Building Safety Bill (Fourteenth sitting)

Christopher Pincher Excerpts

Thursday 21st October 2021 Public Bill Committees

[Eddie Hughes]

I welcome those comments. We have definitely seen during the course of the Grenfell inquiry that products have been either tested or marketed in an inappropriate way, and it is good to see agreement across the House. The clause will strengthen our hand in that regard.

Question put and agreed to.

Clause 133 accordingly ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 134

Amendment of Regulatory Reform (Fire Safety) Order 2005

Question proposed, That the clause stand part of the Bill.

[The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)]

Welcome to the Chair, Mr Davies. I am pleased to see that you are putting the Government’s heat and buildings strategy into full effect in the Committee.

The Government are committed to strengthening the Regulatory Reform (Fire Safety) Order 2005 in order to better protect people’s safety in all regulated premises. Clause 134 delivers on 10 proposals that received significant support from respondents to the 2020 fire safety consultation, to address weaknesses that were commonly reported by stakeholders and to better align the order to the new building safety regime. New duties on responsible persons, informed by best practice, will support greater compliance with the order and its effective enforcement, mainly through the improved recording and sharing of fire safety information.

For all multi-occupied residential buildings, the owner or manager will be required to provide relevant and comprehensible fire safety information to residents, as will be specified in the order and may be set out in regulation. That will reassure residents that fire safety is effectively managed and will empower them to hold responsible persons to account. For higher-risk buildings, responsible persons will be required to identify the accountable persons and to co-operate with them. The co-operation duties in this clause and clause 118, with which we dealt on Tuesday, will support a co-ordinated approach to safety in higher-risk buildings between those duty holders, subject to either the building or the fire safety regime.

For all regulated premises, responsible persons will be required to record their fire safety risk assessment in full, including measures taken in response to risk. When appointing a person to assist them with making or reviewing a fire risk assessment, they will be required to ensure that that person is competent to do so. We also need to strengthen the existing co-operation duty between responsible persons sharing premises by requiring them to identify themselves to each other, provide United Kingdom contact details, explain the parts of the premises for which they consider themselves to be a responsible person and record that information. Where responsibility for fire safety changes hands, the outgoing responsible person must provide critical information for the incoming responsible person, as will be specified in the order and as may be set out in regulation.

Our amendment to article 50 of the order will enable the courts to consider a responsible person’s failure to follow all statutory guidance issued to support compliance with their duties as tending to establish a breach of the order. We will also increase the maximum financial penalty available to the courts from £1,000, which is level 3, to unlimited fines, level 5, for offences of impersonating an inspector, breaching requirements imposed by an inspector or in relation to the installation of luminous tube signs, which brings the measure in line with the fire safety order.

Question put and agreed to.

Clause 134 accordingly ordered to stand part of the Bill.

Clause 135

Architects: discipline and continuing professional development

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider clause 136 stand part.

--- Later in debate ---

[Christopher Pincher]

The purpose of clause 138—rather as clause 39 does for the Building Act 1984—is to make it clear that where individuals who control a corporate body participate in committing criminal offences under parts 2 and 4 of this Bill, they, too, are criminally liable for those offences. Many of the persons who will have duties under the new regime will be corporate bodies—legal persons, as they are known—rather than individuals, who are often known legally as natural persons. Any corporate body operates only through the actions of its employees, controlled by its managers and directors. Therefore, if there is an offence by a corporate body, there is likely to be some measure of personal failure by those in positions of seniority.

This liability is already provided for in a number of other pieces of legislation, including notably the Health and Safety at Work etc. Act 1974; the Committee has heard me speak about that in previous sittings. The end result is that directors and managers are just as criminally responsible as the company where either they have made decisions that led directly to the offence being committed, or they have been negligent in allowing the offence to occur.

We have addressed similar points that were raised in debates on previous clauses. If there is one director of a company, it is likely that two prosecutions—for both the company and the director—would be brought, although in practice there would be one case to answer. If the company had dissolved, the company itself would not be liable for prosecution, but that would not prevent a prosecution from coming forward against any one or a number of the managers or directors of the company who were there at the time the offence was committed.

