Levelling-up and Regeneration Bill

Lord Blencathra Excerpts

Report stage
Wednesday 6th September 2023 Lords Chamber

[Lord Northbrook (Con)]

My Lords, I am not quite sure why the Control of Pollution Act is put in the same group as swifts. Anyway, my Amendment 282 is in this group.

My local authority, the Royal Borough of Kensington and Chelsea, unlike some local planning authorities, refuses to impose by planning condition any requirement on developers to mitigate noise, dust and vibration during construction work in accordance with an improved construction method statement that the developer is routinely obliged to submit as part of its planning application for a major development. Instead, with respect to such developments, it promises to encourage developers to submit applications for prior consent under Section 61 of the Control of Pollution Act 1974, failing which it promises that the council will issue a Section 60 notice.

These consents and notices create legal obligations on the developers but the Royal Borough of Kensington and Chelsea can take action only if a breach has been notified. However, the Royal Borough of Kensington and Chelsea does not publish the consents and notices anywhere on its website or even the fact that a notice has been issued or a consent agreed to. As a result, residents are not aware whether or when a notice has been issued, what measures a developer has promised to take, what the obligations are under the notice or whether an obligation has been breached. They therefore cannot notify the Royal Borough of Kensington and Chelsea that a breach has occurred. As a result, the system is rendered useless.

My proposed solution is simply that local planning authorities should be obliged to publish all such consents and notices on their planning websites promptly upon issue and not remove them. In the other place, the Minister’s response was that Section 69 of the Town and Country Planning Act 1990 requires local planning authorities to keep a register of applications. The Town and Country Planning (Development Management Procedure) (England) Order 2015 requires that these registers contain parts 3 and 4 containing details of local development orders and neighbourhood development orders respectively. Part 3, for instance, must include copies of any draft development orders that have been prepared but not adopted by the local planning authority and any adopted local development orders.

The Minister’s reply in the other place completely missed the point. Notices issued under Section 60 and consents given under Section 61 of the Control of Pollution Act are not planning applications or local or neighbourhood development orders. The reply in this place from the noble Baroness, Lady Bloomfield, in Committee showed that she did not seem to understand what the amendment was seeking to achieve or why. She said:

“Legislating for information to be published in a specific way would remove their ability to make decisions at local level, for little additional benefit”.


This is incorrect. It would not affect in any way local authorities’ ability to make decisions. She concluded, without explanation, that

“the Government believe the proposed amendment is unnecessary and cannot support it”.

On being pressed by my noble friend Lord Bellingham, she replied:

“Since this is a Defra lead, I will commit to write to my noble friend and share the answer with the rest of the Committee”.—[Official Report, 18/4/23; col. 577.]


She did not do so.

When an LPA imposes a planning condition to require compliance with an approved construction method statement, it is obliged by law to publish on its planning website the text of the condition and the fact that the condition has been imposed. No one argues that this removes or affects its ability to make a decision, nor have I ever seen it argued that there are any circumstances in which it would be justifiable to keep the imposition of a condition or its text secret. Measures whereby the developer promises to mitigate noise and disturbance during construction do not touch on privacy or national security. By analogy, I cannot think of any circumstances in which it would be justifiable for a local planning authority to keep the issue of a Section 60/61 notice or consent, or its contents, secret. The Government have not explained why keeping it secret might be justifiable, and that is why I tabled the amendment on Report.

[Lord Blencathra (Con)]

My Lords, I declare my interests set out in the register. It was a delight to listen to my noble friends Lord Goldsmith and Lord Randall describe the importance of swift bricks to the preservation of this species and to stopping their decline. I am delighted to be able to support it.

Installing these bricks is an absolute no-brainer. They cost between £25 and £35. Last year, the big four housebuilders—just four of them, Barratt, Berkeley, Persimmon and Bellway—made profits of £2.749 billion. I am sure they can afford a £25 brick for the 300,000 homes they might or might not manage to build next year. Installing the bricks is a no-brainer.

I learned today—I hope, wrongly—that the Government may be opposed to this measure. That, too, would be a no-brainer if they are. I wonder where the opposition has come from. I hope they have not been lobbied by the Home Builders Federation—the organisation which lied, lied and lied again about the Government blocking the building of 145,000 homes because of nutrient neutrality. That was totally untrue. Of course, housebuilders are sitting on more than 1 million planning applications and are land-banking until they can release them gradually and make maximum profits. If that is legitimate, so be it, but let us not let them attack the Government for holding up housebuilding when it is not the Government doing it.

I understand that in the Commons the Government said they could not mandate this nationally and it must be left to local voluntary discretion. Housebuilding left to local voluntary discretion? You cannot build a house anywhere in the country without the Government almost dictating the colour of the curtains. Look at the national regulations on every aspect of housebuilding: electrics; plumbing; the type of cement; the way the damp-proof course is laid; the tiles and insulation. Nearly every mortal thing of importance in the house—the width of the doorways, the bannisters, the boilers you may install after 2030—is dictated by central government, and rightly so. I am not complaining about that, but I am complaining about the apparent hypocrisy if the Government I support are now saying “Oh, we can’t order every house to have a little brick installed because that is taking national government interference too far”. If that is the case, I think that is nonsense.

I know that some Government Ministers have already installed these bricks. They have done it voluntarily, without guidance. If it is good enough for some Ministers, quite rightly, to save swifts out of their own volition, then it should be quite right that the Government support a measure to impose this nationally.

If it is the case that the Government are opposed to this, I would really like to know where that opposition came from in government. If it is true then some idiot—an adviser, spad or civil servant, but hopefully not a Minister—has decided to oppose this. I exempt my noble friend the Minister, as this is an environmental matter and nothing to do with her brief, but why in the name of God should a Conservative Government oppose this?

In the first three years of this Government, under Michael Gove and George Eustice in environment, we made the biggest strides forward in environmental and nature protection that this country has ever seen, with the 25-year plan and the Environment Act. Now we could lose that good reputation because of a trivial thing if we oppose installing a 25-quid brick in a house wall to save swifts.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I speak in support of Amendment 221A on swift bricks, as your Lordships might expect. My noble friend Lady Jones of Moulsecoomb has, in the terms of the noble Lord, Lord Randall, flown back from a nearby cavity just to be here for this debate, but she could not be here at the start, so your Lordships get me instead.

