Cumbria (Structural Changes) Order 2022

Lord Greenhalgh Excerpts

Monday 14th March 2022 Lords Chamber

Moved by

[Lord Greenhalgh]

That the draft Orders laid before the House on 24 January be approved.

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 9 March.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, I beg to move the Motions standing in my name on the Order Paper en bloc.

[Lord Liddle (Lab)]

My Lords, I do not want to detain the House long on this matter. I should declare my interest as a member of Cumbria County Council. I would like to put on record a couple of points. First, I thank the noble Lord, Lord Greenhalgh, for the care and attention he paid in the debate we had in Grand Committee on these issues last week. I think that he listened.

Secondly, I put on record my view that the decision we are implementing today, which was taken last summer by Robert Jenrick—late lamented in his role as Secretary of State—to split Cumbria into two unitary authorities is unsustainable, possibly in the short term and certainly in the medium term. In the short term, it involves splitting services that are vital yet fragile, such as social care and child protection, in the space of 12 months. I fear the consequences for the most vulnerable in our society as a result. On longer-term sustainability, the Government are imposing unnatural communities on Cumbria. I cannot believe that these new authorities will sustain public support in the longer term.

[Lord Greenhalgh (Con)]

My Lords, we debated this at some length in Grand Committee. The noble Lord made those points very eloquently. Since then, I have agreed to meet with him and the current county council leader. In fact, I also disclosed and put on record that I have never been to Cumbria and I hope to put that right.

[Noble Lords]

Shame!

[Lord Greenhalgh (Con)]

It is a great shame; I am hearing “shame” from my own Benches. I want to make sure that I remedy that fact and get up to Cumbria. It is clearly a very nice place.

It does not need to be the case that councils split the commissioning of adult social care and social services. Even though they are split into two county councils, they can commission together. As a local authority leader I did that myself, as part of the late lamented tri-borough arrangements, whereby the commissioning of adult social care and elements of children’s social care happened collaboratively with neighbouring London boroughs. I am sure that could happen in Cumbria as well. So where there is a will, there is a way and I am sure the leaders of the two new local authorities will seek to build bridges rather than erect walls.

Motions agreed.

Building and Fire Safety: Leaseholders

Lord Greenhalgh Excerpts

Monday 14th March 2022 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and in doing so I refer the House to my interests as set out in the register.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

Leaseholders living in their own properties in buildings over 11 metres will be protected from all cladding remediation costs. The Building Safety Bill will require developers to pay to fix historical building safety defects in buildings they own above 11 metres. We will legislate to make sure that other building owners who can afford to pay cannot pass historical building safety defect costs on to leaseholders. Leaseholders who are liable to pay for some non-cladding costs will have those capped in a way similar to Florrie’s law.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Lord for his response and for the progress made, and I accept that good progress has been made. However, the situation remains that there are general building safety issues and some of these leaseholders are still left in appalling situations. Does the noble Lord accept the principle that if you are not responsible for the poor workmanship, you never signed it off as satisfactory and you did not insure it, you cannot be expected to pay for what is now deemed not fit for purpose? If he accepts that, he is the one person who can do something about it. He is the Minister responsible and has the ear of the Prime Minister, so what are we going to do?

[Lord Greenhalgh (Con)]

My Lords, I thank the noble Lord for putting me in the hot seat. We have done an awful lot. It is fair to say that through regulation we can ensure that we protect leaseholders, who are very much the victims, from bearing anything apart from, I hope, very minimal costs. Those have been capped at £15,000 over five years in London and £10,000 outside London. That is for the narrowest shoulders, particularly shared owners, who are protected as well. We can always do more, and I appreciate that that campaign reckons that we should take this down to zero. However, we continue to ensure that we protect leaseholders wherever we possibly can.

[Lord Young of Cookham (Con)]

My Lords, I welcome what my noble friend just said but I remind him of what the Secretary of State in another place said on 10 January:

“First, we will make sure that we provide leaseholders with statutory protection … and we will work with colleagues across the House to ensure that that statutory protection extends to all the work required to make buildings safe.”—[Official Report, Commons, 10/1/22; col. 291.]


I welcome the amendments that my noble friend has tabled in Committee but does he recognise that further substantial amendments will be necessary on Report if that commitment is to be honoured?

[Lord Greenhalgh (Con)]

I thank my noble friend for stepping in helpfully. Of course, as we approach Report, the Government will bring forward further amendments that will do more to protect leaseholders but will also ensure that the polluters must pay—my noble friend and I share that principle.

[The Lord Bishop of St Albans]

I join other noble Lords in thanking the Minister for the considerable progress he has made and his very collaborative approach as we work through the Building Safety Bill. He will be aware that the definition of a qualifying lease in the Bill is set to exclude many small private landlords. We are not talking about the big commercial set-ups but people who have one, two or possibly three flats which they bought simply to provide themselves with a pension. Do Her Majesty’s Government intend to look at that definition of a qualifying lease again? Many of those people are deeply worried at the moment.

[Lord Greenhalgh (Con)]

I thank the right reverend Prelate, who has also been a consistent campaigner. As a Government we are very much aware of the impact this has on, say, pensioners, where property is their primary pension asset and the annuity from those properties effectively pays for their pensions. As I say, I ask the right reverend Prelate please to wait until we bring forward further amendments on Report, but we are very alive to this issue.

[Lord Newby (LD)]

My Lords, the Minister reminds us that the Government propose that leaseholders should pay no more than £15,000—in London. Does he accept that, if you live in London and are facing very heavy costs, including rapidly rising energy bills, for many people who will be faced with a bill of £15,000, that is not nothing or little—it is a crippling amount? Does he accept that limiting it to £15,000 does not relieve the pressure on many people who simply cannot afford £15,000?

[Lord Greenhalgh (Con)]

My Lords, there is no doubt that £15,000, paid over five years, is a substantial sum, but the reality is that some poor leaseholders who are victims have paid far more than that on interim measures before a single bit of remediation has been done. Having a cap on leaseholder costs ensures that they are no longer fleeced through Section 20 notices to pay for mistakes for which they are not responsible. That is what that protection achieved and, through regulation, we can broaden the impact to protect those with the very narrowest of shoulders.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, we have a problem going forward, because cladding, if it is put in properly, can be an option to make older houses thermally efficient. Have the Government thought about reassurance measures so that cladding remains an option for, for example, all the thousands of pre-1930s buildings?

[Lord Greenhalgh (Con)]

That is a very good point: cladding per se is not necessarily a bad thing. What we cannot do is wrap our buildings up in cladding where the effect on the spread of fire is a bit as if it had been coated in petrol. Cladding provides the warm homes that many people enjoy. If you carry out remediation in an insensitive way, it removes the protection for leaseholders in the insulation required to make the home liveable. Therefore, remediation needs to be done in a sensible and thoughtful manner with people who are living in their homes. Of course, we need to ensure that we promote good cladding systems and remove the bad.

North Yorkshire (Structural Changes) Order 2022

Lord Greenhalgh Excerpts

Wednesday 9th March 2022 Grand Committee

Moved by

[Lord Greenhalgh]

That the Grand Committee do consider the North Yorkshire (Structural Changes) Order 2022.

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, this order was laid before this House on 24 January 2022. The other place approved it on 22 February 2022. If approved by this House and made, it will implement a locally led proposal submitted by North Yorkshire County Council for a single unitary council for the whole of North Yorkshire county.

In my introductory words for the Cumbria order, I set out the Government’s views on the benefits of strong local leadership. The order will establish for the people of North Yorkshire a new single unitary council. Implementing this proposal and establishing this unitary authority will enable stronger leadership and far greater engagement both at the strategic level and with its communities at the most local level. The order will also pave the way, as envisaged in the levelling-up White Paper, for a significant devolution deal involving a directly elected mayor for North Yorkshire together with York.

I set out the full detail of the process for all three areas undergoing unitarisation in my previous speech regarding Cumbria. I will not repeat the detail of the invitation, the criteria or the dates of the statutory consultation here, but will highlight the matters specific to North Yorkshire. When issuing the invitation to the principal councils to submit proposals for unitary local government, the then Secretary of State, my right honourable friend the Member for Newark, Robert Jenrick, invited City of York Council alongside North Yorkshire County Council and its seven district councils. Two locally led proposals for local government reorganisation in North Yorkshire were received, one for a single unitary council and one for two unitary councils.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister again for his introduction to this draft statutory instrument and other noble Lords for giving me so much in-depth information about North Yorkshire. It has been very interesting to listen to the debate.

I shall be brief and shall not repeat the questions that I asked earlier. As with the previously instrument, the Secondary Legislation Scrutiny Committee marked this one as being of interest, particularly around the concerns about the implementation of criteria in decision-making. The Minister went into that in his previous answer about Cumbria, and the noble Baroness, Lady Pinnock, has talked about it, so I shall not go into any more detail.

One thing that has been particularly interesting in the debate, which is important in Cumbria as well, is the issue around identity. People talked about Ripon, Scarborough and Harrogate, and how different parts of North Yorkshire are distinct areas. The thing that I am interested in is how we ensure that they continue to have a distinct ownership of place and locality, as well as services. How can they have a genuine say in what is happening going forward, to ensure that, as we move from one council set-up to the new unitary, there is no democratic deficit? The noble Lord, Lord Jopling, talked about constituency committees, but I imagine that those are quite large groups. Of course, the noble Baroness, Lady McIntosh of Pickering, drew our attention to the fact that there were 159 district wards. That is a lot—and I imagine that there are probably more parish councils within that. It is important that powers are not just devolved up to the new body but that there is strong interplay between local communities and the new council being set up. That is something that has come across very strongly to me in the debate—that this is important to local people. I am sure that the Minister will have taken it on board.

The noble Lord, Lord Newby, also talked about the importance of resources, which will obviously be critical, but I would also be interested to know whether there are any investments that need to be transferred or budget surpluses or debt that need to be consolidated. We know that local government has had serious cuts over the past decade, so there may well be debts that need to be resolved. I would be interested to hear about that from the Minister, and whether it is likely to cause any difficulties.

The noble Baroness, Lady McIntosh of Pickering, also raised concerns about what could happen if there was a metro mayor for the area, and her concerns around the pressures put on local authorities and people that this is the route that they have to go down to get the sufficient resources and funding that everyone has been talking about. Having lived in rural Cumbria, I totally appreciate that having a metro mayor for a large rural area is not the same as having one for an urban area, and that really needs to be taken into account. I would be very interested in the Minister’s reply on that as well.

Finally, the noble Lord, Lord Newby, seemed to imply that North Yorkshire was bigger than Cumbria in every way. I would just like to say that we have some rather large mountains. I am sure that, if we took all the area of the mountains into account, we would probably have more than North Yorkshire.

[Lord Greenhalgh (Con)]

My Lords, this debate has shown a humongous knowledge of North Yorkshire. I remember a school visit to Scarborough and many conferences in Harrogate, but I have a fleeting knowledge of some of the places mentioned by noble Lords. I thank my noble friend Lord Jopling. In these debates, I have never had covering fire as effective as that provided by him, and I wish that he turned up to every statutory instrument that I had to deliver. I would ask him to please be here more often, with his forensic knowledge of every single part and corner of this country, from Cumbria to North Yorkshire. It is stupendous in every respect.

Noble Lords very helpfully said that there was unanimity of support from MPs representing constituencies in North Yorkshire for this proposal, and it is tremendously helpful to know that. In response to the noble Baroness, Lady Hayman, it actually preserves the service delivery over a county-wide area and has an established local identity which is easily understood by residence. It maintains the brand of North Yorkshire. That is important as well, and I think it is recognised by the MPs who have been elected in constituencies within North Yorkshire. It also aligns with arrangements in existing public sector partnerships and will allow existing relationships and partnership working to be maintained without disruption.

Responding to my noble friend Lady McIntosh of Pickering, when we hear a number such as 4,300, those are not individuals. Very often they are small, medium and large-scale organisations responding to the consultation. Of course we can always make consultations more effective, but we need to see individual responses from groups, not just the individual citizens of North Yorkshire.

I thank the noble Baroness, Lady Pinnock, for reminding me on the criterion of size that I was leader for only 16 years of my life in a terribly small London borough. She is always tremendously helpful in pointing these things out. We have a population approaching the size of Bern in Switzerland, and it has its challenges, but none the less, I agree with her that it is far smaller than North Yorkshire. The whole of Yorkshire, in aggregate, seems to envelope the vast majority of the north of England. All I will say is that Lancashire has definitely lost the Wars of the Roses when it comes to geography and scale.

However, the criterion is not simply around numbers. The criterion makes a specific point that a credible geography can be outside the 300,000 to 600,000 range if its population is a figure which, having regard to the circumstances of the authority, including local identity and geography, could be considered substantial. I am happy to set that out in writing if the noble Baroness, Lady Pinnock, wants to understand the issues, but there is a tolerance around the 300,000 to 600,000 figure, in essence. I do not need to write that out.

I enjoyed most the speech by the noble Lord, Lord Newby, which pointed out the horrendous antagonism between Ripon and Harrogate. It is true. My father grew up in Derbyshire and pointed out that there is sometimes antagonism between Long Eaton and Ilkeston. That is just the reality of where we are. You can see it in any part of continental Europe as well; villages that abut each other are often big rivals. Dare I say that it was ever thus?

I thank again my noble friend Lord Jopling for his covering fire. He invoked the name of Councillor Carl Les, who I had not heard of, but I now know is leader of North Yorkshire County Council and is clearly known by the noble Baroness, Lady Pinnock. His assurance that there is an intention to have that strategic authority but to devolve power and responsibility to town councils is incredibly helpful because the unitary will send that funding flow down to the town. Not every leader should be held at the centre. He has strong decentralising and devolutionary instincts, and it is tremendously helpful to have that assurance.

My noble friend Lady Pickering let me know that she would ask about the mayoralty. This order, in and of itself, allows a mayoralty to happen but does not impose it. I assure her that the introduction of a mayoral combined authority and devolved powers requires local support, but it is understood that any such move would require a full public consultation run by the area. A summary would then be submitted to the Secretary of State, who must be satisfied that there has been adequate consultation, so there is that proviso.

[Baroness McIntosh of Pickering (Con)]

My Lords, what is the timeframe and is the public consultation more than just online, as in the unitary?

[Lord Greenhalgh (Con)]

Regarding how the consultation is conducted, I will have to respond to my noble friend in writing. Regarding timeframes, I think they will probably be indicative from other areas, but again it must come from the bottom up, as opposed to the top down. I understand that there is some strong support in the local area for potentially having a mayor, but I will set all that out in a letter.

The last question concerns assets and debts. Within the current structure, although the top layer does not change, all the assets and debts essentially transfer to the unitary. All the assets, liabilities and debts just transfer, so that is a very simple matter.

We have had a very interesting debate. I continue, lord-lieutenant or not, to become a more rounded exponent of the virtues of local government in different parts of the country. I thank noble Lords for their contributions.

Motion agreed.

Cumbria (Structural Changes) Order 2022

Lord Greenhalgh Excerpts

Wednesday 9th March 2022 Grand Committee

Moved by

[Lord Greenhalgh]

That the Grand Committee do consider the Cumbria (Structural Changes) Order 2022.

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, this order was laid before this House on 24 January 2022. The other place approved it on 1 March. If approved by this House and made it will implement a proposal submitted by Allerdale and Copeland councils for two new unitary councils on an east/west geography, covering the entirety of Cumbria, to be known as Cumberland council, and Westmorland and Furness council, respectively.

This order will establish for the people of Cumbria two new unitary councils. Implementing this proposal and establishing these unitary authorities will enable stronger leadership and engagement, at the strategic level and with communities at the most local level. It will pave the way, as envisaged in the levelling-up White Paper, for a significant devolution deal, involving a directly elected mayor for Cumbria, if that is an option which local leaders wish to pursue.

This locally led process for reform began on 9 October 2020, when the then Secretary of State, my right honourable friend the Member for Newark, Robert Jenrick, invited the principal councils in Cumbria to put forward, if they wished, proposals for replacing the current two-tier system of local government with single-tier local government. That invitation set out the criteria for unitarisation.

Unitary authorities will be established that are likely to improve local government and service delivery across the area of the proposal, giving greater value for money, generating savings, and providing stronger strategic and local leadership, and which will be more sustainable structures. They will command a good deal of local support as assessed in the round, and where the area of each unitary authority is a credible geography consisting of one or more existing local government areas with an aggregate population which is either within the range 300,000 to 600,000, or such other figure that, having regard to the circumstances of the authority, including local identity and geography, could be considered substantial.

Four locally led proposals for local government reorganisation in Cumbria were received in December 2020—one for a single unitary and three for two unitary councils. Before deciding how to proceed, the Government consulted widely. Around 3,200 responses were received by the Government in response to their statutory consultation on the Cumbria proposals. This consultation was launched on 22 February 2021 and ended on 19 April 2021. Of these responses, some 2,400—73% of the total responses—were from residents living in the area affected.

There was a very good deal of local support for local government reorganisation across the categories of respondents, from residents, local authorities, public sector providers, parish councils and the business sector. However, across these categories, there was a spread of responses in favour of each proposal. This meant that each proposal had some support. The east/west proposal had the support of local businesses, especially in relation to supporting the diverse nature of local economies better, particularly the advanced manufacturing base and supply chain around Sellafield. There was some resident support for the east/west proposal, with those in favour considering that the new authorities would be more accessible local organisations, better able to respond to local needs. Among local government organisations, there was a view that the geography of the east/west proposal would ensure equal levels of population density across the two proposed new council areas and that this would contribute to a balanced service delivery, including addressing deprivation, and credible geography.

Based on the consultation responses, the Secretary of State considered that, if implemented, the east/west proposal would command a good deal of local support, as assessed in the round overall across the whole area of the proposal, and that the criterion had been met. In considering the locally led unitary proposals against our long-standing assessment criteria, he concluded that the north/south proposal did not meet the credible geography criterion, that the bay proposal did not meet the improving local government and service delivery and credible geography criteria, and that while the county council’s proposal for a single unitary met the three criteria, the east/west proposal was more appropriate on grounds of geography.

Noble Lords will recall that my right honourable friend the then Secretary of State announced his decisions on the proposals. A Written Ministerial Statement was made on 21 July 2021, which I repeated in this House. In reaching this decision, my right honourable friend made a balanced judgment, assessing all the proposals against the three criteria to which I have referred and which were set out in the invitation on 9 October 2020. He also had regard to all representations received, including responses to the consultation, and to all other relevant information available to him. He concluded that the east/west unitary proposal for Cumbria met all three criteria.

The Government believe that there is a powerful case for implementing this locally led proposal for change. The east/west unitary proposal will improve local government for half a million people in Cumbria by enhancing social care and safeguarding services through closer connection with related services such as housing, leisure and benefits. It will also improve local government by offering opportunities for improved strategic decision-making in such areas as housing, planning and transport. It will provide improvements to local partnership working with other public sector bodies by aligning with arrangements in existing public sector partnerships.

The proposal will generate savings estimated by the Allerdale and Copeland councils in their unitary proposal of between £19.1 million and £31.6 million per annum; this is a wide spread, and the savings actually achieved will depend on the new councils. These are savings that can be reinvested for the improvement of local services; they are not cuts in service provision. It will also deliver proposals aimed at maintaining and strengthening local community identity, and integrate local services, while reflecting the challenges of rurality in the areas of both new unitary councils. If Parliament approves this order, there will be, from 1 April 2023, two unitary councils for Cumbria delivering the improvements I have just outlined.

In response to an issue raised previously by the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Campbell-Savours, I put on the record, categorically, for the avoidance of any scintilla of doubt, that if this order is approved and Carlisle City Council is abolished, the city status of Carlisle will be preserved. My officials are already working with the officers of Carlisle to ensure that we follow past precedents for maintaining city status. The arrangements for maintaining city status will be to establish charter trustees. The council has asked us to do this, and we have agreed.

We have prepared this order in discussion with all the councils concerned. I take this opportunity to thank everyone involved in this process, and for their work undertaken together constructively and collaboratively, notwithstanding the county council’s leader seeking a judicial review, for which the courts refused permission on 22 February.

Our discussions with the councils have included transitional and electoral arrangements. These are key to how the councils will drive forward implementation. Where there has been agreement between all the councils, we have adopted their preferred approach. Where there were different views as to the detailed way forward, the Secretary of State has considered all the differing views and reached a decision accordingly.

Turning to the detail of the order, I will highlight the key provisions. The order provides that on 1 April 2023 the districts of Allerdale, Barrow-in-Furness, Carlisle, Copeland, Eden, and South Lakeland, and the county of Cumbria, will be abolished. The councils of those districts and county will be wound up and dissolved. In their place, the functions will be transferred to the new unitary Cumberland council and Westmorland and Furness council. I add that the order ensures there is no change to the ceremonial county of Cumbria, and hence the roles and responsibilities of the lord-lieutenant and high sheriff of the county of Cumbria are unaltered.

The order also provides for appropriate transitional arrangements. These include that in May 2022 there will be elections for the new unitary councils, which will assume their full powers from 1 April 2023. These elections will be on the basis in Cumberland of a 46-member authority, with 46 single-member wards, and in Westmorland and Furness a 65-member authority with 33 wards of between one and three members. Subsequent elections to the unitary council will be in May 2027 and every four years thereafter. We expect that the Local Government Boundary Commission for England will undertake a full electoral review before the May 2027 elections. Parish council elections will remain unchanged. There will be a duty placed on all existing councils to co-operate during the transitional period until 1 April 2023.

There is also provision in the draft order relating to the establishment of a combined authority for Cumbria. I can make it clear that these are designed to be enabling powers for the shadow authorities to be able to do necessary preparatory work if they so wish. We thought that this was prudent, given that the establishment of a combined authority was mentioned in the unitary proposals. The inclusion of these provisions does not represent a requirement for the shadows to pursue arrangements for a combined authority.

If this order is approved and made, to support councils in the transitional period until 1 April 2023, we intend to use our powers under the Local Government and Public Involvement in Health Act 2007 to issue a direction. This direction would replace the voluntary arrangements which the Cumbria councils have already adopted about entering into contracts and the disposal of land during this transitional period. This is in line with the approach adopted in most previous unitarisations. This will ensure that the new unitary councils have appropriate oversight of the commitments that predecessor councils may enter into during the transitional period and which the new unitary councils will take on from 1 April 2023. Before issuing any such direction, we will invite councils’ views on a draft.

Finally, with sincere apologies, I must draw the Committee’s attention to the correction slip issued to correct a minor error in Part 2 of the Schedule of the draft order, which lists the existing wards that will go to make up the new wards of Westmorland and Furness council. This is to correct the name of an existing ward in the new High Furness ward, currently shown as “Dunnerdale-with-Seathwaite (Part)”. It should be shown as simply “Dunnerdale-with-Seathwaite”. We are very sorry indeed for this minor error in the original text of the draft order.

In conclusion, through this order, we are seeking to replace the existing local government structures in Cumbria, which were set up in 1974, with two new councils that will be able to deliver high-quality, sustainable local services for the people of Cumbria. These unitary councils will be able to provide stronger and more effective leadership at both the strategic and most local levels. This will open the way for a significant devolution deal if local leaders want this, as referred to in our levelling-up White Paper. I commend this order to the Committee.

[Lord Henley (Con)]

My Lords, I start by thanking my noble friend for the fact that he is going to preserve the city status of Carlisle. I think that will be welcomed on all sides. I was born there 60-something years ago, and am very grateful that its city status shall be continued. I also declare an interest, first, as a Cumbrian, but secondly, as an active member of Penrith and The Border Conservative Association. I refer to that because the Penrith and The Border constituency is the one constituency that will straddle the two new authorities—I think that is correct, but no doubt others will correct me if it is not. I want to ask my noble friend about the electoral arrangements we will face in May because, as he made quite clear, we will be electing the shadow authority, which will then take over as the substantive authority in April 2023. At some time after that, as my noble friend made clear, the boundary commission will get into action and produce new boundaries for the various wards or divisions—I am not sure how we shall refer to them—in both authorities. But for the elections, we are going to have to deal with rather arbitrary selected wards or divisions in both authorities.

I do not know what the numbers on the two councils will be in future, once the boundary commission has done its work. Initially, and for the first five years of the two shadow authorities, the western division, which will be referred to as Cumberland, will use the existing county council divisions. Therefore, as I understand and remember it, there will be 42 councillors, one for each division, in that authority.

--- Later in debate ---

Of course, the Government could always think about this. I am sorry if I am going on too long, but these are very important matters.

[Lord Greenhalgh (Con)]

No, you are landing them—keep going.

[Lord Liddle (Lab)]

Okay. I am trying to explain that there are serious risks in what is now planned. A pause could well be necessary. I do not see any problem with the Government revising their plans. What will happen if it becomes clear that the current timetable is not workable? The Government need to form a judgment on this quite quickly. I am not advocating this for any personal reason, but they could keep the county council going for longer than another year so that there would be more time to plan for the division of services, which would then have some prospect of stability.

