The Ministry of Justice: Environmental Sustainability: Government’s Response to the Committee’s Third Report

Sixth Special Report

The Environmental Audit Committee published its Third Report of Session 2017–19, The Ministry of Justice: Environmental Sustainability (HC 545) on 2 February 2018. The Government’s response was received on 28 March 2018 and is appended to this report.

Appendix: Governement Response

1.Increasing numbers of domestic flights are not in line with the Ministry’s environmental commitments. We welcome the Ministry’s commitment to review its authorisation processes for domestic flights. It should set out, in its response to this Report, the outcome of the review and how it intends to reverse the upward trend in flights. (Paragraph 11)

1.1MoJ’s policy on air travel states that: Air travel should only be used when there is a business justification either because of cost advantage, official time saving or if urgency justifies the additional cost. Budget holders should approve any air travel before arrangements are made.

1.2MoJ has reminded its managers of their responsibility to assess whether there is a genuine business need to travel. Its review of the authorisation process for domestic flights is ongoing.

1.3MoJ is committed to reducing its air travel and has recently undertaken work to increase the visibility of this issue within the organisation. It has improved its digital communication technology such as Skype to enable a reduction in flights.

1.4The Ministry of Justice (MoJ) provides services in Scotland, Northern Ireland and the UK’s other islands; travel to these locations accounts for 70% of MoJ’s domestic flights. Moreover, domestic air travel comprises just 0.6% of MoJ’s total greenhouse gas emissions.

2.Only two out of the Ministry’s 1,483 vehicles are ultra-low emission vehicles. Significant improvement is needed to meet the Government’s aspirations in this area. The Ministry should set out in its response to this report how it will improve the uptake of low emission vehicles in its purchasing, leasing and rental arrangements to meet the Budget target of 25% of its fleet to be ultra-low emission vehicles by 2022. (Paragraph 15)

2.1MoJ has adopted the new Government Buying Standard (GBS) for Vehicles issued in January 2018, which has already led to an increase in its low emission vehicles. It now has 21 low emission vehicles in its leased fleet, a figure that is expected to increase to 51 over the next 12 months. Together with its 320 battery powered vehicles used on the Prison estate, 16% of MoJ’s fleet are low emission vehicles, with a projected increase to 18% by March 2019.

2.2MoJ has investigated the potential to increase capital spend on low emission vehicles, and has reviewed options to increase the proportion of low emission rental cars. As technology improves, the operating performance of battery powered and hybrid-powered vans will also support MoJ’s efforts to meeting the 25% target by 2022.

3.Whereas the Ministry expressed confidence over sustainability in its contracts, we have not seen any evidence that this is the case for the vast majority of its contracts. We expect the Ministry in its response to set out how sustainability is embedded in the 785 contracts which the Government Buying Standards do not apply to, providing us with an overview of the standards that apply to these contracts. (Paragraph 17)

3.1A large proportion of MoJ’s legacy contracts are due to be reviewed in 2018–19 and as part of that, MoJ will look to review its commitments to sustainability and will ensure that this features as part of its contract management process. All new contracts will be compliant with the Government Buying Standards.

4.The Ministry’s Government Greening Commitments on carbon and waste for 2019–20 lack ambition. We would like to know why the Department for Business, Energy and Industrial Strategy (BEIS) and the Department for Food, Environment and Rural Affairs (Defra) allowed the Ministry to set such easy targets. We recommend that the Ministry review and publish a set of ambitious targets for 2019– 20 alongside its response to this report. (Paragraph 20)

4.1The carbon emissions reduction target that the NAO refers to was agreed in 2016 under the Greening Government Commitment framework. At that point MoJ committed to a 22% reduction in greenhouse gas emissions and, as noted, MoJ has already met this target. They have now demonstrated significantly increased ambition and are proposing a new target: a 38% reduction in greenhouse gas emissions by 2020, against the 2009/10 baseline.

