Highways (Financing) Bill (Fifth sitting)
(1 day, 9 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we continue line-by-line scrutiny of the Bill, let me set out the usual preliminary details. Please turn all electric devices to silent mode. No food or drinks are permitted during sittings, except for the water provided. Members are reminded to bob and catch my eye if they wish to speak in any debate.
The selection list for today’s sittings is available in the room and on the parliamentary website. It shows how the clauses, schedules and selected amendments have been grouped for debate. I remind hon. Members that the selection list shows how amendments and new clauses have been arranged for debate, but any Divisions will take place in the order in which items appear in the amendment paper.
Clause 25
Licence holder’s tolling scheme: content and procedure
Olly Glover (Didcot and Wantage) (LD)
I beg to move amendment 41, in clause 25, page 18, line 14, at end insert
“including a reduced rate from tolls for vehicles registered to Disabled Persons’ Badge holders;”.
This amendment ensures that toll reductions for Blue Badge Holders in a statutory condition of a licence, rather than to the discretion of licence holders.
The Chair
With this it will be convenient to discuss the following:
Government amendment 5.
Amendment 42, in clause 25, page 18, line 26, at end insert—
“(1A) A tolling scheme must provide for lower tolls to be charged for residents living within an area in close proximity to the chargeable highway.
(1B) ‘Close proximity’ under subsection (1A) is to be determined by the Secretary of State in consultation with the highest tier local authority in the areas through which the highway passes in regulations subject to the affirmative procedure.”
This amendment gives local residents a right to discounted tolls on toll roads that they would expect to use regularly due to geographic proximity.
Clause stand part.
Olly Glover
It is a pleasure to serve under your chairship, Mr Wishart. Amendment 41 would introduce a requirement for blue badge holder discounts on any toll road. It would close a major loophole in clause 25 by making toll exemptions for blue badge holders mandatory rather than optional.
Clause 25 states that a tolling scheme must specify exemptions, leaving it entirely to operator discretion whether any exemptions are offered at all. Although people in the private sector sometimes do the right thing, they are not always necessarily wholly motivated to do so of their own accord. They may therefore need a little encouragement or requirement.
Disabled drivers rely on private vehicles for essential mobility and must not be subjected to commercial toll charges when accessing healthcare, work or local services. Why does clause 25 leave exemptions for disabled drivers, and indeed emergency services, to corporate discretion rather than enshrining them as mandatory rights in primary legislation?
Amendment 42 would establish a statutory right to discounted toll rates for local residents living in close proximity to a toll highway. Local residents who are near major crossings such as the Dartford crossing or lower Thames crossing bear the daily brunt of construction, disruption, air pollution and localised traffic gridlocks. As Edmund King of the AA pointed out in his public evidence to the Committee, frequent local users who cross toll structures for work or daily life face an unfair tax on jobs without dedicated resident discounts. Michael Whelan, the general manager of M6toll, told us that M6toll had introduced a local resident discount, holding local trips to £4, demonstrating that resident schemes are practical and commercially viable. I look forward to the Minister’s comments.
Greg Smith (Mid Buckinghamshire) (Con)
It is a pleasure to see you in the Chair, Mr Wishart. I have a couple of brief remarks to make on the amendments tabled by the third party.
On the point about blue badge holders receiving a discount in statute, of course we all want to see those in society who find themselves in need of a blue badge, with whatever disability they might have, being treated fairly and supported in getting about and living their life. I am not certain, however, that the blue badge system is the correct mechanism for linking that to any tolling regime, as amendment 41 seeks. His Majesty’s official Opposition are not sold on that point.
With amendment 42, however, we have considerably more sympathy. The hon. Member for Didcot and Wantage pointed out the impact on residents near any toll road—in this case, predominantly the lower Thames crossing—who probably have to use it quite regularly to get to and from their homes, businesses, children’s places of education or whatever it might be. Critically, that phase of construction can be incredibly disruptive to somebody’s life. Believe me, Mr Wishart, I know the pain of that from the many infrastructure projects in my own constituency.
The payback for putting up with years of construction— or with some projects, potentially decades—must surely be some fair recognition in legislation. In this case, that could be a discount on any toll for residents within a set geographic distance from the new road as it is built under the licence given to any operator under this proposed legislation. I am looking briefly to the hon. Member for Dartford, who I am sure would want his residents to receive such a discount for using the lower Thames crossing, as I think any of us would if we saw new infrastructure of that type being built in the vicinity of our constituency. It is surely a matter of fairness that those who live near a new scheme and put up with its construction, and who by definition will probably have to use it for access more than most, should receive that discount.
Jim Dickson (Dartford) (Lab)
It is a pleasure to serve under your chairship, Mr Wishart. I will speak to both amendments.
Currently, Dartford residents who use the Dartford crossing are able to do so at a considerable discount. The definition covers residents within the Dartford borough council area, who either pay £25 a year to use the crossing as many times as they like or pay £12.50 a year for 50 crossings. That represents good value for Dartford residents and gives them some compensation for having to live next to a crossing that takes all the burden of traffic crossing the Thames outside London and that therefore causes huge congestion and significant problems with air quality.
I imagine that when the lower Thames crossing is opened, residents of Gravesham or in the area around and north of the crossing will also want a resident discount, to compensate them for living near a busy crossing. The Dartford crossing and the lower Thames crossing will both still be busy, albeit that traffic will be much better distributed between the two, which will certainly be a blessing for Dartford residents.
I totally understand why the Minister does not want this set out in the Bill; I am sure he will say that such things should be dealt with by the regulator and the licence holder. However, I hope he will give Dartford residents some assurance that that conversation will be had at the right moment, as we expect, so they can have confidence that they will continue to benefit from the current concessions and maybe even see them extended to both crossings, as might be the case for Gravesham residents using the Dartford crossing in future.
The Parliamentary Under-Secretary of State for Transport (Justin Madders)
It is a pleasure to see you in the Chair this morning, Mr Wishart, and to welcome you back to the Committee. I am glad to see that most of us have made it back after the excitement of last week; I hope we will continue to have some very thought-provoking debates.
I turn to the interesting amendments tabled by the Liberal Democrat spokesperson, the hon. Member for Didcot and Wantage. Amendment 41 would make it a statutory requirement for any licensed highway to include a discount for blue badge holders. We all recognise the importance of ensuring affordability and the need for specific groups to be taken into account. I can confirm that the existing scheme for exempting vehicles used by or for people with disabilities that is already in place in Dartford will continue to apply for the first control period, which is nine years from the date of the transaction. That would also be extended to the lower Thames crossing. I am happy to make that commitment on the record today.
Beyond the first control period, the hon. Member and I are aligned in the view that the needs of individual groups must be considered in the setting of tolls, and that suitable discounts or exemptions should continue to apply. However, my view is that that is already captured by the regime set out in the Bill. A fundamental tenet of the duty on the Office of Rail and Road is that it must act at all times in the manner
“best calculated to further the interests of users”,
which of course means all users.
There is an established precedent that toll operators offer toll concessions for disabled users. Our issue with the amendment is that generally those schemes are tied to eligibility for exemptions from vehicle excise duty, as is the case with the current Dart charge. That exemption recognises the additional mobility needs and costs faced by people whose disability significantly affects their ability to move around.
As a public sector body, the ORR is already bound in legislation to advance equality of opportunity for people with protected characteristics, through the public sector equality duty. That will be supplemented by a duty to further the interests of users. Both duties will apply in the setting of tolling conditions and the ORR’s tolling code. Additionally, the Government will be able to issue guidance to the ORR on the exercise of its tolling functions.
Olly Glover
I understand the Minister’s point, but does he agree that a problem with taking what he says on trust is that at the moment, as far as I am aware, there is no plan to develop or publish the ORR’s code on the charging of tolls before the Bill is passed? We would need to see that code to be assured that it is sufficiently robust to do what the Minister says.
Justin Madders
In our previous sittings, the Committee has debated at length why that detail will not be possible at this stage—it is simply because the level of information on financial transactions is not there—but I have stated on the record what our intention is and what safeguards and measures are in the Bill to ensure that these groups are protected. Unfortunately, the phrasing of amendment 41 does not address the protections that are currently offered.
I absolutely understand the hon. Gentleman’s good intentions, but “blue badges” is a colloquial term. The scheme varies from local authority to local authority. It is primarily not about travel between places, but about ensuring that people can park accessibly at a particular location. It does not relate to a person’s need for a vehicle in the first place; it relates solely to their needs when they have arrived at their destination.
I therefore do not think that amendment 41 is the right one to address the concerns that the hon. Gentleman has raised. I absolutely understand those concerns, but I am confident that the existing framework represents the right approach. It is a robust protection of disabled users, but it also has flexibility, meaning that as our understanding of people’s needs changes, or as scheme criteria change, the ORR can continue to act dynamically to protect the interests of all users. I hope that I have given him some assurance that we intend to deal with the matter in the way that his amendment indicates.
Amendment 42 is about local discounts. On the lower Thames crossing and on Dartford, I am happy to give the hon. Gentleman the same commitment that I made on amendment 41: that for the first control period, which is for nine years from the date of transaction, the local resident discount scheme will remain in place. Beyond that, I believe that the framework strikes the right balance in ensuring that the ORR is representing the specific needs of all users, supported by guidance issued by the Department.
The shadow Minister, the hon. Member for Mid Buckinghamshire, says that he is looking for recognition in the Bill that local needs will be taken into account. I believe that the Bill does provide that recognition. It is right that this is a framework Bill to secure outcomes based on clear duties and expectations.
In practice, requiring a local resident discount in the way the hon. Member for Didcot and Wantage proposes would not give the protection that I think he wants. An operator could fulfil an obligation to carry out a local discount simply by taking 1p off tolls for local residents or offering £1 off an annual pass. That would meet the letter of the law under the amendment, but would clearly ignore the spirit of what we are trying to achieve. In those situations, the ORR would not be able to intervene in the way we have set up in the Bill, because the licence holder could simply say, “We have provided a local residents discount scheme,” albeit that their scheme was not in the spirit that we intend.
In the Bill, we hope to deliver a practical, flexible solution that allows the Government to outline our clear expectations, that empowers the ORR to set a fixed requirement and that requires the ORR to act in a manner that is fair and transparent. It is through that framework that we will deliver a fair outcome for all users and recognise the interests of specific user groups.
As my hon. Friend the Member for Dartford has set out, the level of detail that currently applies to local discounts is not something that we would want to make explicit in the Bill, as it would not have the flexibility that the ORR needs in order to deal with future discounts. It is not a fixed concept; it is based on flexibility and response to local need, as my hon. Friend so eloquently set out. The Government therefore cannot support amendment 42.
Greg Smith
I understand the Minister’s argument, but it is predicated on good will. As his words will be taken into account in any future analysis or interpretation of legislation, can he confirm that he believes that it is at least right in principle that residents in an area near any new road get a discount not just for living close to it and using it, but as a form of compensation or recognition for having lived through construction?
Justin Madders
I absolutely understand the shadow Minister’s point. The whole point of this work is to make life easier for local residents. There will of course be some disruption during construction but, in the case of the lower Thames crossing, the local road network is quite a long way from the majority of the works. The powers of the regulator, the opportunity for guidance to be given to stakeholder groups and the overriding duties of the ORR are sufficient to give us confidence that the intentions that I have espoused today will be delivered.
My amendment 5 is intended to put beyond doubt that the penalty charge referred to in clause 25 relates to a failure to pay the toll. I hope hon. Members will agree that it is a straightforward amendment made for the purposes of clarity.
Clause 25, as amended, will set out the information that a licence holder must include in its tolling scheme. The scheme must clearly identify the highway where tolls will apply and explain when drivers will have to pay. It must set out which vehicle types will be charged, the amount of the toll and any exemptions or reduced rates. It must explain how and when tolls must be paid and how the licence holder will record and collect payments. It must describe the information that will be used to decide whether a toll is due or has been paid. It must also explain what might happen if a toll is not paid, including the level of any penalty or other charge. Importantly, the scheme must explain how a driver can challenge a toll.
The clause will allow different tolls to apply in different circumstances. For example, charges may vary by time of day, distance travelled, type or use of vehicle or method of payment. The licence holder must publish the scheme in a way that brings it to the attention of people likely to be affected. It must also provide a copy to anyone who asks.
The clause will therefore ensure that drivers can understand when tolls apply, how much they must pay and what rights they have if they wish to challenge a charge. I hope that hon. Members can see the logic of setting that out in the Bill. I commend clause 25, as amended, to the Committee.
Olly Glover
On amendment 41, I will give the Minister the benefit of the doubt, although it does underline the importance of the ORR code. I note that the next group includes a Conservative amendment on that topic, which will be important to discuss. I am not persuaded by the Minister’s comments that it is not possible to produce the code before the Bill becomes law. We were told very similar things about the licence and the access and use policy in relation to the Railways Bill, and yet the Government eventually decided that they could indeed publish those things before the Bill became law. I encourage the Minister to adopt that not necessarily very common instance of good practice from his Department and apply it to this Bill.
I hear what the Minister says about amendment 42, but this is a very important issue and I wish to press it to a Division.
I beg to ask leave to withdraw amendment 41.
Amendment, by leave, withdrawn.
Amendment made: 5, in clause 25, page 18, line 22, after “charge” insert—
“in respect of a failure to pay a toll”.—(Justin Madders.)
This amendment clarifies that provision in a tolling scheme about rates of penalty charges is limited to penalty charges in respect of non-payment of tolls.
Amendment proposed: 42, in clause 25, page 18, line 26, at end insert—
“(1A) A tolling scheme must provide for lower tolls to be charged for residents living within an area in close proximity to the chargeable highway.
(1B) ‘Close proximity’ under subsection (1A) is to be determined by the Secretary of State in consultation with the highest tier local authority in the areas through which the highway passes in regulations subject to the affirmative procedure.”—(Olly Glover.)
This amendment gives local residents a right to discounted tolls on toll roads that they would expect to use regularly due to geographic proximity.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss amendment 69, in clause 103, page 67, line 18, leave out lines 18 to 21 and insert—
“after the ORR has published its code relating to the charging of tolls under section 26.”
This amendment would prevent the Act from coming into force until the ORR has published its code relating to the charging of tolls.
Justin Madders
I will address clause 26, which requires the ORR to publish a code on how tolls should be charged. The code will set out the principles and standards that tolling arrangements should meet. Its purpose is to ensure that tolls are charged fairly and transparently for road users. The ORR may update or replace the code at any time, and any updated or replacement code must also be published. The ORR may leave out information if publishing it would be likely to harm a person’s commercial interests.
Clause 26 therefore provides clear and independent oversight of how licence holders charge tolls, while protecting genuinely sensitive commercial information, and I commend it to the Committee. I will respond to the Opposition amendment once I have heard what the shadow Minister has to say.
Greg Smith
I wish to speak to amendment 69, in my name and that of my hon. Friend the Member for Bognor Regis and Littlehampton. There is a recurring theme in this Bill, and in plenty of other legislation debated in this and the previous Session: we are being asked to trust—throughout all the stages of the Bill, including here in Committee this morning—that something will be produced that is material and intrinsic to the legislation that we are debating and voting on. I could almost describe it as an “It’ll Be Alright on the Night” principle: “It’ll be fine—it’ll be published at some later date. Pass the legislation, then we can judge what the code actually says once the Bill has received Royal Assent and become an Act.” That opens up many questions for this Committee, for the wider House and, most importantly, for all the travelling public across the country.
Amendment 69 is, I would have thought, relatively straightforward. It would prevent any measure in this Act from coming into force until the ORR has published its code relating to the charging of tolls. It cannot possibly be unreasonable that the principles and rules—not the pounds and pence—must be known and clear to all those who may at some point need to pay those tolls, be they a private motorist or members of our incredible logistics sector and road hauliers across the country. It cannot be unreasonable that, when they are making their business plans, they ought to be clear what those rules will be. The regulator’s toll charging code is absolutely central to how motorists will be treated.
I simply put a few questions to the Minister, who I suspect will be resistant to the amendment—I suspect we will hear similar arguments to those he has given on similar amendments to different parts of the Bill previously. If the Government are to resist the amendment, will the Minister answer whether the code will explain the principles of setting tolls, payment transparency and the treatment of road users and toll payers? How far in advance will the code be published in draft and subject to consultation?
What consultation will any such code be subject to? Will that consultation be meaningful, or will it be the sort of consultation that we have become all too familiar with in recent years? Within the confines of that consultation, how will motorists and operators be able to understand with detail and clarity what any such code will actually mean for them? In the real world and in the lived experience of all of us across all sorts of different sectors, we often get these sorts of codes and principles published, and they are not very clear. They are open to a lot of interpretation. If we do not have it set out as clearly as possible now, how will the real users of the roads be able to contribute to the way that code is shaped and get the answers that they deserve—before they find themselves trapped on camera, with a penalty charge notice through the post, trying to understand what on earth went wrong in the first place?
Justin Madders
I am grateful to the shadow Minister for reminding us all of Denis Norden and “It’ll be Alright on the Night”. I am not sure I can give him that level of wisdom today, but I will attempt to answer his questions.
The shadow Minister has of course correctly predicted that we will not be accepting the amendment. I hope he is going to give us the lottery numbers for Saturday night as well—his powers of prediction are very strong; he may even anticipate what I am going to say. The amendment would force the ORR to publish a tolling code in the abstract before the Act has commenced and therefore before the licensing authority could actually consult on the licence, which is required under clause 4 of the Bill. That could slow down or delay the delivery of the lower Thames crossing.
The tolling code will set out the principles and constraints that the licence holder must follow when proposing, setting and implementing tolls.
Alison Griffiths (Bognor Regis and Littlehampton) (Con)
The Minister is describing the process he wishes to take place. My hon. Friend the Member for Mid Buckinghamshire made an important point about principles. Surely the Minister and the Government know the principles they wish to deploy in the collection of tolls. That should be something he can explain here today.
Justin Madders
If the hon. Lady shows a little patience, I shall hopefully do that for her. The important thing in terms of the Government principles is the guidance from the Secretary of State. That guidance will specify to the ORR the various parameters, and the ORR must have due regard to that guidance. It is clear, from what I have said, that we intend to include something on local discounts in the guidance. Ultimately, we would want that to be reflected in the tolling code published by the ORR. Of course, the ORR is independent and therefore the exact content of the code will be up to it.
As I was saying, the tolling code will set out the principles. It will include requirements around how the tolling regime is structured. It will also cover how final charges are published and communicated to users, alongside governance arrangements, including consultation. As I have said, in making its code, the ORR will have due regard to guidance set by the Department and the Secretary of State. The details of the code are ultimately up to the ORR, and it is necessarily dependent on any guidance provided by the Government and the specific arrangements set out in the licence.
Douglas Lumsden (Aberdeen South) (Con)
The Minister spoke about consultation. This part of the Bill also talks about revising and replacing the code, so can he assure us that consultation will also take place on that?
Justin Madders
I am happy to give that assurance.
The ORR will consult on the tolling code in advance of the first tolling scheme. I cannot give the shadow Minister a precise timing, because this is obviously all dependent on when the financial transactions are completed. That is, in essence, why we cannot support the amendment.
To make the commencement of the Bill dependent on the publication of the code would create a Catch-22 scenario: Government guidance and the licence could not be finalised until the commencement of the Act, but without Government guidance and the licence, the ORR could not meaningfully finalise and consult on the content of the code. That is why, unfortunately, we cannot accept the shadow Minister’s amendment.
The Chair
Amendment 69 may be voted on later in the proceedings.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27
Enforcement of tolls: penalty charges
Justin Madders
I beg to move amendment 6, in clause 27, page 19, line 16, leave out “this section” and insert “subsection (1)”.
This amendment is consequential on amendment 10.
The Chair
With this it will be convenient to discuss the following:
Government amendments 7 to 10.
Amendment 52, in clause 27, page 20, line 4, at end insert—
“(8) Regulations within subsection (4)(b) cannot set a penalty charge at more than £100 for the failure to pay a toll.”
This amendment would put a cap on the amount of penalty charges.
Clause stand part.
Government amendments 11 to 13.
Clause 28 stand part.
Government new clause 1—Other penalty charges.
Amendment 59, in clause 100, page 66, line 32, at end insert—
“(f) regulations under section 27(1) (enforcement of tolls: penalty charges)”
This amendment would ensure that regulations about penalty charges were subject to the affirmative procedure.
Amendment 71, in clause 103, page 67, line 18, leave out lines 18 to 21 and insert
“after the Secretary of State has published details of the policy on penalty charges required by section 27.”
This amendment would prevent the Act from coming into force until after the Secretary of State had published details of the proposed scheme for the enforcement of penalty charges.
Justin Madders
We have a bit of a mega grouping here, so I will try to take the Committee through it slowly and carefully.
I will briefly talk about the provisions generally before I get into the detail. The provisions relate to the enforcement and non-payment of tolls. Government amendments 6 to 10 and clause 27 clarify the framework for unpaid tolls and penalty charges, including responsibility for notification and enforcement. Government amendments 11 to 13 and clause 28 strengthen the offences of deliberate evasion and unauthorised removal of penalty notices while protecting users from unauthorised toll collection. New clause 1 extends the framework to additional tolling-related penalty charges, with safeguards for notification and offences for fraudulent evasion.
Amendments 10, 8, 7 and 6 are fundamentally procedural. They reassign the regulation-making power for notification and enforcement from the Secretary of State to the Lord Chancellor. That is in line with standard practice and represents the appropriate designation of authority. Amendment 9 requires that regulations relating to the imposition of a penalty charge for non-payment of a toll must specify whether the penalty charge is intended to displace the toll due or is in addition to it. That will add clarity to the regime and avoid uncertainty for users.
Clause 27, as it will be amended, allows the Secretary of State to make regulations about penalty charges where a toll is not paid and for the Lord Chancellor to make regulations about the notification and enforcement of that penalty charge. Those regulations may allow the licence holder to issue penalty charges and set out how the penalty system will operate. That may include who must pay the penalty, how they will be notified, when and how payment must be made, and how unpaid penalties may be enforced.
The regulations may set the penalty rates directly or allow the ORR to set them within the framework established by the regulations. Different penalty rates may be set for different circumstances. The arrangements may also include reduced amounts for prompt payment, increased amounts for late payment and administration fees. If the Secretary of State proposes to set the penalty rates in the regulations, they must consult the ORR first.
Dr Peter Prinsley (Bury St Edmunds and Stowmarket) (Lab)
Last night, we heard from the chief executive of Royal Mail about the terrible problems of huge delays in mail being delivered. It is sometimes the case that people are unable to pay a fine without incurring the additional fine for late payment because of the failure of Royal Mail to deliver the penalty charge in an appropriate time. What provision could be made to cope with that particular problem, which seems to be widespread in the country?
Justin Madders
We will come to that issue later in the Bill, so if my hon. Friend bears with me, I will address it then. In summary, clause 27 provides a clear framework for dealing with unpaid tolls, while ensuring that the detailed rules and penalty rates are set through regulations or by the ORR within that regulatory framework.
Amendments 11 and 12 extend the scope of the offences under clause 28(3) to cases where a person seeks to avoid payment of a penalty charge for non-payment of a toll, as well as to those seeking to avoid payment of the toll itself. It is plain to me that those offences, principally for fraudulently seeking to avoid payment, should apply equally in relation to a penalty charge as to a toll.
Amendment 13 creates a new offence within clause 28 for the unlawful removal of a penalty charge. This is standard in relation to the issuance of penalty charges and is principally there to discourage anyone other than the person for whom the charge is intended from removing the notice from the vehicle. That ensures that the intended recipient gets proper notice.
Clause 28, as it will be amended, deals with deliberate attempts to avoid paying tolls, as well as the unauthorised charging of tolls. It makes it an offence to deliberately interfere with tolling equipment or obscure a vehicle registration plate to avoid paying a toll or being identified for non-payment. It is also an offence to deliberately use false information or documents to seek to avoid payment of a toll or a penalty charge. Those offences can result in an unlimited fine, imprisonment or both.
The clause also sets out that it is an offence for anyone not authorised to do so to remove a notification of a penalty charge from a vehicle. That can attract a fine of up to £500. The clause also protects road users by making it an offence to charge or collect tolls without complying with the Bill’s requirements, or without being authorised to do so. That can attract a fine of up to £1,000. A person carrying out tolling functions on behalf of the licence holder under clause 31 is not caught by that restriction. Clause 28 therefore provides sanctions against deliberate toll and penalty charge evasion, while also protecting road users from unauthorised toll collection.
