Grand Committee Report of 13 February 2003

Official Report of the Northern Ireland Orders Grand Committee
Thursday, 13th February 2003.
The Committee met at twenty minutes before twelve of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
The Deputy Chairman of Committees (Lord Brougham and Vaux): Before the Minister moves that the first order be considered, it may be helpful to say a word about the procedure for today's Grand Committee. Our proceedings are essentially the same as those of the House. Noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be reported in Hansard.
As we are in Committee, Members may speak more than once on any Motion.
Since this is a new procedure, I should perhaps make it clear to noble Lords that this Committee is charged only to consider orders, not to approve or not approve them. The Motion to approve will be moved in the Chamber in the usual way.
The main difference between our proceedings and the proceedings on the Floor of the House is that the House has agreed that there shall be no Divisions in a Grand Committee. Any Motion on which agreement cannot be reached should be withdrawn.

Official Report of the Northern Ireland Orders Grand Committee

  Education and Libraries (Northern Ireland) Order 2003
  11.41 a.m.
  The Lord Privy Seal (Lord Williams of Mostyn): I beg to move that the Grand Committee do report to the House that it has considered the draft Education and Libraries (Northern Ireland) Order 2003.
  The main purpose of this order is to bring about an enabling provision to allow the department to introduce one common funding formula for the calculation of school budgets for all schools funded under local management of schools arrangements. A word of history: this legislation was introduced as a Bill in the Assembly on 24th June 2002. The Second Stage occurred on 2nd July 2002, and indeed the Committee stage had begun and the Education Committee had begun its evidence sessions.
  There are currently seven different LMS formulae in operation: one for each of the five Education and Library Boards; one for voluntary grammar schools; and one for grant maintained integrated schools. They have some common features, but there are differences in the factors and the values. That means—absurdly, Members of the Committee may think—that schools that are similar in size can receive quite different levels
  NI 32
  of resource simply because their budgets are calculated under different formulae. The make-up of the formula has not yet been agreed, but there is general agreement that a common formula should be put in place.
  It had originally been the hope to implement common formula funding from 1st April 2003, but there is not sufficient time. The current arrangements will therefore continue for a further year. The benefit of that is the provision of a further timescale for the notification of school budgets, facilitating further consultation with the education sector on the construction of the formula and enabling the department to work with Education and Library Boards on the better alignment of the mechanism.
  I turn, if I may, to the important provisions of the rest of the order. On a point that the noble Lord, Lord Glentoran, touched on yesterday, although in a different context, Articles 13 to 16 introduce a best value regime in respect of services provided by Education and Library Boards and repeals the existing tendering provisions of the Education and Libraries (Northern Ireland) Order 1993.
  There are a number of provisions that deal with the protection and welfare of children. Article 17, for instance, places a duty on the board of governors of all grant-aided schools—that is, schools receiving public funding—to safeguard and promote the welfare of registered pupils while in the care of the school. Article 18 places the duty on the governors to ensure that there is a child protection policy at their school rather than simply the good practice guidelines currently in place.
  Article 19 places a duty on all grant-aided schools to address the problem of bullying through their discipline policies. For the first time in Northern Ireland, there is a requirement for schools to consult with pupils in the development of their anti-bullying policies. I note from our discussion yesterday in the Chamber that that will be of particular interest to some Members of the Committee.
  Article 36 extends the abolition of the use of corporal punishment to independent schools—that is, schools which do not receive public funding. This change is required to ensure compliance with a judgement of the European Court of Human Rights, so that simply paying for one's child's education does not, now or in the future, give a warrant for hitting it.
  I am sure that Members of the Committee will agree that these are important steps. Although the main purpose, as I have sought to indicate, is the introduction of the single common funding formula, the other matters are of importance. I beg to move.
  Moved, that the Grand Committee do report to the House that it has considered the draft Education and Libraries (Northern Ireland) Order 2003.—(Lord Williams of Mostyn.)
  11.45 a. m.
  Lord Glentoran: I thank the noble and learned Lord for bringing this order into Grand Committee and giving us a chance to debate it. Only this morning, I had a short conversation with Danny Kennedy,