4.2In setting the Greening Government Commitments (GGCs), Defra acknowledges that government departments fulfil different functions and face different challenges in reducing their environmental impacts. Departments’ performance can also be affected by a variety of factors and may not display a linear trajectory year on year. The main GGC target for waste target for the period 2016 to 2020, which applies to all reporting departments, is to reduce the proportion of waste sent to landfill to 10% or less of total waste. They are also expected to continue to reduce the overall amount of waste generated and increase the proportion of waste which is recycled compared to 2015–16 levels. This sets a strong challenge to the majority of departments, including the MoJ, who succeeded in reducing waste sent to landfill from 21% to 15% between 2015–16 and 2016–17, putting them on track to meet the 2020 target.

4.3This target will be reviewed shortly with a view to agreeing ambitious new targets for the period 2020 to 2025, following the expiry of the current target period in 2020. Further work to develop the waste target by including a commitment to eliminate single use consumer plastic items across the central government office estate is already under way.

4.4Ahead of that, MoJ has reviewed all its existing Greening Government Commitments for 2018–2020, and has committed to achieving the following:

4.5MoJ will continue to keep all its targets under review to ensure they are sufficiently ambitious.

5.We are concerned that the Ministry does not routinely assess the environmental impacts of its new policies. We agree with the Ministry that its guidance for policymakers on environmental sustainability is lacking. It needs to improve this as a key area. We recommend that the Ministry include a “green check” criterion in its impact assessments to ensure it has considered all possible environmental impacts, including the long-term and less visible impacts. We recommend it publishes the environmental costs and benefits of its new policies annually, and demonstrates which actions it will undertake to mitigate the environmental costs of each new policy. (Paragraph 25)

5.1The Ministry has taken steps to ensure that all its impact assessments consider potential environmental impacts where relevant. The MoJ uses a range of tools in policy making including a Policy Toolkit. This has been updated to include Defra’s guidance on sustainability impact assessment. MoJ is also increasing training and communications so that its policy teams and analysts understand environmental impact assessment requirements more fully. The Ministry accepts the Committee’s recommendation to publish environmental costs, benefits and any mitigation of new policies on an annual basis.

6.The fixed cost cap on environmental justice cases was introduced after criticism from the Aarhus Convention Compliance Committee. It was replaced by the Ministry without a proper impact assessment or any attempt to address the concerns raised during an overwhelmingly negative consultation. The number of environmental justice cases being brought since then has fallen. In the face of such a flawed policy development process, the onus should be on the Ministry to demonstrate that the variable cap is not having a “chilling effect” and harming environmental justice. We recommend the Ministry of Justice publish an annual analysis of the number of cases on environmental justice that have been brought forward per month. It should review the variable cap two years from the date it was introduced. Unless the Ministry can demonstrate that the variable cap is not having a chilling effect on environmental justice, it should reinstate the fixed cap. (Paragraph 33)

6.1MoJ’s general approach to costs protection in environmental cases under the Aarhus Convention, as revised in February 2017, has been developed in the light of Supreme Court and Court of Justice of the European Union case law. This approach was supported by the High Court in September 2017. The Court concluded that the Government is compliant with EU law in that claimants are not expected to pay above their means to bring environmental claims.

6.2The Court found in favour of the Government on two of the three grounds of challenge, but recommended that the rules would benefit from clarification to reflect the agreed understanding of how they are intended to operate, thereby providing certainty and minimising any possible “chilling effect”. In accepting the High Court’s recommendation, the MoJ has made some further amendments to the costs protection rules to clarify how the rules operate. The statutory instrument implementing those changes was laid before Parliament on 28 February 2018 and the rules will come into force on 6 April 2018.

6.3MoJ has already committed to keeping the Environmental Costs Protection Regime (ECPR) under review and will of course consider any developments in case law. MoJ will formally review the ECPR when it has sufficient data to do so (which is likely to be within two years, that is by April 2020). MoJ will publish the data at that point, but does not accept the Committee’s recommendation to publish an annual analysis.

7.It is important that all Government departments are seen to be acting in a sustainable way. We expect the Ministry of Justice to publish all its sustainability strategies by April 2018 to increase transparency over its guidance and objectives. (Paragraph 35)

7.1MoJ accepts this recommendation and has published the following strategies and policies on GOV.UK:

7.2It plans to publish a Water Strategy by December 2018.