Government new clause 1 gives regulation-making powers to the Secretary of State and the Lord Chancellor to make regulations about the imposition and enforcement of penalty charges related to a specified list of additional matters related to tolling. The list includes matters such as the release of a vehicle from an immobilisation device and, where certain equipment or documentation is required as part of a tolling scheme, a failure to carry them. Those are charges that the holder of a licence could conceivably need to levy, but they would be conferred only as needed. As is the case for penalty charges related to non-payment of tolls, the clause would allow for the rates to be set either by the Secretary of State or by the Office of Rail and Road as the independent regulator.
As with the other penalty charges in the Bill, the new clause includes two offences. First, it is an offence to make false representations, including by using a false document, with intent to avoid paying a penalty charge or being identified as having failed to pay one. On summary conviction, that carries imprisonment up to the maximum term for summary offences, a fine or both. Mere non-payment is not itself the offence; an unpaid charge is recoverable as a civil debt.
Secondly, it is an offence to remove a penalty charge notice fixed to a vehicle unless the person is its registered keeper, is using it with the keeper’s authority, or acts with the authority of either such person or the licence holder. That protects proper notification while allowing authorised removal. On summary conviction, the offence carries a fine not exceeding level 2 on the standard scale. I commend these provisions to the Committee, and will respond to the shadow Minister’s amendments in closing.
Greg Smith
This is indeed a mega grouping. Before I come to our amendments, I will speak to the Government amendments, most of which are tidying. We do not have an issue with the majority of them, but Government amendment 13 confuses me. I appreciate that there are provisions later in the Bill that may address some of my issues, but the amendment talks about removing penalty charge notices “fixed” to vehicles. Now, that opens up a very big question. How, on a moving highway, as someone uses a toll road, could a penalty charge notice ever become “fixed” to a vehicle in the first place?
This is not a parking charge ticket of the kind that those workers out there who have a higher social standing than us politicians—traffic wardens—fix to windscreens, although even that is becoming less commonplace as enforcement has moved to automatic number plate recognition systems. I wonder how the Minister thinks that on a moving highway—the lower Thames crossing, the M6 toll or the Mersey tunnel—a ticket would ever find itself fixed with that immovable glue to someone’s windscreen in the first place.
The rest of the Government amendments are tidying. I wonder why the provisions were not thought through when the Bill was first published, but that is a debate we could have time and again.
We will come to this later in the Bill, but I have sympathy with the point made by the hon. Member for Bury St Edmunds and Stowmarket about the unfortunate situation we find ourselves in at the moment, where in many parts of the country Royal Mail delays are extreme to the point that people receive things like penalty charge notices or medical appointment letters too late to meet the initial payment window or attend the appointment. That is a fact of life today. We all want to see it improve and get back to a postal system that we can all fully and totally rely on. I ask the Minister to reflect on that practical fact of life right now as he considers the points raised about the issuing of penalty charge notices.
Amendments 52, 59 and 71 are all applicable to clauses 27 and 28. Amendment 52 caps a penalty charge for failure to pay a toll at £100, amendment 59 would ensure that regulations about penalty charges were subject to the affirmative procedure, and amendment 71 would delay commencement until the Secretary of State has published the penalty charge policy.
I put to the Committee that a penalty charge must always be proportionate. When it comes to the use of a toll road, I do not see a good argument for not putting a clear £100 limit on a penalty charge notice on the face of the Bill. It could be increased over time through statutory instruments subject to the affirmative procedure, which we will come to in a moment, but not without the consent of the House. Of course, costs go up and there might be reasons to put it up in the future, but something as fundamental as certainty and proportionality when it comes to any penalty charge notice for the private citizen or business operator using a road should be a decision for Parliament.
I come to this debate with a clear view of the world. Save maybe one or two—a number of people that could be counted on the fingers of one hand—I do not think anybody out there ever deliberately sets out to avoid paying a £5, £6, £7, £8 or £10 toll to use the M6 toll or the Mersey tunnel, or will do in the case of the lower Thames crossing of the future. I just do not think we are in the realms of deliberate avoidance—certainly not with an ANPR enforcement regime where everybody knows there is nowhere to hide and number plates will have been captured.
Therefore, we are not talking about gross dishonesty or grand criminality; we are talking about normal people—any of us in this room—taking a journey and perhaps, for whatever reason, forgetting to pay. There are too many stresses of the day. The kids are screaming in the back, asking to go to every fast food joint they see at every service station advertised in large letters on the motorway. It slips your mind. It can happen to any of us. I therefore suggest a simple cap that gives people the confidence that, if they admit they have made a mistake and forgotten to pay, the penalty will not be an extortionate amount of money, but will instead, as amendment 52 suggests, have a ceiling of £100. This will affect many people on a daily basis, and I believe it should be proportionate.
Olly Glover
I have a question for the Conservatives on their amendment 52. They seem to have been on a rather rapid journey, having had a significant change of mind on the principle of caps since the Civil Aviation (Consumer Protection and Regulatory Reform) Bill Committee. Then, the hon. Member for Bognor Regis and Littlehampton delivered a withering and scathing speech on one of our amendments, which proposed a cap on airport drop-off fees. She argued that it would create a moral hazard and encourage everyone to charge the maximum, yet their amendment 52 tries to set a cap at £100 for failure to pay a toll. Perhaps Conservative Members could address why they feel that is not a moral hazard.
Greg Smith
There is a fundamental difference between a fee to do something and a penalty for having forgotten to do something. I therefore think the two positions are entirely compatible. We have a very clear view on airport drop-off charges, but it is nothing to do with this Bill. They are a hindrance to airport users, but there is a fundamental difference between a charge to use a toll road or to drop someone off at an airport and a penalty for failing to do so.
Olly Glover
We could no doubt carry on and have an interesting discussion about economic theory and behavioural incentives, but I gently suggest that the principle is the same. Amendment 52 could encourage every private operator automatically to set their penalty charge at £100 rather than £10, £25 or £50, in the hope of making more money. I feel that the argument made by the hon. Member for Bognor Regis and Littlehampton is relevant to this, but I will leave it there and allow the Conservatives to address that further.
Justin Madders
I quite enjoyed the little sideshow there. It was entertaining.
I will deal first with the shadow Minister’s questions about Government amendment 13. Of course, we do not envisage that this is going to be a regular situation. It could cover, for example, a situation where a vehicle has been abandoned on a highway, but it is also for situations where there may be a persistent offender and further action is needed to enforce against them.
I turn to the shadow Minister’s amendment 52, which would introduce a £100 cap on penalty charges for non-payment of a toll. That is actually £20 lower than the current cap for a penalty charge notice issued at Dartford and on quite a lot of other road charging schemes, so it is very generous of him to give a discount.
Justin Madders
The hon. Gentleman is a generous man.
There are discounts available for early payment in most of these schemes anyway, which I think would speak to the impassioned plea he made about people who innocently contravene the regulations. It is important that such a change is made in regulations and not primary legislation for reasons I will go on to explain.
I do not believe fixing a cap in primary legislation would be the right approach. Penalty charges vary across the country depending on local conditions. For example, the Tyne tunnel has an initial penalty charge of £30 plus the toll, while for the Blackwall and Silvertown tunnels the full charge is £180. The levels of PCNs and the structure of payments need to be appropriate and proportionate to the specific scheme. The Bill already allows penalty charges to be set through regulations, and that responsibility is to be delegated to the Office of Rail and Road acting in accordance with its statutory duties, which we have covered several times already. That of course gives it the flexibility to keep charges under review.
One of the problems with setting a fixed price cap in legislation is that it will erode in real terms with inflation. Hopefully, we will not see rising inflation over the coming years, but of course it is inevitable that, as time goes on, the value of the cap will decrease. For a good example of why fixing these caps in legislation is a bad idea, I refer the shadow Minister to the saga of the Swinford toll bridge, which I am sure he is familiar with: the 10p fee was set in 1760—I believe that is a little time before the hon. Member was actively engaged in politics—and because it was fixed in primary legislation, it has unfortunately not moved on because of the difficulty in changing it. That is a good example of why setting these figures in primary legislation is inappropriate.
Jim Dickson
While we are dealing with the administration of tolling and charges that result from non-payment, I want to mention that the operator that administers the Dart charge in Dartford changed in 2023, and during the transition there were numerous problems: people being charged for cars that were said to have used the crossing when they had not; people whose resident discounts disappeared from their accounts and who were then charged the full amount; and other problems with the way in which the administration was done. Could the Minister give some reassurance that such administrative errors around both charging and penalties, if they occur in the future, either on the lower Thames crossing or with the Dart charge, will be subject to the regulator’s intervention to ensure that the licence holder performed their responsibilities properly?
Justin Madders
My hon. Friend is absolutely correct. The situation under the Bill gives the regulator the power to deal with those kinds of instances. If licence conditions are not being complied with, which is the sort of situation to which he has referred, the Bill gives the regulator the power to intervene. That strengthens the position for people in those instances, although hopefully we will not have too many such instances.
Amendment 59 concerns the use of regulations. It is the case that using the negative procedure for this type of regulation follows an established precedent set in the Transport Act 2000. The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 were made under the procedure, and they are comparable with the regulations that we would expect to make under the Bill. They implement the detailed machinery needed to enable the charging authorities to impose and enforce civil penalties, including adjudication and, subject to safeguards, vehicle examination or search, immobilisation and removal.
The negative procedure provides an appropriate balance between parliamentary scrutiny and the flexibility required to ensure that the penalty charge regime remains effective, proportionate and capable of adapting to future operational requirements, without the need for further primary legislation. As explained in the delegated powers memorandum, published alongside the Bill, those regulations will set out the detailed enforcement framework to confer powers. As with many things that concern operational matters, this needs to remain flexible, hence why regulations were chosen as the mechanism for setting out the detail. I invite the hon. Member for Mid Buckinghamshire not to press amendment 59 to a vote.
Amendment 71 would prevent the Bill from coming into force until after the publication of a report on the policy regarding penalty charges. Unfortunately, this would also slow and frustrate the progress that we want to make on the lower Thames crossing. Clause 27 allows the Secretary of State to make regulations about the very thing that this amendment asks for: a report before commencement.
It is already the case that Parliament will need to see details of the enforcement regime by way of the regulations made under clause 27 before any enforcement regime would come into effect. Blocking commencement of the rest of the Bill until a report had been issued would mean Parliament being asked to look at the same thing twice—once in a Government publication, and again when it scrutinises regulations. That is the kind of bureaucracy and slowing of progress that we want to avoid. Again, I ask the hon. Member for Mid Buckinghamshire not to press amendment 71 to a vote.
Amendment 6 agreed to.
Amendments made: 7, in clause 27, page 19, line 22, leave out paragraph (a).
This amendment is consequential on amendment 10.
Amendment 8, in clause 27, page 19, line 28, leave out paragraph (e).
This amendment is consequential on amendment 10.
Amendment 9, in clause 27, page 19, line 38, at end insert—
“(6A) Regulations under subsection (1) which make provision for the imposition of a penalty charge must specify whether the charge is payable in addition to the toll in respect of which the charge is payable or instead of it.”
This amendment ensures that a requirement to pay a toll may remain in force (and therefore be recoverable as a civil debt under clause 24) even where a penalty charge is imposed in respect of the toll.
Amendment 10, in clause 27, page 19, line 38, at end insert—
“(6B) The Lord Chancellor may make regulations about the notification and enforcement of penalty charges.”—(Justin Madders.)
This amendment provides that regulations about the notification and enforcement of a penalty charge in respect of a toll are to be made by the Lord Chancellor (instead of by the Secretary of State).
Clause 27, as amended, ordered to stand part of the Bill.
Clause 28
Non-payment of tolls and unauthorised charging of tolls
Amendments made: 11, in clause 28, page 20, line 17, after “toll” insert
“or of a penalty charge imposed in accordance with regulations under section 27(1)”
This amendment and amendment 12 widen the offence under clause 28(3) to cases where a person seeks to avoid payment of a penalty charge for non-payment of a toll.
Amendment 12, in clause 28, page 20, line 18, after “toll” insert
“or a penalty charge mentioned in paragraph (a)”
See the explanatory statement for amendment 11.
Amendment 13, in clause 28, page 20, line 23, at end insert—
“(4A) A person commits an offence if the person removes a notice of a penalty charge imposed in accordance with regulations under section 27(1) which has been fixed to a road vehicle in accordance with regulations under section 27(6B) unless—
(a) the person is the registered keeper of the vehicle or a person using the vehicle with the registered keeper’s authority, or
(b) the person does so under the authority of the registered keeper or such a person or of the holder of a licence.
(4B) A person who commits an offence under subsection (4A) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.”—(Justin Madders.)
This amendment creates an offence where a person removes a notice of a penalty charge from a vehicle without lawful authority.
Clause 28, as amended, ordered to stand part of the Bill.
Clause 29
Examination, entry, search and seizure
Greg Smith
I beg to move amendment 55, in clause 29, page 20, line 34, leave out “holder of a licence” and insert “police.”
This amendment would ensure that powers for examining a road vehicle rested with the police, rather than the licence holder.
The Chair
With this it will be convenient to discuss the following:
Amendment 56, in clause 29, page 21, line 11, leave out “holder of a licence” and insert “police.”
This amendment would ensure that powers for entering a road vehicle rested with the police, rather than the licence holder.
Amendment 88, in clause 29, page 21, line 23, at end insert—
“(2A) Regulations under subsection (2) may not authorise a person to enter or search a road vehicle, or seize items therefrom, except—
(a) under the authority of a warrant issued by a Justice of the Peace; or
(b) in the presence and under the direction of a police constable.”
This amendment aligns enforcement powers with standard civil debt procedure under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 by ensuring that private toll operators or contracted enforcement agents cannot enter or search private vehicles without a judicial warrant issued by a magistrate or police oversight.
Amendment 57, in clause 29, page 21, line 31, leave out “holder of a licence” and insert “police.”
This amendment would ensure that powers for seizing anything from a road vehicle rested with the police, rather than the licence holder.
Clause stand part.
Amendment 60, in clause 100, page 66, line 32, at end insert—
“(f) regulations under section 29(1) (powers to examine a road vehicle).”
This amendment would ensure that regulations about examining a road vehicle were subject to the affirmative procedure.
Amendment 61, in clause 100, page 66, line 32, at end insert—
“(f) regulations under section 29(2) (powers to enter a road vehicle).”
This amendment would ensure that regulations about entering a road vehicle were subject to the affirmative procedure.
Amendment 62, in clause 100, page 66, line 32, at end insert—
“(f) regulations under section 29(5) (powers of seizure).”
This amendment would ensure that regulations about seizing evidence from a road vehicle were subject to the affirmative procedure.
Amendment 74, in clause 103, page 67, line 18, leave out lines 18 to 21 and insert
“after the Secretary of State has published guidance about how the powers in section 29 and section 30 will be exercised by licence holders.”
This amendment would prevent the Act from coming into force until the Secretary of State has published guidance about the exercise of the powers in sections 29 and 30 of this Act.
Greg Smith
There are quite a few amendments in the group, but they largely speak to very similar themes. Amendment 55 would ensure that the powers for examining a road vehicle rest with the police, rather than any licence holder, and amendments 56 and 57 would do the same. Amendment 60 is slightly different but also comes back to a debate that we had in the previous group. It would ensure that regulations on examining a vehicle were subject to the affirmative procedure, so I will not repeat those arguments, and the same applies to amendments 61 and 62. Similar again to the previous group, amendment 74 would prevent commencement of the Act, if the Bill receives Royal Assent, until the Secretary of State has published guidance about the exercise of the powers in clauses 29 and 30.
Douglas Lumsden
Does my hon. Friend agree that the Government should remove the threat of equipment being required in vehicles for people to use tolls? We argued previously that ANPR would be the sensible way forward. I have heard today that ANPR will be used for fines, so why can it not be used for tolls? The Government should remove the requirement for equipment to be installed in vehicles, thereby removing the possibility of operators going into vehicles to check that the equipment is working.
Greg Smith
My hon. Friend strengthens the argument considerably. It all comes back to this point of proportionality and fairness, and the system that most of us—certainly the vast majority of our constituents—thought we were operating under already, which such intrusive powers would drive a coach and horses through.
Alison Griffiths
To build on the point that my hon. Friend the Member for Aberdeen South just made, by putting such equipment into vehicles, we are exponentially increasing the cyber-threat and the attack surface for state actors to come in and paralyse not just our state but our communities.
Greg Smith
My hon. Friend makes a good point. However, given the number of vehicles on our roads that have been so heavily subsidised by the Chinese state, I suspect that horse has already bolted.
If I may briefly speak to amendment 88 in the name of the hon. Member for Didcot and Wantage, without stealing his thunder—
Greg Smith
The hon. Member seems happy with that, but I do not particularly wish to steal. Amendment 88 potentially offers a useful off-ramp for the Minister—and perhaps a halfway house in ensuring that the rights of the private citizen and the property owner are protected within this—by preventing enforcement officers from entering or searching private vehicles without either a judicial warrant issued by a magistrate or police oversight. That is commonplace for any other search or seizure in our country, with some notable, very extreme exceptions. Therefore, before the hon. Gentleman speaks to his amendment 88, I simply put on the record that the official Opposition has considerable sympathy with that approach and, if he presses it to a Division, we will support it.
I urge the Minister to seriously reflect on the implications from this part of the Bill for accepted norms and precedents within our society, and what enabling a licensee to enter, search and seize—as opposed to the established bodies that we already accept in this country have the legitimate authority, power and trust to do so—would mean for the entire social contract within the country.
Olly Glover
I will say a little about amendment 88, which the shadow Minister has started off, and then make some brief comments about the Conservatives’ amendments as a whole.
Amendment 88 would strengthen the safeguards around vehicle searches in the Bill by restricting private enforcement powers under clause 29 and requiring a judicial warrant issued by a magistrate, or a police presence, before entering or searching a vehicle. Under standard civil enforcement rules in schedule 12 to the Tribunals, Courts and Enforcement Act 2007, court bailiffs recovering civil debts cannot enter or search vehicles without a judicial warrant of control. In that context, clause 29 creates an extraordinary anomaly whereby private toll contractors would enjoy broader, unmonitored powers of search and entry than certificated court bailiffs. The clause, as drafted, looks to give huge, potentially unintended powers to private contractors. Users of these roads should be given more protection to prevent infringement of their civil liberties with little oversight. I therefore hope that the Minister will consider amendment 88.
Most of the Conservatives’ amendments in this group seem sensible, and we are inclined to support them, but I have a—“philosophical” is perhaps overly generous—vaguely political-philosophical question about them. A lot of their amendments tend to take two routes. The first is requiring various things to be published before the Bill comes into force. We understand that route and are inclined to support it; it is a similar argument to what we heard about the ORR code. The other route is requiring the affirmative procedure rather than the negative procedure. The challenge with amendments that would require more use of the affirmative procedure is finding the right balance between holding a Government to account and not making virtually every change subject to a House of Commons vote.
At some point, could the shadow Minister say a little bit about the Conservatives’ thought process and criteria for what should be subject to the affirmative procedure? They are asking for a lot of things to be subject to the affirmative procedure. In principle, that could mean a very large number of things coming to the Commons for a Division after consideration by a Delegated Legislation Committee, but perhaps I have misunderstood and he can clarify.
Justin Madders
I will have a bit of banter and answer the Liberal Democrat spokesperson’s question about the Conservative approach to delegated legislation. He need only look at their 14 years in power to see that they were very fond of the negative procedure and delegated legislation.
Justin Madders
Well, we can rehearse that argument, but I am delighted that the shadow Minister has found a new interest in championing the need for the role of Parliament, and I assure him that his fears are misplaced.
I will turn to amendments 55 to 57 tabled by the shadow Minister. He has raised the spectre of individuals prodding around in private property and has, rightly, asked what safeguards there will be. It might be helpful if I explain that the broad framework in this Bill follows the approach of the Transport Act 2000, which has detailed safeguards that have been set out in regulations. I believe that those regulations are the right place to specify how these powers may be exercised and the protections that must accompany them.
I need to be clear about what the regulations are and are not. They do not allow for any person to be authorised to pull over vehicles on a highway, and they do not enable any person to interfere with a vehicle on private property. The powers are about enabling the licence holder to determine whether tolling conditions have been complied with or an offence has occurred. They will be conferred only if strictly necessary, and in the case of entry into a vehicle or seizure of evidence, I state quite happily on the record that I envisage a role for a constable in those circumstances.
The question is therefore not whether safeguards are needed, because I think we agree on that, but how best to provide them. We should also make sure that the licence holder has the tools they need to safeguard their significant investment from nefarious characters. The shadow Minister referred to pressures on the police; I wonder whether his shadow Home Office colleagues have considered the impact his amendment would have for resource burden on the police. I recognise his concern, but police should not be enforcing debts owed to private operators.
Enforcement powers should remain with the licence holder, with police oversight to ensure that those powers are not used in an intrusive manner. I can confirm that our intention is to make regulations to require the powers of entry and seizure to be exercised only in the presence of a constable. I favour setting out detailed arrangements in regulations to make sure that the right safeguards are attributed to the right place with the correct detail, rather than prescribing a blunt tool in the Bill. Hopefully that gives the shadow Minister some assurance.
I now turn to amendment 88. I thank the hon. Member for Didcot and Wantage (Olly Glover) for his contribution. Again, I think that he and I agree on the need for proper safeguards for the existence of enforcement powers, but I believe that the approach he suggests follows the wrong precedent and would result in an overly burdensome and ineffective enforcement process. The precedent he cites relates to the enforcement of court orders designed for the recovery of charges, but clause 29 is about ascertaining whether an offence has occurred in the first place. Our view is that it would be inappropriate to seek a judicial warrant before it has been determined whether an offence has been committed.
On that basis, it is right that we follow the precedent set out in the Transport Act 2000, but the hon. Member again has my assurance that regulations made under this power will have the significant safeguards he has described. I agree that it would be unacceptable to give unfettered rights to private operators to enter the vehicles without sufficient oversight, so I invite him not to press the amendment.
Douglas Lumsden
Does the Minister agree that the threat of entering vehicles and everything else exists only because of the threat of people being required to install equipment in their cars to use the toll roads, and that if he just kept it simple and used ANPR, for example, that threat would go away?
Justin Madders
I think the hon. Member misunderstands the purpose of the clause. This not about requiring equipment to be put into particular vehicles. I will describe what clause 29 will actually do. It will give the Secretary of State powers to make regulations to provide limited enforcement powers in relation to vehicles. Those can be used to check whether required documents are displayed and whether tolling equipment is fitted and working properly—that is to say, that it has not been interfered with in a manner that might trigger the offences outlined in clause 28.
Regulations may also allow entry into a vehicle where there are reasonable grounds to suspect that equipment has been deliberately interfered with or that a false document is being used to avoid paying a toll or being identified. This may allow items to be seized and kept as evidence of an offence under clause 28. These powers will be subject to clear limits. Examination of or entry into a vehicle will be authorised only while a vehicle is on the highway. Intentionally obstructing someone lawfully exercising a power of entry will be an offence, and could be subject to a fine or imprisonment. Clause 29 will therefore provide the tools needed to investigate deliberate toll evasion, with the detail and safeguards set through regulations. I commend it to the Committee.
I turn to amendments 61 and 62, tabled by the shadow Minister. As explained in a delegated powers memorandum published alongside the Bill, these regulations will set out the details of the enforcement framework to confer powers. As with many things that concern operational matters, there is a need to remain flexible, hence why regulations were chosen as the mechanism for setting out the detail. The negative procedure for this type of regulation follows the precedent set in the Transport Act 2000. The negative procedure provides an appropriate balance between parliamentary scrutiny and the flexibility required to ensure that the penalty charge regime remains effective, proportionate and capable of adapting to future operational requirements without the need for further primary legislation. I therefore invite the shadow Minister to withdraw the amendments.
On amendment 74, we have had this debate on a number of occasions already. We believe that it is an unnecessary amendment that would have the effect of frustrating Parliament and slowing down delivery of projects under the regulated asset base model. Clause 29 will already allow the Secretary of State to make regulations about the very thing that this amendment asks for. Before commencement, this amendment would lead to Parliament being asked to look at the same thing twice: once as a Government publication and again when regulations were published. We believe that that is an unnecessary bureaucratic approach, and we cannot support it.
Greg Smith
I really do not want a long tit-for-tat session between me and the Liberal Democrat spokesman.