In the light of their Levelling Up White Paper, which came after this proposal was made, the Government could think about keeping a single unitary authority in Cumbria but doing a deal with that council that it will have an elected mayor. I am not against elected mayors in principle; I am actually rather in favour of them. I think they have worked quite well in metropolitan areas. In the Levelling Up White Paper, if you are going to get maximum devolution of power, you have to have an elected mayor to achieve that. Why not put that proposal to Cumberland, to a united Cumbria, and see whether it would be acceptable?

I am very worried about what is happening, not from a party-political point of view, but simply from the point of view of how all this is going to work in practice. I hope that the Minister might take away what I have said and have a think about it.

--- Later in debate ---

[Lord Greenhalgh (Con)]

My Lords, I am ashamed to say that in my time on this earth, I have not set foot in glorious Cumbria, so I have learned an awful lot. One thing that I will take away is that I must visit the place. I understand that it is very rural. It is quite interesting to note how the geography is such that there are natural divisions too. That was set out incredibly helpfully by my noble friend Lord Jopling.

I always enjoy the experiences that noble Lords bring to bear. I listened very carefully to the speech from the noble Lord, Lord Liddle. However, I am calculating, at 59 minutes and 38 seconds, and having had quite a late night the night before, when we are likely to finish these three statutory instruments. However, I will do my best to respond.

My understanding of the point around preserving the city status of Carlisle is that Cumbria simply did not ask for it, whereas North Yorkshire did. It is just a process of responding to the customer, rather than an intention not to do it. Therefore, the assurance is very sincere. We will produce whatever orders that we must. It has been written out, so we have that assurance that the process will go ahead irrespective of what we have set out in the order. It does not have to be done in the same way to get to the same end point. Noble Lords have had my assurance at the Dispatch Box. It is clear that the councils want that, so it is not a problem.

I have some experience in delivering council services, so I will respond directly to the central point made by the noble Lord, Lord Liddle. Philosophically I agree with him that where possible you build bridges rather than walls, and that with services such as adult social care, which is typically about a third of a council’s budget, you had better not split the overhead of commissioning the service, but it is very possible. For instance, when I was the leader of the council in Hammersmith and Fulham we had a voluntary arrangement with neighbouring councils to bring together the commissioning of adult social care across three London boroughs, but we had very different entry criteria into the social care system. You could save on the overhead by collaborating with other councils but have very different criteria. I am very proud that my council had the best entry criteria into the social care system, extending right through to people in greater moderate need, which is very rare in local government these days, particularly with the increasingly ageing population. Therefore, you can do both if you want to. That requires local leadership, above all, but there is nothing in this structure, east/west, that would stop that sort of arrangement taking place as a possible outcome, where you can create two different entry points but share the overhead of the delivery of the service.

I really appreciated the point made by my noble friend Lord Jopling. The reality is that the units of local government, if we think strategically, become awfully large. A stat that is not in my speaking notes but which really interests me is that the average unit of local government in Switzerland is 3,733. In the United States it is 8,333. In Germany, it is 7,454. In the United Kingdom, it is 155,000. Therefore, I have great sympathy with the point raised by the noble Lord, Lord Shipley, that we must ensure that we do not forget the tiers, the town and parish councils, and their contributions to their local areas, particularly more rural areas as opposed to cities. There is no intention of changing that structure from this order. I give that reassurance. It is about ensuring that the funding flows down through local government to the lowest tier. Sometimes it does, sometimes it does not, but we are not changing that structure in this order. I note the important contribution that parish and town councillors make to their local area.

I will respond directly to the noble Baroness, Lady Hayman, who speaks with great experience of Cumbria—I have admitted my own failings in that regard. I understand that the criterion is not about a majority: it is whether there is a good level of support. In this case, two proposals had a good level of support. It is not a referendum, where you win if you get more votes. That is essentially the answer to that question. In the round, there are three criteria and then you form a judgment. I tried to set that out as best I could in my speech. Any Government will take those three points and form a view. There are pluses and minuses for different routes, and the Secretary of State took a decision in the round on the three criteria that I set out in my speech.

I was worried by some of the comments about elections, but I assure noble Lords—and the noble Lord, Lord Shipley, in particular—that elections to the new unitary authorities will take place as scheduled in May 2022. The councils will be in shadow form until they take on their new, full powers on 1 April 2023, and they will serve until May 2027. We are on track to deliver that. In response to my noble friend Lord Henley and the noble Lord, Lord Shipley, the order provides for the returning officers for the May 2022 elections, so we can be confident about the administration of those elections. The May elections will go ahead; we are on track for that. That is very important, given that, presumably, candidates are out there pounding the streets already.

My noble friend Lord Henley asked why 65 and why the wards are as they are. The warding arrangements are a local choice, and councils in both areas made their choices. It has been very much a bottom-up process. These arrangements are for the 2022 elections only. As I know from my experience in local authorities, the Electoral Commission will review ward boundaries and so forth, and then there will be representations, but this has been very much a bottom-up process.

I now have a series of attempts to respond to the very many points raised by the noble Lord, Lord Liddle. Candidly, I am unlikely to succeed in answering every question. If he wants to approach me afterwards, I will do my best to get a full response.

I have addressed the central issue, which is that you can split into two councils but not necessarily split services. It is also fair to say that many of the services are area-based and they may be a smaller part of the budget. Sometimes it is better to recognise that fact. Universal services are often organised on area lines, and so forth; it depends on the service areas of the council.

The noble Lord, Lord Liddle, invited me to comment on something said in the other place by my current boss, rather than my previous one. We do not have that interpretation when he said the word “yes”, which has been interpreted as there being great support for a particular person, as opposed to imposing mayors on a particular place. It is all down to interpretation. Of course, you cannot impose a mayor on a particular area, but yes, there is support for a particular candidate—if there were a mayor.

[Lord Liddle (Lab)]

Since this has caused quite a lot of local confusion, I ask that the Minister writes a letter to that effect explaining what Secretary of State Gove meant.

[Lord Greenhalgh (Con)]

I think I have my “get out of jail free” card. I will write a very careful note responding to the point raised on the debate in the other place and ensure that I lay a copy in the Library.

I move on to a topic that I know a little bit better. I have spent just up to two years as Fire Minister now, which is actually quite a long time to survive as a Fire Minister for England, which includes Cumbria. We are about to launch a White Paper looking at reforming fire and rescue services. I assure people that we have thought very carefully about governance models that enable a move from the scrutiny-based arrangements we have typically seen to a more executive-based arrangement. That provides a county council model, as well as a PCC and mayoral model where appropriate. You can get single-person leadership and accountability through different governance models.

The PCC is currently consulting on fire going to the PCC. He needs to consult. Local people will have their say on that. Time will tell where we end up there, but that is the status at this time. We recognise the need to continue investing in our fire and rescue services to ensure that response times are effective and that we continue to see the downward trend in fires, as well as investment in capability, because they do so much more than that as a fire and rescue service, dealing with flooding and other events of considerable concern to the people of Cumbria.

I move on to the ceremonial points raised by my noble friend Lord Jopling. Everyone seems to have a special interest in the lord-lieutenancy, or the deputy lord-lieutenancy, whether current or past. We leave that alone with this order, so the current arrangements remain as they are. It is a matter for the Crown if it wishes to change the arrangements to reflect the new east/west divide. I am delighted that one of the benefits is to reinstate the proud status of Westmorland, as my noble friend raised. That is a matter for the Crown rather than the state, if you like, but it could come to pass. This order does not push that one way or the other.

Just for completeness—this will be my last point—in response to my noble friend Lord Jopling, the Kendal mayor is the mayor of Kendal Town Council. There will be no change to this town council or any other existing town council, as I said in response to the noble Lord, Lord Shipley.

This order seeks to respond to the local area. I say to people of clear Cumbrian heritage, who have served the people of Cumbria, that in essence the order will largely restore a structure that local people will recognise, which will provide much benefit and, I hope, stand the test of time.

Motion agreed.

Somerset (Structural Changes) Order 2022

Lord Greenhalgh Excerpts

Wednesday 9th March 2022 Grand Committee

Moved by

[Lord Greenhalgh]

That the Grand Committee do consider the Somerset (Structural Changes) Order 2022.

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, this order was laid before this House on 24 January 2022. The other place approved it on 28 February. If approved by this House and made, it will implement a proposal submitted by Somerset County Council for a single unitary for the whole of the Somerset County Council area.

In my introductory words for the Cumbria order, I set out the Government’s views on the benefits of strong local leadership. This order will establish for the people of Somerset a new single unitary council. Implementing this proposal and establishing this unitary authority will enable stronger leadership and far greater engagement at the strategic level and with its communities at the most local level. While Somerset is not among the areas for an early county deal, we will continue discussions with Somerset about a future devolution deal. The reform for which the order provides can help pave the way for such a deal.

I set out the full detail of the process for all three areas undergoing unitarisation in my speech regarding Cumbria. I will not repeat the detail of the invitation, criteria or dates of the statutory consultation here but will highlight the matters specific to Somerset. When issuing the invitation to the principal councils in Somerset to submit proposals for unitary local government, the then Secretary of State, my right honourable friend the Member for Newark, Robert Jenrick, also wrote to the neighbouring unitary councils of Bath and North East Somerset and North Somerset. Two locally-led proposals for local government reorganisation in Somerset were received in December 2020, one for a single unitary council and one for two unitary councils.

Turning now to the responses to the statutory consultation, we received almost 5,500 responses on the Somerset proposals. Of them, 5,167 responses, 94% of the total, were from residents living in the area affected. Both proposals received of a good deal of support. Some 3,000 residents, or 57% of those who responded, supported the two unitary councils option, while some 2,000 residents, or 35% of those who responded, supported the single unitary option. Some 72 % of respondents from the business sector supported the single unitary option and 88% of respondents from other public service providers also supported that option.

The district councils in Somerset ran a poll of residents about the unitary proposals. My right honourable friend had regard to the results of that poll and the representations he received about the way it was conducted. In essence, the poll showed similar levels of resident support as the consultation. Namely, there was a good deal of support for both proposals, with greater support from residents for the two unitary proposal.

However, I stress that the decision about the proposals is not a decision on the basis of any form of poll or referendum, nor is it on the basis of which proposal is most popular among a group of consultation respondents. It is a decision on the basis of the criteria to which I have referred and which were set out in the invitation of 9 October 2020.

Noble Lords will recall that my right honourable friend the then Secretary of State announced his decision on the proposals. A ministerial Statement setting this out was made on 21 July 2021, which I repeated in this House. In reaching this decision my right honourable friend made a balanced judgment assessing both proposals against the three criteria to which I have referred. He also had regard to all representations received, including responses to the consultation, and to all other relevant information available to him. He concluded that the two unitary proposal did not meet the criterion of improving local government and service delivery across the area. He also concluded that it did not meet the credible geography criterion. He concluded that the single unitary proposal for Somerset met all three of the criteria set out in the invitation of 9 October.

The Government believe that there is a powerful case for implementing this locally-led proposal for change. It will improve local government by enhancing social care and safeguarding services through closer connection with related services such as housing, leisure and benefits. It will improve local government by offering opportunities for improved strategic decision-making in areas such as housing, planning and transport. It will provide improvements to local partnership working with other public sector bodies and generate savings, estimated by the county council to be £52.6 million over five years. It will preserve service delivery over a county-wide area that has an established local identity and is easily understood by residents and provide a single point of contact so that residents, businesses and local communities will be able to access all council services from one place. If noble Lords approve this order, there will be, from 1 April 2023, a single unitary council for Somerset delivering the improvements I have just outlined.

We have prepared this order in constructive and collaborative discussion with all the councils concerned. I would like to take this opportunity to thank everyone involved in this process. Our discussions with the councils included the transitional and electoral arrangements. They are key to how the councils will drive forward implementation. Where there has been unanimous agreement between all the councils, we have adopted their preferred approach. Where there were different views about the detailed provisions, my right honourable friend the Secretary of State considered all differing views and reached a decision accordingly.

Turning now to the detail of the order, I shall highlight the key provisions. The order provides that on 1 April 2023 the districts of Mendip, Sedgemoor, Somerset West and Taunton and South Somerset will be abolished. The councils of those districts will be wound up and dissolved. In their place, their functions will transfer to the new unitary Somerset Council. The order also provides for appropriate transitional arrangements including that in May 2022 there will be elections for the new unitary council, which will assume its full powers from 1 April 2023. These elections will be on the basis of a 110-member authority with 55 two-member electoral divisions. Subsequent elections to the unitary council will be in May 2027 and every four years thereafter. We expect that the Local Government Boundary Commission for England will undertake a full electoral review before the May 2027 elections. Parish council elections due in May 2023 will be brought forward to May 2022 to align with the unitary council election cycle. A duty will be placed on existing councils to co-operate during the transitional period until 1 April 2023.

As I set out in the previous debates, we intend, if this order is approved and made, to issue a direction. This direction would ensure that the new unitary council has appropriate oversight of the commitments that predecessor councils may enter into during the transitional period and which the new unitary council will take on from 1 April 2023. Before issuing any such direction I will be inviting councils’ views on a draft.

In conclusion, through this order we seek to replace the existing local government structures that were set up in 1974 in Somerset with a new council that will be able to deliver high-quality, sustainable local services to the people of Somerset. This council will be able to provide effective leadership at the strategic and most local levels. All the existing councils have made clear they share these aims and are committed to the very best services for Somerset residents. This order delivers this, and on that basis, I commend this order to the Committee. I beg to move.

[Lord King of Bridgwater (Con)]

My Lords—

--- Later in debate ---

[Lord Greenhalgh (Con)]

My Lords, this is almost like a well-oiled relay. First, we had my noble friend Lord Jopling stepping in to provide covering fire. Then we had my noble friend Lord King of Bridgwater, with his Somerset credentials, stepping in to cover my lack of them. I went to a school in Somerset once—I think Blundell’s is in Somerset—and I did a prize-giving there, but that was about the first time.

[Lord King of Bridgwater (Con)]

Blundell’s is in Devon.

[Lord Greenhalgh (Con)]

Is it in Devon? Gosh, that was not particularly good; I am probably not best placed to sell the virtues of Somerset. I wanted to say that I learn something every time, such as the fact that my noble friend was a Local Government Minister under the noble Lord, Lord Heseltine. You succeeded him, did you not? That was your first Cabinet position and you continued to serve with great distinction, for almost a decade, in the Cabinets of Margaret Thatcher and John Major. Each time I see my noble friend I am reminded of “Spitting Image”; he has not changed a bit in all those years, I have to say.

Most importantly, my noble friend raised the issue that Governments need to be strategic but also deliver. As someone who has served in the town hall, in City Hall and now as a Minister, I absolutely recognise that. It is possible to do both. It is possible to be strategic and focus on delivery. That is what local leadership is all about. That is what I would say in response to my noble friend.

It has been very difficult to listen to some of the passages from the noble Baroness, Lady Pinnock, because I was being lectured by someone from Yorkshire about Somerset and about Hammersmith and Fulham. In response to her and the noble Baroness, Lady Hayman, I would say that the process was done properly. The key point is that both options had a great deal of support in Somerset. As I set out in some detail for the first statutory instrument, the three criteria are considered in the round. Residents are central to the criteria that have led to this order, in the sense that this reform is all about better delivery of services to the residents of Somerset.

Before I conclude, I will just say that the electoral arrangements are clearly for an election in May 2022. That was proposed by the Somerset councils. There will be a review by the Local Government Boundary Commission for England before the second election in 2027.

This has widespread support from residents, local businesses, and the voluntary and community sector in Somerset. I commend the order to the Committee.

Motion agreed.

Local Government (Disqualification) Bill

Lord Greenhalgh Excerpts

2nd reading
Friday 4th March 2022 Lords Chamber

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

I thank noble Lords, in particular my noble friend Lord Udny-Lister, for sponsoring this Private Member’s Bill. I also congratulate the honourable Member for Mole Valley, Sir Paul Beresford, for all the work he has done to progress this Bill through the other place. The two of them share one thing in common: they were both leaders of Wandsworth, which is known, by them at least, as “the brighter borough”. I served for 20 years in Hammersmith and Fulham, and learned an awful lot from them and from what they achieved for their local residents. My noble friend has an unrivalled record, certainly when I compare it to mine. As he said in his speech, he served as a councillor for 35 years, with great distinction, and—I do not know how he survived it—19 years as leader of a London borough. That requires some survival instinct; it is quite incredible. Beyond that, he served five years in City Hall, along with the then mayor, Mayor Johnson, before completing the pyramid with two years in Downing Street. It is great that this Bill is sponsored by my noble friend, whom I very much consider a mentor.

The Government support the Bill for three main reasons. First, preventing registered sex offenders from either standing or serving as councillors, mayors or London Assembly members will strengthen communities’ faith and confidence in their elected representatives. Secondly, the Bill delivers on the Government’s stated commitment to bring local government disqualification into line with modern sentencing practice for sexual offences. Thirdly, the electorate has a right to expect that the people who stand and serve to represent them and their local communities are of good character.

The current disqualification criteria for local government candidates and councillors will automatically disqualify anyone for five years if they are convicted of a custodial sentence of three months or more, suspended or not. This rule dates back to the Local Government Act 1972. However, while the existing law is still effective in addressing serious cases of criminal behaviour, it does not take account of the non-custodial sentences the courts now issue for certain categories of sexual offences. This means that some individuals who are convicted and who ought to be disqualified do not meet the current threshold and can therefore slip through the net.

Noble Lords have indicated that they agree with me and the Government that it is quite intolerable that people deemed by the courts to pose a risk to children and vulnerable adults are not barred from serving as members of local authorities. The Bill rights that wrong by updating the law to ensure that only fit and proper persons can stand or serve as locally elected officials. We know, of course, that the vast majority of local authority members serving their communities are of good character, worthy of trust and beyond reproach. But, with some 120,000 councillors in England, there have inevitably been cases in which the behaviour of elected officials has fallen well below the standards the public expect and deserve.

[Lord Campbell-Savours (Lab)]

The noble Lord, Lord Hayward, referred to two excluded categories. Why were they excluded, as this is probably an off-the-shelf Bill?

[Lord Greenhalgh (Con)]

I was going to come to that; I was not going to finish my speech without addressing that point, but I will bring it forward a paragraph or two. The answer to why this does not apply to MPs, as was raised by my noble friend Lord Hayward, or to PCCs, as was raised by the noble Baroness, Lady Goudie, is that standards and conduct for MPs and PCCs are governed under separate regimes, with their own mechanisms to disqualify or sanction unacceptable behaviour. There is currently the power to recall a MP, under certain circumstances, if at least 10% of the constituency electorate signs a petition. I take the general point: this Bill tidies up this issue, but there is another regime in place. I think my noble friend alluded to that point.

I had better resume from where I was. We know that the vast majority of local authority members serving their communities are of good character, worthy of trust and beyond reproach. That is one of the reasons why, in 2018, the Government responded to a consultation to update the local government criteria with a commitment to legislate on this matter. This was, in part, in response to an infamous case in which a parish councillor, shortly after being elected, was convicted of possessing indecent images of children. He was placed on the sex offender register but not given a custodial sentence. Despite repeated calls for him to resign, he refused to stand down and actually remained a parish councillor for the full term. The law as it stands allowed him to continue to do so, but this Bill would prevent such circumstances occurring again.

These new disqualification criteria will protect our communities by barring such individuals from holding office while they remain subject to the notification requirements for sexual offences or subject to a sexual risk order. Where offenders pose such a severe risk to the public that they are subject to indefinite notification requirements, communities can feel safe in the knowledge that such individuals will remain disqualified from elected office for the entire duration.

On its remit with regard to the devolved Administrations, I should state that the Bill applies to England only, as much of local government is devolved. The Scottish Parliament can make corresponding provision and the Welsh Government legislated on this matter last year. That said, since the UK Government retain the responsibility for elections in Northern Ireland, we will work with the Northern Ireland Executive to extend these measures there too, with a comprehensive package addressing the rules that govern both candidates and sitting councillors.

The Government strongly believe that there should be severe penalties for locally elected councillors who break the bonds of trust that hold local democracy together. This Bill puts that principle into practice, while ensuring that local government can continue to command people’s faith and trust, both now and in future. The Government are therefore delighted to support the Bill.

Building Safety Bill

Lord Greenhalgh Excerpts

Committee stage
Wednesday 2nd March 2022 Grand Committee

[Baroness Bloomfield of Hinton Waldrist (Con)]

Yes. We clearly intend to use these powers and we already published draft regulations in October 2021.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

They are draft.

[Baroness Pinnock (LD)]

Are we allowed to see the draft regulations? It would be really useful.

[Lord Greenhalgh (Con)]

They are published.

[Baroness Bloomfield of Hinton Waldrist (Con)]

We will circulate them to the whole Committee.

--- Later in debate ---

[Lord Greenhalgh (Con)]

I have tricked the noble Lord, Lord Khan—I am responding to this one. First, we have not gone around counting every balcony in the country. Given that there are 7,500 medium-rise buildings and about 12,500 high-rises, we have other things to do with our time.

I met the devolved Administrations of Wales and Scotland today; we need to know roughly how many buildings require remediation and then do it as quickly and effectively as possible. There is some way of knowing that with high-rises, and through surveys we have a pretty good grip on the number of buildings where remediation may be required—it is actually very few—as well as mitigation. Increasingly, we want to see more innovation so that we can avoid costly remediation wherever possible.

The noble Baroness, Lady Fox of Buckley, is very clever. I have been trying to distil amendments in up to three words—I have got it down to two on one occasion—and it would be easy to say that this is the “balcony” amendment, but I do not think it is. It is the “proportionality” amendment. It is fair to say that this was addressed when, on 10 January, my right honourable friend the Secretary of State set out some building safety reset principles. He said:

“We … need to ensure that we take a proportionate approach in building assessments overall … too many buildings … are declared unsafe, and … too many … have been seeking to profit from the current crisis.”—[Official Report, Commons, 10/1/21; col. 283.]


The noble Baroness was very eloquent in giving examples of precisely that—where, essentially, an industry is fuelled by trying to profit at the expense of leaseholders, very often, who do not have the shoulders to bear the costs being charged to them. That is why we are putting a number of protections for leaseholders in this Bill, for both cladding and non-cladding costs, which we have discussed in other groups, and the very strong principle that the polluter must pay wherever possible, as we discussed in an earlier group today.

The Government have taken three measures with regard to proportionality. It is important to reflect on them, because they are easily forgotten as we debate things. None is in this Bill; I will turn later to some things that are. First, we withdrew the consolidated advice note of January 2020; that was seen as a driver of decisions to remediate without thought on too many occasions, when it was not necessarily the right way to go. Secondly, after withdrawing the advice note, the publicly available specification was introduced, produced by the British Standards Institution; it will enable fire engineers and other experts to have a consistent and auditable assessment of risk—basically, grading whether something is high, medium or low—of the external wall systems, which sometimes include balconies and sometimes do not. That is an important tool to have to be able to start having sensible risk-based assessment of external wall systems.

[Baroness Fox of Buckley (Non-Afl)]

I have one query on that. I thank the noble Lord for his response, but on the recommendation of high, medium and low risk, everything I have read on this suggests that with high or low risk we know where we are, but medium risk says, “There is some risk, but don’t worry, you don’t need remediation”. The point made in everything I have read is: who will go along with that? If you say that there is medium risk—this is where risk aversion comes in—there is concern that the assessors do not have the expertise, as has been referred to, and may say, “There is medium risk, but can I go home and sleep at night, because I am not quite sure what that means? There might be a risk.” That is where blame avoidance comes in. This comes back to the assessors; I do not think that will solve it.

[Lord Greenhalgh (Con)]

I did not say that it would. The noble Baroness intervened too early; that is the problem with interventions. No one was saying that any single thing—

[Baroness Fox of Buckley (Non-Afl)]

I was just trying to clarify something—that is good.

[Lord Greenhalgh (Con)]

The noble Baroness raises the issue of balconies. I am talking about a system that looks at the external wall system. We then have the Fire Safety Act, which we took through this House. I have all the scars to prove that it was not an easy matter to get that three-clause Bill past a number of the people here today. We got it on the statute book, however, and it will commence shortly with a building prioritisation tool.

The noble Lord, Lord Stunell, spoke very eloquently on fire risk assessments. They will look at the risk in the round, going beyond external wall systems and including balconies, the external walls, the flat entrance doors and whether they are fire doors, et cetera. Fire risk assessors will have to look in the round, consider whether there are enough ways to exit the building and come up with a series of action steps, which will often be very small, that can make a building safer. It is right that we make sure that those risk assessments are done by competent professionals. They need to be kept up to date. They will come up with a series of actions that can be taken. Not all of those will require huge expense, but they will make the building that little bit safer.

I think noble Lords need to see this as a package. In answer to questions raised, the proportionality agenda does not have a silver bullet as an answer, but there are a number of things that the Government are encouraging that will lead to a more proportionate approach. PAS 9980 refers to materials on a balcony that may be combustible, such as timber decking, which may be relevant even if the construction of the balcony itself includes materials that present minimal or no risk. The current position, with the inclusion of balconies in the fire safety order and the professional guidance in PAS 9980, is all about encouraging that proportionate approach.

