underfloor extraction.
In the areas where radon gas is a problem, what about schools, health clinics, health centres, community centres — areas where young people, adults and parents all meet on a regular basis? What about the threat to their health? We want to address that as well.
It is important to recognise that building control areas do not necessarily match the council areas. Therefore, we need a co-ordinated policy. My Colleague referred to that. It is also the responsibility of the Government to increase the profile of this particular natural problem. The Government might not have highlighted this in the way that they should have. They must be more proactive in showing where the problem is. They must publish documentation and assistance that are easily read and understood by those people who have a particular interest or concern. That would enable members of the public to begin to take their own measures to combat the problem. Make them aware of it, show them how you can help, and then take it forward.
Peace of mind is so important. The public needs to be assured that the threat to its health is being addressed. The onus is on the Department, and in this case upon the Minister, to confirm that those directly under radon exposure can be protected. We must have that as our first goal.
Kieran McCarthy (Alliance, Strangford)
I am not a Member of the Finance and Personnel Committee, but I have great concerns. I will support any proposal coming out of the Assembly or the Committee that will minimise or eradicate the health risks associated with radon gas as soon as possible.
I have raised this serious problem with our Health, Education, Environment and Social Development Ministers, and now with the Minister of Finance and Personnel. While all Ministers recognise that there is a problem, no one has really got to grips with the very serious radon threat. To date, no Department has really taken action to seriously tackle the problem. I hope that the Assembly will insist that time is of the essence.
I am not going to go over what has already been said. The Members who have spoken have said it very well. Private dwellings are of great concern, especially in the radon-affected areas at the moment. However, little or nothing has been said of public buildings until now — we have raised the profile in the Chamber today. People are required to be in those buildings for many hours at a time. I raised the issue of schools in particular. Again, little or no action seems to have been taken.
We must bear in mind the effects of this gas, which can only be discovered after a prolonged period. A recent survey in the Republic revealed that some 400 schools out of 1,700 had a serious level of radon. Immediate action was taken. To date, as far as I am aware, schools in Northern Ireland have been ignored. So many young people in the schools could be at risk.
In Northern Ireland, there are an increasing number of cancer sufferers. We all wonder what is causing that increase. Here we have the knowledge of the cause of lung cancer. It has already been said that some 60 people in Northern Ireland have died as a result of radon gas. That is enough for this Assembly to take immediate action, throughout Northern Ireland, and ensure that our people will not fall victim to radon gas.
As I understand it, representations have been made by over 50 organisations. The chief building control officers in Northern Ireland have made their case — very strongly, as I understand it — to the Committee. Surely they are the people to whom we should listen. The Assembly must act upon the officers’ vast experience; we simply cannot afford to wait any longer.
Peter Weir (UUP, North Down)
I share many of the concerns expressed by my Colleagues on the Finance and Personnel Committee. We are being asked to choose between the lesser of two evils: if we simply accept the building regulations as they stand and withdraw the prayer of annulment, we could be accepting unsatisfactory regulations.
Many of the related issues have already been raised. We could be taking a gamble with public health. Regulation relating to radon appears to be a movable feast; there is no universally agreed acceptable level of risk. For example, the English and Welsh regulations refer to areas with a more than 3% chance of radon contamination; in Scotland, the figure is 1%, as with these regulations. The danger is that we will take a risk with public health, and that may be viewed as a very foolish decision in a few years’ time.
The fact that the system is based on a grid reference using square miles, means that we face a ridiculous situation in which a particular house may be covered by the regulations but the house beside it may not. Building control regulators have said that that would create administrative problems.
For some parts of Northern Ireland — albeit a small percentage — the figures are not available; the squares on the map are blank, simply because there has not been adequate investigation in those areas. One set of squares might be covered by the regulations, and, right beside them, others would not. I am not sure that the House should accept such a partitionist solution, if I might use a phrase that has more resonance for Members opposite. The Assembly should not allow a situation in which some parts of Northern Ireland are covered and some parts are not.
I must temper those remarks. Despite the fact that the best evidence available was provided by building control, there was, during consultation, no universal acceptance that all of Northern Ireland should be covered. At the moment, I am inclined towards the view that all of Northern Ireland should be covered. I want to hear more details and gather more evidence before making up my mind as to whether Northern Ireland as a whole should be covered.