Greg Smith
That is for another time. For the representative of a party that literally has the word “Democrats” in its name to make an argument against this House following the affirmative procedure when it comes to setting regulations and for finding a “balance” that just goes with the negative procedure a number of times is really quite hard to stomach. We know that with the demise of the “Orange Book” tribe in that party, they are no longer at least classically liberal; now, it turns out that they are also arguing against democracy. Trading Standards may well be called in when it comes to the titling of the third party.
Olly Glover
How generous of the shadow Minister to give way. He is usually quite a mature, thoughtful fellow—I put it to him that he might be being slightly juvenile in his comments now. He will know full well that my remarks earlier were not criticising his amendments; they were asking for his thoughts on the principles he was using in relation to use of the affirmative procedure. To take his argument to the extreme, we could have literally everything subject to the affirmative procedure. Without doubt, we would then spend our entire life having Divisions in the House of Commons, which we all love, but there is a balance. As for changes to the nature of party names, I suggest to him that abandoning the commitment to climate change and human rights is not very conservative either.
Greg Smith
To get back to the amendment and the use of the affirmative procedure, my considered view is that our constituents sent us here to make such decisions. If we are honest about it, the only direct power that any of us actually has as a Member of Parliament is when the Division bell goes or the Chair signals a Division in Committee, and we choose whether to vote aye or no, or not to cast a vote. That is incumbent on us. Whenever we debate something that will affect any of our constituents—in this case, intrusion into their private vehicles—I think that they would expect us not just to talk about it, but to put our vote to the side of the argument that we feel best represents their interests. In direct answer to the question of the hon. Member for Didcot and Wantage, those are my thoughts. Where our constituents are affected, they expect us to have stood up for them, to have argued what we consider to be the best outcome that protects them and enables them to prosper in life, and to put our vote where we think it best serves.
I heard the arguments that the Minister put back. As I have said on other groupings, we do not want to frustrate the core aims and principles of the Bill; we do want to see the lower Thames crossing built and people able to use it, but that does not mean a blank cheque for every provision in the Bill. Something as fundamental to private property rights as the intrusion into a private car does, I think, warrant that additional scrutiny.
I accept that a number of amendments in the grouping fundamentally try to do the same thing, and I can see the numbers in the Committee this afternoon. Therefore, if it helps, Mr Wishart, as we move towards the end of the debate on the grouping, I am happy to confirm that we will test the principle with the lead, amendment 55, but we will be content to withdraw the others on the inclusion of limiting the power to just the police. We will test the core principle once, but I assure the Committee that the Opposition will return to the issue on Report. We will also test the principle in amendment 61 on the affirmative procedure, but I will be content not to press the others in my name.
Question put, That the amendment be made.
Building Safety (Remediation of Unsafe Cladding etc) Bill (First sitting)
(1 day, 9 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I remind Members please to switch electronic devices to silent, and that tea and coffee are not allowed during sittings. We will consider first the programme motion on the amendment paper, then a motion to enable the reporting of written evidence for publication and a motion to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope that those matters can be taken formally, without debate. TABLE Date Time Witness Thursday 12 November Until no later than 12.05pm Building Safety Regulator Homes England Local Government Association Thursday 12 November Until no later than 12.40pm National Fire Chiefs Council London Fire Brigade Thursday 12 November Until no later than 1.00pm Deputy Mayor of Greater Manchester Thursday 12 November Until no later than 2.35pm The Property Institute National Housing Federation Thursday 12 November Until no later than 3.00pm End Our Cladding Scandal Thursday 12 November Until no later than 3.30pm Britain Remade Centre for Policy Studies Thursday 12 November Until no later than 3.50pm Vistry Thursday 12 November Until no later than 4.20pm Ian Abley, Steve Day Thursday 12 November Until no later than 4.40pm Dame Judith Hackitt Thursday 12 November Until no later than 5.00pm DCCH Experts LLP Thursday 12 November Until no later than 5.20pm Ministry of Housing, Communities and Local Government
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 11.30 am on Thursday 12
November) meet—
(a) at 2.00 pm on Thursday 12 November;
(b) at 9.25 am and 2.00 pm on Tuesday 17 November;
(c) at 11.30 am and 2.00 pm on Thursday 19 November;
(d) at 9.25 am and 2.00 pm on Tuesday 24 November;
(e) at 11.30 am and 2.00 pm on Thursday 26 November;
(f) at 9.25 am and 2.00 pm on Tuesday 1 December;
(g) at 11.30 am and 2.00 pm on Thursday 3 December;
(h) at 9.25 am and 2.00 pm on Tuesday 8 December;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 34; Schedule 1; Clauses 35 to 45; Schedule 2; Clauses 46 to 102; Schedule 3; Clauses 103 to 116; New Clauses; New Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 8 December.—(Florence Eshalomi.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Florence Eshalomi.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Florence Eshalomi.)
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start to hear from witnesses, do any Members wish to make a declaration of interest in connection with the Bill?
James Asser (West Ham and Beckton) (Lab)
As we have London Fire Brigade witnesses, I declare that my partner works for it, in fire safety.
Sagal Abdi-Wali (Holborn and St Pancras) (Lab)
I declare that I am still a councillor in a local authority.
The Minister for Homelessness, Democracy, Communities and Faith (Florence Eshalomi)
I declare that the headquarters of the London Fire Brigade are in my constituency and that I meet the fire commissioner.
Noah Law (St Austell and Newquay) (Lab)
I declare my interest as a volunteer director of the St Austell community land trust.
The Chair
If any interests are particularly relevant to a Member’s line of questioning or speech, they should declare them again at the appropriate time.
Examination of Witnesses
Lord Roe, Charlie Pugsley, Helen Fisher and Mark Norris gave evidence.
The Chair
We will now hear oral evidence from the Building Safety Regulator, Homes England and the Local Government Association. We must stick to the timings in the programme motion that the Committee has agreed, and for the purposes of the witnesses, that means that this session will end at 12.05 pm. I ask each of the witnesses to introduce themselves for the record.
Charlie Pugsley: Good morning. I am Charlie Pugsley, acting chief exec of the Building Safety Regulator.
Lord Roe: Good morning. I am Andy Roe, chair of the Building Safety Regulator.
Helen Fisher: Good morning. I am Helen Fisher, the director of the cladding safety scheme and interim measures alarm fund at Homes England.
Mark Norris: I am Mark Norris from the Local Government Association.
Gareth Bacon (Orpington) (Con)
Q
Lord Roe: It is nice to see you. The Bill gives powers to a series of regulators, which is useful. The first thing I want to say is that we welcome the Bill as another tool in our arsenal. It is not a panacea, but it will certainly be useful with the most recalcitrant actors in this landscape. I think, between us, we are clear how we operate. We are in constant dialogue—multiple meetings a week—with the likes of Homes England, local authorities, the London Fire Brigade and other fire services, and there is very good co-ordination.
There is no single hierarchy that necessarily fits all circumstances. My experience of having been a regulator in this space for a very long time is that you choose the most appropriate regulator set against the circumstances. You need to do that early in any potential enforcement process. It normally comes through a memorandum of understanding in the context of those individual circumstances. To set a sort of hierarchy within this would potentially be a mistake.
Gareth Bacon
Q
Lord Roe: Because remediation itself is a complex issue. Without wanting to go into infinite detail, the reality is that there is normally a number of different routes to enforcement on a dangerous building, and it is not necessarily through this piece of legislation. I want to be clear: this is one tool in the arsenal. If we were presented with a problem building or entity organisation, the first thing we would do is get on to the other regulating and enforcing organisations and decide what the best route of enforcement is. It might not be this Bill. It could be the Housing Act. It could be the fire safety order. The point is that determining a hierarchy for remediation is potentially a mistake. I would rather we operate as we do, which is in clear collaboration and set out in an MOU. I do not know if there is anything you would add to that in terms of practical reality, Charlie.
Charlie Pugsley: Normally, for example, the Building Safety Regulator would be expected to take the lead on high-rise buildings, but we have one case currently that we are working with the London Fire Brigade on, and we are both looking at enforcement. If the fire brigade is six months ahead—you are legally not allowed to duplicate—it is in the public interest and the interest of efficiency for the fire brigade to make that decision. If that is the case, so be it—they should decide, to get the enforcement in the most timely and effective way.
Gareth Bacon
Q
Lord Roe: It gives us more powers to tackle the worst actors in the remediation landscape. It gives us the additional ability to call those people in and force them to make progress. That is the advantage of this legislation.
Florence Eshalomi
Q
Lord Roe: I am conscious of time, but it comes in all shapes and forms. It could be reluctance to devote the money required to an expensive specialist contracting model to get the work done, so you can hold things up at contract. It could be putting forward really poor, under-resourced design proposals. There are multiple different ways you can hold this process up. To be fair, lots of things make operating in this landscape complicated and hard. Perhaps I will come back to that as a principal answer: this is a good tool. It will not solve remediation, but that is not what it is intended for. A lot of stuff on the delivery side has to be improved, whether it is inside the regulator or the other agencies or out in industry. That will probably give us the greatest gain, but this is a very useful tool where people are not complying.
With the greatest respect, I hope the witnesses this afternoon bring up-to-date evidence. We have gone from a 30% approval rate and a median determination time on approvals into the gateway 2 system of over a year, which was completely unacceptable. Charlie and I were charged with trying to shift that. We publish data transparently every single month. We are now at a 92% rolling approval rate. We got the median determination time down to something in the region of 20 weeks, and we will reduce it further. I personally am not experiencing huge levels of non-compliance, to be fair to the industry. They have worked hard to improve the standard of applications and move things on, but this is a very difficult space to operate in—and where there are bad actors, this will be a good tool.
Sarah Gibson (Chippenham) (LD)
Q
Mark Norris: Like the building safety regulator, the LGA welcomes the Bill. It is another tool in the toolbox. As MHCLG’s statistics already show, local authorities are out there doing enforcement now and have been for a number of years. Some 940 buildings are being inspected by councils under the Housing Act to take enforcement actions against some of the bad actors that Lord Roe referred to, supported by the Joint Inspection Team, which the Department funds the LGA to support. They have completed over 200 inspections so far.
The issue for us, which Lord Roe touched on, is capacity and resources to do that. Environmental health officers are in short supply—there is not a ready tree on which they grow to recruit them from. In terms of being able to do additional work, we already know that environmental health officers have a range of additional responsibilities. Recent legislation, including the Renters’ Rights Act 2025 and the social housing Act from 2023, includes a range of additional duties on local housing authorities within the housing space. Resourcing capacity in environmental health will be needed going forward to support councils in being able to do that work. We are fully up for the task, but need the resources and capacity to do that alongside everything else we are being asked to do, as you pointed out.
Sarah Gibson
Q
Mark Norris: I think they will notice a material improvement from this legislation. The experience of the Joint Inspection Team is that you might know what is wrong with the building and what needs to be fixed, but progressing things through first-tier tribunals to get the ruling that that is what the building owner or responsible entity needs to do takes time. Giving us something that places a duty on responsible entities to fix the building—that says very categorically, “This is what you have to do”—will help to speed that process up. But you are right: councils will need resources and capacity in addition to that to help them make the most of the legislation and the tools available in it.
Darren Paffey (Southampton Itchen) (Lab)
Q
Lord Roe: Those are two different things. I would not want to confuse necessary operational improvement with legislation to deal with bad actors. What you are talking about there is our responsibility to appropriately take a decision on what is sometimes a very complex situation, with thousands of pages to each application, while also operating in the context of a national lack of suitably skilled people to do facade engineering—also a particular point of risk. All I can do is point to the evidence, which shows that there was an unacceptable situation a year and a half ago when we came in: if you were one of those residents and had an application submitted into our system, you could wait up to a year or more. That was not okay and I have apologised for it repeatedly in other Committees.
We were charged to turn that around. I would argue—I have got to say this in defence of the team responsible—that we have done that, because we are now at 92% approval and with 20-week determination times. That will come down further, although maybe not by a lot—this is not about poor bureaucracy or a lack of emails or care anymore; it is about the engineering complexity of getting a building safe that has been built really badly.
The message to your constituents is first that we are super-available. Charlie and I get hundreds of emails into the inbox every week from people who often have rightful challenge—or sometimes do not. They will get a reply and response and, where necessary, we will unpick individual cases from the top of the BSR hierarchy down.
The point is that we can evidence the operational improvement. It is real and it is there in the figures. It is also there in the experience of both industry and many residents. We meet with all the campaigning groups almost weekly to gather intelligence, try and pick off poor actors and recognise where we are doing wrong and where there needs to be improvement in the system. I know, though, that is not going to be a comfort to people who are still trapped inside those blocks and who are under tremendous pressure. All I can tell them—I am sure many of them will be watching—is that we will be doing everything in our power to improve our system and force recalcitrant actors to do better. However, it is a complex problem that has been three decades-plus in the making.
Charlie Pugsley: One thing in the Bill is a duty to bring forward the assessment; that is something that we found in our remediation enforcement unit and have chased up. We work closely with Homes England and other partners. If that duty helps drive that forward, one part of the bigger puzzle will have been progressed and can help. But as Lord Roe says, there is no silver bullet; this is about a collective endeavour.
Lewis Cocking (Broxbourne) (Con)
Q
Lord Roe: It is not just the duties inherent within the Bill; it is the skilled contractors on the other side of it. The answer is no. This problem was built over decades, across successive Governments of all colours who neglected to invest in construction skills. This is not a political point, but the reality is that there is a very significant national endeavour to correct that, led at Secretary of State level. However, it will take time to reverse. There is a very real problem, and this is part of the complexity.
The Bill is a good tool for enforcement, which we will use, but to be fair to applicants, if you cannot get a specialist scaffolder because none is available in your area, or you cannot find the right facade engineer, we need to be pragmatic about how we chase your application. Otherwise, we will potentially force applicants to engage with poor or unskilled contractors. There are hidden dangers within all of this. If I am honest, all of us are trying to fix the plane on the runway because this mess was created over a number of decades.
The skill shortage is quite profound on both the industry side and for us. We pay very good rates; we are a costs-recovered agency. We employ the same private engineers that the applicants will be trying to employ as well, because there is a small pool of specialists within this field. There is currently a lot of investment to build that capacity, but you do not train these people in one year—it is not like that.
My point is that this Bill is great, genuinely, and we will use it selectively against people where it is appropriate to do so. Before someone else gets to it, I should say that that is unlikely to be resident managed entities, because that would be punching down. That is not okay and we are well aware of that, but there is a much bigger operational problem, which we are all charged with helping to solve, along with the industry, because we will not solve the problem without it.
Lewis Cocking
Q
Lord Roe: I am not saying they should do more. I am well aware of the work being done within the Construction Skills Mission Board. There is a huge endeavour. It is a massive joint industry piece as well. There is really good co-operation from industry and Government together, but they are trying to reverse-engineer a problem that was decades in the—[Interruption.] You might as well say that, Charlie—he is writing me notes. A good example would be the RBIs.
Charlie Pugsley: It is not for us to comment on behalf of the Government, but we are aware that funding has gone into registered building inspectors, for example, from the Government.
Lewis Cocking
Q
Lord Roe: No; I do not think the two things are the same. I think they are doing enough, but sometimes—I mean this with the greatest respect—I sit in front of Committees that want to see reversed in one or two years a problem that was decades in the making. Some of these people can take up to a decade to train. We are talking about very specialist work, particularly in the context of external remediation and façade engineering. These are some of the most experienced and qualified people in the engineering world. You cannot just invent them. It is a bit like growing the number of environmental health inspectors—these are really specialist.
There is £625 million inside the Construction Skills Mission Board, I think. To be fair, the previous Government had started a lot on this as well and I want to recognise that; the previous Administration, through Michael Gove, had started to do a lot of things with this, but it takes a long time to resolve. All the time the housing economy is difficult, by the way, it has an impact on available skills and the people who are going to get employed. So we are trying to get ourselves out of a cycle.
Fleur Anderson (Putney) (Lab)
Q
I have in my constituency a case that I think is a useful test case for the Bill. Barratt Redrow built a building; cladding was an issue but, in looking at that, all sorts of other issues about the whole structure of the building were uncovered. My constituents have been decanted for three years and they are asked to go back next week on the basis of a report by the developers, Barratt Redrow, who in their mind caused all those problems. My constituents want independent scrutiny of that. They want independently to know that, for example, the concrete that it has been made with, which is in question, is the right one. Are they safe to go back? Does the Bill allow for that? Where do residents go when they are being asked to return, or during a process of remediation, for that independent aspect of it? Do you think that is strong enough, or could more be done about the quality and consistency of assessments?
Helen Fisher: I will start with the same message that you heard from the other panel members: Homes England supports the introduction of more tools to ensure that there are things that can be done against those who are not doing what needs to be done.
In response to the question about independent scrutiny, the Bill is introducing tools to ensure that fire risk appraisals of the external wall are put on to a level where they will all have independent peer review. Our experience in Homes England is that when we put the cladding safety scheme together, we listened to residents and leaseholders; we worked extensively with End Our Cladding Scandal and others, and the message—this is the question that you are asking—came out very clearly from them that, over the decade since Grenfell, trust has broken down significantly between developers, building owners and managing agents. We placed the design of that programme significantly in the middle of that to make sure that any independent investigation that had been done by any party was brought into Homes England and put through panel engagement that was independently qualified in order to peer-review, challenge and ensure.
There are policy aspects that are difficult, such as proportionality; PAS 9980 itself has subjectivity to it, and we know, with our engineers and our panels, that there is a degree of growth there over the last two or three years in the programme. Scrutiny exists in the cladding safety scheme. I think we need to bottle that, and this Bill moves towards that—making sure of independent auditing of key investigation documents, such as a fire risk appraisal of an external wall, is having that form of scrutiny.
That is crucial for residents and leaseholders, so that they can have confidence in the documentation that is delivered by individuals and they do not have to concern themselves about who the original instructor of the documents is—whether it is a developer, a freeholder or a right-to-manage company. We have dealt with both ends of that spectrum from betterment and wanting the work to go further than expected, to the other end, where the position is trying to do the least amount of work as is tolerable.
I have a slightly different problem from Andy and Charlie, as we deal with this at every height. The Building Safety Regulator covers buildings of 18 metres-plus, and then there are high-rise buildings. The majority of 11 to 18-metre buildings now coming through are right-to-manage or small entities, so there is a need for us to operationally adapt to that to ensure we are giving support and helping with independent scrutiny, not just to ensure we hold the market to account, but to ensure support for right-to-manage companies so that they can take independent audit as assurance that that work is right for them.
Lord Roe: Could I just add something to provide a bit of assurance, since I imagine that some of your constituents will be watching? Obviously, if an HRB is above the threshold of 18 metres, it will come through our gateway process, which I know is onerous, but is onerous for a reason. We are going to look at the dead load of the façade engineering. We then look at it in the in-build phase as well, so we are going to get eyes on what they are doing—it is like building your extension—and then we sign it off. That is the point of enhanced building control, but it carries some complexity and it takes time.
On the flipside, although it does not solve some of the other problems around the split between internal and external defects, every high-rise building requires a building assessment certificate. That has been in law since 2024. Again, it was not communicated properly when the regulator was set up—we are not going to defend that—but we have done an enormous amount of communication since to educate and put guidance out there. That will mean that it has to come into our system on the basis of an assessment. We will look at the quality of that assessment in determining whether the evidence coming to us is accurate.
The safeguards are there in the legislation. The problem is that if you are living in one of these blocks, it is complex, it is long, it can be costly and there is a shortage of the specialists you need to deal with stuff. It is mind-blowing for professionals in the space who have been doing it for years—you do not have a hope as a resident management company director. I have the utmost sympathy for them.
The challenge to us is less about the Bill. I give credit to Helen; we see each other weekly and meet the campaign groups together. We are trying to get intelligence to improve across our shared systems. It is all about our operational improvement at the other end to bring internal and external defects together. Even if the funding does not match, can we do better inside our organisation to put it in the same team, so that you look at the building at one time? We are not there yet. We are on a pretty radical journey of transformation inside the regulator. A lot of stuff is a lot better, but there is more to do.
Rachel Blake (Cities of London and Westminster) (Lab/Co-op)
Q
Mark Norris: Shall I go first and have a quick stab at that? As you know, there are complex problems with finding out and addressing ownership of buildings. As Lord Roe said, there are bad actors who deliberately try to obfuscate ownership to make it more difficult for people to enforce against them. Certainly, the experience that local authorities have had when using the Housing Act 1988 is that that is a problem.
The provisions in the Bill are at least trying to move us into a position where it is harder for people to hide behind legal entities and not take responsibility for what they should be doing. That is a stronger provision that enables regulators to take action to identify who the right people are. It is really helpful. Will it entirely solve every single problem? No, it probably will not. There will continue to be bad actors who do the best they can to hide behind something, but this is a good step in the right direction and gives us additional tools to take the action that we want to take against the people who really are responsible.
Lord Roe: May I add one thing? It goes back to Gareth Bacon’s question, which is a good question, about the hierarchy of regulation. An extension of that is, “Who do you enforce against?”, in terms of what Mark said. It is important for regulators to talk to each other about hierarchy, who owns it and what you are going to do in the detail across different bits of legislation, but you need to make sure you are not enforcing against people who do not hold power in the system, particularly the resident management companies. There might be some rogue RMCs out there where you might need to do it, but I have not yet come across that situation.
I need people out there to hear that, certainly from our perspective, this measure would be a tool of absolute last resort against those entities, because most often they do not have the power even to resolve their own issues. I want to be really clear about that, because I know there is a heightened level of anxiety about what the Bill might do to those people, as if we are being forced as regulators into doing things to RMCs. We are not. We have choices as regulators. This is a great tool for some of the people you identify. Personally, I do not think it is designed to punch down at RMCs. I think it would be completely inappropriate. We would do everything else in our power to help resolve the situation with them before you got anywhere close to this.
The Chair
We have less than five minutes left, so I am afraid some colleagues will be disappointed.
Sarah Coombes (West Bromwich) (Lab)
Q
Lord Roe: Mark, Charlie and I dealt with this one, so I am going to volunteer Charlie, who is a bit of a victim really, while you think about it.
Charlie Pugsley: If it is the building in Dagenham, we have engaged consistently with residents since then. We are also working closely with London Fire Brigade. I have to be careful, even in Committee, not to talk about things that could prejudice a live investigation. One of the things we have heard loud and clear is about the knock-on impact of the case, where the entity has become dissolved and its estate is in effect taking money from the people who have already suffered the loss of their properties. That is one of the things that we are feeding back to the Department and other regulators. Both we and London Fire Brigade are still working on that. But we are both very much sighted on—this comes back to Lord Roe’s point that you need to approach enforcement with intelligence—in this case, what do we do if the only impact further impacts on residents?
Helen Fisher: May I add to that? Lord Roe made this point earlier. I think we all welcome the Bill. The behavioural point is an important one, and there are a couple of things on that. This is not just about remediation; it is about safety for residents and leaseholders while we get to their buildings, and there are thousands of buildings. We are starting to work with the social sector and the private sector to ensure that transparency is there. One of my goals is making sure that all residents and leaseholders understand when, and understand that they are going to be safe in the interim.
On the behaviour, it is not just about doing everything in your power to step through a design and remediation programme, which is undoubtedly incredibly complex. It is also about how you as a building owner are compliant with resident and leaseholder safety while you wait for key remediation works to go ahead. There is a lot more to do in that space.
Peter Fortune (Bromley and Biggin Hill) (Con)
Q
Lord Roe: The quick answer is that some of it helps, but my message—perhaps this is a good point to summarise from our point of view—is that there is a culture and leadership piece that needs to be understood in industry. We have watched industry really up its game over the past year and a half, so this is not a chance to bash them up, because I think people have worked very hard, but we still see appalling communication at an operational level from operational teams.
Even when the chief exec is leading the strategic entity well—we are talking about some large developers here—something happens at the operational level and they treat residents with disdain. There is no way you can enforce your way out of that, to be honest. We need the industry to take responsibility—even if it is bad news, please can you just communicate with your residents in a way that puts them, as a human, at the centre? Time and time again, that is where it starts to go wrong.
Charlie Pugsley: This is where all of us on the panel will communicate directly with those entities. We will put it in writing, even where it is outside the duty of resident communication, for example, and we will be really clear about what we expect.
Lord Roe: Again, the offer here is that if you have individual examples where the weight of the regulator will help, we are in with chief execs of the big and small developers all the time. We frequently have conversations in which we ask them to up their game, even if we cannot enforce it.