The competence of fire risk professionals is a relevant factor and ensuring that is a major objective of the Bill. We are bringing about greater professionalism in the sector through Clause 129, with a requirement that anyone appointed to undertake a fire risk assessment must be competent. That stipulation is in the Bill, in answer to the noble Lord, Lord Stunell. A lot of this is not happening in the Bill, but there are clauses which aim to drive competence, which directly answers questions raised in this debate. That is what we have to look to, rather than necessarily seeing this specific Bill as the answer in isolation. We must look at the measures the Government are taking in the round.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank all noble Lords who have spoken. My heart was in my mouth when the noble Earl, Lord Lytton, spoke, because I thought, “He knows what he’s talking about and I’m not sure I do”, so I was glad that he recognised something in what I said on the professional point about materials and so on. I am not an expert but I know lots of people who work in this area.

My concern is that there are blocks of flats all around London whose residents are being told that the balconies have to be remediated, but they have passed their fire risk assessments. This is basically coming from freeholders acting in a precautionary fashion, as in the Dorset example I used. They have said, “We think some of these balconies are unsafe. We’re going to take them down and you have to pay.” They are using safety as the basis but they should have maintained the balconies. There is great concern about the balcony question but I have been caught out by the Minister, because this was really an attempt to talk about proportionality. That is what I really wanted to do. Although I keep hearing about balcony scandals, that was my main focus.

We want to keep people safe all the time, but the right reverend Prelate the Bishop of St Albans made the important point that safety has a cost. Carrying on from our Committee meeting the other day, I was talking about a cost-benefit analysis and always thinking about balancing. If you want 100% safety, you would never leave the house. We also need a sense of proportionality towards fire, which is still very rare. People are not dying of fires in their thousands, in this country. I want to get the right balance.

The noble Lord, Lord Stunell, made a very important point, on which I have been trying to get balance. As a leaseholder, I have tried to speak on behalf of leaseholders a little, because I thought I could make a valid contribution. I am not suggesting that every time a leaseholder says something, we all have to believe it. Leaseholders are not experts, and their fears and concerns should not make the decision, but sometimes it is worth asking them what they know or think and part of the Bill suggests that. The objective point about competence is key. I am suggesting that, because of blame avoidance, fear of litigation and measures being brought in by the Bill, people will always take the most risk-averse decision. That could be at the expense of leaseholders and will not necessarily improve safety.

I shall withdraw my amendment, but I hope it has contributed to a broad discussion to which we can return on Report to make sure that the Bill does not create more problems than intended.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

I appreciate where the noble Baroness is coming from, but I still think there should be parity across the board going forward. Thinking about the Government’s levelling-up White Paper, if we are going to level up, surely parity should be part of that, so that all renters have the same protections.

I will sum up because we still have a lot to get through today. Given the nature of the discussion and the concerns that social housing landlords rarely carry out the certification—the problem is it is not mandatory, so it does not happen very often—I hope the Minister has listened to all of this debate. There is a lot for him to take back to his department.

[Lord Greenhalgh (Con)]

My Lords, it has been an absolutely fascinating debate. This is very much the additional safety measures group—that is three words; you cannot do better than that. I thank the noble Baroness, Lady Jolly, in particular for raising this important issue, as well as noble Lords who have spoken about the Safer Stairs campaign. I am sorry that I did not hear from my noble friend Lady Eaton, but she could easily have joined forces with everyone here.

I have been invited to say, “Just go for it” or “Just do it”—it is almost like a Nike ad in this House—but I think that it is a question of how you go for it. I met with the chief executive of RoSPA, Errol Taylor, in this House, and we have a plan that is important to share with noble Lords. As my officials have said, it would be highly unusual, even though people are grappling for precedents, to include in an Act of Parliament something that is as detailed as this, referring to a specific technical standard.

We are not graced by the presence of my noble friend Lord Young, who was Minister when the building regulations were passed. It is possible that this existing standard, BS 5395-1, could be included in an approved document. Indeed, it is in Approved Document K. I have received a letter from RoSPA making that proposal, which we will take to the next meeting of the Building Regulations Advisory Committee—BRAC—which advises on these things. We have effectively brought forward the next meeting, which was scheduled for September, as I know that noble Lords are very impatient.

We brought forward that meeting, which essentially is an emergency BRAC, to 16 March. That is how fast we move in my department. You meet someone on 23 February, you set up an emergency meeting on 16 March and you get an answer. Let us see whether the route of updating the approved document is an elegant way of fulfilling the desires that have been laid out by so many noble Lords. We all have elderly parents, or some of your Lordships may well; I do not. No, I take that back—perhaps we do not all have elderly parents. I suddenly realised that that was probably not the thing to say. [Laughter.]

[Baroness Bloomfield of Hinton Waldrist (Con)]

Shall I take over?

--- Later in debate ---

[Lord Greenhalgh (Con)]

No.

[Baroness Jones of Moulsecoomb (GP)]

Has the noble Lord been drinking?

[Lord Greenhalgh (Con)]

I have not been drinking. I have had some Polos. In fact, I am not drinking anything at all.

I move on to the next campaign, which is electrical safety first. In fact, I am being bombarded with emails and letters. I promise noble Lords that I have had the briefing document from NAPIT—it followed up even today to check that I had it. That is also an incredible campaign.

I have to say that I particularly enjoyed the way the noble Lord, Lord Foster, introduced these amendments. His Amendments 122 and 123 have both been brought forward to ensure electrical safety in homes. I thank the noble Lord for raising this important matter and for his comments on the matter at Second Reading, but I am afraid that the Government cannot support these amendments.

We recognise the intention of these amendments, but we believe that they place a disproportionate burden on leaseholders in high-rise buildings. Under Amendment 122, high-rise leaseholders would be required to obtain and keep up to date an electrical installation condition report—an obligation we place on no other homeowner. Under Amendment 123, that obligation would also be placed on leaseholders who live in mixed-tenure high-rise buildings. “Mixed tenure” is defined as buildings where in addition to leaseholders there are also social housing or private rented tenancies. We believe that leaseholders living in their homes have a fundamental motivation to ensure that their home is safe and will take steps to ensure the safety of electrical installations. Therefore, we do not currently believe there is sufficient evidence to place further burdens on leaseholders in high-rise buildings.

I also assure the noble Lord that the intention of ensuring that residents take an active role in ensuring the safety of their building has already been met in the Bill. The Bill imposes a new active duty on residents not to create a significant risk of spread of fire or structural failure and empowers the accountable person to enforce these duties through the courts. These are systemic changes that are broader in scope than specific requirements for an electrical installation condition report; they will promote genuine collaboration between all parties in keeping their building safe.

The Government thank the noble Lord for raising this important point and will highlight in our guidance to accountable persons and residents the importance of considering electrical installations as part of their building safety decisions. With that assurance, I must ask him not to move his amendment.

On Amendment 124, I thank noble Lords for raising this important matter, but I am afraid that the Government will not be able to accept this amendment. However, I can assure them that their intention is being met by the Government. In the Social Housing White Paper we committed to consult on electrical safety requirements in the social sector, and expert stakeholders participated in a Government-led working group last year to inform the content of that consultation. The working group considered the mandating of electrical safety inspections in all 4 million social homes, not just those in high-rise residential buildings, as moved by this amendment. The group also considered how to keep social housing residents safe from harm caused by faulty appliances. We will consider whether the best way forward to protect social residents from harm is to mandate checks and bring parity with standards in the private rented sector, and it is important that we work through all the issues to reach the right decision. The consultation will be published shortly.

[Lord Foster of Bath (LD)]

Oh!

[Lord Greenhalgh (Con)]

“Shortly” is better than “in due course”.

[Lord Foster of Bath (LD)]

Absolutely.

[Lord Greenhalgh (Con)]

Social homes are already safer than homes of other tenures in respect of electrical safety. In 2019, 71% of social homes had all five electrical safety features compared to 60% of owner occupied and 65% of private rented homes. Under obligations in the Landlord and Tenant Act 1985, social landlords are required to keep electrical installations in repair, and the Homes (Fitness for Human Habitation) Act 2018 requires social landlords to keep homes free of electrical hazards.

With that explanation, I ask the noble Baroness to withdraw her amendment.

[Baroness Young of Old Scone (Lab)]

Perhaps I am the only person in the room who does not know what updating the approved document actually delivers, so perhaps the Minister could give us some information.

[Lord Greenhalgh (Con)]

Effectively, the Building Act 1984 has various approved documents, and Approved Document K would be the relevant document to update, which would then set that standard in building regulations. As the noble Baroness, Lady Hayman, has pointed out, when you build new-build homes, you have to build to those regulations. Does that help the noble Baroness understand what I said? I am sorry I am so unclear; I will do better next time.

[Baroness Jolly (LD)]

My Lords, this has been a really fascinating debate. We have a listening Minister, and it looks as if we have a good outcome. I am sure he will carry on listening and, if he does not listen, I am sure we will carry on trying to talk to him to make sure we get what we would like. He said he has met the RoSPA CEO, and he is very insistent and will not take no for an answer. I look forward to pressing this further with the Minister in due course.

[Lord Greenhalgh (Con)]

Dates?

[Baroness Young of Old Scone (Lab)]

I live in Cornwall, and we do things dreckly. For the moment, I am happy to withdraw the amendment.

--- Later in debate ---

[Lord Khan of Burnley (Lab)]

My Lords, I rise briefly to speak to Amendment 132 in the name of the noble Baroness, Lady Neville-Rolfe. It is a little but very important amendment and, as the noble Baroness will appreciate, “Every little helps” in making sure we get this right. I admire what the noble Earl, Lord Lytton, who spoke with great expertise, said about ending the confusion and providing clarity. That was a very important point. As a Lancastrian, I have never agreed with somebody from Yorkshire as much as I have agreed with the noble Baroness, Lady Pinnock, during the course of this Bill. She is quite right: leaseholders should not bear the costs for issues they have no control over. It is not their fault. We need to end the logjam.

This is my final contribution in Committee. It has been a fascinating debate. I have a special message for the Minister in Latin, to continue the theme: “Da operam, si potes”, or “You can do it, if you try hard”. We have debated a lot of fantastic amendments during this Committee. I am sure the Minister can do it and make this landmark Bill even better, to help people, residents and leaseholders across the whole country.

[Lord Greenhalgh (Con)]

My Lords, I thank my noble friend Lady Neville-Rolfe for her amendment. It has been a fascinating debate, with lovely Latin phrases which I am sure have been worked on all afternoon using Google Translate.

As the Government have made clear, it is important that we restore a sense of balance and proportionality to fire safety. We must ensure that fire risk assessments of external walls do not require unnecessary work and reduce the risk aversion we have seen in the sector. The department has already taken steps to ensure that industry takes a proportionate approach to the assessment of the external walls of buildings and I can reassure my noble friend that we will continue to work with industry, including lenders and surveyors, to keep under review the process used to assess external wall systems.

The noble Earl, Lord Lytton, mentioned that we have been tracking the data from mortgage lenders and it is available on the GOV.UK website. I have been looking at my Apple iPhone—I have given the brand away, but I do not know how I could have coded that without using the brand name—and the vast majority of mortgage valuations for flatted developments do not require an EWS1 form. The trend is also going down. I think the most recent data in January was that around 8% of mortgage valuations require an EWS1, so 92% do not. That is down from 9%. My department estimates that 492,000 leaseholders in residential buildings of 11 metres and above do not need to undergo an EWS1 assessment for their building for them to sell their property or remortgage. It is important that we continue to work with mortgage lenders to track how that is evolving over time. These things take time, but the trend is in the right direction.

The Government are also making preparations to launch a professional indemnity—or PII—scheme, targeted at qualified professionals to enable them to undertake EWS1 assessments where otherwise they would not be getting PII cover. A condition of PII coverage under the scheme will be that EWS1 assessments are carried out in line with PAS 9980. An audit process will be in place to monitor compliance to the standard.

I thank my noble friend for raising this important matter. She has absolutely championed that the Government get to grips with some of these points. I think we are making progress on a number of fronts now. I assure her that this work is of critical importance for the Government. We will continue to work closely with industry in the coming months to ensure that. I therefore ask that she withdraws her amendment.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank my noble friend, particularly for giving the figures. Before Report, it would be good to have the figures for the non-high-risk buildings as well, because one of the concerns I had was that the industry was requiring people who were not caught by measures following Grenfell to have these EWS1 assessments. It was a probing amendment and I will reflect further in light of what has been said. It was a very good debate.

There is confusion and concern about the logjam, and we need to make sure that we have the support of the industry professionals who are needed to do this. Things can take a long time in the building industry, as I think we will hear when we debate retentions. I certainly did not want to lock horns with the noble Earl, Lord Lytton, who is such an excellent member of the Built Environment Committee, but to make sure that we had this debate and that we really do sort this issue, as I know the Government have said that they wish to. I beg leave to withdraw my amendment.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

133: Clause 135, page 142, line 20, at end insert—
““building function” has the meaning given by section 3;” Member’s explanatory statement
This amendment defines “building function” for the purposes of Clause 135.

--- Later in debate ---

[Lord Greenhalgh (Con)]

“St George,” “St Stephen,” “It is so easy, just do it”: I have had all the usual exhortations. I did really enjoy meeting the noble Lord, Lord Aberdare, and David Frise. I think it was towards the end of last month, so relatively recently. David Frise, part of the Building Engineering Services Association but representing Actuate UK, had gone through the quite traumatic experience of building up a business then effectively seeing it dismantled because of the pressures of being a subcontractor. I have declared my business interests—as someone who has started a small business, I know exactly what it is like when you are working for bigger businesses, particularly in the early days. It is tough, particularly when people withhold payments that you are contractually due just because they know they can.

Another practice we see in payments is: “Why do we not pay you in 180 days’ time?” You have delivered the services and paid all the costs, but: “We are a big company, and our payment run is every 180 days.” It is that kind of line; it does not happen all the time, and I know that is not something Every Little Helps would do; it will have a code of practice. But that is the kind of thing we have seen, and it is important, if we want to encourage smaller organisations, that we see the end of those kinds of practices. I think we are, generally speaking; certainly, blue chip companies would not do that.

One of the things I would also say about the whole construction issue is that one of the things I want to know as a businessman is who makes the money. It is clear that developers have made good money since Grenfell. Before Grenfell they made good money, but since Grenfell even more. Some of the manufacturers of the construction materials have done really rather well as well. But actually, construction is a cash-flow business on wafer-thin margins, and the further you go down from the prime contractor, the more they squeeze the margins, and that is the kind of the thing the noble Earl, Lord Lytton, has been talking about—the value engineering. That is why you start to see the corners being cut.

We have to understand that we are dealing with a real cultural issue. That is what we said to the noble Lord, Lord Aberdare, in the meeting. Yes, I would like to wave my magic wand and say there is a legislative solution—but we recognise that he is going to set out in writing to me a number of thoughts about this. I think that is what we agreed. Then, we are going to take some of those thoughts to Dame Judith Hackitt and also talk to Amanda Long, who ran the Considerate Constructors Scheme and is also building a building safety charter, to try and get players on board. Perhaps they can consider cash retentions within that. There is also the New Homes Quality Board and the new homes ombudsman, which operates underneath that. Perhaps they can think about some of these issues.

There are a number of things I can talk about that could potentially also help. The Construction Leadership Council has a business models workstream focused on collaborative contractual practices, which I think has been raised by the noble Lord, Lord Aberdare. We are also looking at the culture of late payments that I already referred to. Our efforts include introducing payment practices, reporting through legislation and guidance. Prompt payment is also important.

What I resolve is not to accept the amendment but to work with the noble Lord, Lord Aberdare, because I really feel passionate about this. It is an abhorrent practice, and we should do what we can to ensure the culture of good practice prevails and that we address those that are not following the right way. But let us get the culture right.

[Lord Stunell (LD)]

Before the Minister sits down, I wonder if he could comment on the Department for Education’s performance.

[Lord Greenhalgh (Con)]

That is a really good way to end the debate. I will have to write to the noble Lord, because I do not know a lot about the Department for Education other that it is on the street near Marsham Street. I have been there maybe two or three times when I was a council leader. I will write to the noble Lord, but I think it is probably something, as he would well know, that I am not in a position to answer at the Dispatch Box right at this minute.

At this point, I am allowed to sit down. I have avoided a Latin phrase for the whole four hours of this debate, but the noble Lord, Lord Kennedy of Southwark, has provoked me: he responded to me saying that I would not resort to Latin by saying, “Id gratum esset”. I knew enough Latin to know that that means, “It would be appreciated”. Well, I have appreciated this debate, and I look forward to moving on to Report and taking this landlord Bill through this House.

[Lord Aberdare (CB)]

My Lords, I thank the Minister for that response, which at least confirmed my prophetic abilities and had quite a bit of encouragement. I confirm that we are working on a letter to him along the lines that he described, and we will get that to him in due course—that is a bit pessimistic; we should say “shortly”. I thank him for the other comments that he has made, which I will study and act upon.

I was absolutely delighted that the noble Baroness, Lady Neville-Rolfe, was able to contribute to the debate. As she said, she was the Minister responsible when I first accidently got involved with retentions in 2015. For a glorious moment, I thought that she might prove to be the dragon-slayer, but I am delighted that she continues to support the cause. The noble Lord, Lord Stunell, made a very important point about investment in training as well as the fact that government itself is not doing all that it could to bring this practice to an end.

As always, I depend heavily on the vast expertise of my noble friend Lord Lytton, whom I thank particularly for focusing on the impact on SMEs. The noble Baroness, Lady Hayman of Ullock, also did so, again pointing out the issue of cash flow and its importance. Fortunately, my SME was never in the construction sector, so that is one problem that we did not have, although we certainly had plenty of cash-flow problems. Of course, I also thank the Minister.

Fixing this issue will be a key part of achieving the goal that the Minister is setting out to achieve: a productive, high-quality, collaborative, innovative, forward-looking and, above all, safe construction sector, providing the sorts of homes and other buildings that we can be truly proud of. I am not convinced that we should not come back to this issue on Report, but, for now, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

137: Clause 137, page 143, line 2, at end insert—
“(ba) sections (Remediation of certain defects) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases) (remediation of certain defects);”Member’s explanatory statement
This amendment provides for the new clauses and Schedule relating to the remediation of certain defects to bind the Crown.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

138: After Clause 137, insert the following new Clause—
“Application to Parliament
(1) The following provisions do not apply in relation to the Parliamentary Estate—(a) sections 101, 102 and 105 (compliance notices under Part 4);(b) paragraphs 1 to 3 of Schedule 2 (powers of entry of authorised officers).(2) If the Palace of Westminster (or any part of it) is a higher-risk building within the meaning of Part 4, for the purposes of that Part the accountable persons for the building are the Corporate Officer of the House of Lords and the Corporate Officer of the House of Commons, acting jointly.(3) No contravention by a Corporate Officer of a provision made by or under Part 2 or 4 makes the Corporate Officer criminally liable.(4) Subsection (3) does not affect the criminal liability of relevant members of the House of Lords staff or of the House of Commons staff (as defined by sections 194 and 195 of the Employment Rights Act 1996).(5) In subsection (3) “Corporate Officer” means—(a) the Corporate Officer of the House of Lords,(b) the Corporate Officer of the House of Commons, or(c) the Corporate Officers acting jointly.(6) In this section “Parliamentary Estate” means any building or other premises occupied for the purposes of either House of Parliament.”Member’s explanatory statement
This new Clause makes provision about the application of Parts 2 and 4 to Parliament.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

139: Clause 140, page 144, line 19, after “71” insert “, (Meaning of “relevant building”)(2)(c), (Remediation orders)”
Member’s explanatory statement
This amendment provides for the draft affirmative procedure to apply to certain regulations.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

142: Clause 141, page 144, line 41, at end insert—
“(ba) sections 120 to 127 and Schedule 9 (new homes ombudsman scheme);”Member’s explanatory statement
This amendment provides for certain provisions about the new homes ombudsman scheme to form part of the law of England and Wales, Scotland and Northern Ireland.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

146: Clause 142, page 146, line 18, leave out “, 39 and 86 to 88” and insert “and 87 to 89”
Member’s explanatory statement
This amendment is consequential on the first amendment of Schedule 5 in the name of the Minister (and also corrects the numbering of the paragraphs referred to).

Building Safety Bill

Lord Greenhalgh Excerpts

Committee stage
Monday 28th February 2022 Grand Committee

No one could have known that these appliances would fail. There will be similar issues in future, no doubt, but the shocking thing about those fires is not that each of them happened but that the damage and death was worse than it should have been, partly because of a failure to maintain fire safety systems, not because of a lack of surveillance of leaseholders’ activities in their own homes. We need to row back from potentially blaming leaseholders.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, I can see that my noble friend is about to rise, but there is a crescendo in this group of amendments and I realise that it is very important to hold in reserve the speeches from my noble friend Lord Young—as well as the crescendo of the amendments to be introduced by the noble Lord, Lord Stunell, and by my noble friend Lady Neville-Rolfe. This is a veritable feast of amendments, so I will introduce the government amendments at this point, if I may, before I summarise the group.

As this is a feast of amendments, I have looked up my old grace, which I used to say when I was 18, 19, 20 years of age. It is very long—I hope I will not get it wrong, as I know the right reverend Prelate will know if I do. It goes as follows:

“Oculi omnium in te sperant Domine:


Et tu das escam illis in tempore.

Aperis tu manum tuam,

Et imples omne animal benedictione.

Benedic, Domine, nos et dona tua …

et concede, ut illis salubriter nutriti

tibi debitum obsequium praestare valeamus,

per Christum Dominum nostrum.”

That is roughly right. It is what we used to say before we could eat. This is a feast, and I appreciate that every amendment is laid with the interests of improving this Bill. If we cannot accept them, I want to say that I appreciate the intentions behind every one of them. I will summarise our position at the end.

I have tried to summarise each group in three words. This is the “residents and redress” group, and I have always been clear that residents should be at the heart of the new regime. Today’s debate demonstrates the continued importance of that commitment. I am pleased to start by speaking to a group of amendments that is focused on ensuring that residents and others have more access to redress.

Amendments 76 and 77 create a new power for the High Court to impose building liability orders in appropriate cases. These orders will allow civil claims to be made against the associated companies of a company involved in the development or refurbishment of a building in certain circumstances, including when the original company no longer exists. In this House and in the other place, we have discussed the lack of ongoing liability that large developers have due to their use of special purpose vehicles. These amendments directly address this issue and support the changes we have proposed to the Defective Premises Act. They rebalance the level of exposure that small and medium-sized businesses in the construction industry currently have compared with the larger players—and, most importantly, they unlock potential funding for those who have remediated or who need to remediate, if they bring a successful claim. I consider that these orders will be an important tool in holding “polluters” to account and making them pay for their past misdeeds—so I hope that noble Lords will join me in supporting these amendments.

Moving on, I have also tabled a series of amendments that will help to make sure that construction product companies pay to put right building safety issues that they have contributed to causing. I do not intend to move these amendments today but have laid them to invite the scrutiny of noble Lords. I will listen carefully to the debate and bring these measures back at a future stage. Briefly, they target construction product manufacturers and ensure that they take responsibility for their part in the creation of building safety defects. The new clauses in Amendments 107 to 109 and 144 introduce two new causes of action against construction product manufacturers. There are currently almost no routes which allow leaseholders to hold construction product manufacturers accountable for their role in the creation of serious building safety defects. The Government are clear that those who have been responsible and continue to be responsible for building safety defects have a responsibility to put them right.

These causes of action will enable claims to be brought against construction product manufacturers and sellers for their role in the creation of building safety defects. They will apply if a product has been mis-sold or is found to be inherently defective, or if there has been a breach of construction product regulations. If this contributes to or causes a dwelling to become “unfit for habitation”, a civil claim will be able to be brought through the courts under these causes of action.

The cause of action relating to cladding products in Amendment 107 will be subject to a 30-year retrospective limitation period. The broader cause of action relating to all construction products in Amendment 108 will be subject to a 15-year prospective limitation period. These limitation periods reflect the changes we are making to the limitation period under Section 1 of the Defective Premises Act. These causes of action will ensure that construction product manufacturers can be held responsible for the costs of rectifying their mistakes.

Amendments 110, 113, 114, 141 and 145 will create a power to make regulations to require construction products manufacturers and their authorised representatives, importers and distributors to contribute towards the cost of remediation works where they have caused or contributed to dwellings being unfit for habitation. Amendment 110 will enable the Secretary of State to serve a costs contribution notice on companies that have been successfully prosecuted under construction products regulations, where the relevant product has contributed to identified dwellings being unfit for habitation.

Amendment 114 introduces a new schedule that will give the Secretary of State the power to appoint an independent person to inspect buildings where the relevant product has been used. This assessment will consider whether the conditions for serving a costs contribution notice are met, and the remediation works required. Amendment 114 will enable the Secretary of State to make regulations setting out a process for establishing costs that a company should be required to pay, which will take account of its ability to pay, and to whom payment should be made. This amendment will also enable the Secretary of State to require a company to contribute towards the cost of building assessments carried out as part of this process. Setting out this scheme in secondary legislation will enable the necessary interaction between costs contribution notices and construction products regulations, including those that will be made using the powers in this Bill.