If we accept the prayer of annulment, as suggested by other Members, we will delay other important aspects of building control regulation relating to fire safety and disabled access. Even then, the issue is not absolutely black and white. During the consultation, there was not even universal acceptance that the building regulations were completely right on the matter of disability access.
If the Assembly annuls the regulations, it will delay, by up to a year, the provision of protection to the areas that are most strongly affected by radon. As Mr Hussey said, we must be careful that we do not throw the baby out with the bath water. Mr Close read out a long list of people who were consulted, dating from the start of the consultation process in April 1998. However, one of the most blatant omissions from the list is the Northern Ireland Assembly. I appreciate that the Assembly did not exist when the consultation began, but it has been in existence for two and a half years. Yet the Assembly’s only opportunity to consider the regulations has come at the tail end of the process, giving us only a short time to decide whether the regulations should be annulled or accepted.
The Assembly did not have the opportunity to look at these at the pre-drafting stage. With proper investigation at that stage, we could have avoided many of the problems that have arisen today. We could have weighed up the opportunity for amendments. However, now we find ourselves in the position that we either have to fully accept these regulations or get rid of them.
Like other Members, I will be listening very intently to what the Minister has to say with regard to the assurances he can give. The Minister should draw some comfort from the fact that, with the exception of his Budget statement, Members have rarely been so keen to listen to his closing remarks.
I would like a re-examination of the matter. There are, in particular, two important issues. First, the consultation must genuinely include the views of the Assembly, which have been largely ignored until now.
Secondly, if we get the assurances that consultation will happen and that new regulations will be looked at, that consultation must be genuine and the views of practitioners taken on board. We do not want a situation in which the Department starts with a predetermined attitude as to the areas that should be covered and at the end of the process simply rubber-stamps that, having gone through the process of supposed consultation.
If the Committee takes the view that it is not going to push this to an annulment, then this is very much a test case. If consultation turns out simply to be a facade, the Committee will not be so kind to the Minister in the future when deciding on the issue of annulment. I wait with anticipation to hear what the Minister has to say.
Mark Durkan (Social Democratic and Labour Party, Foyle)
I welcome the opportunity to make a statement on what is clearly an important matter. I recognise and understand from the arguments that have been voiced here today and previously at Committee meetings the strong feelings that Members have on the radon issue. However, let us remember, with regard to building regulations, that it is not the only issue we need to consider.
I do not wish to minimise in any way the fact that when radon concentration is high it poses a serious risk to health. Members have spoken today in strong and advised terms about that risk. Measurements of radon levels in homes have been undertaken, as Members have indicated, by the National Radiological Protection Board for several years, and the results have been published periodically. Over 15,000 results are available, and these provide substantial information on the distribution of radon levels in homes throughout Northern Ireland. This data forms the basis for the National Radiological Protection Board’s most recent advice to Government on the level of radon in homes.
On the basis of a comprehensive survey and report by the board in 1999, it was decided to include radon protection measures in the next update of building regulations. The survey report — which again some Members touched on — was based on five kilometre squares of the Irish grid, and it classified Northern Ireland into four area categories: first, areas where less than 1% of dwellings were above the level at which action is considered necessary to prevent possible damage to health; secondly, areas where 1% to 3% of dwellings were above the action level; thirdly, areas where 3% to 10% of dwellings were above the action level; and fourthly, areas where more than 10% were above the level.
The National Radiological Protection Board recommended that all areas with a risk above 1% should receive protection against radon. Identical recommendations were made by that board for England, Scotland and Wales. The Northern Ireland building regulations laid on 15 December 2000 — the subject of today’s prayer of annulment — require that all new dwellings in areas carrying a risk factor of above 1% should have protective measures at construction stage to prevent the ingress of radon.
A comparison with the rest of the United Kingdom, where regulations have now been introduced, shows that Scotland has adopted the same standard as is proposed for Northern Ireland. England and Wales — as Peter Weir mentioned — will introduce protective measures only in areas where 3% or more of dwellings are above the level at which action is necessary to prevent possible damage to health.
