Building Safety Bill (Third sitting)

Ian Byrne Excerpts

Tuesday 14th September 2021 Public Bill Committees

[Ms Rimmer]

Q You do not think there would be any problem tackling the cultures that have existed up to now. Cultural problems on building sites have been one of the main problems.

Peter Baker: Absolutely. Dame Judith recognised the need for cultural shift, particularly in the design, build and refurbishment of new builds. There are a number of provisions in the Bill around the gateways and the design and build, and there is a strong emphasis on improving competence right across the built environment. It is important to remember that the Building Safety Regulator will not just regulate high-rise buildings but will have other functions of stimulating and encouraging competence right across the built environment, which is one element of improving the culture of the construction industry and the landlord and housing provider industry.

Graham Russell: I think your point about culture goes right across the sector. What we have seen in evidence given to the public inquiry on Grenfell Tower and in other contexts reveals that a cultural shift is required. The points that colleagues have made about responsibility having to sit with the industry applies as much to the industry of creating the construction products as it does to the building industry—it is one system and one sector. It is clear to me that we must address those cultural issues. Regulation is important as it provides a framework and a set of expectations, but it is behaviours that have to change. In that sense, what we are embarking on through the Bill, and the work that we are doing with our colleagues, is addressing that culture.

[Ian Byrne (Liverpool, West Derby) (Lab)]

Q Good morning, everybody. Are the Government right to establish the new Building Safety Regulator within the Health and Safety Executive? We know that the HSE has faced huge cuts since 2010 in resources and experienced officers. Does the HSE now have the right expertise and resource to carry out this huge task?

Sarah Albon: I will try to answer on those different aspects. The first question was whether HSE is the right home for the new regulator. Whenever the Government consider setting a new regulatory framework, they need to consider whether it would be appropriate to set up an entirely new body or if an existing body has the requisite skills and competence to deliver. When thinking about that, a number of different aspects will be in officials’ and Ministers’ heads: they will need to think about the landscape of the existing bodies, the work that the existing bodies have on and any impact of taking on new responsibilities. There is often an advantage to be had in terms of speed of set-up if an existing body is used, as well as efficiencies in some of basic support services, such as not needing a second HR function or finance team.

In the HSE, we have a lot of experience in dealing with hazards and helping duty holders to really think through and manage the risks that are present in their environment, always with the onus being on the owners of the risk to manage it. That will fit well with the ethos of this new legislation—the real ownership of risk needs to sit with the owners of the buildings and they need to be held to account to ensure that they keep their buildings safe at all stages, from design all the way through to occupancy.

In the HSE, we have a lot of competence in dealing with that and with holding duty holders to account, as well as many years of working closely with the building industry through our role as a workplace regulator and thinking about the risky environment for people who work in the construction trades. We already have a lot of relationships, and the organisation has had success in significantly improving the safety of workers in the construction industry. For all of those reasons, it is entirely understandable that the Government look to HSE to set up this new regulatory function, and it is a decision that has the strong support of my board and senior executive team.

On resourcing, it is a new function and we will look for new resources. All public sector organisations are about to go through a spending round. We are aware that there may be real constraints, but my experience so far in working with the Ministry of Housing, Communities and Local Government has been that it has been able to prioritise this both in terms of the number of officials working on the Bill and directly. That is relevant to HSE in giving us the money that we need to establish the function and start working on it. It has been clear to me through the conversations that we have had with MHCLG officials about funding that this is a significant priority for Ministers and officials.

Do we have all of the competence that we need right now? We definitely need to build up more competence in fire risk assessment. We have started to do that: we have already recruited some people to assist us as gateway 1 went live, and we will continue to build on that level of expertise and recruit and train as the Bill goes through and we move into implementation.

[Ian Byrne]

Q Thanks, Sarah. Peter, do you want to add anything?

Peter Baker: No, I do not have anything to add to that.

[Ian Byrne]

Graham?

Graham Russell: It is not for me to comment on your question, apart from to say that I have worked with the HSE in various guises for 30 years and have the highest regard for its competency and abilities. Beyond that, I think the key question for me is the distinction between regulating products and regulating building safety. That was a decision that Dame Judith Hackitt gave advice on. She suggested separating that in the way that the Bill does, and that then leaves us with a responsibility. We are a product regulator—we regulate consumer products, machinery products and so on—so in that sense it brings our expertise to bear. We have the same challenges in building new competency in new areas, and we are working hard on that.

[Brendan Clarke-Smith (Bassetlaw) (Con)]

Q Good morning, everybody. This question is more for Sarah and Peter. Do you feel that the enforcement tools being provided are sufficient, and how do you intend to use them?

Sarah Albon: I will probably bring Peter in to talk in a bit more detail. I think the broad answer is yes. I suppose that we intend to use the enforcement tools in the same way that we would want to use, and do use, the enforcement tools that we currently have. The best form of regulation is changing the behaviour of the duty holder so that they are doing the right thing in the first place. Clearly, it is important that you can and do take action when there has been a failure, but enforcement is necessarily always cleaning up after somebody has done something wrong. Our absolute focus and emphasis on workplace health and safety—it will be the same in this new regime—is to try to get duty holders to do the right thing in the first place so that residents and, currently, workers, are not put at risk awaiting enforcement requirements. Peter, do you want to say a bit more about the tools that will be available to you?

