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Twenty Sixth Report Contents

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Instruments drawn to the special attention of the House

Building Regulations etc. (Amendment) (England) Regulations 2021 (SI 2021/1391)

Date laid: 15 December 2021

Parliamentary procedure: negative

These Regulations makes changes to Building Regulations, with the key aim of increasing the energy efficiency standards for buildings as part of a staged implementation of new standards from 2025. While the Explanatory Memorandum (EM) that has been laid before Parliament sets out briefly how the instrument fits into the staged implementation of the Future Homes Standard and Future Buildings Standard and provides links to further material, including Impact Assessments and consultation responses, as a stand-alone document it fails to provide Parliament, those affected by the changes and the wider public with a clear and accessible explanation of the effect of the instrument and how it is intended to operate. We therefore ask the Department to revise the EM.

The Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.

1.These Regulations have been laid by the Department for Levelling Up, Housing and Communities (DLUHC) with an Explanatory Memorandum (EM). According to DLUHC, the instrument makes changes to the Building Regulations 2010 (“the Building Regulations”) to provide a “meaningful and achievable” increase to the energy efficiency standards for buildings, to revise the way in which performance is measured, and, as the first stage of a two-stage approach, to support industry in preparing for the implementation of a new Future Homes Standard (for new dwellings) and Future Buildings Standard (for new non-domestic buildings) from 2025.

2.According to DLUHC, the changes are being delivered through this instrument and through changes to the Approved Documents,1 which provide statutory guidance on ways to meet the Building Regulations. Impact Assessments (IAs) that cover the changes made by this instrument and other changes have been published separately, but these have not been laid before Parliament.2 The following sets out the key changes made by this instrument.

Introduction of a new performance metric

3.The EM states that the instrument provides for a new way of measuring energy efficiency, using a new performance metric. As the EM does not provide further explanation, we asked the Department how the new approach will differ from the current one. DLUHC told us that:

“The new performance metric is the primary energy rate. Primary energy is energy from renewable and non-renewable sources which has not undergone any conversion or transformation process. It is a measure of the total energy used in a building, for example through its lighting, heating and hot water, and it includes energy losses from extraction, processing, conversion and transportation.

We have made considerable progress in reducing the carbon intensity of the electricity grid, and it will continue to decarbonise over time. This means that, when a new building uses electricity, carbon dioxide will become a less useful way of measuring the actual energy efficiency of the building. A primary energy target enables us to set an energy performance target which drives the energy efficiency of the building fabric regardless of the heat source.

Once the instrument comes into force, newly constructed buildings must be measured against the new primary energy target as well as (as is currently the case) a CO2 emissions target and for new dwellings, minimum standards for fabric efficiency.

The primary energy metric provides a measure of the total energy use in the building and takes account of the energy needed to create and transport different power sources.”

4.On request, the Department also clarified that the new primary energy metric will be used for both new residential and new non-residential buildings.

Regulation of on-site electricity generation

5.The instrument changes the way on-site electricity generation systems are regulated. The EM does not provide any further explanation of how this regulation will work or how it will be different from the current approach. Asked for further information, DLUHC told us that:

“The Building Regulations 2010 previously did not regulate on-site electricity generation for the purposes of the conservation of fuel and power. This instrument introduces such regulation for the first time. This fills a gap in standards to make sure that when on-site electricity generation is installed it is installed well, benefiting consumers.

When the instrument comes into effect, any on-site electricity generation must be appropriately sized for the site and available infrastructure; have effective controls; and must be commissioned by testing and adjusting as necessary to ensure that it produces the maximum electricity that is reasonable in the circumstances. A notice confirming the commissioning must be provided to the local authority (or building inspector) and information about the on-site generation system must be given to the building owner. Commissioning’ in this context refers to the process for services and controls in buildings being tested and adjusted properly after installation to ensure the generation system works as it should.”3

6.Asked about oversight and enforcement of these new arrangements, the Department explained that:

“Building control bodies have a general duty to see that building work complies with the applicable requirements in the Building Regulations. This might be a local authority building control service or a private building control service.

Alternatively, a tradesperson registered with a Competent Person Scheme can certify that their work installing on-site electricity generation is compliant with Building Regulations. In order to be registered with a Competent Person Scheme tradespeople must have demonstrated competence in carrying out work in compliance with Building Regulations.

Ensuring that building work complies with all applicable requirements of the Building Regulations is the responsibility of those carrying out the work, for example, agents, designers, builders, installers and the building owner.

