Building Safety Bill (Fourteenth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Eddie Hughes)
It is a pleasure to serve under your chairmanship, Mr Davies. To ensure that the developers of new build homes are accountable for their actions, they will be required to become and remain members of the new homes ombudsman. The principle of requiring organisations to belong to an ombudsman or redress scheme by law is not new. Clause 130 provides the legal basis for the Secretary of State, by regulations, to require developers to become members of the scheme, and to remain members for a specified period. That may extend to when they are no longer developers, which will ensure that they meet their responsibilities to the people to whom they sell homes.
The clause also allows the Secretary of State to require members to inform purchasers of the scheme, which may include requiring members to obtain, display or produce on request a copy of a certificate confirming their membership of the scheme. It also provides for an enforcement framework to be put in place to protect against rogue developers who breach the requirements in the regulations, and that includes the imposition of civil sanctions for breach of the requirements.
The proposal will create a flexible enforcement framework, allowing the Government to task an existing or new regulator or enforcement body with investigating and sanctioning breaches of membership and publicity requirements, and to resource that body accordingly. Proportionate safeguards are attached to the new power. Where provision is made for sanctions to be imposed, there must also be provision for the right to appeal the imposition of a sanction. The clause is vital as the basis for a future-proofed and comprehensive redress, accountability and enforcement framework.
Clause 131 places a requirement on the person who maintains the new homes ombudsman scheme to keep a register of the scheme’s members and make it publicly available. That will help instil more confidence in the transactional process, given that a prospective purchaser will, for example, have greater assurance that issues with their new build home, if they happen to arise, can be resolved via the new homes ombudsman.
Mike Amesbury (Weaver Vale) (Lab)
It is a pleasure to serve under your chairmanship once again, Mr Davies. I have a brief question for the Minister about examples of civil breaches and sanctions. He referred previously to the fact that, under current protections, new homeowners have fewer rights than those purchasing a new toaster, so enforcement measures and sanctions will be vital. Will the Minister briefly expand on that?
Eddie Hughes
I think, in terms of the spectrum of powers, that we are better focusing on the ultimate power: that developers could be expelled from the scheme if they do not comply with the ombudsman’s code. That would prevent them from developing in the future, which feels like a heavy stick with which to beat them should they decide not to comply. It is therefore important for that ultimate action to be available, so that people know that a developer not prepared to comply with the code will ultimately be prevented from building homes in the future.
Question put and agreed to.
Clause 130 accordingly ordered to stand part of the Bill.
Clause 131 ordered to stand part of the Bill.
Clause 132
Developers’ code of practice
Mark Logan (Bolton North East) (Con)
I beg to move amendment 57, in clause 132, page 137, line 9, at end insert—
“(1A) The code of practice must include measures on the standards of quality of work to promote building safety, including but not limited to, preventing water ingress.”
This amendment requires the developers’ code of practice to include standards relating to the prevention of water ingress.
Mike Amesbury
I thank the hon. Gentleman for tabling this important amendment. It is something that we are familiar with. My good friend and colleague, the hon. Member for Brentford and Isleworth has alluded to the fact that the amendment could be somewhat broader. I am sure that the Minister and the Department will address that in the code of practice. The Opposition are happy to support the amendment.
Eddie Hughes
I thank my hon. Friend the Member for Bolton North East for raising this important matter. It is clearly an area of great concern in his constituency. Too many people have been let down, and I am sorry to hear about the terrible experience his constituents have faced. Unfortunately, this is something that happens far too often. When a new home is built or an existing building is converted poorly water ingress is a serious issue and may cause serious distress and detrimental effects to homebuyers and their properties.
My hon. Friend is right to raise the issue in the wider context of improving the quality and safety of our built environment. Developers and warranty providers must meet their responsibilities and resolve issues quickly and fairly. It is unacceptable that people are stuck in homes through no fault of their own. However, in this case, the Government consider that the amendment is not necessary and that we have already met its intentions elsewhere in our statutory framework.
Developers are already under a legal duty to prevent water ingress. Requirements are set out in building regulations, in particular part C of the Building Regulations 2010, which already include requirements for resistance to contaminants and moisture. That includes ensuring that buildings are protected from ground moisture; precipitation, including wind-driven spray; condensation; and spillage of water. Guidance is available in approved document C on how to comply with this requirement.
In addition, the Building Safety Regulator has a duty in clause 5 to keep under review the safety and standards of all buildings, which would include ensuring that building regulations are fit for purpose and making recommendations if changes are needed. The developers’ code of practice provided for in this clause is about the standards of conduct and standards of quality of work expected of members of the new homes ombudsman’s scheme more generally, and may include developers complying with existing standards and requirements.
The Chair
With this it will be convenient to consider that schedule 9 be the Ninth schedule to the Bill.
