Building Safety Bill

Baroness Scott of Bybrook Excerpts

Committee stage
Monday 21st February 2022 Grand Committee

[Baroness Scott of Bybrook (Con)]

I thank the noble Lord and the noble Baroness for raising this important matter. I am afraid that the Government will not be able to accept these two amendments, but I assure your Lordships that their intention has already been met in the Bill. The building safety regulator will be the building control authority for building work on higher-risk buildings as defined under Part 3. Clause 32 provides new powers to set procedural requirements in building regulations to govern building work. These powers will provide the basis for the new gateways process for creating new higher risk buildings and a new refurbishment process when carrying out certain building work on higher-risk buildings.

The noble Lord, Lord Stunell, and the noble Baroness, Lady Pinnock, brought up very specific issues and situations. I will make sure that we write on those, because they are very specific and I do not have briefings on them, although I can say that minor works will still be covered by self and third-party certification, as the noble Lord, Lord Khan, said. However, the BSR can inspect those works if it wishes to, so it will keep an eye on them and will use its powers to do that. On trade and business self-certification and on window replacements, which the noble Baroness, Lady Pinnock, mentioned, I will get a specific answer to noble Lords and put a copy in the Library.

The building safety regulator will be solely responsible for overseeing compliance with all aspects of building regulations, not just fire and structure, when building work is carried out on higher-risk buildings. This responsibility will not be split between the building safety regulator and the relevant local authority. Furthermore, these amendments refer to the building safety regulator acting as

“the building control authority by virtue of Part 4.”

The meaning of the term “building control authority” is inserted into the Building Act 1984 by Clause 31 and does not relate to Part 4 of the Bill, which is concerned with higher-risk residential buildings when they are occupied. In addition, Clause 31 provides the legal framework to enable the building safety regulator to be the building control authority for building work carried out on higher-risk buildings. It also provides that on multibuilding sites where one or more of the buildings are higher-risk buildings, the developer may, for convenience, seek an agreement with the building safety regulator that it will be the building control authority for the whole site, including in respect of any low-rise buildings.

I thank noble Lords for suggesting these amendments, but with that explanation I respectfully ask the noble Lord to withdraw his amendment. I will write.

[Lord Stunell (LD)]

I thank the Minister for her reply and shall await the letters with the greatest interest. A central point here is who notifies who and who knows when stuff is going to happen. For instance, in the current situation, whether it is installing a new boiler or a new window or having some electrical work done, the work is not necessarily commissioned by the owner—it might be by the flat occupier or the leaseholder. On the completion of those works, a certificate is issued to the client and, as I understand it, a copy goes to the building control authority and goes on to its register. It is a post hoc situation; it is not cleared in advance.

I want to see what is in the letter and to understand clearly that we have not left any loopholes, perhaps literally loopholes through which smoke can go or fire can spread. If it is not already clear, we want to see an improved Bill, a strengthened Bill, and we in no way want to weaken it or make it more difficult to enforce or enact. We shall be watching. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

My Lords, I thank the noble Lords, Lord Stunell and Lord Khan, for raising these important points, particularly the role of the building advisory committee and its functions.

I will first respond to Amendment 7. I hate to say this again, but I am afraid the Government will not be able to accept the amendment. We seem to have said this all afternoon, but I sincerely hope to reassure the House that the Bill already makes appropriate provision in Clause 9 for a wide set of functions for the committee.

Clause 9 provides for the establishment of a new expert advisory committee—the building advisory committee—as recommended by Dame Judith Hackitt in her independent review. The building advisory committee is to be established by the building safety regulator. That is important: it is a committee under the building safety regulator. It will provide expert advice and information to the regulator about matters connected with any of the regulator’s building functions, except those functions relating to the competence of persons in the built environment industry and registered building inspectors. This will include validating and assuring technical guidance, such as approved documents, to ensure that it is fit for purpose. Clause 9 will play an important part in ensuring that the building safety regulator has access to the support and expert advice required to enable it to deliver its critical work. That is why I respectfully ask the noble Lord, Lord Stunell, to withdraw his amendment.

I turn to the question of Clause 12 standing part of the Bill. I first thank the Delegated Powers and Regulatory Reform Committee and noble Lords today for their scrutiny of the delegated powers in the Bill. I am sensitive to the concerns that have been raised about Clause 12. The Government believe that the Bill sets up the right committees for the near future, but the Bill also needs to enable the building safety regulator’s committee structure to adapt and improve over the longer term through these delegated powers. We have heard many challenges about the future of building in Committee this afternoon and it is therefore important that there is flexibility within the system.

The Government included Clause 12 because of expert advice from the Health and Safety Executive, as the future building safety regulator, that this is needed to enable its committee structure to adapt and improve. This reflects HSE’s more than 40 years’ experience delivering regulation at an appropriate distance from government. Since 1974, HSE has needed to change its industry and subject advisory committees to reflect industrial, technical, legal and administrative developments. This has resulted in HSE having a rich mix of advisory and stakeholder-led bodies.

I hear the concerns about any use of this power to remove a statutory committee and so offer noble Lords additional reassurances. First, the Government would bring forward regulations to repeal a statutory committee only after a recommendation from the building safety regulator that this is needed as part of changes to improve the working of the regulatory system. Secondly, the Bill provides that such regulations would be subject to the affirmative procedure. Therefore, this House can hold the Government to their assurance that the regulations will not be brought forward without a specific recommendation from the regulator and a convincing case about how it will improve the regulatory system. With those assurances that this power is intended only to ensure the new regulatory system works well over time, I suggest that this clause should stand part of the Bill.