The potential for criminal liability of directors and managers reinforces the duty of those who direct the actions of companies to uphold and promote building safety throughout the operations of their companies—again, inculcating the culture that we want to see. The Government consider that this is a key contributor to our stated purpose of embedding building safety at all levels of the industry, contributing to residents both being and feeling safe in their homes. I commend the clause to the Committee.

[Mike Amesbury]

I want to draw out a point that the Minister referred to. In the construction sector, as has been mapped out in the journey of the Bill so far, special delivery vehicles or special purpose projects are set up and then dissolved. How would this provision apply to the individuals and directors involved? We welcome this clause, which is a real step forward, but we just want to draw out that point.

[Christopher Pincher]

I am happy to help the hon. Gentleman. In my previous remarks, I may have said, “if a company folds”; what I hope I said was that if and when a company dissolves, the dissolution of the company does not prevent an individual—a senior person, a manager or a director—from being liable for offences if they were there at the time the offence was committed. I hope that that confirms the issue that the hon. Gentleman rightly draws out. We are essentially in agreement, and I commend the clause to the Committee.

Question put and agreed to.

Clause 138 accordingly ordered to stand part of the Bill.

Clause 139

Review of regulatory regime

Question proposed, That the clause stand part of the Bill.

[Christopher Pincher]

The Government are committed to the continuous improvement of the building regulatory regime and the construction products regulatory regime, including the Building Safety Regulator and the national regulator for construction products. The purpose of the clause is to legislate for the appointment of an independent person to carry out a periodic review of the system of regulation for building safety and standards, and of the system of regulation for construction products. We believe that such a review will act to assure the functioning of the systems and provide independent recommendations for improvement.

The independent review recommended a periodic review of the overall system of building regulation, including accountabilities, responsibilities, guidance and the effectiveness of the regulator. It recommended that the review should be undertaken by an independent person at least once every five years. The clause meets that recommendation and goes further.

The review must consider the Building Safety Regulator and the system of regulation established by parts 2 and 4 of the Bill and by the Building Act 1984. It must also consider the regulation of construction products, including the effectiveness of the national regulator of construction products. However, the independent person is not limited and may review connected matters. The Secretary of State may also indicate areas of specific interest that they would like the reviewer to consider. I stress, however, that the Secretary of State has no ability to limit the remit of the review.

An independent person must be appointed at least once every five years, although the Secretary of State has scope to appoint a person more regularly should they so wish. By ensuring that the report produced by the independent person must be published, the Government have created a system of public accountability in building safety. In seeking to define “independent”, we have struck a balance that discounts those with a clear conflict of interest, without overreaching and excluding everyone with relevant experience. Under that approach, the exemplar for an experienced but independent person is Dame Judith Hackitt, prior to her appointment to the lead the independent review.

The Government have provided a structure to ensure that an independent review of the system of building safety and standards will occur at least once every five years, and we have ensured that the reviewer can operate unfettered. The clause will help to protect the integrity of the system and help to make sure that the system continues to create a safe built environment in the future. I commend the clause to the Committee.

Question put and agreed to.

Clause 139 accordingly ordered to stand part of the Bill.

Clause 140 ordered to stand part of the Bill.

Clause 141

Crown application

Question proposed, That the clause stand part of the Bill.

[Christopher Pincher]

The clause provides that the Crown is bound by parts 2 and 4 of the Bill, and by the provisions relating to the new homes ombudsman.

The Crown Estate manages an extensive property portfolio on behalf of the Crown, and that portfolio includes a number of in-scope buildings. The Duchy of Lancaster on behalf of Her Majesty, and the Duchy of Cornwall on behalf of His Royal Highness the Prince of Wales, also manage property portfolios that may include in-scope buildings. Some properties owned and occupied by Government Departments may include permanent accommodation, which could bring them within scope.

