Forty Second Report Contents

Instruments drawn to the special attention of the House

Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020 (SI 2020/1531)

Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020 (SI 2020/1534)

Date laid: 14 December 2020

Parliamentary procedure: negative

These two instruments remove permanently publication and publicity requirements for certain planning matters that were suspended temporarily last year to assist authorities in taking forward relevant plans, programmes and projects during the pandemic. The Ministry of Housing, Communities and Local Government (MHCLG) says that it is not aware of any concerns about the changes and that the move to more digital processes has been broadly welcomed, though support for the changes seems to have come largely from those involved professionally in the planning process. We regret that there was no formal public consultation, as the changes have the potential to reduce physical access to information and the ability to make representations for the general public and in particular for vulnerable or disadvantaged groups or those with poor or no internet connection, in relation to important infrastructure, housing or other projects that may impact on them. The House may wish to ask the Government to update Parliament on the impact of the changes. The possibility that requesting hard copies of potentially complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern. Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We also regret that MHCLG has again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic.

The instruments are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

1.These two sets of Regulations have been laid by the Ministry of Housing, Communities and Local Government (MHCLG), each accompanied by an Explanatory Memorandum (EM). The instruments remove permanently requirements to make certain planning process documents available for physical inspection, requiring these documents to be published online instead. Temporary measures were introduced last year to enable authorities to progress planning processes while many public buildings are closed as a result of the pandemic.

Changes made by the Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020 (SI 2020/1531)

2.SI 2020/1531 removes permanently requirements placed on responsible authorities and the Secretary of State to: make available for public inspection at a physical address documents relating to strategic environmental assessments; inform consultees of that physical address; and enable physical copies of those documents to be obtained from that address. These requirements were suspended temporarily by an earlier instrument1 between 16 July and 31 December 2020. The requirements are replaced with a duty to make the documents available on a public website, and for consultees to be informed of the website address. The changes apply to plans and programmes and changes to them prepared at local, regional and national level that are subject to a determination that they are likely to have significant environmental effects, such as transport plans, land use and spatial plans.

3.MHCLG says that the instrument puts in place mitigation measures to ensure that access to documents is maintained for those without access to the internet: responsible authorities (or the Secretary of State where relevant) will be required to make available a telephone number for public enquiries; provide hard copies of any documents by mail on request, where this is reasonably practical during the pandemic and subject to a ‘reasonable charge’; and provide electronic copies of documents by email on request. Electronic copies may also be made available on USB flash drives to those with access to a computer but without access to the internet. Charges for hard copies may be waived for those who struggle to access the documents electronically.

Changes made by the Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020 (SI 2020/1534)

4.SI 2020/1534 removes permanently various publicity and notification requirements in relation to the application for and changes to a Development Consent Order (DCO).2 The requirements were suspended temporarily by an earlier instrument3 between 22 July and 31 December 2020. The instrument removes requirements placed on applicants and, where appropriate, the Secretary of State, to make certain documents available at specified locations, including near a proposed project, for physical inspection at certain stages of the process. Instead, the documents will have to be made available on a public website. MHCLG says that, in practice, the changes will mean that the Planning Inspectorate will publish the documents on its website or that the relevant government department will publish them on Gov.uk. The authorities will also have to provide a telephone number for public enquiries.

MHCLG’s rationale for making the changes permanent

5.MHCLG explains that making the changes permanent supports the Government’s aim of moving towards “digitalising the planning system”, as set out in the Planning for the Future White Paper,4 ensures that relevant work can progress during the ongoing pandemic and supports the UK’s economic recovery. MHCLG says that without the instruments, important plans and programmes, including with regard to housing or nationally significant large-scale infrastructure projects, could be delayed or stalled.

6.Asked why the instruments had not been extended, as other measures dealing with the impacts of the pandemic, MHCLG told us that, in addition to moving towards a digital planning system, making the changes permanent:

“avoided some uncertainty about whether it would be possible to make Regulations providing for a further extension of all of these measures in a timely way in due course. This is because the measures are made in part under the powers set out in section 2(2) of the European Communities Act 1972 and these powers were only available until the end of the EU Exit Implementation Period (11pm on 31 December 2020)”.

7.We are not convinced by MHCLG’s explanation. The instruments were laid and came into force before the expiry of relevant powers at the end of the Transition Period, suggesting that MHCLG could have chosen to legislate for a further extension, rather than making the changes permanent. The House may wish to press the Minister for further explanation of the Government’s approach.