Peter Baker: We will have a mixture of both civil and criminal tools. We have been working very closely with MHCLG on the preparation of the Bill and the legislative package from our perspective, to make sure that a lot of the tools that we will have under the Bill reflect the sorts of enforcement tools that we have under the Health and Safety at Work etc. Act 1974, which are well tried and tested.

It is also important to remember that one of the step changes or real differences about the Bill in terms of regulation is the gateways. Unlike now, a duty holder will need to demonstrate at the pre-construction phase that they have all the wherewithal to build a safe building, and to demonstrate how they are going to comply with building regulations. The Building Safety Regulator will be able to say yes or no at that point and, potentially, prevent a development from going ahead unless all the necessary steps, safety management systems, and checks and balances are in place. It is not just a case of being able to serve enforcement notices, although they will be available to us; this is very much a permissioning regime similar to high hazard industries where the regulator can say yes or no at critical stages in the build and occupation of a building.

--- Later in debate ---

[Theo Clarke]

Q What would be the one thing you would want to see improved in the Bill?

Kieran Walker: For me, our membership and our industry, it would be the gateway 2 side. The Bill proposes that all information for gateway 2—meaning, in effect, post-planning, post-reconstruction and moving to detailed design—be submitted early doors, at the initial stage. Historically, the industry works with a number of contractors, suppliers and designers, and tenders information on a live basis. In order to get all that information delivered up front as developers enter gateway 2, quite a bit of information will have to be designed and procured at risk during that transition between gateway 1 approval and going to gateway 2. Within that, given the subcontractor market and potential changes in materials due to imports, exports and price fluctuations, you could end up having to revisit change management and the gateway 2 process and to go almost in a circular manner back to the regulator to seek change and improvements.

We would like to see—as we currently see, to a certain extent—a number of approved inspectors in the industry where we have a staged planned submission and staged planned approval process based on your sub-structure, superstructure, finishing trades, mechanical, electrical, finishes and cladding.

[Ian Byrne]

Q I direct my question to Kieran. Will the Bill change the culture of profit over safety that has pervaded the industry for so long and caused the likes of the Grenfell disaster? The second part of my question is about the use of special purpose vehicles and accountability. Do you feel that the Bill tackles the way in which SPVs are used to close down an issue, resulting in the complete lack of accountability of the people involved? Should the Bill be amended to tackle that?

Kieran Walker: I will answer the first question first, if I may. I certainly think that the Bill will change the culture of the industry and make clearer the key stages— the milestones—for people in the process of building the buildings in scope or tall buildings. In the past, quite ambiguous information has been submitted and responded to in the planning stage, which does not necessarily regulate, mandate or cover key items such as vehicle access tracking or incumbent water pressures in the proximity of those buildings.

Within gateway 2, I think we will see a lot more stringent approaches to material information and detail design being submitted to the regulator. That is a positive thing. In terms of duty holders and clear lines of responsibility, I definitely think that that is positive. As an industry, we support that clarity and those clear and mandated lines of responsibility and communication. I think we will see an improvement in the industry as a whole, and the key to that is the fact that we have this clear framework.

It is difficult to answer your question about special purpose vehicles, to be honest. I am not trying to avoid an answer, but we do not necessarily have much information on special purpose vehicles. How they are regulated and administered is quite varied. We have worked with a number of special purpose vehicles in the past, but going back to my first point, I think that the Bill will make lines of responsibility and regulation a lot clearer for them, to avoid the potential and opportunity for them to disappear as soon as the keys are handed over to the final property in the block.

[Ian Byrne]

Q Thanks, Kieran. Richard, do you want to add anything?

Richard Silva: On the second point about the special purpose vehicles, whoever incorporates an SPV to develop a higher-risk project that the Bill is aimed at, ultimately the regulator will say yes or no. It is the regulator and the regulatory regimes for gateways 1, 2 and probably 3 —fit for occupation—that will ultimately say, “Yes, this process has worked. That SPV is fit for purpose and will deliver a solid product.”

The problem is what happens in the future if, God forbid, something slips through the net of the regulatory regime or fails. When these things do fail, you know about it only over time. The Bill extends the provisions of the Defective Premises Act 1972 so that you have 15 years to go after developers, as opposed to six. That is all well and good, but in the real world it will have limited or minimal impact—it will be the same—for anybody who needs to take advantage of that new provision.

The Bill’s proposed regulatory regime is robust—details will follow, obviously—but ultimately, the regulator can have sanctions on it. If a large plc housebuilder that has, historically, built mixed-used, large-scale developments—high-risk buildings, in the context of the Bill—through a series of SPVs, the regulator will have to have an opinion on that, I am afraid.

[Selaine Saxby (North Devon) (Con)]

Q Mr Walker, what key lessons have your members taken away from this process about how Government works with the sector, and what can we collectively do better in future?