  NI 33
  chairman of the Education Committee and someone I have known over the years in Newry. As he said to me, the devil is in the detail.
  The noble and learned Lord said in his introduction that the formula, which is one of the main purposes of the order, has not yet been fully developed. I understand that. However, the Assembly, and I suspect Members of the Committee, need to beware of that as it could become contentious. According to the officials when they briefed me, it is pretty complicated. It must become transparent and be made available for consultation. The educationists must have an opportunity for input into it, for school management and so on.
  It is hoped that the order will become law by April 2004, which should give adequate time. However, Mr Kennedy suggested that it would be inappropriate to go out to consultation in May and June, for the obvious reasons of exam preparations and exams and the like, and then running into the July holidays. So consultation on this particularly complicated issue would not be welcome in May, June and July. I hope that that will be noted.
  Furthermore, as the matter is complicated and it is likely that the order will be passed later today, which rushes things, it is felt very important that there should be a safety net in relation to the procedures and that we should have a review procedure. I think, if I have read Hansard correctly, that the Minister in another place has agreed that there should in fact be a review procedure which kicks in after either the first year or second year, but certainly no later, to allow adjustments to be made where necessary. We hope to have a devolved Assembly operating and in a position to do that where necessary.
  There are two other issues. I am delighted to see bullying dealt with in the order. It has been a terrible problem in schools, I suspect ever since schools were started. I remember it being absolutely pertinent throughout my school career and my children's careers. I am sure that we have all had the same experience. Getting pupils involved, if it is possible, is an excellent innovation, and I hope that it works. I have always been anti-corporal punishment, ever since I was in a position of authority at school, at age 17, when I did my best to stop it in my own house at Eton. So I have been anti-corporal punishment for a very long time.
  The second issue is the removal of boards of governors. I understand, particularly as a result of my discussions with officials, the thinking of government on this measure. However, it is a pretty draconian measure. Although Jane Kennedy gave a pretty satisfactory answer when questioned on this matter in another place, I should like an absolute undertaking from the Government that this measure is intended to operate only in extremis.
  With those few comments, I am very happy to support the order.
  Lord Maginnis of Drumglass: The Ulster Unionist Party welcomes the chance to consider this order in
  NI 34
  Committee. However, I have serious concerns about the impact that the common funding formula will have on schools. Clearly there is a real problem of underachievement in a minority of our schools, especially among young males. Further research is required to tackle this problem, and to justify the present funding levels, before any additional allocations are considered. Certainly the current system of using the incidence of free school meals as a basis for allocating funding is entirely unsuitable. Rather, funding allocations, if they are to be truly targeted at the greatest need, should be based on objective measurements including key stage results.
  Our primary schools are also facing funding problems. The current level of under-funding of the primary sector will have far-reaching effects as children move through the education system and should not be allowed to continue. We need to look again, in some detail, at the balance of funding between the primary and secondary sectors in Northern Ireland. Any planned funding increase for the integrated and Irish medium sectors should not be at the expense of other school sectors. Spending should be equitable.
  Further detailed consideration of the formula is required to reflect the natural progression of teachers towards the top of the salary scale, while still leaving schools the freedom to take staffing decisions within their delegated budgets. More guidance should be made available to school governors to assist them in determining appropriate individual salary ranges for principals and vice-principals and salary levels within those structures.
  The noble Lord, Lord Glentoran, has already spoken on this topic. I simply add that the formula proposes to give the department power to remove members of boards of governors in order to address school management weaknesses. Can the noble and learned Lord reassure us that this power will not be misused and would be exercised by the department only as a last resort—after all other practical alternatives have been exhausted?
  There is also a need to refine the way in which money is allocated for the upkeep of buildings under the formula. The formula must reflect that old buildings are much more expensive to maintain than purpose-built newer ones.
  In order to guarantee and maintain openness and transparency, the schools common formula should be reviewed annually or biannually. It is important that such a review mechanism exists in order to re-evaluate the scheme and its value for public money. We await with interest the speedy publication of the scheme and hope that the department will allow an adequate period for open, transparent and inclusive consultation. There are a number of issues under the common funding formula which need to be given particular consideration.
  Lord Molyneaux of Killead: My intervention is in the nature of a question regarding article 22. In the absence of an Explanatory Memorandum, it was not clear what constituted "special schools". Subsequently,

  NI 35
  an Explanatory Memorandum has mysteriously arrived, and I have studied it in the short time available. However, I am still not entirely clear on precisely what constitutes a special school.
  Until the mid-1980s, there was a comprehensive structure known as the special care hoards, of which there were three in Northern Ireland. The Muckamore Abbey board was responsible for special schools and for teacher training for those schools. It was responsible also for very sophisticated training in skills such as carpentry and in many other aspects of building. I had the privilege of being vice-chairman of that board, which covered County Antrim, County Down and all of Belfast. We had somewhere in the region of 9,000 patients/pupils under our care.
  My only point is this. As vice-chairman of the hoard, I was personally responsible for linkage with our counterparts in Dublin. Occasionally they had spare capacity in terms of accommodation; occasionally we had something to spare. There was an informal exchange of pupils and even of teachers. The only friction between us was the hard bargaining over costs and general finance. It could be considered a worthy example of what is possible when party politics, north and south, are excluded. I should like to think that that has not been obliterated entirely by the present order.
  Lord Brooke of Sutton Mandeville: I shall be very brief. I am following substantially in the footsteps of my noble friend Lord Glentoran and the two Members of the Committee who spoke on behalf of the Ulster Unionists.
  I refer briefly to Article 22. The Select Committee in another place did a report on children with special educational needs and the development of policy in that sphere. I do not recall the particular issue covered in Article 22 as being part of our report or an issue that we considered, but I am delighted to see movement on that front. I do not need any comment on that observation.
  On the larger issue, which constitutes the main thrust of the order, I should like to have a brief word about paragraph 6 in the Explanatory Memorandum, which describes the views of the Northern Ireland Assembly Education Committee during the unfinished Committee stage, and the reaction to those views as expressed in the order. This observation is partly borne of personal experience in another and, I freely admit, unrelated condition.
  The department argues that it would be impracticable to give a formal approval role to the Assembly in approving whatever arrangements are finally reached. I served for four years on the Budget Committee of the European Union—as it then was not—and on two occasions had to negotiate on behalf of the presidency with the European Parliament in terms of its work on the budget. What the European Parliament did was to take matters absolutely up to the last ecu, so that it had totally filled the amount that could be put in the budget under the rules. There were occasions when the Council of Ministers disagreed with the Parliament, for whatever reason.
  NI 36
  The manner in which those negotiations were conducted was such that there really was no way in which the Parliament could unscramble the arrangements. It had used up every single ecu, and for understandable political reasons it had no organised priorities in terms of the items that it would have to take out if that were required. We therefore found ourselves permanently in a stalemate in the closing stages of the budget negotiations.
  That case is not dissimilar to this one. The formula in this case is so complicated that, changing whatever the Northern Ireland equivalent of an ecu is, one basically has to revise the whole system. However, as that cannot be done, it is not right to give the Assembly the final say. I understand that, just as I understood the stalemate which we had with the European Parliament.
  This is my question. The last few sentences of paragraph 6 state:
  "The formula will be subject to detailed consultation and will be fully discussed with education partner bodies before implementation as will any proposed changes post operation. It is anticipated that if the Assembly returns, the Department will seek to ensure that the Assembly's views will be considered in the calculation of the Common Formula Funding Scheme".
  In so far as we are a pale simulacrum of the Assembly in scrutinising these orders, I should like a slightly clearer idea of how that would actually be done in terms of the Assembly being able not only to give its views, but perhaps also—although it does not have the final say—to give a verdict on the solution that the department has reached.
  Lord Williams of Mostyn: I am grateful for those contributions. Perhaps I may deal with the questions separately. The noble Lord, Lord Molyneaux, asked for the definition of "special schools". I am happy to give it. They are schools which cater solely for children with special educational needs. They are defined in legislation and are designated by the Education and Library Boards.
  The noble Lords, Lord Glentoran and Lord Maginnis, both asked pointed questions about the removal of governors. I am able, and happy, to confirm that we expect the power to be used only in exceptional circumstances. If, for example, a school fails to provide an adequate education for the children and the department is of the view that the whole board of governors—either because it has done things or, more often, has failed to do things—is contributing to that failure in whole or in part, it would have to consider the matter very carefully.
  To reassure both noble Lords, I believe it is helpful if I say that the order provides for regulations to prescribe the general and foreseeable circumstances in which the power may be used. Consultation on the regulations will take place with schools and school authorities. I believe that that should meet the concerns expressed by both noble Lords. It is intended that the provision will be used only in limited and extreme circumstances.
  I am grateful for the courtesy shown by the noble Lord, Lord Glentoran, in giving me notice of certain matters so that I can serve the Committee more