Potential impact of moving to online publication only

8.MHCLG states in the EMs that the “move to more digital processes and virtual events has been broadly welcomed”, and says that “digital process and virtual events present opportunities to increase participation in the planning process”.5 According to MHCLG, it is the Government’s ambition to “move the democracy forward in the planning process and give neighbourhoods and communities an earlier and more meaningful voice in the future of their area as plans are made, harnessing digital technology to make it much easier to access and understand information about specific planning proposals”.

9.MHCLG says that internet usage is at high levels across the country, and that in practice, planning documents are already made available online by authorities through their websites. MHCLG concludes that “this has in recent years become the principal way for many of those interested to access documents, with provision of [physical] documents at central hubs a less effective and significant part of engagement”, adding that best practice “already demonstrates that authorities deploy alternative methods of engaging the minority of the community who do not have internet access”.

10.MHCLG acknowledges, however, that “the changes could have the potential to reduce access to information, and the ability to make representations”, for those people “who do not have internet access at home or may have difficulty in accessing documents online”. The EMs set out mitigation measures to minimise any restriction of access (see paragraphs 3 and 4 above).

11.We asked MHCLG which social groups were more likely to require access to physical documents. MHCLG told us that:

“Published data set out by the Office for National Statistics (ONS 2019) showed slightly lower access to the internet in older person households, particularly single older person households.

The ONS report found that 87% of adults used the internet daily or almost every day and estimated that 93% of households have internet access in 2019. But the report also found that access was lower in older person households, with 89% of households where two adults with at least one adult being aged 65+ and 73% of households of one adult aged 65+ having access to the internet.

Published data also shows a lower use of the internet for two other groups—disabled people and the gypsy and traveller communities.

A further report produced by the ONS in 2019 set out data related to internet use among disabled people and found that across all age groups, disabled adults make up a large proportion of adult internet non-users. In 2017 56% of adult internet non-users were disabled, much higher than the proportion of disabled adults in the UK population as a whole which, in 2016 to 2017, was estimated to be 22%.

For internet non-users aged between 16 and 24 years, 60% were disabled in 2017, a proportion that is the same as for those aged 75 years and older.

However, ONS data collected in 2019 also suggests that the gap in internet usage between disabled and non-disabled individuals is shrinking—from 2014 the number of disabled adults who use the internet increased by 13 percentage points to just over 10 million in 2019.

With regard to gypsy and traveller communities, the September 2018 report produced by Friends Families and Travellers which looked at digital exclusion in those communities found that 38% of gypsies and travellers had internet connection (compared to 86% of the general population), with one in five of those gypsy and travellers who had been interviewed for the purposes of this report having never used the internet (compared to one in ten members of the general population).”

12.When considering the earlier instruments that introduced temporary changes,6 we called on the Government to ensure that the changes do not compromise the principle of fair access to information for all those who may be affected by relevant projects. This is even more important now that key planning documents will only be published online on a permanent basis. We are particularly concerned that those who do not have ready access to the internet or those who live in rural parts of the country with poor internet connection will be disadvantaged. Many planning documents are large and complex and include images or maps and may therefore be difficult to access online, including for those with a poor internet connection and those who access the internet by phone. We also note that there is no clarity on what a “reasonable” charge would be for those who request a hard copy of a planning document.

Consultation

13.MHCLG says that no formal public consultation was carried out but that the changes have been in place since July 2020, and that, with regard to SI 2020/1531, “MHCLG officials are not aware of any concerns having been raised with regard to these measures, and the Department has not, to date, received any formal or informal correspondence indicating any problems”. With regard to SI 2020/1534, MHCLG says that that the changes “have been supported by the National Infrastructure Planning Association”.

14.We asked MHCLG how it could be certain that people did not have concerns about the changes in the absence of consultation. MHCLG responded that:

“MHCLG has sought sector feedback on the impact of the temporary measures introduced in July to inform the consideration of putting these measures on a permanent basis.

Ahead of their meeting on 11 September 2020, the MHCLG Monitoring Officers Group (which draws membership from across the country) were specifically asked about any issues that had been raised locally in relation to the general coronavirus planning measures introduced in July. Local authority monitoring officers have specific responsibilities on legal and operational matters with local authorities. Only two of the 35 officers invited to give a response provided one. Both stated that no issues or concerns had arisen. The Local Government Association’s Planning Advisory Service were also contacted in October 2020 about the temporary measures and they confirmed that no concerns about the measures had been raised by any Councils.