This is something that I have been talking about. I was on TalkTV, talking to Julia Hartley-Brewer about restoring biodiversity. I happened to mention swift bricks in that discussion and the presenter said in response, “Isn’t that just a small thing? Don’t we have to do much more?”. Of course that is true, but, if you are a swift then a swift brick is not a small thing. The fact that you need somewhere to make your home and raise your young is a matter of life and death. As the noble Lord, Lord Goldsmith, said, there has been a 60% decline in the population in the last 25 years. These beautiful and utterly amazing creations of nature depend on having a place to rest and raise their young, and we are closing those spaces off.

The noble Lord, Lord Goldsmith, also made an important point about human well-being—how much we all benefit from having swifts around and what a wonderful addition they are to our environment. Think about young people, such as the toddler who says, “What’s that?”, and has it explained so that they learn more. That is crucial.

The state of our biodiversity is absolutely parlous. We are one of the worst corners of this planet for nature. As we heard passionately from the Benches opposite, surely the Government cannot oppose this—they cannot oppose what was said by MPs in the other place and is being said by so many petitioners. Please let us have some common sense here.

Levelling-up and Regeneration Bill

Lord Blencathra Excerpts

Committee stage
Monday 22nd May 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, last week, my esteemed colleague, the noble Lord, Lord Holmes, asked whether I would support his amendments on pavement accessibility. I trusted him completely so I said, “Yes, of course, I would love to support them”. Then I read them and, actually, they are quite tough and strict in places, but the more I read them, the more I liked them. I particularly liked Amendment 450, which is about taking bits of the road—I love that idea—and reducing the space for traffic, as well as Amendment 459 in the name of the noble Lord, Lord Young of Cookham, and others, because that is so tough on smoking and I loathe smoking. I support many of these amendments. Obviously, I support all the amendments from the noble Lord, Lord Holmes. There is, perhaps, some space to bring in the fact that cars park on the pavement. I hate pavement parking and I hate loads of rubbish bins being heaped up on the side of pavements because they inhibit free access.

My local shopping street has gone absolutely bananas with this, and it has changed the whole feeling of the street—it is so much more friendly. At the moment, only the Co-op, Iceland and Boots, I think, do not have tables and chairs outside them, with people eating, drinking and having fun. I am all in favour of this section and look forward to Report, when I would be happy to vote on many of them and perhaps even sign up to them as well.

[Lord Blencathra (Con)]

My Lords, it is always a delight to follow the noble Baroness, Lady Jones of Moulsecoomb. She did say that some of my noble friend’s amendments were quite tough but that she liked them. I think the Committee would agree that the noble Baroness is quite tough and we rather like her as well. I congratulate my noble friend Lord Holmes of Richmond on the initiative he has undertaken in tabling these important amendments. He is to be congratulated by all disabled people, fighting our corner—or narrow strip of pavement, as the case may be.

Levelling-up and Regeneration Bill

Lord Blencathra Excerpts

Committee stage
Thursday 18th May 2023 Lords Chamber

I have learned the truth of that, and I hope the noble Lord will recognise that this really could create a huge amount of trouble for everyone if they press ahead with a cut-off date.

[Lord Blencathra (Con)]

My Lords, I declare an interest as per the register. I apologise to the Committee that I have not previously participated in these proceedings, but I have been away a lot with the Council of Europe, monitoring elections in Montenegro and Bulgaria, and other places. As an aside, I must say, with Lib Dem Peers here, that Bulgaria adopted a proportional representation system. It has 14 political parties, organised into seven coalitions, and this was the fifth general election in two years we monitored, with exactly the same result as the other four. It has got a completely ungovernable country and, once again, a Government who will shortly collapse.

I say to the noble Baroness, Lady Bennett of Manor Castle, that we have 250,000 miles of footpath, and we will shortly have completed 2,000 miles of the King Charles III England Coast Path. That seems to me to be an awful lot of mileage for people to walk on, but of course there are some right to roam fanatics who want to make a political point about having the right to roam on anyone’s land. I think it is more important that we develop footpaths and make sure they are open for access by ordinary people in every part of the United Kingdom.

I really must congratulate my noble friend Lord Randall on an outstanding speech today, moving his amendment; it was highly persuasive. The current amendment is an important opportunity to further nature recovery aspirations across the 24% of England designated as national park or area of outstanding natural beauty. England’s areas of outstanding natural beauty and the national parks are even more important now as we face the climate, nature and well-being challenges of the 21st century. They are more important than when the iconic National Parks and Access to the Countryside Act was passed in 1949, as part of the World War II settlement.

I have lived in the Lake District National Park for about 20 years—just outside it now—and I can honestly say that the biodiversity of the national park is every bit as bad as some of the silage fields outside it, which are crop-bare three times a year and the hedgerows cut down to almost nothing. There is no better biodiversity in the national park. That is something which the amendment seeks to change, and I know the Government want to change it.

There is widespread recognition, including in the 2019 Landscapes Review commissioned by the Government, that aspects of the legislation need updating if our protected landscapes are to be able to rise to these 21st-century challenges and deliver the crucial benefits people and nature need. My noble friend’s amendment is a crucial opportunity to make these important changes, fulfilling the welcome intentions of the Government announced in last January’s initial response to the review. However, if the Government are minded to add a reference to nature recovery and biodiversity, it should be added, in my opinion, with equal priority to the current statutory purposes, not given primacy over the existing purposes. That is where I depart slightly from my noble friend: it should not be given priority over the other purposes but have equal weight.

I suggest also that the duty of regard placed on public bodies is strengthened and extended to encompass delivery of agreed statutory national park and AONB management plans. It is possible that a similar effect to the amendment, regarding statutory purposes, could be achieved if the Government and Defra, and my noble friend the Minister, asked Natural England, the statutory adviser on landscapes in England, to provide further advice or guidance to clarify interpretation of the current wordings, although I accept this would not give the same strength or security, or the signalling, desired by some concerned with the issue. However, I suggest that it might be an acceptable compromise if my noble friend’s amendment is not acceptable in any way to the Government. Without a slightly tweaked amendment or the compromise I have suggested, I am afraid we may miss the opportunity to build in appropriate and more effective tools to protect these landscapes at this critical time.

In my final comment, I say to my noble friend Lord Hodgson that I live near the A66 and, if I had known he was coming, I would have invited him in for a glass or two of Highland Park. I would hope that, after a few glasses, I could have persuaded him to give up this mad idea of walking the whole length and breadth of the country.