  NI 37
  usefully. Over the next few months, officials will hold meetings with Education and Library Boards and other representative bodies to finalise the common funding scheme. There will then be a round of consultation with schools, as required under the present legislation—the Education Reform (Northern Ireland) Order 1989—and this proposed legislation. We hope to complete that as soon as practicable. Officials have taken on board that May, June and July need to be either avoided or approached with discretion.
  The noble Lord, Lord Glentoran, also made the valid point that one needs to keep these schemes under continuing review. Continuing review will take place. We would expect the schemes to be refined over the next few years in the light of practical experience. I can assure your Lordships that each year any changes will be discussed fully with the representative bodies. Irish-medium schools require a different approach because significant additional costs are attached to their running.
  The noble Lord, Lord Maginnis, raised the subject, which certainly chimed with me, of why some children under-achieve. Oddly, that was a curious feature of a discussion that I had yesterday in the context of large cities in England. For example, children from different parts of the sub-continent of India can have completely different achievement patterns. Therefore, it is a difficult subject. When considering the matter of free school meals, one of the key indicators is that those from socially and economically disadvantaged backgrounds are more likely to under-achieve. They often lack the motivation to learn and have attendance and behavioural problems. Therefore, that is an indicator, although it should not be the only determinative one. These are subtle and difficult areas of research. I agree with the noble Lord that the more research carried out on the matter, the better.
  I was very pleased to hear the robust views of the noble Lord, Lord Glentoran, on corporal punishment. I was caned only once and it annoyed me even more because the caner was my father, who was the head teacher. I still believe that he was wrong.
  The noble Lord, Lord Maginnis, also made the point, which certainly chimes with my experience, that one needs to consider the age and type of the school building. We shall develop a database relating to the school's estate. When that has been developed, we shall have further consultation on the lines that he indicated. I am grateful for the very helpful observations that have been made.
  On Question, Motion agreed to.

  Planning (Amendment) (Northern Ireland) Order 2003
  12.4 p.m.
  Lord Williams of Mostyn: I beg to move that the Grand Committee do report to the House that it has considered the draft Planning (Amendment) (Northern Ireland) Order 2003.
  NI 38
  This order will introduce provisions broadly in line with those already in force in Great Britain by virtue of the Planning and Compensation Act 1991. The draft order combines proposals previously before the Assembly in the Planning (Amendment) Bill and the Strategic Planning Bill. It includes an amendment to the Planning (Northern Ireland) Order 1991, which the Department for Social Development requested following the suspension of the Assembly. The Planning (Amendment) Bill and the Strategic Planning Bill were both at Committee stage when the Assembly was suspended.
  In respect of the Planning (Amendment) Bill, the Assembly Committee had published an interim report and had recommended some changes. Those were accepted in principle by the former administration. The Government have decided to include three of the six recommendations: first, provision for a stop notice to come into effect immediately unless the Department of the Environment specifies a later date; secondly, provision for district councils to have a statutory consultative role when the Department of the Environment is drawing up, modifying, varying or discharging a planning agreement; and, thirdly, a further increase in the maximum level of fine from the £20,000 proposed to £30,000. There were other recommendations of which the Government were not convinced.
  Articles 3 to 17 introduce new enforcement powers and make other changes relating to the existing enforcement powers. Article 18 is an amendment to make clear that all demolition should come within the meaning of "development" in the planning context. Articles 19 to 23 make some minor changes to controls over development. Article 24 introduces building preservation notices for the temporary listing of buildings, commonly referred to as "spot-listing". From my reading of newspapers in Northern Ireland, I know that that is particularly controversial at present.
  Articles 26 and 16 provide a major overhaul of the Department of the Environment's powers in respect of the protection of trees and tree preservation orders (TP0s). Articles 27 to 29 amend the Planning (Northern Ireland) Order 1991 and assist the Department of the Environment and the Department for Social Development in carrying out their statutory functions in the context of regional development strategy. Articles 30 to 37 make some miscellaneous amendments to the Planning (Northern Ireland) Order 1991. They also amend the Home Loss Payments (Northern Ireland) Order 1992. They enable the Department for Social Development to enter into development agreements where it intends to acquire land and has initiated the requisite statutory process.
  Finally, I did not reply to a question put by the noble Lord, Lord Brooke. The quality of my handwriting is so poor that I did him an inadvertent discourtesy. If I may, I shall write to him. I did not want to let that pass. I apologise to the noble Lord. I commend the order to the Committee.

