Building Safety Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Thursday 24th February 2022 Grand Committee

I turn to Amendments 23, 26 and 133 in my name. These are technical amendments to Clause 52, Schedule 5 and Clause 135. Amendment 23 is a drafting change—

[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.

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[Lord Stunell (LD)]

My Lords, it has been a very interesting debate so far. I do not intend to prolong it at all but, in relation to the technical amendments, I notice that the Bill is 244 pages long and the Government have published 37 pages of amendments. The Explanatory Notes for the Bill were 250 pages long, but there are none for those 37 pages. The explanation we had today, as I understand it, forms the explanatory notes for these provisions, so I appreciate the Minister jamming in all the information in his speech. It was short in time though obviously heavy in content. I just make the plea that we are doing some really hard stuff here, which has implications, but we have no impact assessment which covers the very substantial matters covered by the Government’s new clauses.

In later groups, I will want to raise some points about what seem consequential circumstances arising from the proposed changes to the legislation in the government amendments. I am just logging the fact that we are quite short of what the Government’s assessment is of the impact of the various changes, both technical and more substantial, which will come before us in our consideration of the remainder of the Bill.

I will comment briefly on the amendments of the noble Lord, Lord Best, which I strongly support. In fact, I would have put a longer limit than six years. I had a case in my last year as an MP of a terrace of three low-rise houses which burned down, and the fire brigade quickly determined that it was because there were no cavity barriers in those properties. That fire took place 10 years and one month after they had been handed over to the owners, so the company was actually out of its warranty period—never mind whether it could be appealed to any ombudsman or whoever. The Minister is looking at his watch; I agree that it should be longer than 10 years, but I am not proposing to speak for longer than 10 years.

[Baroness Hayman of Ullock (Lab)]

My Lords, this debate has been really interesting and slightly longer than I was expecting, so it is great to have had so many contributions. I agree with the noble Baroness, Lady Pinnock: we have a lot of sympathy with the amendments of the noble Lord, Lord Blencathra, and his introductory comments were excellent. As we know, non-compliance with building regulations has been a criminal offence under the Building Act for nearly 40 years now. The Bill heavily extends the scope of available power to enforce compliance and/or impose penalties for contraventions, placing much of that power in the hands of the Health and Safety Executive as it establishes the building safety regulator.

We would hope that the building safety regulator takes a more proactive stance to the broad scope of enforcement measures available to it under the Bill, as Dame Judith Hackitt’s public statements have suggested that it will. Perhaps the Minister can confirm that that will be the case. But it also has to have the resources and funding to be able to do so; otherwise, the new and extended measures may have a lot of bark but little actual bite. Again, that is why the comments of the noble Lord, Lord Blencathra, are so important. Furthermore, the key to ensuring building safety going forward will not rest just on sanctions and enforcement; as has been said in the previous debates and at Second Reading, we need a change of culture and attitude.

So, I think the noble Lord, Lord Blencathra, has brought about a really important discussion with his amendment on enforcement. I was particularly struck by his comments on the differentiation of fines for big corporations—I think he mentioned a fine of £140,000 for a breach—compared to that of millions for the National Grid on a breach that would not likely have had the impact on life that the breaches of the building corporations could have. To me, that really strikes at the heart of this. It is an extraordinary anomaly, and I hope the Minister will look at that, because we have a very different reaction to different kinds of breaches of law.

Again, the amendments in the name of the noble Lord, Lord Best, have had a lot of support in the debate today. I add our support too, because these are really important things to speak about, and he did so very eloquently at Second Reading when he talked about the need to confront housebuilders’ defective workmanship and the dreadful consumer or customer service we too often see when they are responding to entirely justified complaints by home buyers. So, along with him and others, we think it is good news that, with this Bill, the Government are bringing in an ombudsman to whom the home purchaser will be able to turn. That is long overdue.

However, the noble Lord, Lord Best, drew attention in his introduction and his amendments to the fact that there is no point having an ombudsman unless it is genuinely going to make a real difference. As he said in his introduction, customers and purchasers need an accessible means of redress. Too often it is too difficult to jump through all the different hoops you need to go through in order to get any kind of response or result from ombudsmen. We also agree with his concerns that the new ombudsman may not have enough teeth. I am particularly interested in what the Minister has to say on this area; it would be extremely helpful if he could give us reassurance on this, because we need to make sure that the ombudsman’s jurisdictions are going to make a proper difference to this.

