Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Report stage
Monday 18th September 2023 Lords Chamber

Moved by

[The Earl of Lytton]

260A: After Schedule 20, insert the following new Schedule—
“SCHEDULEBUILDING SAFETY REMEDIATION SCHEMEDuty to establish the scheme
1 (1) The Secretary of State must establish, or make arrangements for the establishment of, a Building Safety Remediation Scheme (“the BSRS”).(2) The purpose of the BSRS must be to ensure that residential blocks of flats with building safety risks are made safe, mortgageable and insurable—(a) in accordance with the building safety remediation principle,(b) speedily, efficiently, effectively and proportionately,(c) without cost to leaseholders or occupiers, and(d) so far as reasonably practicable without recourse to lengthy and expensive legal proceedings.(3) For the purposes of this Schedule “building safety remediation principle” is the principle that—(a) so far as reasonably practicable, remediation costs for relevant buildings with building safety risks arising from defective construction or additional building work should be met by the developer, the principal contractor or both, and(b) where that is not reasonably practicable, or where building safety risks do not arise from defective construction or additional building work, costs should be met by the building industry.Scope of the scheme
2 The BSRS must be framed so as to apply to relevant buildings which—(a) were constructed, or subject to additional building work, on or after 1 June 1992, and(b) present building safety risks.Operation of the scheme
3 (1) The BSRS must provide for persons (including freeholders and leaseholders) to apply—(a) for a building to be recognised as a relevant building, and(b) for a relevant building to be recognised as eligible for grants in respect of the cost of remediation works.(2) The BSRS must provide—(a) for the appointment of persons (“BSRS adjudicators”) with appropriate expertise to determine, on behalf of the Secretary of State, applications under sub-paragraph (1)(a) and (b), and(b) for BSRS adjudicators to be required to exercise operational independence in making determinations under the scheme.(3) For the purposes of sub-paragraph (2), the BSRS may provide for appointments to be made by the Secretary of State or by one or more persons designated for that purpose by the Secretary of State under the scheme.(4) The BSRS must provide that determinations of BSRS adjudicators in respect of building eligibility for the scheme under paragraph 4 are final (but nothing in this sub-paragraph prevents the exercise by the High Court of its judicial review jurisdiction).Scheme supplementary regulations
4 (1) The Secretary of State must make regulations (“scheme supplementary regulations”) in respect of the BSRS.(2) Scheme supplementary regulations, in particular—(a) may make provision for determining what is to be, or not to be, treated as a relevant building for the purposes of the scheme;(b) may make provision for determining the date on which buildings were constructed or subject to additional building work; (c) may make provision for determining who is entitled to make an application under the scheme in respect of a relevant building;(d) may specify criteria to be applied by BSRS adjudicators in determining whether a relevant building presents building safety risks as a result of defective construction (and the criteria may, in particular, make provision wholly or partly by reference to building regulations or other enactments in force at the time of construction or by reference to specified classes of document);(e) may make provision permitting or requiring BSRS adjudicators to conduct tests, and requiring owners and occupiers of relevant buildings to cooperate with BSRS adjudicators in conducting tests;(f) may make provision permitting BSRS adjudicators to require local authorities or other specified classes of person to provide information or documents, and requiring persons to comply with any requirements imposed;(g) may make provision about the timing of applications and determinations;(h) may make provision about evidence to be adduced in support of an application;(i) may require or permit BSRS adjudicators to operate a rebuttable presumption of defective construction where specified classes of fact have been proved (for which purpose the regulations may make provision similar to, or applying with or without modification, any enactment);(j) may make provision about the making, processing and determination of applications under the scheme;(k) may make provision about the giving of notice to developers and others;(l) may make provision about the payment of awards;(m) may make provision about monitoring expenditure on remediation works;(n) may set a threshold for the estimated or quoted cost of remediation works below which an application for recognition cannot be made;(o) may make provision for determining, having regard in particular to the need for proportionality, the nature and extent of remediation costs which may be funded by the scheme (for which purpose “remediation costs” means any class of expenditure related to building safety risks, including, in particular, repair costs, the costs of interim mitigation or safety