Local authorities have enforcement powers they can use if work does not comply with the Building Regulations.”

Changes in relation to overheating

7.The instrument introduces changes to addresses the risk of overheating in new residential buildings. According to DLUHC, this is to ensure that new homes and other residential buildings can cope with the warmer climate of the future. While the EM provides figures to illustrate the seriousness of the challenge, including an estimated increase in the number of heat-related deaths from 2,000 per year in England and Wales to over 7,000 by the middle of the century, it does not set out what practical changes will be made to the Building Regulations to reduce overheating. Asked for further information, the Department told us that:

“The instrument introduces a new overheating requirement in the Building Regulations 2010 to reduce the risk of overheating in new residential buildings. This means that new residential buildings, including houses, flats, residential care homes, student accommodation, and children’s homes must be designed in such a way as to reduce overheating. This requirement is met by designing and constructing the building to achieve both of the following:

• Limiting unwanted solar gains in summer.
• Providing an adequate means of removing excess heat from the indoor environment.

Two potential routes to compliance have been set out in statutory guidance (Approved Document O: Overheating):4

• The ‘simplified method’ has maximum glazing areas and for buildings in the identified high-risk location (set out in the Approved Document), minimum shading standards. The method also includes minimum standards for removing excess heat in buildings in all areas.
• The ‘dynamic thermal modelling method’ allows computer modelling to demonstrate that the building will not overheat. This method allows for more design freedom.

Given the Government’s net zero commitment, our preferred means of mitigating overheating is through passive means (i.e., means which require low or no energy). While mechanical cooling, such as air conditioning, can be used to meet the standard, this should only be where passive means cannot sufficiently mitigate against overheating.”

Changes in relation to ventilation

8.Finally, the instrument makes provision in relation to ventilation standards in new and existing dwellings and non-domestic buildings where building work is carried out to which “Part L” applies. The EM does not provide any further explanation of what Part L does and why the changes made by the instrument are necessary. Asked for further information, the Department explained that:

“Good ventilation is important for the health of the building occupants, for example preventing internal air pollution and mould. […]

‘Part L’ refers to Part L of Schedule 1 to the Building Regulations which requires that reasonable provision must be made in buildings for the conservation of fuel and power. This requirement will be relevant to any building work that changes the energy efficiency of a building.

Building work that makes the building more energy efficient will often increase airtightness and reduce useful ventilation. New Regulations 4(4) and 4(5) (inserted into the Building Regulations by Regulation 4 of this instrument) provide that where building work is carried out to which Part L is relevant, the building must continue to meet the ventilation standard in the Regulations. It is sufficient to show that the ventilation wasn’t made worse by the building work where it did not meet that standard before the work started.”

Impact

9.The changes made by this instrument are impactful and appear to be of wider public interest: according to DLUHC, they aim to provide a “meaningful and achievable” increase to the energy efficiency standards for buildings, and consultations in 2019/20 and 2021 on the changes made by this instrument and other changes received over 3,000 and 700 responses respectively. The expected impact of the legislative and non-legislative changes has been assessed collectively. The EM estimates that the impact on business of the changes to the Building Regulations relating to energy performance and the accompanying statutory guidance relating to Part L for new and existing dwellings will be an increase in costs of £475 million per year over the 10-year policy period. While the EM states that these costs will be largely capital costs incurred by developers, we expect that they will be passed on to consumers.

Conclusion

10.The EM sets out briefly how this instrument and the changes to the accompanying Approved Documents fit into the staged approach of implementing the Future Homes Standard and Future Buildings Standard from 2025. The EM also provides links to the Approved Documents, consultation responses and Impact Assessments which include further information. We take the view, however, that this is not sufficient.

11.The purpose of an EM is to provide Parliament, those affected by changes in the law and the wider public with a clear and accessible, stand-alone explanation of the effect of an instrument and how it is intended to operate. This EM, as currently drafted, assumes an extensive understanding of the current Building Regulations, how they operate and how they are being developed further. We have had to obtain substantial additional information from the Department. The reader should not have to consult a range of different supporting documents to get an understanding of the changes made by an instrument, especially where, as in this case, the policy is complex and technical, and some of the supporting documents go beyond the scope of the instrument itself.

12.We therefore regret that in this case, the Department has failed to meet the expected standard: we ask the Department to revise the EM, and we draw the Regulations to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.

Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021 (SI 2021/1464)

Date laid: 20 December 2021

Parliamentary procedure: negative

This Order introduces new permitted development rights to support the modernisation and development of the Defence estate. It also extends or makes permanent existing permitted development rights which were introduced in 2020 and 2021 on a temporary basis to support the response of businesses, local authorities and health bodies to the pandemic. We regret that some of these temporary measures which were originally introduced in response to an emergency, and which could have a potentially adverse impact on members of the public, are being made permanent through this negative statutory instrument and therefore without the guarantee of robust parliamentary scrutiny and debate that primary legislation would provide.

The Order is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.

13.This Order has been laid by the Department for Levelling Up, Housing and Communities (DLUHC) with an Explanatory Memorandum (EM) that has been prepared by DLUHC and the Ministry of Defence (MOD). The Order introduces new permitted development rights to support the modernisation and development of the Defence estate. It also extends or makes permanent existing permitted development rights which were introduced in 2020 and 2021 on a temporary basis to support the response of businesses, local authorities and health bodies to the pandemic. The key changes made by this instrument are set out below.

Development by the Crown on a closed defence site

14.A new permanent permitted development right is introduced to allow the MOD to extend and alter existing buildings and erect additional buildings on the Defence estate within the perimeter of a site. The EM states that the new right “will enable MOD to achieve its infrastructure development plans faster, and with more certainty as well as giving Defence the agility to amend and adjust plans to meet changes in requirement as the capability needs in Defence change”. The new right will be subject to certain limitations and conditions, including in relation to the size, height and location of the development.

Moveable structures in the curtilage of pubs, cafes, restaurants, and historic visitor attractions

15.A time-limited permitted development right which was introduced in 20215 and allows one moveable structure in the curtilage of pubs, cafes, restaurants and historic visitor attractions without the requirement to submit a planning application is made permanent. According to DLUHC, this allows, for example, for a marquee providing additional space in a pub garden or a gazebo in the grounds of a national trust site for entrance and ticketing. The Department says that the existing temporary right has had a positive impact, and that making it permanent will support the economic recovery of hospitality businesses and heritage attractions. The arrangements do not give permission for change of use of land or structures on public highways or pavements and are separate from temporary changes to pavement licenses which were introduced in 2020 and allow hospitality businesses to place furniture, such as tables and chairs, on the highway outside their premises.

16.According to DLUHC, a consultation on the changes made by this instrument from 5 September to 14 November 2021 sought views about the permanency of this right and potential restrictions and conditions on its use. While the Government’s response to the consultation or a detailed analysis of the responses has not yet been published, the Department says that those supporting permanency (more than half of the organisations which responded and around a third of responses from individuals) highlighted the benefit to local high streets and town centre recovery, while those who were opposed, including two thirds of individuals who responded, expressed concerns about noise and the impact on the appearance and access to heritage assets.

17.The restrictions and conditions on the use of the new permitted development right include a height limit of three metres, a two-metre boundary buffer where next to residential development, and a size threshold of no more than 50% of the existing footprint of the building on site or 50 square metres, whichever is the lesser. The right also maintains the current protections for Scheduled Monuments and prevents the use of moveable structures for the display of an advertisement. Where the site is a historic visitor attraction or listed building, a moveable structure may only be allowed for up to 120 days in a 12-month period, and there is a requirement to consult Historic England and to reinstate the land to its original condition once the moveable structure is removed. There is no time limit for the use of a moveable structure in relation to pubs, cafes and restaurants.

18.The EM states that because the Licensing Act 2003 regime will apply to licensed premises, and the environmental health statutory nuisance regime will apply to all premises, there will be “effective mitigation and avenues of redress for local residents against harm to local amenity from noise or public nuisance”. DLUHC told us that licensing authorities can consider the effect of issues such as noise nuisance, light pollution and litter from licensed activities on those living or working near the premises, and that under the Licensing Act 2003, where a concern is raised, a local authority can review a premises licence and may modify the conditions of the licence, for example by attaching terminal hours to outdoor use, or revoke the licence in the most serious of cases. The public is also consulted prior to the grant or variation of a licence. In addition, under the Environmental Protection Act 1990, local authorities are responsible for investigating complaints about issues which could be a deemed a statutory nuisance, such as smoke, odour, accumulations and other issues, in addition to noise. If they agree that there is a statutory nuisance, councils must serve an abatement notice, usually on the person responsible.