Eddie Hughes
The Government are committed to ensuring that construction products placed on the United Kingdom’s market are safe. The clause and schedule create a power to make regulations for the marketing and supply of construction products in the UK.
Not all construction products are covered by the existing regulatory framework, which derives from EU law. Schedule 9 contains powers to extend the regulatory framework to cover all construction products available on the UK market. The Government intend to use this power to ensure that construction products are safe before they are placed on the UK market. In addition to this general safety requirement, schedule 9 will give the Secretary of State the power to create a statutory list of safety-critical construction products where their failure as part of a construction would risk causing serious injury or death.
The power will enable the Government to require manufacturers to declare the performance of these products to a specific standard and put in place measures to ensure that this performance is consistently met. This will bring the regulation of safety-critical products in line with those covered by the existing regulatory framework, so that any purchaser or user of a safety-critical product will have reliable information about how it will perform. Schedule 9 will enable the Secretary of State to amend the existing regulatory framework or replace it in Great Britain so that it continues to meet the needs of Great Britain’s market.
We know the importance of claims made in the marketing of products. Schedule 9 will give the Secretary of State power to address false and misleading claims made about the performance of construction products. Dame Judith Hackitt recommended that the Government should ensure a more effective enforcement regime with national oversight to cover construction product safety. That is why schedule 9 paves the way for a national regulator for construction products and enables us to strengthen market surveillance and enforcement powers. It enables the Secretary of State to make provision for the national regulator and local trading standards to issue civil penalties and recover costs from economic operators where appropriate. Setting out regulatory requirements for construction products in secondary legislation will enable us to amend regulations quickly when needed so that they remain appropriate within a continuously changing industry landscape.
Mike Amesbury
I thank the Minister for outlining the provisions in this clause, which we support. There is a need to strengthen the regulatory regime, so this regulator is welcome. We have seen the evidence of the building safety scandal. The Grenfell inquiry has shown that companies literally re-engineered—gamed—the system to ensure that their products seemingly met the appropriate standards at the time. This will strengthen that process and ultimately ensure that the building safety landscape is improved in future, and hopefully in the here and now, when the Bill passes through Parliament. [Interruption.] If I start smoking and steam starts coming from me, do excuse me—I seem to be surrounded by radiators. We are happy to support the clause.
Eddie Hughes
I welcome those comments. We have definitely seen during the course of the Grenfell inquiry that products have been either tested or marketed in an inappropriate way, and it is good to see agreement across the House. The clause will strengthen our hand in that regard.
Question put and agreed to.
Clause 133 accordingly ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 134
Amendment of Regulatory Reform (Fire Safety) Order 2005
Question proposed, That the clause stand part of the Bill.
The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)
Welcome to the Chair, Mr Davies. I am pleased to see that you are putting the Government’s heat and buildings strategy into full effect in the Committee.
The Government are committed to strengthening the Regulatory Reform (Fire Safety) Order 2005 in order to better protect people’s safety in all regulated premises. Clause 134 delivers on 10 proposals that received significant support from respondents to the 2020 fire safety consultation, to address weaknesses that were commonly reported by stakeholders and to better align the order to the new building safety regime. New duties on responsible persons, informed by best practice, will support greater compliance with the order and its effective enforcement, mainly through the improved recording and sharing of fire safety information.
For all multi-occupied residential buildings, the owner or manager will be required to provide relevant and comprehensible fire safety information to residents, as will be specified in the order and may be set out in regulation. That will reassure residents that fire safety is effectively managed and will empower them to hold responsible persons to account. For higher-risk buildings, responsible persons will be required to identify the accountable persons and to co-operate with them. The co-operation duties in this clause and clause 118, with which we dealt on Tuesday, will support a co-ordinated approach to safety in higher-risk buildings between those duty holders, subject to either the building or the fire safety regime.
For all regulated premises, responsible persons will be required to record their fire safety risk assessment in full, including measures taken in response to risk. When appointing a person to assist them with making or reviewing a fire risk assessment, they will be required to ensure that that person is competent to do so. We also need to strengthen the existing co-operation duty between responsible persons sharing premises by requiring them to identify themselves to each other, provide United Kingdom contact details, explain the parts of the premises for which they consider themselves to be a responsible person and record that information. Where responsibility for fire safety changes hands, the outgoing responsible person must provide critical information for the incoming responsible person, as will be specified in the order and as may be set out in regulation.
Our amendment to article 50 of the order will enable the courts to consider a responsible person’s failure to follow all statutory guidance issued to support compliance with their duties as tending to establish a breach of the order. We will also increase the maximum financial penalty available to the courts from £1,000, which is level 3, to unlimited fines, level 5, for offences of impersonating an inspector, breaching requirements imposed by an inspector or in relation to the installation of luminous tube signs, which brings the measure in line with the fire safety order.
Question put and agreed to.