The Chair
Order. That brings us to the end of the time allotted for the Committee to ask questions of this panel. On behalf of the Committee, I thank our witnesses for their evidence. We will now change to the next panel.
Examination of Witnesses
Dan Daly, Penny Pender and Spencer Sutcliff gave evidence.
The Chair
We will now hear oral evidence from the National Fire Chiefs Council and Jonathan Smith, the commissioner of the London Fire Brigade. For this session, we have until 12.40 pm. Will the witnesses please briefly introduce themselves for the record?
Dan Daly: My name is Dan Daly, and I am the director of service delivery improvement at the National Fire Chiefs Council.
Penny Pender: My name is Penny Pender. I am the head of policy at the National Fire Chiefs Council.
Spencer Sutcliff: I am Spencer Sutcliff, the deputy commissioner at the London Fire Brigade, representing Jonathan Smith, the commissioner.
Gareth Bacon
Q
Dan Daly: Currently, the answer would be no. For the work that has been ongoing, there have been some improvements to the monitoring of people who are undertaking risk assessments. Some work ahead—important work—is on the competency and regulating the role of the fire risk assessor. At the moment, more work is being undertaken by fire risk assessors, and that has been monitored. There is probably an overexaggeration of the levels of competency by individuals. Looking at the membership of professional bodies, alongside that competency route, is one of the ways to address the current shortfall. I admire the ambition in the Bill; it is important that we put high expectations on the delivery and remediation of buildings, but a number of aspects—one is the competency of fire risk assessors and access to them—are the Achilles heel of that ambition for the timeframe.
Gareth Bacon
Q
Dan Daly: It is a fair challenge. As I say, personally, I quite like the idea of pushing or challenging timetables. Having said that, a number of the unresolved issues in the Bill we were talking about three years ago probably, and they remain unresolved. There is a pace to delivering the Bill and putting it in place where I think there are some weaknesses, and where those challenges are still present.
One of the aspects where we will be challenged is, to an extent, the pressing timeline to have a Bill in place, because it has been a long time coming. What we are seeing behind some of that is that it then pushes some real pressure on to other regulators, particularly around how we will work together under a collaboration and who takes the lead, which was part of the questions to the last panel. Those pressures are highly challenging, and it might have been better to have resolved them more satisfactorily before the Bill was launched.
James Asser
Q
We cannot answer what is actually wrong with the building, but everything stems from that in terms of whether we need to be clearing people out. In the first instance, everyone phoned the fire brigade, because they thought, “Hey, it’s not safe,” but it sits outside the fire brigade’s powers because it is not a fire issue; it is a structural one. In terms of your powers and where powers lie, where those responsible fail to take building safety seriously or to act when they should, what differences would clearer duties and stronger consequences make? Would additional powers in your remit be helpful in achieving that?
Dan Daly: As the previous panel talked about, the Bill provides a number of tools to a number of different regulators, and that is helpful and should be applauded. In terms of some of the unresolved questions and historical challenges that Lord Roe was talking about, the Bill will struggle to address some of the structural issues, and we will still find ourselves with the issue of who takes the lead in some circumstances. Because the issue falls back to one of public safety, fire and rescue services are often the agency that will stay around, even when we do not necessarily have an ability to affect the outcome, particularly when it comes to structural issues and issues of construction competence down the line. We will be there predominately to support residents and to try to protect their safety.
I am not sure whether it tackles the historical issues. They are some of the unresolved elements of competency throughout the system that we identified and were talking about three or even four years ago, when the Bill was first mooted. I am not sure whether it does enough to tackle those, but it does give some responsibility to regulators elsewhere, which does add value.
Spencer Sutcliff: The example in your constituency is somewhat symbolic of the wider building construction issues over the last few years. I have great sympathy for the impacted residents; it is a terrible situation for them. Dan Daly is correct that the London Fire Brigade has been drawn into this issue despite not having the powers, as it stands, to resolve it—although we naturally have responsibilities around emergency response and other contingency arrangements.
We welcome the Bill, and the work that we will be done to clarify the enforcing responsibilities of each responsible agency will be welcomed—we are a long way through that as it stands anyway, with various protocols and long-standing work and arrangements—but it will not necessarily resolve this particular issue, and I suspect that other unique challenges will show themselves over the years, like this one has more recently.
The Chair
Mr Asser, you want to repeat the declaration you made at the start of proceedings.
James Asser
Yes. I am sorry; I should have done that beforehand. My partner works for the London Fire Brigade in fire safety issues.
Sarah Gibson
Q
Penny Pender: That is a really good question. It depends on what you want to be achieved through the Bill. From the point of view of controlling the risk of fire spread on external walls—that fire safety point of view—we are satisfied that the PAS does what it needs to do. Obviously, it does not deal with how the building should have been constructed to begin with or those wider issues, so if that is something that people are looking for it to resolve, they will remain frustrated. Even though we are happy that it would deal with those critical life-safety issues, you are right to highlight that some of the wider issues, such as insurance, would not be addressed through that means.
Spencer Sutcliff: We think that PAS 9980 is an appropriate assessment, and we would not want, necessarily, to bring in further methodologies that could confuse the arrangement or provide further inconsistencies. It goes back to the root cause, which the previous panel touched on a number of times: the competency of the assessor. When you are using an assessment that always has an element of subjectivity, you are entirely reliant on the competence of the assessor, and we have seen various examples of different assessors coming to different conclusions using that assessment. There is some ongoing concern.
We really welcome and would like to see more of the auditing arrangements for Homes England. Certainly in the initial stages, I would like to see Homes England audit those premises that have been deemed “tolerable” and not just look at the ones that are effectively failing the assessment, because there needs to be confidence that those assessments are done in a consistent manner. We are back, a little bit, to the root cause around who is doing the assessments in the first place.
Penny Pender: If I might build on that, as Spencer says, no matter what methodology you select, if the people using that methodology do not have the right competencies to begin with, you will come across those issues. For the time being, we need that methodology. It is what we have available to us, so changing it at this point might not be helpful. I am aware that the PAS has been updated recently to make it clear that you have to have regard to and think about the wider risks in the building, so it should ultimately lead to those risks being identified. It is just a challenge for people, when they do identify them, how to address them.
Spencer Sutcliff: There is extensive work ongoing around the regulation of those assessors, and we have standards in place. We do not yet have formal regulation of who is permitted to carry out those assessments; that is a work in progress, and we really encourage that the pace of that work is maintained and that it is brought in as soon as possible.
Fleur Anderson
Q
Do you think that the Bill’s co-operation framework will help? The LFB, the borough council, the local management committee and the developer are all involved in conversations, but who can the residents go to for that independent assessment to be assured that the building is safe? Is there anything more that can be done in the Bill to help in that situation?
Spencer Sutcliff: I think the Bill provides a sufficient framework for the work to be done to clarify the exact position around the responsibilities of each of the enforcing entities. It is not unusual at all for the London Fire Brigade to have protocols and memorandums of understanding with different enforcing authorities. For example, we have a long-standing MOU in London with the local authority around houses in multiple occupation, because we both have enforcement powers under the fire safety order and the Housing Act. It is right and proper that we distinguish the type of building, the type of occupancy and who is the lead enforcing authority. To act at the same time is not good practice; it creates inconsistency and would not be correct.
I think the framework proposed in the Bill is sufficient. We have already drafted an enforcement protocol with the Bill in mind, so the timescale proposed in the Bill to set out that framework is suitable and can be met.
Bob Blackman (Harrow East) (Con)
Q
In terms of the fire safety of buildings, are you content that the Bill, as currently structured, is sufficiently robust to achieve the safety inspections and sign-off that will be required in the future?
Dan Daly: One thing we have been really clear about ever since the tragedy of the Grenfell Tower fire is that a whole-system approach is required to ensure building safety. Dame Judith quite rightly identified the need for the whole regime to be looked at. There are still elements within that—they have been referenced today—around competency, which is still an issue. There are the general skills requirements both across the construction sector and within fire risk assessors; we talked about fire engineering skills and those with the technical ability to address some of the risks that we now face, particularly when dealing with a historical property.
Bob Blackman
Q
Dan Daly: It comes down not just to competency; when I talk about competency, I talk about ethical behaviours and how that is controlled through membership bodies and sign-out. I do not think it is an ideal situation. It is certainly a situation that was addressed by some of Dame Judith Hackitt’s comments in that original review.
On the point about a whole-system approach, while the Bill talks about remediation and provides some useful tools, it does not provide the complete answer, because there are historical defects in fire safety that are internal, not just about the external wall of the building. We still find challenges in respect of how those are addressed.
We talked earlier about the suitability of the PAS. The PAS does allow for some weighing up of other features within the building, in terms of how the risk is mitigated. That is a step forward from the combined advice note, which was pretty all-in or all-out and did not allow for some of that balance. But we have issues that are still sitting within the buildings, and there are a number of things we could be doing better and stronger to ensure that buildings are safe overall and to build the confidence of residents, which we talked about earlier.
Bob Blackman
Q
Dan Daly: To your latter point, it is the role of the Building Safety Regulator to make sure that these things are built correctly from this point on. The last panel talked about the work in that regard.
I think the responsibilities for remediation are clear in the Bill, which assigns responsibility through the “polluter pays” principle, so it is much clearer who is responsible for repairing buildings. Our ability to enforce that would be improved if some of the protocols were agreed around who collaborates and who leads. I note the work in the LFB around writing protocol at the moment, but elsewhere in the country there are some really ambitious and difficult timeframes; if we press ahead as we are now, something in the region of 157 individual partnership protocols will need to be written so that each regulator understands its role in holding the relevant persons to account. That is a challenge.
While the Bill makes it clearer who is responsible, who is going to lead the charge to hold those people to account could be made even clearer through something like a review of the LACORS protocol that we currently have, to make sure that those things are in place and applied consistently across the country. As I said, I commend colleagues in London for being on the front foot in getting that agreement in place. If that agreement was adopted as a national standard, it would bring some consistency of approach across the country and some confidence in how these things are dealt with.
Noah Law
Q
Dan Daly: I will pick up on your last question and then hand over to my colleague on the independent auditing, because we have been talking about that. We already have a duty to collaborate, so that is not new, but providing some clarity around how regulators and agencies will work together in a consistent way that is applied nationally will improve it. I am not sure that it offers us individually anything more than we currently have, but across the wider sector, that duty to collaborate is not unhelpful.
Penny Pender: The point in the Bill about solidifying independent auditing is crucial, and I agree with everything that Helen on the previous panel said. That is a really welcome part of the Bill, and it will hopefully assist in these cases. If I may speak to the concern that Mr Blackman mentioned, just because something has planning permission does not mean that it meets the functional requirements of the building regulations. If those buildings went up with combustible cladding on them, they do not meet the building regulations, full stop. Hopefully there are sufficient powers across the built environment to deal with that, and we would hope to see the Building Safety Regulator and others step in where needed.
There might be room for examining the implementation dates for the Bill, because there are some possible gaps. The Bill will only apply, I think, to buildings that were built before April ’22. There are some periods of time there, such as the possible 15-month gap between when the Building Safety Act came into force and when gateway 2 started, that might bear examination and would be good to look into. There was also an eight-month gap between the Bill coming into force and the review of the combustible cladding ban.
You might recall that there was a combustible cladding ban put in place for buildings over 18 metres; that was reviewed and it was clarified that it would apply from 11 metres, but there was an eight-month gap during which it might have been incorrectly perceived by some in industry—even though we would disagree—that it was acceptable to put combustible material on to those buildings. Even though we would say ultimately that it still does not meet the functional requirements, some may have misunderstood that, so it would be worth examining the timeframes in the Bill to make sure that that is okay.
Rachel Blake
Q
Penny Pender: That is a good question. I would suggest that it is possibly not necessary. There is already a lead regulator’s protocol in existence. It is known as the LACORS guidance, produced by local authority co-ordinators of regulatory services. All authorities would have had local agreements in place aligning to that at some point. The challenge is that it was not kept up to date, particularly following the implementation of the Building Safety Act.
We have been advocating for it to be updated since then. That could be achieved without waiting for primary legislation, and it would be helpful if it was done once and done nationally, and then local regulators were given the option to adopt it or to develop their own ones if they felt that was necessary. As Spencer said, London has done a lot of the heavy lifting already with the pan-London fire safety protocol, so that could easily be lifted and shifted and adopted nationally.
As Dan said, the impact assessment identifies that outside of mayoral arrangements, there could be anywhere up to 157 local partnership agreements that would have to be developed and signed off within only a four-month time period. Our concern is that that could distract from local enforcement on the ground, because in some of the smaller authorities, the staff who are needed for enforcement would have to be diverted towards developing the agreements or writing to the Secretary of State to justify why they have not. We think it should be done nationally and done once.
Rachel Blake
Q
Penny Pender: Yes, absolutely. I am sure they will be. We will be encouraging our members to do exactly that.
Dan Daly: With everyone tuning in independently, though, there is a risk of inconsistency, so some central co-ordination would bring the consistency we are looking for.
Rachel Blake
Q
Penny Pender: One of the benefits of those types of protocols is that they identify the local working arrangements when there is a need for escalation, so it would be dealt with within the scope of those.
Rachel Blake
Q
Dan Daly: We have been saying collectively that what is in here at the minute does not do the work that we would like it to do. We would like that national co-ordination, and within that agreement, for there to be sign-up from partners on who owns the lead in certain circumstances, so it should not require someone to step in and mediate.
Without that agreement, there is more risk of delay as people debate inconsistently through local agreements, or you have a stand-off between agencies because there is no agreement in place. We can tackle that by moving the national agreement forward more quickly to remove the doubt and maybe answer the questions you are asking.
Florence Eshalomi
Q
Spencer Sutcliff: Naturally, we are very supportive of RPEEPs and personal evacuation plans. However, our preference would be for the measure to go further and look at fire risk within homes, rather than just being focused on the escape routes.
Dan Daly: I think there are other benefits, one of which is about providing extra assurance on the plans that have been put in place. We know that fires start inside individual dwellings; they rarely start in the common parts of a building. There is also an opportunity to ensure the maintenance of some of the passive fire safety protection that is designed within a building—whether that is where people have access to common service risers, or where they have made adaptions to fire doors and things inside those properties. That is part of the building integrity overall.
Gareth Bacon
Q
Dan Daly: I think the partnership agreement I was talking about would set out very clearly, in certain circumstances, who was leading on what. At the moment, where that is not as clear as it could be, and where there is a reliance on separate entities coming up with these in quick order after the Bill is passed, that leads to the possibility of inconsistency in how they are done. Of course, they do not always come to those agreements quickly, because there will be different viewpoints, so I do not think it would be unhelpful to do that ahead of time.
Sarah Coombes
Q
Penny Pender: I think that the Bill provides a few more tools in the toolbox, as some of our colleagues said earlier. I think the introduction of some of those financial penalties is really interesting and useful to see. The proof will be in the pudding, so it is certainly worth trying them in certain circumstances and seeing how it goes. We hope that they will be helpful. I know that some fire and rescue services have potential interest in those being expanded beyond just the Bill to the application of the whole fire safety order. I think this will be a really useful opportunity to see how it goes, and then to learn from that. Hopefully, it will make a difference.
Peter Fortune
Q
Spencer Sutcliff: That has been a fairly long-standing concern of ours. We have obviously prioritised that and done a lot of work in-house, and our competency levels—as we would determine them—have improved fairly significantly over the last few years. We certainly had a moment in time when we lost quite a high number of highly competent and experienced staff to the private sector, because we simply could not compete financially. We have been well supported by the London Mayor and our GLA colleagues to make arrangements to reduce that impact a little, and that has had some positive effects. Recently, over the last 24 months, we have thankfully had much less of that.
The Chair
That brings us to the end of the time allotted for the Committee to ask questions to this panel. On behalf of the Committee, I thank the witnesses for their evidence.
Examination of Witness
Kate Green gave evidence.
The Chair
We will now hear oral evidence from Kate Green, the deputy Mayor of Greater Manchester. I want to confirm, Kate, that you can hear and see us in the Committee. Under the programme order, we have until 1 pm for this panel. Will you briefly introduce yourself for the record?
Kate Green: Yes, and thank you for the invitation to address the Committee. I am Kate Green. I am the deputy Mayor of Greater Manchester with responsibility for safer and stronger communities.
Gareth Bacon
Q
Kate Green: I think it is true to say, Mr Bacon, that one of the things that residents are looking for is greater certainty, and this is a very complex regulatory and enforcement landscape. We would certainly like to see greater clarity, not necessarily in the Bill, but perhaps in supporting documentation and guidance on how different regulators and enforcers interact with one another, on the escalation processes, and on who is responsible for taking enforcement action in specific circumstances, so that residents can be confident in how the processes work and that they work smoothly and seamlessly.
Gareth Bacon
Q
Kate Green: Capacity is a real concern across the whole system, including for local authorities, as you rightly identify. We have welcomed, and Greater Manchester fire and rescue service, which I oversee on the mayor’s behalf, has welcomed the additional funding that we have received, but it will be important that all new burdens on local authorities are funded adequately and sustainably. The enforcement requirement—that regulatory role—is here to stay; it is not just a one-off, albeit that we clearly have a surge of activity and demand as we remediate a significant number of buildings in Greater Manchester, as part of the legacy of the appalling Grenfell Tower fire nearly 10 years ago.
I think it is important to recognise that particularly across fire safety enforcement and inspection we are struggling to recruit and, more significantly, to retain staff. There are real pressures and competition from private sector employers, who can offer much higher salaries. In Greater Manchester, across all 10 of our local authorities, we are giving high priority to protecting and supporting our residents, but there is no doubt that in times of considerable financial pressure on local government, as you identify, that is a challenge—and it is one that the Government will need to ensure is adequately resourced, so that local authorities and other statutory services can properly fulfil their responsibilities.
Florence Eshalomi
Q
Kate Green: The first thing is to provide greater certainty and clarity about what is encompassed in the Government’s remediation commitments. We very much welcome the Bill and the funding already being made available to us to take steps to support our residents. It is useful to have those much more effective funding pathways.
We particularly welcomed the improvements in the funding process through the cladding safety scheme. I pay tribute to Homes England and Helen Fisher, whom I think you have heard from already this morning. That scheme has been a real game changer in enabling funding to begin to move into the system so that buildings can be remediated.
I welcome the provisions in the Bill on mitigations for residents who are exercising the right to manage their buildings or are in resident management companies, although we have concerns that there remains a risk of penalties and sanctions for those residents. We have made progress in Greater Manchester as a result of the attention that the Government have given to remediation of buildings with fire safety defects in recent years. According to MHCLG data, remediation has been completed for 152 buildings in Greater Manchester, but that means that we still have 181, as at quarter 4 last year, for which remediation is deemed outstanding. I would also point to the buildings that require remediation for other defects that will not be covered by the scope of this legislation.
Florence Eshalomi
Q
Kate Green: This is a helpful provision; it potentially gives regulators a timelier and more proportionate enforcement option, but we would not want that to arrive at a situation where commercial developers, who often have very deep pockets, considered that a financial penalty was an acceptable cost of delay and that they could afford to hold back, address other priorities that they might have and just pay the price of that. We really do see those penalties as a backstop to other effective enforcement action.
We would also draw attention to the need for the capacity to use that civil route to secure compliance. There will need to be investigation, evidence gathering, decision making and dealing with appeals, and all that will require sustainable long-term funding in to the system. A civil route is certainly welcome. However, our other concern is about buildings subject to the developer contract, where using a contractual route rather than a statutory basis to ensure compliance puts more hurdles, if you like, in the way of residents seeking to have their buildings remediated.
Sarah Gibson
Q
Kate Green: Yes. Unfortunately, I did not hear Ms Fisher’s evidence this morning, but I do share those concerns. There will be an audit process, but that will be a dip sample, in a way; there will not be capacity for Homes England to audit every fire risk assessment that is undertaken. We will need to know that we have a robust audit process and that Homes England has the resources to carry that out.
We also need to be clear that where fire risks are deemed tolerable, there is an appropriate response from the insurance industry, which recognises that they must have full regard to that audit process based on the PAS 9980 framework that you referred to, and that, if fire risks are deemed tolerable, residents should not be penalised by higher insurance premiums, because effectively the insurance now has that assurance that the building can be insured cost-effectively.
Sarah Gibson
Q
Kate Green: I share that concern. The Government will need to ensure that the fire risk assessments and the decisions of fire risk assessors are robust and consistent. Otherwise, there are avenues open for people to game the system or to obtain an assessment that is more favourable to their own interests.
There is a risk there, and I hope that in the course of the passage of the Bill the Government will think about how they can ensure that that fire risk assessment PAS 9980 framework is fully robust and can give full assurance to residents.
Olivia Blake (Sheffield Hallam) (Lab)
Q
Kate Green: I think that the mayoral combined authority has had and can continue to have a role in helping to speed up the process. In Greater Manchester, shortly after the appalling fire in Grenfell Tower in 2017, the then mayor established a high-rise taskforce, chaired by Paul Dennett, the Salford city council mayor. Paul now chairs a high-rise oversight group where we are able to convene local authorities and the Greater Manchester fire and rescue service. Homes England attends, as do the Ministry of Housing, Communities and Local Government, housing providers, developers and residents. They can all be convened around one remediation programme.
Of course you will know, as members of the Committee, that we and other mayoral combined authorities published our local remediation acceleration plans in recent months. Those plans are the articulation of the whole-system approach that I think mayors and mayoral combined authorities can help to put in place. We have been able to use our plan to do a number of things, including, obviously, to understand more clearly what buildings are affected in Greater Manchester and what the nature of the risk is in each of those buildings. We have been able to be close to and very fully engaged with our residents, and to ensure that a residents-first focus sits at the heart of the work that we are doing in Greater Manchester and the work that we want to see nationally.
We have been able to bring the social housing partners to the table, which has been exceptionally useful in considering how we get social properties remediated and how we can work with our social housing providers in Greater Manchester to do that as swiftly and as effectively as possible. We can escalate matters when they become stalled. We have also been able to lobby Government; I think it has been helpful that Greater Manchester has been able to present a concerted voice to successive Governments for funding and for action—now resulting in this legislation.
There is a lot more that we hope to do with our local remediation acceleration plan in the coming months and years, and at the heart of that will be resident engagement. Our residents continue to live with a very significant impact on their mental health and their financial position, and in many cases with continuing uncertainty about when their buildings will be fully remediated. I see the work that we are able to do as a mayoral combined authority, maintaining the spotlight on the lived experience of our residents and reflecting that back both into the action that we can take and into the action that we ask national Government to take, as being crucial.
The final thing I will say, given that I have the very specific role of oversight of the fire and rescue service, is that in Greater Manchester we have been able to prioritise having the right capacity in the Greater Manchester fire and rescue service to support the regulatory regime—the inspection and enforcement programmes that are required. That work, and the oversight of the implementation of all the recommendations that came out of the two Grenfell Tower inquiry reports, is being taken forward. We can oversee all that through a series of governance structures that are led by our chief fire officer. One of the things that mayoral combined authorities are in a very useful position to do is to draw all those different players in a geography together.
Peter Fortune
Q
Kate Green: On right to manage and resident management companies—although obviously we are also concerned that all charges are eventually at risk of being passed through to residents—the first thing I would say is that they are already experiencing quite significant financial burdens, because they are unremunerated for what is in many cases a substantial workload. Despite the welcome mitigations in the Bill, they also still ultimately face the risk of criminal sanctions, so we would certainly like attention to be given to that.
In terms of service charges, there are concerns around transparency; residents must be fully informed about the way in which service charges are made up. In my past life as a constituency MP, I think we saw that some professional commercial managing agents were more transparent than others. There needs to be that ability to ensure that the conduct of commercial managing agents is in the interests of residents—obviously they will be acting in the interests of their principal, but we should be very clear about their obligations on behalf of their principal to residents. Frankly, appeals are the last resort, are they not? What we actually want to see is a robust system, which ensures that service charges are fair and proportionate, and that no resident is required to pay, through their service charge or otherwise, for faults and defects in their building that are not of their making.
Peter Fortune
Q
Kate Green: I would certainly want to see more protection for residents who are acting in the right to manage and resident management company space. Prescribing more closely what can and cannot be reflected through service charges may be something that the Government should explore.
Sagal Abdi-Wali
Q
Kate Green: The difference ought to be, from the perspective of the resident, that the work gets done first and that the argument about who pays does not delay the work to make their homes safe. A backstop needs to be exactly what it claims to be: a backstop. What we actually want is a system that ensures, much more swiftly, much earlier and much more effectively, that people fulfil the remediation obligations imposed on them.