On the detailed questions from the noble Lord, Lord Khan, I do not know whether I have details on funding, staffing and independence. Oh, I have—that is very timely. The statutory committee sits within the building safety regulator. Its activities will be funded by the regulator through a mix of central government grant funding and fee income. Once the amount of funding is decided, we will make sure that noble Lords get a letter. I assume that the same will be the case on staffing—that how it is staffed will come down from the regulator to the committee—and that it will be independent.

[Lord Stunell (LD)]

My Lords, I slightly got the impression that I might even have got a draw on one of those, and I thank the Minister for her reply. In relation to Clause 12, we will want to see the detail of what the Minister has said. It is somewhat reassuring that she understood the concerns that have been expressed, and we look forward to examining it in more detail.

I have to say that she did not do quite such a convincing job on why the building advisory committee should be treated in a different fashion from the committee on industry competence or the residents’ panel. If the whole point of the procedure in Clause 12 is to stop the fossilisation of a set of structures in primary legislation and to give the possibility of changing them as time goes on, which is really the argument she deployed, it does not seem consistent with that line of reasoning that she has been resisting giving some flexibility to how the building advisory committee uses its functions, acting obviously under advice from the building safety regulator itself. That may well be something we come back to. Perhaps the Minister might like to think, in terms of her reply and the reason she gave for retaining Clause 12, about why that search for flexibility in the longer term is not an argument that also applies to Clause 9 in respect of its difference from Clauses 10 and 11.

Building Safety Bill

Baroness Scott of Bybrook Excerpts

Committee stage
Thursday 24th February 2022 Grand Committee

I finish by saying to the Minister that I know and understand that sympathy is there, but movement needs to be there. We need both; that is the crux of the matter. I know the noble Baroness, Lady Fox, mentioned her concern. I do not think it is a concern if we have to put money into education to save people’s lives or to change a system that is broken and needs fixing. I know that when the Minister introduced the Bill he talked about making significant change, but that culture needs to change. On these Benches, we view these amendments as significant and fundamental to ensuring that we send out a message to everybody in the industry, to residents, to everybody involved in delivering fire safety assessments and to building inspectors that we mean business. We mean saving people’s lives and high-quality buildings that everyone can enjoy.

[Baroness Scott of Bybrook (Con)]

My Lords, I will first respond to the noble Lord, Lord Khan, and say that I agree with absolutely everything he said. This Bill is about not signing off unsafe building as has happened in the past. It is about having a toolbox filled with tools to fix the issues we have in the building sector at the moment, particularly with high-risk buildings.

I also agree with the point from the noble Baroness, Lady Brinton. I have heard my noble friend the Minister say this over and over again: it is about not just processes but cultural change within the whole system. With those opening remarks, to begin with I will just go through a few specifics before I get into my speaking notes, which I have just been given to do and which I have to do.

The noble Lord, Lord Stunell, and the noble Baronesses, Lady Harris and Lady Fox, asked, rightly, where the approved inspectors and fire risk assessors will come from. Those inspectors are an established professional group; there are many already operating in the sector—but obviously, as things change in that sector, they will have to be retrained and updated to work within the new system. With the fire risk assessors, we are working in the sector already to help to improve their capacity and competences, and contributing at this moment to two industry-led workstreams that are working on this issue.

The noble Baroness, Lady Pinnock, talked about where you can check about the completion of certificates. It is a muddled system—we know that—and that is why we aim for all documentation for buildings, including all completion certificates from construction to occupation, to be in a golden thread of information. We have legislated for this in the Bill, and further details on that will come out in secondary legislation.

The noble Baroness and the noble Lord, Lord Stunell, also brought up the issue of registers. Details of approved inspectors’ final certificates must be placed on registers held by local authorities, but we are also looking at a proposal for a national register of those inspectors, which will help the system no end. It is going to cost money; we are going to retrain people with different skills. There is money from government—nearly £700,000 in funding—to train more assessors, because we know that we will need them, but also to speed up that system for valuers and the EWS1 forms required. Training will provide competent professionals with the skills that they need for the up-and-coming changes, particularly those outlined in the Fire Safety Act 2021. So we are looking at capacity to do all these things.

I shall go through and respond to each amendment. First, on Amendments 15A and 16A, I think we are all looking for the same outcomes—it is about how we do that, and which tools we use. So there will be some decisions, but what is important in these debates is that we are all learning from each other about what might be the best solution, and we will continue as a Government to look at what has been said in these debates.

We are introducing a new framework for oversight of the performance of building control bodies, and a new professional framework for registered building control approvers and registered building inspectors, for their work on all buildings. This framework includes the registration of both building control approvers and building inspectors. We expect the building safety regulator will specify relevant skills, knowledge, experience and behaviours as part of registration, and require continual professional development to be undertaken, but we consider it important to give it the flexibility to choose how to incorporate these areas operationally, rather than be restricted by having a specific requirement for standard qualifications and compulsory training set out in primary legislation. We are also concerned that standard qualifications may be read as examinations, which may make it harder to recognise and value experimental learning. On this basis, I would ask that the noble Lord does not press his amendment.

On Amendment 16, tabled by the noble Baroness, Lady Pinnock, the Government are introducing a new framework for oversight of the performance of building control bodies and a new professional framework for all building control bodies, including registered building inspectors, for their work on all buildings. The building safety regulator will drive improvements in building safety by overseeing the performance of building inspectors and building control bodies through a robust professional and regulatory regime. This will include setting codes of conduct and competence, including for registered building inspectors, and operational standards rules defining the minimum performance standards that building control bodies, which will employ or use registered building inspectors, must meet.