[Lord Lucas (Con)]

My Lords, I congratulate the Government on their 30 by 30 target. It is an enormous and ambitious thing to take on. In that context, I urge them to support my noble friend Lord Randall’s amendment. We have large areas of national parks and areas of outstanding natural beauty, a lot of which does not sensibly qualify for 30 by 30 at the moment. We have structures within them which could help drive them in that direction, if we pass the sort of amendment that my noble friend has suggested. I like proposed new subsection (5) in particular, which would make other agencies join in the purpose of the national park.

My Amendment 504GJC—after 30 years, I still do not understand how the numbering works, but that is where it is—concerns other effective area-based conservation measures. We are not, I think, going to get to 30 by 30 on the basis of national landscapes. We need a structure which allows not for nature protection to be provided somewhere else but for nature protection to be something that all of us can influence and be involved in.

Fortunately, the Convention on Biological Diversity has provided the concept of an OECM, which I think we can adapt in very positive ways. An OECM could be a corner of a park in a city, or a corner of a school playground that is developed in conjunction with the National Education Nature Park, which I see from the Natural History Museum is starting to be rolled out. It could be this great network of connection that we want farmers to develop across the landscape, so wildlife can move across it. It could even be golf courses, for goodness’ sake—I believe there is one golf course which allows daisies on the fairways. There is real scope for getting wildlife back into golfers’ lives—I have not yet met one who wants it but we will get there in the end.

It was one of the underpinnings of the Dasgupta report that everybody should have an appreciation of and involvement in nature. The structure of OECMs allows us to create that, involving everybody in getting to 30 by 30. The structure I have proposed in Amendment 504GJC has a low threshold, because you want people to be able to join in to begin with, without going through huge layers of bureaucracy, but you may well need a fiercer award within that to qualify for 30 by 30. It identifies an individual who has charge of the area and a purpose for it. This should be something personal which is down to a group of people or an individual landowner, which they are doing themselves and for which they are responsible, for which we can thank them for taking responsibility, but to which we can also hold them to account. I therefore very much hope that the Government will democratise 30 by 30, spreading it out and making it a national rather than a purely institutional ambition, and that they will give us the tools with which we can do that.

Levelling-up and Regeneration Bill

Lord Blencathra Excerpts

Committee stage
Monday 27th March 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate the noble Baroness, Lady Parminter, and the other cosignatories on putting forward the two amendments in this group. My only concern is what time commitment and resources would be required of the local authorities, given the fact that they are very heavily challenged at this time. I pay tribute to the lead local authorities, especially on the work they are doing on flood prevention, which is already a major resource commitment timewise. I know it has made a big difference already in areas such as north Yorkshire, which I am most familiar with, where we do have a number of functional flood plains. Across the country, the advice of the Environment Agency is not always pursued.

As regards the habitats directive, we need a firm steer from the Government on how we are going to steer this path, where we have the retained EU law Bill where, presumably, we are going to park the habitats directive on one side. But there is a possibility here, through this group of amendments, for nature recovery strategies to try to achieve a balance.

I end by saying that my noble friend is only too aware of my commitment to farming and ensuring that, within nature recovery, farming is recognised as a major contributor to these strategies.

[Lord Blencathra (Con)]

My Lords, I declare my interest as in the register. I came in to listen to the noble Baroness, Lady Parminter, because I thought I liked the wording of her amendment. Having listened to her and the noble Baroness, Lady Willis, I am absolutely convinced of the justice of their case. As my noble friend will know, one of the most crucial parts of the Environment Act is local nature recovery strategies—it is what it is all about in many ways. At the moment, the Bill says merely that local authorities must “have regard to” it. We all know—the lawyers present will explain no doubt ad nauseum and for a reasonable fee—that “having regard to” is fairly meaningless in many ways. A local authority could “have regard to” a local nature recovery strategy and then find a dozen reasons to reject it, because they had regard to it but for this reason or that reason did not wish to pursue it.

I particularly like the wording here, which does not seem to tie local authorities’ hands. It says that they

“must ensure that their development plan (taken as a whole) incorporates such policies and proposals so as to deliver the objectives of the local nature recovery strategy”.

It does not tell them what to do or how to do it; it just says that they have a free hand to invent their own policies that deliver the objectives of local nature recovery strategies. I ask my noble friend the Minister: what is the point of us developing local nature recovery strategies at a national level if they are not going to be implemented locally in local development plans?

I do not think that my noble friend is right that there will be great additional cost to local authorities in doing this—I can see nothing here to suggest that—but, if local nature recovery strategies are to work as every single person in this Chamber wants them to, the wording of the amendment in the name of the noble Baroness, Lady Parminter, is probably the only way to deliver that. I would be grateful if my noble friend the Minister could explain to me what the problem is with the noble Baroness’s wording.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I too support these amendments. The noble Baronesses, Lady Parminter and Lady Willis, have made an absolutely convincing and compelling case for strengthening the responsibility of local planning authorities to consider local nature recovery strategies.

This is exactly the arrangement that the noble Lord, Lord Goldsmith of Richmond Park, set out when he was trying to persuade us not to press our amendments on this issue to a vote during the passage of the Environment Bill. At that time, he made it clear that the Government viewed local nature recovery strategies as key to identifying where action for nature and the environment would have the most impact. He went on to make it clear that Defra was working with the then Ministry of Housing, Communities and Local Government to develop planning reforms that would contain a defining role for local nature recovery strategies and set them at the heart of decision-making. Obviously, there have been some changes in government and some movement on this since then, but that does not alter the nature of the pledges that were given at that time.

Since then, we have made good progress on establishing a network of local nature recovery strategies around the country. They are getting on with the job of surveying their local biodiversity priorities, providing crucial local data and mapping their local habitats. Their local knowledge and insight are proving crucial in identifying what action and resources can best be targeted. Through their partnership in stakeholder roles, they are also bringing together a wide group of interests to support a local strategic biodiversity recovery plan. However, what is the point of them doing all this work if local planning authorities can simply override their work and priorities? If we are not careful, those involved in drawing up these strategies will quickly become disillusioned and this will be seen as yet another talking shop.

This matters because, as we know, we have crucial statutory targets; for example, to halt the decline of species abundance by 2030, to deliver on our COP commitment to protect 30% of land and nature by 2030, and to deliver the many nature recovery targets set out in the environmental improvement plan. These are simply not going to happen unless local planning authorities put nature recovery at the heart of their decision-making. As the noble Baroness, Lady Parminter, pointed out, there is widespread support for greater weighting to be placed on these local biodiversity recovery plans. There is also a real concern that, when it comes to the crunch, those nature recovery strategies will once again slide down the list of priorities and be seen as a second-tier concern.