  NI 39
  Moved, That the Grand Committee do report to the House that it has considered the draft Planning (Amendment) (Northern Ireland) Order 2003.—(Lord Williams of Mostyn.)
  Lord Brooke of Sutton Mandeville: It may make matters easier for the noble and learned Lord if I explain that I was asking a hypothetical question. As the Assembly is not meeting, perhaps it is not within our power to say what the Assembly would do. But I still retain an interest in the question.
  Lord Glentoran: Those of us who have lived and worked in Northern Ireland for a long time, including officials, know that over the past 25 or 30 years one of the worst situations and biggest impediments to development and a smooth-flowing economy in Northern Ireland has been the state and administration of planning departments. I sincerely hope that matters will change.
  However, my observation is that one of the main reasons for such a situation is that planning departments have been grossly under-funded, understaffed and under-resourced. If a sophisticated planning authority is to be on top of its job, it must be able to deal with planning permissions in a short space of time and not take two and a half years or so, as was the case with a certain development for Sainsburys. That company has now pulled out of the project because it is simply not relevant any more, and the result has been a loss of jobs. Therefore, we must ensure that, by the time the order becomes law, planning in Northern Ireland is adequately funded, adequately staffed and adequately resourced. I sincerely hope that the order will achieve that.
  I also make a plea to the noble and learned Lord to speak to his friends in the judiciary. The order strengthens the department's hand in relation to enforcement. It allows for imprisonment under certain circumstances; it increases fines under certain circumstances; and it also allows for serious stop procedures under certain circumstances.
  However—I shall be very naughty here—my information, based on briefing, is that the department feels seriously unsupported on these matters by the magistrates and the judiciary in the Province. I make a plea to those in authority. We now have a new criminal justice regime in Northern Ireland. Now is the time for that regime to ensure that daily life improves and that the world becomes a better place for those with an interest in the development of the Province. I speak from a preservation point of view, and from a commercial and functional point of view and, as we discussed yesterday, from the point of view of housing development.
  That said, in a press release at the launch of this legislation, Angela Smith referred to "tough new planning laws", including spot-listing. Speaking for the Government, she said:
  "Importantly, the Order will enhance DOE's planning enforcement powers and will enable enforcement action to be taken more quickly and more effectively".
  NI 40
  I sincerely hope that she is as good as her word. I suspect that she will have the support of 99 per cent of the people in Northern Ireland.
  There is one area that I do not fully understand in relation to paragraph 5 of the Explanatory Memorandum. It appears that the Assembly committee wanted to make an amendment to the order but it was not included. Apparently:
  "The Department for Social Development sought agreement to include in the draft Planning (Amendment) (Northern Ireland) Order 2003 an amendment to Part VII of the Planning (Northern Ireland) Order 1991, which would enable that Department to enter into development agreements where it intends to acquire land in connection with a development scheme, or in the interests of the proper planning of an area",
  and so on. Can we have an explanation of the Government's thinking in leaving that out of the order?
  I turn to Annexes A and B of the same document. Annex B lists the three recommendations of the Environment Committee which were left out of the legislation. With regard to my opening words, I certainly regret that recommendation tin) was omitted. Why should there not be an offence of commencing development? I know that there are arguments concerning when one does and does not commence development. However, in my experience it is common for developers in Northern Ireland to start down a road without any planning permission—or virtually none. They get well into a project before obtaining retrospective planning permission. In so doing, they go round corners. I know by name—I shall not mention them, even in Parliament—people who have made a profession out of this. Therefore, I should welcome some explanation on the point. I am sorry that I did not give the noble and learned Lord notice of those questions. Other than that, I support the order.
  Lord Smith of Clifton: We on these Benches also support the order. I take seriously many of the remarks made by the noble Lord, Lord Glentoran. From my experience, planning in Northern Ireland is not easily understood.
  I want to ask two questions. I apologise for not giving the noble and learned Lord advance notice; however, given the spate of orders that we have dealt with this week, I got round to studying this one only last night. My questions concern trees. First, what is the definition of a "woodland" protected by a tree preservation order? Will the protection extend to include not only the trees but also the ground flora within the boundaries of the wood? The noble and learned Lord may wish to write to me about that.
  Secondly, proposed new Article 65B in Article 26 provides for the replacement of trees covered by a tree preservation order at the same place. However, in respect of woodland it states that it will,
  "be sufficient for the purposes of this Article to replace the trees …

  (a) on or near the land on which the trees removed … stood;
  or

  (b) on such other land as may be agreed between the Department and the owner of the land".