I will listen carefully to the remainder of the debate today, as I have to every speech given so far introducing various amendments, and I look forward to hearing from noble Lords. As I said earlier, I will be moving only Amendments 76 and 77 today. I will carefully consider what I have heard in relation to the other amendments, and I will bring these measures back at a future stage.

[Lord Young of Cookham (Con)]

My Lords, the instructions on the sheet of paper in front of me are not “crescendo” but “diminuendo”—some gentle accompaniment on the bass to the forte soprano that we heard from the noble Baroness, Lady Fox. But seriously, I want to add a brief footnote to the excellent speeches made by the noble Baroness, my noble friend and the right reverend Prelate.

I make the point that they all underline the need for the next stage of leasehold reform which the Government have promised, which does away with this feudal system of leasehold which exists nowhere else in the world. Once we have done that, all these problems that we have been talking about this afternoon will disappear: there will be an identity of interest between the freeholder and the leaseholder because they will be the same person. At some point, perhaps the Minister can shed some light on the next stage, confirming that that is indeed the Government’s objective and that they want to move in that direction as fast as possible.

I add a brief footnote to the excellent speech the right reverend Prelate made on Amendment 50A. In particular, I draw attention to the radical proposal in subsection (3)(a) of the new clause proposed in his amendment, which places an obligation on the landlord for

“where there is no recognised tenants’ association in existence before the coming into force of this section, creating a recognised tenants’ association and consulting with it about building safety”.

Because of the Long Title of the Bill, the right reverend Prelate had to confine it to building safety. However, it is a radical proposal. It places the obligation for establishing a tenants’ association not on the tenants, which is the position at the moment, but on the landlord, evening up the terms of trade. As I said, it is a very radical proposal indeed. An indifferent landlord does not want a residents’ association or a tenants’ association with whom he has a statutory obligation to consult, although I happen to believe that it is in his best interests to have such a dialogue. So the terms of trade are dramatically altered by the right reverend Prelate’s amendment.

In an earlier incarnation, I recall helping establish an organisation called Tpas—the Tenant Participation Advisory Service—I see the noble Lord, Lord Best, nodding sagely; he has a similar vintage to myself when it comes to housing legislation. That was focused primarily on tenants of social landlords, but I believe it has subsequently expanded into the private sector. It would be very well placed to advise landlords and tenants on how to set about establishing such an association, were the right reverend Prelate’s amendment to be accepted.

Finally, on this group of amendments, I reread chapter 4 of the Hackitt report last night, entitled “Residents’ voice”, and it has a whole series of recommendations about enfranchising the resident and the tenant in exactly the way that we have underlined. So, as I said at the beginning, I add a small a complement on the double bass to the excellent speeches that have been made on this group of amendments—or perhaps I am a tenor.

--- Later in debate ---

The Minister often describes noble Lords as the awkward squad.

[Lord Greenhalgh (Con)]

No, I do not.

[Lord Khan of Burnley (Lab)]

Sometimes they are wise men and women. I hope that the Minister can take forward their wise suggestions on this group of amendments in particular.

We welcome many of the government amendments, tabled in good spirit to make sure that life gets better for residents of buildings across the country and that they are free from unsafe situations. Government Amendment 141 makes provision for regulations under the new clause relating to costs contribution notices to be subject to the draft affirmative procedure. I want to ask the Minister about the power given to government to make new legislation. What scrutiny will these new powers be subject to?

The noble Lord, Lord Young of Cookham, and the noble Earl, Lord Lytton, talked about the important issue of long leases. It is a fascinating debate, but perhaps it is not for now, because this Bill is about building safety. When the noble Lord, Lord Young, was a Minister in 1984, I was five—in fact, I was a safety hazard in my parents’ building at the time. His point about the future of long leases is important, and I am sure it will be discussed and debated in a future Bill. I also appreciate the experience brought by the noble Earl in discussing his points.

The noble Lord, Lord Stunell, made an interesting and very important point about product safety. It is difficult to digest. Even the Construction Products Association is confused about this area. There is a lack of clarity which I hope the Minister and the Government will address.

Finally, I will single out Amendment 147, in the name of the noble Baroness, Lady Neville-Rolfe, which looks at publishing assessments of the impacts on businesses, in particular, of remediation changes. It is an important amendment because there is a shortage of homes and we want to make sure that we look at how this impacts on everybody in the whole chain and that we do not move to a situation where we are building fewer homes. That is an important point, but today has to be about impact assessments on citizens of this country and every person living in an unsafe building.

The Minister in debate on a previous day mentioned that this is a landmark Bill and an opportunity. Unfortunately, at this moment it is not being taken forward with the really strong, meaningful, well-intentioned and well-purposed amendments that have been presented, so I hope that the Government will reflect, listen and make that impact.

[Lord Thurlow (CB)]

Before the Minister stands up, perhaps I can make two points. This is a large group of quite diverse amendments. My concern is over the accountable person role. Judging by the discussion today—I will not go through the list of different contributions—I think it is going to be a very difficult job indeed. That person is going to need help in creating a co-operative working relationship with tenant groups, and the situation could be exacerbated by bad and difficult freeholders or managing agents, often in league, and if the accountable person finds himself or herself in their pocket it will not be made any easier.

I do not overlook difficult leaseholders. There are some tenants who will not let anybody into their building. That is also a problem to be dealt with, but I have two suggestions. The accountable person should be prepared to prove reasonableness in all their behaviours and should also be prepared to prove value for money. An autocratic manager refusing to engage with a leaseholder makes life even more difficult. In the second case, concerning value for money, whether it is the fire extinguisher example given by the noble Lord, Lord Blencathra, or some captive insurance company or an arrangement with a very high commission-bearing insurer offering kickbacks to freeholders, that would be avoided.

[Lord Greenhalgh (Con)]

My Lords, I rise to say how amazed I am by how young the noble Lord, Lord Khan, is. I thought I was a whippersnapper as someone in my mid-50s, but the noble Lord must have been born in—what, the late 1970s?

[Lord Khan of Burnley (Lab)]

1979.

[Lord Greenhalgh (Con)]

My maths is not that bad, but that is impressive.

I will start with the noble Lord, Lord Stunell, who focused on the government amendments. It is fair to say—he will know this as someone who played my role in the coalition Government—that we cannot possibly move amendments without considering A1P1 rights and the impact of the amendments. We would never get them through the legal system. Obviously, we are tabling the amendments but not moving them, but we have done all the checks, as you would expect, and taken legal opinion and so forth to make sure that they are all workable, and indeed lawful. Otherwise, we would just not be allowed to do it.

I also say that there has been considerable engagement with the organisations that the noble Lord mentioned, but we need to continue that engagement and that is something we can do. I reassure him that we have had representations from Build UK, the Association for Project Safety and the Construction Products Association, but we should continue to engage. My view is that there is never too much engagement with these organisations. However, I also said to him, and I put this now into Hansard—it was raised in a previous debate by the noble Baroness, Lady Hayman—that if you breach building regulations implemented in 1984 by the then young whippersnapper, my noble friend Lord Young, it is a criminal act.

The noble Lord will also know that if you commit a crime in this country, there is no statute of limitations for most crimes. In this case, we are saying that we have seen appalling practices over the previous 30 years, and there should not be a statute of limitations period that does not allow us to rectify that. That is why we are looking backwards 30 years and forwards 15 years. Of course, we have taken considerable legal advice about taking that position, but it is to ensure that there is no legal reason why someone who has broken building regulations is not open to face redress. I accept all the points he makes around the practicalities of doing that, but there should not be a small, narrow limitations period when we tackle this historically difficult problem that has crept up on us over not one decade, but three decades.

I turn to the noble Baroness, Lady Pinnock, who wanted to understand how we are regulating construction products. It is not straightforward, but it is pretty straightforward, so I will not take too long over this. We have created a national regulator. In the same way as we have a building safety regulator in shadow form until the Bill gets Royal Assent, the Bill will put into statute a national regulator for construction products in the Office for Product Safety and Standards. The CEO is a phenomenal chap called Graham Russell. He is there and it has already started to flex its muscles with a prohibition notice to Kingspan. This Bill formalises the national regulator for construction products and there are at the same time local regulators of products, as the noble Baroness will know, with her local government background within trading standards, that provide that local role. It is the national and local regulation of construction products that provides the regulatory environment for construction products.

The noble Baroness also raised construction products testing. This is something that the inquiry showed as an area of concern. The Building Research Establishment was a nationalised entity that it was privatised in the 1980s, I think—my noble friend Lord Young will know the exact date, I do not—but we also have the British Board of Agrément, which has always been in the private sector. Neither of those have come out as great, robust testing houses, which is why my predecessor as Secretary of State asked for a construction products testing review. I believe that report is nearly finalised. I will ask for a copy. There will be recommendations on how we improve the robustness of construction products testing. I hope that addresses the questions raised by the noble Baroness, Lady Pinnock.

One of the three wise men, the noble Earl, Lord Lytton, raised a very important point, but it is fair to say that, when we are talking about construction product manufacturers, we are talking not about all construction product manufacturers but about those that contributed to this crisis. Three of them have been raised, front and centre, as being responsible for the Grenfell Tower tragedy: Celotex, Arconic and Kingspan. These were all products that should never, frankly, have been able to have been put in that position. We can argue about why, but you cannot put flammable material that spreads like petrol up the side of a building and say that that adequately resists the spread of fire, which is what the regulations stated in Approved Document B. You cannot put flammable insulation behind it, et cetera. There are a number of product companies that contributed to this. Whether they were installed incorrectly or not is irrelevant: these products should never have been put on our buildings. We can look at the responsibility for that, but the responsibility also lies with the manufacturer, in large part, and in those cases, the polluter must pay. However, it is not all construction product manufacturers by any means, and I make that point absolutely clear.

Secondly, the way in which those products are installed is a matter for the construction company. The construction company, not the manufacturer, is responsible for following the instructions and installing the product correctly. We can see examples of perfectly good cladding systems that are installed incorrectly. In such cases, that falls on the developer in the first instance, or on whoever the developer got to install the system. We must be absolutely clear about that. If we start creating confusion around it, we avoid accountability and we do not move forward. It is pretty clear in my mind where culpability falls. I hope that that addresses some of the concerns raised by the noble Earl, Lord Lytton. This has been a fantastic debate. I have enjoyed every second of every minute of every hour. We have had one hour and 40 minutes on this group, and it has been absolutely tremendous. Thank you all for your contributions.

--- Later in debate ---

[Lord Greenhalgh (Con)]

My Lords, I was caught mid-sentence so I will go back to the beginning of that particular sentence. The noble Baroness suggests that we require detailed requirements on contravention notices to ensure the proper use of these powers, but that is better suited to regulations. Indeed, the balance between what is reasonable to expect of an accountable person, the urgency of building safety risks and protecting residents from potential misuse of powers is crucial. That is why we believe that this detail should be set out in regulations, developed in consultation with residents and accountable persons and subject to public consultation.

Amendment 52B would allow residents a reasonable time to remedy any alleged contravention before an application to the court; indeed, the Bill provides that the accountable person must specify the steps that the resident should take and a reasonable time for taking them. The court is very unlikely to issue an order before that time has expired.

Amendment 55C would require the building safety regulator to consult on and issue a statutory code of practice regarding powers of entry. Subsequently, Amendments 53B, 53C, 53D, 54B, 55A and 55B would require the accountable person to comply with a statutory code of practice and ensure that the right of entry into homes applies only in urgent cases or emergencies. In respect of Amendments 52A and 54A, the Government are closely listening to these points; however, the noble Baroness’s intention is already being achieved, as the resident would be notified of the application from the accountable person as part of the court process.

I would like to reassure the noble Baroness that there are already safeguards against misuse in this Bill. Under Clause 86, we will prescribe principles under which the accountable person must operate. These have been published in draft and include the requirement to consider the impacts on residents within the building.

In addition, the clause provides that accountable persons have a right of entry to a resident’s home with an order awarded by the court. The courts will apply established principles when considering any such application for entry and will grant access only when they consider it just to do so. This provides an effective safeguard against misuse. As noted in response to the points raised by my noble friend Lord Blencathra, we would expect the accountable person to seek to resolve issues directly with residents in the first instance to gain entry where it is needed.

The building safety regulator will issue guidance to accountable persons, which will set out the expectations for their system for handling residents’ duties and enforcing them. It is important to note that these powers are necessary for the accountable person to be able to discharge the legal duties we are placing on them. Although their use covers emergency cases, access may be needed where a resident refuses to allow the accountable person to discharge their duties. Indeed, the provision is designed for the discharge of day-to-day duties and not for emergency situations, which would require calling the emergency services.

As such, we must again strike a balance between protecting residents and affording the accountable person the tools needed to keep their building and residents safe. We believe that this balance is correctly achieved in the Bill. I understand the noble Baroness’s intentions with these amendments but, for the reasons I have given, I ask her not to press them.

I now turn to Amendment 107A in the name of the noble Lord, Lord Stunell, which seeks to probe whether the retrospective liability provisions in Amendment 107 apply only to higher-risk buildings. I reiterate the points I made earlier when outlining the intent of the Government’s amendments. This course of action will apply to all dwellings and all buildings containing dwellings. The Government’s position is that the ability to recover cost contributions from product manufacturers should not be restricted to those who live in multi-occupied high-rise buildings. While it is true to say that the amount of cladding on lower-rise buildings is likely to be lower, we do not think it appropriate to exclude these just because the building is not as tall. The crucial factor must be the safety risk.

We are not restricting this course of action to buildings over 18 metres because we intend to enable all individuals who have suffered a loss as a result of a dwelling being made unfit for habitation due to the mis-selling of a product, a product being inherently defective or a breach of existing building regulations to seek cost contributions for the losses they have incurred. This course of action protects leaseholders and home owners by ensuring that all construction product manufacturers are held liable for their part in the creation of building safety defects. The broad application of this course of action to include all dwellings reinforces this principle and delivers a proportionate approach. The scope of this course of action to apply to all dwellings will mirror the Defective Premises Act.

Finally, I turn to my noble friend Lady Neville-Rolfe’s Amendment 147. I assure her that the Government have considered the impact on business of the measures I tabled on 14 February. We are clear that the principle of protecting leaseholders is paramount. It is fundamentally unfair that innocent leaseholders should be landed with bills that they cannot afford to fix problems that they did not cause. These amendments will right this wrong, and the Government consider it critical that the provisions take effect as soon as possible. I must therefore ask my noble friend to withdraw her amendment.

[Baroness Neville-Rolfe (Con)]

Are the Government planning to produce an impact assessment on the new measures? My amendment was drafted the way it was on the advice of the Bill clerks, but obviously my main concern is to understand the detail of this promising package.

[Lord Greenhalgh (Con)]

I am sorry; with the sheer length of the debate, we are now approaching the two-hour mark, so I hope that my noble friend will forgive me if I did not address that specific point. However, I did address the point that the Valentine’s Day amendments, tabled on 14 February, were made in haste. The work around impact assessment was therefore not carried out at that time, but obviously we intend to update our impact assessment to reflect all the amendments that the Government have brought forward; that is the good practice my noble friend seeks, I think.

I thank noble Lords for this debate, which has been an important and necessary part of the scrutiny of this legislation. I hope that, with the reassurances given, noble Lords will be happy to withdraw or not press their amendments. This has been a feast of a debate so let us conclude it with the two words that we used to say in our formal hall: benedicto benedicatur.

[Lord Blencathra (Con)]

My Lords, we have spent two hours on this group of amendments. It is probably the second-most important group in the Bill, after the one we dealt with last week. There were more than 45 amendments down, so I make no apology that we have spent considerable time discussing them.

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I recognise that the government amendments in this group may be of greater significance than mine. I think it would be in the interests of the Committee if I sat down and allowed the Minister to explain them, and perhaps responded later. I beg to move.

[Lord Greenhalgh (Con)]

My Lords, I rise to introduce the government amendments in this group. This is an important group—equally as important as the previous group—and is about leaseholder protections.

We have been clear that it is fundamentally unfair that innocent leaseholders, most of whom have worked hard and made sacrifices to get a foot on the property ladder, should be landed with bills they cannot afford for problems they did not cause. That is why I have laid a series of amendments to the Bill to right this wrong. I want to outline these important government amendments and highlight how they will provide much-needed protections to leaseholders from exorbitant costs for remediation of their buildings.

These leaseholder protection provisions will make landlords liable, partially or in full, for the costs of remediating historical building safety defects. Amendments 62 to 64 and Amendment 66 are definition clauses setting out the types of defects, buildings and leases that are in scope of the protections. The new clauses state that leaseholders living in their own home or subletting in a building over 11 metres will be entitled to protections from unjust and unaffordable remediation costs. It will not apply to buildings that have exercised the right to collective enfranchisement or are on commonhold land, as in those buildings the leaseholders together effectively are the freeholders.

Amendment 68 would insert a new schedule into the Bill before Schedule 9, which sets out the circumstances in which service charges relating to historical building safety issues cannot be passed on to leaseholders, and the circumstances where service charges can be passed on to leaseholders are limited. Paragraph 2 of the new schedule provides that, where the landlord is responsible or has links with the developer that is responsible for the defect, they will be required to pay in full for the historical building safety issues. This will ensure that, as far as possible, those who are responsible for creating the defects take on the burden of costs and remove all liabilities for the historical defects from innocent leaseholders.

A definition of an “associated person”, for the purpose of determining which building owners have links to the developers of the building, is set out in Amendment 67. Similarly, where building owners are not linked to the developer but can afford to pay, they will be required to put the money up to do so and pay in full. We intend to table further amendments to provide details of the affordability test on Report. I welcome any suggestions from noble Lords on how this could work.

Paragraphs 5 to 7 of the new schedule provide that, where building owners are not linked to the developer and are not able to afford the remediation, some costs can be passed on to leaseholders. This will be subject in most cases to caps of £10,000, or £15,000 for leases in Greater London. These caps will limit how much leaseholders can be asked to pay for non-cladding costs, after—I repeat, after—building owners and landlords have exhausted all other cost recovery options, such as litigation under the Defective Premises Act or the new construction products causes of action we have just debated.

The amendments also provide that any costs paid out by leaseholders over the past five years will count towards the cap, meaning some leaseholders will pay nothing more. They also provide that cladding costs cannot be passed on at all. Paragraph 6 sets out caps to be applied to very high-value properties. It provides that, for properties with a value of over £1 million but under £2 million, the maximum permitted charge is £50,000 and, for properties with a value of over £2 million, the permitted maximum is £100,000.

Building owners and landlords must comply with the law as set out by Parliament. However, there may be some who attempt to avoid their liabilities. These landlords may be associated with a company with substantial assets. Given the extent of the building safety crisis, it is morally right that these associated companies are asked to shoulder their fair share of the costs. Amendment 69 would give the First-tier Tribunal powers to make a remediation order on the application of an interested person, meaning the regulator, local authority, fire and rescue authority or another person specified in regulations by the Secretary of State. A remediation order will require a landlord to remedy defects in their building, as specified in the order.

Amendment 70 would give the First-tier Tribunal powers to make a remediation contribution order on the application of an interested person if it considers it just and equitable to do so. For the purposes of Amendment 70, interested persons include the new regulator, the local authority and the fire and rescue service, as well as leaseholders and other persons who have a legal or equitable interest in the building. A remediation contribution order will require an associated company to make specified payments, at a specified time or event, to the landlord to remedy relevant fire safety defects in the building.

Where a company needs to be wound up, our provisions enable the liquidator to apply to the court to access the assets of associated companies to contribute to the remediation of building safety defects. All too often, companies let subsidiaries go into liquidation to cut their losses. It is morally wrong that they can just fold a company up and leave leaseholders in unsafe buildings with outstanding building safety defects and the corresponding liabilities. The court’s decision will be based on whether it is just and equitable to do so—in other words, whether it is right for that associated company to help to meet the building safety remediation liability of the failing landlord.

Some unscrupulous companies may try and wind up subsidiaries before these provisions come into force, which is why we have included provisions to enable liquidators to pursue associated companies of those landlords who are currently going through insolvency proceedings. It is unfair that innocent leaseholders have had to pay for remediation of building safety defects while those who caused the fire safety issues are able to exploit company law to escape liabilities that are morally theirs. I ask your Lordships to support this significant and important set of amendments.

[Lord Young of Cookham (Con)]

My Lords, I am grateful to my noble friend. It was bit like listening to one of the advertisements on the radio when, right at the end, all the terms and conditions are read out very quickly and one has to listen to them very carefully. I welcome the assurances that my noble friend gave right at the beginning; I will come back in a moment to some of the things he said.

In the meantime, I will speak to Amendment 56 in my name and also to Amendment 131 in the name of two of the three wise men. This group of amendments focuses on Schedule 8 to the Bill, which defines building safety charges. It takes up no less than 12 and a half pages of rules and regulations. My Amendments 58 and 60 would eliminate eight of them, but any benefit so gained would be wiped out by the 13 government amendments tabled since the Bill left the other place.

--- Later in debate ---

[Lord Stunell (LD)]

My Lords, first, I am very sorry if taking a long time last time irritated the Minister. It was an important set of amendments and I think these amendments are also important, although I will try not to irritate him. It is a pity that he did not feel able to accept the amendment in the name of the noble Baroness, Lady Neville-Rolfe, about openness and transparency and impact assessments. I remind him that he dealt with my argument by assuring me that I would know that the Government clearly would not have brought forward proposals unless they had been cleared at the highest level and that lawyers had looked at them and he wanted to assure me that they all worked. That sounded to me very much like an impact assessment or, at the very least, an explanatory note, so I am hoping that he can publish the documents that were used inside the department to decide that this is indeed a viable system to place before your Lordships.

With that preliminary, I enthusiastically support my noble friend Lady Pinnock’s Amendments 93 and 94 proposing a peppercorn figure for the cap. The Minister indicated at an earlier stage that the figures in the Bill are, to an extent, arbitrary. A number has been decided, perhaps based on some total amount of money that the Treasury thinks it is prepared to pay which has been divided by an assumed number of residents to produce a cap figure. It may be neat arithmetic for the Treasury, but it is not neat arithmetic for leaseholders facing their payment.

Some very pertinent questions have been asked by the noble Baroness, Lady Hayman, and other participants in this debate. I hope that the Minister will at least be able to commit to writing a letter, having carefully read Hansard, about this group of amendments and the previous group to make sure that he has ticked off all the queries that have been raised. They have all been advanced by noble Lords who very strongly want to see effective legislation but have various levels of severe concern about whether this legislation will be effective. I am sorry that it may be a little painful for him, but we need to understand the correct answers to this and, if not, to try again on Report.

This is a sensational policy development by the Government in interfering with the market. We believe it is justified in principle, but we want to see that it has not just been waived through without serious thought and consideration. It is easy to have popular legislation, although it would be more popular if the cap were a peppercorn, as my noble friend Lady Pinnock has proposed, but that does not mean that it will work. Plenty of popular legislation turned out not to work. The Dangerous Dogs Act occurs to me, and we must not turn this into a dangerous buildings Act full of good intentions but unable to deliver.

In relation to the other amendments, in Amendments 56 and 57, the noble Lord, Lord Young of Cookham, has produced, as he always does, extremely reasonable amendments and it is hard to see how the Minister can dismiss them. When we look at this, and bearing in mind that the Minister said in relation to the whole of this debate that the Government are still in listening and learning mode, it might be important to listen to them and to bring them forward again.

There was a theme too about excluded groups. It starts with a bold statement that no leaseholder will have to pay and then, as the noble Lords, Lord Leigh and Lord Naseby, and others have pointed out, there are little nooks and crannies in this which means that there are groups of leaseholders who will not benefit from the pledge, apart from the fact that there is a cap, which there certainly should not be.

In the debate on the last group, I commented on government amendments in some detail. I am sorry that it was a bit too hard for some people—it was a bit hard for me and I probably got some of it wrong—but I want to pick out from this current group some points that arise from government Amendment 70, which puts in place remediation contribution orders. I have a feeling that when it comes to assessing what the sum should be, the quantum that appears in a remediation order, all the issues I raised on the last group will raise themselves again. I hope the Minister is not persuaded by an argument that says, “The facts will speak for themselves. It is easy with a building, you can just go and look at it and tell whether it is compliant or not, and then you can decide how much it cost, and then they have to pay.” It is all a question of who decided that that would be used, who put it up in that particular way and what kind of regulation was carried out. We are talking about events that may have taken place 20, 25 or 30 years ago; the current opportunities to retrieve that information are very small and the chance of delivering it is very small as well.

The noble Earl, Lord Lytton, raised the point about the interaction of this process with the courts, which will be required to decide what a building safety order and a remediation contribution order should actually be. What should it be when it gets signed off by the courts? They will want to know the answers to this and I think the Minister will have heard that a number of noble Lords have a sneaking feeling that that will prove a very difficult hurdle to get over with the provisions in the form that they are.