I am grateful for the Minister’s letter to me and my noble friend Lady Young of Old Scone on this issue. Again, she flagged up that the Environmental Improvement Plan 2023 commits to publishing guidance on how local nature recovery strategies can be reflected in local plans. As we have heard, we have received statutory guidance since then; however, it does not answer the central challenge that, unless we have wording along the lines of Amendment 184ZA or something very similar, the current imbalance will continue and local nature recovery strategies will not play their deserved and necessary part in decision-making.

This is not a total determination but about getting the balance right and ensuring that local nature recovery strategies are part of the decision-making. I am very pleased to hear so much support for these amendments from around the Chamber today. I hope that the Minister is hearing that strong case and can reassure us that the Government will take this away and come back with a stronger commitment, along the lines of the amendment in the name of the noble Baroness, Lady Parminter.

Building Safety Bill

Lord Blencathra Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for the constructive amendments that the Government have tabled at this stage and for listening to the noble Lords, Lord Young and Lord Blencathra, who have been very helpful during the passage of the Bill. However, there are still concerns outstanding, as has just been said, so I will speak now to my Motion H1 as an amendment to Motion H.

We on these Benches have consistently argued that all leaseholders should be protected from the cost of remediating historical cladding and non-cladding defects and the associated secondary costs, irrespective of circumstance. Although we fully acknowledge that the waterfall system set out in Schedule 8 provides leaseholders with a far greater deal of protection than was proposed when the Bill first came to us, when it was originally drafted, it does not protect all of them fully. Just as importantly, the Bill does not provide redress for the countless blameless leaseholders across the country who have already been hit with huge bills and have paid out significant sums as a result.

That is why I have tabled Motion H1 to reduce leaseholder contributions to a maximum of £250. I am aware that the Government have said that leaseholder contributions are fair in principle because they will apply in only a very limited number of cases. The Minister has said that leaseholders will pay up to the cap or a proportion of the cap in only a minority of circumstances. However, if it is only a very small number of cases that we are talking about, why are the Government so reluctant to provide proper and full support? For many people, £15,000, or £10,000 as the cap currently stands, is simply an impossible sum to find.

Leaseholders have refused to give up. They recognise more than anyone that the situation they face is simply not fair, and your Lordships’ House recognised that by supporting the amendment that I tabled on Report. I ask for noble Lords’ continued support in agreeing Motion H1 and, in so doing, to acknowledge the determination and persistence of the leaseholders and cladding groups that have been pressing for redress in this matter.

In sticking rigidly to the position that a minority of leaseholders will have to pay sums that, although capped, are still significant, in order to resolve a scandal that they played no part in causing, we believe that the Government are not acting equitably and will not ensure that the most vulnerable leaseholders will be protected. Our Motion H1 would provide such protection. If the Minister is unable to accept it, we will seek to divide the House, with a view to ensuring that all leaseholders are fully protected.

[Lord Blencathra (Con)]

My Lords, I apologise to the House for missing the first two minutes of my noble friend’s magnum opus; the last business went slightly faster than I had anticipated. I declare a personal interest as a leaseholder in a block of flats that may contain some non-cladding works that may require remedial treatment.

I have to praise my noble friend the Minister yet again for the tremendous changes that have been made to the Bill since it came from the other place. I also congratulate my right honourable friend Michael Gove on forcing all the big building companies to sign up, including bringing the Galliard Homes horse kicking and neighing to the water, although he will need to ensure that it and the other companies actually drink the water—they will throw millions at lawyers to weasel out of what they have signed up to.

I am told that the owner of Galliard Homes, Stephen Conway, has accused Michael Gove of acting like Al Capone and the mafia. My respect for young Gove increases by the minute. Conway had an estimated worth of £270 million in 2015; imagine what he is worth now. It seems to me that the owners of the big building companies have made their billions by being a bit more ruthless mafiosi than Michael Gove ever was. However, that is for another day.

Despite the excellent progress on the Bill, there are still some gaps. I regret that we do not have anything specific in the Bill protecting enfranchised leaseholders. All Governments have encouraged leaseholders to buy out the freehold. Those who have done so are still exactly the same as other leaseholders who have not, and they should get the same protection. I welcome the consultation but I hope it is speedy, and I hope that, if legislation is necessary or this can be done by regulation, that is brought in as quickly as possible.

I acknowledge that the Government have increased the number of properties qualified under buy to let, but in my opinion they have not gone far enough. As a small buy-to-let owner said to me, why does the Bill support with cost-capping a billionaire oligarch non-dom with two buy-to-let leasehold flats in Mayfair, valued at millions, yet leave completely exposed a pensioner buy-to-let leaseholder with a small portfolio of just four flats? These people are not big landlords. Although nothing can be done in this Bill now, I hope something can be done in future.

Nor am I happy that we are planning to reject buildings under 11 metres. They may not be as big a risk but they are unsellable. When an estate agent or lawyer tells prospective buyers that the flat they have looked at has some dangerous cladding—but not to worry because you will probably get out in time if it burns down—I do not think that they will find many buyers. These flats are simply unsellable.

Finally, I disagree with the removal of “zero”, and like the Opposition’s amendment of £250. I do not accept that the government caps set a proportionate balance, as was said in the other place by my right honourable friend Stuart Andrew MP, who was also an excellent Deputy Chief Whip in his time. As Michael Gove said, no leaseholders should pay a penny for any remediation works. We heard impeccable legal advice in this House from the noble Lord, Lord Marks, and a former Supreme Court Justice, the noble and learned Lord, Lord Hope of Craighead, saying that making leaseholders pay in order to avoid an ECHR challenge was misguided and wrong. As the noble and learned Lord, Lord Hope, said, the challenge will happen in any case, no matter what level the Government set the cap at, and those building companies will try it on.

If Motion H1 succeeds today, I do not want the Government in the other place to take on the role of the wonderful Ukrainian Snake Island defender, Roman Grybov, who offered sexual advice to the Russian warship. We are not the “Moscow”, and I hope that the Government will bring forward a compromise amendment, perhaps higher than £250 but much lower than the government caps.