measures and reimbursement of or compensation for increases in insurance premiums);(p) may make provision for account to be taken of grants provided in respect of remediation works by any other scheme established by enactment or by a public authority;(q) may make provision for financial assistance provided by any other scheme established by enactment or by a public authority to be repaid out of grants under the remediation scheme;(r) may permit or require the amalgamation of multiple applications in respect of one relevant building, or of applications on behalf of the residents of one or more relevant buildings;(s) may permit or require representative applications on behalf of the residents of one or more relevant buildings;(t) may make provision about the qualifications, appointment, remuneration and conduct of BSRS adjudicators, and the regulations may, in particular—(i) provide for adjudicators to be remunerated from BSRS funds; (ii) provide for indemnities in respect of decisions taken by adjudicators (for which purpose the regulations may apply an enactment (with or without modification));(u) must include provision requiring the maintenance and publication of records of applications and determinations under the BSRS;(v) must confer a right to appeal to the First-tier Tribunal in respect of determinations as to whether a building safety risk arose from defective construction or additional building work.Scheme funding regulations
5 (1) The Secretary of State must make regulations about the funding of the BSRS and of grants made under it (“scheme funding regulations”).(2) Scheme funding regulations must aim to apply the building safety remediation principle so far as practicable.(3) For that purpose, scheme funding regulations must aim to ensure that a grant awarded under the BSRS is funded—(a) so far as possible where building safety risks arise from defective construction or additional building work, by the developer or principal contractor of the building in respect of which the grant is awarded, and(b) failing that (whether by reason of the dissolution of a developer or principal contractor, insolvency or otherwise), or where building safety risks do not arise from defective construction or additional building work, by money paid into a fund maintained through a levy on the building industry in general, or specified parts of the building industry.(4) For the purposes of achieving the objective in sub-paragraph (3)(a)—(a) the reference to the developer of a building includes a reference to any person who arranged for its construction or additional building work and for the sale of units in the building;(b) the reference to the principal contractor is a reference to the person who was responsible to the developer for the construction of a building or undertaking additional building work;(c) scheme funding regulations must permit a BSRS adjudicator to provide for an award under the scheme to be paid by one or more persons specified by the adjudicator (and awards may, in particular, provide for joint and several liability);(d) scheme funding regulations must confer a right to appeal to the First-tier Tribunal;(e) scheme funding regulations may include provision permitting a BSRS adjudicator to permit or require an award for payment by a specified person to be satisfied wholly or partly by a person connected to that person (within the meaning of the regulations, for which purpose the regulations may apply, with or without modification, section 121 of the Building Safety Act 2022 and any enactment relating to joint ventures);(f) scheme funding regulations may include provision about enforcement of liability to satisfy awards, which may, in particular—(i) provide for collection of awards as a statutory debt,(ii) include provision for interest or penalties,(iii) provide for liability to make payments pending appeal or review, and(iv) create criminal offences in connection with evasion.(5) For the purposes of achieving the objective in sub-paragraph (3)(b), scheme funding regulations— (a) must establish one or more levies to be paid by specified businesses or classes of business;(b) must make provision for determining liability to pay the levy;(c) may confer functions on BSRS adjudicators or other specified persons (which may include the Secretary of State) in respect of determination of liability to pay the levy;(d) must confer on a person determined to be liable to pay the levy the right to appeal to the First-tier Tribunal;(e) may provide for different amounts of levy to be paid by different classes of person;(f) may provide for the levy to be paid by way of one-off payments, periodic payments or both;(g) may include provision about enforcement of liability to pay the levy (which may, in particular, provide for collection of the levy as a statutory debt, include provision for interest or penalties and create criminal offences in connection with evasion);(h) must include provision about the administration of the levy by the Secretary of State, including provision as to the maintenance and publication of estimates, accounts and other records;(i) may include supplemental provision about the levy.