It is right that those buildings should be subject to the new regime we are setting up for existing buildings. This clause therefore provides that the Crown is subject to parts 2 and 4 of the Bill. This is in line with the approach taken in the Regulatory Reform (Fire Safety) Order 2005 and the Health and Safety at Work etc. Act 1974, which apply to the Crown. It will mean that the Crown will be an accountable person for in-scope buildings and, as such, will be bound by all the duties placed upon an accountable person. The Crown will also be bound by the provisions of the new homes ombudsman, so any Crown bodies developing new residential properties that are within the scope of that ombudsman may need to join the scheme as required by regulations, as my hon. Friend the Member for Walsall North has mentioned in other contexts.

In line with long-standing legal and constitutional principles, the Crown as an entity cannot be subject to criminal sanctions. However, individual Crown servants can be, and that is provided for in clause 141(3) of the Bill.

[Selaine Saxby (North Devon) (Con)]

The Bill applies parts 2 and 4 to Crown buildings. Do the Government intend to extend the application of part 3 of the Bill to Crown buildings, too?

[Christopher Pincher]

Clearly, there should be a consistent approach to the application of all the provisions of the Bill to the Crown. There is an existing power in section 44 of the Building Act 1984 to enable building regulations to be applied to the Crown, although it has not been brought into force. We have been looking at whether we should switch this power, but there are gaps in how it would operate. In particular, as drafted, the power in section 44 of the 1984 Act would not allow us to make regulations setting out the gateway requirements for work carried out by Crown bodies. We are working through the issues and what might be needed by way of new provisions in the hope that we can resolve these matters at a later stage of proceedings on the Bill. I thank my hon. Friend for her intervention.

[Ruth Cadbury]

I want to be clear that this clause has been included because of the new legal status of the Crown, not because it owns a number of historic buildings that include some residents and that may be within the scope of the Bill. I can think of other owners of historic buildings in which people live that may be within scope, such as the National Trust, English Heritage and museums. If we establish that the Palace of Westminster is a residential building, it appears to be out of scope. I would be grateful if the Minister could help me through that confusion.

[Christopher Pincher]

I am sorry that the hon. Lady is confused. I appreciate that some of these matters are exceptionally dry and very technical, but none the less, they are extremely important. The Crown has a unique legal position in our country, as I have said. Because of long-standing legal and constitutional principles, it is not an entity subject to criminal sanction, but it does operate a very significant property portfolio, and in that portfolio there are in-scope buildings. That is why this clause has been included in the Bill, for the sake of specificity and clarity.

While the general principle of applying part 2 and 4 of the Bill to Crown buildings is right, we need to recognise that there may be some buildings where, for example, security or other operational considerations mean it would not be appropriate to apply the regime. In the draft statutory instrument on scope, we therefore proposed to exclude military premises, including barracks and buildings occupied solely for the purposes of the armed forces. Those will remain subject to the Ministry of Defence’s existing building and fire safety arrangements, which we believe to be strong ones. Clause 141 therefore ensures that the protections provided by the Bill are available to leaseholders, tenants and users of existing Crown buildings. I commend the clause to the Committee.

[Mike Amesbury]

If the Crown commissions a new build above 18 metres or seven storeys, the new regime applies. Can the Minister expand on this scenario? If there is a serious fire that results in deaths, and those acting on behalf of the Crown are found to be culpable, who would be criminally liable? Would the Crown be exempt?

[Christopher Pincher]

I will try to help the hon. Gentleman as best I can. As I have said, the effect of this clause will be that the Crown is regarded as an accountable person for in-scope buildings. The clause will cover the responsibilities of an accountable person, and it will ensure that they apply to the Crown. The Crown is also responsible for adhering to the provisions of the new homes ombudsman. In the event of a specific fire in a specific place, I imagine that it would be for the prosecuting authorities to determine where culpability lies. A range of measures are set out in the Bill and in existing Acts of Parliament to ensure that those who are culpable for criminality can be charged, tried and, if necessary, brought to justice. I hope that helps the hon. Gentleman with his question.

Question put and agreed to.

Clause 141 accordingly ordered to stand part of the Bill.