To achieve this, the building safety regulator needs the flexibility to frame such codes and standards in the way it thinks best, and to adapt them over time as required. This would be hampered by specifying part of the content of the code in primary legislation, as this amendment suggests. However, we expect future codes of conduct to address conflicts of interest explicitly, just as the existing code for approved inspectors does already.

I turn to Amendment 116 in the names of the noble Baroness, Lady Pinnock, and the noble Lord, Lord Stunell. I thank them for shining a light on the important issue of the competency of fire risk assessors, as they did when the Fire Safety Bill was being debated. However, I am afraid the Government will not be able to accept the amendment.

The fire safety order 2005 requires any person who has control in premises to take reasonable steps to reduce the risk from fire and make sure people can safely escape if there is one. The order applies to virtually all premises and covers nearly every type of building, structure and open space. To give noble Lords a sense of scale, this includes approximately 1.7 million residential buildings and all offices, shops, hospitals, schools, pubs, restaurants, factories and warehouses in England and Wales.

Given the scope of the fire safety order, it is important that we retain the ability for the responsible person to carry out their own fire risk assessment, particularly in small or low-risk premises, using the guidance and support available so that they can make their premises safe from fire. In some circumstances, the responsible person will be best placed to identify the potential causes of fire, the people and the risks and to take action. They can take ownership and have the ability to take quick action.

I will give noble Lords an example: a small gift shop with a simple layout, such as one floor, and a limited risk in relation to fire. With a small number of employees and visitors to the premises, a responsible person could undertake the fire risk assessment themselves—this is because there is no sleeping accommodation, no hazardous processes taking place and no cooking processes—using the published guidance to address fire safety measures.

If we require fire risk assessments to be undertaken in every case by a registered fire risk assessor, we risk two very significant downsides. First, on capacity, we know that there is a limited number of competent fire safety professionals, as we have spoken about, and that demand for fire risk assessors outstrips supply. A register would risk creating a bottleneck, which could result in a delay in responsible persons undertaking or updating a fire risk assessment. This could mean that fire hazards would not be identified or mitigating action taken. It could also distract competent professionals away from premises of higher risk.

Secondly, on cost, in some low-risk premises it will be restrictive to require responsible persons either to appoint a fire risk assessor from the register or to ensure that they themselves are on the register. It could mean that fire safety outcomes are reduced, where they could meet the responsibility of the requirements of the fire safety order themselves without the requirement to register or appoint a registered assessor.

It is vital to ensure that those appointed to undertake fire risk assessments are competent. I assure noble Lords that the Government’s intention to enhance competence has been met in the Bill with the amendment to the fire safety order to require that the responsible person must not appoint a person to assist them with making or reviewing a fire risk assessment unless that person is competent. That amendment will also include—

[Lord Stunell (LD)]

I thank the Minister for giving way. I have understood her line of argument very clearly, but she seems to be saying that it would still be lawful for that housing association in Kensington to have appointed an unqualified person. Is that exactly what she is saying, or not—or will higher-risk buildings have a more stringent requirement for fire safety assessors?

[Baroness Scott of Bybrook (Con)]

No, what I am saying is that a higher-risk building, or any building which has certain issues, will need a qualified fire risk assessment. What I am also saying is that those people cannot subcontract or have anybody working with them who is not competent as well. In the case of Kensington and Chelsea, and Grenfell, they would no longer be able to have somebody who is not competent and does not have the relevant qualifications to do that fire risk assessment. I have seen with my own eyes where that has been done in the past. Does that make sense? I shall make sure that the noble Lord gets it in writing, so that he is clear, and I shall put it in the Library.

That amendment will also include a definition of the competence that is required—which I think also answers the noble Lord—and we will issue guidance to support responsible persons in identifying a competent fire risk assessor. Significant work has been done by the industry-led Competence Steering Group, the working group for fire risk assessors. Industry continues to lead and develop the work in relation to competence for the sector and has developed a centralised list of professionals where a responsible person can identify a competent fire risk assessor to assist them in undertaking a risk assessment. There is also further work taking place by the sector to develop a fire risk assessor industry competence standard. Again, I think that is very important.

I move on to Amendment 119A. We have had a lot of interest shown in the training and qualification of fire risk assessors. The fire safety order requires that the responsible person must make a suitable and sufficient assessment of the risks to which relevant persons are exposed for the purpose of identifying the general fire precautions they need to take. A responsible person can undertake that assessment themselves using guidance to help them do so if they have the requisite level of competence, and this is generally what happens in relation to buildings that are simple by design. When buildings are more complex—and I think that here we are probably getting to a better answer to the noble Lord’s question—responsible persons will often choose to appoint a fire risk assessor to undertake the assessment on their behalf. Fire risk assessors come from a range of professional backgrounds, and it is quite often the case that they themselves need to seek input from other professionals with specialist knowledge when undertaking a fire risk assessment on more complex buildings.

When a responsible person does appoint a fire risk assessor to complete the fire risk assessment, it is of course vital that they ensure that person has an appropriate level of competence. That is why we are introducing a requirement, through Clause 129 in the Bill, to the effect that the responsible person must not appoint a person to assist them in making or reviewing a fire risk assessment unless that person is competent. Clause 129 also includes a definition of the competence that is required, and we will issue guidance to support responsible persons in identifying competent fire risk assessors. We are also working closely with the professional bodies in the fire safety sector to consider capacity and capability issues in relation to fire risk assessors, and work is already being taken forward through the industry-led Competence Steering Group fire risk assessor sub-committee to develop a fire risk assessor competency standard.