[Lord Greenhalgh (Con)]

My Lords, this has been a fascinating debate, it really has. I shall start with the noble Lord, Lord Stunell, because he served as Minister from 2010 to 2012 and we are graced by his presence. I think that in the coalition he was succeeded by the noble Lord, Lord Foster, from 2012 to 2014, and then there was a chap called Stephen Williams, who never made it to this place. If the noble Lord talks to his colleague Stephen Williams of the Liberal Democrats, who was in the coalition Government, he will know about Florrie’s Law, because that came into existence in 2014. The protection we are talking about today is based on Florrie’s Law that came into effect in public housing. This is about applying that principle of a liability cap across all types of tenure. In fact, I had a meeting in this place with the noble Lord, Lord Pickles, who introduced that amendment in response to a leaseholder who received an enormous bill which was so great that, through the shame of receiving it, she subsequently died. That is why we came up with the cap, as a coalition Government, through Florrie’s Law, and it is that principle we are looking to apply.

I turn to the noble Baroness, Lady Hayman. My admiration for her has increased, with her detailed grip of policy. She read it out with such aplomb, I have to be honest. I think it is important for me to take the high level and I will respond to her in writing, but I want to give her the outline. She is absolutely right in her assessment; what she read out was absolutely correct and the phrases “cascade” and “waterfall” have been applied to the approach we are taking. The waterfall or cascade is in five parts. We start with the developers. Then we move to the freeholders, via an affordability test, and other interim landlords; that is the second wave of the cascade. The third is freehold and interim landlords seeking redress from third parties that have contributed to pollution. The fourth is leaseholders who pay a capped amount—that is for non-cladding costs, to be clear, and is where Florrie’s Law kicks in. Of course, the fifth is freeholders and interim landlords who pay the remainder. That is the cascade approach, but I will write to the noble Baroness, because it was so eloquently put that I believe her questions of me deserve full and detailed answers.

--- Later in debate ---

[Lord Greenhalgh (Con)]

Therefore, the scope of “relevant defect” is sufficiently broad and will take account of many of the defects listed by my noble friend Lord Blencathra.

In relation to cladding, the Government have already put in place separate provisions, whereby leaseholders of properties in buildings over 11 metres will be protected from all costs associated with cladding remediation. I know that my noble friend has raised very real examples of leaseholders with narrow, not broad, shoulders who may have a certain amount of property in their retirement portfolio and have chosen to invest in property as a way of guaranteeing their income in old age. I would like to sit down with my noble friend and policy officials to see that we have got the policy intention right. He raises an important point that, sometimes, there are landlords with pretty narrow shoulders, and I do not think it is the intention of the Secretary of State and the Government to be unduly unfair on those people. We will sit down to understand the concerns. At this stage, there are a number of protections in place, but we recognise where my noble friend is coming from.

I forgot in the desire to get going that I should have declared my residential and commercial property interests as set out in the register. They are all properly laid out.

I also forgot to mention something in response to the noble Baroness, Lady Hayman, who raised the important point about retrospection. I got through the waterfall and the cascade but forgot about retrospection. It has been raised by a number of noble Lords; even the noble Baroness, Lady Pinnock, probably mentioned it as well.

The important thing is that day zero for the building safety reset is 14 February 2022. Once we have got this Bill through, that is the date we will start from. However, retrospection does kick in, in the sense that leaseholders who have spent money to date will not pay more than the cap. We will take into account the money they have already spent. Admittedly, we are not going back to refund those who have already spent money, but there is a cap in terms of liability. I shall also deal with the specific issue raised by my noble friend Lord Leigh of Hurley.

I shall now address the building safety charge amendments tabled by my noble friend Lord Young of Cookham. I shall race through these, because, basically, my noble friend is right to recognise that there may be other ways of skinning a cat, and looking at service charges as opposed to the building safety charge. Let us just see how we evolve that as time goes on—so I shall leave that, if I may. I thank him for raising those points. The Government’s intention was not as it has been painted by some people, but we recognise the points that he has raised.

Turning to Amendment 131, I thank my noble friends for raising this interesting matter, but I am afraid that the Government will not be able to accept the amendment. It would require the Secretary of State to establish a statutory inquiry into costs leaseholders have paid since 10 January 2022 which are not recoverable by those leaseholders. As I have already described, the Government have tabled a series of amendments either to remove or to greatly restrict the costs that the vast majority of leaseholders living in blocks over 11 metres will have to pay. Given these significant protections, the Government do not consider that the costs and bureaucracy involved in setting up another statutory public inquiry would be appropriate or justified. On that basis, I ask my noble friends not to press their amendment.

Turning to Amendment 86, I thank the noble Lord for raising this important matter, but I am afraid that the Government will not be able to accept the amendment. Managing agents play an important role in managing and maintaining buildings on behalf of their clients, and it is fair that they should be paid for the services they provide. I agree with my noble friend that it is important that managing agents do not charge excessive fees for those services, and that such charges must be reasonable. Managing agents also need to be clear about the charges they pass on. This Government strongly believe that service charges should show this. They should be transparent and communicated effectively, and there should be a clear route to challenge or redress if things go wrong.

The law is already clear that service charges must be reasonable and, where costs relate to work or services, the work or services must be of a reasonable standard. Leaseholders may challenge the reasonableness of the service charge through the appropriate tribunal, whether that is the First-tier Tribunal in England, or the leasehold valuation tribunals in Wales.

It is also important to recognise that there may be practical challenges in setting a fee. The cost of carrying out a fire risk assessment specific to the safe occupation of an individual building will range considerably, owing to the significant variations between buildings and their individual risk profiles.

It may have unintended consequences to impose a cap on a charge for work carried out by managing agents solely on fire risk assessments. Capping one cost, without considering whether charges for other activities they carry out should also be capped, might simply allow managing agents to recoup costs from other services they provide. Any such cap would need to ensure that the intended outcomes were achieved.

The Government are already considering in what circumstances fees or charges are justified and whether they should be capped or banned. We established a working group, chaired by the noble Lord, Lord Best, who looked at this alongside the regulation of property agents and reported back to government in 2019. We are currently considering those recommendations.

I thank the noble Baroness, Lady Hayter, for her work in preparing the codes of practice. As the Minister, I can say that we take on board the need to ensure that managing agents are professionalised and properly regulated. The Government will respond on that, and we take it extremely seriously. It is all about getting the right legislative vehicle, with some forward planning. Noble Lords will hear more about that—“in due course” is, I think, the phrase we use.

With regard to legal costs, not all leases allow landlords to recover their legal costs incurred through the service charge. Even where the lease permits this, there are already statutory protections in existence. Where a landlord has incurred, or has intended to incur, legal costs in connection with proceedings before a court or an appropriate tribunal involving a leaseholder, leaseholders can apply under Section 20C of the Landlord and Tenant Act 1985 for some or all of those costs not to be regarded as “relevant costs” in determining the amount of any service charge payable by the leaseholder. I thank the noble Lord for raising this important matter and assure him that the Government are actively considering the issues raised. With that assurance, I ask him to not move his amendment.

Now we turn to the amendment from the noble Baroness, Lady Hayman of Ullock, the Workington Warrior. She highlighted an amendment raised in the other place on the proposed building works agency, which would undertake the work the department is already doing on the auditing and monitoring of buildings over 18 metres with unsafe cladding. This represents poor value for money and would have the effect of increasing costs and burdens. Furthermore, the proposed works agency would oversee an audit of cladding, insulation and other building safety issues in all buildings over two storeys. This would result in hundreds of thousands of buildings being audited and would be very expensive and take numerous years. We do not consider this proportionate and therefore we oppose it.

--- Later in debate ---

[The Earl of Lytton (CB)]

The Minister answered a query I raised in connection with Amendment 72; I apologise for jumping a group. It was to do with commercial developers. I think I used the term “commercial developers”, but I intended to say “developers of commercial property”—that is, as opposed to commercial developers of residential property.

[Lord Greenhalgh (Con)]

Oh, I see. You said commercial developers?

[The Earl of Lytton (CB)]

I said commercial developers, but I meant to say “developers of commercial property”. However, I will leave that point for the next debate.

[Lord Young of Cookham (Con)]

My Lords, as the Committee enters its sixth hour of sitting, this is not the time for a comprehensive wind-up. However, I thank all those who have taken part in this debate.

My noble friend Lord Naseby made a valuable point about buy-to-let investors. Over the past 10 or 20 years, buy to let has become an alternative to a conventional pension for many people. I am grateful that my noble friend the Minister said that he is open to discussion on this; we count that as a win.

My noble friend Lord Blencathra had a series of amendments on the theme of protecting leaseholders. I am grateful for them.

My noble friend Lord Leigh of Hurley made a legitimate point about the freeholder who had not claimed the money he could have. I wrote down the solution that my noble friend the Minister arrived at. He said, “We will fix it at the political level.” The mind boggles as to what exactly that involves but I am sure that, with his robust physique and experience of government, he will come up with a satisfactory outcome on that.

The amendment in the name of the noble Baroness, Lady Pinnock, would remove the cap for leaseholders. I have a lot of sympathy with that. New paragraph 2(1), proposed by government Amendment 92, states:

“No service charge is payable under a qualifying lease in respect of a relevant measure relating to a relevant defect if a relevant landlord … is responsible for the relevant defect.”


That is fine, but then there is a whole series of exclusions, of which this is one. I find it difficult to reconcile the cap with the principle that the leaseholder is innocent and should not pay; I think we will have to come to back to that.

The noble Earl, Lord Lytton, made the same point as my noble friend Lord Leigh of Hurley: that the leaseholder should be able to apply. If the leaseholder could have applied in my noble friend’s case, there would not have been a problem and the freeholder would not have been in the loop, as it were.

I am grateful to my noble friend Lady Neville-Rolfe for supporting a number of the amendments. The noble Baroness, Lady Hayman, had her own, thoughtful approach to protecting leaseholders. She referred to the cascade. I hope that her many questions will be answered; perhaps we can all share in the letter that goes round. She also supported the request for an inquiry into compensation, for which I am grateful.

On the waterfall, the Government did not seem to appear in it. I thought that they were right at the end, but they have somehow been left out. I think that the Government are at the end of the waterfall if all else fails; my noble friend the Minister is indicating that this may not be the case, but what are the levy and fund for if not to help where the costs are not otherwise met by the freeholder, the leaseholder or the developer?

The noble Lord, Lord Stunell, asked how the cap was arrived at. It may well have been through a reverse process involving the Treasury.

Finally, my noble friend the Minister said that I thought he was a snake oil salesman. I believe that he believed what he said; my comment was about the pace at which he said it, which was like an advertisement where the terms and conditions are spelled out at an accelerated pace and one does not really have time to hear them. I think my noble friend said that enfranchised leaseholders are now within the scheme; I think he said that because I read his lips. I find that difficult to reconcile with what is in government Amendment 63:

“‘Relevant building’ does not include a self-contained building or self-contained part of a building … in relation to which the right to collective enfranchisement … has been exercised.”


If that should not be there, that is fine, but that is how I read it; I also made that point in an earlier contribution.

[Lord Greenhalgh (Con)]

We can sort it out. I am told by my lawyer that you are wrong.

[Lord Young of Cookham (Con)]

If I am wrong, the Bill may be wrong, because I have just read out what is in it, but I think this is something we can sort out at the political level.

I am grateful to all noble Lords who have taken part in this debate. I beg leave to withdraw my amendment.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

61: Clause 116, page 123, line 39, leave out subsection (2)
Member’s explanatory statement
This amendment removes the provision providing that Part 4 does not apply in relation to the Palace of Westminster.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

62: Before Clause 117, insert the following new Clause—
“Remediation of certain defects
(1) Sections (Meaning of “relevant building”) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases) make provision in connection with the remediation of relevant defects in relevant buildings.(2) In those sections—(a) sections (Meaning of “relevant building”) to (Associated persons) define “relevant building”, “qualifying lease”, “the qualifying time”, “relevant defect” and “associate”;(b) section (Remediation costs under qualifying leases) and Schedule (Remediation costs under qualifying leases) contain protections for tenants under qualifying leases in respect of costs connected with relevant defects, and impose liabilities on certain landlords;(c) section (Remediation orders) makes provision about remediation orders, under which a landlord in a relevant building is required to remedy certain relevant defects;(d) section (Remediation contribution orders) makes provision about remediation contribution orders, under which an associate of a landlord in a relevant building is required to contribute towards the costs of remedying certain relevant defects;(e) section (Meeting remediation costs of insolvent landlord) makes provision about cases where a company that is a landlord in a relevant building is being wound up, and confers on the court a power to require an associate of the company to contribute to its assets.”Member’s explanatory statement
This new Clause introduces provisions about the remediation of certain defects arising out of works carried out before commencement.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

64: Before Clause 117, insert the following new Clause—
“Meaning of “qualifying lease”
(1) This section applies for the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases).(2) A lease is a “qualifying lease” if—(a) it is a long lease of a single dwelling in a relevant building,(b) the tenant under the lease is liable to pay a service charge,(c) the lease was granted before 14 February 2022, and(d) at the beginning of 14 February 2022 (“the qualifying time”)—(i) the dwelling was a relevant tenant’s only or principal home,(ii) a relevant tenant did not own any other dwelling in the United Kingdom, or(iii) a relevant tenant owned only one dwelling in the United Kingdom apart from their interest under the lease.(3) Where a dwelling was at the qualifying time let under two or more leases to which subsection (2)(a) and (b) apply, any of those leases which is superior to any of the other leases is not a “qualifying lease”. (4) For the purposes of this section—(a) “long lease” means a lease granted for a term of years certain exceeding 21 years, whether or not it is (or may become) terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture or otherwise;(b) a person “owns” a dwelling if the person has a freehold interest in it or is a tenant under a long lease of it;(c) “relevant tenant” means a person who, at the qualifying time, is the tenant, or any of the tenants, under the lease mentioned in subsection (2);(d) “service charge” has the meaning given by section 18 of the Landlord and Tenant Act 1985.”Member’s explanatory statement
This new Clause defines “qualifying lease” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.

[Lord Greenhalgh (Con)]

I beg to move.

Amendment 65 (to Amendment 64) not moved.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

66: Before Clause 117, insert the following new Clause—
“Meaning of “relevant defect”
(1) This section applies for the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases).(2) “Relevant defect” means a defect as regards a building that—(a) arises as a result of anything done (or not done), including anything used (or not used), in connection with relevant works, and(b) causes a building safety risk.(3) In subsection (2) “relevant works” means works relating to the building (including its initial construction) that were carried out—(a) before completion, if completion occurred in the period of 30 years ending with the coming into force of this section, or(b) by or on behalf of a relevant landlord or management company, after completion and within that period.(4) For the purposes of this section—“building safety risk”, in relation to a building, means a risk to the safety of people in or about the building arising from—(a) the spread of fire, or(b) the collapse of the building or any part of it;“completion” and “management company” are defined by regulations made by the Secretary of State;“relevant landlord” means a landlord under a lease of the building or any part of it.”Member’s explanatory statement
This new Clause defines “relevant defect” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.

[Lord Greenhalgh (Con)]

I beg to move.

Amendment 66A (to Amendment 66) not moved.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

67: Before Clause 117, insert the following new Clause—
“Associated persons
(1) For the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases), a person (A) is associated with another person (B) in the circumstances mentioned in subsections (2) and (3).(2) If A is an individual, A is associated with any body corporate of which A was a director at any time in the period of 5 years ending at the qualifying time.(3) If A is a body corporate, it is associated with another body corporate (B) if—(a) at any time in the period of 5 years ending at the qualifying time, a person who was a director of A was also a director of B, or(b) at the qualifying time, one of them controlled the other or a third body corporate controlled both of them.Subsections (4) to (6) set out the cases in which a body corporate is regarded as controlling another body corporate.(4) A body corporate (X) controls a company (Y) if X possesses or is entitled to acquire—(a) at least half of the issued share capital of Y,(b) such rights as would entitle X to exercise at least half of the votes exercisable in general meetings of Y,(c) such part of the issued share capital of Y as would entitle X to at least half of the amount distributed, if the whole of the income of Y were in fact distributed among the shareholders, or(d) such rights as would, in the event of the winding up of Y or in any other circumstances, entitle it to receive at least half of the assets of Y which would then be available for distribution among the shareholders.(5) A body corporate (X) controls a limited liability partnership (Y) if X—(a) holds a majority of the voting rights in Y,(b) is a member of Y and has a right to appoint or remove a majority of other members, or(c) is a member of Y and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in Y.(6) A body corporate (X) controls another body corporate (Y) if X has the power, directly or indirectly, to secure that the affairs of Y are conducted in accordance with X’s wishes.(7) In subsection (5) a reference to “voting rights” is to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.(8) In determining whether one body corporate (X) controls another, X is treated as possessing—(a) any rights and powers possessed by a person as nominee for it, and(b) any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).”Member’s explanatory statement
This new Clause defines “associated person” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

The question is that Amendments 79 to 81 be agreed to.

[Lord Greenhalgh (Con)]

I am sorry. Those amendments are not government amendments. Will they go in Hansard?

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock)]

Do not worry. They will not because Hansard will cover your back and my back. I have been told that this is the most complicated thing that has been done in Grand Committee for years, so I think we have to accept it if I have made a mistake. I thought they were government amendments.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

90: Clause 120, page 129, line 4, at end insert—
“(c) the relevant Northern Ireland department.”Member’s explanatory statement
This amendment places the Secretary of State under a duty to consult the relevant department in Northern Ireland before making arrangements to establish the new homes ombudsman scheme.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

92: Before Schedule 9, insert the following new Schedule—
“SCHEDULE REMEDIATION COSTS UNDER QUALIFYING LEASESInterpretation
1_ In this Schedule—“associated”: see section (Associated persons);“building safety risk” has the meaning given by section (Meaning of “relevant defect”);“qualifying lease”: see section (Meaning of “qualifying lease”);“the qualifying time” has the same meaning as in section (Meaning of “qualifying lease”); “relevant building”: see section (Meaning of “relevant building”);“relevant defect”: see section (Meaning of “relevant defect”);“relevant measure”, in relation to a relevant defect, means a measure taken—(a) to remedy the relevant defect, or(b) for the purpose of—(i) preventing a relevant risk from materialising, or(ii) reducing the severity of any incident resulting from a relevant risk materialising;“relevant risk” here means a building safety risk that arises as a result of the relevant defect;“service charge” has the meaning given by section 18 of the Landlord and Tenant Act 1985.No service charge payable for defect for which landlord or associate responsible
2_(1) No service charge is payable under a qualifying lease in respect of a relevant measure relating to a relevant defect if a relevant landlord—(a) is responsible for the relevant defect, or(b) is or has at any time been associated with a person responsible for a relevant defect.(2) For the purposes of this paragraph a person is “responsible for” a relevant defect if—(a) in the case of an initial defect, the person was the developer or carried out works relating to the defect;(b) in any other case, the person carried out works relating to the defect.(3) In this paragraph—“developer” means a person who undertakes or commissions the construction or conversion of a building (or part of a building) with a view to granting or disposing of interests in the building or parts of it;“initial defect” means a relevant defect arising in connection with works carried out before completion (within the meaning of section (Meaning of “relevant defect”));“relevant landlord”, in relation to a qualifying lease, means the landlord under the lease or any superior landlord.Paragraph 2: extension of protection to superior leases
3_(1) This paragraph applies if, as a result of paragraph 2, an amount of service charge (an “unrecoverable amount”) that would otherwise be payable under a qualifying lease in respect of a relevant measure is not payable.(2) Any superior lease has effect as if any liability of the tenant under the superior lease to pay an amount in respect of the relevant measure (“the relevant amount”) were a liability to pay an amount equal to—(a) the relevant amount, minus(b) the unrecoverable amount.(3) In this paragraph “superior lease” means any lease which is superior to the qualifying lease.No service charge payable if prescribed conditions are met
4_(1) No service charge is payable under a qualifying lease in respect of a relevant measure relating to any relevant defect if any prescribed conditions, relating to a relevant landlord or the value of the qualifying lease, are met.(2) In this paragraph—“prescribed” means prescribed by regulations made by the Secretary of State;“relevant landlord” has the same meaning as in paragraph 2. Limit on service charge in other cases
5_(1) A service charge which would otherwise be payable under a qualifying lease in respect of a relevant measure relating to any relevant defect is payable only if (and so far as) the sum of—(a) the amount of the service charge, and(b) the total amount of relevant service charges which fell due before the service charge fell due,does not exceed the permitted maximum.(2) In this paragraph “relevant service charge” means a service charge under the lease in respect of a relevant measure relating to any relevant defect that—(a) fell due in the pre-commencement period, or(b) falls due after commencement.(3) In sub-paragraph (2) “the pre-commencement period” means the period—(a) beginning 5 years before commencement or, if later, on the day the relevant person became the tenant under the qualifying lease, and(b) ending with commencement.“The relevant person” means the person who was the tenant under the qualifying lease at commencement.(4) In this paragraph—“commencement” means the time this paragraph comes into force;“the permitted maximum”: see paragraph 6.Paragraph 5: the permitted maximum
6_(1) In paragraph 5 “the permitted maximum”, in relation to a qualifying lease, has the following meaning.(2) The permitted maximum is (subject to sub-paragraphs (3) to (5))—(a) if the premises demised by the qualifying lease are in Greater London, £15,000;(b) otherwise, £10,000.(3) Where the qualifying lease is a shared ownership lease and the tenant’s total share was less than 100% at the qualifying time, the permitted maximum is the tenant’s total share (as at that time) of what would otherwise be the permitted maximum.(4) Where the value of the qualifying lease at the qualifying time is at least £1,000,000 but does not exceed £2,000,000, the permitted maximum is £50,000.(5) Where the value of the qualifying lease at the qualifying time exceeds £2,000,000, the permitted maximum is £100,000.(6) The Secretary of State may by regulations make provision about the determination of the value of a qualifying lease for the purposes of paragraph 4 and this paragraph.(7) In this paragraph “shared ownership lease” and “total share” have the meaning given by section 7 of the Leasehold Reform, Housing and Urban Development Act 1993.Annual limit on service charges
7_(1) The Secretary of State may by regulations make provision limiting the total amount of service charges payable in any period of 12 months under a qualifying lease in respect of relevant measures relating to any relevant defect to one fifth of the permitted maximum.(2) In this paragraph “the permitted maximum” means the permitted maximum as defined by paragraph 6 in relation to the lease.No service charge payable for cladding remediation where tenant was resident
8_(1) No service charge is payable under a qualifying lease in respect of cladding remediation if the condition in section (Meaning of “qualifying lease”)(2)(d)(i) (resident tenant) was met at the qualifying time. (2) In this paragraph “cladding remediation” has the meaning given by regulations made by the Secretary of State.No service charge payable for legal expenses relating to relevant defects
9_(1) No service charge is payable under a qualifying lease in respect of legal expenses relating to the liability (or potential liability) of any person incurred as a result of a relevant defect.(2) In this paragraph “legal expenses” means any costs incurred, or to be incurred, in connection with—(a) obtaining legal advice,(b) any proceedings before a court or tribunal,(c) arbitration, or(d) mediation.Paragraphs 2 to 9: supplementary
10_(1) This paragraph supplements paragraphs 2 to 9 (the “relevant paragraphs”).(2) Where a relevant paragraph provides that no service charge is payable under a lease in respect of a thing—(a) no costs incurred or to be incurred in respect of that thing (or in respect of that thing and anything else)—(i) are to be regarded for the purposes of the relevant provisions as relevant costs to be taken into account in determining the amount of a service charge payable under the lease, or(ii) are to be met from a relevant reserve fund;(b) any amount payable under the lease, or met from a relevant reserve fund, is limited accordingly (and any necessary adjustment must be made by repayment, reduction of subsequent charges or otherwise).(3) In this paragraph—“the relevant provisions” means sections 18 to 30 of the Landlord and Tenant Act 1985 (service charges) and section 42 of the Landlord and Tenant Act 1987 (service charge contributions to be held on trust);“relevant reserve fund” means—(a) a trust fund within the meaning of section 42 of the Landlord and Tenant Act 1987,(b) an express trust of a kind mentioned in subsection (9) of that section, comprising payments made by the tenant under the qualifying lease and others, or(c) any other fund comprising payments made by the tenant under the qualifying lease and others, and held for the purposes of meeting costs incurred or to be incurred in respect of the relevant building in question or any part of it (or in respect of that building or part and anything else).No increase in service charge for other tenants
11_ Where—(a) an amount (“the original amount”) would, apart from this Schedule, be payable by a tenant under a lease of premises in a relevant building, and(b) a greater amount would (apart from this paragraph) be payable under the lease as a result of this Schedule,the lease has effect as if the amount payable were the original amount.Recovery of service charge amounts from landlords
12_(1) The Secretary of State may by regulations make provision for and in connection with the recovery, from a prescribed relevant landlord, of any amount that is not recoverable under a lease as a result of this Schedule.(2) In this paragraph—“prescribed” means prescribed by regulations under this paragraph;“relevant landlord”, in relation to a lease, means the landlord under the lease or any superior landlord. Information
13_(1) The Secretary of State may by regulations make provision requiring a tenant under a qualifying lease to give prescribed information or documents to the landlord under the lease or any superior landlord.(2) The regulations may provide that the information or documents are to be given in a prescribed way.(3) In this paragraph “prescribed” means prescribed by the regulations.Anti-avoidance
14_ A covenant or agreement (whenever made) is void insofar as it purports to exclude or limit any provision made under this Schedule.”Member’s explanatory statement
This new Schedule contains protections for certain leaseholders and others, relating to certain remediation costs, and imposes corresponding liabilities on certain landlords.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

95: Schedule 9, page 211, line 38, leave out “and the Scottish Ministers” and insert “, the Scottish Ministers and the relevant Northern Ireland department”
Member’s explanatory statement
This amendment is to ensure that the new homes ombudsman scheme includes provision about provision of information to the relevant department in Northern Ireland.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

97: Clause 122, page 130, line 4, after “Scotland” insert “or Northern Ireland”
Member’s explanatory statement
This amendment glosses the meaning of “occupation condition” for homes in Northern Ireland.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

98: Clause 122, page 130, line 23, at end insert—
“(c) in relation to land in Northern Ireland, a legal estate which is—(i) an estate in fee simple absolute in possession,(ii) an estate in fee simple in possession subject to a rent payable under a fee farm grant, or(iii) a term of years absolute granted for a term of more than 21 years from the date of the grant.”Member’s explanatory statement
This amendment provides the meaning of “relevant interest” for land in Northern Ireland.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

101: Clause 123, page 131, line 8, leave out from “exercisable” to end of line 10 and insert “—
(a) in the case of regulations made by the Secretary of State or the Welsh Ministers, by statutory instrument, and(b) in the case of regulations made by a Northern Ireland department, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).”Member’s explanatory statement
This amendment provides for procedural matters connected to the power conferred on a Northern Ireland department to make regulations.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

103: Clause 124, page 132, line 8, at end insert—
“(c) the relevant Northern Ireland department.”Member’s explanatory statement
This amendment places the Secretary of State under a duty to consult the relevant department in Northern Ireland before making regulations about the new homes ombudsman scheme.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

105: Clause 126, page 133, line 5, leave out “and the Scottish Ministers” and insert “, the Scottish Ministers and the relevant Northern Ireland department”
Member’s explanatory statement
This amendment places the Secretary of State under a duty to consult the relevant department in Northern Ireland about the code of practice.

