Building (Public Bodies and Higher-Risk Building Work) (England) Regulations 2023

Baroness Scott of Bybrook Excerpts

Tuesday 28th March 2023 Grand Committee

Moved by

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Building (Public Bodies and Higher-Risk Building Work) (England) Regulations 2023.

[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, under the Building Safety Act 2022 and subsequent secondary legislation such as this, the Government are introducing a raft of measures to improve building safety. We are introducing the biggest reforms to the design and construction sectors in a generation, including the introduction of duty-holder and competence requirements for all building work. They also include introducing a more stringent regulatory regime during design and construction for higher-risk building work, to be overseen exclusively by the Building Safety Regulator.

The “higher-risk” definition during design and construction applies to work on buildings with at least two residential units, care homes and hospitals that meet the 18-metre or seven-storey height threshold. Under the current system, there is an exemption available to public bodies where they can obtain partial or full exemption from the building control procedural requirements if this is approved by government. These regulations will ensure that, in future, any exemption allowing public bodies to carry out building control on their own buildings will be limited to non-higher-risk building work only.

The exemption will not apply to higher-risk building work moving forward, as the Building Safety Regulator will be the sole building control authority for all higher-risk buildings, including those owned by public bodies. Although these regulations make only a small change, they are an important part of our ongoing reforms to ensure the safety and standards of all buildings and to ensure a consistent approach by the Building Safety Regulator to all higher-risk building work.

These regulations make three sets of changes. However, I will start by providing some context and background. After the tragedy of the Grenfell Tower fire in 2017 and the deaths of 72 people, the Government committed to fundamental reforms by implementing the recommendations of Dame Judith Hackitt’s independent review and introducing a new building safety regime. The review made significant recommendations, including the need to reform building control as the system which checks that building work complies with building regulation requirements such as fire safety.

Building control is carried out freely across the public and private sectors at present. Anyone commissioning building work, whatever its nature, can choose to use either the local authority—that is, the local council—in the public sector or a private sector approved inspector to carry out the building control. There is then a further option, open specifically to public sector bodies. If approved by Ministers, these bodies can obtain an exemption from some or all of the procedural requirements of building control and then carry out building control on their own buildings. This exemption has very rarely been used and almost all building control is carried out by either local authorities or approved inspectors, as opposed to public bodies self-regulating. In all cases, and irrespective of any exemption, the functional requirements of the building regulations, such as fire safety, continue to apply.

One of Dame Judith Hackitt’s main findings on building control was the lack of a level playing field between public and private sector building control. She recommended that the Building Safety Regulator should carry out building control for higher-risk building work and therefore end the choice of building control for these buildings. The Building Safety Act 2022 contained many reforms related to building control, including implementing a recommendation to end duty-holder choice of building control for higher-risk buildings, as well as strengthening the regulation of the building control profession.

These regulations are only a small part of our building control reforms, which themselves are only a part of wider building safety reforms. However, they are important. They contain measures that support the new system and its operation for higher-risk buildings, led by the Building Safety Regulator. The three sets of changes that these regulations make are as follows. First, the regulations end Ministers’ ability to grant building control procedural exemptions to public bodies for higher-risk building work. Building control on higher-risk buildings will in future be overseen exclusively by the Building Safety Regulator. However, the ministerial ability to grant exemptions for non-higher-risk building work is unaffected.

Secondly, the regulations require any public bodies with a partial exemption under Section 54 of the Building Act 1984 to cancel their public body notice with the local authority if the building work becomes higher-risk building work. Local authorities will also be required to cancel public body notices under the same circumstances. Currently, no public body has a partial exemption and therefore these measures are being introduced for future use as opposed to changing any existing arrangements. Only one public body, the Metropolitan Police, currently has any type of exemption, and separate regulations to be introduced later this year will change that exemption so that it applies to non-higher-risk building work only.

Thirdly, the regulations will allow the Building Safety Regulator to fine public bodies £7,500 if they have not cancelled their public body notice when building work becomes higher-risk building work. This will ensure an equal approach to approved inspectors, who will become registered building control approvers under the new system and who will be liable for sanctions if they fail to cancel an initial notice, which is their equivalent of a public body notice, under the same circumstances. Public bodies will be allowed to contest any fines, first through the Building Safety Regulator and ultimately in the courts.

These regulations support the aim of increased building safety, in particular for higher-risk buildings, by ensuring that the Building Safety Regulator is the sole body carrying out building control on such buildings. It also removes any possibility of this approach being undermined in future by public bodies being given exemptions that circumvent the Building Safety Regulator and the higher-risk building control regime. I hope noble Lords will join me in supporting the draft regulations. I commend them to the Committee, and I beg to move.