The Planning Inspectorate keep these measures under review and have also confirmed that no issues or concerns have been raised with them to suggest that the changes introduced in July have negatively impacted on people’s ability to engage in the Infrastructure planning process. The National Infrastructure Planning Association, whose membership include leading promoters and practitioners in relation to UK infrastructure planning, as well as those stakeholders who engage in the NSIP [Nationally Significant Infrastructure Projects] process, were supportive of the temporary regulations introduced in July. The association also considered there would be benefit for these measures to be made longer term and are highly supportive of the move to make these measures permanent.

MHCLG has not received to date, any formal or informal correspondence in relation to the matter, apart from three enquiries from local authorities querying when a decision on whether further extensions would be made. This indicates that no significant problems have arisen relating to these provisions since they were introduced in July 2020.”

15.We regret that no formal public consultation was undertaken, and we question MHCLG’s conclusion: the absence of representations or comments about the temporary changes does not necessarily mean that there are no concerns or problems. In the current exceptional circumstances, people may not be aware of the changes and may be focused on dealing with the very significant impacts of the pandemic. Support for the changes appears to have come largely from those involved professionally in the planning process. While we welcome that the measures are being kept under review, we urge the Government to monitor the impact of the changes on those who do not have any or limited access to the internet, especially as there was not an opportunity for the public to raise potential concerns. The House may wish to ask the Government to update Parliament on the impact of the changes.

Balance between secondary and primary legislation

16.We have previously expressed concern about using secondary legislation to bring about significant changes to planning legislation during the pandemic7 and highlighted this concern in our most recent report about our work.8 We regret that despite these concerns, MHCLG has once again taken this approach, in particular as the changes made by these instruments could affect the ability of vulnerable or disadvantaged groups or anyone with limited or no internet connection to access information on infrastructure, housing or other projects that may affect them. Changes of this nature are more appropriate to primary legislation which allows for full scrutiny by Parliament.

Conclusion

17.These two instruments make permanent changes to publication and publicity requirements for certain planning matters that were initially introduced on a temporary basis during the pandemic. MHCLG says that it is not aware of any concerns about the changes, and that the move to more digital processes has been broadly welcomed, though support for the changes seems to have come largely from those involved professionally in the planning process. We regret that there was no formal public consultation, as the changes have the potential to reduce physical access to information, and the ability to make representations, in particular for vulnerable or disadvantaged groups or those with poor or no internet connection in relation to important infrastructure, housing or other projects that may impact on them. The possibility that requesting hard copies of potentially complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern. Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We also regret that MHCLG has again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic, when primary legislation would have enabled full scrutiny by Parliament. The instruments are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

Health Protection (Coronavirus, Pre-Departure Testing and Operator Liability) (England) (Amendment) Regulations 2021 (SI 2021/38)

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 3) Regulations 2021 (SI 2021/47)

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 4) Regulations 2021 (SI 2021/49)

Dates laid: 14, 15 and 18 January 2021

Parliamentary procedure: negative

The Department for Transport has produced three instruments dealing with restrictions on travel from abroad in two days. One imposes pre-departure testing, two of them increase penalties on those who fail to complete their Passenger Locator Forms accurately, and the third removes almost all exemptions from the 10-day period of self-isolation. In view of the number of new variants of COVID-19 emerging, we welcome these stronger measures. We have raised some of these issues in our previous reports and are pleased to see that action has been taken. However, our concerns about the degree to which self-isolation is enforced once the traveller has left the port of entry remain. The House may wish to ask for more recent data on compliance with the self-isolation requirements.

We draw these instruments to the special attention of the House on the grounds that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House.

Health Protection (Coronavirus, Pre-Departure Testing and Operator Liability) (England) (Amendment) Regulations 2021 (SI 2020/38)

18.This instrument was laid on 14 January to amend the International Travel Regulations9 so as to require passengers arriving in England from outside the Common Travel Area (which includes the Republic of Ireland) to possess notification of a recent negative coronavirus test and to have completed a Passenger Locator Form (PLF). Those travelling on a shuttle service through the Channel Tunnel must be able to present the result when arriving at immigration control at the shuttle terminal in France. The test has to meet certain technical requirements set out in Schedule 2B, and the sample must have been taken no more than three days before the scheduled departure time of the service. Failure to comply is subject to a £500 fixed penalty for the first offence, doubling to a maximum of £4,000 for subsequent offences. This requirement took effect from 18 January. We welcome this approach, which seeks to prevent anyone who is known to be infectious from travelling to the UK.