Building Safety Bill

Lord Greenhalgh Excerpts

Committee stage
Thursday 24th February 2022 Grand Committee

[Baroness Pinnock (LD)]

My Lords, we were waiting for the government Minister to introduce his amendments, so that we can then respond.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

Sorry, my Lords, I am just learning as we go, as they say. I really admire this House because, obviously, this is the day following the night when Ukraine, a sovereign state, was invaded by Russia, and yet the serious business of government continues, as we consider this group of amendments. I always distil groups of amendments into three words or fewer, and I can do this one in two: these are “technical amendments”—it is not that hard really.

Before introducing the government amendments, let me start by saying that I have listened to speeches from two of my favourite speakers—everyone should have favourites. I have known the noble Lord, Lord Best, for some time; let us say that I was in my prime when we first met—a young man, with a future ahead of me—and we went off for a retreat in Windsor Castle, where Richard—the noble Lord—and I thought about big thoughts. I have a lot of sympathy for what the noble Lord said, but I shall read out my speech. However, the bottom line is that he has raised important points about how we can strengthen the new homes ombudsman—indeed, we need to make sure that the complaints process works across all types of housing and all type of tenures.

I should say to the noble Lord that we are probably going to look at this in a different way, so if I come across in any way negative, it is not because I do not agree with him, but we need to find the right vehicle to do this, which is probably, as I said before, through improved warranties. It is an absolute shocker that the warranty system for housing, which is the single biggest expenditure for an individual, is so poor—a point that the noble Lord, Lord Kennedy, has brought up on a number of occasions—and I have met with the warranty providers. We need to ensure that we extend the period of coverage that is available when you buy your own home. The period is slightly longer for public or social housing, where it is 12 years, but it is 10 years for private housing—and that in itself is odd, as these are still homes, whether they are social homes or private homes. So I thank the noble Lord, Lord Best, for his thinking.

My absolute favourite rhetorical speaker is my noble friend Lord Blencathra. To be honest, I always remember to declare my interests because he always starts off by declaring his interests, so I declare all my interests—residential and commercial property interests—as set out in the register. I follow my noble friend in doing that. Also, I love the passion with which he says that, actually, it is important that people who break the law are penalised. Effectively, he is saying that what they have done is a crime and they should pay a lot of money for it, and I completely agree with those sentiments. If I in any way seem to be resisting in my speech, he will know—he has been in government and understands these things—that I am with him in spirit.

I will now speak to my amendments, which are government Amendments 17, 18, 19, 20, 22, 27 and 29. These technical amendments make changes to Clause 41 and Schedule 5, to create an information sharing gateway between the regulatory authorities of the building control profession in England and Wales. The information sharing gateway also extends to a person to whom the regulatory authority has delegated registration functions under new Section 58Y.

Some registered building control approvers and building inspectors will operate in both England and Wales. These amendments will ensure that, if the regulatory authority in one nation identifies that a cross-border registered building control approver or building inspector has breached professional conduct or operational standards rules, it can share this information with the regulatory authority of the other nation, if appropriate. The regulatory authority of the other nation may then wish to take investigatory action to discern whether similar breaches are taking place by the same registered building control approver or building inspector in their jurisdiction. These amendments will therefore ensure that regulatory bodies can share information with one another to effectively regulate the building control profession.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

Could the Minister slow down a little? I do not know where I am any more. Could he start that group again? I am trying to make some notes on what he is saying.

[Lord Greenhalgh (Con)]

I am sorry; I will slow down. Amendment 23 is a drafting change to Clause 52 and should be read alongside Amendment 26, which amends the same section of the Building Act 1984. Amendment 26 is a tidying-up amendment and is consequential on the repeal of Section 16 of the Building Act 1984, provided for by paragraph 20 of Schedule 5.

Amendment 133, to Clause 135, relates to the requirement for a regular, independent review of the building and construction products regulatory system, which must cover the effectiveness of the building safety regulator. This minor amendment defines the regulator’s functions to be covered by this review, using the same definition of those functions as in Part 2 of the Bill.

I turn to government Amendments 21, 25, 30, 41, 42, 61, 138 and 146. They do three things. First, they extend the application of the Building Act and building regulations to work on Crown buildings and by Crown bodies. The Government believe that the ownership of a building should not determine whether the new building safety regime, or building regulations requirements, should apply. There should be a consistent approach in how building safety legislation operates across the whole life cycle of a building.

Parts 2 and 4 of the Building Safety Bill apply to the Crown by virtue of Clause 137. The arrangements during the design and construction stages are being implemented by way of changes to the Building Act and, in due course, through building regulations. To apply the requirements for gateways and the golden thread to Crown buildings, the Building Act and the building regulations will need to be applied to work on Crown buildings. This new clause does that.

There is an uncommenced provision in Section 44 of the Building Act which would allow the substantive requirements of building regulations to be applied to the Crown. The drafting of that section has limitations, however, so we consider it better to start afresh by repealing and replacing Section 44. There are also some necessary exclusions to reflect that the Crown cannot be subject to criminal sanctions.

Secondly, the amendments make provision about the application of the Building Act and building regulations to work on the Palace of Westminster and other buildings on the Parliamentary Estate. At Second Reading, the right reverend Prelate the Bishop of Winchester asked in his valedictory speech that the building regulations should apply to the restoration of the Palace of Westminster. This change to the Building Act will ensure that happens.

Finally, this new clause provides that if, in future, a building on the Parliamentary Estate came within scope of Part 4 of the Bill, that part would apply, subject to equivalent exclusions to those which affect how the Building Act and building regulations are being applied to the Crown and Parliament. These new sections of the Building Act and the Bill therefore ensure a consistent approach to building safety for Crown and parliamentary buildings.

Finally, I turn to government Amendments 90, 91, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 142 and 143, which relate to the new homes ombudsman provisions and expand them to Northern Ireland. These provisions have already been expanded to Scotland and Wales, so this ensures that new-build home buyers will have improved protection when things go wrong, no matter where they live in the UK.

Amendments 97 and 98 enable the provisions to work practically in Northern Ireland as a consequence of extending the scope of the provisions. Amendments 90, 91, 100, 103, 104, 105 and 106, include consultation requirements so that the Secretary of State must consult the relevant department in Northern Ireland designated by the First Minister or Deputy First Minister acting jointly before exercising powers concerning the scheme, or consult the Executive Office in Northern Ireland when a department has not been designated. The Secretary of State must consult the Northern Ireland Executive before making arrangements for the scheme, before making regulations requiring membership of the scheme, and arranging for that requirement to be enforced, and before a developers’ code of practice is issued, revised or replaced, either by the UK Government or by a third-party scheme provider with the Secretary of State’s approval.

Amendment 99 confers a power on the relevant national authority in Northern Ireland to add to the meaning of the term “developer” in the new homes ombudsman provisions in relation to homes in Northern Ireland, through regulations as appropriate, and following consultation with the other relevant national authorities. Amendments 95 and 96 include provision so that any externally run new homes ombudsman scheme involves the provision of information to the department in Northern Ireland designated by the First Minister and Deputy First Minister acting jointly.

I hope that your Lordships will be pleased that the government amendments in my name today will help to deliver the effective implementation of the new regulatory regime, as well as providing redress for homeowners across the union.

[Baroness Pinnock (LD)]

After that rapid run-through of about 40 amendments in this group, I shall respond to all of them as follows.

The first three amendments are in the name of the noble Lord, Lord Blencathra, and I have to say that I have a lot of sympathy with what he said. Too many times, when new homes are built in the ward where I live and which I represent—and I declare again my interest as a councillor in Kirklees—roads are not completed to adoptable standards, because that is a good way of saving money. You sell the homes and move on quickly, and it is then really hard for enforcement to be effective, especially when the fines imposed are paltry in relation to the costs of enforcement. So I have a lot of sympathy with what the noble Lord, Lord Blencathra, has said, and I hope that the Government could look again at that element of the building safety regime.

The next amendments referred to are those in the name of the noble Lord, Lord Best, Amendments 94A, 94B and 97A, about the new homes ombudsman. I agree completely with what the noble Lord, Lord Best, has said—and the Minister is nodding, so I assume that he does too, and will make changes at Report. That is excellent. It is especially about the issue in relation to Amendment 97A, about extending the time limit to six years. People buy a new home, starry-eyed, and move in—excited, obviously—then one or two snagging issues arise; they try to get them resolved, they fail to do so, time runs out, the two years has gone and they have nowhere to go. So it is an excellent move to extend that to six years.

In my capacity as a local councillor, I have had to try to help people, and I have to say that I have failed, because we did not have these powers in place at the time, to do with people for whom simple things like plumbing was not done adequately. Their kitchens were being flooded out, and nobody would take on the responsibility because their time had run out. So I totally endorse the views expressed, and the hope expressed by the noble Lord, Lord Best, that the timeframe for the new homes ombudsman should be six years.

I heard what the Minister said before he introduced his great long list of amendments: that the Government were considering extending the warranties for new homes from 10 years. The trouble with warranties, unless they are really tightly worded, is that developers can find a loophole. You end up with a new home owner on their own trying to get recompense from a powerful business—often a David and Goliath situation and, in this case, David often does not win. That is why I support the move of the noble Lord, Lord Best, to give the new homes ombudsman—him or her; would it not be good if it was a woman?—power to deal with defects in new homes.

That brings us to the many government amendments that the Minister introduced, which he called technical. I always worry when Ministers call amendments technical. It is like saying, “Don’t worry about these. We will rush them through, nobody will notice and you might regret what we have to say.” I am pleased that he was very clear that the building safety regime will apply equally—I hope this is what I heard—to all buildings, regardless of where they are in the UK, be they Crown buildings or, indeed, the Palace of Westminster. I would love to have a discussion about the impact that will have on the restoration project.

Extending the scope of the Bill to include the devolved Governments has been rather rushed over. I have here the Welsh Government’s legislative consent memorandum on the Bill, in which the Senedd says that its consent is required to Clause 126, to which the Government have an amendment, about remediation and redress. I seek from the Minister some explanation that the Government will not ride roughshod over the powers of the Senedd. We have devolved Governments in three parts of the UK, and we need to respect their powers and work with those Governments. I am sure they would work with the Government as long as they do not try to act quickly, not get their consent but try to rush over them. That is no way to work.

I have here a long paper, which I am sure the Minister has seen, which outlines exactly what the Senedd hopes the Government will do. I am sure his civil servants will be able to give him a form of words which will enable me to reassure those of my colleagues who are concerned about Welsh affairs that the Government do not intend to intrude on the powers of the Senedd. With those words, I look forward to the Minister’s response.

--- Later in debate ---

[Lord Thurlow (CB)]

Forgive me butting in at the end but before the Minister responds, I thought that I should make a further point in connection with the amendments of the noble Lords, Lord Blencathra and Lord Best.

It is a reminder that the property development industry, when undertaking projects of blocks of flats or groups of houses—projects of medium size upwards—used to employ a clerk of the works. I am not sure whether it has been a mandatory appointment within the chain of building command, but the clerk of the works was defined as someone onsite who inspected workmanship, its quality, the safety of the work being done and, importantly, reported to senior managers and clients.

Inevitably, lack of mandatory appointment requirements and fewer and fewer clerks of works on projects led to shortcuts and poor workmanship. A clerk of the works might cost between £50,000 and £100,000 a year. For the employer, that could be significantly more, given all the on-costs. On many projects, that adds up to millions of pounds,. So of course those appointments became redundant in the eyes of the bean counters. That simply underlines the importance of the ombudsman’s role, its independence from the industry in absolute terms and the period of time limitations within which claims can be brought.

[Lord Greenhalgh (Con)]

My Lords, I had not thought that this debate would take quite so long, but it has been worth listening to every second of every minute. I thank the noble Lord, Lord Thurlow, for that late intervention because we have unlearned a lot of the practices that led to a higher quality of build. We would not be in the mess we were in if we had not unlearned some of the things that we did so well during the Victorian period, when there was a way of building using pattern books. Everything was essentially a process, which the Edwardians developed further. Somewhere along the line we have lost that desire to build quality. Just imagine if the Romans came back from the dead to look at what we were building over the past 30 years in the 90s, the noughties and the 10s. They would be absolutely appalled at the standard of build. They did not build their temples to last 10 or 15 years but centuries. We have got to learn that quality of our built environment matters. I thank noble Lords for raising some of their points.

One of the objectives of the Bill is not just to create a regulatory system that works but to raise the competence of an industry that has cut corners and, as the noble Earl, Lord Lytton, said, effectively gamed the system. We have to get back to the culture around quality, competence and professionalism. That will take not just legislation but an attitude of mind.

I start by responding directly to the noble Lord, Lord Stunell, around impact assessments. He is absolutely right. The government amendments came thick and fast. My entire weekends have been ruined since the beginning of the year, working at pace as we approved a plethora of amendments. It is fair to say that the sheer pace of this has meant that it has not been possible to look entirely at the impact. We just know that they are the right lines, and the impacts will be looked at in due course—my response says, “We are looking at the impact of the government amendments and will publish an assessment in due course.” We have been working very fast to get this right in the time we have, and we thought it was very important that we were ready to have these discussions in Committee of government amendments before we get to the even more serious business of Report.

I shall respond to the noble Baroness, Lady Pinnock, supported by the noble Baroness, Lady Hayman of Ullock, about Clause 126 and intruding on the powers of the Senedd. We have worked closely with the Welsh Government across all areas of the Bill to develop and agree measures that work for England and Wales. The Welsh Government have agreed the measures applying to Wales and we expect legislative consent in due course.

I have had a number of ministerial meetings with my counterparts in the devolved Administrations, and there are lessons to be learned from the Welsh approach to the building safety crisis—and, indeed, from my Scottish and Northern Ireland colleagues—on this issue. It affects all our nations in this great United Kingdom, and we have a constant dialogue as we grapple with it, but it is fair to say that the lion’s share of the problem lies in our big cities here in England. That is not to say that we are not learning from the Welsh and others, and of course we will not ride roughshod over them. I hope that gives the noble Baronesses, Lady Pinnock and Lady Hayman of Ullock, some reassurance.

I thank my noble friend Lord Blencathra for bringing forward his amendments, which are clearly aimed to impose greater punishment on those who breach building regulations. I thank the noble Baroness, Lady Hayman of Ullock, for mentioning a breach of the regulations, probably around the time when my noble friend Lord Young was the Housing Minister. I do not know whether he was responsible for the 1984 building regulations—he was. We have the living history in the Room, in the person who brought them forward. Do you know what I was doing in 1984? I was doing my A-levels, and here we have the Minister who brought forward the building regulations in 1984. That is the kind of place we have: people with decades of understanding of these issues.

It is a crime to breach building regulations. If you commit a crime in this country, there is no statute of limitations—I know that from being Deputy Mayor for Policing and Crime—so people can go after you after any period. I have huge sympathy for the intent behind there not being a short period of time, and it is important that we recognise that breaches of building regulations are criminal; that cannot be said often enough. I thank the noble Baroness for raising that again, and the Government have sympathy, but I fear we are unable to accept my noble friend’s proposals, as I intimated in my opening speech.

Looking first at Amendment 13, we consider that the changes are unnecessary for a couple of reasons. First, for some years now, the magistrates’ courts have had the power to impose unlimited fines—and fines are, of course, the principal punishment available in respect of corporate bodies, which are most likely to be in a position to commit the offence of breaching building regulations.

Secondly, it will not have escaped your Lordships’ notice that significant backlogs have developed in the Crown Court over the past two years as Covid protocols have been introduced. The costs to the courts service, the prosecution and the defence are also far higher in the Crown Court.

As was raised by the noble Baroness, Lady Hayman of Ullock, it is quite possible for the building regulations to be breached in a relatively minor way. In such cases, it would be entirely appropriate for the case to be dealt with by the magistrates. It is, of course, also possible for breaches to be extremely serious, which is why the Bill for the first time allows cases to be dealt with in the Crown Court, in the same way as crimes are dealt with: sometimes in the magistrates’ court, sometimes in the Crown Court. However, we do not consider that it would be sensible to require all breaches of the building regulations to be dealt with in the Crown Court.

Turning to Amendment 14, I say to my noble friend that I agree with increasing the daily rate of fine for ongoing offences. Indeed, the Bill already increases the daily rate from £50—where it has been since 1984, when I am sure it was set by my noble friend Lord Young, when £50 was a considerably greater sum of money than it is today—to £200, which is the current rate for a level 1 fine. However, we consider that increasing it further to £2,500, as my noble friend proposes, “would be disproportionate”—that is what it says here, anyway.

The principal aim of the prosecution must be to impose an initial fine commensurate to that particular offence; any further fine should merely encourage work to be put right, rather than imposing huge additional punishment. We consider the potential maximum of £5,600 for the month of February is likely to be significantly more proportionate on top of the fine imposed on conviction, rather than the £70,000 proposed by my noble friend.

On Amendment 15, imposing a sentence according to a mathematical formula raises a number of issues. First, the cost of the work done will not always be clear; there may be disputes about the cost in the invoice or the value of the work actually done, and resolving this would take up the court’s valuable time. Secondly, the court might consider that, in a particularly egregious case, a significantly higher fine is required than one that would be arrived at from the calculation. The amendment would preclude the court from imposing that higher fine. Finally, the provision in the amendment to enable the court to impose rapidly escalating further fines, if the breach remains unresolved, has the potential to lead to significant unfairness—as, for example, a £10,000 initial fine could total up to £70,000 if a breach remained unresolved for just two months after conviction.

As I said at the start of my remarks, while I am supportive of my noble friend’s amendments, I hope that with this explanation he will be content not to press them. I reiterate that I absolutely sympathise, and want to go with the nature of this—but that is the response to the amendments as tabled today. I thank my noble friend for laying the amendments for us to think them through and debate them extensively.

Before turning to the comments from the noble Lord, Lord Best, about strengthening the teeth of the new homes ombudsman, it is important to reflect that there has to be a little bit of work done to tidy up the whole approach to the ombudsman’s service for people in housing. I asked my colleagues behind me to list the number of people who provide a complaints service for people in different types of homes and tenures. We have the new homes ombudsman, which will be unleashed for new build, but we also, as the noble Lord, Lord Best, will know, have the Regulator of Social Housing and—my old colleague at City Hall, Rick Blakeway—the Housing Ombudsman Service, and we have the Local Government and Social Care Ombudsman. Homes are homes, and we need to think about how we get a complaints service that works for homes in the round. I know that we can categorise social housing as being over here, and people in private renting over there, but these are people’s homes. We need to recognise that, at the moment, it is a patchwork quilt of services that provide that whole ombudsman service, and that is not ideal. I wanted to put that forward—that, when discussing this subject, we are talking about new-build private homes and not housing in the round.

I turn to the amendments tabled by the noble Lord, Lord Best. I thank him for raising this important matter, but I am afraid that the Government will not be able to accept these amendments, as the intention can be achieved elsewhere. The Bill sets out requirements for the ombudsman scheme to include provision about what home buyers can complain to the ombudsman about in individual cases, and making improvement recommendations about scheme members’ quality of work and conduct in general. The developers’ code of practice allows the standards of conduct and standards of quality of work expected of members of the scheme to be set out.

The noble Lord’s amendments would provide the ombudsman with powers to make general requirements of the scheme’s members, duplicating provisions already in the Bill. It is unclear how they could be enforced or appealed against, and we must be careful that the ombudsman does not duplicate the role of regulators, the scheme provider or Parliament. The Bill includes provision for complaints to the ombudsman within two years of the first acquisition of the new-build property, which aligns with the developer liability period under most new-build warranties. I was shocked to find out that within a warranty it is for the first two years that developer liability is covered; the rest is covered through some form of warranty or insurance scheme to 10 years in private housing or 12 years in social or public housing. It is in this period that issues are much more likely to be raised in relation to snagging or the home-buying process. We believe that the proposal to extend this to six years would be unnecessary and would introduce a new unknown burden on members of the scheme. But I assure noble Lords that home buyers will retain their existing rights to seek redress in law and elsewhere in this Bill. With this reassurance, I hope that the noble Lord will be content not to press his amendments, and the Government will continue to consider how and where practices in this area could be improved.

I did say—if I may go a little bit further on that note —that we need to think about warranties, but we should also remember the Defective Premises Act, which has a statute of limitations of only six years. We are proposing to extend that prospectively to 15 years, hoping that there will be a culture change and a stronger regulatory environment, and 15 years is a reasonable timeframe to expect to seek redress—and then, retrospectively, 30 years. I am having those discussions and debates with my colleagues and the noble Lord, Lord Stunell, because I consider breaches of regulations, even going back 25 or 28 years, as a crime. It is a crime to breach building regulations, and there should be no statute of limitations for some of the crimes that we have seen, where we are putting flammable materials on the outside of the buildings, not having compartmentalisation, and having inadequate fire stopping, or fire doors that do not act as fire doors. All that I consider to be essentially breaches of building regulations, and we need to go after the perpetrators. But that is for another group of amendments—for the perpetrator pays or polluter pays—in due course.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

17: Clause 41, page 51, line 21, at beginning insert “Section 58Z7A of this Act (sharing of information between regulatory authorities) and”
Member’s explanatory statement
This amendment and the next amendment, which are consequential on the Minister’s amendment at page 56, line 22, provide that new section 58Z7A of the Building Act 1984 applies to a person to whom the regulator has delegated registration functions under new Part 2A of that Act as it applies to the regulator.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

23: Clause 52, page 77, line 9, leave out “public body’s final certificates” and insert “plans certificates, final certificates”
Member’s explanatory statement
This amendment is a drafting change.

--- Later in debate ---

[Baroness Brinton (LD) [V]]

My Lords, I wish to speak briefly to the amendments in this group, particularly in relation to the issue of perpetrator pays for fire hazard remediation—work that must be carried out speedily to ensure the safety of the inhabitants of the building. Amendment 24 and others, introduced by the noble Lord, Lord Young of Cookham, sets out the removal or alteration of offending work that contravenes fire safety regulations. It is interesting to note that he joins a group of former Ministers who are now trying to remedy the problems that were around during their time as Ministers. I think we should thank them not just for their humility but for their acknowledgment, through their amendments, that change is needed even more urgently than ever.

The noble Lord is right that his and other non-government amendments in this group are critical to delivering what the Government want to achieve, despite their own proposals being inadequate. I echo his point that if the Government think that things can be done more effectively to achieve the objectives that he outlined, I suspect that the Grand Committee would want to hear them.

The Minister spoke earlier of his surprise about the mechanisms of current building work guarantees and the role of insurers and warranties. Insurers have, rightly, made it clear that they are not responsible for this crisis. Insurance is not eligible in the event of defective work, and insurers never sign off work; they rely on the assurances of the companies they are insuring that the work is safe. The practical problem is that too many companies have relied entirely on their insurers. In my former professional life as a Cambridge college senior bursar, I have been that client who has sat in the middle and watched arguments about who should pay for defective work on blocks of flats, including works on a fire hazard in a medium-rise building.