8.We question why the Ministry has not implemented more renewable energy technologies, such as solar panels or biomass boilers, which have the potential to reduce its carbon footprint even further. Cost savings could also be achieved and the Ministry should make more use of available funding support such as the ongoing Renewable Heat Incentive. We recommend the Ministry assess within the next two months how it will implement renewable energy technologies, including in new prisons, and how it will maximise funding for the uptake of renewable technologies. (Paragraph 41)

8.1MoJ’s approach to maximise the uptake of renewable energy technologies is set out in its Carbon and Energy Reduction Strategy published in March 2018. This commits the Ministry to:

8.2This builds on MoJ’s previous work which includes 39 renewable energy installations on its estate.

8.3MoJ is has developed several specific renewable energy initiatives in the past 12 months. We have:

8.4Work on renewables is part of MoJ’s wider carbon reduction programme of:

New Prisons

8.5As part of its Prison Estate Transformation Programme (PETP), the Ministry has carried out an extensive assessment of renewable energy opportunities including solar PV, solar thermal, wind turbines, heat pumps and heat recovery from waste water. MoJ expects to finalise its energy strategy for new prisons and prison house blocks in May 2018; which will embed the requirement for renewable sources.

9.We are concerned that the Ministry did not collect BREEAM certificates for 64% of its refurbishment and new build projects since 2010, and that 14 projects did not meet the required standard of excellent. The Ministry already faces difficulties, having an old estate and the challenges associated with prison management. Not knowing the condition of its estate could lead the Ministry to make decisions that do not maximise environmental and economic returns. We recommend the Ministry routinely assess all its projects, and publishes annually the rating of its new building projects and refurbishment projects. Where it fails to meet the expected standards of ‘excellent’, it should set out how it will ensure compliance with BREEAM and what costs it has incurred to rectify the situation. (Paragraph 46)

9.1MoJ published its new BREEAM policy in March 2018. This commits MoJ to obtaining BREEAM ‘Excellent’ standard for all new builds and BREEAM ‘’Very Good’ for major refurbishments over a £500,000 threshold. It also commits MoJ to improving the processes to obtain and maintain the correct level of BREEAM documentation.

9.2MoJ has also established a system to ensure that sustainability considerations and Government Buying Standards are embedded in construction projects that fall below its BREEAM cost threshold.

9.3MoJ is actively seeking to obtain copies of BREEAM certificates for 126 projects where it does not have them: it is liaising with the Building Research Establishment and begun a programme of work to remedy the situation.

9.4MoJ will report its progress, compliance and costs in future Annual Report and Accounts.

10.We are concerned that the Ministry does not know which of its court and tribunal estate fall in conservation areas and that it does not monitor the condition of its sold courts and tribunals. Derelict buildings pose risks to society and impact negatively on high streets and town centres, and local authorities which are already stretched for finances, have had to step in to rectify the situation. We found gaps in the governance arrangements in the disposal programme for courts and tribunals. We recommend that HM Courts and Tribunals Service (HMCTS) publish a list of which courts and tribunals it sold off have become dilapidated and how it will support local authorities in dealing with these buildings, including whether it will provide financial support. We further recommend HMCTS report to us how it has improved oversight over the maintenance and disposal of historic assets on its court and tribunals estate, including what measures it has set up and reporting systems it has developed to ensure that historic assets are managed sustainably. (Paragraph 51)

10.1The management of the HMCTS estate transferred from MoJ to HMCTS in March 2017. HMCTS understands its obligations surrounding its heritage estate, reporting against the list of disposals, and is working to ensure important historic buildings are properly protected and maintained whilst in its responsibility.

10.2All listed buildings and conservation areas in the HMCTS estate have been identified. MoJ and HMCTS work closely with Historic England (HE) in relation to historic buildings ahead of disposal. This includes accessing advice from HE on the relevant buildings, giving HE the opportunity to input to the consultation on disposals and enabling HE to advise on whether any unlisted historic buildings should be considered for listing.