Clause 134 accordingly ordered to stand part of the Bill.
Clause 135
Architects: discipline and continuing professional development
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 135 relates to the competence of architects. It was developed in response to a proposal in the independent review that advised that the Government and the Architects Registration Board should consider the current and future competence of architects on the register of architects. It provides the ARB with the power to specify the practical experience and training requirements for architects. That will enable the ARB to monitor the competence of all architects on the register. It allows the ARB to determine which practical experience or training should be assessed and how the assessment should take place.
Theo Clarke (Stafford) (Con)
Will architects be able to appeal against a decision taken by the Architects Registration Board to remove them from the register for not meeting the new competence requirements?
Eddie Hughes
An architect may appeal to the High Court if they are aggrieved by a decision taken by the Architects Registration Board to remove them from the register for not meeting the new competence requirements, but we will need to consider further how a non-judicial appeal route could be made available for architects to make such challenges in future. The clause sets requirements for the ARB to consult bodies representing architects as well as such other professional and educational bodies as it thinks appropriate. Currently, the Architects Act 1997 does not provide powers for the ARB to scrutinise competence after the initial registration and throughout an architect’s career unless an allegation of unacceptable professional conduct is brought before the ARB. This means that an architect may be practising for a prolonged period without any further proactive regulatory oversight.
Ruth Cadbury
I am interested to know whether “architect” means the individual named person or the company or practice for which they work, or which they are a member of. There is a very famous architect who is responsible for some iconic buildings and structures; some of those failed, notoriously, but that individual managed to avoid any litigation because of the way he structured his relationship with the building or structure that was constructed. That is a risk, and I wonder whether that has been considered in drawing up this clause.
Eddie Hughes
I thank the hon. Lady. My understanding is that clause 138 will deal with the point she makes.
To continue with clause 135, this proposal brings the architects’ profession in line with best practice in other professions and gives greater assurance to those procuring and inhabiting buildings. The objective of the clause is to ensure that all registered architects are suitably competent to undertake their work and that their knowledge is up to date.
Clause 136 relates to the list of services for which the Architects Registration Board may charge. Currently, the 1997 Act provides for a small number of services for which the ARB may charge. The costs of all the ARB’s functions are currently met by the annual retention fee, which is charged by the ARB to all registered architects.
However, the ARB offers a number of other services. This clause will allow the Secretary of State to make regulations to expand the list of services for which the ARB may charge a fee on a cost recovery basis, meaning that only those using the services will cover the costs. The aim of this clause is to keep the retention fee low for all of the architects on the register. An example of a potential additional charge would be to charge a fee to international institutions that wish their architectural qualifications to be recognised by the Architects Registration Board in the UK.
Question put and agreed to.
Clause 135 accordingly ordered to stand part of the Bill.
Clause 136 ordered to stand part of the Bill.
Clause 137
Housing complaints made to a housing ombudsman
Mike Amesbury
I beg to move amendment 16, in clause 137, page 142, line 36, at end insert—
“(c) after sub-paragraph (1), insert—
‘(1A) He must as part of his investigation consult tenants or bodies representing the interest of tenants.’”
This amendment would ensure the Housing Ombudsman consults tenants as part of complaints made against social housing providers.
Mike Amesbury
I thank my hon. Friend for her intervention, and for reiterating the point about residents’ voices. Clarion was cleared, despite the fact that hundreds of repairs took place once the television segment was aired, which demonstrates the depth of the issues that developed in homes. People from across the Committee and beyond have seen that programme. On Clarion’s board is a former Housing Minister, so it does have insight at a senior level.
Clearly, the amendment is only part of the reform needed to ensure that our social housing sector provides safe housing and listens to the needs of tenants. To reaffirm what the hon. Member for West Bromwich West said, tenants must be heard at all times, not just when issues develop to such an extent that tenants complain. There should be engagement over a period of time—and not just with, let us say, the usual suspects.
We have an opportunity to make a difference today. I urge the Government to strengthen the laws and support the amendment.
Eddie Hughes
It is unfortunate that my prescribed speech starts with the statement, “The Government are not able to accept the amendment.” However, context is important. The hon. Gentleman suggested that the Government had defunded and diminished social housing, and said that gave rise to the problems. However, in the same speech he also pointed out that one of the housing providers that was shown to be at fault during the programme that he referred to manages approximately 140,000 houses. This is an organisation with substantial resources—millions and millions of pounds in the bank—so clearly defunding was not the problem at play. There was a structural problem with regard to the organisation and its ability to communicate appropriately with residents.
Mike Amesbury
Surely, going forward, if complaints from tenants are going to the new regulator of social housing, and a systemic problem is picked up—as with, for example, Clarion housing and that particular estate—it is just common sense that engagement with tenants will be part of the remit.