Clause 142

Power of Secretary of State to make consequential provision

[Christopher Pincher]

I beg to move amendment 19, in clause 142, page 145, line 10, at end insert—

“(3) Regulations under this section may not make provision that may be made under section 143.”

This amendment provides that the Secretary of State may not make consequential provision that may be made by the Welsh Ministers under clause 143.

[The Chair]

With this it will be convenient to discuss clause stand part and clause 143 stand part.

[Christopher Pincher]

This is a technical amendment to ensure that the devolution settlement is protected.

Question put and agreed to.

Clause 142, as amended, ordered to stand part of the Bill.

Clause 143 ordered to stand part of the Bill.

Clause 144

Regulations

[Daisy Cooper (St Albans) (LD)]

I beg to move amendment 39, in clause 144, page 146, line 24, at end insert—

“(8) But the Secretary of State may not—

(a) lay before Parliament a statutory instrument under subsection (6), or

(b) make regulations in a statutory instrument under subsection (7)

(9) That condition is that the Secretary of State has consulted—

(a) fire safety experts,

(b) leaseholders and their representatives,

(c) local authorities, and

(d) safety and construction industry bodies”.

This amendment would require the Secretary of State to consult with stakeholders before making regulations.

--- Later in debate ---

[Mike Amesbury]

I thank the hon. Member for St Albans for tabling the amendment, which we support. This culture change in building safety—making people safe in buildings in the here and now, and in the future—requires consultation with the maximum number of stakeholders to help shape legislation and regulations going forward. This is a very common-sense amendment; it strengthens the Bill.

[Christopher Pincher]

I thank the hon. Lady for introducing the amendment and the hon. Member for Weaver Vale for his comments. The amendment would require the Secretary of State to consult with specific stakeholders before making regulations.

I entirely understand the hon. Lady’s intention and I agree with the principle that there should be appropriate consultation on regulations made under the Bill. I hope that, by the time I have concluded my remarks, she will see that the amendment is at best superfluous and at worst could be rather confusing. I will explain why. I do not mean in any way to detract from what she is trying to achieve.

The Government have introduced provisions to ensure appropriate consultation in clause 7, which we debated some little while ago, before the rather long conference recess, in the proposed new section 120B of the Building Act 1984 in schedule 5, and in the specific procedures to ensure appropriate scrutiny of changes to the scope of the higher-risk building regime. I am grateful to the Committee for agreeing those provisions already.

I remind the Committee that we have already said that we will include consultation provisions when making regulations. Those regulations will always be subject to consultation.

Save for certain limited special procedures, the independent Building Safety Regulator may propose regulations to the Secretary of State after consulting on them and drawing on the benefit of its technical expertise and expert committees. Where the Secretary of State initiates proposals, they must first consult with the independent Building Safety Regulator and other persons they consider appropriate before regulations can be made. It pays to stress that I appreciate the spirit of the amendment, but maintaining the existing provisions in the Bill has three fundamental advantages.

First, on a technical point, the amendment would apply only to regulations made under this Bill and not to regulations made under the Building Act 1984, including under the provisions inserted by part 3. Committee members may remember that I spoke, some might say monotonously, about the 1984 Act in previous sessions. We need a consistent approach to consultation across building safety standards legislation, to make sure that it is simpler and fairer, and I think this approach is preferable.

Secondly, the amendment would create a degree of confusion and duplication, because it would insert an additional consultation provision into the Bill on top of the existing one in clause 7. The practical effect would be some duplication and delay. To give an example, where the Building Safety Regulator has proposed regulations to the Secretary of State after a full and proper consultation under clause 7, the effect of this amendment would be that the Secretary of State was required to conduct a further consultation with the key stakeholders listed in the amendment. We believe that that would create unnecessary delays in tackling important building safety issues.

Thirdly, we believe that the general requirements to consult in the Bill are more likely to support effective consultation than the approach set out in the amendment, which seeks to list a specific set of consultees in primary legislation. That would, as we all know, be much more difficult to unwind and change as the building safety landscape changes.