10.3When a building is to be disposed a Marketing and Valuation report is commissioned. This provides information on heritage, including whether a site is listed or located in a Conservation Area, since this information is material to the disposal and to establish a disposal strategy. Heritage statements accompany the sale of all listed properties in England & Wales. Where a site contains a listed building, or is in a conservation area, HMCTS requires prospective purchasers to prove that they have previously undertaken work on listed sites and have a proposal which is in accordance with planning guidance. Prospective purchasers must confirm that they have read and understood the heritage report and that they are aware of their obligations. HMCTS will continue to manage disposals in accordance with HE’s guidelines.

10.4Many properties disposed of in the last 15 months have been by transfer to Homes England. Historic sites transferred to Homes England are protected by their adherence to Historic England guidelines. This protection also applies to sites transferred to local authorities. A purchaser’s ability to meet the heritage guidance, and their track record of performance, is taken into full consideration. Whilst due diligence is undertaken on prospective purchasers prior to agreeing terms, once sold, HMCTS in common with any other former land owner, has no control over how the property is maintained or used. Building owners or occupiers are responsible for maintenance. Following disposal Local Authorities have statutory powers in respect of monitoring and ensuring compliance in respect of Listed Buildings and Conservation Areas. If contacted by any Local Authority HMCTS will support any intervention they propose to ensure compliance, however as no funds are available this does not extend to financial support. This is the obligation of the building owner/occupier.

10.5HMCTS has undertaken a programme of professional building surveys to identify disrepair and remediation costs. Since 2015–16 HMCTS has spent £71m on capital maintenance to improve its estate, and is committed to spend more as part of the Reform programme.

11.While we recognise that each prison faces unique challenges, we would like to know why the Ministry has not set sustainability targets for each prison and what incentives prison governors must achieve high sustainability performance. We are particularly concerned about the expired prison service instructions which should have provided guidance to governors on how to deal with hazardous waste and packaging waste. This includes the sustainable development policy, introduced in September 2003 and marked as expired in September 2004; the disposal of hazardous waste, introduced in February 2007 and expired in August 2008; and the Reporting on packaging waste from February 2010 and expired in December 2010. We recommend that the Ministry publish the results of its benchmarking exercise on energy usage, including a comparative analysis across its estate, and develop targets for each prison. It should tell us how it will support prison governors to meet sustainability targets and how it will monitor performance. (Paragraph 53)

11.1The Ministry accepts the EAC recommendation to publish the results of its benchmarking exercise on energy use and will do so by spring 2019. MoJ’s Carbon and Energy Reduction Strategy also commits the Ministry to setting carbon reduction targets for each prison during 2018; and it will review options for setting waste and water targets for each prison during 2018/19.

11.2To support governors in improving the sustainability of prisons, MoJ intends to introduce a new Sustainable Operations Policy Framework in mid-2018. This will replace the existing Prison Service Instructions which remain in place until the new framework is introduced. This new framework pulls together all the sustainability requirements into a single document providing clearer instructions and guidance to governors setting out what is required of them and how to meet these obligations. The Framework covers energy and water efficiency, water, ecology and data reporting.

11.3MoJ has empowered governors and site managers to improve the sustainability of their prisons by providing them with better performance data to help them monitor and target excessive usage of utilities. Site sustainability data is provided each month and quarterly regional Energy and Carbon Review meetings for each prison have been introduced during 2018.

12.While we recognise that the Ministry has improved the status of three of its ten Sites of Special Scientific Interest (SSSIs), eight of them are still in an unfavourable condition. We urge the Ministry to set out in its response to this report a plan that will lead to 50% of its SSSIs being in a favourable condition by 2020, and a long- term plan for the rest. (Paragraph 57)

12.1MoJ welcomes the EAC’s focus on SSSIs, and recognises its duty to safeguard protected species and habitats both on its SSSIs and the wider estate. Two of MoJ’s largest SSSIs (HMP North Sea Camp and HMP Hewell) are in afavourable condition,1 and seven sites are in an unfavourable recovering condition. This fulfils the Biodiversity 2020 Outcome 1A2 (maintaining at least 95% in favourable or recovering condition) two years ahead of time. One of MoJ’s SSSIs (HMP Haverigg) is in an unfavourable no change condition, and is forecast to be in a recovering condition by 2020.