(6) In making regulations under sub-paragraph (5), and in particular in assessing the proportionality and other fairness of any levy imposed by regulations under sub-paragraph (5), the Secretary of State must—(a) have regard to any other levy or similar imposition that appears to have a similar purpose as a levy under the scheme funding regulations, and(b) must consult persons appearing to him or her to represent the interests of persons affected by other relevant levies and impositions.(7) Scheme funding regulations may include provision about—(a) application of awards, levies and grants, including provision for holding (or return) of surplus funds;(b) the nature and extent of obligations imposed by awards (which may, in particular, provide for payments in money or services or money’s worth);(c) processes and procedures to be applied in determining applications for grants and questions of liability to awards (which may, in particular, include provision for determination wholly, partly, absolutely or contingently by arbitration, mediation or any other kind of process or procedure the Secretary of State thinks appropriate);(d) terms and conditions of awards, levies and grants;(e) appraisals, appeals and enforcement.Apportionment
6 (1) Scheme funding regulations may make provision about apportionment of liability for defective construction.(2) In particular, scheme funding regulations may provide that where a person is required to pay an award under the BSRS, that person may bring proceedings to recover a contribution from one or more persons who share responsibility for the defects in respect of which the award is made.(3) Provision made by virtue of this paragraph may—(a) confer jurisdiction on the First-tier Tribunal or on any other specified court or tribunal;(b) apply (with or without modifications) any enactment about third- party liability.Interim payments
7 (1) The Secretary of State may make interim grants to persons whom the Secretary of State believes are likely to be entitled to benefit from the remediation scheme.(2) Interim grants may be made on such terms and conditions (including as to repayment) as the Secretary of State may specify.(3) Scheme supplementary regulations—(a) may include provision for account to be taken of interim grants under this paragraph, and(b) may include other provision about interim grants under this paragraph (including provision about applications for grants, eligibility for grants and determination of applications for grants).Interpretation
8 For the purposes of this Schedule—“building safety risk” has the meaning given in section 120(5) of the Building Safety Act 2022;“building industry” has the meaning given in section 127(7) of the Building Safety Act 2022;“construction” includes any kind of building work (whether part of the original construction of a building or not) including works of improvement, repair and extension;“class” includes description;“defective construction or other building work” means construction or additional building work that—(a) contravened building regulations or other enactments in force at the time of the construction or additional building work, or(b) satisfies any other criteria specified in the BSRS or in scheme supplementary regulations;“BSRS funding regulations” has the meaning given by paragraph 5;“BSRS scheme” has the meaning given by paragraph 1;“BSRS adjudicator” has the meaning given by paragraph 3;“grant” includes loans and any other form of financial assistance (for which purpose a reference to payment includes a reference to the provision of assistance);“building safety remediation principle” has the meaning given by paragraph 1;“remediation costs” has the meaning given by paragraph 4;“relevant building” means a self-contained building, or self-contained part of a building that contains at least two dwellings;“scheme supplementary regulations” has the meaning given by paragraph 4.Consultation
9 Before making the scheme, the scheme supplementary regulations and the scheme funding regulations, the Secretary of State must consult—(a) persons appearing to represent the interests of freeholders, leaseholders or occupiers of blocks of flats with building safety risks,(b) persons appearing to represent the interests of the construction industry and related industries, and(c) such other persons as the Secretary of State thinks appropriate.Regulations
10 (1) Scheme supplementary regulations and scheme funding regulations—(a) may make provision that applies generally or only for specified purposes, (b) may make different provision for different purposes,(c) may confer functions (including discretionary functions) on specified persons or classes of person, and may provide for the Secretary of State to appoint persons to exercise functions under the regulations or the remediation scheme (whether or not on behalf of the Secretary of State), and(d) may include supplemental, consequential or transitional provision.(2) Scheme funding regulations may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.(3) Scheme supplementary regulations are subject to annulment in pursuance of a resolution of either House of Parliament.”Member's explanatory statement
This new Schedule would implement a building safety remediation scheme to ensure that buildings with building safety risks are put right without costs to leaseholders.