Kieran Walker: I think the key lessons are really about getting information and clear lines of communication as quickly as possible. The introduction of the Bill is, as I have mentioned, welcomed by our members and the industry as a whole, because it gives clear a framework and responsibility for duty holders, as well as a process that I do not think we have had in the past. I do not think that is necessarily the fault of industry. In the past, it has almost been an assumption that A will follow B will follow C—that is part of the lessons learned. Mistakes have been made in the past, not just in the house building industry but across the piece, to be honest. The main lesson learned is that we should perhaps have had that framework sooner, but hindsight is a wonderful thing—we are where we are in that respect. Would you mind repeating the second part of the question, please?

--- Later in debate ---

[Rachel Hopkins (Luton South) (Lab)]

Q This question is directed more to Andrew, and it is about residents having the ability to challenge the building safety charge. Is the Bill adequate if they want to make such a challenge?

Andrew Bulmer: The building safety charge is problematic. The fact that payment can be demanded within only 28 days will make it difficult for a leaseholder to investigate and mount a challenge. You should not challenge until you have sought further understanding. Then, if you are not happy with the information that you have, you need to mount a challenge, but 28 days is not long, so there is a problem with that.

The building safety charge itself is a flawed concept and we would like to see it gone. Running a separate service charge regime means that there will be additional tasks, which means additional costs, and it will be the leaseholders that end up paying for that. Introducing a new regime also introduces a lawyers’ charter. The existing service charge regime is decades old. For many decades we have found ourselves testing the meaning of words in different circumstances, and much of service charge law is case law. If we introduce a new regime, we restart the clock.

Also, we have an existing service charge regime, which I know is not perfect—far from it—but health and safety matters will be included in that, so we will be in a situation where the resident will receive two different bills: the building safety charge for health and safety, fire safety and structural, and then another bill for a whole service charge, which will include other health and safety works, as well as any remediation that the building safety charge regime has brought up. The consumer will be nothing but confused while paying for a more expansive and complex regime. What I would prefer to see in the Bill is the existing service charge regime finessed in a way that brings more standardisation and clarity to the consumer about what the Bill includes.

[Ian Byrne]

Q I will direct my question to Andrew first and then Councillor Jayne McCoy. What do you think of the responsibilities placed on the accountable persons? Is it reasonable to expect all accountable persons to be sufficiently knowledgeable to assume the responsibilities in the Bill?

Andrew Bulmer: If you have a professional third-party landlord, it would be reasonable; that is their job. If you are a lay director of an RMC and you are the principal accountable person, you may be a highly intelligent and thoughtful individual—perhaps a surgeon or the lead violinist at the London Philharmonic Orchestra—but you are not a property expert. It takes two to three years to qualify as an IRPM member just to level 4, and it is a complex thing. I do not see how the majority of lay directors will truly have the knowledge and competence to be able to discharge their responsibilities. They will be heavily dependent on advisers. If we are going to be democratic and empower our people to be masters of their own destiny, which I support, we need to make sure that they are protected. I would like to see a quality assurance regime for the building safety manager and for property managing agents, who will be the go-to people for recommendations and for all matters property. I would like to see them regulated.

[Ian Byrne]

Q Jayne, would you like to add anything to that?

Councillor McCoy: It is essential that there is an accountable person. Trying to find somebody to hold to account for some of the failings that have gone on has been problematic. There needs to be clarification about whether that will be an individual person. It can be an organisation or a representative of the organisation, particularly where councils are landlords, but we need to know who that person will be. Will it be the chief executive or the housing portfolio holder? We need clarification about who that should be. Obviously, they will need to be supported with expertise and skills, and I would expect them to rely on external sources for that expertise; it is important. There are also issues with special purpose vehicles, which have quite complex ownership. To ensure that the work is done and someone is held responsible for getting it done and for ensuring the building is safe, there needs to be a clear line of accountability.

[Kate Osborne]

Q Staying on the subject of accountable persons, they will need access to residents’ premises to fully discharge their responsibilities. How big a problem do you think that could be, and do you think the provisions on that point are appropriate?

Councillor McCoy: That is a key concern of London Councils. We welcome the additional powers that have been put in here, but we do not think they go far enough, especially given that, when you are trying to deal with safety issues, you want to deal with them quickly. At the moment, if people are not co-operative, you have to take people to court and get the access that way. It places some responsibilities on residents, but for an accountable person to be fully accountable for the safety of the building, it has to cover all areas.

We have a problem currently. A leaseholder of a flat in a large building could have all sorts of problems within the flat that, in theory, compromise the safety of the whole building. No one can be accountable for that if they cannot even access the property, so we think that needs to be looked at and worked on with the industry in order to figure out how to address that problem. Without those powers, a person cannot really be held accountable.

Andrew Bulmer: We take a similar view. Ultimately, you are balancing safety against somebody’s right to deny access to their home, and Ministers must decide whether you have to have a court order to go in. That is how it is written now. Getting a court order can be slow, expensive and obstructive, but perhaps that is the right approach if we are to respect people’s rights to the privacy of their own home. From a property manager’s point of view, being purely selfish, it would be much easier if the Bill were written so that we could just go in, but we must recognise that that is potentially an infringement of liberty, and that is for Ministers to decide.