Eddie Hughes
I have heard it often said that one of the problems with common sense is that it is neither common nor sensible sometimes, and so it proves to be in this case, because a different organisation is meant to take that duty: the housing ombudsman. Through this process, the removal of the democratic filter will mean that people who want to complain do not have to go to a councillor or their local MP; they will be able to escalate the complaint themselves directly.
We are trying to ensure that residents know how to complain and that the system is fair, easily navigated and, hopefully, brings clarity to the situation. Although I have seen the programme that the hon. Gentleman refers to, and I completely sympathise with his intentions, I do not believe that the amendment is appropriate. I must point out our concern about the unintended effect that it would have. I assume that the amendment seeks to ensure that wider issues arising from or relating to an individual complaint, and which may affect multiple tenants, are picked up and addressed. However, the approach to which the amendment would give effect raises issues of privacy and data protection. Under the amendment, a resident making a complaint about their landlord would face the prospect of having information that they submitted to an ombudsman—personal and perhaps highly sensitive information—disclosed to third parties.
It would not be appropriate to require the housing ombudsman to consult unrelated third parties as part of its investigation into an individual’s personal issue. Cases that enter the housing ombudsman’s formal remit may be resolved through early resolution. The housing ombudsman works with complainants and landlords to try to agree a negotiated solution, within a time limit. The housing ombudsman’s approach to investigations into individual complaints is inquisitorial; evidence is sought from both the resident and landlord. There is engagement with the resident at different stages of the process to determine the scope of the complaint, the outcome being sought and the evidence. This engagement is with the individual resident and their landlord and should not be fettered through consultation with unrelated third parties.
Regarding engagement with residents, landlords and other organisations, the housing ombudsman service regularly engages with and consults residents and landlords on a range of activities relating to the service in a range of ways. Activities include consulting on their three-year strategic plan, their annual business plan, and revisions to the housing ombudsman scheme. The scheme enables residents, and others, to have complaints about members investigated by the housing ombudsman. It sets out, for example, how the service investigates complaints, membership terms and conditions, who may use the scheme, which complaints the housing ombudsman service may or may not investigate, how it will investigate and its powers and functions.
Consultations are open to individual residents and representative bodies and groups, and the housing ombudsman engages proactively with both. The housing ombudsman service has a resident panel that is open to all social housing tenants, and has a membership of over 600 residents. It provides an opportunity for residents to be involved in the development of the housing ombudsman’s service as well as giving direct feedback on their experience of the service, and to engage with many different aspects of the housing ombudsman’s work—for example, providing views on its investigations into sector-wide issues such as damp and mould.
Further engagement work takes place through regular meetings with resident bodies, and quarterly “Meet the ombudsman” events across the country. Issues discussed at these events have included the housing ombudsman’s role in providing advice and assistance while complaints are within the landlord’s process, as well as how it formally investigates once the landlord’s process is complete; the housing ombudsman’s expectation that all landlords should adopt a positive complaint-handling culture and what this means in practice; and how the housing ombudsman works with the regulator of social housing. Another issue discussed has been the learning reports that the housing ombudsman produces for landlords, which are focused on different categories of complaint. These reports identify failings and make recommendations for improvement.
The housing ombudsman service publishes a range of other information to inform and support residents, including all of its determinations on individual cases, anonymised so that residents’ names are not used; annual landlord performance reports; guidance on making and progressing complaints; and insight reports that look at complaints data, individual cases and wider learning points, and that share knowledge and learning from its casework. The housing ombudsman service has agreed a memorandum of understanding with the local government and social care ombudsman and the regulator of social housing, which commits it to sharing information on issues which affect multiple residents.
Earlier this year, the housing ombudsman published a new systemic framework, which set out how it will look beyond individual disputes to identify key issues that affect multiple residents and signal wider issues with landlord services. Again, learning is shared across the sector to promote good practice and support a positive complaint-handling culture. I hope that the hon. Member for Weaver Vale will withdraw the amendment.
Turning to clause 137, removing the democratic filter is one of a range of measures the Government are committed to in “The Charter for Social Housing Residents”—the social housing White Paper referred to earlier. It will ensure that landlords provide good services and engage positively with residents, treating them with courtesy and respect, and being accountable and transparent in how they operate. The charter sets out that this includes:
“To have your complaints dealt with promptly and fairly, with access to a strong Ombudsman who will give you swift and fair redress when needed.”
The housing ombudsman service, created in 1996, delivers an independent and impartial service to ensure that disputes are resolved and residents receive redress where appropriate. We are clear that residents should be able to raise concerns without fear, and get swift and effective resolution when they do. Currently, however, social housing residents who wish to seek redress because they believe they have received unsatisfactory service from their landlord have to refer their complaint to a designated person. This can be an MP, councillor or recognised tenant panel. Alternatively, residents have to wait eight weeks from the time that their complaint has exhausted the landlord’s complaints process before they can formally refer their complaint to the housing ombudsman. That is known as the democratic filter.