[The Earl of Lytton (CB)]

My Lords, I rise to move Amendment 260A in my name and to speak to Amendments 282J and 315B, which are linked to it. I first express my gratitude to the noble Baroness, Lady Scott of Bybrook, for her willingness to engage, and I wish her a speedy recovery and restoration to full health. However, I note with regret that a 35 or 40-minute slot is insufficient to cover the ground and that, given that the premise of my amendment has never been accepted, discussion of much of the detail has not been possible.

I make it clear from the outset that I may wish to test the opinion of the House but, before deciding that, I particularly wish to consider and gauge the views of noble Lords on a matter that I believe to be of fundamental importance to the purposes of good government, justice, equality under the law and economic stability. I refer to a crib sheet, if I may call it that, which I submitted to the department. I hope that it reached the attention of the noble Earl, should he be responding to this. I apologise for the fact that it was not sent earlier, as I had intended, which is something to do with the stability of the electrical grid in my part of West Sussex during most of yesterday.

I outlined in Committee the aims of these amendments, which have had the benefit of expert scrutiny by parliamentary counsel and construction councils, construction administrators, conveyancers, academics, property professionals and trade associations. There has been support from all these quarters. I am therefore satisfied that the amendments are technically competent, complementary to the measures already in the Building Safety Act 2022 and capable of implementation. In short, they aim to make the development and construction sector responsible for defects in buildings arising from poor building practices and to prevent the burden falling on innocent leaseholders in their homes or being funded by the taxpayer.

I remind your Lordships of the basics of Amendment 260A; I will not go into detail. First, it is aimed at simplifying establishing initial liability without a lengthy legal process. This asks the question of whether there was a significant critical defect in the original construction and, if so, who was responsible for the works, and their route to compliance. Secondly, it aims to reduce the contested areas to one largely of quantum, via an adjudication process and the First-tier Tribunal. Thirdly, it aims thereby to cut costs and risk barriers to leaseholders in getting redress directly or indirectly. Finally, it provides a backstop levy where the defects are not a result of construction failure, or else where the developer or contractor no longer exists. The intention is that this should be wide and shallow, and encompass materials, manufacturers, warranty providers, approved inspectors, specifiers and so on, as well as contractors.

My amendments mean that DLUHC would have to do things differently, but I weigh that against the current situation of allowing innocent homeowners to bear the brunt. Going forward, the incentive for housebuilders to cut corners must be replaced with an ongoing reminder to meet good construction practice at all times. The amendments also give exceptionally wide discretion to the Secretary of State in implementing proposals, subject to certain core principles. So, it is getting ahead of the process to claim, as some have, that these would not work.

More to the point, my amendments would dismantle much of the complexity the Government have decided to put in place with their own remediation scheme under the BSA. I am returning to this theme because I am not satisfied with the government response I have received to date. My case rests on one of the most fundamental principles of humankind: that if someone does something wrong and it injures another, they should provide restitution. On 13 September last week we discussed amendments to the Bill on nutrient neutrality. There were outstanding speeches from these Benches, not least from the noble Duke, the Duke of Wellington, and a stellar contribution from the noble Lord, Lord Deben. In response, the Minister stated:

“Another issue brought up by a number of noble Lords is that the developer should pay. The Government agree. It is essential that housebuilders contribute fairly, and we all agree with the principle that the polluter should pay”.—[Official Report, 13/9/23; col. 1060.]


In the context of building safety, however, it appears that the Government do not accept that same principle—or, if they do, they think it stops short of protecting all innocent leaseholders or indeed of making developers and main contractors liable for the mistakes they made at the time of construction, at a point when they had full agency and control over the construction project.