  NI 41
  My understanding of the article is that if an ancient woodland covered by a TPO were removed, in some instances the department might agree to the replanting of trees on another site in the locality. That would clearly not be an adequate compensation for the loss of an irreplaceable habitat and suggests that new woodland is of equal value to ancient woodland, which is clearly not the case. It is also an inconsistency in that any tree that is removed must be replaced with a tree in the same place. It seems strange that that does not apply to woodland as well.
  Finally, we must be aware—this touches on the points raised by the noble Lord, Lord Glentoran—that strengthening legislation alone will not in itself provide the protection that is needed for trees and woodland. We must also ensure that resources are in place to guarantee a proactive approach by officials in enforcing the legislation. Apart from those observations, we support the order.
  12.15 p.m.
  Lord Maginnis of Drumglass: I welcome the order, yet stress from the outset that I regard it merely as a first step on the road to improving the planning system in Northern Ireland. The Ulster Unionist Party believes that much more work is required to give Northern Ireland the planning system that it needs. As the noble Lord, Lord Glentoran, said in relation to another order, the devil is very much in the detail.
  The planning process in Northern Ireland has long been a source of discontent. It is plagued by inconsistency and intolerable delays and suffers from widespread public dissatisfaction. The past year has seen a number of high-profile cases in Northern Ireland. Some cases that have evoked considerable anger include the demolition of the poet Seamus Heaney's former home in Ashleigh Avenue in south Belfast, the flattening of the listed Tilly and Henderson shirt factory in Derry City and the destruction in east Belfast of Redhall, which has connections with the author C S Lewis. I do not want to appear to be a philistine but I should be the first to acknowledge that the links between some of those authors and some of the buildings are tenuous. I do not underpin the criticism in all of those cases. However, the fact that there is public dissatisfaction should be considered.
  Whatever the merits of those cases, such decisions clearly contribute to the already widespread public disquiet about planning policy. I trust that the new legislation before us will go some way towards restoring public confidence in the entire planning system.
  I welcome the further increase in the maximum level of fine that can be imposed by a magistrates' court for breaches of an enforcement notice, a tree preservation order, a stop notice, a listed buildings enforcement notice or a hazardous substances contravention notice. I hope that the increase from £20,000 to £30,000 will go some way towards encouraging those who infringe to think again. However, while that may inhibit the ordinary individual, I cannot believe that it
  NI 42
  will sufficiently constrain someone who is engaged in a multi-million pound development. With a development of £250,000, one would add 12.5 per cent if one imposed the maximum fine. With a development costing £3 million, one would add only I per cent. So there is a potential inequity. I do not expect the noble and learned Lord to come up with a solution, but perhaps he will consider the point at some stage.
  The order omits one very important provision proposed by the Assembly's Environment Committee; namely, the creation of a new offence to deal with the commencement of a development before planning permission has been granted. The matter was referred to by the noble Lord, Lord Glentoran.
  This applies mainly to larger developments, which seem to be able to drive a coach and horses through the present system. By criminalising major planning offences, one could effectively deter those developers who flagrantly and carelessly abuse the law and get away with it. Will the noble and learned Lord the Lord Privy Seal outline his reasons for watering down this part of the order?
  Perhaps I may take this opportunity to ask the Minister to ensure that applications by farming communities to provide accommodation for their sons and daughters on the farm are viewed sympathetically. The farming sector has suffered greatly in recent years. Farming practices are being forced into change, with many farmers being forced into a part-time mode. As a result, they increasingly rely on sons and daughters to help to oversee the daily work on the farm.
  I urge the Department for Environment, Food and Rural Affairs, and particularly the Planning Service, to liaise more closely with their counterparts in the Department of Agriculture actively to assist farming communities. To fail to do so will ultimately undermine and endanger the whole rural tradition. Environmentally, that would be much more damaging than allowing controlled development, which in itself will help to preserve our traditional family ethos and may help to slow down the steady exodus from the west of the Province to the east, with all the difficulties that that creates for society.
  I make no apology for reiterating the remarks of the noble Lord, Lord Smith—whom I suspect has been briefed by Patrick Cregg, who is head of the Woodland Trust in Northern Ireland—on an issue dear to my heart. Will the Minister define what is meant by a,
  "woodland protected by a Tree Preservation Order"?
  Will the protection extend not only to the trees but also to the flora and fauna within the boundaries of the wood?
  I welcome the provision for the replacement—in broadly the same general area—of trees covered by a tree protection order. Why, however, is a distinction made between "trees" and "woodland"? There is a requirement that these should be replaced "on or near" land from which they are removed, or—this is the crucial point raised by the noble Lord, Lord Smith—"on other land" approved by the department. What provisions are in place for the protection of the surrounding habitat? I urge the Minister to ensure that