I think it was the noble Lord, Lord Stunell, who referred to when he was a Member of Parliament. When I was a Member of Parliament, this kind of issue used to come up pretty regularly, unfortunately—and pretty regularly with certain developers, who I will not name in Committee today. For them to have had this kind of redress would have been hugely helpful.

Moving on to the government amendments, I first thank the Minister for agreeing to slow down, because an enormous number of government amendments landed in our laps after 10 February while we were in Recess. It is a lot to take in and get your head around in quite a short amount of time. I wanted to listen carefully to the Minister’s introduction on this because of that point, so I thank him for slowing down and taking that time.

I just wanted to make a few small points. We very much welcome the amendments around information sharing. It is really good news that it will be easier for people to share information about those who commit serious breaches in building safety. That is important.

Another matter relates to the different amendments on the devolved Administrations. To reiterate what the noble Baroness, Lady Pinnock, said, it is important that we respect and work closely with those Administrations when we bring forward legislation. It is therefore good to see those amendments and that the Government are doing so. It would be good for that to continue as we deal with other new amendments during the passage of the Bill. It was also interesting to get clarification on what is happening with the Crown Estate and to know that this building and all the repairs will be part of this new system.

However, as the Minister said in his introduction, these amendments are mainly technical and I appreciate his time in introducing them. I hope that he will be sympathetic to the points made regarding the amendments of the noble Lords, Lord Best and Blencathra.

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I know both “polluter pays” amendments are highly technical and do not pretend to be a legal expert, which is why I felt it prudent not to explicitly add my name to either. I do, however, understand the general thrust of what they are trying to achieve. I hope the Minister can assure me that the Government’s lawyers are looking carefully at these amendments with a view, I hope, to bringing forward their own amendment that captures the essence of these proposals. In the meantime, I thank him very much for what he is doing. I am glad to think that everybody, from all sides of the House, is trying to work to move this forward with urgency.

[Baroness Hayman of Ullock (Lab)]

Does the noble Baroness, Lady Pinnock, want to speak next?

[Baroness Pinnock (LD)]

I am happy to do so. I was assuming that the noble Baroness, Lady Hayman, wanted to speak to the amendment which is in her name. I do not know what the protocol is on all that.

[Baroness Hayman of Ullock (Lab)]

Then I will speak to my amendment, as I stood up first. As noble Lords have said, this has been a really important group of amendments to debate. I will speak first to my Amendment 35 and I thank the noble Baroness, Lady Pinnock, and the right reverend Prelate the Bishop of St Albans for their support.

Clause 57 gives the Secretary of State powers to impose a new building safety levy in England that will contribute towards the Government’s costs for remediating historical building safety defects. This will apply to developers making an application to the building safety regulator for building control approval, which of course is the new gateway 2 process that we have debated throughout discussion on the Bill. The problem we have, which is why I tabled this amendment, is that it will also be imposed on councils—the social landlords. Councils of course already face additional financial pressures, due to the Covid-19 pandemic.

We should not forget that the key role of local government is to serve communities—the Minister will completely understand this—and provide essential services. They are not the same as developers, so the purpose of this amendment is to make social housing providers exempt from the additional financial burden of the Government's proposed levy, to prevent council and social housing tenants subsiding the failures of private developers and paying the cost of remediating both council housing and private housing. We are concerned about what may be the unintended consequences of the Bill as it stands, because if the levy is imposed on local authorities, it will increase the cost of building or refurbishing social housing, or increase rents, as the right reverend Prelate said. Yet the benefits to funds will not be available to the tenants, who would otherwise have benefited from lower rents or better housing.

The money to fund remediation must come from somewhere. Inevitably, it will be at the expense of another critical service, either in housing or through increased rents. To ask for that does not seem the right way forward. Does the Minister recognise the potential impact of the levy on social housing supply? Again, the right reverend Prelate the Bishop of St Albans talked about our desperate shortage of housing in this area. We do not want anything that will negatively impact that. It is important that we do not pit the objective of providing for those in housing need against the objective of making buildings safe, when both must be delivered.

I turn to the other amendments in this group, looking first at the amendments in the name of the noble Lord, Lord Young of Cookham, which he introduced clearly and comprehensively. To us, they seem eminently sensible and practical, and the right way forward. As he said, Amendment 130 proposes that the Government establish a comprehensive prospective levy scheme on all developers, the money from which would go towards remediating the defective buildings. As I understand it, his Amendment 24 is consequential on the establishment in Amendment 130 of the building safety indemnity scheme. That means that the removal of building work that contravenes fire safety regulations could be carried out, if his Amendment 130 were accepted.