The ill effects, as we see them now, blight hundreds of thousands of leasehold homeowners who bought in good faith. I do not know the numbers but I believe there are more than 200,000, a figure that I have quoted before and the Government have not disputed. These people did not buy a product sold discounted “as seen” from a seconds rack but a full-value home, backed by warranties and certificates of every sort, covering many things that they could not possibly see or inspect for themselves.

I took away from a meeting last week with the Minister and the Bill team that the Government believe it sufficient that the BSA has widened the Defective Premises Act so that leaseholders can better pursue big corporates, via their freeholder, for redress over demonstrable failings to construct buildings to the then regulatory standards. Further, the Government believe they should do so at their own risk and expense, and to bear the consequential costs in the meantime. They also believe it is in order for affected leaseholders who are deemed non-qualified to continue to live in potentially unsafe blocks, in a financial fix and under the cloud of remediation costs.

When we discussed similar amendments to the Building Safety Act in 2022, speaker after speaker expressed a clear wish for focused, timely and effective action. As time goes by, there is a growing tally of enforced building evacuations—I believe there have been 27 since 2017—and a rising tide of leaseholders who are adversely affected. They have written to me in large numbers, some 250 since the middle of March, telling me of waking watch costs, enormous insurance rises, crippling remediation bills, properties that cannot be sold or refinanced, and lives upended. What should have been the security of their homes has turned into a financial and emotional prison. Just recently, some 51,000 people have signed a petition asking for something to be done. This is a problem that has not gone away.

So complicated are the rules under the BSA—developed by our rather process-focused administration—that even lawyers and conveyancers cannot figure them out and are now distancing themselves from handling work involving affected flats. I refer to the rules on leaseholder qualification; landlord certification; estimating remedial costs in times of rapidly rising prices; ascertaining landlord worth; the pitfalls leading to exclusions; the roulette of getting any recovery from original contractors; the programme for remediation; and the sheer arbitrariness and lack of clarity of it all.

My fear is that the financial standing of these assets is next in line. The Government assumed that landlords as building owners had the money and means to protect leaseholders. Some do but their respective interests do not coincide, and it is a moot point whether building owners are any more responsible for the construction defects in their buildings than the occupiers. The Government’s apparent predilection for charging owners with open-ended responsibilities without any clear route to cost recovery looks to me like a less than even-handed application of equality under the law.

It is also perfectly clear to me that many freeholders do not have the assets to enable them to risk taking on contractors, while others may be minded to do a disappearing act or become insolvent. I know that the Government’s proceedings against Railpen in respect of Vista Tower in Stevenage—I am sure that the noble Baroness opposite will be familiar with that one—are still stuck in the courts. In reality, however, no block owner or leaseholder collective could possibly afford to mount such a case.

Last Wednesday in the nutrient debate, if I can call it that, the Minister’s parting shot was that some £18 billion of added value to the economy was at stake, but that is not the only metric. The National Residential Landlords Association estimates—it is the only estimate that I know of—that there are 1.7 million non-qualifying leaseholders in existence. If just 10% of them are in buildings requiring significant remediation, which appears to be the general experience of building owners in terms of a percentage, even taking a well below average remediation and consequential cost per flat of, say, £20,000, that amounts to a staggering £34 billion write-down on the private sector alone, or nearly double what was bothering the Minister on Wednesday. Some observers put the damage north of £50 billion, and I can well believe it. Add in social housing and shared ownership, plus the potential sectoral damage in terms of market sentiment that I believe is now taking root, and potentially it is a lot more still.

DLUHC’s own latest data shows that the building safety fund is still taking ages to process, approve and release funds—typically more than three years, in a time of rapid inflation in construction costs. It reveals that, as at the 14th of this month, there were 2,833 remediation resident registrations in relation to non-ACM—the cladding material—private sector blocks, of which only 49 have had their problems fixed. It seems that in all this the Government are not collecting the data, still less sharing it. I have asked how many properties of 11 metres and below there are which may be affected. The Government do not seem to know this; it follows that the data on impacts is effectively unknown. How then is policy made on this matter?