I have acknowledged the concerns expressed by the Finance and Personnel Committee — which have been reinforced by Members this afternoon — that the present building regulations exclude certain areas of Northern Ireland, primarily in County Antrim, parts of Armagh and Down and the Greater Belfast metropolitan area. Members were also anxious that the regulations excluded non-domestic properties such as schools and hospitals.
I have very carefully considered the strong representations made, and I am persuaded that it would be appropriate to take a fresh look at the radon issue. An appropriate period should be allocated to further examine the arguments, such as those that have been suggested today, for a change of policy. That is only proper, so that the views of others, including the construction industry — as mentioned by Peter Robinson — health practitioners and the public can be sought in a proper consultation exercise. I have also indicated to the Finance and Personnel Committee, through Mr Leslie, that I am happy to formally refer the issue to the Committee for its advice. That would also allow a full investigation through that channel.
It was also suggested that allowing a wider consultation on proposals to extend the effect of the regulations would not be beneficial. Seamus Close suggested, on the basis of previous consultations, that nothing new could be gained from a wider consultation. The previous consultation had the proposals that are currently in the regulations as its favoured option. That may have coloured the response rate to the consultation — not least when one looks at what local councils replied to the previous consultation. It is possible that some people in some areas did not see their status or circumstances being changing by the recommended option, so they did not make a response.
Given that the Assembly is talking about a different proposal, it should subject it to specific consultation. The Assembly is not just talking in any new consultation about extending the protection for dwellings to the whole of Northern Ireland but, as the Committee requested, also considering non-domestic properties. The nature of that proposal would be different, and the span of interest in it could be different. Therefore it must be recognised that there is a need for further consultation. If this proposal has the merit and worth that Members attach to it then it is worthy of having the same proper consultation that the measures in the regulations to date have had.
Some Members recognised that during consultation on the regulations not everyone was of the view that not extending the protection to the whole of Northern Ireland was a problem. Some people would feel that where there is no real evidence to suggest a risk, there would be no particular requirement to extend a protection. That view may well express itself again in a further proposal or consultation. We also need to remember that there are other interests at Government level that would need to be reflected in any wider consideration.
(Mr Deputy Speaker [Sir John Gorman] in the Chair)
Some Departments have particular interests in the areas of non-domestic properties. The Housing Division of the Department for Social Development would have an interest. It previously gave a view supporting the approach currently being provided for in the regulations. Therefore any proposal to look at things differently would interest the Department for Social Development.
Mr Shannon mentioned that the Department of the Environment provides a free test service for houses in designated areas. That Department would be interested in the implications of the whole of Northern Ireland effectively becoming a designated area. Therefore within government, there would need to be some further consultation and consideration of these proposals.
I feel that I am dealing fairly and sensitively with the Committee’s concerns, while reflecting that there are no shortcut answers. These measures need to be subject to the full and proper consultation that people would expect in relation to any other regulations. I hope that in such circumstances the motion for annulment of the Building Regulations 2000 will be withdrawn.
When the Committee discussed the matter on 30 January, members were anxious to ensure that other provisions in the regulations, such as access for the disabled, should be introduced without delay. We must remember that those provisions fulfil certain requirements under disability discrimination legislation. They would be safeguarded in the event of annulment proceedings being dropped.
By allowing the building regulations to stand with effect from 1 April 2001, approximately 50% of the Northern Ireland area would have radon protection measures in place. If the regulations were to be annulled that would not be the case.
Mr Close said that no assurance would satisfy him. He made the point after he had, in very strong and fair terms, stressed the importance of the health risk of radon and talked about the number of deaths per year. If we annul the regulations we will, in effect, delay protection for the areas in which it is most obviously needed. Therefore the urgency and importance that Mr Close attaches to this matter would not be best served by annulling the regulations. In fact, it would be quite a perverse way of trying to accommodate or reflect that urgency. Surely it makes more sense to take the current regulations, affording the added protection that they require and then, in turn, building on that through the consideration of the measures that the Committee is now asking us to consider. Let us remember that the motion is not only concerned with the protection against radon, but with other measures such as safety.
