Higher-Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations 2023
Lord Gascoigne
That the Grand Committee do consider the Higher-Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations 2023.
Lord Gascoigne (Con)
My Lords, the Building Safety Act 2022 established a new regime for building safety, with stronger oversight of higher-risk buildings and stronger legal duties on those responsible for the safety of higher-risk buildings, known as accountable persons. These regulations set out technical requirements for accountable persons for occupied higher-risk buildings, specifying the information they need to keep for their building and the information they need to share with various people. This information is referred to as the “golden thread information”. The regulations also make minor clarifying amendments to regulations made earlier this year.
These regulations should be considered alongside the Building Safety Act and Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023. Together, these requirements implement the new regulatory regime for occupied higher-risk buildings so that these buildings are managed safely. There will be new legal duties on those responsible for ensuring building safety in higher-risk buildings, with clearer accountability backed by stronger enforcement and sanctions to deter and rectify non-compliance. Together with other regulations made already, these regulations introduce a step change in improving building safety in higher-risk buildings, making sure that residents’ homes in these buildings are places where they are safe and can feel safe.
The golden thread of information is vital to accountable persons fulfilling their duties under the Act. The information, which includes details of the risk assessments and safety measures in place, will help accountable persons have confidence that they are meeting their statutory duties, making sure that they can demonstrate this in their safety case report and, ultimately, keeping residents safe. A full list of the golden thread information that accountable persons must keep is set out in Schedule 1 to the regulations. This includes building plans; the latest assessments of fire and structural risks; details of arrangements in place to manage these risks, including schedules of repairs and maintenance; and the up-to-date resident engagement strategy and safety case report.
The safety case report will be submitted to the building safety regulator for assessment, usually as part of a building assessment certificate application. It will contain an overview of the building, together with details of the accountable persons’ assessments of building safety risks for that building and a demonstration that the measures in place to control and manage those risks are sufficient. The safety case report will serve to provide reassurance that the spread of fire and structural safety risks are being proportionately managed on an ongoing basis, helping to ensure that residents are, and can feel, safe in their homes.
Lord Stunell (LD)
My Lords, I am pleased to speak on this statutory instrument, which is certainly of great importance. We should never lose sight of the fact that all the work that has been done on the Building Safety Act, the Fire Safety Act and the subsequent regulations, which the Minister has sketched in for us, was triggered by the terrible fire at Grenfell Tower, in which 72 people died and many others suffered life-changing injuries and experiences.
I welcome the fact that the Government were so whole-hearted in their acceptance of Dame Judith Hackitt’s report on what should happen. The Liberal Democrats supported both those Acts of Parliament in their passage through Parliament and we shall support this statutory instrument today, but not without some questions on the way. In posing my questions, I understand that the Minister endured, if that is the right word—certainly he took part in—a debate on Thursday that very much overlapped with some of the concerns I am going to raise today.
The first of those concerns is that, in our view, the scope of these regulations and, indeed, the Acts is not sufficiently wide to give the protection that is needed. The limitation of this statutory instrument to high-rise buildings taller than 18 metres is one example of that.
Secondly, it has taken a very long time for this statutory instrument to reach us. It took five and a half years to get the Building Safety Act on to the statute book, and it has taken another 12 months for this particular statutory instrument to come into play. Was that lethargy, complacency or perhaps something else? There seems to be a trend for watering down and neutering some of the building safety regulation regime. Whatever turbulence there may have been in politics in the past 12 months, there has certainly been some turbulence in how the building safety regime has evolved. For six months, there was no building safety regulator after the resignation of the first regulator and a long delay in appointing a replacement.
Of course, the Levelling-up and Regeneration Bill, now an Act, had to have its Long Title changed by a government amendment so that it could also tinker with the building safety regulatory regime, potentially taking it away from the purview of the Health and Safety Executive, which is the one trusted—or perhaps feared—body that the construction industry takes seriously. It will potentially instead be embedded in a completely new body, the shape of which we do not know, but we do know that we shall not have any parliamentary opportunity to debate, change or modify it.
I have two questions. First, can the Minister explain the 12-month delay, and can he reassure us that it is not part of a slackening of urgency in putting a comprehensive scheme in place? Secondly, is this the last statutory instrument that is needed in order to complete the regime, which is now urgently needed and which many actors in the construction industry are ready to get ahead with but lack the information from the Government to show them what they are supposed to do?