[Baroness Pinnock (LD)]

My Lords, I support the regulations that the Minister has detailed. They are entirely appropriate and another step in the right direction to overhaul and thoroughly improve building safety, particularly as in this case they apply to higher-risk buildings. I have a couple of questions for the Minister which I hope she will be able to answer.

My first question struck me when I was reading the details in the statutory instrument. Why on earth should any public body be exempt from basic building safety? Why is there an exemption? We would not be having this debate if there was no exemption. I did not quite hear what the Minister said, but it is my understanding that, of the higher-risk buildings that are in occupation, care homes, hospitals, secure residential institutions, I think, and military barracks are excluded from the definition of higher-risk buildings—if my memory of when we went through the Bill serves me right—and I have never understood why that should be the case. I would think that many hospitals would fall under this, as they are high enough to comply with the definition of a higher-risk building. I wonder why they are exempt, if I heard correctly and have read the Explanatory Memorandum correctly. Do we know how many public bodies will now be drawn into this? There are not that many that are very high-rise. It would be interesting to know.

I think the reason that care homes and hospitals were excluded from this is that they are already covered by fire safety regulations and legislation, but I am quite in favour of belt and braces. If there are fire safety regulations that control that, let us add to them regulations such as these because the two could work in harmony to ensure that, in this case, quite vulnerable people would have double the protection that we would want to make sure they had. That is another little query in this case.

My next point is about the Met Police. How on earth does it get an exemption? Where did that appear from? Somebody ought to say, “This will not do. You’ve got to be included in this because, as a Government, we are determined to ensure that any higher-risk buildings are totally safeguarded against the risks that were identified by”—as the Minister reminded us—“the Grenfell Tower tragedy nearly six years ago, which was just awful”. Let us get this right. If it means more regulation and better safety for more people, it gets a big tick from me.

--- Later in debate ---

[Baroness Taylor of Stevenage (Lab)]

My Lords, we absolutely support the introduction of these regulations, which are the latest welcome—if somewhat belated—step in establishing a more stringent building safety regime for higher-risk buildings, as recommended in Dame Judith Hackitt’s review as far back as 2018. Although we are going in the right direction, it remains an appalling scandal that tackling the shocking failures in building safety standards has now dragged on for more than five years.

I agree with the noble Baroness, Lady Pinnock, that the push for the deregulation of building control in favour of the private sector providing those services was at least a contributory factor in some cases to non-compliance with building safety regulations. I know that the Minister is aware of the case of Vista Tower in Stevenage and Sophie Bichener, who has fought a long campaign on these matters. We welcome the focus now on ensuring that the Building Safety Regulator is the building control authority for all higher-risk building work carried out on public body buildings.

This SI also removes the power for the Secretary of State to grant exemptions for higher-risk buildings, although, as the Minister told us, the exemption power still remains for non-higher-risk buildings. We will need to be reassured that these definitions are very tight and will be adhered to so that we can be assured that all building work will be correctly categorised in terms of the building’s risk. There will need to be clear criteria for the change when an authority is required to declare that its building has gone from “non-higher-risk” to “higher-risk”.

I have done so before, but I want to pay tribute to the tenacity of the campaigning Grenfell survivors, building safety campaign groups and individuals across the country who have worked tirelessly to bring the seriousness of the issues being dealt with here today to the attention of the Government and the public. I draw the Minister’s attention to a number of questions that have been raised in relation to the Explanatory Memorandum, although, of course, we will be happy to receive responses in written form if she is not able to answer them today; they are questions of clarification and do not change our support for the regulations.

First, when looking at the building safety leaseholder protections regulations, the Secondary Legislation Scrutiny Committee identified the issue of public bodies claiming that their SPVs—special purpose vehicles—are responsible for building safety, rather than the bodies themselves. Would these regulations also apply to SPVs?

The Explanatory Memorandum to the earlier Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 quoted a number of 13,000 higher-risk buildings in the UK. Do we know how many of them are the responsibility of public bodies?

What estimate has been made of the resources needed by the Building Safety Regulator to assess and carry out this building control work? I am aware that, earlier this month, the Government announced a welcome £42 million to recruit building control inspectors and fire inspectors for the Building Safety Regulator. Do we know the timeline for their recruitment and how quickly that will move forward?

Has any thought been given to the possibility that public bodies may have to pass on charges to tenants for retrospective building safety work? Have the Government specifically prohibited public bodies from doing so? Once the Building Safety Regulator starts looking at buildings, it may well identify further causes of work and that charge may be passed on to tenants; they can be very substantial bills.

The Explanatory Memorandum refers to a separate instrument that will limit the Metropolitan Police’s existing exemption and ensure that the Building Safety Regulator is the sole building control body for its buildings. I agree with the noble Baroness, Lady Pinnock: I cannot think of any reason why it is exempt from this in the first place but, clearly, that needs a separate instrument. How many buildings are affected by this and when will the instrument be introduced? Do we have a date yet?