Clause 137 relates to the removal of the democratic filter stage—a requirement that was introduced by the Localism Act 2011. This gave a role to a designated person in dealing with disputes between social landlords and their tenants or leaseholders. The democratic filter was intended to strengthen the accountability of social landlords, enable housing complaints to be resolved using local knowledge, and help reduce the number of formal investigations by the housing ombudsman. In practice, it has resulted in social housing residents having less direct access to redress rather than consumers accessing other redress schemes.
The Green Paper consultation in 2018 identified this as an issue, which we then tested at consultation. We asked whether we should reduce the eight-week waiting period to four weeks or remove the requirement for the democratic filter stage altogether. Some 5% supported no change, 38% supported the option to reduce the waiting time, but 47% supported the option to remove the democratic filter stage.
Separate consultation undertaken by the housing ombudsman also established that although some designated persons’ arrangements work well, in many cases they do not operate effectively. It also emerged that in some areas tenant panels either do not exist or are not used. During 2019-20, only 6.9% of the cases entering the housing ombudsman’s formal remit were referred by a designated person. Removal of the democratic filter received support from the majority of respondents when the housing ombudsman service consulted on its 2019-22 corporate plan and 2019-20 business pan, with low support for the designated person role.
We all know how important our homes are to us. When things go wrong with our homes, we should expect to be listened to, have repairs carried out quickly, faults rectified, and maintenance work carried out to prevent faults from recurring. We want to know that our homes are safe for us to live in, safe for our families, and fit for purpose. When repairs are required, they should be carried out speedily and efficiently. When we are not listened to, landlords need to rectify issues. It is stressful, worrying and frustrating. I commend the clause to the Committee.
Mike Amesbury
Neither clause 137 nor the explanatory notes mention the voice of residents, tenants or leaseholders. The Minister correctly referred to the current structure of the housing ombudsman and the recommended changes, including the democratic filter. Labour Members agree with that. It is very sensible to speed up the process. I speak regularly to representatives of Grenfell United —I know that Ministers and departmental officials do, too—and their view is crystal clear. They are dissatisfied with the measure because it does not capture or build on the principle of active engagement with residents, tenants and leaseholders. We will not, therefore, withdraw the amendment; we wish to press it to a vote.
Question put, That the amendment be made.
Christopher Pincher
The purpose of clause 138—rather as clause 39 does for the Building Act 1984—is to make it clear that where individuals who control a corporate body participate in committing criminal offences under parts 2 and 4 of this Bill, they, too, are criminally liable for those offences. Many of the persons who will have duties under the new regime will be corporate bodies—legal persons, as they are known—rather than individuals, who are often known legally as natural persons. Any corporate body operates only through the actions of its employees, controlled by its managers and directors. Therefore, if there is an offence by a corporate body, there is likely to be some measure of personal failure by those in positions of seniority.
This liability is already provided for in a number of other pieces of legislation, including notably the Health and Safety at Work etc. Act 1974; the Committee has heard me speak about that in previous sittings. The end result is that directors and managers are just as criminally responsible as the company where either they have made decisions that led directly to the offence being committed, or they have been negligent in allowing the offence to occur.
We have addressed similar points that were raised in debates on previous clauses. If there is one director of a company, it is likely that two prosecutions—for both the company and the director—would be brought, although in practice there would be one case to answer. If the company had dissolved, the company itself would not be liable for prosecution, but that would not prevent a prosecution from coming forward against any one or a number of the managers or directors of the company who were there at the time the offence was committed.
The potential for criminal liability of directors and managers reinforces the duty of those who direct the actions of companies to uphold and promote building safety throughout the operations of their companies—again, inculcating the culture that we want to see. The Government consider that this is a key contributor to our stated purpose of embedding building safety at all levels of the industry, contributing to residents both being and feeling safe in their homes. I commend the clause to the Committee.
Mike Amesbury
I want to draw out a point that the Minister referred to. In the construction sector, as has been mapped out in the journey of the Bill so far, special delivery vehicles or special purpose projects are set up and then dissolved. How would this provision apply to the individuals and directors involved? We welcome this clause, which is a real step forward, but we just want to draw out that point.
Christopher Pincher
I am happy to help the hon. Gentleman. In my previous remarks, I may have said, “if a company folds”; what I hope I said was that if and when a company dissolves, the dissolution of the company does not prevent an individual—a senior person, a manager or a director—from being liable for offences if they were there at the time the offence was committed. I hope that that confirms the issue that the hon. Gentleman rightly draws out. We are essentially in agreement, and I commend the clause to the Committee.
Question put and agreed to.
Clause 138 accordingly ordered to stand part of the Bill.