12.2We have begun to improve the seven sites which are in an unfavourable recovering condition to a favourable condition, to achieve the outcome1A of at least 50% of SSSIs in favourable condition. We are forecasting that at least four of these seven SSSIs will reach a favourable condition by 2020 i.e. 60% of its SSSIs in total.

12.3To improve the condition of all its SSSIs, MoJ has developed an action plan which tracks progress against activities set out in the Local Biodiversity Action Plans and Site Management Agreements for each site.

12.4MoJ is also working with its facilities management providers to monitor their contribution to improving SSSI condition status, including ensuring key performance indicators are used to drive completion of associated monthly, quarterly and annual tasks.

12.5MoJ has increased its Ecology team by 50% to support this important strand of work, and is securing additional expertise to carry out habitat and species surveys later in the year. To support this core team, a Biodiversity Champion will be appointed for each SSSI who will monitor progress locally, and report successes and any issues to MoJ’s Principal Ecologist.

13.Given the importance of managing SSSIs properly, we support the Ministry’s plan to improve oversight and governance of SSSIs. We recommend it publishes its guidance on the management of its SSSIs, and develops a clear documentation system so it can track the performance of each site over time. It should report to us how its Senior Estates Board has overseen the management and review of the condition of each SSSI, and what interventions it has undertaken to ensure that staff and contractors are held accountable for the management of the sites. (Paragraph 61)

13.1MoJ published its Biodiversity Policy in March 2018 which sets out its target condition status for its SSSIs, and provides high level guidance on how it manages its designated sites. In addition, it has developed more detailed guidance for its staff and facilities management contractors which will be distributed to key stakeholders during 2018.

13.2A SSSI Action Plan has also been developed to systematically monitor activity and track performance at each SSSI. This draws upon activities set out in the Local Biodiversity Action Plans and Site Management Agreements for each site.

13.3To ensure appropriate oversight, in January MoJ introduced its Senior Sustainability Board chaired by its Chief Operating Officer and Sustainability Champion. The Board has a standing agenda item on Ecology; and the Sustainability Champion has commissioned a specific report on the condition of MoJ’s SSSIs for its second Board meeting in April. MoJ’s Principal Ecologist is a full member of the Board.

13.4MoJ’s Strategic Asset Management Board also receives a quarterly report on the status of each SSSI.

13.5All our biodiversity action plans have been shared with relevant facility management contractors. A mandatory training programme is in place for staff with responsibilities for maintaining SSSI sites, including facilities management contractors. This is a quarterly course and one has been run in February 2018.

14.Neither we nor the NAO saw much evidence that the Ministry’s Sustainability Champion was taking a proactive approach or demonstrating leadership in this aspect of his role. We support the changes in the Ministry’s oversight and governance structure, and the fact that the Minister will have direct insight into the Ministry’s environmental sustainability performance. We recommend that the Ministry explain to us in its response how it has implemented the changes in its governance structure and demonstrate how it improved oversight of sustainability matters in its key plans and documents, including how it has staffed its sustainability team to deal with a set off challenges across its estate. (Paragraph 65)

14.1MoJ’s Sustainability Champion and Chief Operating Officer has introduced a quarterly Senior Sustainability Board comprising senior officials from across the Ministry including Commercial, Finance, Communications, Policy Making, Estates, HMCTS, HMPPS, and its Arms’ Length Bodies. The Board is responsible for ensuring that environmental sustainability is embedded in all areas of MoJ’s business activity and working practices. Individual board members are responsible for championing sustainability within their business area, highlighting its importance and raising awareness. The Board will oversee delivery of MoJ’s performance against all GGC targets, compliance with published policies and strategies, driving forward innovation, and taking decisive intervention where necessary to tackle any concerns. The Board will also provide a regular summary report to the Ministry’s Executive Committee.

14.2MoJ’s Single Departmental Plan (SDP) was published in January 2018 and included its greenhouse gas target; however, its 2018–19 SDP will report against all GGC targets. Progress against all GGC targets is also now included in monthly Operations Group Performance Reports (reviewed by MoJ’s Chief Operating Officer), whereas previously these reports only included carbon. Progress continues to be reported in MoJ’s Strategic Asset Management Plan.

