Building Safety Bill

Lord Stunell Excerpts

Committee stage
Monday 28th February 2022 Grand Committee

I raise this because it was at the heart of what happened at Grenfell. Were products used that were flammable? If I remember rightly—I will check the British Board of Agrément’s report—the certificate issued said that the cladding was flammable. Somebody ignored that or put it away somewhere. We need to understand this, because it is critical to future building safety that any new builds have construction materials that are safe for the purpose for which they are to be used—and safe in conjunction with other materials in the building. I need to understand how that will be done and who will finally be accountable. Who will put their name at the bottom saying, “I take responsibility”? Otherwise, those buildings will not be safe.

[Lord Stunell (LD)]

My Lords, I am pleased to contribute to this debate. We certainly have many important issues bound up in one group. I will focus particularly on government Amendments 76 and 107 and my Amendment 107A. I will use this as an opportunity to open up more widely some of the issues that have already been raised in the debate so far, particularly by my noble friend Lady Pinnock and the noble Baroness, Lady Neville-Rolfe—who I suppose I can call a noble friend on the other side—who is the chair of the Built Environment Select Committee on which we both serve. I thank her in particular for her Amendment 147. There was no agreement, discussion or co-ordination between us, but I hope that she will think that my Amendment 107A and my words in support of it strengthen the case for the Minister agreeing to her amendment.

I am not going to get into the Latin stuff. My top result was 26% and I was referred back to the previous set. Incidentally, the Latin teacher at the time was a Conservative alderman—but I have not held that against him too much since.

On a serious note, this group brings into focus the really big picture on this. It is a set of proposals from the Government that, taken overall, completely tears up the normal rulebook about what Governments do to private sectors. The Bill gives a power to deliberately stop a business from functioning, and that is pretty rare. Sometimes legislation prevents businesses from functioning, but it is usually an accidental by-product of something else. This is, quite clearly, the power to stop a business from functioning if it fails to behave in a certain way.

That is robust and unprecedented and, given the scale and depth of the problem, it is certainly proportionate and necessary for building work in the future. It is also certainly right for products that go into buildings in the future to be treated in the same way. They must be safe and there must be compellingly strong reasons for those who make and install them to do so correctly, in the knowledge that they may face draconian penalties if they do not.

Even for that forward-looking case, Amendment 147 from the noble Baroness, Lady Neville-Rolfe, is certainly right: there must be an impact assessment published before any regulations are tabled for the implementation of that regime. Certainly, we on this side strongly support robust action being taken, but we also want to understand the consequences of doing it, and we want an opportunity for your Lordships to see that the consequences have been examined properly and to judge proposals in the light of that.

My Amendment 107A looks forward but looks backward to the last 30 years as well. It is a probing amendment—or, I might say, a “tip of the iceberg” amendment. It is about product liability rather than construction liability. I also think that everything I say in aid of my amendment applies just as much to construction liability as it does to product liability.

In a previous life, I spent part of my 20 years in the construction industry inspecting work prior to handover to assess whether it had been completed to specification. Most building contracts then had—and still have—a defects liability period, which means that six months after the handover somebody walks around for a second time to see whether any outstanding defects have been remedied properly so that the final moneys can be released. During my time, I did some of both those kinds of inspections, in each case on behalf of the client.

My job when I made those inspections was therefore to reveal and not to conceal. I see that the noble Earl, Lord Lytton, is nodding his head; he has the same experience. That was back in the 1970s and 1980s, and I would say that anyone who believes that standards back then were higher than they are now is mistaken. Actually, they were no higher in the 1870s or 1880s either, despite what the Minister told us in our first sitting. You only have to remember what slum clearance was all about to realise that poor building standards have always been with us.

In my professional experience, disputes were common and hugely pivoted around various benchmarks when the inspections took place. Was something done exactly as designed or not? Was it in strict compliance with the regulations or not? Was it better or worse than industry standard practice? And, as the noble Earl, Lord Lytton, said a moment ago, had they made reasonable endeavours or not?

I never let through anything that was not fit for habitation, as referenced in Amendment 107, nor a building safety risk, as set out in subsection (4) of Amendment 66 in the next group. However, there was always a lot of scope for argument over definitions, which is highly relevant to this legislation. I once attended a fire door test that was put in place because I had objected to a fire door which blew to bits in a wind. That is when I learned two important things, one of which is that to pass a one-hour fire door test a fire door has to resist fire for only 40 minutes. The one hour is when the frame drops out. The second lesson was never to go to a fire test in your best suit.

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[Baroness Neville-Rolfe (Con)]

Does the noble Lord think this construction product schedule includes such things as wood? The thing about fire safety is that it is not just to do with whether it is a plastic tile of some sort but with where construction products are used. In a case that I am aware of, there is an argument that things made of wood—as they have been for a thousand years—are not safe and should be replaced by something else. I am not quite clear how the construction products link into that. This may be a question for the Minister, but I ask the noble Lord, Lord Stunell, because he has obviously been studying this.

[Lord Stunell (LD)]

The noble Baroness is certainly right that there are materials that have been used in one way, safely and successfully, for thousands of years, and others that are intrinsically safe, such as bricks—presuming they are made of clay rather than straw. I will not try to give the full range, because I think the Committee would get bored quite quickly and my pool of knowledge is quite shallow, but she has raised an important point: it is not just about having a product but about what you do with it. I am sure the High Court would want to put both components together before issuing any building liability orders, which seem to be the nuclear weapon that the Government believe they have in their hands.

[Lord Khan of Burnley (Lab)]

My Lords, I will speak to a number of amendments in this group. It has been a fascinating and exhaustive debate, even though there has been a mix of amendments.

I will start with Amendments 46 to 48, which are technical amendments in the name of the noble Lord, Lord Blencathra, who simplified and explained them in a very eloquent and clear manner—even using Latin at the start of his introduction. I hope the Minister got the gist of that message in Latin; I cannot repeat it, but I think it purported to say that, if he listens to the message and applies it, he will leave a wonderful legacy through this Bill.

At the heart of the argument from the noble Lord, Lord Blencathra, was consultation. Many noble Lords in this Committee have, at different stages of our lives, undertaken consultation; its value is essential to what we are doing today. I am really concerned that, if there is a lack of consultation or an element of tokenism—if we do not get residents, tenants’ groups and leaseholders on board—it could lead to what we often refer to as post hoc rationalisation of predetermined decisions. We need to take people with us on that journey, as I have said previously, and ensure that they feel as close as possible to the decision-making we are undertaking in this Committee and in subsequent debates in this Bill’s journey.

Amendment 49 in the name of the noble Lord, Lord Blencathra, makes provision regarding the contravention of requests for further information. Similarly, Amendment 50 would allow regulations to make provision for penalties where a principal accountable person fails to set up a proper complaints procedure or fails to do so in reasonable time.

The noble Lord referenced Clauses 93 to 99, which are seen as unfavourable for leaseholders and residents. The noble Baroness, Lady Fox—who has, by the way, introduced amendments for the first time; I congratulate her on completing that process successfully—raised concerns about Clauses 97 and 99. She said that last resort access should not be the new normal and that we must be careful about entrance on minor issues in particular.

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I do hope that the Minister has listened carefully to the concerns raised in this debate and that the Government will finally plug the gaps and loopholes that remain so that, as the noble Lord, Lord Naseby, said, all leaseholders are treated equally.

[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.