As I say, we are probably particularly concerned about those developers whose remediation activity will be overseen through the medium of the developer contracts. We still have quite a complex landscape, I think, of ways in which residents might try to compel remediation. A backstop is necessary, but we would much prefer to see a left shift, ensuring that the obligation to remediate is carried out by responsible actors at the earliest point and is compliant with regulatory requirements from the start of the process.
Bob Blackman
Q
Kate Green: There are two things: one is that we would like to see the Bill extended to cover defects that are not related to cladding or external walls; the second is workforce capacity. By that I mean capacity both in the regulatory sector—fire authorities, fire services, local authorities and other regulators—and in the construction sector. The tension that the Government are managing between meeting their house building targets, which we support, and getting existing buildings remediated in an industrial sector that is facing significant workforce pressures is a real concern to us.
The Chair
Order. That brings us to the end of the time allotted for the Committee to ask questions this morning. On behalf of the Committee, I thank you, Kate, for your evidence.
Ordered, That further consideration be now adjourned.—(Sarah Coombes.)
Building Safety (Remediation of Unsafe Cladding etc) Bill (Second sitting)
(1 day, 9 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make a declaration of interest in connection with the Bill?
Florence Eshalomi (Vauxhall and Camberwell Green) (Lab/Co-op)
Only that the headquarters for the London Fire Brigade are in my constituency.
Examination of Witnesses
Jaclyn Mangaroo and Kate Henderson gave evidence.
The Chair
We will now hear oral evidence from the Property Institute and the National Housing Federation. We have until 2.35 pm for this panel. May I ask the witnesses to introduce themselves briefly?
Kate Henderson: My name is Kate Henderson. I am chief executive of the National Housing Federation. We represent not-for-profit providers of social and affordable housing in England.
Jaclyn Mangaroo: I am Jaclyn Mangaroo from the Property Institute. We are the professional body for residential property managers. Our members manage about 2.5 million homes across the country and are directly involved in supporting remediation projects and affected residents.
Gareth Bacon (Orpington) (Con)
Q
Kate Henderson: First, thank you for inviting the National Housing Federation to give evidence to the Committee. The safety of residents is our No. 1 priority, and we welcome the Bill and its intention. I also acknowledge and pay tribute to the work of Grenfell United; we are here because of the tragic fire at Grenfell Tower, where 72 people lost their lives.
We are absolutely committed to accelerating the pace of remediation in the social housing sector. There was no funding for social housing remediation until the spending review in 2025. Social housing providers were paying for remediation themselves, and that took money away from major refurbishments and new supply. Since the very welcome access was granted to the cladding safety scheme, we have been able to accelerate the pace of remediation, and we expect more properties to come forward.
We can supply the facts and figures on how many properties we have remediated self-funded and how many are being remediated with Government funding to the Committee. I have the details here, but I am not sure that anyone wants me to go through the facts and figures now.
Gareth Bacon
Q
Kate Henderson: Not having funding for remediation has undoubtedly taken huge capacity out of the social housing sector. Since the fire, we have been working very hard to remediate buildings, but the pace of that, without Government funding, was much slower than we would have liked. Last year’s funding has changed this, but it is not just about money; it is also about the system around it. It is about the capacity of the Building Safety Regulator, and not just external walls but internal defects, and the system of assurance and having enough technical competency to support us in that work.
Gareth Bacon
Q
Kate Henderson: The new leadership of the Building Safety Regulator has undoubtedly improved things, but up until the last 18 months, when gateway 2 timeframes have started to improve, it has been very slow. It is really important that the Building Safety Regulator and the forthcoming single construction regulator are adequately resourced by Government to deliver at scale and pace. In the wider construction sector, there is huge upskilling to do to ensure we have the expertise to do fire risk assessments of external walls—FRAEWs—and get consistency of implementation of methodology with PAS 9980,. We are working with lots of people and contractors in the process, but we need many more.
In addition to needing more people with expertise, we need consistency, which I know came up in evidence this morning. At the moment, we are hearing from our members that PAS 9980 is subjective, and different assessors will come up with different decisions. You can have two assessors look at the same property; one will say it requires remediation and one will say it does not. The proposal for a mandatory audit system with Homes England is very welcome. We would like a feedback loop to be built into that system so that any poor practice can be identified and challenged and any patterns of inconsistencies can be flagged. Then, that feedback can be taken back into account in any future updates of PAS 9980.
The Chair
Q
Jaclyn Mangaroo: I agree with a lot of what you said, Kate, particularly around the upskilling and resource elements. What we and our members see is that some of the delays start much earlier in the gateway 2 process. The real problem, which this Bill, with some amendments, will hopefully tackle, is where buildings are completely stalled from the beginning—where scope of works cannot be agreed and, like Kate said, where FRAEWs differ. Standardisation and auditing of FRAEWs will definitely help, as long as that is a speedy process. I understand that we are still waiting on regulation of the fire risk assessor profession.
The Chair
If there is anything that you want the Committee to know, you can write in. Ms Henderson, you suggested that there was some information that should be put before the Committee.
Florence Eshalomi
Q
Jaclyn Mangaroo: That is a very good question. I think it goes some of the way by imposing that legal duty, but sometimes that does not fall on the person who will be accountable in terms of having the resources or being able to actually deliver remediation. I am thinking about resident management companies and right to manage companies that would become responsible entities and have that legal duty. They do not necessarily have the resources needed to compel a pledged developer, for example, or a product manufacturer to do that without pursuing them through litigation. RMCs and RTMCs do not really have those resources; they have the service charges, but they cannot always use those to fund litigation or remediation works themselves.
Florence Eshalomi
Q
Jaclyn Mangaroo: We welcome the remediation backstop, but that it would be great to see that come further forward so that you do not have to go through enforcement or sanctions to get to that remediation backstop. Particularly where we have evidence that buildings are stalled in the very early stages of project scoping, I think that that would be a reasonable opportunity for the regulators to step in and bring in a remediation manager or bring forward a remediation order or remediation contribution order. I do not think that some of those resources are necessarily being used proactively. I have not seen any transparent data on their use by Homes England and other regulators, and I think that could really help.
Florence Eshalomi
Q
Kate Henderson: Equal access to remediation funding, brought in last year at the spending review, is hugely welcome. It has made a big difference to our ability to deliver remediation at pace and to invest in existing homes and development. Previously, our members—housing associations—and councils had to self-fund remediation, which diverted resources away from new homes and refurbishment. Some of our members even had to sell buildings to pay for remediation work. Members are now actively applying to the cladding safety scheme and receiving funding. We are expecting starts and completions of remediation by our members to begin to increase as we get the approvals. Homes England will be able to provide more data on that.
Funding from the cladding safety scheme also funds things such as project management, which is really important to deliver remediation faster. It frees capacity within our member organisations to build new affordable homes and improve existing ones. I should say that the funding only covers external wall defects; members are still facing significant costs for internal walls, including compartmentation and fire doors. We very much welcome the cladding safety scheme funding for high-risk buildings, and new funding has become available for buildings under 11 metres that are also deemed high-risk. That opened earlier this year, and we understand that that fund for buildings under 11 metres is massively oversubscribed. It would be really useful to have the data from those applications to understand the scale of works required in high-risk buildings under 11 metres.
In the sector more broadly, there are lots of other significant changes happening. We absolutely support Awaab’s law and welcome the clarity in the decent homes standard, but recognise that those measures all add cost. Remediation funding that we have access to very much helps to meet those competing demands and makes them more manageable, but the overall financial picture remains complex and has its challenges.
Sarah Gibson (Chippenham) (LD)
Q
Jaclyn Mangaroo: That is a really good question. In some cases, it may be. We have seen it most often with the pledged developers where they are using a contractor that may be part of the organisation, and so are marking their own homework. For a responsible entity where it is an enfranchised building, or where an RMC or an RTMC has the opportunity, they have really no incentive to say that their building is safe when it is not. They have very little incentive to do that. They really want to go much further.
The regulation of the profession will certainly help to improve competency, and hopefully it will speed up the process and reduce delays, as long as that auditing of the fire risk assessments can be done quickly through Homes England. We are all about making sure that there are fewer delays, that stalled buildings can get started and that residents have peace of mind. There is no deadline. There is no set date for when buildings will be finished, so making sure that we get peace of mind, confidence and protection of residents into this Bill will be so important. That is how we have approached our written evidence to the Committee: does it speed things up, does it provide clearer accountability and will it actually give residents peace of mind and create safer buildings?
Sarah Gibson
Q
Jaclyn Mangaroo: I do not know of any particular cases of that. It is more when there is a pledged developer involved. I cannot comment specifically on any other cases.
Kate Henderson: From our members’ perspective, we have already been working really hard to deliver the duties that will become part of the Bill: for example, assessing buildings, mitigating risk, applying for funding and carrying out remediation works. We welcome the introduction of the remediation compliance plans as a way of demonstrating transparency and accountability to enforcing bodies, but also of demonstrating accountability to residents. Having clear plans and timelines will help ensure that expectations are managed, that any delays are addressed quickly, that enforcement action can be taken against bad actors and, in exceptional circumstances, that the backstop can be used to secure a route to remediation.
We welcome standardisation of the fire risk assessments of external walls methodology and the intention that every building be assessed and remediated to the same standard. As I have mentioned, the PAS 9980 methodology has already been used to access funding to the cladding safety scheme. I have also mentioned that we have mixed experience of assessors using PAS 9980 and that it can be subjective. Having a national audit system run by Homes England with a feedback loop will be really welcomed by the sector. I should also say that alongside auditing, as you have mentioned, having regulation of the competence of risk assessors as part of the introduction of a single construction regulator will help to ensure that recommendations are consistent and of good quality. That will provide assurance and transparency to all involved, particularly residents.
Sean Woodcock (Banbury) (Lab)
Q
Kate Henderson: There is nothing more important than residents’ safety, and I can assure you that our members have safety as their utmost priority and responsibility. We are already delivering a huge number of aspects of remediation work that will be covered by and become statutory duties in the Bill, and we welcome that. This legislation is only one piece of the response to the tragedy at Grenfell Tower. There are other pieces of legislation, but in addition to that, a huge part of this work is around culture. It is around learning, accountability and the relationship between residents and their landlords.
As part of that, in a couple of weeks’ time we will be launching a suite of tools for our members—a Grenfell Tower reflection toolkit. This is about learning lessons from the inquiry. It is a suite of resources for board members, executives, operational levels, large organisations and small organisations, making sure that this is not just about physically replacing cladding, but about listening and acting on the information being provided by residents, having appropriate assurances in place, and making it culturally at the heart of who we are as organisations.
On whether we have the capacity to deliver these new requirements, we are already doing a lot of it, but the capacity of the overall system is not us alone. We rely on expertise, fire risk assessors, contractors and the capacity of the Building Safety Regulator. A lot of work is happening on all those fronts, but everybody is going to have to work harder. We are going to need a lot more people and a lot more expertise. We are really pleased to see the leadership of the Building Safety Regulator drive forward the pace of assessments to gateway 2. We are seeing improvements there. That needs to continue, and we are committed to working with all involved, including Government and particularly residents.
Lewis Cocking (Broxbourne) (Con)
Q
Kate Henderson: I am not sure that as the trade body, with our members being the regulated entity, we are best placed to answer that question.
Lewis Cocking
Q
Kate Henderson: We would very much welcome clarity on the regulatory system to ensure that we get clarity on the works that need to happen in a timely way. How that would be worked out is perhaps a question for Government. I do not think I am best placed on that one.
Jaclyn Mangaroo: I agree with that. I think clarity is absolutely key for every provision in the Bill. It is not something that TPI can necessarily comment on, but we need to identify who the final decision maker is.
Andrew Cooper (Mid Cheshire) (Lab)
Q
Jaclyn Mangaroo: Hopefully, issues in those cases will be few and far between, but the backstop and the appointment of a remediation manager is the only way to go. It is important that residents have some certainty and a point of contact in somebody who will be responsible for that. At the moment, yes, I think the Bill does go far enough in those cases.
Andrew Cooper
Q
On the other side, the Government have provided some certainty to the sector through rent convergence, through the 10-year rent settlement, through the social and affordable homes programme and by bringing you in scope of the building safety fund. Do we have the balance right in the resources that are available to the sector from central Government versus what you would expect housing associations to fund directly, either through service charges or through rents paid by tenants?
Kate Henderson: Thank you very much for the question. In the last 18 months, the Government have done a huge amount to rebuild the capacity of the social housing sector—housing associations and councils. Importantly, that has included equal access to building safety funding with an additional £1 billion into the cladding safety scheme. Alongside that, we now have a 10-year rent settlement, rent convergence and the new National Housing Bank. Low-interest loans will hopefully be introduced soon. We also have, of course, the social and affordable homes programme.
The Government have very much listened and engaged and are working constructively with us. We are ambitious, both about ensuring that our existing homes and service provision are of the quality that we would all want and about building many more new homes. All our members are impacted by the building safety crisis, but those less impacted now have more capacity to deliver homes. If grant funding were available, we could deliver tens of thousands more social and affordable homes.
In terms of the balance we have now, we are looking at the overall regulatory landscape. As I say, we support the introduction of the decent homes standard and the implementation of Awaab’s law. We absolutely support and are working very hard on the building safety regulations. But there is a cost to all of this. Our ability to do all those things at once will be down to the individual priorities of organisations. We are meeting quite stringent timelines, which have been set by Government, on things like minimum energy efficiency standards. We support that direction of travel, but there is only so much money in the system.
You mentioned regeneration. We would really welcome more flexibility in the social and affordable homes programme to deliver replacement supply as well as new supply. We are very focused on net additions. I understand that we desperately need more homes, but we do need to invest in places. Similarly, when it comes to investing in building safety measures, I have mentioned the welcome funding that came earlier this year for high-risk buildings under 11 metres. There is not enough money to support those works. If there were more money, based on assessment of the applications that have come into Homes England for the under-11-metre scheme, that would free up the capacity to do more supply. We want to do all those things; our ability to do them at pace is impacted by how much money there is in the system.
Peter Fortune (Bromley and Biggin Hill) (Con)
Q
If I can be cheeky, I have a second question, which should perhaps go to Kate. Do you have sight of your members’ risk registers? If so, how are they flashing up some of the challenges presented in the Bill?
Jaclyn Mangaroo: Much of our written evidence is focused not just on the service charges, but on the unintended consequences. It might fall on residents to fund litigation to pursue the responsible people—the polluter, effectively—to deliver remediation. We want to see greater protection for those.
There is already a lot of law, particularly under the Building Safety Act 2022, around what can be passed through the service charges and what cannot. Building Safety Act costs and service charges have gone up around 50% in the last two years. That is still a very small proportion of those service charge costs, but where residents are not protected at all is for risk mitigation measures, interim measures, fixing internal defects and non-cladding work. There is no funding for that. It is outside the scope of the remediation contract for the developers; it is outside the scope of PAS 9980.
Ultimately, when we speak to our members, mostly residents are picking up the tabs for those interim measures, regardless of whether they are waiting for the cladding to be replaced. Compartmentation, fire stopping and fire doors is a significant issue. We must look at how we fund that and how we protect leaseholders from those rising service charge costs.
The other thing, which came up this morning as well, is higher insurance premiums. We are seeing insurers and lenders price risk not just on cladding, but on those internal defects and on structural defects. We do not just have a cladding crisis; we have a safety and construction quality crisis. That is what we are finding. These buildings are not lasting as long as they should. That is coming home to roost and is landing on leaseholders. They did not cause these problems in the first place, but it is being visited upon them, so one of the things we would like to see is greater protection for those residents.
Part of that solution will be looking at the qualifying and non-qualifying leaseholder protection provisions in the Building Safety Act. We appreciate that the Secretary of State introduced proposals to change some of the rules around that. We would like to see it go altogether. Why, as a leaseholder, should you have to pay for any defect that was not of your making? The process, the regime, is highly complicated. It is very, very difficult for a leaseholder to get involved in the process, and it creates an unstable resource pot to fund the remediation, because even if you have a cap, you only pay 10% of that cap, which means that you could be waiting 10 years until the pot is large enough to undertake those works.
There is a lot that can be done to protect leaseholders from further costs from all this. Good question—thank you.
The Chair
We have five minutes left and one Member to get in, so I will be grateful if you can keep your answer quite brief.
Kate Henderson: Yes, of course. I agree with what has been said. It is important to recognise just how distressing this is for leaseholders and shared owners, who feel trapped, cannot sell their home and are facing rising service charges and insurance bills. People really need a route forward. Accelerating remediation is absolutely the key to this. For us, having access to remediation funding has been a really important step forward, but we want to work with Government to unblock delays and ensure that wider safety defects do not leave residents facing continued uncertainty. There is more I could say there, but I will not. I will just say, on risk registers, that the Regulator of Social Housing will collect this data and will be engaging with all housing associations, but they have to stress-test their business models.
In terms of risk, the Bill itself is part of a tool for addressing the wider building safety crisis. Building safety will be a top risk for all our members, and they will all have mitigation strategies.
James Asser (West Ham and Beckton) (Lab)
Q
Jaclyn Mangaroo: Where there is an RMC or an RTM director or company, they should be given access to a fund to at least fund the litigation up front; they should not have to be scrabbling around in their pockets to try to fund litigation or go after developers. That would be really helpful. It is unfair that they have taken on a role as a volunteer, as you say, are trying to do the right thing and are having this duty visited upon them. I think they will need special consideration when it comes to the enforcement and sanctions in the Bill. They do not have a big pot of money to fund either the remediation work itself or the litigation costs or legal costs to pursue the responsible parties.
The Chair
We have come to the end of our allotted time. On behalf of the Committee, I thank you very much for your evidence.
Examination of Witnesses
Giles Grover and Sophie Bichener gave evidence.
The Chair
We will now hear oral evidence from End Our Cladding Scandal. We have until 3 pm for this panel. Could the witnesses briefly identify themselves?
Giles Grover: Hi, I am Giles Grover. I am the co-lead of End Our Cladding Scandal. I am a resident and leaseholder, and an RMC director and principal accountable person. I have been trapped and involved in this crisis since August 2017, and I still have a home that is not safe.
Sophie Bichener: I am Sophie Bichener, a campaigner for End Our Cladding Scandal and an impacted leaseholder. My building has been through one round of remediation. It was found to be unsafe the month after the Grenfell tragedy, and we are still working through trying to fully remediate it. Giles and I support leaseholders up and down the country who are like us: trapped in buildings that are unremediated and unsafe.
Gareth Bacon
Q
Giles Grover: Essentially, improving a failed system is not the same as introducing one that is capable of fixing this crisis once and for all. We have been dealing with this for nine years, and particularly for the last two years we have been pointing out all these issues—the gaps in protection, the non-cladding defects that keep being mentioned and what needs to be done to actually end this crisis—but we have not really seen any movement.
The Bill is still focused on external walls. It puts a lot of strain on volunteer directors and rules out developers from a legal duty to remediate, and it still focuses on cladding. It does not really deal with all the issues we have seen for the last seven, eight or nine years. As far as we are concerned, it just addresses a lot of the gaps and mistakes from the Building Safety Act—the ineffective protections and the fact that people are just getting pushed from pillar to post. This Bill will make things a heck of a lot more complicated for people, and it will not deliver the certainty we need to actually end this crisis.
Sophie Bichener: We consider a lot of people and a lot of different situations. When we saw the Bill, we were able to stress-test it through lots of different buildings and leaseholders. There is not likely to be a silver bullet that fixes every single scenario, but this Bill leaves too many gaps in our minds, as Giles said, with the non-cladding defects and non-qualifying leaseholders, and it places an unfair burden on RMC buildings and leaves leaseholders with sky-high interim costs. While we wait for these laws to play out and for buildings to be remediated, many leaseholders are still struggling with the interim costs and unaffordable service charges.
Gareth Bacon
Q
Giles Grover: I do not know how far back to go in terms of all the legislation that is already out there, but we can start with the Regulatory Reform (Fire Safety) Order 2005, and there is the Fire Safety Act 2021, which clarifies that, the Fire Safety (England) Regulations 2022, the Building Safety Act 2022 and the changes to it with leasehold reform—and now we have another Bill. We have all these different laws that have been put in place, a heck of a lot of different interpretations of risk and different funding schemes. That will need regulators all over the place—central regulators, local regulators, MHCLG regulators. You have the developer contract, the building safety regulator, the recovery strategy unit and local remediation acceleration plans as well.
This is just adding a layer of complexity. It is not actually giving us what we need. We have some people in some buildings at some heights being protected from the costs of some defects. Rather than fixing that and addressing those gaps, we are focusing on cladding and not thinking about making a building fully safe. We have a number of buildings where the cladding remediation cannot even start because of structural issues because of non-cladding defects. It is not actually doing anything for the people, residents, leaseholders and shared owners who are the victims of the crisis—the only innocent ones.
Successive Governments have caused this crisis, along with the construction industry and the bad practice it has enabled. We still find this game of everyone blaming everyone else and saying, “They should do the right thing.” Residents and leaseholders are trapped facing attritional battles, and RMCs and RTMs are trying to get answers, and you just go round in circles. Nothing in this Bill is really going to do much to help that, whether it is legislation or delivery. Delivery needs to be key and really focused on. This just feels like more legislation—push it out, and see how it has gone in five years. It will not help people at all.
Gareth Bacon
I am sorry, because that is fascinating and I could talk to you for a long time, but unfortunately other colleagues need to come in.
Florence Eshalomi
Q
Giles Grover: Going back to the basics and the framing of the question, cladding was the reason for the fire spreading, but we must also look at the insulation that was part of the cladding, the stay-put policy, the defective smoke vents and the defective fire doors. That is not being fixed in one go immediately. That is the first problem with this.
We have always called for compulsory purchase orders. Bob Blackman was on the Housing Committee in 2020 that called for compulsory purchase orders, if the pace was not quick enough. The Government response was, “Okay, we might consider those.” It is long overdue, and a lot of this is now putting it on a statutory footing, but how long will it take to take effect? If you look at the Bill’s impact assessment, it is about 180 buildings and 12,000 residents, so it is not real material change, the change we were promised by Labour. It is probably good, but it should have been there a while ago. We need a heck of a lot more.
Sarah Gibson
Q
Giles Grover: A lot of this is about control. On that point about building owners, yes, there is obviously going to be a conflict of interest. We have seen that. If you step back, we have had a shifting position from the consolidated advice note. It essentially says, “Remove and replace everything”, which again was probably going to be impossible. We need to get towards a proportionate approach, as they call it. Some people want proportionality, because they want to be able to move on with their lives. Other people are very worried about their permanently high insurance and so on carrying on.
A lot of this is about the operationalisation of the PAS and the tolerability. It is that control. It is about making sure that, if you have a risk assessment that comes to certain conclusions, even the Government’s own advice about understanding quality on the FRU says, “You need to make sure that conclusions are based on evidence”. There are so many assumptions: “Is that continuous? It’s probably not continuous behind the scenes. Let’s not worry about it.”
The Building Safety Act put leaseholders at the back of the queue, but a lot of what it did, unfortunately, opened the way for freeholders, developers and everyone to start gaming the system, blaming each other and saying, “Okay, it is a relevant defect; it is not a life-critical fire safety defect. It might be wear and tear actually”, which means we have to pay for it. There is too much buck-passing and shifting around, so yes, that is an issue, but again, it goes back to the fact that the way that the use of the PAS and the FRUs have been operationalised without the assurance, particularly the developers and contractors. That is a major concern of ours. I could go on, but I probably do not have time.
Sophie Bichener: Building owners over the past 10 years and before have shown that they are not willing to do the right thing and make sure that they appoint the right people to get to a decision on these homes. They have had plenty of time and opportunity to do that, and in many cases they have not. Many buildings are owned by pension funds, for example, which bought them as a sustainable investment, and they have a duty to their pensioners to keep costs low. I think they probably want to make the buildings good and sell them on at a profit if they can, so there is a real financial interest to narrow the scope of the works and get it done as quickly as possible.
Sarah Gibson
Q
Giles Grover: We have been saying this since before it was even introduced: it is all about what “tolerable” means. Again, I understand that we need something about proportionality, but so many different fire engineers will have so many different opinions and views. If something is deemed tolerable, whether it is a building that requires works or does not require works, there must be assurance and proper audits to ensure that the conclusion is based on tests and evidence.