14.3MoJ also supports the United Nations Sustainable Development Goals (SDG) and is committed to the implementation of Goal 16: the promotion of peaceful and inclusive societies for sustainable development, the provision of access to justice for all, and building effective, accountable institutions at all levels. MoJ is a standing member of the cross-Whitehall SDG Planning and Performance Group and has attended all three meetings. This Group is responsible for improving the coordination of SDG implementation across government; including:

14.4MoJ has also invested heavily in professionalising its sustainability team over the last 12 months, building a new sustainability senior management team and bringing in new professionally qualified people to ensure it has a strong foundation on which to build and improve further on the progress made to date across MoJ, HMCTS and HMPPS. The Sustainability team is also being increased by 50% and recruitment is in progress.

15.Overheating has been identified as a major risk from climate change. We are concerned by the Ministry’s lack of participation in cross-governmental groups tackling this issue. Overheating in prisons is a serious issue, as evidenced by the 497 complaints the Ministry received in 2016–17, and has implications for health and security. We are pleased to see that the Ministry has followed our previous recommendations and is sitting on the Domestic Adaptation Board. We recommend the Ministry of Justice report to us in its response how it will engage in the relevant cross-government working groups on estate management and sustainability. (Paragraph 68)

15.1MoJ is actively engaged with several estate management and sustainability groups including:

15.2In addition, MoJ sustainability officials regularly meet relevant officials from other government departments, such as MoD and FCO, to share best practice.

15.3MoJ is mindful of the risks posed by climate change and is already taking steps to avoid overheating in prisons. It will continue its programme to review and introduce measures to mitigate against overheating in the existing prison estate by:

15.4MoJ has also incorporated Climate Change Scenarios in its Prison Estate Transformation Programme energy modelling. This will help ensure that new prison buildings are both designed to reduce summertime overheating, and additionally that designs are optimised design sta to ensure that the energy used for future cooling demands is minimised at the design stage. Application of BREEAM requirements will also ensure that new prisons sites and designs consider and address flood risk, rainfall and solar gain.

15.5MoJ has also undertaken research on the design, construction and maintenance of prisons, including reviewing current and future temperature levels in prison buildings. MoJ will use this knowledge together with the UK Climate Change Risk Assessment 2017 and 2018 UKCP18 predictions to inform how it constructs and maintains prisons going forward.

15.6In addition, all new and refurbished courts are required to have floor levels above the 1:200-year flood risk level plus the global warming allowance of 20%.

16.The Ministry should improve its oversight and governance arrangements of contractors’ performance and agree that sustainability should be embedded more in its contracts. We recommend it incorporates environmental KPIs in all its contracts, and set up robust monitoring system to measure performance. It should develop clear terms of reference of its oversight groups. This is more important following the collapse of Carillion, who managed approximately 50 prison service sites. (Paragraph 72)

16.1Government’s approach to contract management is currently being reviewed and as a result, the Ministry will be working with colleagues from across Whitehall to ensure that the profile of sustainability is raised within the stakeholder training and that it becomes a key facet of the wider programme. Within its own Commercial and Contract Management Directorate, MoJ is developing a range of core sustainability standards for introducing to all new contracts where relevant, and will set up effective monitoring arrangements to ensure compliance.

16.2In terms of facilities management contracts, environmental performance is a key deliverable in the MoJ’s new FM contract that went live in January 2018. Roughly 6%, or £1.7m, of the total contract value of £29.8m is at risk as part of the KPI framework, 15% of which relates to environmental performance. The contract includes seven environmental KPIs, such as the requirement for year-on-year environmental improvements, and delivery of savings against agreed sustainability plans. Performance against these KPIs is included in the terms of reference of MoJ’s Strategic Asset Management Board.

16.3Sustainable performance and remedies for performance failures will be included in all of MoJ’s future FM contracts. Finally, MoJ is looking to use the opportunity presented by the collapse of Carillion to introduce more rigorous sustainability requirements in its revised FM arrangements for the Prison estate.

Published: 18 May 2016