What came through in both the noble Lord’s introduction and how other noble Lords introduced their amendments is the fundamental principle that it is right that the person who is responsible for breaches and poor building work should be made to put it right. This is a simple, basic principle that I think we all agree with. It should not be that difficult for the Government to accept it; to me, the Bill already accepts it. Why not work with noble Lords who have put forward such important amendments today, take them forward and give us much more robust statutory protection for leaseholders, extending it to all work, as the noble Lord said, that contravenes regulations? We would strongly support any amendment that makes buildings safer and protects tenants properly.

I was also struck that the noble Lord, Lord Young, referenced freeholders. They have not been talked about enough in debate on the Bill, so I thought it was very important that that reference was made and that they are not forgotten.

The noble Lord, Lord Blencathra, has a number of amendments looking to make protections more robust. We strongly support his zeal in what he is trying to achieve. His objectives are really important; as he said, they are not exactly perfect in every way, but we are not about perfection here. This is about putting forward the issues that need to be considered to improve the Bill. He has done that very clearly. His aim to pull the “perpetrator pays” and protections for leaseholders together is important, because it makes the objectives and the direction we need to go in really clear.

The noble Earl, Lord Lytton, was right when he said that his amendment and those from the noble Lords, Lord Blencathra and Lord Young, come from the same point of principle—an important principle that we support. He is right that this is quite simply a matter of justice. As the amendment says,

“responsibility for serious defects in the original construction or refurbishment”

rests squarely

“with those who designed, specified, constructed, or supervised the works or made false claims”—

and that is not the leaseholders. It is important that leaseholders feel that their position on this is fully understood and that we are moving forward in this way.

The principle that the perpetrator pays is also really important, but I should like to ask the Minister something, because I am getting a bit confused. What is the difference between a perpetrator and a polluter paying? It has got a bit confusing to have these two phrases.

[The Earl of Lytton (CB)]

I put this amendment forward originally to your Lordships’ wonderful team of parliamentary clerks, who did not like the term “polluter”. They felt that pollution as a term of art meant something different—if you like, involving a release or deposit of something, rather than sticking something together wrong. But they said that they would accept “perpetrator pays”, so I said, “Okay, all right, so be it.” But actually I think it is a better term, so I give them due credit for that. That is the origin of the phrase.

[Baroness Hayman of Ullock (Lab)]

Perhaps someone should table some amendments to change the word “polluter” in the Bill to “perpetrator”, so we can all be in the same place.

Very briefly, I turn to the government amendments in this group. At earlier stages of the Bill, it was disappointing that what it contained fell significantly short of the action that was needed to protect leaseholders, so I put on the record how warmly we have welcomed the new amendments that the Government have proposed to address a lot of the urgent issues raised through debates on the Bill so far. However, there are a number of key questions that I shall put to the Minister for clarification today on the amendments that we have debated. I shall not go into detail, because we have heard an awful lot of discussion around them today—so I shall be brief.

How strongly committed are the Government to using their proposed enforcement mechanisms to ensure that industry plays its part and pays the funds that it has been asked to? How will the Government continue to play their part and pay the funds needed to end the crisis while ensuring that funding for affordable housing supply is protected, regardless of the contribution of funds from industry? How can leaseholders who have already paid remediation costs recover those costs retrospectively? I do not think that that has been properly dealt with so far. How will the Government ensure that new funding responsibilities for social landlords will not undermine their role in providing housing supply? That references back to my amendment.

I am sure that we will revisit some of those questions later in debates on this Bill. I ask a brief question about the new clauses in Amendments 74 and 75, which give the Secretary of State power to make regulations that

“prohibit a person of a prescribed description from carrying out development of land in England”,

and/or imposing a building control prohibition in relation to persons of a prescribed description. Those powers would be for any purpose connected with building safety or building standards. I should like clarification, because it is unhelpful that a

“person of a prescribed description”

is not defined in the amendments, which simply state that it means “prescribed by the regulations” under the clause. This is what I am slightly confused about; does it apply to persons who have been found to be in breach of building safety, or is it the means by which government would prohibit those who do not contribute to the extra £4 billion fund? Some clarification on that point would be really helpful.

I hope that the Minister has listened very carefully to the important points that have been made by noble Lords in this debate, and I end by saying to him, in the spirit of what has been going on earlier, acta non verba.