I have some more detailed, and perhaps technical, points about this documentation. I appreciate that the Minister may find that they are beyond the scope of his brief, and, if he wishes to reserve his position and write, that is fine. Nevertheless, they should be addressed by the Minister in considering this statutory instrument. In raising my points, I have made particular use of the evidence base provided by the Government in the impact assessment. I start simply by raising the issue that appears in paragraph 42 of that document, which reminds us that there will be a duty to display a building assessment certificate to the public on or in the building. That is very sensible, and we certainly support that proposition, but what is the method of enforcement of that display?
I have previously asked questions about the parallel requirement that a display energy certificate should be publicly displayed at the entrance of publicly accessible buildings. I asked how many public buildings actually had such a display, because I knew many did not, and I was told that no one had any knowledge at all of who did or did not display those display energy certificates. There is one in Millbank House, where my office is, so I am certainly not accusing the Parliamentary Estate of failing to do that, but if there is no enforcement system, the intention becomes a dead letter. So my third question is: can the Minister supply more information about how the display is to be monitored and enforced?
I now raise a point which comes in the evidence base document at paragraph 45 about the need to store the data electronically. Does the department foresee that being to a common standard, with a common database, or is every one of the 14,000 buildings that have been registered with the building safety regulator free to adopt its own system of storing material? Will that material be available to the building safety regulator, and if so, in what form? It is a technical question, but it seems to me one that the construction industry needs to know the correct answer to very early on. Linked to that is what kind of electronic database will still be supported by its inventor and seller in 60 years’ time, or even in 25 years’ time? What is foreseen as the way to make sure that this material does not simply become inaccessible just by changes in technology? How will all that work?
My next question relates to paragraph 47, which seems somewhat out of place with the statutory instrument. It refers to storing relevant information, and then goes on to say that irrelevant information should not be stored because it
“could undermine the purpose of the golden thread”.
Taken together with the correctly reported view of Dame Judith Hackitt that incomplete information was very often a challenging factor in her inquiry, it seems to me that we should find out more about what the Minister or the department think is irrelevant, as opposed to relevant, information. For instance, to take a historical example, is the fact that a fire compartment was made safe with asbestos relevant or irrelevant information? Of course, the debate last Thursday was about the change in regulations for fire retardants; is that relevant or irrelevant information?
When I looked at the statutory instrument itself, however, I could not see any reference to irrelevant information not being required, so I think that has somehow crept into the explanation but not the text. Maybe the Minister could tell me whether that is a correct or incorrect reading. My point is that it is difficult to know what is irrelevant, and that it can change over time as more knowledge emerges about the risks of particular materials. I would have thought that, if it does appear in the statutory instrument, the Minister might want to see it taken out.
I very much welcome what appears in paragraph 54 about the need to inform residents not only of the building’s safety features, but of the residents’ obligations in relation to using the building in a safe manner. That will obviously include not propping open fire doors, making sure that fire extinguishers are not misused, keeping combustible materials out of public circulation areas and so on. We welcome all that, but does the Minister believe that there is or should be any sanction or enforcement for residents who fail to comply with those requirements? As a former councillor and former MP, I am well aware of the discussions that are had, for instance, between social landlords and some tenants of social accommodation, about the challenge of achieving that.
Baroness Taylor of Stevenage (Lab)
My Lords, I draw attention to my interests set out in the register as a serving councillor on a district council and a county council, a vice-president of the LGA and vice-president of the District Councils’ Network. I do not think I have had the opportunity to welcome the Minister to his new role, so I do that now. I thank the DLUHC team—we do not do that enough—for a clear and thorough Explanatory Memorandum, which was extremely helpful in reducing the number of questions that I will ask this afternoon.
We are now more than six years on from the tragedy of the fire and the loss of 72 lives at Grenfell Tower. I am pleased to see that progress is being made at last to address the multitude of issues that arose from it and previous dreadful fires, such that as Lakanal House in Camberwell in 2009. I pay tribute to the determination and commitment of the survivors of Grenfell and the other campaigners, such as the Cladiators, the National Leasehold Campaign, End Our Cladding Scandal and the UK Cladding Action Group. Their powerful voices and front-line witness have enabled the landmark legislation of which this statutory instrument forms the latest step. At last, we are moving to a point where the responsibilities of all concerned—the construction and development industry, freeholders, statutory agencies and the regulator—are becoming clearer. Importantly, we are moving to a point where those responsible for failure can be held accountable for their actions, although we must keep our eye on enforcement processes, as it seems they are not the strongest part of this new regime. The noble Lord, Lord Shipley, referred to the well-understood and respected powers of the HSE, so can the Minister say whether the building regulator will have equivalent strength in terms of enforcement powers?
