Building Safety Bill

Debate between Lord Best and Baroness Neville-Rolfe

Committee stage
Monday 28th February 2022 Grand Committee

[Lord Best (CB)]

My Lords, this group should not detain us too long, for three reasons. First, the group has only one amendment, this one. Secondly, the issue here is not of the same complexity or magnitude as the all-important matters that the Committee discussed last Thursday. Thirdly, I think that the Minister will not take too long to accept it. Amendment 45, in my name and the name of the noble Baroness, Lady Neville-Rolfe, concerns the impact of the Bill on the management of leasehold property, in particular the management by the leaseholders who live there.

The amendment has the backing of leaseholders and of bodies representing those managing leasehold flats, the Institute of Residential Property Managers and the Association of Residential Managing Agents. I declare an interest as chair of the Government’s regulation of property agents—RoPA—working group, whose 2019 report provides insights into the arrangements for managing blocks of residential apartments. Amendment 45 seeks to prevent the Bill from creating a major problem where residents of blocks of flats have responsibility themselves for the collective management of their homes. It covers the residents management companies, where the developer has handed over ongoing management to the leaseholders, and the right to manage companies, where residents have exercised their right to take control under the Commonhold and Leasehold Reform Act 2002, on which, incidentally, I gave my maiden speech 20 years ago.

These resident-controlled companies will have a board of unpaid volunteer directors. The directors will sometimes decide to employ managing agents to carry out the usual management and maintenance tasks, but the legal responsibilities for their company’s actions will remain with the directors. The Bill as it stands places a new layer of responsibility on these resident directors: they must, together, assume the role of the accountable person or principal accountable person responsible for building safety. This makes each individual director personally liable if things go wrong. They may engage expert help, but they cannot shed their accountable person status and the full liability remains with them.

The directors will now have to identify safety hazards, decide on the remedies and procure the necessary works. There are plenty of opportunities for mistakes and the new building safety regulator could discipline them, fire them or fine them, ruining their personal reputations. Fellow residents could sue them for mismanagement or misjudgment. Indeed, under Clause 131, if residents do not feel that the residents management company has done enough to recover money from third parties, they can take them to court.

The entirely predictable but unintended consequence of placing this serious new burden on resident directors is surely that no one will volunteer for the role. Already it is often a hard job to recruit and retain willing volunteers, who must not only give up their time but risk falling out with neighbours when taking decisions that cannot please everyone. It is commonplace for directors looking for a new volunteer to be economical with the truth: “It won’t be very time-consuming or onerous”, they say. How much more difficult will the recruitment of new and the retention of existing directors become if this Bill adds considerably to the obligations placed on anyone who dares to volunteer?

Amendment 45 seeks to resolve the problem. It has two parts. First, it would allow the residents management companies and right to manage company directors, if they wish, to pass on the functions and liabilities of the accountable person or principal accountable person to an external, competent, qualified third party with proper professional indemnity insurance, which the directors could never obtain. Secondly, it would enable the directors to pass on the costs of so doing to the residents via the service charges. With this amendment in place, a significant barrier to leaseholders managing their own affairs will be avoided.

Successive Governments have consistently encouraged residents to assume mutual responsibility for managing their blocks of flats. Indeed, moves are in the pipeline to relaunch the so far unsuccessful commonhold arrangements, whereby the occupiers own the freehold as well as handling the management. So I am sure that there is no intention to impose a huge disincentive for leaseholders to participate in residents management companies and right to manage companies. By enabling the duties imposed by this Bill to be transferred from the volunteer residents to professional experts, a potential exodus of volunteers can be avoided and the encouragement for more resident control can be sustained. I hope, therefore, that the amendment is helpful in correcting an unintended oversight and that it will appeal to the Minister. I look forward to the contribution of the noble Baroness, Lady Neville-Rolfe, and I beg to move.

[Baroness Neville-Rolfe (Con)]

I support the noble Lord in his Amendment 45. He has described the issue very well—and given his huge contribution to the House, I shall look up his maiden speech.

I worry that unless we can find a way out for leaseholders who are also owners, no leaseholder in their right mind would contribute to the management of a building jointly owned by leaseholders. This has been a direction of travel in recent years, which I support. I believe it to be particularly valuable for smaller housing developments, of which we need more. As my noble friend Lord Young of Cookham said in Committee on 24 February, successive Governments have encouraged leaseholders to buy their freeholds. Indeed, he himself played an important part in that process. As I understand it, the leaseholders who have enfranchised and bought their freeholds are excluded from support under the Bill. That seems very unfair.