Clause 139
Review of regulatory regime
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
The Government are committed to the continuous improvement of the building regulatory regime and the construction products regulatory regime, including the Building Safety Regulator and the national regulator for construction products. The purpose of the clause is to legislate for the appointment of an independent person to carry out a periodic review of the system of regulation for building safety and standards, and of the system of regulation for construction products. We believe that such a review will act to assure the functioning of the systems and provide independent recommendations for improvement.
The independent review recommended a periodic review of the overall system of building regulation, including accountabilities, responsibilities, guidance and the effectiveness of the regulator. It recommended that the review should be undertaken by an independent person at least once every five years. The clause meets that recommendation and goes further.
The review must consider the Building Safety Regulator and the system of regulation established by parts 2 and 4 of the Bill and by the Building Act 1984. It must also consider the regulation of construction products, including the effectiveness of the national regulator of construction products. However, the independent person is not limited and may review connected matters. The Secretary of State may also indicate areas of specific interest that they would like the reviewer to consider. I stress, however, that the Secretary of State has no ability to limit the remit of the review.
An independent person must be appointed at least once every five years, although the Secretary of State has scope to appoint a person more regularly should they so wish. By ensuring that the report produced by the independent person must be published, the Government have created a system of public accountability in building safety. In seeking to define “independent”, we have struck a balance that discounts those with a clear conflict of interest, without overreaching and excluding everyone with relevant experience. Under that approach, the exemplar for an experienced but independent person is Dame Judith Hackitt, prior to her appointment to the lead the independent review.
The Government have provided a structure to ensure that an independent review of the system of building safety and standards will occur at least once every five years, and we have ensured that the reviewer can operate unfettered. The clause will help to protect the integrity of the system and help to make sure that the system continues to create a safe built environment in the future. I commend the clause to the Committee.
Question put and agreed to.
Clause 139 accordingly ordered to stand part of the Bill.
Clause 140 ordered to stand part of the Bill.
Clause 141
Crown application
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
The clause provides that the Crown is bound by parts 2 and 4 of the Bill, and by the provisions relating to the new homes ombudsman.
The Crown Estate manages an extensive property portfolio on behalf of the Crown, and that portfolio includes a number of in-scope buildings. The Duchy of Lancaster on behalf of Her Majesty, and the Duchy of Cornwall on behalf of His Royal Highness the Prince of Wales, also manage property portfolios that may include in-scope buildings. Some properties owned and occupied by Government Departments may include permanent accommodation, which could bring them within scope.
It is right that those buildings should be subject to the new regime we are setting up for existing buildings. This clause therefore provides that the Crown is subject to parts 2 and 4 of the Bill. This is in line with the approach taken in the Regulatory Reform (Fire Safety) Order 2005 and the Health and Safety at Work etc. Act 1974, which apply to the Crown. It will mean that the Crown will be an accountable person for in-scope buildings and, as such, will be bound by all the duties placed upon an accountable person. The Crown will also be bound by the provisions of the new homes ombudsman, so any Crown bodies developing new residential properties that are within the scope of that ombudsman may need to join the scheme as required by regulations, as my hon. Friend the Member for Walsall North has mentioned in other contexts.
In line with long-standing legal and constitutional principles, the Crown as an entity cannot be subject to criminal sanctions. However, individual Crown servants can be, and that is provided for in clause 141(3) of the Bill.
Selaine Saxby (North Devon) (Con)
The Bill applies parts 2 and 4 to Crown buildings. Do the Government intend to extend the application of part 3 of the Bill to Crown buildings, too?
Christopher Pincher
Clearly, there should be a consistent approach to the application of all the provisions of the Bill to the Crown. There is an existing power in section 44 of the Building Act 1984 to enable building regulations to be applied to the Crown, although it has not been brought into force. We have been looking at whether we should switch this power, but there are gaps in how it would operate. In particular, as drafted, the power in section 44 of the 1984 Act would not allow us to make regulations setting out the gateway requirements for work carried out by Crown bodies. We are working through the issues and what might be needed by way of new provisions in the hope that we can resolve these matters at a later stage of proceedings on the Bill. I thank my hon. Friend for her intervention.
Ruth Cadbury
I want to be clear that this clause has been included because of the new legal status of the Crown, not because it owns a number of historic buildings that include some residents and that may be within the scope of the Bill. I can think of other owners of historic buildings in which people live that may be within scope, such as the National Trust, English Heritage and museums. If we establish that the Palace of Westminster is a residential building, it appears to be out of scope. I would be grateful if the Minister could help me through that confusion.
Christopher Pincher
I am sorry that the hon. Lady is confused. I appreciate that some of these matters are exceptionally dry and very technical, but none the less, they are extremely important. The Crown has a unique legal position in our country, as I have said. Because of long-standing legal and constitutional principles, it is not an entity subject to criminal sanction, but it does operate a very significant property portfolio, and in that portfolio there are in-scope buildings. That is why this clause has been included in the Bill, for the sake of specificity and clarity.