I am clear that the initiatives I have set out represent the most effective approach to further professionalising the fire risk assessor sector at this time, and it is right that this work continues to be led by industry. I thank the noble Lord and the noble Baroness for raising these important issues, but I must ask them at this point not to press their amendments.

Finally, I thank the noble Baroness, Lady Pinnock, for her final amendment in this group, Amendment 136. I am happy to reassure her that the Government believe that this amendment duplicates many of the existing provisions in the Bill. Clause 10 requires the building safety regulator to establish the industry competence committee and provide support as necessary. The committee’s activities could include overseeing and monitoring the industry’s development of competence frameworks and training, undertaking analysis to understand areas that need improvement and working with industry to drive gap-filling. We expect the committee to provide reports of its work to the regulator periodically.

As a precursor to the statutory committee, the Health and Safety Executive has already established an interim industry competence committee, which is developing its strategy and work plan for supporting the industry’s work, including looking to understand its current competence landscape. It is for the industry to lead the work to improve competence, identify skills and capacity gaps and provide appropriate training to upskill its members for the new regime, and it has already started this work. Training and certification of competent professionals is not a function of government or the regulator under the Bill. We and the Health and Safety Executive will continue to monitor the industry’s progress and provide support where necessary.

Clause 135 legislates for the appointment of an independent person to carry out a periodic review of the system of regulation for building safety and standards and the system of regulation for construction products. The review will act to ensure the functioning of the systems and provide recommendations for improvement. The review must consider the building safety regulator and the system of regulation established by Parts 2 and 4 of the Bill and the Building Act 1984. However, the independent reviewer is not limited and may review connected matters at any time. An independent reviewer must be appointed at least once every five years, although the Secretary of State can appoint a reviewer more regularly if necessary. By ensuring that the report must be published, the Government have created a system of public accountability in building safety.

When defining “independent”, we have struck a balance that excludes those with a clear conflict of interest without overreaching and excluding everyone with relevant experience. This clause will help to protect the integrity of the system and ensure that it continues to create a safe built environment in future. Further reporting requirements risk duplication, complexity and additional bureaucracy, and I therefore ask the noble Baroness to withdraw her amendment.

Once again, in conclusion, I thank noble Lords for this interesting debate. I hope I have given the reassurances that will allow them happily not to press their amendments.

[Baroness Pinnock (LD)]

I thank the Minister for her very full response to the issues raised, particularly on Amendment 136 about workforce reporting. She has obviously had some support in going through all the clauses in the Bill to work out where the reviews and so on will take place. She spoke about competencies being reviewed regularly, and I will look again and read carefully what she said when it is reported in Hansard to see how that works. But on the face of it, it appears that this is covered in the Bill.

That brings me to the other issues that I raised. The first was about the building safety regulator overseeing the new roles of building control inspector and approved inspector. I understand that, but when I read the clauses, no details were given about what competencies and qualifications were required for those new roles. If we are determined to improve building safety, which we all are, some definition of what is expected of each inspector role should be in the Bill—not the detail; I totally accept that one would expect the building safety regulator to define those in detail. However, there should certainly be some indication of that, and it is not there. Hence, the amendments that I have tabled. Again, it may be that discussion with the Minister before the next stage could be of help in that regard.

I turn to the fire risk assessors. I remember the wonderful Fire Safety Bill. The issue of fire risk assessors came up at that stage and my noble friend Lord Stunell had amendments about them. He talked about a register, a lack of capacity, ill-defined qualifications and competencies, and we have not moved forward. That is the problem. We must move more quickly. The point is well made and I know that the noble Baroness has tried to explain and will put something in writing. We will look at it, but I must say that assessors and fire risk assessment is critical, particularly to some of these high-risk buildings.

Lastly, there is the issue of accountability, which was raised by the noble Baroness, Lady Fox. It is one of my themes that I come back to all the time. Quis custodiet ipsos custodes? Who guards the guardians? Who overlooks all this to make sure that people are accountable? Unless we do that, we get into the mess that we are in now, where so diverse is the golden thread of accountability that nobody understands who is going to take control. I am not sure that I totally accept the noble Baroness’s views on this part of the Bill, but I certainly do on the next part in terms of overseeing safety within already-constructed buildings. There is a good point to be made about it being so diverse and unclear who will be responsible for what that nobody will be responsible for anything and we will be in the same mess that we are now.

I thank the Minister again for a detailed response, which has been helpful. I shall read it carefully as we cannot take in all the detail—well I cannot, anyway. Perhaps in discussion with the Minister, we may make some progress before Report. With those comments, I shall withdraw or not move the amendments in my name. I beg leave to withdraw the amendment.

Building Safety Bill

Baroness Scott of Bybrook Excerpts

Committee stage
Monday 28th February 2022 Grand Committee

[Lord Khan of Burnley (Lab)]

My Lords, I rise briefly to speak to Amendment 45, in the name of the noble Lord, Lord Best, and well supported by the noble Baroness, Lady Neville-Rolfe. I reiterate that this amendment is about looking at leaseholder-owned or leaseholder-controlled companies appointing an external professional to discharge the functions of the accountable person or principal accountable person. The amendment also talks about costs and maybe looking at service charges.