I know from direct experience in my own family that it is already very difficult to secure volunteers to run leaseholder-owned buildings, given the onerous duties involved and the time requirement. The Bill, with its additional duties and tensions, will, I fear, make it impossible. Here we have yet another perverse effect. I agree with the noble Lord, Lord Best, that a solution must be found by Report, either by accepting his amendment or, if need be, in some other way. This is an unintended consequence that nobody wants.

Channel 4

Debate between Lord Best and Baroness Neville-Rolfe

Thursday 10th December 2015 Lords Chamber

[Baroness Neville-Rolfe]

I can understand the noble Lord’s comments but we have to look objectively at all the options in the light of the changing media market and the needs of Channel 4 and its viewers.

[Lord Best (CB)]

My Lords, I declare an interest as chair of your Lordships’ Select Committee on Communications. The committee has heard from Channel 4 about its highly acclaimed news coverage. Bearing in mind that news programmes are not profitable because their production costs are relatively high and you cannot export or resell them, does the Minister not agree that the privatisation of Channel 4 would mean a major reduction in this distinctive and impressive news service?

[Baroness Neville-Rolfe]

I repeat the point that we are looking at options. I agree that “Channel 4 News” and news provision are an important part of decisions on public sector broadcasting. I think in Parliament we feel that even more strongly than elsewhere in the country.

Consumer Rights Bill

Debate between Lord Best and Baroness Neville-Rolfe

Monday 24th November 2014 Lords Chamber

[Lord Best (CB)]

My Lords, I am delighted to follow the noble Lord, Lord Borrie. I, too, am a vice-president of the Trading Standards Institute. I moved this amendment in Committee because it seemed extraordinary when I first read it that trading standards officers would need to give 48 hours before turning up to find out some wrongdoing on a site, in a shop or whatever. However, the Bill already says that if,

“the officer reasonably considers that to give notice … would defeat the purpose of the entry”,

then the 48 hours’ notice would not have to be given. Nor would notice have to be given if the officer,

“reasonably suspects that there is an imminent risk to public health or safety”.

In Committee we received reassurances from the Minister, who explained that even if there was just a suspicion that there might be something going on, it would be quite in order not to give notice because that would totally undermine the purpose of looking in on the premises. That just leaves the 48 hours’ notice for “a routine visit”, which is how this is expressed in the amendments to follow in the name of the Minister. For a routine visit, 48 hours’ notice would be given but I understand that if trading standards officers are to make a routine visit—probably, as the noble Lord, Lord Borrie, said, to give advice, or to explain that the law has changed and there is something new that the business ought to know about—it will not be a matter of just giving notice. It is a negotiated thing. They will send an e-mail and receive a reply. What is the point of turning up 48 hours later if nobody is there or if the boss is not there and you need to see the boss? If it is something completely routine, this is how people behave just out of politeness, if for no other reason. They will make an appointment and go round and visit. The danger is that this will get blurred, the proper use of the unannounced visit will be inhibited and we will not see justice done when it should have been done. It seems much better if we simply omit this reference to 48 hours’ notice. It was probably a bad idea in the first place. There is a certain amount of retreat from it now—very sensibly by the Minister—but why not just knock it out? It does not seem to serve any purpose.

[Baroness Neville-Rolfe]

My Lords, the Government certainly share the objective of an effective enforcement regime to protect consumers from rogues and traders from unfair competition. In this Bill we are, of course, consolidating and modernising the investigatory powers of consumer law enforcers, bringing together the powers from different Acts, and ensuring for the first time that enforcers can tackle rogue traders who operate across local authority boundaries. We have also introduced strong safeguards as to how these powers are exercised because the powers are necessarily intrusive. They allow officers to enter premises, seize goods and break open containers, for example.

Under the Bill, therefore, consumer law enforcers will now have to give notice to traders if they want to make a routine inspection. We introduced this change, following discussion in Committee, because we think it is a basic principle of civil liberties that a business should suffer the disruption of an unannounced visit only when there is some good reason, such as suspicion that a business may have broken the law. However, we recognise that trading standards has real concerns about the requirement to give notice. I want to set out the approach that we have taken in more detail before talking about my amendments.

Businesses, including small businesses, are very supportive of strong powers to investigate rogue businesses, as has been said, because they harm consumers and are unfair to them. However, businesses have told us that unannounced routine inspections by enforcers are disruptive, costly and needlessly so. For example, an officer visiting a shop may demand a lot of attention from staff at busy periods or want information that the junior staff available cannot provide. The Federation of Small Businesses told us that the safeguard of two days’ written notice of routine inspections, which can of course be sent by e-mail, will allow businesses to ensure that the appropriate staff and paperwork are available. This means that neither the trader’s nor enforcer’s time is wasted. For example, if an officer visits a retail store to check centrally set price promotions, store colleagues may be unable to change promotions or answer questions on price establishment periods. Hence, matters that could otherwise have been cleared up quite quickly can result in primary authority referrals or a formal investigation.