If I am being honest, we have been through 20 or 30 years of just a lot of rubbish being built. Now everyone is saying, “Residents, leaseholders and shared owners are at the heart of this”, but they are still doing all they can to avoid liability, including financial liability. We are the ones trying to battle for answers, and we are sadly just going around and around in circles.
Sarah Coombes (West Bromwich) (Lab)
Q
One of the things that residents often call for is greater certainty about what is happening to their buildings and when, particularly what remediation work will be done and over what timeframe. What value is there in requiring those responsible to set out the steps they will take and, critically, the timetable for remediation? What are your thoughts on that element?
Giles Grover: Every single leaseholder and resident needs to understand what is going on in their building and how long it is going to take, but they also need an independent route to raise concerns. The system has been designed in such a way that, even with the developer contract and the cladding safety scheme—which is doing sterling work, but in a very constrained system—a lot of it still relies upon us having to go to the managing agent or a freeholder for answers.
I have one person in a building who went to the RMC, which said, “Go to the developer”; but the developer said, “Go to the building safety regulator”, and the building safety regulator said, “Go to MHCLG.” They had to fill out a correspondence web forms, but they got a stock answer that said, “Go back to your freeholder.” Yes, people need to be put at the centre of it.
There is the ability to include dates and timescales, but they actually need to be monitored, overseen and enforced, with consequences and penalties at the end of it. That way, it is not just a case of saying, “Oh, it’s the BSR and the regulatory capacities; okay, fair enough. Oh, they’ve had to do more FRUs.” The problem is that the system still allows too much to rely on those self-interested actors making those decisions. They will all tell us that safety is at the heart—but we are actually watching their actions, not their words, and they still are just not good enough.
Sophie Bichener: It is really hard to force people to communicate correctly with leaseholders. A lot of the time, freeholders are saying, “We are communicating”, but for the leaseholders, the communication says, “We’re trying really hard to fix this at pace.” Our members never have a clear picture of whether that means next week or in five years’ time. I have actually never really seen any comms about my building that give me any timeline or confidence that anything is happening.
I think it would be really hard to mandate communication that involves leaseholders, but it absolutely has to happen in order to give leaseholders any confidence that their homes will be safe and that, if they want to try to move on, move out or sell, they can get information on when the timelines for making their building safe will fall into place, and they can then feel a bit more confident not only about where they live being safe, but about, “How and when can I move on with my life?”.
Giles Grover: I should try to be positive again, because I am possibly being a bit too negative. Homes England has built stipulated communication points into its cladding safety scheme, so there are certain points of the process where you have to upload it before you get more funding. That is completely sensible; it actually looks at the quality of it and makes sure that it goes to the right people. Again, the developer contract is the one where it is about ticking a box that just says, “I am communicating 100%, so everything’s fine—see you later.” We need more consistency across the piece.
There are ways to do this, and that is what we have been trying to say for the last two and half years. We can actually simplify things, put people at the centre and save money. Sadly, we have not quite got to that point yet.
Peter Fortune
Q
Giles Grover: Not really, no. Honestly, we have tried so hard to help to show officials the way forward and what they can do to actually improve the situation. I am a residents’ management company director; because of the way that the developer contract has been handled at my building, I have tried to resign, but we cannot resign, because it will then go to the head leaseholder.
At RMCs all over the country, we have volunteers who really want to look after their homes. They are clever, intelligent people and they do the same things that freeholders do, which is to appoint agents, but they are still battling well-resourced developers and well-resourced freeholders and are trying to follow really labyrinthine policies.
There was one building in Sunderland that needed waking watch cost payments and had to put that in place in a few days. MHCLG said to them, “Fill out a building liability order, send that to your freeholder and give them 30 days to respond.” But they needed 20 grand or 30 grand that week—what is going to happen there?
A lot of it is the mentality. We have seen what has happened over the last 20 or 30 years under successive Governments, across industry. We have to put people at the centre of it and forward fund where it is needed, whether for interim measures or non-cladding defects, and then have the Government use their power to recover those funds. That would be the only sensible way forward. Until we get that in place, this crisis is not going to end.
Sophie Bichener: I would add that the Second Reading announcement on the non-qualifying improvement from three to six properties was definitely something that we had been speaking about quite a lot; we felt that had been heard, but it is not protecting all leaseholders, which is what we have said, relentlessly—no leaseholders should be paying for this. Why should one leaseholder be innocent and another have to pay for a building? Although it is welcome, I do not think it went far enough.
I feel that leaseholders are just getting more and more desperate. Giles and I have campaigned on this for 10 years. People are looking for answers and for a way out and, unfortunately, we were not able to go back from the Bill meetings we have had to say, “Yes, this is a little glimmer of hope for everybody.”
There are a few bits in the Bill that will go some way to helping some people; but, as we said at the start, it is not all people. Ten years on from Grenfell, I do not think we should still be wondering, “Will everybody be involved in the help that is coming?”. It should be that everybody has a chance to live in a safe home—if not now, they should know when that will be made safe. At present, there will still be too many people who do not have answers.
Giles Grover: The Government need to understand the number of people who hate their home right now—they are first-time buyers, and they just hate where they live. What is this system that we are living in?
Darren Paffey (Southampton Itchen) (Lab)
Q
Giles Grover: It will probably help but, again, it should have been in the Building Safety Act in the first place. Everything should have been effective from 14 February 2022. We were told at that point that freeholders would not be able to sell and pass on their liabilities, but they could; we saw that happen at a number of buildings. It might help to clarify a little bit, but it should have been there a long time ago—and what does that clarity mean? It will just mean that they carry on with this remediation that will leave us in the homes that we are trapped in, which are not fully safe and sellable, or they will force us to pay huge costs as well. Yes, we need to get to that point, but ultimately it is the gaps and issues that we need to address, so that when we get to that point we are not suffering the costs and effects.
Noah Law (St Austell and Newquay) (Lab)
Q
Sophie Bichener: Do you mean—
Noah Law
What is the economic case for not just narrowing the measures to external wall cladding?
Giles Grover: We have been trying to get that economic case made for quite a long time. We hope that MHCLG officials will make it to the all-powerful Treasury. It is about fixing the first rung of the housing ladder, which would be helpful for making sure that the housing market functions. It is giving people certainty to make sure that they can move on with their lives. It is the opportunity cost as well and the impact on growth. People cannot sell. We are trying to build 1.5 million homes, but what about the number of homes that cannot actually be sold right now, but can still be rented out? You have shared owners, and housing associations, which are meant to be charitable organisations, are refusing buyback from vulnerable shared owners whose homes are not fit for purpose. Quite simply, something that is a financial and moral imperative is not being done.
There are a number of organisations; in Greater Manchester, we have been doing this for so long that we get it, we know what we are doing and we can see all the gaps—I did not see what Kate Green said, but hopefully she raised all those. Andy and Charlie coming into the BSR was a breath of fresh air after three years of awful back and forth between MHCLG and the BSR. On Homes England, ultimately, we need the leadership we have seen there to be in place over all of this. We need proper leadership, and unfortunately that has to be non-civil servants.
Noah Law
Q
Giles Grover: There is so much self-interest throughout the system. That is how it has been built. As Grenfell United said, it
“isn’t broken, it was built this way.”
It allows too many parties to have control when they should have that control taken away from them, at least to a point where we have a consistent approach to a national standard. A lot of this is doable and we should be there by now.
The Chair
If there are no further questions, on behalf of the Committee, I thank the witnesses for their evidence.
Examination of witnesses
Sam Dumitriu and Ben Hopkinson gave evidence.
The Chair
Q
Sam Dumitriu: I am Sam Dumitriu, the head of policy at Britain Remade.
Ben Hopkinson: I am Ben Hopkinson, the head of housing and infrastructure at the Centre for Policy Studies.
Gareth Bacon
Q
Ben Hopkinson: There are a couple of things. There is inherently a capacity issue with the number of skilled fire inspectors. There is also a reasonable lens of professional debate within fire risk assessments. If you have a building owner and a developer, there might be reasonable professional debates over what the tolerable risks are, and that takes time. We also have to remember the sheer scope and scale of the cladding issue. I think there are 4,000 or 5,000 affected buildings across the country, and that obviously takes time. We have seen good progress being made. I suspect that, with the Bill, we will come quite close to ending it as a problem in the next few years.
Sam Dumitriu: One important thing to remember is that a lot of these important building safety projects will often themselves face bottlenecks in terms of getting approval and sign-off from the Building Safety Regulator. One of the issues that we have come across as an organisation is that many things are going through the Building Safety Regulator that probably should not be, which is leading to safety-critical issues being held up in a queue as a result.
I will give one example. We spoke to a gentleman living in Maida Vale who had a window that needed replacing. However, he was told—I think he had pretty good legal advice on this—that, in order to replace that window, he would have to get sign-off from the Building Safety Regulator. In theory, there are meant to be competent person schemes that people can go to, but, in practice, he went to three separate competent person schemes and none were willing to sign off on the works. He suspects that a lot of people are doing that kind of work behind the scenes and not going through the normal routes, but if you try to follow the rules, they seem to imply that that would be something you would need to submit. He can correct me if I am wrong, but Ben wrote about a separate case involving—I think it was a bathroom renovation, was it?
Ben Hopkinson: Yes, it was just a flat refurbishment, and that took at least nine months and several thousand pounds to go through the Building Safety Regulator. That raises questions: should restoring a flat’s kitchen, combined with installing new safety doors within the flat, really be an issue that takes nine months to get sign-off? In the first instance, should it even be something for the BSR to look at when there are a lot of other pressing commitments on its time?
Gareth Bacon
To take that example, why did it end up on the desk of the Building Safety Regulator? Was it because it insisted on that, or because people thought, “Oh crikey, I don’t want to sign this off; I’ll give it to the regulator”?
Sam Dumitriu: There are two potentially different issues between the two cases we have mentioned. In the case that I mentioned, the legislation was designed, in theory, so that competent person schemes could take these issues on, and would be happy to do that. Obviously, if you are a window fitter or whatever, you have an incentive to be quick on these things if you want more windows replaced. I think the issue was that a number of them do not believe the balance of legal risk to be right, so are concerned about liability or insurance.
Getting to the bottom of this issue has been a challenge, but we do know that the competent person schemes are not actually doing the job that they were intended to do. Work is therefore being passed to the Building Safety Regulator, which is in turn creating a backlog where projects that we really care about and are important to get done for safety reasons are being held up, stuck behind them in the queue.
Gareth Bacon
Q
Sam Dumitriu: When I have spoken to developers recently, they have suggested that, although the wait times for the Building Safety Regulator have dropped, part of that is because a bit of backlog is being cleared while not much is coming in. We know there has been a big slowdown in taller buildings, particularly in London, in part because other building safety regulations, such as the second staircase rule, have created new challenges around viability.
The question is: the Building Safety Regulator might be doing better now, but would it still be if it was getting the kind of throughput we would hope for, if the Government are to hit their 1.5 million homes target, for instance?
Gareth Bacon
Q
A question posed by one of my colleagues, who is not here this afternoon, is: in the event that they do not agree over who should be the lead regulator on something, who should hold the ring? Who should be the organisation that actually makes things happen? Who has the coercive power, if I can put it that way? Do you have a view as to who that should be, and do you think the Bill establishes that?
Ben Hopkinson: I am well aware that the Bill contains a duty to co-operate between the three different regulators you described; it is less clear to me whether it has the means to resolve differences between them. A duty to co-operate is one thing, but actually doing so and moving forward is another. I think we have seen that happen where different regulators overlap.
I know the Fingleton review on nuclear was very clear that there are concerns about whose obligation it is to decide, and that there is a culture of excessive caution in which you never want to be the one who actually makes the decision. On who the final regulator ought to be, I do not have a particularly strong view, whether it is local authorities or the BSR. I just think it should be specified whose decision it actually is. You would then build up some level of responsibility there, rather than having a slight fudge of, “Well, why don’t we all co-operate?”
Sam Dumitriu: I agree. In theory, the Building Safety Regulator should have access to the best expertise on this; however, it also has capacity challenges. One thing that I think has been underappreciated in the move from local authorities doing building control to the Building Safety Regulator is that local authorities, with housing targets and legal obligations, have an incentive to process things faster.
It is not just that it is their job; we know that many public bodies, even when they are given statutory targets to meet a certain deadline, do not necessarily decide things in that time. Local authorities at least have some sort of pressure from the top to say, for instance, “Actually, can you decide this a bit quicker? We don’t want to be in a position where we’ve missed our housing target by this much and therefore lose our ability to have a say over this type of development.”
Florence Eshalomi
Q
Ben Hopkinson: Clear responsibility, and then having the incentives actually to make the decision, would be quite good. We have to remember that the new buildings we are processing applications for are inherently significantly safer than the ones they are replacing. When it comes to fire risk, the two largest risks are the age of a building and overcrowding, both of which new buildings help alleviate.
Even in the past several years, buildings have become significantly safer, with sprinkler systems, fire evacuation lifts and no flammable materials in cladding. We really ought to figure out all we can do to make it easier for new buildings to be built. If that means assigning a regulator a specific task and trying to avoid the paralysis you get when multiple regulators have some share of the say, that would be an improvement.
Florence Eshalomi
Q
Ben Hopkinson: Yes. There is definitely limited capacity within regulators, so we have to figure out where that capacity gets us the biggest safety improvement. Given that existing buildings are less safe than new buildings, they should be the priority for the BSR or a similar regulator.
Sam Dumitriu: I agree with that; I am happy to accept completely what Ben says.
Sarah Gibson
Q
Sam Dumitriu: There is a trade-off between prescriptive and more flexible regulation. Sometimes you might like to have very clear rules, even if they err very far on the side of caution. I think that in the case of building safety, what we have had is a few pieces of Government guidance in the past that have probably been too tick box and restrictive, and that has caused problems. I think that the approach of PAS 9980 is the right one in focusing on proportionality. I also support the position in clause 44 on tolerable risk.
As mentioned, it is very important that we prioritise the types of remediation that happen, because there are very large constraints in terms of who can deliver and assess these projects. As a result, you need some way of making sure something is proportionate and remediation is not necessary in every case. It can be very costly and that work can also potentially push other projects back in the queue.
The area of policy that I have spent the most time focusing on in recent memory is the regulation of nuclear power, and Ben has also raised the Fingleton review. We have some very similar issues here because it is a question of “health and safety principles”, “reasonably practicable” and terms like that. You tend to see regulation that errs on the side of caution—which in safety is understandable—but there can be a tendency to do work that is not 100% necessary.
In the case of building safety, one consideration around external cladding is that you often might have a building owner who has financial interests in the cladding being remediated that are not solely safety related. There might be a different cladding material that requires less maintenance, is more resistant to weather or might make the building nicer. If there is a potential safety case, what you do not want is a situation where that cladding is changed even though we are pretty confident that, in the event of a fire, everyone can be safely evacuated—the building might experience some damage, but ultimately the people inside the building get out okay, which is what we really care about. My instinct is that we do not want to move to a system that requires more work being done over what is proportionate. It is really important when we look at all of these things.
I think that in the Building Safety Act, in many cases, we have erred on the side of regulation beyond what is proportionate, particularly around second staircase rules for buildings above 18 metres. I think that it could very easily be raised to 30 metres without providing any real risk to the public. We need to be very cautious about insisting on things beyond what is proportionate.
Ben Hopkinson: “Tolerable” seems to be the right standard in the Bill. There is a completely understandable drive for caution and safety within these complex issues. However, we have to be careful about proportionality. Already the Bill’s impact assessment shows that the costs of it are 10 times higher than the benefits. If you removed tolerability and mandated complete safety, how expensive would that be? Would we accidentally shut down new construction because we are burdening house builders with incredible asks on development capital?
There are a lot of competing issues here and tolerable seems to strike the right balance. Certainly, you want to make sure that the kind of buildings that are most unsafe are the ones that are remediated first, and removing a tolerable guideline risks buildings with only minor imperfections being treated exactly the same as the ones with the most dangerous cladding. I think that the Bill, as drafted, seems sensible and obviously we will look at the regulations as to how “tolerable” is actually defined.
Sean Woodcock
Q
Ben Hopkinson: The fact is that there has been good progress—although it is not perfect and it is not done yet. I think that the Bill is useful in contributing to the remaining cases that are outstanding. Certainly, having 40% or 45% of homes completely remediated already is, I think, good progress being made. I did not say that it was done.
Sean Woodcock
Q
Ben Hopkinson: These kinds of tasks necessarily take time. It would be brilliant if you could snap your fingers and remediate all of the buildings really quickly. Unfortunately, there are inherent bottlenecks in capacity and skills—on which good progress has been made on resolving. However, it is not resolved completely yet. I suspect that with this Bill and more time, more buildings will be remediated.
Bob Blackman (Harrow East) (Con)
Q
On centres, we heard this morning that Manchester, for example, has 129 buildings that have not been touched yet. That demonstrates that this is not just a London issue but a nationwide one. Equally, in London the building of high-rise properties has virtually come to a halt. In your opinion, is that because of the constraints that we are putting on them, to which this Bill will add, or is it because of the lack of skills? Alternatively, is it other costs or something else that we are not aware of? Will this Bill that we are considering end up causing further delays? I know that is a complicated question, but this is where we are coming from.
Sam Dumitriu: Ben, you published a paper on this yesterday.
Ben Hopkinson: Yes, I had a paper out two days ago about this.
It is important to remember that the macroeconomic conditions right now are not that favourable to housing. We have high build-cost inflation and high interest rates. That is a complete reversal of the situation 10 years ago. Yet, while we have a worsening macroeconomic environment, we are also seeing an increased burden on construction. Just in the past four or five years we have seen biodiversity net gain requirements, the residential property developer tax, the building safety levy, the second staircase requirement and the future home standard. All of those are burdens and all have a cost. Individually, they might be justified, but taken together we have seen a complete slowdown in new construction, especially in London, where over the past two years starts have been running at about 10% of the housing target.
These are the worst conditions for housebuilding in London since the second world war. We have to be honest about what new builds can be expected to pay for. It is not like there are infinite amounts that can be taken for Government priorities. In London specifically, my modelling found that 57% of the clearing price of a new build flat is downstream of Government policy. If we are building only 10% of the target, have a desperate housing shortage and new homes are inherently safer than older homes, we have to be realistic about the burdens that we are placing and work on easing them. I think that the Bill will not have that much of an impact on new builds—it is more about existing properties—so I am not really concerned about that.
Bob Blackman
Q
Sam Dumitriu: There are two real channels through which this could further increase costs. One would be about access to capital. If you are a developer and it turns out that you have to do some remediation works, that comes from your balance sheet, which means you do not have that money to invest in future projects. The extent to which that is a constraint is up in the air: if you are a developer that mainly focuses on London, you probably have capital to spare, and you are returning money to your shareholders anyway because of all the other problems that Ben has just described. The other concern would be about further cost inflation: increasing demand for those skilled workers will have knock-on impacts. However, I do not think they will be particularly large.
There is a broader point about the way we treat development as a cash cow. One of the problems is that politicians of all parties tend to shy away from raising taxes through the most visible means. There is the famous quote, I think from a French economist, that the art of taxation is plucking the goose with the least hissing. We tend to look for places where taxation can be done off the books—where we can fund spending in ways that are not particularly visible. We saw at the Budget—I welcome this—greater scrutiny by the Treasury of what goes into our energy bills, because we have kind of treated energy bills as a source of taxation.
The Chair
May I steer you back to what the Bill is about and to the questions, rather than a much more general view?
Sam Dumitriu: I am just saying that if we want to place cost burdens on developers, we need to be transparent about when there is a strong justification for doing so. At the moment, I think the justifications in this Bill make a lot more sense than those for many of the other burdens we place on developers.
James Asser
Q
One problem that we face on the back of the cladding scandal is that so many of the buildings we are dealing with are very new. As I was telling the Committee earlier, I have five tower blocks evacuated, with hundreds of people homeless. All those blocks are under 10 years old. Naturally, all the neighbouring developments are now questioning whether they are safe, because of their similar age, even though they are different buildings by different developers.
People have to trust that new buildings are safely built, but they are looking over their shoulder when new development comes along—you see a lot of that now. Although I understand your point, to sell and develop, you need trust for those new buildings; people need to be able to say, “I’m going to move into them.” Where do we factor that in? A big part of the cladding scandal is that it has stretched into so many new builds. Logically, you should be right, but there is that problem.
Ben Hopkinson: I am well aware of the somewhat justified concerns about quality in new builds, especially given that new builds are expected to fund all these different priorities, and corners are sometimes cut on certain issues. However, just think about what new builds now have that older buildings do not: no flammable materials on façades; they all go through the Building Safety Regulator; and they all have sprinklers, wet risers for water all the way up, firefighting lifts, smoke ventilation, three fire doors between a flat and an exit, and two means of escape. There have also been certain changes to the way that fire brigades handle large incidents. Taken together, I think you can feel pretty confident that new builds are safer than existing buildings.
Sarah Coombes
Q
Part of the Bill is about holding product manufacturers liable. A lot of Government money has gone to fixing this, and developers have also put in money, but we feel that product manufacturers so far have not played their part in the equation to fix this safety crisis. Do you have any comments on that part of the Bill in terms of getting all this stuff sorted and fixing some issues you have raised?
Sam Dumitriu: One concern when you are trying to work out who is really liable for a problem is that there are often a lot of cooks. Cladding materials that could be used safely in certain contexts have often been used in the wrong context, and in that case you would not want the liability to fall on the manufacturer.
One of the reasons why this has been a slow process is that some of the things we are dealing with are very complicated. Sometimes, you are dealing with people who have left the country and found ways of avoiding things, which is not acceptable, but you are also dealing with cases where there is genuine professional disagreement. In those cases, you do not want people responding to that by coming up with a done decision that is not necessarily correct.
Ben Hopkinson: I echo that. Clearly, manufacturers have not been contributing to the remediation, and there are definitely instances where they should have. I have one broad concern. If a cladding manufacturer has been mis-selling or was not following the rules and regulations in place at the time, they should absolutely pay, and it is good that the Bill is holding them to account. But if the manufacturer followed all the Government guidelines at the time, it is a little bit more complicated, because you do not want to do too much retrospective liability increasing. That will make people unsure: “If I follow all the Government guidelines and regulations right now, but something that neither the Government nor any of the manufacturers or developers foresees then happens, am I on the hook for that?”
There has to be some limit to these retrospective claims, because they destroy investor confidence and any attempts to build new buildings. If you can be held liable even if you followed all the rules in place at a time, why would you want to manufacture building products or build the homes we desperately need? If a cladding manufacturer mis-sold a product or was clearly engaged in corporate malfeasance, they should be punished, and money should be recouped from them. But if they were acting honestly and following the rules at the time, that is a much more difficult circumstance.
When we are changing the standards, this becomes a Government burden and should in turn be funded from general taxation, if we think as a society, “These are changes we should make to buildings.” We do not want retrospective attempts to take back money from people who were following the rules, because that just leads to people not wanting to invest in the first place.
Noah Law (St Austell and Newquay) (Lab)
Q
The Chair
You have less than a minute.
Ben Hopkinson: If they are running the risk of still having excessive liabilities even if they follow all the rules in place at a time, they might not choose to sell to or invest in the UK at all. We do have to be careful there. If they are engaged in malpractice or mis-selling, we should absolutely go after them.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence. We now move on to the next panel.
Examination of Witness
Alexander Cook gave evidence.
The Chair
Q
Alexander Cook: I am Alexander Cook, the managing director for special projects at Vistry. I oversee the group’s building safety remediation programme.
Gareth Bacon
Q
Alexander Cook: First, on behalf of Vistry, we have been at the forefront since the tragic events of Grenfell in 2017 to make sure we are proactively managing and liaising with building owners. We signed the pledge in 2022 and the developer remediation contract in 2023. To date, 51% of our developer buildings started are completed. It is worth noting that, if 27 buildings had not had delays from blockers this year, we would have been at 70%. I can give some real world examples from our experience of where that has happened.
Gareth Bacon
Q
Alexander Cook: The targets were always a stretch. There are a number of developers that have achieved it, as per the remediation acceleration group data that is issued in the quarterly reports. There are challenges across all of these projects. These are multi-stakeholder projects, so you have fire engineers, responsible entities, RTMs, managing agents, lawyers and project managers. When you try to go back and forth with each of these parties, throw in a scope dispute or an RTM dissolves, and you have to go to a freeholder.
Good progress has been made across the industry, and we are at 51% across the board. The majority of those are sitting in the top right quadrant. To date, good progress has been made, and Vistry has been working proactively with all its buildings to move this forward, but there is still a way to go. We are confident that next year we will be able to get a lot of these things moved forward with some of the support we have had from the MHCLG.