While the general principle of applying part 2 and 4 of the Bill to Crown buildings is right, we need to recognise that there may be some buildings where, for example, security or other operational considerations mean it would not be appropriate to apply the regime. In the draft statutory instrument on scope, we therefore proposed to exclude military premises, including barracks and buildings occupied solely for the purposes of the armed forces. Those will remain subject to the Ministry of Defence’s existing building and fire safety arrangements, which we believe to be strong ones. Clause 141 therefore ensures that the protections provided by the Bill are available to leaseholders, tenants and users of existing Crown buildings. I commend the clause to the Committee.
Mike Amesbury
If the Crown commissions a new build above 18 metres or seven storeys, the new regime applies. Can the Minister expand on this scenario? If there is a serious fire that results in deaths, and those acting on behalf of the Crown are found to be culpable, who would be criminally liable? Would the Crown be exempt?
Christopher Pincher
I will try to help the hon. Gentleman as best I can. As I have said, the effect of this clause will be that the Crown is regarded as an accountable person for in-scope buildings. The clause will cover the responsibilities of an accountable person, and it will ensure that they apply to the Crown. The Crown is also responsible for adhering to the provisions of the new homes ombudsman. In the event of a specific fire in a specific place, I imagine that it would be for the prosecuting authorities to determine where culpability lies. A range of measures are set out in the Bill and in existing Acts of Parliament to ensure that those who are culpable for criminality can be charged, tried and, if necessary, brought to justice. I hope that helps the hon. Gentleman with his question.
Question put and agreed to.
Clause 141 accordingly ordered to stand part of the Bill.
Clause 142
Power of Secretary of State to make consequential provision
Christopher Pincher
I beg to move amendment 19, in clause 142, page 145, line 10, at end insert—
“(3) Regulations under this section may not make provision that may be made under section 143.”
This amendment provides that the Secretary of State may not make consequential provision that may be made by the Welsh Ministers under clause 143.
The Chair
With this it will be convenient to discuss clause stand part and clause 143 stand part.
Christopher Pincher
This is a technical amendment to ensure that the devolution settlement is protected.
Question put and agreed to.
Clause 142, as amended, ordered to stand part of the Bill.
Clause 143 ordered to stand part of the Bill.
Clause 144
Regulations
Daisy Cooper (St Albans) (LD)
I beg to move amendment 39, in clause 144, page 146, line 24, at end insert—
“(8) But the Secretary of State may not—
(a) lay before Parliament a statutory instrument under subsection (6), or
(b) make regulations in a statutory instrument under subsection (7)
(9) That condition is that the Secretary of State has consulted—
(a) fire safety experts,
(b) leaseholders and their representatives,
(c) local authorities, and
(d) safety and construction industry bodies”.
This amendment would require the Secretary of State to consult with stakeholders before making regulations.
Mike Amesbury
I thank the hon. Member for St Albans for tabling the amendment, which we support. This culture change in building safety—making people safe in buildings in the here and now, and in the future—requires consultation with the maximum number of stakeholders to help shape legislation and regulations going forward. This is a very common-sense amendment; it strengthens the Bill.
Christopher Pincher
I thank the hon. Lady for introducing the amendment and the hon. Member for Weaver Vale for his comments. The amendment would require the Secretary of State to consult with specific stakeholders before making regulations.
I entirely understand the hon. Lady’s intention and I agree with the principle that there should be appropriate consultation on regulations made under the Bill. I hope that, by the time I have concluded my remarks, she will see that the amendment is at best superfluous and at worst could be rather confusing. I will explain why. I do not mean in any way to detract from what she is trying to achieve.
The Government have introduced provisions to ensure appropriate consultation in clause 7, which we debated some little while ago, before the rather long conference recess, in the proposed new section 120B of the Building Act 1984 in schedule 5, and in the specific procedures to ensure appropriate scrutiny of changes to the scope of the higher-risk building regime. I am grateful to the Committee for agreeing those provisions already.
I remind the Committee that we have already said that we will include consultation provisions when making regulations. Those regulations will always be subject to consultation.
Save for certain limited special procedures, the independent Building Safety Regulator may propose regulations to the Secretary of State after consulting on them and drawing on the benefit of its technical expertise and expert committees. Where the Secretary of State initiates proposals, they must first consult with the independent Building Safety Regulator and other persons they consider appropriate before regulations can be made. It pays to stress that I appreciate the spirit of the amendment, but maintaining the existing provisions in the Bill has three fundamental advantages.
First, on a technical point, the amendment would apply only to regulations made under this Bill and not to regulations made under the Building Act 1984, including under the provisions inserted by part 3. Committee members may remember that I spoke, some might say monotonously, about the 1984 Act in previous sessions. We need a consistent approach to consultation across building safety standards legislation, to make sure that it is simpler and fairer, and I think this approach is preferable.