I want to ask this of the Minister. On these Benches we have a big concern about the actual level of service charges at the moment. These charges are already quite high and they are passed on to leaseholders and tenants. Have the Government looked at the aspect of service-charge pricing and whether leaseholders will be able to bear the cost of having this expertise, as detailed in the amendment? We absolutely recognise the importance of the amendment and we are supportive of it. We are equally concerned about using service charges in order to fund these kinds of important, necessary steps. The impact on leaseholders and tenants is a big concern.

On what was discussed previously in Committee, I will add something in relation to professional expertise and skills, and having the opportunity to pass on these responsibilities to somebody who can take care of this important role, focusing on the function of the accountable person or principal accountable person. I will not talk about this at length, but it calls for a debate about the current situation and whether the Government are fulfilling the needs of leaseholders and tenants. I will finish by saying that there is a big concern about service charges overall, about pricing and about how this will have an impact subsequently on leaseholders.

[Baroness Scott of Bybrook (Con)]

My Lords, first, I will answer the noble Lord, Lord Khan. He brings up an important issue and I heard his concerns on the level of service charges to leaseholders. I do not think that that is particularly relevant to this amendment, but I hear his concerns and I will take them back to the department and we will get a letter to him saying what we are doing about that.

I am sorry, but I am going to disappoint the noble Lord, Lord Best, on this amendment—but perhaps not as much as I could have done. I thank him and my noble friend Lady Neville-Rolfe for raising this important matter. The Bill provides that an accountable person is the entity responsible for the repair of the exterior, structure and common parts of a building. This may well include leaseholders who have set up resident-led organisations exercising their statutory right to take control of their building away from the freeholder. These statutory rights are very important. They act as a device to ensure that the imbalance of power between freehold and leasehold tenure is redressed and that leaseholders are empowered to make decisions about the safety management of their buildings. With this empowerment come responsibilities and accountability. The amendment would allow such resident-led organisations to appoint a third party to be responsible for their building’s safety management, passing culpability to that third party if anything went wrong.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

A meeting would certainly be helpful. We also need to see this famous guidance. We know from other experience on buildings that there is an assumption that everything will be fine and dandy, but this is a very serious problem. We will lose those volunteers who are running buildings right across the country while waiting for Godot and a bit of guidance. If we are able to see the guidance and see that it works, we will be very happy. If it does not work, there will be time to do something. I am sorry to raise this point, but it is a practical matter for lots of people across the country, some of them in very inexpensive flats that they cannot even sell.

[Baroness Scott of Bybrook (Con)]

We absolutely understand the issue We are working on it. As I said, if we have a meeting, maybe we would have some ideas. I do not know about guidance yet, but we will make sure that we can have that discussion. I hope that we will get something better in place before Report.

[Lord Best (CB)]

Those final comments were the ones that I hoped to hear: that, with a bit of discussion, we may be able to find a way around this. The test for me is a real one. My son in a block of flats says, “Dad, should I think about being one of these directors?” My answer at the moment is, “Steer well clear. It is not a good idea to volunteer for this at the moment.” I look forward to those discussions and hope that we can come to an agreement. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, I want to say how much we agree with what the noble Baroness, Lady Fox, said about the importance of having adequate safety measures. That has to run through everything we discuss in connection with the Bill. The noble Baroness also raised the important issue of cost. My noble friend Lord Khan talked about high service charges, and the Minister said she would write about that. This debate has put a focus on ever-increasing service costs, and the fact that in many cases they are starting to become unreasonable. It is very difficult when they go up by 190%, as they have in some areas.

The noble Baroness, Lady Neville-Rolfe, asked one of the key questions that I was going to ask, about the operation of the managers. What exactly are they going to do, and how are they going to do it? Will they be paid, and if so, how much? There is not a lot of detail in the Bill. This comes back to the point made by the noble Baroness, Lady Pinnock, about accountability, and whether there will be confusion over the role. It is important that we all understand exactly what building safety managers are expected to do, how they will do it and how they will be rewarded for their work. Without that clarification, there are bound to be concerns that the cost of their work will be passed on through increased service charges, or possibly increased rent. None of that is clear. We would like more clarification about the role and the expectations.

[Baroness Scott of Bybrook (Con)]

My Lords, I start by going back to where the Bill came from, the tragedy of Grenfell Tower. The point of the Bill is to ensure the safety of residents, particularly, in this case, in high-risk buildings, and the building safety manager is the day-to-day eyes and ears. I do not know whether people realise, but I did two or three years’ work after the tragedy in Kensington and Chelsea. Before I did that, I spent a lot of time in high-rise buildings, not in London but elsewhere in the country, and it was quite interesting, on a day-to-day basis, when I went round with fire brigades and dealt with issues such as safety doors. People took them off and put B&Q doors on. Those things cannot be done every five years, or every year; they need somebody going in and out of that building, checking up.

There will be stairwells with stuff stuck in them that is stopping people going up and down. There will be holes between the sealed containment of flat against flat. All those sorts of things need somebody who is not at arm’s-length but is working day to day. Yes, they will need new competences, but those competences are out there, I would argue, within the community already, and we will have to work on those competences. As for cost, obviously, that depends on the building. Some of these managers will be able to do multiple buildings if it is felt, by their accountable person, that they will be able to do a good job on that. One building is not the same size or requires the same amount of work as another building.