  NI 43
  adequate resources are in place to guarantee that a protective approach is the foremost consideration of planning officials.
  More work is required to improve existing processes and to change the overall planning culture. Besides introducing new legislation, we need to make better use of existing legislation. This order must, therefore, be seen as the first stage of a comprehensive overhaul of the entire planning system.
  Lord Glentoran: I do not wish to dissent from the points made by the noble Lord, Lord Maginnis. However, perhaps I may comment on his plea for the sons and daughters of farmers to be able to build cottages. If they genuinely intend to continue to work on the farm, I support the idea. But that has led to a proliferation of the most appalling scattered dwellings all across County Antrim. I do not know County Tyrone so well as I do not visit it frequently, but the system has been badly abused in the area in which I live.
  As a farmer myself, I have a great deal of respect for farmers and an understanding of the problems that they are experiencing. However, I am not sure how such a plea in respect of farmers' relatives will fix in with this order. If such a reference is included in the order, it is important to tie the matter up tightly so that the proliferation of small houses in the middle of green fields all across the country does not continue. It is unsightly; it does not help farming; and it makes it extremely costly for local authorities to service the dwellings. I support the main thrust of the comments by the noble Lord, Lord Maginnis, that farmers must be helped to encourage their sons and daughters to remain in the countryside and run the farms.
  I take a slightly similar approach to tree preservation. I have experience of it in this country. It should not mean that trees cannot be cut down. If trees are not cut down, in time they fall down. What is necessary is to preserve woodlands and to ensure that, when trees reach the stage where they need to be removed, their removal is allowed provided that they are replaced. In this country, since the major storms of the past decade, huge acres of woodland have been destroyed. A great deal of that land has been replanted and will bring back the woodlands and wildlife that existed there previously.
  In Northern Ireland, even beeches and hardwoods do not live very long. I see that with the trees around my own home. They have reached the stage where, every time there is a storm, one, or a part of one, comes down. It is necessary for the Department of the Environment, to pay attention to this matter and to ensure that plantations are replanted.
  Lord Maginnis of Drumglass: I do not wish to extend the debate much further. I appreciate the intervention of the noble Lord, Lord Glentoran. I merely regret that his visits to County Tyrone are so few. I hope that the noble and learned Lord the Lord Privy Seal will understand that County Antrim is to the east of the area where the people of County Tyrone are forced, for economic reasons, to migrate. That is part of the
  NI 44
  reason for the pressure in terms of planning for new dwellings. People moving from west to east obviously want to try to maintain something of their rural heritage. Therefore, although only some 60 miles separates the two areas, the situation is somewhat different.
  There is no reason why a system could not be devised whereby ugly and unsightly houses are not built in the middle of green fields but families can maintain a noble tradition—that of mutual support, where the older members of a family can rely on having their sons or daughters close to them as they approach old age. In that, I do not differ from the noble Lord, Lord Glentoran; but neither would I want his caveat to undermine my point about the needs of the rural community in places such as Tyrone and Fermanagh.
  As regards woodlands, I ask only that woodland is not viewed in isolation from the associated flora and fauna and the impact on water supplies. I assure the Committee that we do not have a huge problem with water supply in Northern Ireland! But woodlands and water supply are now becoming increasingly linked in terms of planning for the future. I hope that there will be an awareness in that particular area. I am grateful to the Committee.
  12.30 p.m.
  Lord Brooke of Sutton Mandeville: The noble Lord, Lord Dubs, and I have been engaged in a silent exchange as to which of us would speak first. The noble Lord has been very gracious. I declare an interest in trees. I was particularly glad that the subject was introduced by the noble Lord, Lord Smith. It has always struck me as a happy antithesis, in terms of 19th century political history, that Gladstone, who took a great interest in the affairs of the island of Ireland, spent his life cutting trees down, whereas Disraeli spent his time planting them. That seems to me to be an index of the nature of those two great parties.
  Lord Dubs: Answer that!
  Lord Brooke of Sutton Mandeville: There was a period in Northern Ireland when, because of the state of the economy, planning laws, particularly in terms of building in the countryside, were largely disbanded in order to make sure that economic activity was occurring. There are people who are connoisseurs of ministerial speeches at dinners within this city as to which part of the speech has been written by the department and which has been added by the Minister in the car on the way there. As I drove round Northern Ireland I used to keep an eye open to decide which houses had been built without planning permission during that period of economic encouragement and which had been built properly.
  The National House-Building Council for the United Kingdom says that there is no question that the best quality houses are built in Northern Ireland and that the standard of the work is high. Nevertheless, there is no doubt—the matter has been debated seriatim since it was originally raised—that the countryside fares worst in terms of what might be termed spot building.

  NI 45
  I hesitate to make any observations on spot listing—I am not totally up to date with the controversies in Northern Ireland—but I have believed strongly in the principle ever since the late Lord Rippon saved Covent Garden by the nature of the decisions he took, upon an instant, to spot list a whole series of buildings there, thus preventing its large-scale demolition under the plans of the local authorities.
  Underlying my remarks about building in the countryside without planning permission was my strong approval of the basic principles of this order—which I am happy to support. Likewise, I, too, regret the fact that the third amendment proposed by the committee of the Assembly was not pursued. I do not know the reasons, but the Lord Privy Seal will tell us shortly. In my experience, it is not only the operations of large developers that cause distress—although, even today, the decision of the Firestone company to destroy its factory on the Great West Road when spot listing was about to occur still rankles among conservationists, so great a building was that art deco building. Irritation occurs in regard to small-scale schemes and relatively modest changes. That is certainly the case in inner-city areas, where, for example, your next door neighbour cheerfully goes ahead without planning permission and seeks to have the changes endorsed afterwards; and yet you, the local householder, have had no opportunity to express your views on the scheme. However, I approve of the basic thrust of the order.
  Lord Dubs: This is an important piece of legislation. If it were primary legislation, we should spend several weeks on it. In default of doing so, I welcome this procedure, which gives us a better chance of engaging with the issues than we could have secured under the old way on the Floor of the House.
  I should admit that for some two and a half years after the 1997 election I was in charge of planning matters in Northern Ireland. I shall resist the temptation of making an interminably long speech. I am full of views about almost everything in the provisions.
  Lord Glentoran: Guilt.
  Lord Dubs: The noble Lord says, "Guilt". No, not guilt, except where I failed to save some listed buildings. I shall come to that shortly.
  I pay tribute to the Planning Service, under-resourced as it is; it does a pretty good job in view of all the difficulties and pressures on it and its lack of resources. That should be said in light of the criticisms that several Members of the Committee have implicitly made.
  What do we expect of a planning system? There are at least four things that we expect: it should be sensitive to the needs of the economy, which should be able to flourish and develop—the system should not hold back economic development; it follows that we want reasonably quick decisions—long and protracted decisions are not helpful or healthy; we also want to
  NI 46
  ensure that planning provisions are toughly and robustly enforced; and the whole system should show some respect for the built environment.
  Sadly, there are not that many outstanding buildings in Northern Ireland. It is therefore even more important that the planning system should be robust enough to preserve those that there are.
  In my experience—perhaps things have changed in the recent past—the built heritage is not sufficiently respected by the people of Northern Ireland. There is what I call a bulldozer mentality—"Let's get this out of the way and put up something new in its place". Vernacular buildings and even the countryside are neglected because of the pressure to build new bungalows. It is rather sad that some of the finest buildings in Northern Ireland are not being preserved. When a fine building is pulled down—this is so obvious that it hardly needs stating—it has gone for eternity, and there is nothing that one can do about that. That is why it is important that the buildings that have merit should be protected and that only in the most exceptional cases should they be allowed to be pulled down.
  I take the point made by the noble Lord, Lord Glentoran, about developments in the countryside. As the noble Lord, Lord Maginnis, said, that is always a matter of contention. However, I recall—I speak from memory—that more than 80 per cent of planning applications for building on farms and so on were agreed. I kept pointing out to district councillors that one hears only about the applications that were turned down. We should bear in mind that the system grants many—probably too many—applications. The granting of planning permission should depend on the needs of farmers and whether essential members of their family want to work on the farm. The danger is that the farmer gets permission and sells the building; another part of the countryside therefore has a building on it but it lacks a relationship with the farm for which it was originally intended. The Planning Service must be careful. I have sympathy with the views of the noble Lord, Lord Glentoran.
  There are dreadful examples in the Republic of what happens when buildings are allowed to be developed all over the place. About a year and a half ago. I visited Donegal. I found that one of the most wonderful landscapes in Europe, at Bloody Foreland, was absolutely pepperpotted with buildings—they were all over the place. One of the best landscapes in western Europe has been ruined. Lest someone believe that I am attacking the system in the Republic, which is not the subject of our debate today, I stress that I have made that point to every politician from the Republic whom I have met, and they all agree that the system failed completely. The lesson for us is that we must not allow the system to fail us in Northern Ireland. I am really seeking some assurances about the way in which the provisions will work. I shall concentrate on that. I welcome the increased penalties for pulling down listed buildings. I am not a lawyer, but I note that there is to be a fine of £30,000 or six months' imprisonment on summary conviction or a limitless fine and two years' imprisonment on indictment. When a listed building is