The Explanatory Memorandum refers to a “for information” letter that has been sent to all government departments. Will the Minister please lay a copy of it in the Library?

The impact statement on this SI, as on other similar regulations relating to building safety, states:

“There is no, or no significant, impact on the public sector.”


Surely the assessment and collation of information, particularly where public bodies such as housing authorities have significant property holdings, will present a resource issue. If the Building Safety Regulator identifies significant issues, that, too, will result in potentially expensive remedial works. I am thinking particularly but not exclusively of local authorities, whose resources are already stretched to breaking point. Has the Local Government Association been consulted on this or asked for a view on the impact of safety regulations such as these on public bodies?

This is my last question; I am sure the Minister will be pleased to know that. Does Section 32 of the Building Safety Act apply similar provisions to those in this SI to buildings in the private sector? Does this mean that the framework for building control of higher-risk buildings is now complete, or are there still other regulations to be laid before the House?

In conclusion, we are pleased to see this suite of building safety regulations come forward and that this SI puts building control back into the hands of a regulator who will, we hope, ensure that the highest standards are met. We welcome the Government’s commitment, as stated by the Minister. We have some concerns about the resources and capacity of the Building Safety Regulator, on which it would be helpful to have some reassurance from the Minister; about the potential impact on resources for the public sector; and about whether this can be passed on to tenants. However, with those caveats, we welcome this better regulation overall and hope that it will give some further reassurance to those who occupy the buildings belonging to public bodies.

[Baroness Scott of Bybrook (Con)]

My Lords, I thank the Committee and the two noble Baronesses opposite for their support of these regulations. This marks another step for building safety reform and the introduction of a higher-risk building control regime overseen by the Building Safety Regulator. I will go through a few of the questions that were asked.

The noble Baroness, Lady Pinnock, asked why a public body would be exempt. I have to say that these are just procedural exemptions; public bodies still have to comply with building regulation. They provided public bodies with some flexibility, if the Government agreed, but no more bodies will be drawn in; we are at the end of that now.

The noble Baronesses, Lady Pinnock and Lady Taylor of Stevenage, asked why the Met Police got an exemption. The Met Police will be included from October for all its higher-risk buildings. We will have a separate SI for the Met Police so it is not going to get away with it; this will cover it as well.

The noble Baroness, Lady Pinnock, asked how many public bodies with existing exemptions are affected. As I said, all public bodies interested in getting a building control procedural exemption, either partly or wholly for higher-risk building work, are affected. They will no longer be considered for an exemption as these will be unlawful. Interest in using this exemption has been very low: there is currently only one public body with an exemption and only one exemption has been granted since 2000. We are talking about one body and no public bodies are currently requesting a new exemption. As I said, the one public body that has that exemption is the Metropolitan Police. It covers all its building work but it was agreed that, from October 2023, it will be limited to non-higher-risk building work only. This change will be included in separate regulations later in the year, as I said.

The noble Baroness, Lady Pinnock, asked about the definition of higher-risk buildings. She is quite right that this is about residential buildings—they must have at least two residential units in them—and care homes and hospitals. They also have to meet the 18-metre or seven-storey height threshold. The other areas that she was talking about are non-residential and are therefore subject to separate fire regulations.

I think it was the noble Baroness, Lady Taylor of Stevenage, who asked about the recruitment of building control officers. This is important. We have put £42 million into this and we have started a programme of recruitment over three years, before we have to recharge it. That work is already happening; I will ask if there are any further details or updates on that as well.

I might have to look in Hansard for the details of some of the further questions from the noble Baroness, Lady Taylor of Stevenage, but I have noted some. I will write a letter on SPVs; the overarching answer is no but I want to make sure that I give the noble Baroness the details of why.

We talked about the 13,000 properties and how many the SI affects. It is one; that has been answered. As I have said, we have put in £42 million to help with recruitment. There was also something about retrospective charges in the public sector but I will look at the details of the noble Baroness’s question and send her something. We have discussed the Met Police.

The noble Baroness mentioned a letter. I am not aware of it but we will look into that and, if possible, put it in the Library for all noble Lords. We will also give the noble Baroness more detail about the private sector and local authorities in a letter, and make sure that both noble Baronesses get that letter and a copy is put in the Library.

As noble Lords know, these regulations are an important part of this Government’s reforms to ensure that residents are safe and feel safe in their homes. Before I sit down, I once again pay tribute to the Grenfell community. Without them and their sad loss, we would not be discussing these things. They are always in our thoughts. I once again thank noble Lords for their contributions today.

Motion agreed.