With those quibbles, I wish to congratulate my noble friend yet again on the massive progress he has made with this measure. “One more heave”, as Jeremy Thorpe said in 1974—but hopefully with a bit more success.

[Baroness Neville-Rolfe (Con)]

My Lords, I have been living with this matter since we first debated the Fire Safety Bill in 2020. I declare an interest as chair of the Built Environment Committee. I believe that the building industry has an important part to play and has tried to rise to the table in the current circumstances. The Government, and my noble friend the Minister in particular, are to be congratulated on all they have done to find a way through on cladding, but the measures legislated for are inevitably costly and should not, in my view, be legislated for in respect of buildings under 11 metres, as proposed in Amendment D1.

I have some news for my noble friends. Since Michael Gove’s Statement on 10 January about proportionality and common sense, the logjam in buildings under 11 metres has eased. I have experience of this, relating to a family leaseholder in a nearby village, where there is now a less absolutist and more flexible approach to fire safety in a block of homes; this has become apparent in recent weeks since the changes were made. I believe, therefore, that there is a limit as to what we should provide on a contingency basis. I do not believe that taking the proposed powers, as now suggested, is justified. I think that the situation is improving in relation to buildings under 11 metres, and we should welcome that and see how that approach can be progressed.

I end by thanking my noble friend the Minister for the progress that has been made. Obviously, there are horrific problems, right across the board, in relation to taller buildings and cladding. Howeever, I urge people to be a little careful in bringing into the legislative framework, without looking at all the details, a very much larger number of homes.

Building Safety Bill

Lord Blencathra Excerpts

3rd reading
Monday 4th April 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank the Minister for his comments. I am glad to be associated with proportionality, especially in relation to safety and the unintended consequences of a zero-risk approach to any policy, actually. I thank everyone who has been involved—the Minister, the government team and all the people across the House far more experienced than I am—for making the discussions around this have a certain sense of a collegiate endeavour, trying to solve a problem that we all knew was there. I thank your Lordships for your encouragement and, often, your patience with my own inability to quite understand the process.

I particularly thank leaseholders. I got involved with this issue because I was lobbied, not by big business but by ordinary, grass-roots leaseholders. As a leaseholder myself, I found that there was a whole community out there. While we have done a huge amount to benefit their situation, going from where they were to where they are, we are not quite there yet. As much as I would like it to be the case that they are grateful for our endeavours, many of them still feel frustrated, fearful and nervous—and you cannot blame them, because they are just not sure what is going to happen; there are too many question marks. I do not think we should be disparaging of them or think that they are lacking in gratitude for what has happened.

I encourage the Government not only to give time in the other place to consider the amendments but not to wash their hands of the Bill, as it were, once it eventually fully goes through. I think we have all noted that there will be unintended consequences: hidden costs and service charges. While there might be a formal review, this will be an ongoing issue for many years to come. Therefore, I hope the Government will be open to those lobbying for leaseholders, even when we are not discussing a Bill in Parliament. I would like the department to still keep listening to them, as I certainly will. I will raise issues whenever I get the chance. Generally, this is far better than when we started, but I always want more.

[Lord Blencathra (Con)]

My Lords, simply look at the Bill that came from the other place, then take a look at what we are sending back. It has changed beyond all recognition. I pay tribute to my noble friend the Minister and his boss, my right honourable friend Michael Gove, for that extraordinary transformation. I also thank my noble friend Lord Young of Cookham and noble Lords and noble Baronesses on all sides of the House, and the right reverend Prelate, for the many amendments they have made, many of which have been accepted by the Government. We are sending back some important amendments that the Government might not quite like as much as we would like them to. However, I appeal to the other place to accept them and not to remove them, especially the zero amendment proposed by the noble Baroness, Lady Hayman of Ullock.

The Government, apparently, have had legal advice on the dangers of breaking the ECHR if we changed the cap figures, but we heard, I submit, even better legal advice that that is not so. In any case, as the noble Lord, Lord Marks of Henley-on-Thames, said, some developers will challenge the figure in court no matter what level the Government set.

We also need to do more on enfranchised leaseholders. They were encouraged to purchase their freeholds, and they must not be treated like rapacious landlords. Nevertheless, this Bill now gives leaseholders infinitely better protection. With a few further tweaks it could give them full protection. When I see the contribution my noble friends have made to the Bill, I am reminded of the words of Shakespeare’s Julius Caesar, or almost his words:

“Antonius! … Yond”


noble Lord, Lord Young of Cookham,

“has a lean and hungry look … Let me have men about me that are fat”.

I commend this Bill and hope the other place will improve it further.

[Lord Naseby (Con)]

My Lords, as one who has been involved in housing policy for over 50 years, I pay tribute to my noble friend for his time, care and effort, and his listening qualities, which have not always been a feature of those on either Front Bench. I offer sincere thanks to my noble friend.

Building Safety Bill

Lord Blencathra Excerpts

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

Amendment 232 is a “Let’s find out what’s going on here” type of amendment—a probing amendment is what we like to call it. Again, because we have so many new amendments from the Government, it was not entirely clear to me and my noble friend Lord Stunell that the increase in the service charges or ground rents could be a way of disguising increases that the leaseholders have to pay in order to pay for fire safety defects. I hope that the Minister will be able to tell us that that is covered in one of his many amendments. With those few words, I look forward to others speaking and the Minister’s reply.

[Lord Blencathra (Con)]

My Lords, it is a pleasure to follow the noble Baroness. I particularly like her slogan, “Get the work done.” Somehow it reminds me of a similar slogan we heard rather successfully a couple of years ago: Get Brexit done. I am glad that the Liberal Democrats are picking up some Conservative slogans.

[Baroness Pinnock (LD)]

I think it is the reverse.

[Lord Blencathra (Con)]

I support Amendment 233, so ably moved by my noble friend Lord Young of Cookham in his usual erudite way; he had the detail but was still succinct. Because he set it out so well, I can be commendably brief, for a change.

I start from the position of my right honourable friend Michael Gove, and I totally support what he has said and done. I usually support what he says and does, except when he was Conservative Chief Whip and was a bit cuddly, caring and too kind. But apart from that, I liked it when he said that

“leaseholders are shouldering a desperately unfair burden. They are blameless, and it is morally wrong that they should be the ones asked to pay the price. I am clear about who should pay the price for remedying failures. It should be the industries that profited, as they caused the "problem, and those who have continued to profit, as they make it worse.”—[Official Report, Commons, 10/1/22; col. 284.]