I think everyone will agree that there has been a lot of time available to sort this out, so the process requires the turbocharging that my amendments would provide. I am aware that the Government’s objections to these amendments are many, but I do not believe they fully address the issues. There is a social evil taking root here, in that innocent consumers are paying heavily for the mistakes of producers. One criticism is that the amendments would require individual building assessments, and that that would slow the whole process—but how else does one identify or assess the essentially random nature of poor construction, other than on a per-building basis? Another is that there is not enough professional inspection capacity, but that applies whatever the total number of defects may be—unless, of course, the intention is simply to ignore some significant defects altogether.

I am also told that it would overstretch limited departmental resources, but it is over six years since the awful tragedy of the Grenfell Tower, and it is the job of government to take necessary action, not to wring their hands. The Government say that my solution is too complex. I say that it is not half as complex as what they have already put in place—and remember, I am not asking for a taxpayer bailout. The levy provided for in these amendments would deal with any shortfalls.

We clearly are not there yet. Conveyancing sources tell me that there is a growing trend at this very moment in contracts for sale of new flats, where there are now inserted clauses placing the entire onus for future defects on the buyer, on a “take it or leave it” basis. Meanwhile, I am not aware of any moves by the Government to remove the unfairness of excluding so many leaseholders from their scheme, or indeed of moves to put anything in place to tackle the building safety problems that I have identified.

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[Earl Howe (Con)]

My Lords, as my noble friend Lady Scott said in Committee when the noble Earl, Lord Lytton, brought forward his now-rebranded “polluter pays” amendments, these issues have already been debated at length in this House—I address here Amendments 260A, 282J and 315B. I agree that too many developers and landlords are being too slow to remediate buildings for which they are responsible. However, the Government have not been idle in this space; blocks of flats are being made safer as we speak. Under the regulatory regime that the noble Earl wishes to scrap and replace, 96% of all high-rise buildings with unsafe “Grenfell-style” ACM cladding have been remediated or have remedial work under way.

The leaseholder protections are showing real promise on the ground, so it would seem folly to scrap them and start again from scratch. Indeed, accepting these amendments would set back the progress of remediation by over a year as industry and leaseholders work to understand another new system, just as they are getting to grips with the Building Safety Act—the noble Baroness, Lady Taylor, was quite right to express her doubts on that score. At various points, the noble Earl has talked about his scheme sitting alongside the existing protections, but I argue strongly to your Lordships that that would be a recipe for chaos and confusion. Please do not let us land ourselves with that.

Secondly, many of your Lordships will have already taken part in debates on the regulations to give effect to our responsible actors scheme. That scheme, alongside our developer remediation contracts, requires eligible developers to fix the problems they have caused—I emphasise that clause: to fix the problems they have caused. Eligible developers who do not join the scheme and comply with its conditions will face prohibitions.

In response to the concerns of the noble Earl that the non-qualifying leaseholders are stuck in unsafe flats, as I think he put it, that is simply not true. All principal residences over 11 metres are covered by the protections. Following on from that, he expressed concern that the leaseholder protections do not protect every leaseholder. I just remind him that the direct protections that we have put in place are only part of the Government’s overall scheme. I have already referred to the responsible actors scheme and the developer remediation contracts, and I also point to the more than £5 billion set aside to replace cladding. The new powers in the Act to seek remediation contribution orders against developers, or to pursue them under the Defective Premises Act, also provide valuable indirect protection. Non-qualifying leaseholders are able to seek a remediation contribution order from the tribunal against a developer or contractor in exactly the same way as qualifying leaseholders. Let us remember that, where a developer has signed the developer remediation contract, it will fund all necessary remediation work—both cladding and non-cladding-related—irrespective of whether individual leases in those buildings qualify. Those on the current list of developers are only the first to be pursued; we have committed to expanding that list now that the regulations have been brought forward.