My first concern is that, even with the strongly stated intent of the Government and the Secretary of State—and, I am sure, the Minister—remediation is still not progressing as quickly as it should. This is not just in relation to cladding; other serious and potentially high-risk defects have been identified but not addressed, as we in my local area know only too well from the experience of the beleaguered residents of Vista Tower in Stevenage. The financial and other impacts of this on residents have been truly devastating; many issues relating to insurance, mortgages and so on remain unresolved.
As we go through the process of considering building safety SIs that implement the various steps towards full implementation of the Building Safety Act, can the Minister reassure us that the department is also keeping an eye on the bigger picture, especially in relation to the remediation that was urgent six years ago and in too many cases has still not been done? Like the noble Lord, Lord Shipley, my party is greatly concerned about the situation in relation to buildings up to 11 metres.
I turn to the regulations. As the Minister said, they are about the golden thread of information, the principal accountable person and any other accountable person for what is classified as a high-risk building. It is vital that all leaseholders and residents are given a voice and empowered by this new regime through that critical information. We have spoken about the previous learning. I have a number of issues to raise in relation to the SI before us.
I start with a serious issue that will be concerning all the action groups and the residents they represent. In a number of places, the SI and the Explanatory Memorandum refer to the significant costs of the administration of this information-sharing regime. Quite understandably, based on the debacle and daylight robbery that some leaseholders have seen in relation to service charges, there are legitimate concerns that this will see considerably more unaccountable costs piled on to the charges that beset all leaseholders at the moment. With the only recourse often being via the complex route of a First-tier Tribunal, what reassurance can the Minister offer residents that there will be some oversight of the passporting of the costs of this regime?
Regulations 7 and 8 set out the role of the accountable person in sharing information with residents and owners of residential units. I appreciate that a great deal has already been done in determining the role of the accountable person but can the Minister outline whether a register of such persons is to be kept and maintained by the regulator, as well as whether that document will be publicly accessible?
This SI rightly focuses on the recommendations in Dame Judith Hackitt’s report that there should be a golden thread of information connecting information held on building safety, and that this should be transparent to residents, leaseholders and homeowners. My concern about Regulations 15 to 18 is that they have the potential to provide a get-out clause from this golden thread for unscrupulous building owners. The regulation around the security exemption is fairly straightforward and clear—I was particularly pleased to see that the exemption for MoD buildings will not apply where there is a small number of MoD families living in a building that is not owned or managed by the MoD—but I share the concern of the noble Lord, Lord Shipley, about why an MoD building should be different from another type of building in this regard.
The exemption that particularly concerned me was the “commercial sensitivity” exemption in Regulation 17—[Interruption.] My apologies: I have been calling the noble Lord, Lord Stunell, by the name of the noble Lord, Lord Shipley. That is my flu brain not working, I am afraid. I know that this exemption was one of a small number of challenges that came up in the consultation process. We have all seen the misuse of commercial sensitivity in other contexts, from viability in planning to classification of documents. One only has to think of all the issues relating to the procurement of the cladding at Grenfell to be concerned that commercial sensitivity should be applied only where it is absolutely necessary. What steps will the regulator take to ensure that this is the case? Will the regulator have powers to intervene if there is a dispute about whether a document can be classified as commercially sensitive? Can the Minister reassure us that it is intended that this exemption be used only in exceptional circumstances and be subject to challenge?
Schedule 1(15) sets out in detail the documents to be retained in relation to the golden thread information; that is helpful, as the noble Lord, Lord Stunell, said. I have one query on this, which relates to the references to “mandatory occurrence reporting”. There is a table in paragraph 208 of the impact assessment that sets out some of the detail of what constitutes a mandatory occurrence. Can the Minister tell us whether that is an exhaustive list? Would the reporting of a mandatory occurrence also contain information about mitigation steps needed to prevent future occurrence?
Schedule 3, on resident engagement, helpfully explains residents’ right of access to documents. Can the Minister clarify whether prospective purchasers will be able to access these documents? We have heard a lot from people in the industry about the concerns that any prospective purchaser has around buying a property in a high-rise building. It seems really important that prospective purchasers, as well as those people already living in the building, can access these records. Lastly, can the Minister explain whether these important issues relating to document access and retention will be subject to periodic review to ensure that they are working as intended?