You cannot say better than that. So I am rather sympathetic to any amendments, including the one moved by the noble Earl, Lord Lytton, trying to make sure that developers or perpetrators pay every penny. It should not be leaseholders and, ideally, it should not be the taxpayer.

However, this amendment creates a remediator of last resort and allows the Secretary of State to step in and undertake the works. In either case, it would allow the Secretary of State or the local authority to pursue the responsible developer with debt claims to recover the money laid out on remedial works. As my noble friend so ably said, that ensures that there is a failsafe mechanism in the law. The Government’s legislative proposals do not tell us what will happen if remedial works are simply not started or cannot be completed as a result of the effect of the caps imposed in the Bill and the restrictions on buy-to-let landlords.

The duty in this amendment would fill the gap. The Government’s proposals would require some sort of remediator of last resort. Because they are imposing caps on what can be collected toward non-cladding costs, the Government are creating a gap in funding, which will have to be plugged somehow. Ultimately, someone is going to have to pay; otherwise, as my noble friend said, buildings will never be fixed. This amendment allows building work to be started and buildings to be fixed, with the taxpayer providing a form of bridging finance—but they must get that money back from the building safety fund; this is not carte blanche to make the taxpayer pay for these things.

As I said, I am sympathetic to the amendment from the noble Earl, Lord Lytton. I just worry that if we adopted these four or five new clauses, we might be tearing the guts out of the Bill and would have to rewrite a lot of it. But I think his heart is in the right place in where he is aiming to go. I understand that my noble friend might be worried about the legal position under the ECHR. This is another area where the noble Earl’s amendments might technically fall foul of the ECHR. Some of us have seen legal advice circulated from Daniel Greenberg, who is well known to everyone in this House. He says:

“On the basis of this analysis, l am satisfied that the draft clauses are compatible with the Convention rights and that Ministers will be able to comply with Section 6 of the Human Rights Act 1998 (Acts of public authorities: duty not to act incompatibly with ECHR) when they come to perform the functions conferred by the draft clauses”—


referring to draft Clauses 234 to 237.

I am not capable of suggesting whether Daniel Greenberg QC is correct or not, but I would love to hear what the Minister has to say about that. If the amendments from the noble Earl, Lord Lytton, are not right, it would be helpful to hear from my noble friend how far they can go towards what the noble Earl is trying to achieve. If he is going to reject them, I would love to hear how far he can push to get as close as possible to the noble Earl’s position. With those words, I am content to support my noble friend’s Amendment 233, and I would love to hear explanations on the noble Earl’s amendments.

[Baroness Neville-Rolfe (Con)]

My Lords, I apologise for a brief Committee-style intervention, given the novel nature of the group of amendments we are looking at. I have two points.

First, I am very grateful for the agreement earlier to the amendment from the noble Lord, Lord Best. I thank my noble friend for that but, as he knows, I am concerned about the position of leaseholders who are also involved in the hard task of managing even a small development as an enfranchised leaseholder. I have a family member with an interest in that area. What happens if a cladding or other building safety issue arises? I know that such leaseholders may face big bills and responsibilities. Amendments 186 to 193 appear to make enfranchised leaseholders of this kind liable even if they have ceased to act or sold out and become previous landlords. Have I understood this correctly? If I have, then it undermines the case for enfranchisement that has been encouraged by successive Governments to get rid of excess service charges.

Secondly, a strong case has been made for the non-government amendments in this group. I too have received many worrying letters from leaseholders. Do we have a feel for the cost, especially the net cost, of these Back-Bench amendments we are debating? I feel this is a matter that will be of concern in the other place, given current fiscal pressures, and might therefore determine what is eventually agreed in this important and urgent Bill.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I have not spoken in these debates either. I hope, like the noble Lord, Lord Marks, I might be forgiven for intervening very briefly.

I took the opportunity of looking at Article 1 of Protocol 1 shortly before coming into the Chamber today, and at some of the background authorities to which the noble Lord has referred. I agree entirely with his carefully worded speech in every respect. There is, of course, a question of balance and a question of the margin of appreciation and the other technical phrases that he has used, with which I am very familiar, but I think his assessment of all these points is absolutely right. The prospects of a successful challenge really are very remote, and the Government would succeed. I agree with his assessment, and I hope this might be of some comfort to the noble Baroness, Lady Pinnock, in her amendment, and to the noble Lord, Lord Blencathra.

[Lord Blencathra (Con)]

My Lords, it is a privilege to speak after hearing from two such knowledgeable noble Lords. I am tempted to say: let us cut to the chase and go straight to the vote on Amendment 115 and get it over with.

In the meantime, I would like to speak on Amendment 115, which I strongly support, and Amendment 123. I would like to comment on Amendments 155, 156 and 157, and to my Amendments 158, 159 and 163. Before doing that, although I will not speak to them, I was privileged to support Amendment 117 on enfranchising leaseholders, Amendment 124, moved by the right reverend Prelate the Bishop of St Albans, on pensioners, and Amendment 153, moved by my noble friend Lord Young of Cookham.

On Amendment 115, concerned with buildings under 11 metres, I strongly support what is proposed by the noble Earl, Lord Lytton. I hope he presses it to a vote unless my noble friend is willing to accept it. I have heard my noble friend the Minister say repeatedly—and he is largely right—that a building of under 11 metres may be less dangerous than a building of 20 or 30 storeys. I accept that even I could get out of a building of three storeys a bit faster than I could get out of one of 13 or 30 storeys. The risk is lower, but there is still a risk—that is one of the main points: there is still a risk. When we saw Richmond House burn down in nine or 10 minutes, it was horrifying. I hope that, if I was in there and woke up in time, I would have got out, but there might be some disabled people who could not have done so.

There is also an issue of principle. If someone has built a building, whether it is 1 metre high or 11 metres high, and used flammable materials or the wrong materials, they should be made to fix it, no matter how wealthy they are—if it is Abramovich or anyone else. If the building has flawed materials, it should be repaired, irrespective of the height. I appreciate that my noble friend has gone a long way on this and that he has been very kind in telling us at countless meetings that there is a lower risk in those buildings, but there is still a risk. Of course, he also said that the numbers were very small: in that case, if the numbers are very small, it is a small problem to fix.

[Baroness Pinnock (LD)]

Let us do it.

[Lord Blencathra (Con)]

Let us do it—that is a slogan for the next election for the noble Baroness. If the numbers are small, it is a small thing to fix.