I shall now go through the amendments of the noble Baroness, Lady Fox, and I thank noble Lords for their contributions. The crux of Clause 80 is the duty to appoint a building safety manager. The creation of the building safety manager role was recommended made by Dame Judith Hackitt in the independent review to ensure, I say again, that the day-to-day management of buildings is undertaken by suitably competent people. That is what she said and that is what we are delivering in the Bill. Clause 80 establishes the role and creates a duty for principal accountable persons to appoint a building safety manager and provide them with support and assistance to manage building safety risks, except where they have the capability to meet the duties without needing such support. So there will be times when principal accountable persons have the time and the competences to do it without appointing somebody else. The skills, knowledge and experience offered by building safety managers will help drive up safety standards and, we believe, deliver positive outcomes for residents.

While the building safety manager will hold responsibility for certain tasks, to be agreed in their contract, accountability for meeting the duties set out by the Bill cannot be transferred by accountable persons to the building safety manager or anybody else. I think that answers the question of the noble Baroness, Lady Pinnock, about who is ultimately responsible. Whether the building safety manager is an organisation or an individual, they must possess the necessary competence to deliver the role. If an organisation is appointed, it must have a nominated individual named and in place to oversee delivery, providing reassurance to residents that their safety is being maintained. The noble Baroness, Lady Pinnock, brought up the competence issue. Work is ongoing with the British Standards Institute to establish a competency framework for the role, which will be supported by further guidance.

Moving on, Clause 81 deals with the appointment of the building safety manager where there is more than one accountable person for the building. Despite the often complex ownership structures of many high-rise residential buildings, we are committed to delivering a system that ensures a whole-building approach. This was a central tenet of the findings and recommendations of the independent review.

Where there are multiple accountable persons, the principal accountable person will be responsible for appointing the building safety manager. The building safety manager should play a key role in delivering a whole-building approach, drawing on the duty placed on all accountable persons to co-ordinate and co-operate with each other.

Before the appointment is made, the principal accountable person must consult on the proposed terms and costs with their fellow accountable persons. We expect agreements to be reached so that the scope of the building safety manager’s functions and the method of delivery of the whole-building approach are agreed by all. If an agreement cannot be reached, we are providing a process for resolution through applications to the First-tier Tribunal. This approach protects the rights of accountable persons and holds them to account for ensuring residents’ safety.

Clause 82 ensures that building safety managers hold their position through the contractual arrangements agreed with the principal accountable person. If either party wishes to end the contract, they may do so by giving notice to the other party in writing. When the contract ends, a new building safety manager must be appointed by the principal accountable person as soon as is reasonably possible. If a building is not being managed appropriately and is placed into special measures, which is the last resort for taking control of buildings with significant failings, the building safety manager’s contract will end.

I mentioned earlier that there is an exception to the principal accountable person’s duty to appoint a building safety manager. Dame Judith’s review was right to point out that many building owners already operate and successfully manage their buildings through competent in-house teams. Where the principal accountable person’s existing management arrangements deliver safe outcomes for residents and this can be demonstrated to the building safety regulator, their mode of delivery will not need to change. The competency requirements for qualifying for this exception are of course the same as those expected of any other building safety manager.

This approach is likely to be favoured by organisations such as housing associations or local authorities, which potentially have many buildings that fall under the scope of the new regime. Residents of these buildings will rightly expect to be able to identify individuals who play an important role in maintaining their safety, and the clause requires the identification of the individual responsible for overseeing delivery. This person will not be expected to carry out every task alone, but they will be required to provide oversight such that a holistic and systemic approach to managing safety is achieved.

The exception to the duty to appoint a building safety manager also applies where there are two or more accountable persons for the building. The competency requirements remain consistent. As in the case where they would appoint a building safety manager, the principal accountable person must, as I said, consult their fellow accountable persons and seek to reach agreement on the proposed arrangements. We expect the consultation process to follow the same route as already explained for appointing a building safety manager where there are two or more accountable persons.

Safety has to be our main priority and the building safety manager plays an important role in delivering this. The Government will reflect further on all the points raised today. However, at this point we maintain that Clauses 80, 81, 82, 83 and 84 should stand part of the Bill.

[Baroness Pinnock (LD)]

I thank the Minister for responding. I wonder whether she could explain something. I am still confused about what appear to be the conflicting roles of the accountable person and the building safety manager. I am looking at page 106 of the Explanatory Notes, where the accountable person is defined. It states:

“The Independent Review”—


the Hackitt report—

“identified that there should be a clear dutyholder during occupation who will have statutory obligations”—

this is the definition of “accountable person”—

“to maintain the fire and structural safety of the building.”

So we already have somebody who is being appointed to have those responsibilities. That is why I cannot see why there has to be a further role to undertake those duties. The duties are very important, but why should there be two people?

[Baroness Fox of Buckley (Non-Afl)]

Perhaps I should combine my question so that the Minister will not have to stand up twice. Saying that safety comes first and calling somebody a building safety manager does not mean that a building safety manager is going to make a building any safer. I do not think that it is entirely fair to suggest that those of us who are querying some of these things do not care about safety. We would not be sitting in this Committee, I assume, if we did not.

I want it clarified because I liked the Minister’s points about a common-sense approach to safety day by day and about eyes and ears. That all sounds sensible and in some ways I understand that point, but I am confused because it is not clear how many days someone will be there being the eyes and ears. The Minister read out that the competent person will have skills, knowledge and experience, but skills, knowledge and experience of what? It is still not clear. The idea of a volunteer, as described by the noble Baroness, Lady Neville-Rolfe, keeping an eye on things—items being broken or the fire door being replaced by B&Q—is slightly different from how it was discussed by the professionals when they were talking about what kind of person would be a building safety manager. They kept saying that they must be competent and experienced with some skills in fire engineering and personnel management because they will have to go around to tell people off. I think that in the end this is a job creation scheme that will not add to the safety of the building, as do many leaseholders, and they are on the receiving end of it.