Clearly, the Government are aware that much of the vital work of enforcement officers is directed at illegal trading. We very much value the excellent work of enforcers such as trading standards to protect consumers and legitimate businesses from rogue traders—including, I should add, the advisory work that the noble Lord, Lord Borrie, mentioned, which I agree is extremely valuable. Officers clearly should not have to give notice of an inspection where illegal trading is suspected. That is why clear exemptions are set out in the Bill, which I need to go into to try to ensure that the House understands how reasonable our proposals are. As has been said, notice need not be given, for example, if there is an imminent risk to public safety. The noble Lord, Lord Best, explained that clearly.

The exemption would apply: where an enforcer reasonably suspects a breach—for example, where enforcers find evidence of illicit tobacco, such as stubs and papers, in the streets near suspected outlets; where giving notice would defeat the purpose of the entry, a good example of that being where counterfeit alcohol is being sold in local shops and the enforcer believes that the traders in question are likely to conceal the illegal products if notice is given; and where it is not reasonably practicable in all the circumstances to give notice—for example, because the officer reasonably suspects that there is an imminent risk to public health or safety, as the noble Lord, Lord Best, mentioned. There are three or four other exemptions but, taken together, these exemptions ensure that consumer protection is properly maintained because if there is evidence of a serious or immediate breach, enforcers can intervene. The Bill supports an intelligence-led approach to enforcement which is an effective use of enforcement resources.

The noble Baroness, Lady Hayter, said that test purchases were less effective if notice had not been given. However, notice need not be given for a test purchase or to observe the carrying out of business.

Consumer Rights Bill

Debate between Lord Best and Baroness Neville-Rolfe

Wednesday 29th October 2014 Grand Committee

[Baroness Neville-Rolfe]

I thank the noble Baroness. Perhaps she will also read Hansard on these points. We carried out an impact assessment and I think that the £50 million figure comes from that assessment, which I can certainly make available. I wanted to say that I was going to mention consumers at the end because this is the Consumer Rights Bill. It is important that we have a deal that is good for all sides. There are various different pressures relating to investigatory powers. I have tried to explain the wider picture and the parallels elsewhere. I am very keen that this should be an effective part of the Bill, which is obviously designed to modernise and improve both consumer rights and consumer enforcement. I therefore ask the noble Lord, Lord Best, if he will consider withdrawing the amendment.

[Lord Best]

My Lords, that was a powerful exchange all round. Clearly, this is an issue of great interest and concern to your Lordships. I am grateful to the noble Baroness, Lady Crawley, who, among other things, welcomed the fact that the Government have already made a number of concessions along the way—that needs to be on the record. However, she pointed out that there are considerable costs involved for the trading standards service because there is a lot of bureaucracy involved in sending out 7,000 notices of intention to inspect each year, and the correspondence that has to go back and forth on all that. This is not a cost-free new regulation.

I am grateful to the noble Lord, Lord Harris, for calling into question whether there was a problem here that needed to be solved at all. He pointed out that this measure is bound to lead to endless litigation if we are not careful and made the important point that the ability of trading standards officers to make unannounced visits is, in itself, a deterrent, and it is uncertain what the world would look like if that deterrent effect was removed.

I am grateful to the noble Baroness, Lady Hayter, for raising key questions. She asked what would be the benefit of this measure to consumers and whether they would really benefit from it. She made the important point that an awful lot of unannounced visits follow anonymous tip-offs. Other traders know what is going on down the road. They do not want to get into a fight over it but want trading standards to know about it. However, there is a difficulty with that information being used later in a court of law since it is important but confidential information. I can see that that may cause a problem in future.

The Minister provided reassurance under a whole series of headings, which was extremely helpful. We have made some progress on these issues tonight. She paid tribute to trading standards officers, which I welcome, and emphasised continuously that this is about routine inspections only and that the legislation is generously drafted. We are reassured that suspicion is good enough in these cases. If a suspicion of a breach in the law is enough to trigger a perfectly legitimate unannounced visit, that covers an awful lot of cases. However, it leaves unanswered whether it is really worth putting on statute this new regulation and the binding condition on trading standards officers if they are to be able to bypass it in an awful lot of circumstances.

To conclude, we have a lot of new and extra reassurance on the record from tonight which is more than helpful. Putting this in the Bill also seems rather heavy-handed when we know there will be guidance in any case following the legislation. Guidance not statute sounds rather less of a sledgehammer to crack the remaining nut after we have heard about the many exemptions and exceptions. With those words, and the thought that we might need to bring this back again, I beg leave to withdraw the amendment.