Moving on to Amendment 123, again I support my noble friend Lord Young of Cookham in changing the definition of “qualifying lease” so that buy-to-let landlords with an interest in up to five properties, including their main home, benefit from the leaseholder cost protections in Schedule 9. As my noble friend said, this is important because there are many buildings where there are a lot of little flats owned by buy-to-let landlords. If those landlords cannot pay their share of the bill, it will mean that not all the money is available to do the work for the whole building. Similar issues may arise when landlords own flats in multiple different affected buildings that have received help from the building safety fund.

I appreciate that many of those landlords hold their buy-to-let properties as part of or, in some cases, all their pension provision. We have all had many emails from people in the past few days setting out some rather sad examples. I know my noble friend has increased the protection from two by-to-lets to four, but I do not think that goes far enough and we suggest that the overall figure should be five, but even then it omits many small landlords. I know it is not good law to quote hard cases, but I have an example of just one of dozens one has received in the past few weeks.

This person says, “I am 57 and have worked as an electrical contractor most of my life. I now have nine small rental apartments in Salford, valued at £80,000 to £100,000 each, a total of approximately £800,000 before they were valued at £0 since the cladding crisis. These properties were purchased in 2007-08 with years of savings and dropped 40% in value due to the financial crash of 2009 caused by the banks, which were bailed out, so my properties are still in negative equity. My nine apartments in the same building are all subject to safety issues, and my total service charges for 2022 are approximately £250,000 for the external wall system only, and this quote is from last year. The managing agents are in the process of getting updated quotes, which will be much higher. This does not include firebreaks, compartmentalisation, fire doors, et cetera, so my total costs are likely to be over £300,000 on property valued at £800,000. Having nine rental apartments seems to deem me to be a large-scale landlord not worthy of protecting from these costs, whereas someone with one or two rental properties in London worth a similar value to my nine little flats will be protected under the latest proposals.” He concludes, “The developer of the building has not replied to any letters from our managing agent or us leaseholders and has been trying to close the company for months, which we have objected to. The company has not traded for six years and there are zero funds in the accounts.”

That is a good example of why these amendments are necessary. It is not just the numbers, as the right reverend Prelate said, it has to be the overall value, and that is why I support my noble friend Lord Young’s amendment on having a percentage figure. If we cannot have zero or peppercorn, then 1% seems a fairer way of going about it.

On my Amendments 158, 159 and 163, the Government’s proposals require leaseholders in properties worth more than £175,000 and up to £1 million outside London to pay £10,000 towards non-cladding remedial works if money cannot be found from developers or landlords. In London leaseholders in properties worth more than £325,000 and up to £1 million may have to pay up to £15,000. Again, that is if money cannot be found from developers or landlords. Higher caps of £50,000 and £100,000 apply inside and outside London for properties worth more than £1 million or £2 million. The Government say that these caps are necessary, again because of legal advice which we have just heard rebutted and on which I shall comment in a moment. The claim is that in order to impose measures on developers and landlords it is necessary for leaseholders to contribute in some cases or we fall foul of the ECHR.

Amendment 158 in my name, also supported by my noble friend Lord Young of Cookham and the noble Baronesses, Lady Hayman of Ullock and Lady Pinnock, simply says

“leave out ‘£15,000’ and insert ‘£7,500’”,

halving the figure. For buildings in London, the amendment halves the contribution of leaseholders to non-cladding costs. Similarly, Amendment 159, for buildings outside London, reduces it from £10,000 to £5,000, halving the contribution of leaseholders on non-cladding costs; again, supported by my noble friend Lord Young of Cookham and the noble Baronesses, Lady Hayman of Ullock and Lady Pinnock. Finally, Amendment 163, again supported by my noble friend Lord Young of Cookham, says,

“leave out ‘£50,000’ and insert ‘£15,000’”.

That applies to the properties inside and outside London worth between £1 million and £2 million. The amendment would reduce the leaseholder contribution to non-cladding costs from £50,000 to £15,000.

All told, as we come to the end of this debate, the Government have been given four options by the various amendments. There is the zero option, proposed by the noble Baroness, Lady Hayman of Ullock; the peppercorn option, proposed by the noble Baroness, Lady Pinnock; the 1% option proposed by my noble friend Lord Young of Cookham; or they can lower the cap, as in the amendments that I have just described. We have done all those amendments on lowering the cap in the hope that we could get around the Government’s view that the ECHR would put a block on this and that they would have to say that the Bill, or Act, was not compliant with the ECHR. But we have just heard from two eminent and learned noble Lords and an ex-Supreme Court judge that none of these amendments would be in breach of the ECHR. As the noble Lord, Lord Marks of Henley-on-Thames, pointed out, even if we do not accept of these amendments and stick with the government ones, there will be some freeholders, landlords and developers who will still go to the ECHR and complain about anything to slow it down. So sticking with the Government’s level does not get us out of litigation in the European court.

I look forward to what my noble friend has to say on this. The legal arguments produced by the noble and learned Lords are very telling. I commend my amendments to the House, and also commend those from the noble Earl, Lord Lytton.

Building Safety Bill

Lord Blencathra Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 29th March 2022 Lords Chamber

That is the catch-all, if you like, but I say to the Minister that these issues are not going to go away. They, and the noble Lords who advocate on their behalf, are going to pester him—and his successors, if necessary—to get this problem tackled. Here is an opportunity, with a clean slate and a new building safety regulator, to set out clearly in this Bill the four topics that need the most urgent attention. Let us hear what the building safety regulator has to say about it. If they come back and say that I am hopelessly exaggerating the concerns and problems so it is not necessary to regulate, let us hear it. However, if it is necessary to regulate, let us hear that as well. We want to hear a positive reply from the Minister. If we do not, we will certainly want to test the opinion of the House.

[Lord Blencathra (Con)]

My Lords, briefly, I wish to support the noble Lord, Lord Aberdare, in his amendment on retention. I am not sure whether this is the right Bill for it but there is a problem that needs to be addressed sooner rather than later. My only experience of it—I think it was a form of retention—was many years ago, in the early 1990s, when I had a derelict farmhouse and barns done up in Cumbria. About half way through the job, I said to the electrician, “You must be making a pretty penny out of this.” “Some hope”, he said, “it’ll be next year before I get paid and I’m fourth down the line.” I asked what he meant by that. He said, “The contractor said I’ll get paid for your job only when I have bid for three others and done them. Once I finish the third one, then they’ll pay me for yours.” I was appalled but he said, “Oh, that’s standard practice in the trade, guv, nothing we can do about it.”