19.Because someone could catch the disease after the test or on the journey, this regime does not affect the requirement for those who have come from or transited through non-exempt countries to self-isolate for 10 days. The Department for Transport (DfT) has published guidance on the Gov.uk website.10

20.There are exemptions for certain groups of people, for example children under 11, those with a disability which prevents them from completing a PLF, and transport crew who travel on these services as part of their job. Travellers from Ascension Island, Falkland Islands or St Helena will not need to take a test for a flight to England, and passengers who start their journey from Antigua and Barbuda, St Lucia or Barbados will not be required to take a test before 21 January: in both cases due to lack of testing infrastructure in those countries.

Duty on travel operators

21.Part 2 of the instrument also places an obligation on commercial transport operators to ensure that passengers travelling to England on their services from outside the Common Travel Area have completed a PLF and possess notification of a negative test result. Operators will be liable to a £2,000 fixed penalty for each failure. However, to allow transport firms time to adapt, the penalty regime does not commence until 1 February. The requirements on operators must be reviewed at least once every 28 days, with the first review being due by 8 February, and will lapse on 7 June 2021.

Confusion over the start date

22.The Prime Minister initially announced this change on 5 January, with the Transport Secretary giving further details to the media on 8 January, including that it would come into effect at 4 am on 15 January. This was followed by a Written Statement on 11 January11 which also said:

“From 04:00 on 15 January we will be introducing pre-departure testing requirements for all inbound passengers to England. Passengers arriving by ship, plane or train will have to take a test up to 3 days before departure and provide evidence of a negative result before they travel.”

23.However, regulation 4 only brings the testing requirement fully into effect from on 4 am on 18 January. We fully understand the urgency of these measures but reiterate that we find legislation by media announcement unacceptable and confusing for the public. We again recommend that policy implementation is more fully worked out, and the regulations laid, before significant announcements are made.

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 3) Regulations 2021 (SI 2021/47)

24.Following the identification of a new variant of COVID-19 in Brazil, these Regulations, laid on 15 January with immediate effect, added a number of other South American countries, and Portugal, to the list in Schedule BI, where self-isolation for 10 days is required (“Test to Release” is not allowed and those residing with these arrivals are also required to isolate); the countries in full are: Argentina, Bolivia, Brazil, Cape Verde, Chile, Colombia, Ecuador, French Guiana, Guyana, Madeira, Panama, Paraguay, Peru, Portugal, Suriname, the Azores, Uruguay and Venezuela.

25.In addition, the Regulations prohibit aircraft from Argentina, the Azores, Brazil, Cape Verde, Chile, Madeira and Portugal and vessels from the Azores, Madeira and Portugal from landing in England, except in the case of emergency.

26.The Regulations also remove Aruba, Qatar and Bonaire and Sint Eustatius & Saba from the list of exempt countries and territories in Schedule A1, from which passengers arriving in England are not required to self-isolate. These provisions came into effect on 16 January.

27.These Regulations also made an exemption from the self-isolation requirements in Schedule 2 for seasonal workers in ornamental horticulture (for example, daffodil pickers) to allow them to self-isolate with other workers at the relevant farm. This mirrors the exemption for poultry workers12 made before Christmas which we criticised in our 35th Report13 and we would have raised questions again had the provision not been revoked by SI 2021/49 (see below).

28.Finally the Regulations amend from 18 January the amount of fixed penalty payable by a person who commits an “information offence”, for example by giving a false address on their PLF, for the first offence to £200, escalating with subsequent offences up to a maximum of £4,000.

29.Paragraph 3.2 of the Explanatory Memorandum states that, according to Border Force estimates, approximately 15,000 passengers per week have arrived in England without having provided the required information.

