Energy Performance of Buildings (England and Wales) (Amendment) (No. 2) Regulations 2015

Baroness Crawley Excerpts

Wednesday 16th December 2015 Lords Chamber

[Lord Teverson]

The SI certainly relates to public buildings. I will come on to explain why it is important to the trading standards side. But I welcome the noble Lord’s intervention. The regulations are partly about public buildings but I had also felt that they were partly to do with private buildings as well. I am happy to be corrected if I am wrong. This is an area of great importance and one that we need to keep on the agenda. I understand the resourcing issue entirely, but this is an area where trading standards generally needs to be involved and should be happy to be involved, subject to that funding.

What I find shameful is that, when the Government are trying to move forward in areas such as climate change, energy efficiency and other areas, DCLG has moved in the other direction. The vandalism of taking out the zero-carbon homes and the commercial buildings targets for 2019 was one of the most regrettable actions of this Government to date in this area. While I understand that there are issues around this particular statutory instrument, which I do not think are so important, the department has been woeful in its actions in this area since this Government came into power. After the great agreement that we have had in Paris, I very much hope that the department will start to get in line with the rest of the Government’s aspirations and repair some of these areas. I thank the noble Lord for his contribution.

[Baroness Crawley (Lab)]

My Lords, I support the objections to these regulations so ably raised by my noble friend Lord McKenzie of Luton this evening. I also ask the Minister why no proper consultation was considered necessary.

As president of the Chartered Trading Standards Institute, I know at first hand how this wonderful profession of trading standards officers is now stretched to the limit. They have experienced, as my noble friend has said, an average of 40% cuts in funding over the last five years and up to 80% in some trading standards services up and down the country. In this time of austere cutbacks their duties have not decreased. As well as all their other responsibilities to which my noble friend referred—consumer protection, e-crime, doorstep crime, food standards, animal health and welfare, age-restricted sales, and weights and measures—they are also, as we know, at this time of year especially, Santa’s little helpers when it comes to product safety. For example, trading standards revealed recently that of the 17,000 hoverboards imported from beyond the European Union for Christmas that they have inspected, 15,000 have failed basic safety tests. That is 88%. This is not a service with time on its hands.

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[Baroness Williams of Trafford]

My Lords, the DCLG will collate and publish a national report. The data will not be challenged in order to provide transparency and national evidence on activity. I am guessing that it is being done because it is an important matter.

It is for local enforcement bodies to determine the nature and extent of the enforcement activity, responding to local priorities and needs. Local weights and measures authorities have the power and discretion to issue penalty notices if necessary, as well as being able to take action to inform, advise and educate. We have ensured that the new reporting requirements are as light-touch as possible to fulfil the purposes of these regulations and provide the transparency that I talked about.

We did not simply spontaneously decide to impose requirements on these authorities, however. As set out in the appendix to the 11th report of the Secondary Legislation Scrutiny Committee, the department received a letter of formal notice in July 2014 from the European Commission relating to UK regulations. The focus of the letter was broader than the scope of these regulatory amendments as it was considering the issue and display of energy certificates in public buildings, although it raised a range of concerns on the adequacy of our enforcement regime. We responded to all the issues raised by the European Commission. We explained the measures we have put in place to allow scrutiny of compliance with the requirements of the Energy Performance of Buildings (England and Wales) Regulations 2012. This included the accessibility of registers on which all of our data are lodged and the amount of information that we put into the public domain.

In various exchanges with the Commission between July 2014 and June 2015, we made it clear that our enforcement regime did not need significant change. Views were sought regarding barriers to enforcement and information in the last Government’s consultation on the future of the display energy regime in early 2015. Local weights and measures authorities have, for the last seven years, had a duty to carry out this work, and appropriate funding has been included in the local government settlement since 2008, when regulations first placed responsibility for enforcement on local weights and measures bodies.

The noble Baroness, Lady Crawley, talked about ring-fencing funding. The settlement provides unring-fenced funding and individual councils can decide what resources they will allocate to each service, depending on the local priorities and needs. We received a range of suggestions on alternative approaches, along with a suggestion that we should ring-fence the funding for this work if it remains a local government responsibility. However, ring-fencing would run directly counter to the long-standing government policy to allow local authorities to determine for themselves how best to use the total pool of resources allocated to them, and cannot be justified in these circumstances.

I believe that these regulations set out the minimum measures necessary to satisfy the UK’s obligations under the directive and to protect England and Wales, and our local authorities, from the possibility of further action. However, that is not to say that they are set in stone.

I regret that we were unable to consult more widely regarding these regulations. However, despite the impression that we have had over a year to address any weaknesses, it was not until we received the Commission’s reasoned opinion in June 2015 that it was clear that further steps were necessary, in particular to address a potential conflict of interest that may arise when a local weights and measures authority is required to enforce against its own parent authority and to put more information into the public domain on enforcement activities.

Once we received the reasoned opinion, we had to act quickly to address any shortcomings. Our focus was to ensure that any further measures we introduced were fit for purpose but as light-touch as possible, and to this end we concentrated on engaging with enforcement officers directly in order to reality-check our thinking. Were we to fail to satisfactorily fulfil the obligations of the directive within the time allocated to us, the likely outcome would be a referral to the European Court of Justice and ultimately the imposition of a multimillion pound fine. Any such fine could potentially fall on local as well as central government.

Going forward, my department will continue to be open to considering the views or proposals of authorities and others based on their experience of implementation. I am also aware of the ongoing review of the functions of local trading standards authorities being led by the Department for Business, Innovation and Skills, and we will consider any relevant recommendations that arise from that.

With that, I hope that the House is assured that we take seriously the representations made to us regarding this enforcement regime. In acting to regulate, we have needed to respond—

[Baroness Crawley]

Has the Minister any idea when BIS will conclude its review?

[Baroness Williams of Trafford]

I can let the noble Baroness know that in writing because I do not know when that will be.

In acting to regulate, we have needed to respond to a tight deadline, but at the same time we have made every effort to avoid placing unnecessary burdens. This House has been greatly assisted by everything that has been said during this debate. I hope that the noble Lord, Lord McKenzie, will feel able not to press the Motion.