We are as concerned as the Government to see building safety moving forward with no further delay, so we will not oppose this SI. With more than 4 million people in the UK living in buildings over 11 metres tall, including 1.3 million in buildings over 18 metres—we need to see the 63 consultation responses in the light of those huge numbers, but we all know how tricky consultation can be—we need to ensure that all the outstanding recommendations of the Hackitt report are implemented as quickly as possible. We look forward to considering the Leasehold and Freehold Reform Bill in your Lordships’ House so that we can propose further ways to tackle some of the inequities of the outdated feudal leasehold system that also have an impact on building safety.
Lord Gascoigne (Con)
I thank noble Lords for their contributions. As the noble Lord, Lord Stunell, said—I cannot remember what phrase he used; he may have said “endured”—last week’s discussion, put forward by the noble Lord, Lord Goddard, was certainly a thoughtful one. I spoke to the noble Lord, Lord Goddard, earlier and congratulated him on it; it showed the virtue of the House and the contributions that many of your Lordships make to it.
In a similar vein, the comment was made that not many attendees were there. What is important is not the number of attendees but the quality of the debate. I pay tribute to the noble Lord, Lord Stunell, and the noble Baroness, Lady Taylor of Stevenage, who have thrown many fine questions at me. I will certainly try to answer them as well as I can, but they have shown that this has been another constructive debate.
I will try to answer now some of the points made. Forgive me, but I may miss a few while I am trying to give answers; I will certainly make sure that we respond in writing to those. There are some points on which I will have to write with further information.
The noble Lord, Lord Stunell, asked about the length of time and the delay. The right thing to say is that, given that these changes are so wide-ranging and systematic, we must ensure that we get this right. That will take time, I am afraid, but I can genuinely assure him that this is not slackening—again, a word that I think he used. It is a necessity to get it right.
The noble Lord also asked whether this could be a broader regime, as well as about height and things like that. The height of 18 metres was agreed following engagement with stakeholders and the definition of “high-risk” after Dame Judith’s report, which originally suggested 10 storeys; that would be around 30 metres. The 18-metre threshold is set in the Building Safety Act and was debated during its passage. The scope covers buildings that present the highest risk, protecting those residents who need it the most.
I was asked when the regulations will come into force. As noble Lords will know, they will go through Parliament and, once they are approved and the related commencement regulations are signed by the Minister, they will come into force alongside the Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 and Section 83 of the Building Safety Act 2022.
I was asked whether we will keep the new regime under review. The building safety regulator will do so, and this is in line with its statutory duty under the Building Safety Act. I was also asked about how the electronic database will be handed on and whether it will be kept up to date. The accountable person will need to hand an up-to-date database on to the next accountable person, and it must be transferred electronically, without the data being lost or corrupted. This means that it is, in effect, easily transferable to the next person, but it is the responsibility of the accountable person to ensure that they are keeping the information up to date and able to be transferred.
Baroness Taylor of Stevenage (Lab)
I made the point that I understand about the personal and the security data, but my concern is that the commercial confidentiality data has the potential to be misused by unscrupulous landlords. What is and what is not subject to that needs to be tightly defined, and there needs to be a mediation process run by the regulator to decide—rather than the poor old leaseholder, who is already besieged, having to go to the First-tier Tribunal to get hold of the information they need.
Lord Gascoigne (Con)
I hope the noble Baroness will forgive me for not addressing her question rightly. I will certainly make sure that that point has been registered; it may already have been, but I will make sure that it has. In that vein, I will write to confirm one way or the other. I will have to write to the noble Baroness on a number of points that she raised around remediation and the mandatory occurrence training—I think she mentioned that there is a table. I will have to write on that. As I say, there are a number of other issues—
Lord Stunell (LD)
I thank the noble Lord; he is being very thorough in his responses. Can he just pick up the point I made about the public display of the building safety certificates, and the parallel I drew with the unsuccessful regime for display energy certificates?
Lord Gascoigne (Con)
I am afraid that I will have to write to the noble Lord on that. I did clock it, but I do not have an answer in front of me. I will certainly ensure that he gets a response. I did write it down; I hope he will forgive me for not having an answer before me.
As I alluded to earlier, this has been a meaningful discussion with some good points. The noble Baroness, Lady Taylor, thanked the department; I know that officials will be listening—not just those that are present here, but others who will be watching it and reading Hansard. These debates and discussions do help to improve policy.
To conclude, the golden thread of information is at the core of the safe management of buildings. These draft regulations set out the information that those responsible for managing occupied higher-risk buildings must keep and share with others, including residents. Together, these measures support the creation of a new proportionate building safety regime that protects the safety of residents in high-rise buildings. Once again, I thank both noble Lords for their contributions today and the views they have expressed. I beg to move.