Gareth Bacon
Q
Alexander Cook: Vistry has a dedicated special projects team with funding allocated to remediation, so it is a priority for us that does not take away from the day job. We have, however, had challenges on the new-homes side with Building Safety Regulator applications, which have delayed delivering those homes for up to nine months. We obviously acknowledge that residents need safe buildings, and that is the priority, but some of those statutory approvals are where the blockers have been.
Gareth Bacon
Q
Alexander Cook: We have seen improvements. Of our applications? Not yet. We have had seven remediations applications submitted, all of which had time extensions and three of which are now approved, so we can see the backlog starting to come down. We have not had a fast application or a statutory timeframe application as yet, but we know industry colleagues that have, so we can see the improvements that have been made. Hopefully, going into next year, their recruitment will improve and their capacity and consistency of decisions will help all of us move forward.
Gareth Bacon
Q
Alexander Cook: We support the co-operation of all authorities and the fact that they have to issue their statement. From my reading of the Bill and the proposals, Homes England is going to be the auditing authority of the fire risk appraisal of external walls, which is dictating the scope. The way it works in the developer remediation contract is that MHCLG will be the auditor of the FRAEW. If there is a dispute between the parties, it is the deciding function. It would seem logical that Homes England performs that function if that is the proposal in the Bill.
Florence Eshalomi
Q
Alexander Cook: We welcome the changes on manufacturer redress and section 149. That will help make sure that all responsible parties are held to account and share the costs. It will not make any difference in terms of us accelerating our works and delivering what we need to. It just means that the funding at some point will be recovered and will help the future growth of homes, which Vistry is uniquely placed to do as part of the Government’s affordable housing programme.
Florence Eshalomi
Q
Alexander Cook: The clarity of the section 149 changes, especially for reliance and the evidence required to hold manufacturers to account.
Sarah Gibson
Q
Alexander Cook: We support the standardisation of the FRAEW methodology and the recent changes to that for the “tolerable” risk changing as well. We will always see subjectivity in fire engineers’ opinions. The auditing by Homes England will hopefully control some of that. There is always more that could be done in terms of charters and control of fire engineers. I think the more the industry has, that will help.
There are a lot of examples where we have had conflicting fire engineers’ opinions in both directions, increasing and decreasing scope, but they are independent of Vistry, so they are not controlled by us. They are appointed, but they follow their own charter’s ethics and morals and set the scope outside of any other interests.
Sarah Gibson
Q
Alexander Cook: Yes. I believe there are chartered fire engineers out there, and that makes sense for them.
Sarah Gibson
Q
Alexander Cook: I think fire engineers should be, as they are now. Improvements could always be made in terms of the fire assessors, and that could be done through the Bill, with guidance on clarifying those roles, especially for FRAEWs.
Darren Paffey
Q
Alexander Cook: There is definitely no “unwilling”. Everyone wants to remediate and they want to get to the same goal. People want to co-operate, but it is not necessarily about co-operating; it is about their response times. When so many parties are involved, maybe changes to the Bill could introduce a stricter turnaround time from responsible entities, and that might introduce acceleration. For us, one of the particular delays and blockers is where you have fire engineers, lawyers and responsible managing agents taking a little bit longer to get through all of those before they actually get a response. When you multiply that by the hundreds of buildings, it soon adds up. The changes to the Bill will help, but I think there is still a way to go.
Darren Paffey
Q
Alexander Cook: It could be. A lot of the things that we come up against with lawyers are in terms of how the remedial works contract is drafted. If you think of construction contracts, it would not be unreasonable for there to be definitions of delay. Rather than just having “a reasonable excuse”, which is a bit broad, you could have specifics, and then there could be timeframes related to some of those, which would help to accelerate buildings where the responsible entities are not performing.
Peter Fortune
Q
Alexander Cook: I cannot comment widely on the market—that is not my speciality area—but I can say that we have seen that safety is a factor in residents’ requirements, which is completely justified. We have also had experiences in London, as I said earlier, where delays to projects have then affected the supplier demand, in terms of where people are available—what flats, what height, and so on—across the UK. Ultimately, the market has slowed in London, particularly due to the regulator’s decisions that have not allowed us to get on site. With our dedicated team on the remediation side, it has not affected the delivery, as such; if we were able to proceed, we would have.
The Chair
If there are no further questions from Members, I thank you very much on behalf of the Committee for your evidence. We will take a short break before the next panel.
The Chair
We now hear oral evidence from Ian Abley and Steve Day. We have until 4.20 pm for this panel. Could I ask you to introduce yourselves briefly for the record?
Steve Day: Thanks very much for your time today. I am Steve Day. I am a building safety campaigner, and have a national campaign called buildingsafetyscheme.org. There are notes applicable to my evidence on the website.
Ian Abley: Good afternoon, Chair. I am Ian Abley. I used to be a site architect, and then, after Grenfell, I started working for the Fire Protection Association. I have spent most of my life trying to work out what “properly build” is in the first place.
Gareth Bacon
Q
Steve Day: I will take that from a leaseholder’s perspective. I am a leaseholder in a block of flats in south-east London, in Woolwich. We have highly combustible Euroclass E on our fire shafts, which is the second most combustible material being retained under PAS 9980; it is banned on new buildings. The Association of British Insurers has confirmed that there will be permanently high insurance if these combustibles are left on.
We have two fire reports. One was commissioned by the building owner and the builder, and it basically said, “Leave the panels in place,” without any fire performance test evidence to show the risk of leaving it on. Then the residents raised £4,300 to do a review of that fire risk assessment and it said, “These panels are dangerous. These must come off.” Both are valid under PAS. The building owner has clearly stated in writing that they will choose the cheaper of the two reports—the one that leaves the dangerous panels on the sole means of escape, using PAS as justification.
PAS has two flaws. First, it ignores building regulations at the time of construction. Building regulations are the baseline for the fire safety order. The fire brigade operates on the assumption that the building regulations at the time of construction are complied with. If you have a remediation standard that does not really look into these building regulation breaches, you can see why the insurers are giving us permanently high insurance—in addition, of course, our insurance doubled with RAAC. We have £6,000 a year service charges, and because of these retained panels on our sole means of escape under PAS, we have no chance of getting the charges back down, so no, the Bill is not helping us.
I do welcome the parts of the Bill that are useful. This is a very difficult subject for me, because I lost one of my best friends, Amanda Walker, who worked on my building safety scheme campaign with the Earl of Lytton and actually presented to Parliament. She was so taken down by the building safety crisis that she took her own life. To be clear, the coroner said it was misadventure, so I am not saying that I know more than the coroner, but I know how badly the building safety crisis affected her and ruined her life. I want to pay tribute to her and to the Government for recognising that part of her campaign as an enfranchised leaseholder was to be protected from cladding costs. They have announced that that is happening, so that is good. The new legal duty to remediate is good, as is the remediation backstop.
The key problem is that the Building Safety Act is identifying building safety risks, but the remediation standard to deal with the problem is watering it down to a tolerable standard that does not recognise as an issue building regulation breaches at the time of construction, which are unlawful breaches. Secondly, it does not require any fire performance test evidence to know the risk of leaving banned material—combustibles are banned on buildings above 11 metres. The insurance is high, as the ABI has confirmed in its evidence to other Committees. Leaseholders are in a terrible position. I will let Ian come in now, but thank you very much for the question.
Ian Abley: I want to stress that leaseholders entered a market where there was a constant, which they expected to have. They may never have read the building regulations, but the constant was always there and sensible. That was requirement B4(1), which said that a building should “adequately” resist the spread of fire up its external walls, which you would expect. My mum would expect that; my sons would expect that. That has been a constant since the Building Act 1984 split the approved document from the requirements.
A difficulty is being replicated in clause 44 of this Bill, however. “Adequate” was never defined except in the approved document, and now “tolerable” is being substituted for the word adequate, which is worse. The failure after Grenfell was not to interrogate what was “adequate”. Since then, we have found out—through great effort, a long period of time and a huge inquiry—that class zero was the problem, because the approved document contained approval for combustible cladding. It did not contain approval for combustible insulation, so it does not explain the defects over 30 years of construction found by people such as Andy Roe, as he described this morning.
The substitution of “tolerable” for “adequate” just leaves that issue free-floating. While the Building Safety Regulator is being given sharper teeth and may be able to bite better, it is being muzzled by the introduction of the concept of tolerability in place of the concept of adequacy.
I would argue that the only Secretary of State post-Grenfell to grapple with the adequacy problem was James Brokenshire. He did a very good job—actually, an extraordinarily clear-headed job—before he sadly died of cancer, which was to introduce modifications to regulation 7, which is about materials and workmanship. He took the problem out of the approved document and stuck it in regulation 7, so that builders could not ignore it.
The difficulty with the approved document arises from section 7 of the Building Act 1984, which means that the approved document is non-mandatory but nevertheless statutory guidance. So you can ignore it, provided you satisfy the requirements.
Let me illustrate the two things that the Bill needs to grapple with and should sort out. There are all of the defects that builders have created by ignoring the approved document and therefore not complying with the requirement, such as putting combustible insulation in high-rise buildings. Since 2006, that has been clearly prevented under paragraph 12.7 of fire safety regulations, and prior to that builders should not have been using combustible insulation on high-rise buildings. That is made difficult because the approved document had a fundamental flaw, which originated in class zero; the wording did not change from 1976 right up to the Grenfell Tower fire.
That test in 1987 was being given a water-cooled frame to test thermoplastics, in other words the kind of cladding that was on Grenfell Tower—aluminium composite material. The problem materialised at the Garnock Court fire in Irvine in 1999. At that time, Nick Raynsford did not remove class zero from the approved document or modify it, and nor did anybody else after that, despite the Government’s own unpublished research on the subject. Not only was class zero known to be wrong at the time, but the policy was sustained all the way through the code for sustainable homes—when insulation was being pushed, including in high-rise buildings—right the way up to the Grenfell Tower fire, when its consequences became obvious.
Class zero served as misguidance. What the Bill needs to do is to define what “adequate” is, and not sell the PAS to the people who would like to open this process up to a subjective view of tolerability.
Gareth Bacon
Q
Steve Day: No. We say that rather than incremental improvement of the protections, we would like all leaseholders to be protected from all costs related to building safety defects. What we say is that if building regulation breaches occurred at the time of its construction, you did not get what you paid for. The builders should not be allowed, under PAS, to get away with that; they should remediate to the standard of the current building regulations. That is not betterment; that is punishment for breaking the law at the time of construction.
Secondly, if the regulations have changed post-Grenfell and the defects are a result of regulations changing regarding things that were lawful at the time of construction, we say that the buildings affected should be remediated to as low a standard as is reasonably practicable, with fire performance test evidence for those combustibles in buildings above 11 metres.
To answer your specific point, what is happening in the Bill is that we have protections that provide no protection at all for buildings below 11 metres. The under 11 metre fund has closed, so there is no protection. There are partial protections for those that have more than six properties, and no protection at all for non-cladding costs. Then we have the risk of multiple remediation. Under PAS, the fire risk assessor is encouraged to deem some remediation tolerable without any evidence to know the risk of leaving it on. Then it says, “But, by the way, if you can, you should bring the risk down from tolerable to low,” so the PAS is encouraging you as a fire risk assessor to undermine “tolerable”. Then, it says in the 2026 version, which is the latest one in force, “When you do a refurbishment, you should potentially do a bit more, because that tolerable standard is a little bit suspect. Do a bit more.” The PAS itself does not trust its own definition of tolerability.
On the other side of that, if it is deemed tolerable, under a highly subjective assessment, these fire risk assessments are done every year and can recommend that the PAS assessment is redone potentially every five years, like EWS1, which is expensive in itself, but we may have to fork out another 40 or 50 grand in five years’ time. Then, with all the defects deemed tolerable—remember it is ignoring building regulation breaches at time of construction and leaving defects on without any evidence to know the risk—there is a good chance that tolerable risk might become medium or high under the PAS for a subsequent remediation.
This comes on to my real worry, which, as a leaseholder, is saleability and insurability. The ABI has condemned PAS. It was excluded from the steering group, which is questionable, because it has been saying for a long time that PAS is not good enough in its current form and needs to take into account the risk post Grenfell of the genie being let out the bottle and people not trusting building regulation compliance. Let me explain why. These are the June 2024 figures of life-endangering building defect rates in four of our top house builders—it was on BBC News, and it is published on the Government website. Barratt Redrow has a 35% life-endangering defect rate as per the developer contracts, Bellway 43%, Taylor Wimpey 77% and Crest Nicholson 69%. These defects have been all over the built environment for the last 30 years.
We should not be having a tolerable assessment that says, “Oh, by the way, if it’s deemed tolerable now, it may either be upgraded to high in the future, or you need to do a little bit more later on when you do a refurbishment and we need to push it down.” All of these are extra costs. If we combine the threat of rolling, unlimited remediations, the cost of all the protections that partially protect and or include no protection whatsoever for buildings under 11 metres, and the 11 metre cladding fund closure, you can see that the simplest solution is to protect all leaseholders. In doing so, we would actually be able to ensure that there would be certainty. I think the definition of permanently complete on a remediation should be that the insurance comes down so the extra building defect premium is removed and the property is sellable.
There is also the risk of the market concerns around this. There is potential for significant financial crisis-type litigation in respect of mortgage-backed securities. I came from an investment banking background and worked in IT in Lehman Brothers and JP Morgan. We look at risk. If you have a load of buildings in which all the defects have been ignored by a watered-down remediation standard and all the defects have been left on without any fire performance test evidence, do you not think that the insurers or the lenders might have picked that up? They are watching today. What I am saying is that if we want to contain this, we really need to recognise that those alarming defect rates I have just quoted to you, which are all available in the public domain, mean that there could be litigation in relation to the UK mortgage-backed securities that are sold to anyone who wants to buy them. Credit, insurance and other derivatives related to UK mortgage-backed securities could blow up.
My buildingsafetyscheme.org team and I have analysed the prospectuses of some of the leading bonds in mortgage-backed securities, and some do not even mention the credit risk of the non-cladding liability; some mention the cladding liability, but do not mention the non-cladding liability; and some do not mention any liability at all. These are all linked to UK residential mortgages, so they are not being honest in the documentation that they sell bonds on. There is a problem here.
Gareth Bacon
I am very conscious that I have taken up half the session.
Steve Day: Yes, I am sorry I went on a bit.
Florence Eshalomi
Q
Steve Day: Yes, I did not actually say it, but it was another element that I was happy about. The cladding manufacturers largely have escaped liability. I do not know if you followed our campaign with the Earl of Lytton in the House of Lords. We initially had a remediation scheme, which was trying to make developers pay for breaches at the time of construction with a wide construction industry levy, which did bring in construction manufacturers. That aligns with our approach, but there are some areas where you could extend the levy. The build-to-rent sector, for instance, has largely escaped it. They could contribute, given that they are building. Build to rent would be an area.
Before the Committee, we had a look at the latest status of developers and house builders. The top 10 have £24 billion in net assets, largely due to hoarding land banks and making significant returns to shareholders. We looked at just how much were share buybacks and dividends. For instance, Barratt Redrow has announced an intention to return £400 million to shareholders. With £24 billion plus £400 million, they can afford to pay a little more to cover all these leaseholders. On the buildingsafetyscheme website, you can see a breakdown of all the information that I am giving here, including the items of the mortgage-backed securities—we are going to publish those so that everyone can see the exposure due to bad building in this country.
I really encourage the Committee to look at whether freeholders may evade their responsibilities. There have been certain restructuring events that you might want to consider, which may mean that you have a good bank/bad bank scenario as we had at Lehman Brothers, where some assets may be transferred to the bad bank, and then there is no money to pay the remediation liabilities. I would recommend looking at anti-avoidance measures, potentially as an amendment to the Bill.
Sarah Gibson
Q
My worry is that we have seen poor construction and a race to the bottom over the last 30 years in the UK construction industry, and now the Government are hoping to build large amounts of new housing. How do we make sure that the housing that we are building now will not be the retrofits of 2050, and that we will not be in the same position then? What key things do we need to be doing to make sure that this does not happen again? Is it a question of building control? Is it a question of enforcement? What do we do to make sure that we do not end up here again?
Ian Abley: It is a question of regulation 7. You already have the tools to do it. They are adequate. Building regulation requirement B4(1) said that the external walls should be adequate to resist the spread of fire. That is still the case. The definition of “adequate” is the thing that is missing. But that forces you into a world of very straightforward thresholds of what is and what is not safe.
The problem with tolerability, to my mind, is not so much that it has not collapsed into a low. If the high and medium-risk buildings that already exist are declared as such to the Building Safety Regulator, they have to go through building remediation, which puts them back into the building regulation loop. The structure of PAS actually encourages anybody with a medium or high-risk building who cannot afford to remediate to shop around and find a fire engineer who will give them a “tolerable” report, and they magically get to avoid the building regulation process entirely.
Regardless of David Crowder’s intent for setting up a structure that looks vaguely like something that the Health and Safety Executive would do—with the carrot of risk going from unacceptable through tolerable and down to acceptable—what PAS does is encourage remediation avoidance. Any impecunious building owner is going to find it far cheaper just to employ a fire engineer who will give them a “tolerable”. I have seen that on an epic scale with a signatory to the developer remediation contract.
It is a beautifully connived process where everyone seems to be doing their job, but all that happens is the risk gets accepted by the building owner and then the process stops. The estates of buildings fall off the statistics, and it looks like the remediation problem is not as big as was first thought. If clause 44 mandates the tolerability wheeze into the legislation instead of defining “adequate”, you will see that right the way down to the 11-metre height.
Sarah Gibson
Q
Ian Abley: As Giles Grover said, you need a technical standard that is the legally minimum adequate of what is requirement B4(1). Why would you employ an incompetent fire engineer to give you a rubbish report? The builders who have the money will employ the most competent fire engineers who will use their skill, knowledge and experience, but their behaviour is another thing—they are just acting like mercenaries.
Steve Day: We are seeing that at Royal Artillery Quays. You have one fire engineer saying, “It is safe to leave these panels on,” without caring about justifying it with evidence, which he puts in his report, and another two fire engineers saying, “These are dangerous. The are banned on new buildings for a reason.” The building owner just chooses which report they want. We spent £4,300 of our own money on this—that is how much we cared about getting the right opinion—only to be met with a terse email saying, “Sorry, we don’t have to listen to you because of PAS.” That is the problem we have.
We have to do the two reforms on the buildingsafetyscheme.org website. Please look at those, because they are what the country needs, and they are what the banks, lenders and insurers need. You cannot put this back in the box; the insurers and lenders will not let the Government do it. You need to protect all leaseholders, you need to deal with building regulations breaches at the time of construction, and you need fire performance test evidence to know the risk of leaving things on and, otherwise, to take them off. Only leave them on if you have evidence—that is the rule. If they did that, we would have safer buildings. We are not remediating buildings to a permanent state, either, because of the rolling remediations. These are big issues that we need to resolve.
Ian Abley: Could I make a point about the insurers? Building regulations are not about property protection, and they never have been. PAS 9980 is not about property protection. The insurers have their own standard, which corrected the error of class 0, once they had worked out that it was an error and the inquiry had come to a conclusion, and it adopted James Brokenshire’s standard. The insurers cannot ignore health and life safety, which is all the building regulations have to achieve. The insurers only want Brokenshire’s law for life safety. They do not need anything else for property protection, because there is nothing else. Brokenshire’s law was reasonably practicable and low risk. PAS 9980:2026 itself recognises Brokenshire’s law as low risk. It does not actually name it; it just copies and pastes the text.
The PAS has avoided one of the other aspects of building requirement B4(1): it only deals with the combustibility of the walls and the compartmentation and cavity barriers around windows. It does not deal with the conflagration problem of radiant heat from one building to another, so it cannot claim to be building requirement B4(1). As far as I can see, PAS 9980 was written as a way to undermine James Brokenshire’s law when the calls for proportionality came in, because people were bleating that James Brokenshire’s law was too onerous. It is not. It is the reasonably practicable thing to do for life safety.
Steve Day: The problem—I will not say too much, I promise—
Sarah Gibson
I probably ought to bring it to a halt, because I am conscious of the time.
The Chair
There are no further questions from Members, so I thank you both for your evidence.
Sarah Gibson
If that is the case, Chair, I am quite happy for Steve to finish his statement. I was just conscious that if someone else was trying to come in, we were running out of time. Sorry, Steve. I did not mean to interrupt you.
Steve Day: Thank you. I really appreciate that.
Ian Abley: If not, I had a question for the Minister.
Steve Day: Do you mind if I just do mine?
The Chair
Okay. We will have to move on, because there are no further questions from Members. Thank you both very much for your evidence.
Examination of witness
Dame Judith Hackitt gave evidence.
The Chair
We will now hear oral evidence from Dame Judith Hackitt. We have until 4.40 pm for this panel. Dame Judith, could you briefly introduce yourself for the record?
Dame Judith Hackitt: Yes. I am Dame Judith Hackitt. I authored the independent review of building safety and fire regulations immediately after the Grenfell Tower fire, which led to the series of recommendations that formed the Building Safety Act. Since then, I have been chairing the industry safety steering group, working on driving culture change within the built environment sector.
Gareth Bacon
Q
Dame Judith Hackitt: This remediation Bill builds on a number of things that we have learned since the enactment of the Building Safety Act 2022. I am very supportive of many of the measures in it, although there are a few other things that would help enormously. I think it goes a long way towards addressing some of the shortcomings that we have learned of in the last few years, but there are some other things that we could do to make it move even faster.
Gareth Bacon
Q
Dame Judith Hackitt: With pleasure. The most important thing that we need to do within this remediation Bill is to give certainty to residents, in particular, who have been waiting a very long time to know whether their buildings need remediation and whether they are safe. Although some of the recommendations move us in the right direction, they do not take away the uncertainty and the room that exists for people to debate in court or through lawyers what needs to be done and by whom. Unless we address that and give residents certainty, we are missing an important opportunity in this Bill.
Gareth Bacon
Q
Dame Judith Hackitt: I certainly think it is open to too much interpretation. As I have shared with lots of people, we now have the ability to see what other people have done around the world, so we can see that there is perhaps a better way to do that. I have recently been reviewing the activities in Victoria in Australia, and they have completed all their remediation. Granted, it is on a different scale from ours—they had to remediate in the region of 1,000 buildings—but it is all complete. It has been completed to a standard that was set centrally, about which there is no dispute, and everyone has bought into it.
Gareth Bacon
Q
Dame Judith Hackitt: Yes, I do. Defining tolerable risk in statute and getting buy-in from residents and other stakeholders, including investors and insurers, is key to making progress. That would ensure not only that residents feel reassured that we are working to a consistent standard, but that we have a basis on which to rebuild confidence in the markets in our building stock.
Gareth Bacon
Q
Dame Judith Hackitt: Yes.
Gareth Bacon
Q
Dame Judith Hackitt: Yes. It would need to be a risk framework for all existing buildings that are in scope.
Florence Eshalomi
Q
Dame Judith Hackitt: I personally do not have a view one way or the other on whether Homes England is the right place to put that. What I do have a view on is that it needs to be an agreed risk framework that everyone has bought into. It needs to be a body that has the technical competence to oversee that and, in cases where there is a dispute, to overrule that and agree the standard to which the buildings are going to be remediated.
Florence Eshalomi
Q
Dame Judith Hackitt: I think it is impossible to characterise in one word. It is a very mixed picture still. I am going to focus on buildings in occupation, because we have moved a long way when it comes to new build. The new regulatory framework and the way in which that drives certain requirements has moved us a long way in terms of building the right culture for new build.
The big problem that we have to address, and which the Bill is clearly aimed at, is the lack of progress at the right pace when dealing with buildings that are already in occupation. There, I think the culture is very much one of diffuse and unclear responsibilities, even now. That is exacerbated by a lack of competence and a lack of knowledge among the people who are deemed responsible. The sad part is that because of all that, legal disputes take precedence over taking care of residents and reassuring them that their safety is of primary concern.
Florence Eshalomi
I will leave it there because I am mindful that other colleagues want to come in.
Sarah Gibson
Q
Dame Judith Hackitt: The part about fire engineers’ competence and how we assess that is being addressed separately from the Bill. We already know that there is more work we need to do there, and I am involved in that.