19.We note the assurance provided by the Department about the limits and conditions on the new permanent development right. We remain concerned, however, about its potential impact on members of the public and that those who may have concerns about a development will no longer be able to raise these through the planning process.

Markets held by or on behalf of local authorities

20.A time-limited permitted development right which was introduced in 2020 and extended in 20216 and which allows markets to be held by or on behalf of local authorities for an unlimited number of days without the requirement to submit a planning application is made permanent. While there will be restrictions in relation to the location of these markets, the right does not include any other requirements or conditions, for example in relation to noise or traffic. DLUHC told us, however, that as the right can only be used by local authorities or on their behalf, “we would expect the relevant local authority to consider the most appropriate locations and sizes for markets”.

Development by Local Authorities and Health Service Bodies

21.A time-limited permitted development right that was originally introduced in 2020 and subsequently extended7 is extended by a further 12 months until 31 December 2022 to allow local authorities and health service bodies to facilitate the development and change of use of premises in response to the pandemic without the requirement to submit a planning application. According to DLUHC, this right has been used widely to deliver the Nightingale Hospitals and to provide additional buildings to support the rollout of the vaccination programme.

Conclusion

22.While we acknowledge the intention to support the economic recovery from the pandemic, we are concerned that some of the temporary measures which were originally introduced in response to an emergency, and which could have a potentially adverse impact on members of the public, are being made permanent through this negative instrument, and therefore without the guarantee of robust parliamentary scrutiny and debate that primary legislation would provide. Under the new arrangements, members of the public who may have concerns about a development will no longer be able to raise their concerns through the planning process. We regret that the Department has not yet published the Government’s response to the consultation, especially as we were told that two thirds of individuals who responded to the consultation were opposed to making the permitted development right permanent in relation to moveable structures.

23.We have raised similar concerns before:8 this is yet another example of impactful and permanent changes being made under the pretext of the pandemic and under the authority of an Act of Parliament, but under circumstances which could hardly have been anticipated when the original primary legislation was passed.

Prison and Young Offenders Institution (Coronavirus) (Amendment) Rules 2022 (SI 2022/4)

Date laid: 5 January 2022

Parliamentary procedure: negative

24.The original Rules set up provision for prisons and Young Offender Institutions to apply a stricter regime to prevent the transmission of coronavirus in their populations, which might include inmates spending longer hours in isolation, being denied visits and the cancellation of education and rehabilitation classes. We were particularly concerned about the effects of such a regime on the mental health of all inmates and on the education of young offenders. To manage the threat of Omicron, these amending Rules extend to 24 March 2022 the period in which the coronavirus regime may be applied. We remain concerned about its effects if applied over long periods, but this report includes helpful material from the Ministry of Justice setting out how the scheme has been operating, and how prisons have been monitoring and seeking to mitigate the negative effects.

25.These Rules 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.

Background

26.To manage the threat of Omicron, these Rules (“the new Rules”) amend the Prison and Young Offender Institution (Coronavirus) (Amendment) (No. 2) Rules 2020 (“the original Rules”) to change the definition of the “transition period” from “three months from the end of a transmission control period” (which would end on 27 January 2022) to a period ending 24 March 2022 (thus extending it to five months).

27.The original Rules set up provision for prisons and Young Offender Institutions to apply a stricter regime to prevent the transmission of coronavirus in their populations, which might include inmates spending longer hours in isolation, being denied visits and the cancellation of education and rehabilitation classes. We were particularly concerned about the effects of such a regime on the mental health of all inmates and on the education of young offenders.9

28.The original Rules also provided that once the Secretary of State for Health declared the end of the transmission control period, the subsequent transition period would initially last three months, with the Secretary of State for Justice being able to extend this for up to one month at a time, to a maximum of six months in total. Both we and the Joint Committee on Statutory Instruments10 criticised this “rolling extension” provision, and it was subsequently limited to three months by amending regulations.11

29.Although the new Rules use the appropriate legislative vehicle, and the Explanatory Memorandum (EM) makes clear that the extension provides a facility that Governors should use only if necessary, the effect of the extension is almost to double the length of the transition period. The EM is thin on practical detail about how the regime has operated so far, we therefore asked the Ministry of Justice (MOJ) to provide further information on how the scheme has been operating and how prisons have been monitoring and seeking to mitigate the negative effects:

Restrictions to inmate regime during the pandemic: “Her Majesty’s Prison and Probation Service (HMPPS) has taken advice from the UK Health Security Agency (UKHSA – formerly Public Health England) and Public Health Wales on reducing the risks associated with outbreaks of coronavirus in prisons throughout the pandemic. This has required necessary changes to regime delivery, enabled by the temporary Prison Rule modifications that this SI seeks to extend.