Secondly, the amendment would create a degree of confusion and duplication, because it would insert an additional consultation provision into the Bill on top of the existing one in clause 7. The practical effect would be some duplication and delay. To give an example, where the Building Safety Regulator has proposed regulations to the Secretary of State after a full and proper consultation under clause 7, the effect of this amendment would be that the Secretary of State was required to conduct a further consultation with the key stakeholders listed in the amendment. We believe that that would create unnecessary delays in tackling important building safety issues.
Thirdly, we believe that the general requirements to consult in the Bill are more likely to support effective consultation than the approach set out in the amendment, which seeks to list a specific set of consultees in primary legislation. That would, as we all know, be much more difficult to unwind and change as the building safety landscape changes.
A wide range of regulations will be made under the Bill. They will range from technical regulations setting out what functions the Building Safety Regulator and the local authorities may share information on, or the form on which certain applications must be made, through to very complex regulations that are necessary to deliver the new national regulator for construction products. We do not think that a one-size-fits-all approach to which parties need to be consulted is appropriate to that range of subject matter. Instead, we believe that the consultation requirements stipulated in clause 7 will support more effective and tailored consultation.
Members of the Committee should be reassured by the fact that the Bill’s approach to making regulations learns from the approach that has successfully been taken in respect of health and safety regulations. The Health and Safety Executive, with the Secretary of State, has taken a proportionate approach to consulting parties before regulations are made, and it has been doing that for more than 40 years.
We understand that expertise will not stop at the door of the Building Safety Regulator, nor, for that matter, the Secretary of State. We agree that consultation on regulations is necessary, but we think that adding this amendment would unintentionally create duplication, confusion and—because of its disapplication from the Building Act 1984—a narrowing of the application of the provision. Given the assurances that I have provided to the Committee, and the fact that the Bill already ensures appropriate consultation mechanisms, I hope that the hon. Lady will withdraw the amendment.
Daisy Cooper
I thank the Minister for his assurances that he agrees with the spirit of the amendment, and I am sure that during proceedings on the Bill, others may look at the scope of the application of this measure. I am grateful for his assurances on the parliamentary record that he agrees with the spirit of the amendment, which is designed to continue the democratic scrutiny of secondary legislation. I beg to ask leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 144 ordered to stand part of the Bill.
Clause 145 ordered to stand part of the Bill.
Clause 146
Commencement and transitional provision
Amendments made: 20, in clause 146, page 147, line 18, at end insert—
“(3A) As regards Part 3 and section 134—
(a) the following provisions come into force on such day as the Welsh Ministers may by regulations appoint—
(i) section 30 so far as relating to section 120I of the Building Act 1984;
(ii) section 31(3) so far as relating to section 91ZD of that Act;
(iii) section 41 so far as relating to section 58Z2 and 58Z8 of that Act;
(iv) paragraph 56 of Schedule 5 (and section 54 so far as relating to that paragraph);
(v) paragraph 77 of that Schedule so far as relating to section 120C of the Building Act 1984 (and section 54 so far as relating to that section);
(b) the following provisions come into force, in relation to Wales, on such day as the Welsh Ministers may by regulations appoint—
(i) section 31 except subsection (3) of that section;
(ii) section 32 except so far as relating to paragraph 1D(3) of Schedule 1 to the Building Act 1984;
(iii) sections 33 to 40;
(iv) section 41 except so far as relating to section 58Z2, 58Z7 or 58Z8 of the Building Act 1984;
(v) section 42 and Schedule 4;
(vi) sections 43 to 51;
(vii) section 52 except subsection (1) of that section;
(viii) section 54 and Schedule 5 except—
(a) paragraphs 38, 39 and 86 to 88 of that Schedule (and section 54 so far as relating to those paragraphs);
(b) paragraph 77 of that Schedule so far as relating to section 120B of the Building Act 1984 (and section 54 so far as relating to that section);
(ix) section 55 and Schedule 6 except paragraphs 7 and 29 of that Schedule (and section 55 so far as relating to those paragraphs);
(x) section 56;
(xi) section 134 except subsection (8) of that section so far as relating to Article 22B of the Regulatory Reform (Fire Safety) Order 2005;
(c) subject to that, Part 3 and section 134 come into force on such day as the Secretary of State may by regulations appoint.”
This amendment confers certain powers of commencement on the Welsh Ministers.
Amendment 21, in clause 146, page 147, line 22, at end insert—
“(5A) Regulations under subsection (3A)(a) or (b) may make transitional or saving provision.” —(Christopher Pincher.)
This amendment provides that commencement regulations made by the Welsh Ministers may make transitional or saving provision.
Clause 146, as amended, ordered to stand part of the Bill.
Clause 147 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)