  NI 47
  pulled down without consent, will the department be sufficiently robust in seeking a penalty of the right order? The proposal is that it will, but I would like to be assured of that. It is all too easy for a developer to pull down the listed building, pay the fine and make a profit 10 or 20 times larger than the fine. That has happened, and I shall give examples in a moment.
  The profits for developers in getting rid of a listed building are high. Some examples have already been given. The case that shocked me most, when I was in Northern Ireland, was the pulling down of listed buildings in Ogle Street in Armagh. As far as I know, the penalty was £5,000, and the developer made hundreds of thousands of pounds of profit. He got off scot-free. That was a tiny penalty in comparison with the benefit that he got. There are other examples: the Tilly and Henderson factory, Redhall, 9 to 11 Bangor Road in Holywood and 1 to 7 Malone Place in Belfast. All those buildings were pulled down when they should not have been.
  Apart from the buildings that I have mentioned, there are others under threat, which is, perhaps, more relevant at the moment. They include 1 and 2 Corry Square in Newry, Limavady Town Hall, Olderfleet Hotel in Larne, 16 Upper Crescent in Belfast, 2 to 4 Market Square in Dromore and the Chapel of the Resurrection in north Belfast. I understand that all those buildings are under threat, and I hope that the department will deal robustly with those threats. They are all fine buildings, and it would be better for Northern Ireland and its built heritage if they could be retained.
  There are also buildings that are not listed but are in conservation areas. It is not clear how the new provisions will apply. Are buildings in conservation areas as well protected as listed buildings? If not, what protection is there for such buildings? Pulling down such a building leaves a gap, and the concept of the conservation area can be weakened.
  I note that the penalties for breaching planning controls are fairly small. There is a fine at level 3, which represents a fine of £1,000. That is a small sum in the context of a commercial development, although it may be a significant sum for the owner of a small house. It depends on how it is applied. The maximum seems low, and I share the concern that there has been no new offence created of commencing development without planning permission. I agree with the comment made by the noble Lord, Lord Brooke of Sutton Mandeville. We have all seen such things happen in Britain, and they are not desirable. Allowing people to evade planning controls creates an incentive for everybody to do so.
  I must make a plea for better co-ordination between those responsible for planning decisions and the Department of Culture, Arts and Leisure. That department ought to have some standing in consideration of such matters and should be involved before any decisions are made about listed buildings, in particular.
  Having said all that, I am sure that there are some good proposals in the order. I merely seek an assurance that excellent parts of the built heritage in Northern Ireland will be properly protected.
  12.45 p.m.
  Lord Williams of Mostyn: I am grateful to the Committee for those observations. The issue is of great importance to those who live in Northern Ireland, and that is reflected in your Lordships' remarks.
  I share the anger expressed by the noble Lord, Lord Brooke of Sutton Mandeville, about the demolition of the Firestone art deco building. Fortunately, the Tesco building is still there. Even illuminated on a dank Sunday evening, it is a triumph of the art deco style. The problem with the Firestone building was that it had not been spot-listed and was demolished over a weekend before the department could list it on the following Monday. I shall not name the developer, but his name will live in odium for some time.
  I shall deal with some of the weapons in the armoury, an issue raised by the noble Lord, Lord Maginnis of Drumglass, and others. There is an important weapon contained in Article 5, which provides a useful power. It says:
  "Where the Department considers it necessary or expedient for—

  (a) any actual or apprehended breach of planning control;

  (b) any actual or apprehended contravention of Articles 44(1) or (5), 66 or 66A; or

  (c) any actual or apprehended contravention of hazardous substances control … it may apply to the court for an injunction".