The problems we faced as a college, even though they were with student accommodation, were absolutely nothing compared to the problems that leaseholders and renters in blocks of flats face. Talk to any of the current leaseholders living in blocks known to be unsafe: even with waking watches overnight, families are constantly on edge, and too many face the threat of worthless homes that are unsaleable until the perpetrator pays principle is fully brought into effect. I think “perpetrator pays principle” will be one of the next speech therapist phrases that people have to articulate; it is quite difficult to get your mouth around. The current government proposals do not take into account too many leaseholders who, like those in high-rise cladding buildings, are also not responsible for the defective work done by others.

Amendment 118 makes it clear that those who should pay, in the event of a block of flats having fire hazards, are those who did the work itself. The Government’s current proposals do not go far enough and still leave too many loopholes for those living in unsafe flats. This is the moment that legislation can and should make it absolutely clear that the perpetrator is responsible and must effect the remediation work and pay for it. In the event of a gap between that work being necessary to be carried out and it being agreed that the perpetrator should pay, the Government should indeed step in to help out.

[Lord Greenhalgh (Con)]

My Lords, before I get my bearings, it is always good to have a few Latin phrases. “Quis custodiet ipsos custodes?”—well, I am just going to say, “Res ipsa loquitur”.

This is the “PP” group of amendments: “polluter pays” if you are my noble friend Lord Young, or “perpetrator pays” if you are the noble Earl, Lord Lytton. Although I will respond formally at the end— I am now speaking to the government amendments—I honestly agree with the sentiment of working with noble Lords and that a pick-and-mix approach is the right way forward. I am very keen to do that between now and Report. That is not in my speaking notes. The important thing is that we need a practical approach. We need one that works in law and in practice, and of course we want the polluter to pay.

I have taken noble Lords’ amendments and sought external counsel opinion, off my own bat, from a leading QC who deals with these issues in the courts to get their opinion. While I know my noble friend has tremendous ministerial experience, he perhaps has not always been in the courts when these things go into dispute. I know the noble Earl has considerable professional experience, but, again, this has to work in law as well as in practice. As the Committee will all appreciate, any scheme that requires government funding is not just a matter for this department; it is a matter for the Government and, in particular, needs Treasury approval.

I have always accepted that, in order for the polluter to pay, we have to have something that establishes liability at the building level. It is not an either/or. That is not to say that the Government’s approach is wrong; I think the Government’s approach is right. We have to have a waterfall effect that goes down the list of the polluters but recognises that not all freeholders are equal—some are “more equal than others”, to quote George Orwell—and that perhaps assignment of liability can be varied in regulation to reflect that. But all that detail is something that happens at later stages of the Bill, as my noble friend will know. Perhaps we will tease out some of those points in due course.

Clearly, if you are a developer like Ballymore that retains its freeholds, it is very easy. But if you are a developer like Berkeley, which often sells off its freeholds to a freehold investor, it becomes slightly more complex. But the intention of the Government is certainly not to let the Berkeley Group off the hook because it took another £20 million or £30 million by selling its freeholds off to another group to manage. It is still in the frame for the buildings that it built. I mention those developers just as examples, because we are obviously talking about a crisis that affects all the major housebuilders, as they freely acknowledge—not just the large ones but the medium and small ones, which have all contributed to a crisis that has brewed up over decades.

Let us move to the government amendments. Following my 11 January repeat of a Statement to this House, we have been clear on our expectations that developers should commit to self-remediate all unsafe high and medium-rise buildings for which they are responsible. They should agree contributions to fund the remediation of all cladding on buildings of 11 to 18 metres. The department has been in discussions with industry leaders on this matter and is making good progress towards a solution. I have had discussions with the medium-rise developers and have been alongside the Secretary of State in all those substantive discussions. However, should we need to take action against those unwilling to make these commitments, amendments tabled in my name will make it possible to impose a solution in law and make sure that developers and manufacturers take responsibility for rectifying building safety defects. I will now outline these important government amendments.

The first measure we are proposing as part of our package to ensure that the burden of paying for fixing historical building safety defects does not fall on leaseholders or taxpayers is a group of amendments to the building safety levy. They are an important part of the solution as they allow the building safety levy to be imposed in relation to building work going through the building control process on all residential buildings, not just buildings over 18 metres or seven storeys. This will enable the Government to raise funds to remediate cladding should the industry fail to step up and pay for the problems it has caused. It is our intention to set out in secondary legislation the levy rates and the details of who the levy applies to. By then negotiations with industry should have been concluded.

I now turn back to the package of government amendments and outline the further amendments that we are proposing to ensure that developers and manufacturers take responsibility for rectifying building safety defects. This package of amendments addresses many of the concerns highlighted today. They introduce measures to allow us to distinguish between companies that commit to shouldering their share of the blame and those companies that do not. The measures will incentivise industry actors to take responsibility in resolving issues with unsafe buildings, through firms committing to remediate buildings with which they are associated, and to contribute towards the funding of remediation of other unsafe buildings.

The first two amendments in this package would give the Secretary of State a power to establish a scheme or schemes for the building industry. This would act as a means of identifying which industry actors, including developers, and cladding and insulation manufacturers, have done the right thing and committed to act responsibly. Regulations will set out which persons in the building industry may be members of the scheme. In the first instance, the Government are minded to focus this measure on major developers of residential buildings and manufacturers of cladding and insulation. We are keeping this under review as talks with industry continue. Industry actors will be considered “responsible” if they meet published membership criteria for a scheme for which they are eligible. The membership criteria for a scheme will be set out and will include a commitment to rectifying building safety defects. The distinction between responsible actors and actors who have failed to do the right thing will be taken into account by the Government and regulators in their interactions with firms that are eligible for inclusion in a scheme.

The third amendment would give the Secretary of State a power to block developers that have failed to act responsibly from carrying out development for which planning permission has been granted, and to make sure that any breach of this block would be subject to enforcement action. The amendment would also allow the Secretary of State through regulations to require a developer to serve a notification of proposed development commencement and to prevent the grant of certification of lawful development for affected developers, should they seek it.

The fourth amendment would give the Secretary of State the power to prevent developers that have not committed to act responsibly, as set out in regulations, obtaining building control sign-off on their developments. This will make selling developments difficult for these developers, as building control approval is in most cases a prerequisite to occupancy and sale. The building control prohibitions will be imposed by regulations that will also set out details such as prescribed documents.

These new measures will help to make sure that while responsible industry actors can go about their business freely and with confidence, others will face significant legal, commercial and reputational consequences. They align with two of the principles set out by the Secretary of State: that the industry must pay for remediation and that the burden should not fall on leaseholders or the taxpayers. These measures will ensure that the burden is shared among the relevant industry actors while protecting leaseholders and the taxpayer. We cannot continue to allow those who are unwilling to commit to resolve the building safety crisis to have a role in building homes of the future. These amendments are being tabled to ensure that we have the legislative provision to help us to do this. I beg to move.

--- Later in debate ---

[Baroness Pinnock (LD)]

Yes. “Drectly” is what they say in Cornwall, which means “This year, next year, some time never”. I should like a bit of clarity. Timing is key. I should like to hear what the Minister is going to do about trying to get it done. How will we stop the developers and all those who we are going to try to get the money from through a levy wriggling out of their obligations? That is one of my fears in all this. Then there is the rate of the levy. Can we be given assurances that the rate will be of a sufficient level to pay for the remediation? That is key. I know that the Minister cannot give us a figure, but a broad brush assurance that the levy is going to do it would be good.

Retrospective compensation for those leaseholders who have already paid out should be considered. Some folk have gone bankrupt because of this. That is because it took time to get everyone together to deal with the problem. I know that retrospective compensation is hard to do, but we are putting back the clock 30 years in looking at these defects. If we can do that, we can look at retrospective compensation.

Leaseholders should pay nothing—that is where I am. We on this side support an amendment that gets there. As I say, I am full of admiration for people who, with their expertise, have tried to bring the Government to the place where they need to be. If the Minister is going to say yes to all these things, we will all leave happy.

[Lord Greenhalgh (Con)]

My Lords, this has been a very good debate. I have enjoyed listening to virtually every speech, including that of the noble Baroness, Lady Pinnock. I am not going to pick out any speech that I did not like, but the contributions were very good. I am reminded of when I met someone who worked for Senator Cory Booker when he was mayor of Newark, which is a deprived part of the United States. Apparently, at a Democratic National Convention he came out with a phrase that sticks with me. He said:

“If you want to go fast, go alone, but if you want to go far, go together.”


When it comes to making sure that we get the polluter to pay, this Government are not proud about picking the best ideas that people have put forward today and putting them into the toolbox to ensure that we do precisely that.

I think of my noble friends Lord Young and Lord Blencathra, to whom I will add the noble Earl, Lord Lytton, as the three wise men. I was Faith Minister, so that description is appropriate. I have to say that the prize for the wisest of the wise goes to my noble friend Lord Blencathra, who seems to have that intellectual agility to change his position based on circumstance. He is someone who was a distinguished chair of the Delegated Powers and Regulatory Reform Committee one week, and the next week says, “Well, that was last week and this is this week. Come on Secretary of State—think about these ‘just in case’ powers”. We will think about them, but I thank him for providing us with that breadth of thinking.

I also pay tribute to my noble friend Lord Blencathra for suggesting that we look at reordering the Bill or setting objectives, as the Fisheries Act does. He also gave some advice; I will read out a note about why there needs to be a maximum for the levy. These are all great tips. To the noble Baroness, Lady Pinnock, I say that we will look at whether we can produce a written Explanatory Memorandum and of course we need to do impact assessments. These are all jobs of work and we will see how quickly we can get those things done. This is all in the spirit of wanting to be helpful and to have a better Bill, so I take all those points on board.

--- Later in debate ---

Despite what my noble friend the Minister said about housing associations bearing responsibility, they are in a slightly different position from local authorities in terms of the resources that have been made available. Even if local authorities have to pay for their own defects being put right, at some point somebody is paying for that. It is either some social housing that was not built or a reduction in social care. They can put it right, but there is a cost—

[Lord Greenhalgh (Con)]

Housing is ring-fenced.

[Lord Young of Cookham (Con)]

I know that housing is ring-fenced; I introduced the housing revenue account.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

25: Schedule 5, page 166, line 28, leave out paragraphs 38 and 39 and insert—
“38_ Omit sections 44 and 45 (and the heading before section 44).”Member’s explanatory statement
This amendment is consequential on the first new Clause after Clause 57 in the name of the Minister.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

31: Clause 57, page 79, line 4, leave out from “on” to end of line 5 and insert “certain applications for building control approval etc”
Member’s explanatory statement
This amendment and other amendments of this clause extend the power to impose a levy to work other than higher-risk building work, if it relates to residential or mixed-use buildings, and to initial notices, amendment notices and public body’s notices (as well as applications for building control approval).

--- Later in debate ---

Moved by

[Lord Greenhalgh]

36: Clause 57, page 79, line 24, leave out from “that” to end of line 31 and insert “, unless the building control authority is given a notification under subsection (5A) in relation to a relevant application or notice (or a relevant application or notice of a specified description), the authority—
(a) may not take a specified step in relation to the application or notice (for example, may not grant an application, accept a notice or give a specified certificate in relation to works connected with the application or notice), or(b) must take a specified step in relation to the application or notice (for example, must reject a notice).(5A) A notification under this section is a notification given by the Secretary of State or designated person—(a) that the levy payable in respect of the application or notice has been paid, or(b) that no levy is payable in respect of the application or notice.”Member’s explanatory statement
See the statement relating to the first amendment to this Clause in the name of the Minister.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

40: Clause 57, page 80, leave out lines 3 to 5 and insert—
““relevant building” means a building in England consisting of or containing—(a) one or more dwellings, or(b) other accommodation,(and “accommodation” here includes temporary accommodation, for example in a hotel or hospital);”Member’s explanatory statement
See the statement relating to the first amendment to this Clause in the name of the Minister.

--- Later in debate ---

Moved by

[Lord Greenhalgh]

41: After Clause 57, insert the following new Clause—
“Crown application
In Part 5 of the Building Act 1984 before section 132 insert—“131A Crown application(1) The following provisions bind the Crown—(a) Part 1 except sections 35B to 37, 39A and 40;(b) Part 2;(c) Part 2A except sections 58I to 58K, 58U, 58V and 58Z4 to 58Z6;(d) Part 4 so far as it relates to a provision within any of the preceding paragraphs.(2) No contravention by the Crown of a provision within subsection (1)(a) to (d) makes the Crown criminally liable.(3) Subsection (2) does not affect the criminal liability of persons in the service of the Crown.(4) Subsection (5) applies where—(a) a contravention of a provision within subsection (1)(a) or (b), or of Part 4 so far as it relates to such a provision, occurs in relation to a building or proposed building for which a local authority is the building control authority, or(b) a contravention of a provision within subsection (1)(c), or of Part 4 so far as it relates to such a provision, occurs in relation to Wales,and the Crown would, but for subsection (2), be criminally liable under this Act in respect of the contravention.(5) The High Court may, on the application of—(a) the local authority (in a case within subsection (4)(a)), or(b) the Welsh Ministers (in a case within subsection (4)(b)),declare unlawful the act or omission constituting the contravention.(6) In this section a reference to a provision includes any instrument made under it.(7) For the application to the Crown of Part 3, and Part 4 so far as it relates to that Part, see section 87.”Member’s explanatory statement
This new Clause makes provision about the application of Parts 1 to 2A of the Building Act 1984, and Part 4 of that Act so far as relating to those Parts, to the Crown.

Building Safety Bill

Lord Greenhalgh Excerpts

Committee stage
Monday 21st February 2022 Grand Committee

I was going to ask the same question that the noble Baroness, Lady Grey-Thompson, asked about when we are likely to see a response to the consultation on personal emergency evacuation plans. It would be extremely helpful if the Minister could provide an update on that. Does he also have any information as to whether the Government will commit to making PEEPs statutory requirements for any buildings covered by the fire safety order for residents who would have difficulty self-evacuating? With that, I hand over to the Minister.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, I was not expecting to be in what the Romans called a frigidarium for this stage of the Bill. It is positively bracing. I am sure that as the week wears on we will get a slightly more normal temperature. It is already slightly better, so it clearly just takes a bit of time.

I will try to capture each group of amendments in three words or fewer. I am going to call this group the “widening the scope” group of amendments—that is three words. I will go through each amendment in turn. In practice, I have sympathy with every idea that has been put forward. However, I would like noble Lords to consider that the more we widen the scope, the greater the risk that we will actually fail in the first duty of any Government, which is to keep people safe. Our focus has to be based on what it is reasonable to expect from a new regulator in the Health and Safety Executive. So, although I have sympathy, I will resist this group of amendments, because, when we talk about high risk, the scope has to be necessarily tight in order to give the HSE the chance to grow as a regulator and to implement this regime properly.

However, I thank noble Lords for their contributions to this first group of amendments. I believe that this is a landmark piece of legislation and a necessary one. I can feel the broad support that it has from all sides of the House, and I look forward to further debates in Committee. There has already been good discussion in this grouping, and I am grateful for the commitment from all noble Lords to improve the Bill and to reform building safety more generally. I have listened to the concerns raised by noble Lords and I thank them for their helpful contributions. As I said, I will respond to them all in turn.

I start by talking about the fire which the noble Lord, Lord Foster of Bath, mentioned. It is true that it was a staggeringly awful fire, even though there was no loss of life, and the noble Lord captured that very well in his speech. I have spent quite a bit of time trying to learn the lessons of the near misses, if you like, so I have met Geeta Nanda, chair of the G15, who I have known for some time. She is also the chief executive of the Metropolitan Thames Valley housing association, which manages Richmond House within Worcester Park, which consists of 23 households of shared owners. I have also met Dean Summers—on Zoom; I have not met him in person—who took over from Sean Ellis, and I had a meeting with him as the new managing director of St James.

It is fair to say that Richmond House, which was built in 2011 by the Berkeley Group—St James is part of the Berkeley Group—was built in a shockingly bad way. It was built without internal compartmentalisation and certainly would never have passed the building regulations at the time. There was also inadequate fire-stopping, which is one of the reasons why the fire spread so quickly. Candidly, it is absolutely right that the Berkeley Group pays for its replacement and addresses all the losses suffered by the shared owners. I am very interested in that, and I have asked for a report from the housing association and Berkeley on progress on doing precisely that. The building was not built in line with building regulations, so it should not have happened. It is a four-storey building and is under 11 metres, which, according to the building regulations, should not have been able to happen, so we have an example of someone having signed off a building that should never have been signed off. That is the lesson of Richmond House.

Sometimes regulation does not work. That, for me, is the lesson. The other lesson is that fire is a tragedy, not just when you lose lives but in the opportunities lost. This Bill does a lot to make housing overall safer, and we will have much better housing stock over the next 30 years than we have had in the previous 30 years.

[Baroness Neville-Rolfe (Con)]

Another problem at Worcester Park might have been the failure to implement the building regulations. I have found building regulation enforcement very patchy. There has been a lot of very aggressive enforcement of building regulations in my lovely county, yet here there has obviously been a disaster with building regulations. Is enforcement of the regulations not also important, and will that be improved by our work here?

[Lord Greenhalgh (Con)]

I think we need to ensure the competence of enforcement and that it works, and the competence of the people who assess buildings and sign them off as fit for human habitation. In the same way with crime where we want an absence of crime, we want an absence of these problems. Yes, we need to improve enforcement and there needs to be the strong arm of the law. That is why we want to have a strong regulator in this new regulator under the HSE. We have Housing Act powers for local authorities to intervene. The fire service has powers under the fire safety order. There are lots of powers and lots of regulators that can step in and do something about it. In this case, they all failed. Yes, we need to strengthen them. We understand a lot more about the inadequacies of some of the built environment, but my noble friend is right that we also need to strengthen enforcement.

I thank the noble Lord, Lord Foster of Bath, for his amendments. On Amendment 1, I hope noble Lords will agree that the regulator should exercise its functions in line with its first objective: to secure the safety of people in and around buildings. I am concerned that adding additional objectives for the new building safety regulator could distract from this mission. The Bill provides the regulator with a broader objective to improve the standard of buildings. Achieving this could involve the regulator improving regulatory standards relevant to property protection, such as security, resilience and fire safety, so the regulator’s remit already extends to considering these issues.

Adding a specific objective for property protection would have two main downsides. First, it would put property protection on a par with resident safety as a priority for the regulator. The Government believe that the regulator should prioritise residents’ safety and do not want the regulator to be distracted from that. There is a risk that a specific requirement always to consider property protection would result in the regulator favouring solutions that go beyond what is required for residents’ safety. The second downside is that this amendment risks skewing the building safety regulator’s oversight function. The Government intend the regulator to use evidence to identify emerging issues with the safety and performance of buildings and to make recommendations to Ministers on regulatory changes where needed. A property protection objective would distract the regulator from using evidence to identify and rectify the most pressing issues, which might, for example, relate to net zero and sustainability rather than property protection.

The pre-legislative scrutiny committee considered property protection but found that the existing objectives are a sensible starting point—I emphasise “starting point”. The committee suggested that the Government keep this under review. We are committed to doing this through the provision in Clause 135 for a regular independent review of the effectiveness of the regulator and the wider regulatory system.

Turning to Amendment 12, there are already powers for building regulations to cover specific aspects of building resilience. We believe that it is better that building regulations are targeted on specific issues rather than open-ended requirements. However, we recognise that, for residential buildings, further research into property protection is warranted. The impact of the loss of a home is significant, so we are taking this forward as part of the technical review of approved document B on fire safety. I thank the noble Lord for suggesting these amendments and respectfully ask him to withdraw Amendment 1.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Greenhalgh (Con)]

I am the Minister with responsibility for fire as well as for building safety, and I will ensure that it is published in weeks and not months or years. Noble Lords will know that we have consulted twice now on PEEPs. I am pretty clear about the way forward, and it is about time that we as a Government came forward with a response. I recognise the pressure to do so sooner rather than later, and thank the Committee for raising the issue.

I recognise the concerns that have led to noble Lords laying these amendments and assure them that the Bill makes provision for the building safety regulator to consider a wide range of factors that influence the level of risk in categories of building before making recommendations or providing advice as to which categories of buildings should be considered higher risk.

I thank noble Lords for their contributions, and I hope I have given reassurance to enable them to withdraw and not press their amendments.

[Lord Foster of Bath (LD)]

My Lords, we are at a very early stage of consideration in Committee of this Bill, but I have to say that it is following a pattern that I have experienced on many occasions during the passage of other Bills. It was summed up beautifully by two comments. The first was from the noble Lord, Lord Crisp, who said in his excellent speech, proposing an excellent amendment, that the Bill cannot do everything but that there are some issues that we simply cannot ignore. Some of those issues have already been raised. For example, the noble Baroness, Lady Grey-Thompson, made an excellent speech, backed up by my noble friend Lady Brinton, in which she talked about the need to give disabled people more protection than is currently the case.

My proposal relates to the inclusion in the Bill of the protection of property, and the proposal from the noble Lord, Lord Crisp, relates to the need for safety considerations to include health and well-being. I say to the noble Lord that, later on, I will move Amendment 121, which concerns one such health and safety issue, the improving of the energy efficiency of existing buildings—something I desperately wish could be implemented immediately because, like everybody else, I am absolutely freezing at the moment. Sadly, 13 million homes in this country are so badly insulated that a lot of people suffer every day, and it is not just the odd inconvenience like the one we face today.

The second comment that shows how typical this pattern is was from the noble Baroness, Lady Grey-Thompson. At the end of her remarks, she said that she is expecting sympathy but not much movement. That is what we have just heard from the Minister today: a lot of sympathy and a clear understanding of the issues, along with probably a personal desire to do far more, but, in reality, a resorting to the usual things that Ministers—I am guilty of having done it myself—say from the Dispatch Box. Excuses were used, such as that we should not extend the scope because that would cause confusion. I ask the Minister to look at what the Government are doing in relation to Ofcom, the one regulator the Government never say cannot have its scope extended, with 300 additional staff having just been added to deal with the internet safety Bill. The other excuses are that this will be kept under review and that something will be available in the coming weeks.

The Minister has asked us not to press our amendments and that I withdraw mine. I cannot speak for other people, but these are all important issues to which I am sure we will return at future stages of our deliberations in Committee. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Thurlow (CB)]

My Lords, I want to say a few words on PDR. It has been well exercised. First, I should declare my interests: I have practised for many years as a chartered surveyor and have two buy-to-let properties.

PDR is mentioned specifically by the noble Lord, Lord Shipley, in Amendment 135 and in Amendment 43 by the noble Baronesses, Lady Hayman of Ullock and Lady Pinnock. I think that PDR is a time bomb, I am afraid; I am sorry to say that. Conversions of redundant office buildings allowed as of right led to poor-quality developments. They are multi-let properties with many risks involved, and they are very recent conversions. They are taking place as we speak with little supervision. Developers who ignore the simple standards of fenestration, minimum square footage for a decent life, thermal insulation and other such things, as is happening today, are unlikely to respect building safety issues. PDR was hasty legislation. It was poorly thought through, then there was a scramble to tighten it up as it was extended. It is essential that this Bill addresses the PDR problem. I started by saying that it is a time bomb. If the Bill does not address it, it will go off. There will be tragedies as a result of PDR and those in society who are least able to defend themselves often end up as the tenants.

[Lord Greenhalgh (Con)]

My Lords, I think I should start by dealing with something that probably relates to the previous group. I am sorry that so many noble Lords have had such arduous journeys to get to the Moses Room today and then, having journeyed so far and so slowly, come to a Room that is so positively chilling. It is quite arduous at the best of times.

Just for clarification, in answer to the noble Baroness, Lady Pinnock, the high-risk regime includes hospitals and those care homes of six storeys and above. Essentially, it is those around 18 metres—there or thereabouts—but not in occupation, because different regimes apply to them, although the fire safety order applies to the whole built environment. I hope that gives clarity on the current scope.

I set myself the task of trying to encapsulate quite a varied set of amendments in each group in three words or fewer. I have called this the “strengthening building regulations” group: I will try and get three words down to two the next time I have to do this. I thank noble Lords for their contributions to what has been an interesting debate. I will respond to each amendment in turn.

I thank the noble Lord, Lord Stunell, for his amendment giving the building safety regulator the power to make building regulations under paragraphs 4A and 4B of Schedule 1 to the Building Act 1984, as inserted by the Sustainable and Secure Buildings Act 2004. However, I am afraid that the Government will not be able to accept this amendment as his intention has already been met in the Bill. We are introducing a more stringent regulatory regime in design and construction for higher-risk buildings, as defined in Part 3. The higher-risk regime will be the responsibility of the building safety regulator. We are also making wider changes to the Building Act 1984 that will apply to all buildings.