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 4) Regulations 2021 (SI 2021/49)

30.Having reviewed the latest assessments on the number of new mutations of the virus around the world, the Government decided to remove all remaining countries and territories from the list of exempt places, in Schedule A1 of the International Travel Regulations. The effect of this is that, from 18 January, anyone arriving in England from outside the Common Travel Area will be required to self-isolate unless specifically exempt. We were concerned that there might be a loophole for those transiting through the Republic of Ireland but note that the Irish Government’s requirements for pre-departure testing and self-isolation are equivalent, if not stronger than the UK’s 14

31.With effect from 16 January, this instrument also removed several exemptions from the requirement to self-isolate (in Schedule 2 to the International Travel Regulations) that “the Government deems non-essential for the movement of critical goods, the protection of essential services and for the disposal of essential Government business”. These removals cover advertising productions, business directors, journalists, the National Lottery, performing arts professionals, television production and high-end television production. Exemptions still remain for diplomats, workers engaged in essential or emergency works and transport workers.

32.This instrument also amends SI 2021/47 to remove an exemption that was due to come into force at 4 am on 16 January in relation to ornamental horticulture workers. Both instruments were made on the same day. Changes at this pace could either be seen as a rapid response to changing data or as a failure of coordination between Departments: whichever applies, it is confusing for the public and for the travel industry.

Concerns

33.We welcome the stronger enforcement of the requirement to complete a PLF. As data collected in PLFs is used to facilitate the domestic contact tracing programme and is important for monitoring and enforcing the self-isolation requirement, high levels of PLF completion are important for safeguarding public health, but only if followed up effectively.

34. In a previous report on the “Test to Release” scheme, we questioned how rigorously the checks on incoming travellers were being made.15 We therefore note with particular concern the Border Force estimate that approximately 15,000 passengers per week have arrived in England without having provided the required information (see SI 2021/47 above) and remain concerned about how frequently compliance with the self-isolation requirements is being checked once the traveller has left the port of entry.

35.We note the evidence from the Office of National Statistics published on 1 December 2020 that only 67% on a self-reported survey believed that they had fully complied with the self-isolation requirements:16

Among the international arrivals population who are aware of the requirement to self-isolate for 14 days:

%

Proportion who are definitely compliant with the requirement to self-isolate for 14 days

67

Proportion who are definitely not compliant with the requirement to self-isolate for 14 days

12

Proportion who have left their UK accommodation since returning at least once

29

Proportion who have had at least one visitor since returning to their UK accommodation

9

Proportion who received a visit from friends/family

6

Source: Office of National Statistics

36.The House may wish to ask for more recent data on compliance with the self-isolation requirements. High levels of completion of the PLF will not improve infection rates unless they are followed up effectively.

1 Environmental Assessment of Plans and Programmes (Coronavirus) (Amendment) Regulations 2020 (SI 2020/734).

2 Under the Planning Act 2008, DCOs are required for granting planning consent for Nationally Significant Infrastructure Projects, such as the expansion of Heathrow.

3 Infrastructure Planning (Publication and Notification of Applications etc.) (Coronavirus) (Amendment) Regulations (SI 2020/764).

4 MHCLG, ‘Planning for the future’ (12 March 2020): https://www.gov.uk/government/publications/planning-for-the-future [accessed 14 January 2021].

5 HL Written Ministerial Statement, 13 May 2020, HLWS231.

6 Infrastructure Planning (Publication and Notification of Applications etc.) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/764), 25th Report, (Session 2019–21, HL Paper 123).

7 Ibid.

9 Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (SI 2020/568).

10 DfT, ‘Coronavirus (COVID-19): testing for people travelling to England’ (13 January 2021): https://www.gov.uk/guidance/coronavirus-covid-19-testing-for-people-travelling-to-england [accessed 18 January 2021].

11 HC Deb, 11 January 2021, HCWS 696.

12 Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 24) Regulations 2020 (SI 2020/1292).

13 35th Report, Session 2019–21 (HL Paper 177).

14 The Irish Government has published information on travelling to Ireland during COVID-19; see Citizens Information, ‘Returning to Ireland and COVID-19’: https://www.citizensinformation.ie/en/returning_to_ireland/returning_to_Ireland_and_covid.html#lad3df [accessed 19 January 2021].

15 Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 26) Regulations 2020 (SI 2020/1337) in 37th Report (Session 2019–21 (HL Paper 189).

16 Sample size 1,188 travellers from non-exempt countries. Office for National Statistics, Non-exempt international arrivals self-isolation behavioural survey pilot, UK, 30 September to 8 October 2020: [accessed 18 January 2021].




© Parliamentary copyright 2021