Some measures deal with windows and glass and others with fire safety, including battery power back-up for hardware; smoke alarms; and safe exits. I thought people would want to see this sort of safety measure progress, but an annulment mechanism will stop all of those key safety measures and safety improvements. As I have said, the regulations say that dwellings must be accessible to people with disabilities. I thought that Members would want to see this key improvement implemented.
If we are to annul these regulations and recast new ones on the wider basis recommended by the Committee, a process of consultation will still be required which will involve examining all these measures again. Depending on the issues involved, this will probably make it a more protracted consultation than the focused process which is all that would be required for the specific, additional measures sought by the Committee.
Some Members have said that finance should not be an issue. This is not an issue of public finance; it is really a question of private finance. The burden will tend to pass to the end user despite the initial costs borne by the construction industry. Some responses to the previous consultation questioned the appropriateness of provisions such as disabled access, for instance, and suggested that their cost would be burdensome. If today’s proceedings were to fall in favour of annulling these measures and consulting on the additional measures proposed by the Committee, the case would be reopened on all these matters with wider consultation on the entirety of the regulations.
I ask the House, and the Committee in particular, to have regard to the fact that people in the House and the Committee do not seem to have a particular problem with what is in the regulations. On the contrary, they have a very legitimate and soundly expressed problem with what is not — repeat: not — in the regulations. We should proceed with the contents of the existing regulations and then pursue what is left out through a timely and concentrated consultation exercise.
I must remind Members that these regulations will be subject to European approval as well. While I have undertaken to refer the matter formally to the Committee, it could take several months for Europe to respond. That is one of the reasons for my not pretending to be in absolute control of a specific timetable.
Mr Close mentioned that I had been asked by the Committee to give an assurance of one absolute outcome by a specific date and that I had resiled from giving that specific assurance. On the very good grounds that I have already outlined, I simply could not give that assurance. Other interests and factors are involved. However, I believe that we can approach this in a time-effective way.
I fully appreciate the points that have been made about the consultation process. In particular, I recognise that the Committee wants to be assured that on future occasions its role will be invoked in a much more significant way and at an earlier stage in the preparation of statutory rules. I assure the Committee and the House that this point is well taken.
I hope that I have made the necessary acknowledgements of the positions outlined by the Committee. I have addressed some of its concerns and dealt with the serious arguments commending provisions contained in the regulations. I hope that, on this basis, the Committee will feel able to withdraw its motion. If it does not feel able to do so, I hope that the Assembly will endorse a delay with these regulations and note that I have already committed myself to pursuing other areas of outstanding concern to the Committee.
James Leslie (UUP, North Antrim)
I thank Members for their contributions to the debate. I extend particular thanks to members of the Finance and Personnel Committee for having managed to act in concert, without having arranged to do so, and for assembling a fairly well thought out set of arguments which reflect the Committee’s concerns.
I am pleased that the Minister seems to accept the thrust of the Committee’s proposal in what I believe is a vital area of public safety, and I also note his undertaking in relation to pre-drafting scrutiny. I would have been more comfortable with the Minister’s remarks had he spent slightly less time talking about the extent of further consultation that is needed. However, I do believe this matter to be sufficiently worthy to merit it, and I appreciate that, if this regulation is laid, the process of consultation cannot start until the regulation comes into force in April. If it does start then, it will be possible to lay an amended regulation towards the end of the year, which could come into force by April 2002. Therefore, if it were to emerge from further consultation and consideration that it was deemed appropriate to designate the whole of Northern Ireland as a radon- affected area, it would be possible to make a regulation to that effect by next April.
I acknowledge the Minister’s remarks about the value of bringing the other matters covered by this regulation into force by the earlier date of April 2001. The Committee, throughout its deliberations, was entirely aware of the significance of achieving this.
In the light of the undertakings which the Minister has made to the Assembly, and having taken the temperature of the Committee members — for this involves our revisiting our earlier decision to move the motion — I think it appropriate for me to ask leave of the Assembly to withdraw the motion of annulment.
John Gorman (UUP, North Down)
Leave to withdraw requires unanimous consent. [Interruption] It is clear that there is not unanimity, so I shall put the Question.
Question put and negatived.
Adjourned at 5.45 pm.