I make one further point. The noble Earl was concerned that the protections under the Building Safety Act remediation scheme will not apply to future buildings. The leaseholder protections address problems with buildings built poorly in the past. Part 3 of the Act raises standards for future buildings; we do not need a remediation scheme to reach into the future. All in all, I hope that, on reflection, the noble Earl will see fit to withdraw Amendment 260A and not move Amendments 282J or 315B.

I turn next to Amendments 282C, 282ND and 315A in the name of my noble friend Lord Young of Cookham. I must tell my noble friend—at the risk of him heaving a sigh—that that these issues are legally complex. What is more, unfortunately, his amendments will not address all those complexities. I can none the less reassure him and your Lordships that officials are working on producing a fix for the lease extension issue and that we will bring forward legislation as soon as possible. We are also considering carefully how we might address any unfairness produced by the issue of jointly owned properties, which my noble friend’s Amendment 282ND seeks to address. I am therefore not delivering a rebuff to my noble friend; I am simply urging him to understand that this is a set of issues that requires very careful legal dissection and working through, and that is what we are doing.

Finally, Amendment 282NF, from the noble Baroness, Lady Pinnock, and Amendment 309A in the names of my noble friend Lord Young of Cookham and the noble Baroness, Lady Pinnock, would require government to report on progress in remediating buildings under 11 metres and resident-owned buildings and to outline plans to expand the Cladding Safety Scheme. I listened to the views of the London Fire Brigade as reported by my noble friend; however, it is generally accepted that the life safety risk is proportional to the height of buildings. Lower-cost mitigations are usually more appropriate in low-rise buildings.

Given the small number of buildings under 11 metres that are likely to need remediation, our assessment remains that extending the protections for leaseholders in the Building Safety Act or our remediation funds to buildings below 11 metres is neither necessary nor proportionate. Where work is necessary, we would always expect freeholders to seek to recover costs from those who were responsible for building unsafe homes, not innocent leaseholders. Therefore, we do not intend to expand the Cladding Safety Scheme to incorporate these buildings, nor will it be possible to report on progress.

That said, I can assure the House that any resident whose landlord or building owner is proposing costly building safety remediation for a building under 11 metres should raise the matter with my department immediately, and we will investigate. Separately, the reporting that is already in place on the Responsible Actors Scheme will include progress made on all buildings in scope of that scheme, including any that are resident-owned. My noble friend Lord Young stated that resident-run buildings are excluded from the protections. They are not; the only buildings that are excluded from the protections as a class are those that are enfranchised, not those managed by residents. We have committed to consider this further and will bring proposals forward shortly.

I hope that what I have said has demonstrated to noble Lords that there are misunderstandings running through the amendments in this group. I have tried to provide reassurance, which I hope will be sufficient for the noble Earl, Lord Lytton, to withdraw his amendment. I also hope that my noble friend Lord Young and the noble Baroness, Lady Pinnock, will not see fit to press their amendments when they are reached.

[The Earl of Lytton (CB)]

My Lords, first, I thank all noble Lords who spoke in our debate on these amendments. It has certainly given me considerable food for thought. I am grateful to the noble Lord, Lord Young of Cookham, who went through all the promises that have been made but have not yet been dealt with one by one.

I believe that the exclusions are down to the funding assumptions that the Government have made from inception. I go back to something called the consolidated advice note, which, as noble Lords may recall, rather put the cat among the pigeons in terms of how extensive the problem was. Then there was a subsequent attempt to row back, as it were, on the worst effect of that by virtue of the independent expert statement, which itself came 11 months after a disastrous fire concerning Richmond House in the London Borough of Merton. I think we can all see that a process of risk management and managing political exposure is involved here. Unfortunately, that does not cut the mustard for a lot of people will still be stuck, for what seems to me to be an indefinite period, with the problems that they have.