[Baroness Scott of Bybrook (Con)]

I find it quite simple really, but then I am a simple person. The accountable officer is the accountable officer responsible for that building or many other buildings in the case of organisations that might have more than one building. They then ask a building safety manager to be there on a much more daily basis and to report back to them on issues within the building that might reflect on its fire or structural safety. Therefore, the skills, knowledge and experience required by such an officer are experience of fire and structural safety in high-rise buildings. We cannot expect the top level to be there day in, day out going around those buildings. How much will be required by each building will depend on that building, I suggest.

Clause 80 agreed.

Building Safety Bill

Baroness Scott of Bybrook Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 29th March 2022 Lords Chamber

Moved by

[Baroness Scott of Bybrook]

17: Clause 41, page 56, line 27, at end insert—
“Inspection of local authorities and registered building control approvers 58Z7A Inspections(1) The regulatory authority may carry out an inspection of a local authority, or a registered building control approver, in relation to their exercise of building control functions.(2) The purposes for which an inspection may be carried out include—(a) ascertaining the efficiency and effectiveness of the local authority or registered building control approver in exercising their building control functions;(b) verifying any information provided by the local authority or registered building control approver to the regulatory authority, in connection with their building control functions.”Member’s explanatory statement
This amendment confers a power on the regulatory authority to inspect local authorities and registered building control approvers, in relation to their building control functions.

[Baroness Scott of Bybrook (Con)]

My Lords, I open this group by introducing a number of technical amendments tabled to strengthen the Bill. Included within this group are amendments that simply update the drafting of the Bill. These include Amendments 72, 75, 79 and 274.

I will speak to government Amendments 17 to 19, which make changes to Clauses 41 and 47 and introduce a new clause relating to approved inspectors. Amendments 18 and 19 relate specifically to approved inspectors’ insurance, while Amendment 17 introduces a power for the regulatory authority to inspect local authorities and registered building control approvers. The Building Act 1984 currently requires approved inspectors to hold insurance through a government-approved scheme. These amendments remove this requirement. Instead, approved inspectors will need to identify adequate cover themselves, encouraging competition between insurance providers.

--- Later in debate ---

[Lord Khan of Burnley (Lab)]

My Lords, I welcome these technical amendments, tabled by the Minister. While I will not unnecessarily detain the House by discussing each amendment, I would appreciate clarification on a small number of issues.

First, Amendment 17 provides the building safety regulator with a power to conduct inspections of building control bodies, thereby giving further oversight of building control bodies provision. Can the Minister explain what guidance will be given on the conduct of such inspections?

Secondly, Amendments 243, 244 and 265 will together mandate a warranty of 15 years minimum as a standard, while enabling the making of regulations for warranties to set a minimum period of liability for developers, minimum standards for the warranty, and a penalty regime for any developers failing to comply. On the warranty, can the Minister explain the rationale for 15 years? Can she elaborate on the Government’s plans for the penalty regime?

As I stated earlier, I welcome these technical amendments and look forward to clarification from the Minister.

[Baroness Scott of Bybrook (Con)]

My Lords, I thank noble Lords for this short debate on these amendments. I am very pleased that most of them, if not all of them, have been welcomed, because I think they will make a difference to the housing market.

The noble Lord, Lord Stunell, brought up the issue of why the amendments have come so late. It is because we listened; the Minister listened, in Committee, to this issue, and therefore the Government have brought forward these amendments. I think the important thing about insurance requirements, as I said, is that the Government are expecting this to reinvigorate the insurance market. At the moment, that is not the case because it is all done through specific Government-procured insurance. This should reinvigorate the market that, as he quite rightly says, is not as vigorous as it should be at the moment. So that is one thing.

The insurance of approved inspectors was mentioned. It will be for the building safety regulator to decide how to set up insurance requirements for approved inspectors. This can be done by the regulator through its professional conduct rules.

The noble Lord, Lord Khan, asked who has oversight of this. It will be the building safety regulator. That is their job, and it is through their rules and regulations that they will make sure that these things are delivered.

Lastly, I am afraid I do not know how the 15 years came about, but I will find an answer for the noble Lord. It is in line with the prospective limitation period for action under the Defective Premises Act 1972—but I will find out how that came about in 1972 for the noble Lord.

Amendment 17 agreed.

--- Later in debate ---

Moved by

[Baroness Scott of Bybrook]

18: Clause 47, leave out Clause 47
Member’s explanatory statement
This amendment removes provision about insurance cover relating to work to which an initial notice relates.

--- Later in debate ---

Moved by

[Baroness Scott of Bybrook]

19: After Clause 47, insert the following new Clause—
“Insurance: removal of requirements
(1) The Building Act 1984 is amended as follows.(2) In section 47 (giving and acceptance of initial notice)—(a) in subsection (1) omit paragraph (c) (but not the “and” at the end of it);(b) omit subsections (6) and (7).(3) In section 51A(2) (variation of work to which initial notice relates) omit paragraph (c) (but not the “and” at the end of it).(4) In section 56 (recording and furnishing of information) omit subsection (2).”Member’s explanatory statement
This new Clause removes requirements in Part 2 of the Building Act 1984 relating to insurance.