The use of these restrictions has been kept under regular review throughout the pandemic and restrictions have been lifted as soon as it has been deemed safe to do so, in line with public health advice. These decisions have been guided by the ‘Covid-19: National Framework for Prisons,12 which describes five ‘Regime Stages’ with varying degrees of restrictions. Where regime restrictions have been necessary, mitigations have been in place to support wellbeing, for example, video calls and additional phone credit to support social contact.

During periods of lower infection rates and reduced risk, prisons have been able to provide more expansive regimes with fewer restrictions. During the summer of 2020 and from April 2021, for example, restrictions on social visits were lifted as soon as possible. By December 2021, the majority of prisons were operating at ‘Stage 1’ of the National Framework. This is the least restrictive Stage in which the majority of the regime runs as normal alongside a set of core infection controls (e.g. quarantining of new entrants, asymptomatic testing of prisoners and staff, ventilation, handwashing).

The emergence of the Omicron variant has required the reintroduction and ongoing use of some regime restrictions to manage the risk of infection, which is why the extension has been sought via this SI.”

“Transmission control period” and “transition period”: “The same temporary Rule changes introduced during the transmission control period apply during the transition period. The purpose of the transition period is to give prisons more time to deal with the higher Covid risk from the new variant, and transition back to normal operations. The extension is required in direct response to the threat posed by Omicron and the requirement to reintroduce more restricted regimes in order to control the transmission risk and threat to health and life.

The provisions set out in the SI are designed to give Governors the flexibility they need to respond to the coronavirus pandemic; they do not mandate that prisons must follow a more restricted regime. As the situation has evolved throughout the course of the pandemic, regime restrictions have been eased at the earliest opportunity, on the basis of public health advice. Where they are no longer required to ensure the health of prisoners and staff, the restrictions that are currently in place to support our response to Omicron will be eased as soon as possible, as appropriate to the circumstances of each prison.”

Effects of restricted regime on prisoners’ mental health: “Throughout the pandemic HMPPS has been capturing and sharing lessons learned from our ongoing response to Covid.13 Our evidence shows that, as with the wider community, prisoners and staff have experienced continuing and increasing emotional and mental health strain. The House of Commons Justice Select Committee14 and HM Inspectorate of Prisons15 have also highlighted the impact of restricted regimes on the mental health of prisoners.

Maintaining safety and the mental health and wellbeing of prisoners remains a priority, as it has throughout the pandemic. We acknowledge that, while the restrictions we have put in place have been necessary to save lives, for some individuals there have been negative consequences, as in the community. Every effort has been made to minimise the associated harms from regime restrictions in terms of wellbeing and mental health.

In April 2020 a range of mitigations were introduced to support prisoners while regimes have been restricted. We have adapted their use depending on the degree of restriction in place over time, but currently prisons are operating with supplementary phone credit for prisoners, additional secure video calls, as well as a number of other mitigations that prisons can draw on depending on their local requirements (e.g. prisoner pay, removal of TV rental charge etc).

We have also made a Wellbeing Fund available to Governors equivalent to £10 per prisoner which can be put towards additional resources and materials to support prisoners’ mental health and wellbeing, based on local needs and priorities.

During the pandemic we have provided tailored guidance for supporting specific groups of people in prison whose wellbeing may be more impacted by restrictions to regime and have produced a range of products to support Governors in devising and implementing local safety and welfare plans. This has included resources for staff assisting prisoners who might be struggling, in-cell activity materials for prisoners aimed at improving wellbeing, and work with the Samaritans to ensure the Listener peer support scheme continues to function effectively. For prisoners with severe mental health issues, we are doing everything we can to ensure that the process for transfer to hospital continues as normal.”

Conclusion

30.From the start of the pandemic16 we have expressed concerns about the effects of such a restrictive regime on the mental health, education and rehabilitation of offenders. The documents helpfully provided by MOJ indicate that our concerns were well founded, and that, while some mitigations have been effective, others have not; and the long-term effects on prisoners have yet to be evaluated. The documents also indicate negative effects on staff health and welfare from the restrictive coronavirus regime. While we appreciate that MOJ is in a difficult position, we would hope that it will encourage Governors to use the “lockdown” provisions allowed by this legislation very sparingly.

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