Let us be clear, however, that we are never going to get to a point where fire engineers always agree on a single solution, because the nature of the beast is such that different solutions may be arrived at that give an acceptable level of risk. That is one of the reasons why we have focused on making all the regulation outcome-based so that it gives people the opportunity to look at different routes and so on.
In the cases where disagreements occur, it is really important to have a body that can stop that becoming a long-term delaying process and a dispute through the courts, and focuses on agreeing what is going to be done, getting it done and letting other things play out while speeding up the process whereby residents get to a position where they can both feel safe in their building and, indeed, sell their properties and move on if that is what they want to do.
Olivia Blake (Sheffield Hallam) (Lab)
Q
Dame Judith Hackitt: I am not here to suggest for one minute that we should copy everything that has been done by Cladding Safety Victoria in Australia. However, when you look at the series of measures that it has put in place, there is a lot that we can learn. I have already talked about the agreed risk framework that everyone buys into. In addition, to speed up the process, it arrived at a mechanism whereby, when people cannot agree on what needs to be done, progress is not slowed.
Progress still takes place: the Government pay for it, but they take over the right from the building owners to recover costs from the parties who are held to be responsible. The Government are therefore acting in the intermediary space, not as the funder for work that others fail to do. It is a model that we could learn from, of that I am convinced.
Olivia Blake
Q
Dame Judith Hackitt: Yes, I do. As I said, I am very supportive of what the Bill is trying to do, but in a number of areas we are missing an opportunity to go a little further on writing specifics into primary legislation, rather than leaving it to guidance that is open to interpretation and without certainty.
Peter Fortune
Q
Dame Judith Hackitt: Yes.
Peter Fortune
Q
Dame Judith Hackitt: I cannot answer the second part of that question, I am afraid. We have to get to a landing on what is an acceptable level of risk. I know that will not be easy, but I think it has to be done centrally, rather than allowing these debates and different interpretations to continue. They are holding up progress, of that there is no doubt.
Peter Fortune
Q
Dame Judith Hackitt: Personally, I think the language is unfortunate. We need to be talking about life safety here. It must be an acceptable level of risk that does not put people’s lives at risk. Part of the debate is property loss versus life safety—what matters is life safety.
Peter Fortune
I do not understand what the reluctance is.
Dame Judith Hackitt: Neither do I.
Sean Woodcock
Q
Dame Judith Hackitt: Is the question whether I think people are less committed to—
Sean Woodcock
My feeling at the time of the Grenfell disaster was that the view from the top down—from industry, Government, local authorities and so on—was that everything would be done, whatever the trade-offs, to ensure that this was sorted, the remediation happened and so on. As we get further away, there is a danger that the consensus and impetus have broken down slightly. Do you have any worries on that? Am I wrong to worry about that? Is it driving some of the issues?
Dame Judith Hackitt: You are absolutely right to worry about it, because we can look at many other industry sectors and see that, with the passage of time, the sense of urgency that follows a disaster tends to decay as you get further and further away from it. What we must never forget in this case is that we have no guarantee that this will not happen again.
The area where we are most at risk is with existing buildings because, as I have said, we have moved a long way. We have a new regime in place for new build, which I am confident sets new standards, and we have new rigour in place to ensure that buildings are built properly. We always knew that going back and addressing existing stock would be the challenge, but it would be unforgivable not to do that. Those are the buildings that affect existing residents the most, and they have been living with this for nearly 10 years.
Noah Law
Q
Dame Judith Hackitt: One of your colleagues spoke a moment ago about the need for trade-offs. I would not advocate prescription and fixed, inflexible definitions in relation to new build, where there is the opportunity to be creative and to innovate in the way we build, and where new things will come along that will enable us to do things in different ways. In the case of existing stock, where speed and the reassurance of residents are of paramount importance, having a very clear, non-disputable standard is really important.
The Chair
If there are no further questions from Members, I thank you for your evidence, Dame Judith. Thank you very much.
Examination of witness
Dr David Crowder gave evidence.
The Chair
Q
Dr David Crowder: Good afternoon. My name is David Crowder, and I am a partner at DCCH Experts. Probably more relevant to this session is that I am the lead technical author for PAS 9980. I will not list my various other credentials as they are in my written evidence.
Gareth Bacon
Q
Dr David Crowder: I will start by saying that my written evidence was not about the Bill; I am here for questions regarding PAS, because I am conscious that there has been a lot of debate about that. My personal view on remediation is that it has taken too long. I investigated Grenfell myself—I spent a year inside the tower, from when it was still burning. I do not want to see that again.
I have worked as fast as I can, and I know many other fire engineers who are, frankly, tired after 10 years of working flat-out on this. There are not enough of us. That is a sad side effect of fire engineering not being a very popular subject pre-Grenfell, and going from being a bit of a sideshow in the industry to suddenly being the thing that everyone demands for a building project. There is now movement to try to increase the number of courses. Given that my qualifications and training took well in excess of 10 years to achieve, I am not particularly optimistic about how much faster things can go unless there is a fundamentally different approach, but I support remediation taking place as quickly as possible.
Gareth Bacon
Q
Dr David Crowder: A different approach. Fire engineers are currently capacity-limited. As I say, everyone I speak to in fire engineering is doing everything they can.
Gareth Bacon
Q
Dr David Crowder: No. That is the short answer. Most of my work is in disputes, legal cases and prosecutions. I am well aware that there is a significant degree of panic about meeting that deadline among the good building owners and developers, because they take it seriously. The practicalities involved make it extremely challenging for those who are willing. For those who are not, I do not hold much, if any, hope of them meeting that deadline.
Gareth Bacon
Q
The Bill concentrates on cladding. To a degree, that is understandable, because we all saw the pictures of Grenfell and the fire going up the outside. One of the reasons why the stay put policy that the fire brigade deployed in the early stages of the fire failed utterly is the breaches inside the building, as opposed to just the cladding going up the outside. Do you think the Bill could have been expanded to cover fire remediation internally as well as externally?
Dr David Crowder: I do. However, I would suggest there is an equally acute problem with internal fire protection as there is with cladding. There is a difference between what was expected of buildings built 10, 20 or 50 years ago versus those built today. I am aware of the criticism, but the PAS has tried to consider buildings of all ages by taking a technology-agnostic view of risk to try to work out what is safe enough—I am sure we will come back to that. We use the term “tolerable”, and again I am sure we will come back to that.
I have been privy to a lot of this, and the difficulty with internal compartmentation is that if you ask a compartmentation specialist or passive fire protection contractor to look at a building, they will insist on current best practice installations because that is part of their professional requirements. There is not currently an equivalent mechanism by which you can look at fire stopping or a fire door that is 20 or 30 years old and reach a conclusion as to whether it still provides adequate performance or needs to be replaced for good reason, as opposed to simply being an old door.
Gareth Bacon
Q
Dr David Crowder: Well, no. Having written it, I am supportive of the standard and what it is trying to achieve. Again, I refer the Committee to my written evidence. The standard is just that, a standard. It is a document. It is not the same as its users. It does not have the power to police its users. As Dame Judith mentioned, a lot of work is going on about the regulation and professionalisation of the fire engineering industry. I can only support that. I am a chartered engineer registered with the Engineering Council, and I have to comply with the ethical behavioural principles of the Engineering Council as part of my work. Those include integrity, honesty and pushing back on anyone who might try to persuade me to behave in a certain way.
Chartered engineers are not the only game in town. There are also incorporated engineers and engineering technicians. They all do different things. Chartered engineers tend to be in leadership, big-picture positions. Incorporated engineers have a greater tendency to be doers—they are more middle-management level. Engineering technicians tend to do very intricate, detailed work. They do the sort of thing that a chartered engineer is not good at. Fire alarm technicians are a good example.
The key point is that they all have to sign up to the Engineering Council’s statement of ethical principles. Having that kind of registration across the board would be extremely helpful in providing confidence in how users are actually applying the PAS. We did a lot of work in how we rewrote the document we published in September to try to address the shortcomings. For example, we have been as strict as we can. Bear in mind, it is a voluntary standard. As it stands, it does not have any power, but we require that any deviation from what is in the standard is recorded in the report so that there is transparency.
Equally, if there is a difference of opinion where a customer, or whoever, commissions multiple FRAEWs—or one simply follows another chronologically—we now require the appraiser to say why they have a difference of opinion with the previous FRAEW. It is no longer a black-box environment where customers, or indeed leaseholders, are simply receiving FRAEWs, seeing that there is a different outcome and not understanding why. We have put a lot of work into trying to improve the transparency of the process.
Equally, we are bordering on hand-holding the appraisers through the process. We have defined the decision-making process that they have to follow at every stage to work through how they deal with uncertainty, to make sure that they are making good, conservative, worst-case assumptions where they do not know things, and only improving upon that once they have evidence that allows them to do so.
Gareth Bacon
Q
Dr David Crowder: “Tolerable” is a word. “Adequate”, “reasonable”, “tolerable” or “good enough” could be used.
Gareth Bacon
Q
Dr David Crowder: I worry about the consequences of doing so. “Tolerable” and, equally, all the other words serve the same purpose, particularly when you think about health and safety law. The intention of the PAS was to support the fire safety order to enable risk assessment. I am sure we will come back to that in a second. “Tolerable” or “adequacy” obviously take into account the level of risk, which we can look at as an absolute level. Is risk high, medium or low?
The question of tolerability, which is similar to proportionality, or “as low as reasonably practicable” as appears in the Health and Safety at Work Act, relates to the ability to pay and what is within the duty holder’s gift to actually do in order to address risk. If Parliament decides to enshrine “tolerable” in law, that would have to be accompanied by some level of resource that puts the duty holders on the same playing field in terms of what they do to meet that bar.
That is because, for example, what a housing association with tens of thousands of properties can afford to do is very different from an individual family who have decided to make their investment pot a block of flats. I have dealt with customers who put all their life savings into building a block of flats, and it ended very tragically. Their ability to pay is not the same as a big housing association with tens of thousands of properties. That is the risk. Again, the PAS is simply trying to address a problem. It is a scientific, engineering-led process, but if we choose to set the bar at a particular level in terms of safety, we have to make sure that people can meet it.
Florence Eshalomi
Q
Dr David Crowder: In terms of the original commission that was given to the British Standards Institution by what was then the Department for Levelling Up, Housing and Communities, it was written purely as a method for appraising the risk of external wall construction. This is responding to the Fire Safety Act amendment of the Regulatory Reform (Fire Safety) Order 2005. A legal duty was created in the wake of Grenfell Tower to ensure that owners of existing buildings had a means by which they could carry out a risk assessment. Under article 50 of the fire safety order, there is a duty for the Secretary of State to provide guidance to enable risk assessments to be carried out.
Once the provision for risk assessing external walls was added, there needed to be guidance to fulfil that role. The PAS is not formally identified in that sense, but my personal view is that that is what it is for. It is not a design document, and it is not there to circumvent building regulations. It supports an entirely different branch of legislation. As has been mentioned by previous witnesses, if an FRAEW recommends building work, that work becomes subject to the building regulations, but that is distinct from what the PAS is doing. The PAS simply looks at the building in its current state and enables a decision to be made on whether or not something should need to be done. It is not an evaluation tool either—I know that RICS refer to it as part of their EWS1s. It is simply doing the job of appraising risk and the life safety impact of buildings.
Florence Eshalomi
Q
Dr David Crowder: I do, yes. I take the view, which I know is somewhat different from that of some witnesses you heard from previously, that the ban reflects Government, and indeed the country at large, losing faith in the construction industry, and concluding that the industry cannot be trusted to work with combustible materials. In the building regulations, regulation 7 sits apart from the functional requirements under schedule 1. Those are all couched in terms of safety, whereas regulation 7 simply says, “Do not use combustible materials.” That is fine, and I do not have an issue with it, given the way that trust has fallen away, but I am confident that it is perfectly possible to build a safe external wall façade, despite it containing combustible materials.
I am equally confident, as I have seen examples, that just because an external façade is non-combustible, it does not make it safe. I have seen a nine-storey-high terracotta rainscreen with no cavity barriers and weak enclosure around the windows, which means that smoke is potentially ducted across the nine storeys of that building. It is non-combustible—great, but it is still a life risk to the residents in that building.
Florence Eshalomi
Q
Dr David Crowder: Again, I have not focused my interest on the Bill; I am concerned with the PAS. Currently, the Bill simply refers to the PAS, and the PAS gives a definition of whether a building is safe in terms of the risk of external fire. I know it is not for me to ask the questions, but I suppose there is a question to put back to those writing the Bill: are you seeking simply to limit the ability of any square metre of external wall to burn—to reduce its propensity to burn at all—or are you looking in the round at whether the people in the building are safe, in spite of the possibility of some fire spread?
This is where tolerability comes in. A number of public consultations have occurred around what people are content with. Let us start with buildings that comply with the building regulations as written right now, and buildings that have solid masonry wall construction. They are low risk, because the walls simply do not burn, so there is no hazard that anyone needs to concern themselves with in terms of the external walls. That does not mean that external fire spread will never occur, because you can still get window-to-window fire spread, but the walls will not make the problem worse.
If you have combustible material, the follow-on question is: how far does it go? How far up the wall could the fire spread if that combustible material was involved? Does it cross compartment lines, and is there therefore a likelihood of the fire going somewhere else? The final question then concerns the internal arrangements: if that spread should occur and covers a reasonable distance across the building, are there facilities for people to get out of the building?
We have taken a very scientific approach to it, and I am not sure it is conducive to legislation, to return to your question. There is probably a shorter, punchier way of doing it, but my fear, and the driver behind the way the PAS is written, is about giving people options and not assuming that everyone has the resources to do absolutely everything to mitigate risk.
Sarah Gibson
Q
You mentioned that, for fire engineers, control and signing up to ethical standards and so on is in the process of being done. One would therefore expect that fire assessors, who are, of course, more likely to be involved in the remediation we are talking about, would also be included in that regulation. My question is: do you think that the level of control over those applying the assessment and the ethical codes that go with it are sufficient to limit the issues we have seen around discrepancies? Is it more a question of enforcement than legislation for what is causing the discrepancies?
Dr David Crowder: I think that enforcement would help. The answer to your question lies not necessarily within “tolerable” but in the freedom that users have been given to simply reach different conclusions and walk away. That is what we have tried to clamp down on with the redraft.
By way of example, I review FRAEWs on occasion, and I am quite obviously well versed in what PAS 9980 says. We have risk tables in the PAS that give different risk ratings to different features of buildings, and I have seen instances where appraisers will quietly slip in that a feature of a building has a different risk rating from what the PAS says it should have, and that then flows through and changes their outcome. The new PAS—the 2026 edition—says that, for any deviation, including that, you have to declare in your report that you have done something different. With multiple appraisals, people now have to explain why they have reached a different conclusion.
I have seen instances in the past where appraisers are restricted by their professional indemnity insurance and all they can do is condemn combustible cladding. They will not be given professional indemnity insurance unless they condemn everything combustible and give the okay only on stuff that is non-combustible. I argue that it is an ethical problem that they are allowing their work to be influenced by a pressure other than the science and engineering—that needs to be declared. If that is the reason their report says something different from the previous one, they need to say that that is the case.
Equally, it might just be because they do not have the risk appetite. If it is simply risk appetite, they need to say that, so that people can take them to task and we can start getting some clarity. We have done everything we can to try to narrow the field, and I would like to see more appraisers being held to account when they are providing answers that people do not understand.
The additional thing is peer review. We have also prescribed in the 2026 edition that when an appraiser is reviewing somebody else’s FRAEW, they should not simply start again at the beginning, run through the whole process and then reach their own answer, which is likely to be different because different engineers have different views. We now positively say that they are instead expected to go through the other engineer’s work—
The Chair
Order. That brings us to the end of the time allotted for this session. On behalf of the Committee I thank you for your evidence.
Examination of witness
Florence Eshalomi MP gave evidence.
The Chair
We will now hear oral evidence from the Minister. We have until 5.20 pm. Could the witness please briefly introduce herself for the record?
Florence Eshalomi: Good afternoon. I am the Member of Parliament for Vauxhall and Camberwell Green. I am also the Minister of State with responsibility for homelessness, democracy, communities and faith. That includes building remediation.
Gareth Bacon
Q
Florence Eshalomi: One of the things that the Government have been looking at is the fact that PAS 9980—as the Committee may be aware—was designed and developed by the British Standards Institution and went through a rigorous consensus-based public consultation process. On balance, we feel that it provides a robust and proportionate, industry-recognised methodology for assessing the risk. I think it is fair to say that residents will see fire as not discriminating. However, it is a case of making sure that we are looking at the issues around a building’s external walls and the action needed to keep residents safe. That is at the forefront of everything that we are trying to do in this potentially quite long and technical-seeming piece of legislation.
The other thing is around looking at how PAS 9980 will be put into practice and into law to make sure that it is consistent with external wall requirements. There will be secondary legislation at a later stage to require that a fire risk appraisal of external walls be carried out. That will help to give clarity about how external walls should be assessed, and we hope that this will also give regulators a firm benchmark in terms of targeting or challenging any poor assessments.
Gareth Bacon
Q
Florence Eshalomi: One of the key things that we are trying to do is look at some of the other areas contained within the inquiry. We feel that this approach will be better in terms of making sure we are legislating on the key areas around the principle that the developer pays in terms of the levy and the additional measures for non-qualifying leaseholders. All those issues are coming to the forefront first.
Gareth Bacon
Q
Florence Eshalomi: This is an area that we are still keen to look at and are developing with leaseholders and insurance companies. You may be aware that the Financial Conduct Authority is going through a review at the moment on the issue of how remediation and reductions in risk are reflected in the pricing structure. My understanding is that the Treasury Committee is also looking at this. What we are seeking to do with this Bill is strengthen the confidence in the assessments’ decisions through the independent auditing of the FRAEWs, including powers to audit the assessments that conclude that no remediation is required.
With regard to the question of risk maybe being posed and assessed as tolerable, I will go back to some of the comments the Committee heard earlier. Essentially, we need to make sure that residents are safe, but a tolerable risk does not mean that a building is unsafe. Today’s evidence sessions have also highlighted some of the other areas in which leaseholders are rightly pushing us to go further in terms of some of the internal wall defects, which in some cases are causing some of the issues around insurance. I am hoping that during the passage of this Bill, we can look at some additional measures.
However, the building insurance premiums can sometimes reflect a range of areas, not just external wall fire risk: it could be claims for things such as flooding, water or other damage. I think that we need to look at the whole issue of building insurance as a package in the round, not just the external wall risk and the issue of what is and is not tolerable.
Gareth Bacon
Q
Florence Eshalomi: What we need to distinguish is the fact that PAS 9980 as it stands does not remove or replace the need for buildings to comply with building regulations; maybe we need to make that a lot clearer. This is around highlighting that any remediation work that needs to be carried out must also meet building regulations that may apply to that. Again, there is the technical aspect of the Bill, and what we are seeking to do with this legislation is make clearer who owns that risk. PAS 9980 and building regulations serve two entirely different purposes. We are very clear on what building regulations are doing in terms of the regulations for new buildings, whereas PAS 9980 considers the risk and tolerable risk of buildings as they stand now, looking at the critical issue around safety when it comes to life and to external walls.
On the question of whether we should revisit the whole issue of “tolerable”, that goes back to my response to your initial question. Across the sector and industry, we feel that PAS 9980, set by the British Standards Institution, strikes the right balance in trying to find a way forward through something that has been at an impasse for many years—successive Governments have tried to resolve this.
It is about how we get the best approach in terms of moving forward in a really complicated but important area that is affecting so many people up and down the country. They want a resolution and to know that if something goes wrong in their building, which a number of them have invested a lot of money in—sometimes their life savings—they know who they can go to to remediate that. A lot of them bought in good faith and they should not have to turn themselves into building experts just to know that the building they are living in is safe.
Sarah Gibson
Q
We have not had accountable assessors, so we can have an assessment that decides that a building is tolerable but actually that tolerable level, as decided by an assessor, turns out not to meet the standard of building regulations, even at the time of construction. Why are we surprised that people cannot then sell their houses, get mortgages, or get insurance? We should not be. We must recognise that if we are going to put in a new piece of legislation, which will add to the amount of legislation that a leaseholder must look at, it has to be watertight—forgive the expression. The point has been raised today and it still concerns me: there is a lack of clarity about where—with which agency—the buck actually stops. A leaseholder needs to know where to go at the end. Who is really, finally responsible and accountable?
We also must make sure that the assessors who make the decisions can be held accountable, and that they have an ethical code in place to make sure that they cannot be manipulated by their employer. We should make sure that we make those points really clear during scrutiny of the Bill. That will make a difference to our leaseholders, who have waited so long for this legislation. I want to make sure that the Committee irons out those points over the next few weeks.
Florence Eshalomi: I totally hear that and accept it. To be honest, no one Bill can fix this mess. We are trying to make sure that leaseholders who have invested in good faith are not burdened with all the costs, hence the Bill introduces the charge for construction product manufacturers, which is important. To date, construction product manufacturers have not played their part in fixing the mess they created.
We are trying to strike the right balance. We have heard from the National Housing Federation and the LGA. If colleagues from the LGA, and other councillors, were here they would highlight the difficulties that they have in bringing forward new development. I see that acutely in my constituency, where—as the Committee knows—the Government introduced measures to change housing targets, which is having an impact.
A more prescriptive, blanket approach could lead to more extensive remediation, but will it make residents safe? Will it achieve the ultimate goal? How can we have the least disruption to residents? Some residents may have to leave their homes, and some will have additional costs—we must make sure those costs are recouped—and ultimately slower remediation. How do we make sure that we give more power and support to BSR to get the buildings that have been identified remediated?
We must be honest: although the issues in New Zealand are not similar to those here, there are areas where we can definitely learn. I will task officials to look a bit closer at that, and see if there is anything in the Bill that we can tweak during its passage. It is about being open, honest and receptive to those challenges, about making sure that we are being challenged and ultimately about trying to get something right as we progress the Bill.
Andrew Cooper
Q
Florence Eshalomi
Thank you for that; it is really important. I am not sure if all colleagues are aware of the new highlights from Minister Pennycook today in terms of charges being passed on to leaseholders. It is allowing leaseholders to interrogate and ask their building freeholders for more information around the insurance costs. It is allowing leaseholders to challenge some of those costs as they come forward. These are all measures we hope will help in some cases where leaseholders have been asked to pay more but in essence get a much poorer service.
Separate to that is the draft Commonhold and Leasehold Reform Bill, which I know you have campaigned on for a very long time, Mr Cooper. We are hoping it will come back to the House before the end of the year. The Prime Minister committed to that in PMQs yesterday. That will help leaseholders in terms of challenging unfair ground rents, where we are seeing many leaseholders pay in excess of £1,000 for nothing.
There are big issues around the service charge. Some leaseholders actually want to get rid of their managing agents, so the right to manage is another area being covered. We are looking at a whole range of packages to help leaseholders who have ultimately made that commitment to a home, because for many of them that dream has turned into a nightmare.
I hope, as the Bill progresses, the packages in it, especially some of the packages for non-qualifying leaseholders and packages for buildings under 11 metres, will help alleviate some of the cost of living pressures that many leaseholders up and down the country are facing.
Andrew Cooper
Thank you, Minister. I was going to ask you about the draft Commonhold and Leasehold Reform Bill, but you got ahead of me.
Bob Blackman
Q
Florence Eshalomi: I am happy to take that away, look at it and come back to the Member.
Bob Blackman
Q
Florence Eshalomi: It is important that we try and get a Bill that can get support across the House. That might mean sitting down with Opposition and Government Members to make sure we are bringing forward amendments that would help strengthen the Bill. We feel that the range of packages, as drafted, are strong enough, but that is something I would be willing to work with Members on.
Olivia Blake
Q
Florence Eshalomi: I am hoping so. One of the areas that Lord Andy Roe and Charlie Pugsley outlined was capacity across industry. A key issue that has been raised is around the quality and competency of fire assessors; making sure they are in place to carry out the assessments, first and foremost, is quite important. We are working to ensure we are helping and speeding that up.
I know that local government colleagues will raise the extra burdens cost, and we are looking at that. Hopefully, all these different measures should help, ultimately, to speed up that remediation. We have a target; we have not met that target yet, but we are on course and working at pace to make sure we hit it in time.
The Chair
I do not think we have time for a further question. I thank the Minister for giving evidence. We have now come to the end of the session. The Committee will meet again at 9.25 am on Tuesday 17 November to begin line-by-line consideration.
Ordered, That further consideration be now adjourned.—(Sarah Coombes.)