--- Later in debate ---

Moved by

[Baroness Scott of Bybrook]

216: Clause 129, page 133, line 36, leave out from “products” to “in” in line 37
Member’s explanatory statement
This amendment removes the reference to Schedule 12 in the definition of “persons carrying out activities in relation to construction products” with a view to a definition being inserted into the Clause.

[Baroness Scott of Bybrook (Con)]

My Lords, we now come to the final debate on Report of this Bill, and I will speak to a number of government amendments on construction products. Noble Lords will be familiar with a number of these amendments already as they were debated and withdrawn during Committee.

I will begin by speaking to Amendments 245 to 249. This set of new clauses will introduce a new cause of action against construction product manufacturers and sellers of construction products. There are currently limited routes which might allow leaseholders, building owners and homeowners to hold to account construction product manufacturers or sellers for their role in the creation of building safety defects.

The cause of action will enable claims to be brought against construction product manufacturers and sellers for their role in causing problems associated with building safety. It will apply where a construction product has been mis-sold or is found to be inherently defective, or if there has been a breach of the construction products regulations applicable at the time and it has been used in the construction of a dwelling or works on that dwelling. If this contributes to a dwelling being unfit for habitation or causes it to be so, a civil claim will be able to be brought through the courts under this cause of action. This cause of action will be subject to a 30-year limitation period retrospectively in relation to cladding products only. The new cause of action will also apply retrospectively to all construction products and be subject to a 15-year limitation period. These limitation periods mirror the changes we are making to the Defective Premises Act. This cause of action will help to ensure that construction products manufacturers, distributors and others are held responsible for the cost of rectifying their mistakes, where a dwelling is unfit for habitation as a result of those mistakes. Amendments 255 and 271 are consequential to these amendments.

I now move on to Amendments 250, 251, 252 and 253, which will create a power to make regulations to require construction products manufacturers, their authorised representatives, importers and distributors to contribute towards the cost of remediation works where they have caused dwellings to be unfit for habitation or contributed to dwellings being unfit for habitation. This will enable the Secretary of State to serve a costs contribution order on a company that has been successfully prosecuted under the construction products regulations. Amendment 253 will allow the Secretary of State to appoint an independent person to inspect buildings where the relevant product has been used. They will assess whether the conditions for serving an order are met, the remediation works required and the cost of those works. Amendment 251 will also create a power to make regulations to take an alternative route through the courts. This will enable the Secretary of State to apply to a court for a costs contribution order to be made against a company. The grounds for making an application would be the same. Amendment 253 will enable the Secretary of State to require a company to contribute towards the cost of building assessments carried out as part of this process.

Amendment 256 makes a technical correction to secure that the maximum fine that can be imposed under the construction products regulations for an offence in Scotland is the statutory maximum in Scotland.

Setting out this scheme in secondary legislation will enable the detailed design of these powers to interact with the construction products regulations, including those that will be made using the Bill’s powers. Amendments 269, 270 and 273 are consequential to these amendments.

Amendment 257 will require that the affirmative procedure is used to make any regulations that would remove construction products from the list of safety-critical products set out in the construction products regulations.

I have considered carefully the important points raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill regarding the parliamentary procedure that should be used to make regulations under this power. I thank the noble Lords, Lord Stunell and Lord Khan, for their contributions on this matter in Grand Committee. It is of course right that regulations receive the proper level of parliamentary scrutiny. That is why Amendment 257 will supplement the existing safeguards in Schedule 12, which prevents products being added to the list unnecessarily or removed without good reason. I hope the noble Lords are reassured that this strikes the right balance between the need for parliamentary debate to scrutinise regulations and the proper use of the limited and valuable time of parliamentarians.

Finally, Amendments 216 and 217 make a minor drafting change in relation to the definition of

“persons carrying out activities in relation to construction products”

in Clause 129. I beg to move.

[Lord Stunell (LD)]

My Lords, briefly, we welcome the changes that the Minister has reported, particularly Amendments 257, 258 and 259, which will bring back to the affirmative procedure some of those matters which we raised in Committee. We appreciate that and we are very happy to support the Government’s amendments in that respect.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

I thank noble Lords for their support for these important amendments —I will write to the noble Lord on his question; I do not have it in my pack. This shows that, throughout the Bill, we have listened to noble Lords across the House and have done what we can. I thank noble Lords for their engagement and for their continued support for most of the Bill. It is important because it will ensure that in this country everyone’s home is a place of safety.

Amendment 216 agreed.

Moved by

[Baroness Scott of Bybrook]

217: Clause 129, page 133, line 37, at end insert—
““construction product” has the meaning given by regulations;“persons carrying out activities in relation to construction products” include (without limitation)—(a) a manufacturer of construction products,(b) a person who markets or supplies construction products to others, and(c) a person who imports construction products into the United Kingdom for use, marketing or supply;”Member’s explanatory statement
This amendment defines “construction product” and “persons carrying out activities in relation to construction products” for the purposes of Clause 128.

--- Later in debate ---

Moved by

[Baroness Scott of Bybrook]

218: Clause 130, page 134, line 7, at end insert—
“(1A) The descriptions of persons which may be prescribed include in particular persons who—(a) are eligible to be members of a scheme established under section 128, and(b) are not members of that scheme.”Member’s explanatory statement
This amendment provides that the descriptions of persons whom regulations may prohibit from carrying out development under this Clause include, in particular, persons who are eligible to be members of a scheme established under Clause 128 but are not members of that scheme.