  Had the Firestone building been listed, an immediate injunction on the emergency application might have brought about the desired outcome. That deals in part with the level of penalty. I shall develop that theme in a moment.
  The noble Lords, Lord Glentoran, Lord Maginnis of Drumglass and Lord Dubs, spoke about those living in farming communities. I sympathise with the thrust of what the noble Lord, Lord Maginnis of Drumglass, said. It will always be difficult to strike a balance between the social and cultural interest to which the noble Lord referred and the adverse consequences to which the noble Lord, Lord Glentoran, referred. In England and Wales, we are all familiar with an application to build for agricultural purposes a house that is then sold on. That is an abuse of the planning system.
  I hope that it will be of satisfaction to the noble Lord, Lord Maginnis of Drumglass, to hear that we are going to issue a draft policy statement on development in the countryside. It will be issued for consultation later this year, so there will not be any undue delay. There is a delicate balance to strike. Sometimes, there is a continuing blot on the landscape; in other circumstances, for social or family reasons, development is legitimate. That will be of benefit. I echo what the noble Lord, Lord Brooke of Sutton Mandeville, said: we must bear in mind the need to sustain rural communities and not destroy them. I am happy to give your Lordships that reassurance.
  Tree preservation orders apply only to trees and do not protect ground flora. However, other powers are available, including those under the Nature

  NI 49
  Conservation and Amenity Lands (Amendment) (Northern Ireland) Order 1989, which can be used in some circumstances. There was also a question about trees and woodland. A tree preservation order can be used only to protect the amenity value that the tree affords to the general area. Sometimes, the protection of woodland can be better achieved under the amenity lands order that I mentioned.
  The issue of the creation of a new criminal offence exercised all noble Lords who spoke, I think. I have made my point about the injunction, which is the alternative weapon in the armoury. I recognise the strength of feeling expressed not just here but in the Environment Committee at Stormont. We have borne in mind the fact that, as your Lordships said, the Executive Committee had agreed the recommendation in principle. The Government's attitude was that any extension of the criminal law required strong justification. I note the strength of the argument that has been put, and I can tell the Committee that it is a matter for further consideration.
  Manifold though my duties are, I do not think that issuing directions to the judiciary in Northern Ireland is something that any sane person would attempt. I will ensure that the Hansard record of the noble Lord's comments is passed to the relevant authorities.
  I was asked about the level of fines and imprisonment. My noble friend Lord Dubs asked about the department's policy. The department's policy will be to be increasingly proactive. Where appropriate, application for trial in the Crown court will be made. My personal view—it is not necessarily a government view—is that the sanction of imprisonment ought not to be overlooked. However large the unlimited fine, a possible maximum sentence of two years in prison will be a useful reminder for anyone who carries out such actions. Some might say—I could not possibly comment—that it is too infrequently used.
  I was grateful to the noble Lord, Lord Dubs, for what he said about the Planning Service, which has been working in difficult circumstances. We will recruit additional staff; some are already in place and others will be recruited. We want to reduce the number of live applications in the system—applications are more usefully done on a documentary basis—and to reduce over-regulation. We shall have improved consultation arrangements with statutory consultees, including councils, and improved handling of Article 31 cases.
  The number of enforcement posts, which was raised, will be reviewed because of the department's strengthened enforcement powers and its absolute commitment to be proactive in the way that I mentioned.
  The noble Lord, Lord Dubs, asked about heritage and protection in relation to the Bill. I have dealt with the sanction of imprisonment. He rightly referred to two years, which is available to a Crown court; an unlimited fine is also available to Crown courts. One would have thought, without interfering with the judiciary, that those fines should be proportionate and proportionate multipliers of the benefit that has inured to someone
  NI 50
  acting unlawfully. Enormous public anger and distress are caused when people appear to get away with things and to make a profit, and destroy buildings of quality. I take the noble Lord's observations on the Bill. He will understand that I cannot properly comment on them. When courts are assessing fines, they often assess the financial benefit that has inured.
  My noble friend Lord Dubs asked about the position of buildings in conservation areas. I am happy to reassure noble Lords and my noble friend in particular that all buildings in conservation areas require the consent of the Department for Environment, Food and Rural Affairs under the Planning (Northern Ireland) Order 1991. That order applies the new enhanced and increased fines and penalties that apply to listed buildings to buildings in conservation areas.
  I was asked about the increase in the level 3 fine of £1,000 to the level 5 fine of £5,000. The conclusion that was come to—I can only recite it—was that the case had not been sufficiently made.
  On the question of buildings that are under threat, the new powers of spot listing are extremely valuable. I agree with my noble friend that they require constant vigilance on the part of the department and of those living in the locality.
  Lord Maginnis of Drumglass: Will the noble and learned Lord take account of the fact that in areas in which there are listed buildings, those who own the listed buildings sometimes allow them to fall into such disrepair that nothing can be done to preserve them? I am involved in such a case in my home town. Is any facility available, or is one contemplated, that would deal with that situation? I do not expect the noble and learned Lord to give me an instant answer.
  Lord Williams of Mostyn: The analogy is fairly made with the powers in England and Wales, where the local authority has the power to serve a notice requiring works to be carried out on a building that is listed but which is allowed to run into disrepair. In certain circumstances, local authorities can carry out the repairs themselves and charge the owner. Difficulties often arise—notoriously so recently—when the owner is not an individual but a corporation. A corporation often registers outside the jurisdiction and the process is laborious. The answer is that planning departments and enforcement agencies must be as vigorous and diligent as those seeking to profit from unlawful behaviour.
  I am grateful to noble Lords for their interest and support.
  On Question, Motion agreed to.
  The Grand Committee adjourned at five minutes before one o'clock.