I point out to your Lordships that Sections 8 and 9 of the Sustainable and Secure Buildings Act 2004, referred to in the amendment, insert paragraphs 4A, under “Certification of work”, and 4B, under “Appointed person and management of works” into Schedule 1 to the Building Act 1984. As part of our improvements to the 1984 Act, the Bill repeals those paragraphs and replaces them with more effective powers via Clauses 32 and 33. These are more effective, stronger and wide-ranging powers. Clauses 32 and 33 provide powers for building regulations to set procedural requirements relating to building control, the issue of notices and certificates and requirements regarding appointments. They include setting out duties to be imposed on relevant persons in relation to building work. We also consider that the power to make building regulations should remain with the Secretary of State. This will ensure a consistent approach to all buildings; the Bill already provides that the building safety regulator will be able to advise the Secretary of State should it consider changes to the building regulations to be necessary. I thank the noble Lord for suggesting these amendments and respectfully ask him not to press them.

I always get worried—this is a new combination, as they say—when an amendment brings the noble Baronesses, Lady Hayman and Lady Pinnock, together. On Amendment 11, it is the Workington warrior and the Yorkshire terrier combined. I am trembling in my boots at the thought of Amendment 11 but let us look at it carefully. I thank the noble Baronesses for raising this important matter but I am afraid that the Government will not be able to accept this amendment. The Bill takes a proportionate approach to building control. In the new system, all building inspectors, regardless of whether they work for local authorities, the building safety regulator or registered building control approvers, will need to register with the building safety regulator. As part of the registration process, they will have to demonstrate their competence by meeting certain criteria.

A new framework of operational standards rules will define the minimum performance standards that building control bodies must meet, and the building safety regulator will monitor and analyse the performance of building control bodies to drive up standards across the sector. Registered building control approvers and building control authorities will need to obtain and consider the advice of a registered building inspector before carrying out certain building control functions and use a registered building inspector to undertake certain activities. This greater scrutiny and accountability will provide greater incentive to ensure all buildings, including non-higher-risk buildings, are safe. With that explanation, I respectfully ask the noble Baronesses not to press their amendment.

I turn to Amendment 43. I thank the noble Baroness, Lady Hayman, for raising this important matter. I am afraid the Government will not be able to accept the amendment, as our assessment is that it would not achieve its intended effect. I assure the noble Baroness that paragraph 1 of Schedule 1 to the Building Act 1984 already allows for the making of provision in the building regulations for all categories of buildings, as do the new powers that we are taking in Clause 32.

We are introducing a more stringent regulatory regime in design and construction, led by the building safety regulator, for high-rise residential buildings, care homes and hospitals that are 18 metres or more in height, or at least seven storeys, known in the Bill as “higher-risk” buildings. Those buildings to which this more stringent regime applies have been chosen to ensure that the regulation is proportionate to the level of risk, should a spreading fire or structural failure occur. We do not think it appropriate to apply the entire regime to all buildings. However, where appropriate, we intend to make elements applicable to all buildings, such as the duty-holder and competence requirements, which will apply to all building work where building regulations apply.

I turn to Amendment 127. I again thank the noble Baroness, Lady Hayman of Ullock, for raising matters relating to flood resilience. I appreciate the passion with which she outlined her desire to get this issue addressed, particularly in new homes, but I am afraid the Government will not be able to accept this amendment. I assure her that there is already a well-established regulatory system in place to ensure new homes have necessary flood-mitigation measures in place. The National Planning Policy Framework is clear that inappropriate development in areas at risk of flooding should be avoided. Where development is necessary, it should be made safe and resilient without increasing flood risk elsewhere. Policies in that framework must be taken into account in preparing the local authority’s development plan and are a material consideration in planning decisions.

The new clause that the noble Baroness, Lady Hayman, has proposed would require flood resilience measures to be introduced into the building regulations. Statutory guidance to the building regulations, in approved document C, already promotes the use of flood-resilient and resistant construction in flood-prone areas. Part H of the regulations also sets requirements for the rainwater and surface water drainage of individual buildings. The main sewerage system for a development is governed by the sewerage undertaker for the area—for example, Thames Water. The sewerage undertaker has the ultimate responsibility for ensuring that drainage systems for new developments are built to a resilient standard that minimises flooding, and these duties sit outside the building regulations system.

I thank the noble Baroness for suggesting the amendment. I hope I have reassured the Committee that the Government already have well-established means of making sure that consideration of flood risk and flood mitigation is thoroughly accounted for in the planning system, and that approved document C already promotes flood-resistant and resilient construction. For these reasons, we believe that introducing new requirements into the building regulations is not necessary.

I thank the noble Lord, Lord Shipley, for reminding me that I should probably declare my commercial and residential property interests—none of which has any cladding issues—as set out in the register, specifically on the amendment around permitted development rights because I have benefited from those in the past, though probably will not do so in the future. I recognise the risk that he has outlined and that is why I thought I should declare those interests.

Amendment 135 seeks to ensure that homes delivered under permitted development rights—PDR—for change of use to residential meet the provisions of this Bill. I thank the noble Lord, Lord Shipley, for raising this important matter, but I am afraid the Government will not be able to accept this amendment. This is getting quite repetitive, really, is it not? However, the noble Lord is raising an important point and I assure him that planning permission, whether granted by a permitted development right or following an application to the local planning authority, does not remove the need to comply with other legal requirements. That means all new homes and buildings must meet, for example, the relevant building regulations and fire safety requirements, as well as any other legal requirements required under other legislation, regardless of whether they are permitted through a permitted development right or following an application for planning permission.

We introduced a number of new requirements into the planning system, called planning gateway 1, from 1 August 2021. These ensure that fire safety matters as they relate to land-use planning are incorporated at the planning stage for schemes involving a relevant high-rise residential building. For schemes that use permitted development rights, a similar requirement has been introduced. Through new prior approval processes, proposals to create a relevant high-rise residential building under the rights require submission of a statement about the fire safety design principles, concepts and standards that have been applied to the development. Consultation by the local planning authority with the Health and Safety Executive is required for residential buildings of 18 metres or more in height or seven or more storeys, whichever is reached first.

Once again, I thank noble Lords for this interesting debate. I hope that I have given some reassurance on each amendment, and that noble Lords will now withdraw or not press their respective amendments.

[Lord Shipley (LD)]

Can the Minister give us clarification on Amendment 135? He said that new homes and buildings are covered by existing legislation and will be covered by this Bill when it becomes an Act, but does the wording “new homes and buildings” include the conversion of offices, which are old buildings, to residential? I understand that this is a complex area but I wonder whether the Minister is willing to write on this point so that it is on the record.

[Lord Greenhalgh (Con)]

I thank the noble Lord for giving me that get-out. He is absolutely right that this is a complicated matter. You often have an old office building from which you create a new residential dwelling. We will check whether that is included in the purview of this Bill, and I will write to the noble Lord on that matter.

[Baroness Pinnock (LD)]

Permitted development rights are not about just the conversion of offices into homes. Where I live, many old mill buildings have been converted. Some of them, particularly the one called Titanic Mills, are very large. There are additional risks in those buildings. Will the elements in this Bill apply to those conversions as well?

[Lord Greenhalgh (Con)]

I will combine the letter for the noble Lord, Lord Shipley, and the noble Baroness, Lady Pinnock. Essentially, they want an answer to this question: “If you take a non-residential building, whether it is an office block or a Yorkshire mill, and you create a residential dwelling, will that be in scope when it comes to a new build?” The start point does not matter—it is non-residential—so is it included? I will answer both noble Lords in writing and lay a copy in the Library.

[Lord Stunell (LD)]

My Lords, we have had an interesting debate. It might be summarised by the Minister saying, “Don’t worry, it’s already all in the Bill and everything’s in hand.” I say to the Minister that we shall want to look very carefully to see the extent to which it is, or is not, in the Bill.

On the interaction between the two clauses to which the Minister referred—Clauses 32 and 33—with Clause 30, which is entitled “Higher-risk buildings etc”, the essence and nub of my amendment on this aspect is to ensure the capacity for the building safety regulator to get straight in as necessary with every building, not simply higher-risk buildings. The Minister seemed to tell me that Clauses 32 and 33 achieve this. I will look carefully at that. If that is the case, I will be absolutely delighted, but if it is not, I shall come back again.

I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, Amendments 6 and 149 in the name of the noble Lord, Lord Stunell, draw attention to timing and delivery. For example, his Amendment 6 would ensure that safety is dealt with in a timely fashion. If we consider that this spring it is five years since the Grenfell tragedy and that progress on that has been painfully slow, with leaseholders waiting many years for any kind of justice to be done, people need to know that with the passing of this Bill there will be no further delays. We agree with the noble Lord and would certainly strongly support a regulator’s assessment within a two-year period that would aim to improve safety.

Amendment 149 looks at a requirement for regular reporting to ensure transparency and accountability to Parliament of the enhanced building regulations regimes. Again, we very much support it; it is similar to Amendment 134 in my name, which would force the Government to publish annual reports on data collected as part of the implementation and monitoring of this Act, when it is passed, as well as steps to increase transparency. I am sure all noble Lords would agree that transparency, accountability and monitoring are important to instil confidence and deliver the ambition in this Bill.

The noble Lord, Lord Foster of Bath, spoke to his Amendment 129. Having heard from him, it is very much in the same spirit as my Amendment 127 on flood resilience, which we debated in an earlier group. Of course, his amendment would force the Government to publish an assessment of the impact of climate change on building safety, including coastal erosion and flooding, both of which are huge concerns where I live in west Cumbria. I am sure he will not be remotely surprised to know that I am extremely pleased to offer our very strong support on this amendment.

Looking at the amendments in my name, first, Amendment 89 would force the Secretary of State to publish an estimate of how much leaseholders have spent on building safety remediation work each year for the past 10 years. We have tabled this because it is disappointing that there is still no robust legal protection for leaseholders who face ruinous costs for remediating historical cladding and non-cladding defects. We know that, despite the long catalogue of people and organisations who can be held to blame for many of the failings on building standards, up to now the leaseholder has been expected to foot the bill. These bills, as the Minister knows, involve huge sums on many occasions.

During Committee in the other place, evidence was taken from some of those who have been badly affected: Alison Hills, Stephen Day and End Our Cladding Scandal. They all talked about the enormous bills they face and the fact that they simply cannot afford to pay them. If we are to resolve this issue so that affected leaseholders are properly compensated, we need to know how out of pocket they really are. My Amendment 89, by forcing the Secretary of State to publish this estimate, would provide information and enable us to properly give full recompense.

My Amendment 126 would force the Government to publish an assessment of the effectiveness of the Homes (Fitness for Human Habitation) Act 2018, plus proposals to increase the number of homes which would comply with that Act. We need to ensure that all homes, existing and new build, are of the highest standards. We have heard many examples from people in our discussions and debate today where this simply is not the case and has not happened.

We think it is important that the Government should publish an assessment of the effectiveness of that Act. I hope that the Minister would in particular be sympathetic to this amendment because his Government brought in that important legislation, and any legislation has to be complied with to be truly effective. This amendment would provide that reassurance and remind rogue builders that minimum standards simply must be met, so I await the Minister’s response with great interest. I hope I will see him tearing up his speech to prove the noble Lord, Lord Foster of Bath, completely wrong.

[Lord Greenhalgh (Con)]

My Lords, we come to the—I am sorry, it is the turn of the noble Baroness, Lady Pinnock.

[Baroness Pinnock (LD)]

The Minister is far too eager.

During the course of the debate on this group of amendments, it has struck me that the challenge of this Bill is that it is primarily in response to a terrible tragedy. That has meant that the scope of the Bill is quite narrow, in response to the terrible Grenfell fire—perhaps rightly so but then, from what we have heard, opportunities to improve building safety do not come round that often. So it is not surprising that noble Lords across the piece are trying to say, “Why don’t we include this?” An opportunity to do so will not come again for a long time.

The passionate argument made by my noble friend Lord Foster is a case in point. Climate change is the most serious challenge facing all of us. If we do not address the building regulations to deal with the challenges it poses, we are definitely missing an opportunity. I apologise for my cough; it must be all this sitting and standing on crowded trains. Excuse me; I am okay. There is an opportunity for the Government to think about including the issues of the particular challenges of climate change as they relate to buildings during the debates on the Bill, otherwise it is an opportunity lost.

On Amendments 6 and 149 in the name of my noble friend Lord Stunell, who has spoken on them and to which I have added my name, building safety is not just about construction; it is about the safety of people once they live in them. Having been a councillor for a long time, I have heard about a number of issues from private sector and housing association tenants. The dangers of stairways in particular often come up. That is the reason for Amendment 6 in my name and that of my noble friend. We need to consider those risks and how they are going to be addressed. If people are concerned about them, what are we going to do about it? There is no obvious way of doing that at the minute.

Any new system—such as the one we have now, which is quite complicated in parts—ought to be reviewed. There is a huge gulf between theoretical improvements to building safety and actual improvements. Does the new system work? I bet that parts of it will not; that is almost inevitable. So let us agree to Amendment 149. I know that the Minister is going to stand up and say, “All the others I have said no to, but this one is such a good idea that we will agree to it”.

Obviously, I agree with Amendment 89 in the name of the noble Baroness, Lady Hayman, because, as the Minister will know, I have consistently and persistently gone on about the costs of building safety remediation that currently lie with leaseholders. I know that the Bill will alter that but some leaseholders have paid. It would be really helpful to the discussion on this Bill to understand the extent of those payments and the number of those who, worse still, have chosen to become bankrupt —I know at least one person has—to avoid the burden of huge, unwarranted bills for safety remediation that is not of their doing, as I know the Minister agrees. The least we can do is pursue this and find out how much leaseholders have already paid out—over and above waking watch, insurance and higher service charges—for structural improvements, which they should not have done. That is now the view of the Government, which is good. Let us find that out and see whether there are ways in which they can receive compensation for work done that they have paid for but which was clearly not their responsibility. This is a question of justice and I shall pursue it.

[Lord Greenhalgh (Con)]

My Lords, I am getting used to the free-wheeling nature of these debates. I apologise that I stood up before the noble Baroness, Lady Pinnock, had her say.

There is no doubt that a large part of this is focused on high-risk, high-rise residential buildings, not least because of the tragedy of Grenfell, which followed the tragedies in Lakanal House and Garnett Court. We have also had near misses, such as the Bolton Cube, which was just under 17 metres and is one of the reasons why we talk about the cut-off being six storeys or more as it was a very big near miss.

There is that focus but, equally, it is fair to say that the Building Safety Bill also encapsulates building regulations for the entire built environment and makes a contribution to increasing competence among key actors, such as approved inspectors, duty holders, the accountable person and the building safety manager, to ensure that buildings in occupation remain safe. There are contributions around competence that will have wider benefit but what the noble Baroness said is right: this is very much part of our response to a broken regulatory system that we need to fix. I think that we recognise the need to do precisely that collectively in this Committee.

I thank noble Lords for a lively debate. This group of amendments is essentially around new reporting requirements. I shall respond to each amendment in turn.

The noble Lord, Lord Stunell, opened this short debate with Amendment 6 and the noble Baroness, Lady Brinton, spoke on it. I thank them for raising this important matter but I am afraid that the Government will not be able to accept the amendment. I pay tribute to my noble friend Lady Neville-Rolfe with her background as a civil servant who took that expertise to play a leading role in a supermarket. She did not mention which one but I know it was Tesco—every little helps—because I remember when she was in that position. It is important to reflect on when we can hold the Civil Service to account, as she put it. I understand where my noble friend is coming from, even if I do not accept it on this occasion.

Our assessment is that this amendment would unnecessarily prescribe issues to which the regulator must attend. I must also point out the unintended effect that this amendment would have in effectively restricting the regulator’s work to a limited list of subjects. Such prescription could unwittingly narrow the scope of the regulator’s focus and efforts. Furthermore, the imposition of a time limit could have the perverse effect of constraining the assessments being sought only to factors that can be determined within the timescales afforded.

I assure the noble Lord and the noble Baroness, Lady Brinton, that their intention to ensure that major safety issues are reviewed and assessed by the regulator has been met through the measures in the Bill. The building safety regulator will have a duty to keep the safety and standard of buildings under review and to be transparent about its work, reporting annually on the delivery of its functions under the Health and Safety at Work etc. Act 1974, and Clause 3 stipulates that it must be transparent.

I can also assure your Lordships that the specific areas of building safety identified in the proposed amendment are actively being considered by the Government under research projects being undertaken with the help of academia and stakeholders. These projects include the technical review of approved document B, which includes research on means of escape in blocks of flats, including stairways and ramps, and means of escape provisions for people with disabilities. As I am sure the noble Lord and the noble Baroness are aware, the Government have already conducted an assessment of the effectiveness of sprinklers as a means of fire suppression and, in 2020, we changed the statutory guidance so that sprinklers should be provided in all new residential buildings more than 11 metres in height, as opposed to the previous 30-metre threshold. I want to thank the noble Lord and the noble Baroness for raising this important matter and hope that I have been able to assure them that all aspects of building safety are of importance for the Government.

Before turning to Amendment 89, I pay tribute to Alison Hills and Steve Day, who were mentioned by the noble Baroness, Lady Hayman of Ullock. I got to know Steve Day in particular, but also Alison Hills. They worked very hard on constructive amendments which will help the thinking around getting the polluter to pay, because they are victims. In the case of Steve Day, it is a sign of triumph, because he is part of a group of people who, in their spare time, without pay, essentially fought a big developer to get it to pay for the remediation of their building, bit by bit. We need to pay tribute to these heroes who work tirelessly on behalf of their fellow residents to get the polluter to pay; they are people for whom I have huge fondness and regard. It is right that some people have shelled out huge costs and have not been able to get the polluter to pay, and there are many orphaned buildings—if you like—for which we cannot easily find out who is liable to pay. The question is, how do we deal with that? That is something that we as a Government recognise that we need to have an answer to, but let us leave that until a later part of this Committee stage. I am sure we will return to it on Report.

Turning to Amendment 89, on which the noble Baroness, Lady Hayman of Ullock, spoke, I thank her for raising this important matter, but I am afraid that, again, the Government will not be able to accept this amendment. The Government remain committed to ensuring that those responsible are held to account to protect leaseholders from unaffordable costs, but our assessment is that the amendment would not constitute an appropriate use of the Government’s time and resources. The amendment would require the Secretary of State to quantify the impacts for any leaseholders who may have carried out remediation of cladding and fire safety defects over the past 10 years, regardless of the nature and scale of the works.

I draw the attention of the noble Baroness to the amendments tabled on 14 February, which make clear that freeholders with links to developers and those with the resources to fund remediation in full must do so. In other cases, the contributions of leaseholders will be subject to a legal cap. The new schedule to be inserted before Schedule 9, tabled on 14 February, also provides the Secretary of State with the power to make regulations providing for the recovery of sums due that have not been paid. These amendments ensure that leaseholders will no longer be susceptible to large costs. The supplementary requirements that would be introduced by Amendment 89 would therefore present an unnecessarily onerous task that would increase costs and burden to the Government, where resources could be better employed. I thank the noble Baroness for raising this important matter and assure her that this Government are committed to ensuring that those responsible are held to account to protect leaseholders from unaffordable costs.

Turning to Amendment 126, I again thank the noble Baroness, Lady Hayman, for raising this important matter. Unfortunately, the amendment would have the effect of unacceptably increasing the burden on the Government at a time when we are concentrating on our programme of reform and raising standards in rented homes.

The 2018 Act built on the existing regulatory framework and empowered tenants, for the first time, to take action in the courts for breach of contract if their home was unfit to live in. That is why we supported it. It is right that this is in addition to, but separate from, enforcement of standards by local authorities, which we also strengthened in 2016. There is therefore limited benefit in requiring officials to spend time interrogating court records when we are, at the same time, concentrating on building on the 2018 Act and further raising the standard of rented homes, higher even than the requirement introduced by the Act. We will do this by consulting on introducing a legally binding decent homes standard in the private rented sector and by reviewing the decent homes standard itself, and we will provide more detail in due course.

I now turn to Amendment 129. I wish the noble Lord, Lord Foster of Bath, had provided my speaking notes as he has such command of detail. It is quite incredible and testament to his long-term passion, commitment and interest in the subject. I certainly learned a lot about the almost dystopian future that certainly my children—probably not me—will to have to deal with. It is probably why school-age kids are so nervous about this. It is horrendous. Amendment 129 raises a very important issue and while the Government will not be able to accept this amendment, I hope to reassure the Committee that Clause 5 already makes appropriate provision for this and that risks to buildings as a result of climate change are already being dealt with through existing locally driven action.

Clause 5 places a duty on the building safety regulator to keep under review the safety and standards of all buildings. This would include advising industry and government on research into new or emerging risks, such as those presented by climate change. The regulator will also advise on and prepare proposals for changes to building regulations. Climate change mitigation and adaptation are intrinsic components of the building regulations and will remain so. We also recognise the importance of ensuring local authorities work with their communities to understand the risks buildings may face as a result of climate change. However, the amendment would duplicate existing locally driven action; for example, the requirement on lead local flood authorities to assess flood risks across their area through the local flood risk management strategy or the requirement for local authorities to develop the best approaches to managing the risk of coastal erosion and flooding through shoreline management plans and local planning policies.

I turn now to Amendment 134 and will respond to Amendment 149 at the same time. I thank the noble Lord and the noble Baronesses for raising how we monitor the effectiveness of the Bill and hope to reassure them that the Bill makes appropriate provision for monitoring. Dame Judith Hackitt’s independent review recommended that we ensure that the new system works through regular independent reviews. Clause 135 requires that these reviews happen at least every five years and that the resulting report must be published. In addition, the building safety regulator must report annually on the performance of its functions under the Health and Safety at Work etc. Act 1974. Clause 3 further stipulates that the regulator must be transparent and accountable. The Government intend that the regulator’s published strategic plan, required by Clause 17, will set out further detail on what it must report on.

Finally, the Bill ensures that crucial aspects of the new system are included in the regulator’s annual reporting, notably engagement with residents under Clause 19 and mandatory occurrence reports, which can help industry track safety issues, under Clause 20. Further reporting requirements risk duplication, complexity and additional bureaucracy. Amendment 149 would also require the Government to report on the exact number of certified building safety managers and fire risk assessors when certification is not a function of government under the Bill. In light of the strong existing provisions, I hope that I have provided sufficient reassurance and that your Lordships will be content that the Government have fully addressed the concerns raised in the amendments.

[Baroness Blower (Lab)]

I have a question about flooding in London. I am sure the noble Lord is aware of an article in the Observer yesterday—I declare an interest in that I live in Shepherd’s Bush, where a month’s worth of rain fell in one day in July last year. The point of this article was that in London very many people live in basements, which are at serious risk of flooding, and it suggests that people may drown in their own homes if there is flash flooding. The further aggravating point is that no one seems to be aware how many people live in such basements.

I simply ask the noble Lord whether there is any intention to take a strategic look across London; there are clearly responsibilities on local authorities but, at the London-wide level, there seems to be no requirement to look at this. I would be very interested to know what he thinks, particularly in light of Hammersmith and Fulham having been afflicted so badly.

[Lord Greenhalgh (Con)]

My Lords, I have some experience of this, having led the council that includes Shepherd’s Bush and Hammersmith and Fulham for six years. Even in that time, there were significant incidents of flooding in basements and quite serious concerns. It did not just happen in Shepherd’s Bush, but from Hammersmith and Fulham right up to Old Oak, and it is the same for many inner London boroughs that have basements as well. It was a very significant issue for local authorities, but I think it is quite proper that the mayor, as the first port of call, should have strategic oversight of how we develop the built environment in our capital city. I expect the mayor to take a lead role on this, if I were to pick any level of government. At a national level, I am the Resilience Minister and am happy to take away anything else we need to do to address the specific concerns the noble Baroness has raised, because it is important we recognise that this is a real risk to our built environment, which will get worse in the coming years.

[Lord Stunell (LD)]

My Lords, I listened carefully to what the Minister had to say. Here we are, on the first day in Committee, with one set of amendments dismissed for one set of reasons and an absolutely contrary set of reasons given to deal with this one. Previously, the case was that we should not add any extra duties to the list of requirements of the building safety regulator because it would confuse it; now the risk is that, by listing only four things, we are limiting the scope of the building safety regulator to take on additional things.

I would have thought that, if in two years we had reports before us on what to do about fire suppression systems and whether the safety of buildings would be enhanced—and, if so, to what effect—by making some changes to the current regulatory environment; if we had a similar thing on the safety of stairways and ramps, on which a number of noble Lords spoke eloquently at Second Reading; if we had the certification of electrical equipment and systems properly analysed by the building safety regulator, with the expertise it can bring, and a proper evaluation of their importance, or lack of importance, brought back to us; if we had provision for people with disabilities, which the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Brinton spoke about so eloquently earlier; if all those matters could be brought back in two years, the building safety regulator would have done a real service to the safety of homes in which people live and would have answered many of the questions and put in train solutions to many of the concerns that noble Lords raised at Second Reading.

I absolutely do not believe that that limits the subjects the building safety regulator might be able to get to grips with. In case it did, the amendment goes on to say that it should also

“give notice of such other matters relating to safety of people in or about buildings that they determine require further examination.”

That is the “and anything else” requirement to go with those four. I do not accept that the Minister’s criticisms of this amendment are right—there may or may not be other criticisms he could have made, but he did not choose to do so. Although I will withdraw this today, I give notice that this will certainly come back at a later stage.