A wide range of regulations will be made under the Bill. They will range from technical regulations setting out what functions the Building Safety Regulator and the local authorities may share information on, or the form on which certain applications must be made, through to very complex regulations that are necessary to deliver the new national regulator for construction products. We do not think that a one-size-fits-all approach to which parties need to be consulted is appropriate to that range of subject matter. Instead, we believe that the consultation requirements stipulated in clause 7 will support more effective and tailored consultation.

Members of the Committee should be reassured by the fact that the Bill’s approach to making regulations learns from the approach that has successfully been taken in respect of health and safety regulations. The Health and Safety Executive, with the Secretary of State, has taken a proportionate approach to consulting parties before regulations are made, and it has been doing that for more than 40 years.

We understand that expertise will not stop at the door of the Building Safety Regulator, nor, for that matter, the Secretary of State. We agree that consultation on regulations is necessary, but we think that adding this amendment would unintentionally create duplication, confusion and—because of its disapplication from the Building Act 1984—a narrowing of the application of the provision. Given the assurances that I have provided to the Committee, and the fact that the Bill already ensures appropriate consultation mechanisms, I hope that the hon. Lady will withdraw the amendment.

[Daisy Cooper]

I thank the Minister for his assurances that he agrees with the spirit of the amendment, and I am sure that during proceedings on the Bill, others may look at the scope of the application of this measure. I am grateful for his assurances on the parliamentary record that he agrees with the spirit of the amendment, which is designed to continue the democratic scrutiny of secondary legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 144 ordered to stand part of the Bill.

Clause 145 ordered to stand part of the Bill.

Clause 146

Commencement and transitional provision

Amendments made: 20, in clause 146, page 147, line 18, at end insert—

“(3A) As regards Part 3 and section 134—

(a) the following provisions come into force on such day as the Welsh Ministers may by regulations appoint—

(i) section 30 so far as relating to section 120I of the Building Act 1984;

(ii) section 31(3) so far as relating to section 91ZD of that Act;

(iii) section 41 so far as relating to section 58Z2 and 58Z8 of that Act;

(iv) paragraph 56 of Schedule 5 (and section 54 so far as relating to that paragraph);

(v) paragraph 77 of that Schedule so far as relating to section 120C of the Building Act 1984 (and section 54 so far as relating to that section);

(b) the following provisions come into force, in relation to Wales, on such day as the Welsh Ministers may by regulations appoint—

(i) section 31 except subsection (3) of that section;

(ii) section 32 except so far as relating to paragraph 1D(3) of Schedule 1 to the Building Act 1984;

(iii) sections 33 to 40;

(iv) section 41 except so far as relating to section 58Z2, 58Z7 or 58Z8 of the Building Act 1984;

(v) section 42 and Schedule 4;

(vi) sections 43 to 51;

(vii) section 52 except subsection (1) of that section;

(viii) section 54 and Schedule 5 except—

(a) paragraphs 38, 39 and 86 to 88 of that Schedule (and section 54 so far as relating to those paragraphs);

(b) paragraph 77 of that Schedule so far as relating to section 120B of the Building Act 1984 (and section 54 so far as relating to that section);

(ix) section 55 and Schedule 6 except paragraphs 7 and 29 of that Schedule (and section 55 so far as relating to those paragraphs);

(x) section 56;

(xi) section 134 except subsection (8) of that section so far as relating to Article 22B of the Regulatory Reform (Fire Safety) Order 2005;

(c) subject to that, Part 3 and section 134 come into force on such day as the Secretary of State may by regulations appoint.”

This amendment confers certain powers of commencement on the Welsh Ministers.

Amendment 21, in clause 146, page 147, line 22, at end insert—

“(5A) Regulations under subsection (3A)(a) or (b) may make transitional or saving provision.” —(Christopher Pincher.)

This amendment provides that commencement regulations made by the Welsh Ministers may make transitional or saving provision.

Clause 146, as amended, ordered to stand part of the Bill.

Clause 147 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)