--- Later in debate ---

I have also made it plain that I do not see any reason for this untimely, rushed and ill-considered proposal to take the Building Safety Regulator away from the Health and Safety Executive in the first place, and that is why I also have Amendments 267 and 268. I thank the noble Earl, Lord Lytton, for his support on that. The amendments seek to remove the two offending clauses from the Bill, thereby making it a better and shorter Bill. We will come to that in due course.

[The Earl of Lytton (CB)]

My Lords, I added my name to Amendments 267 and 268 tabled by the noble Lord, Lord Stunell. I think perhaps I should also have added it to Amendment 265A which he so ably introduced. There is very little that I can add to what he has said, so I will be brief.

As the noble Lord said, this is do with reputation, the disruption of potential reorganisation, a loss of momentum—which I might call continuity—and, finally, whether this lays open the opportunity for diluting the process which we agreed in the Building Safety Act and which one believes is still important today.

There are two things that I would like to point to. Part of the justification for what the Government seek to do seems to be a need to keep their options open, if I can put it that way, in relation to the awaited second Grenfell inquiry. Of course, we do not know when that will come in, but the fear seems to be that it will make recommendations that the Government will need to move resolutely to deal with. However, to try to foretell, forestall and provide for that by the process of taking the Building Safety Regulator function out of HSE and putting it in a place as yet unknown or undefined seems entirely premature. I am with the noble Lord, Lord Stunell, in the sense that does not aid the cohesion of the Building Safety Regulator function going forward.

The second thing that concerns me is that we already have two standards for dealing with what might be described as a defect. One is specified in the Building Safety Act and the other, which is not worded the same, is the standard of remediation under the pledge that constructors will sign up to. There are concerns, in particular because, under remediation schemes to which a lot of firms have signed up, they will still be using their own approved inspectors to sign off that work. We know what has happened since approved inspectors were brought in under the Building Act 1984. It amounts to marking their own homework. While I am sure that in many instances that is being done diligently, we would not be where we are now had that been done effectively, conscientiously and objectively. There are concerns that the Government’s proposals here leave too much wiggle room. I am with the noble Lord, Lord Stunell, on all three of his amendments, which I think afford valuable safeguards that we should take real notice of.

[Baroness Taylor of Stevenage (Lab)]

My Lords, before commenting on the specific amendments in this group, I thank the noble Baroness, Lady Scott of Bybrook, for responding so thoroughly to questions that were raised on this issue following our previous debate on this subject and the debate in July on the statutory instrument on the Building Safety Act.

Amendment 264 clarifies that the functions of the new regulator are those of the Health and Safety Executive. This was one of the points on which we requested clarification. I hope the Minister can clarify in response to the points made earlier by the noble Lord, Lord Stunell, what the new regulator will look like.

My noble friend Lord Rooker’s amendments would introduce a requirement on the new regulator to report on electrical safety for tower blocks awaiting remediation. That seems a very reasonable step in the light of previous discussions, and we hope the Minister will confirm that this falls into the remit of the regulator.

My noble friend also suggested, in his further amendment to Clause 223, that a new electrical safe register be introduced and, in particular, that electrical installations and testing be subject to the same level of rigour as gas installations. I cannot think of any reason why that should not be the case. I hope that, should she not clarify it today, the Minister will take that back to her department to be discussed with the new regulator.

Concerns expressed in Amendments 265A, 267 and 268 are that provisions made under the Bill could be revoked by regulation. Amendments 265 and 266 perhaps deal partially with that, but they may not be strong enough to deal with the concerns about provisions in the Building Safety Act. We note Amendment 265A in the name of the noble Lord, Lord Stunell, relating particularly to the potential for government to use regulations to amend the provisions of the Building Safety Act. We would be seriously concerned about that, so, if the noble Lord chooses to test the opinion of the House on that topic, he will have our support.