I do not know whether that is standard practice in the trade, or whether it actually is retention, but it is a racket that ought not to continue. I hope that, at some time in the future—in some other legislation if not in this Bill—my noble friend the Minister will be able to crack down on that sort of racket. I know that there are views on both sides of this issue but it is not right at all because there are safety implications. The electrician was to get paid for the job he did for me only if he went in at a rock-bottom price to win three other jobs. That is a safety issue.

[Baroness Hayman of Ullock (Lab)]

My Lords, turning first to Amendment 1 in the name of the noble Lord, Lord Foster of Bath, we agree that longer-term protections for residents’ safety are absolutely critical. His amendment also raises the importance of how we manage longer-term protections relating to fire safety.

Look at the government cuts to the fire service. Between 2010 and 2016, the Government cut central funding to fire and rescue services by 28% in real terms. In 2020, that was followed by a further cut of 15%. If the Government are really serious about tackling fire safety—there is a lot of good stuff in this Bill—they need to look at reversing those cuts to our fire safety organisations to make sure that they have the proper support they need to do the job that needs to be done.

Turning to Amendment 2 in the name of the noble Lord, Lord Crisp, I assure him that, in principle, we support what he is trying to achieve. The issues that he raises are important. Health and well-being need to be considered in a lot of our legislation and we too often overlook it. The noble Lord, Lord Aberdare, introduced his Amendment 7 very ably, as he always does, and we certainly support in principle what he is trying to achieve with it. We have every sympathy with many of his practical suggestions for what could be done to improve things in this area.

Amendment 8, in the name of the noble Lord, Lord Stunell, which he just clearly introduced, is particularly important given the areas that it includes and to which he referred. We had a long debate in Committee on the importance of the safety of staircases and making sure that the minimum standards are properly applied. We heard from many noble Lords about the RoSPA campaign and the number of people who die falling down staircases. This is an opportunity to do something about that.

We also had much debate in Committee on electrical certification and the importance of the safety of electricity systems. It is important that this also includes provision for disabilities. I am aware that the Government have introduced amendments on disabilities, but this is another opportunity to support that.

It is important that we have an amendment that looks at timely intervention—timely action—on safety issues. Grenfell was not the first time in recent years that a fire in a high-rise block of flats resulted in loss of life. In 2013, coroners wrote to Ministers about two separate fires: first, Lakanal House in Camberwell in 2009, in which six people died, and then Shirley Towers in Southampton in 2010, in which two firefighters died. The coroner’s letters included clear points of criticism and recommendations, which were not acted on. These also included retrofitting sprinklers into high-rise social housing blocks. The amendment of the noble Lord, Lord Stunell, includes the importance of sprinklers. The Lakanal House fire involved high-pressure laminate cladding, but that was not ordered to be removed from buildings until 2019—between 2009 and 2019 is 10 years.

It is important that when coroners, for example, or anyone who understands the safety of buildings writes to Ministers about genuine and serious concerns with actions that need to be taken, these are acted on in a timely way. That is why we strongly support Amendment 8, in the name of the noble Lord, Lord Stunell and, if he decides to divide the House on it, we will support him.

--- Later in debate ---

I am grateful to the Minister because, in the last hour, his office has proposed a meeting for tomorrow. I thank him for that but, if progress is not made at that meeting, I plan to bring back amendments at Third Reading. This is truly a matter of life and death.

[Lord Blencathra (Con)]

I rise to comment on the disabled amendments that the Government have laid, including the one that was just moved. I will also comment briefly on Amendments 46 and 47, which have not yet been spoken to by the noble Baroness, Lady Fox of Buckley, and speak to Amendments 39 and 40 on behalf of the right reverend Prelate the Bishop of St Albans, since he is unable to be with us at this time of the morning.

I commend the Government for listening to my noble friend Lady Grey-Thompson in Committee and on all the amendments that they have brought forward today. Having been bored on the train when I was heading up north last week, I counted on the Order Paper more than 220 government amendments and 50 proposed new clauses. That is an extraordinary achievement and shows the extent to which my noble friend the Minister has been listening, as well as what he has been able to drive forward—principally because the Secretary of State, my right honourable friend Michael Gove, gets it and understands what needs to be done. So, although my noble friends and I may move a few amendments today, and perhaps force them to a vote, I do not want the Minister to think that we are being churlish. We appreciate the huge distance that the Government have travelled; we just think that there may be one or two more gaps that we need to fill.

I would be grateful if the Minister could reassure me as to why the disabled amendments that we have just heard noble Lords speak to may not be necessary or why there may still be an essential gap there. I thought that the government amendments were adequate but I am keen to hear his explanation.

I will speak briefly to Amendments 46 and 47 in the name of the noble Baroness, Lady Fox. In Committee, I tried to make the point that the burdens on leaseholders are much heavier than those on building safety managers and others, who seem to have unlimited rights to impose fines and penalties and invade homes to check on things without good reason. I am keen to hear what the noble Baroness has to say about her amendments, which state that such persons should be able to access leasehold flats only when it is essential to do so.

My main purpose this morning is to speak to Amendments 39 and 40 in the name of the right reverend Prelate the Bishop of St Albans, which I was pleased to sign up to as second fiddle. The good news is that I shall not need to make my own speech and bore the House. The bad news is that my speaking on behalf of a right reverend Prelate may do irreparable damage to the Church of England, so I hope that does not occur. He says:

“First off, I would like to express gratitude to the Minister for tabling his Amendment 38 and the overall listening approach he has taken to the concerns of the House throughout the passage of this Bill. I hope that this is at least some indication on the Government’s part that they are still working through the imperfections of this Bill, and that they might respond with amendments at Third Reading in response to problems noble Lords and Baronesses”


have raised and will raise today. He continues:

“I will be frank and say that although I am pleased the Government did respond to the concerns I raised at Committee stage by tabling Amendment 38, the content of it is admittedly limited. The reality is that the principal accountable person could take representations from or hold consultations with the relevant tenants or leaseholders on matters”


relating to building safety

“without necessarily integrating their concerns into the Residents Engagement Strategy. It appears entirely discretionary on the accountable person as to what enters into this strategy. In fact, because Amendment 38 also requires the accountable person to act in accordance with the strategy”

that, from conversations he has had with others,

“would seem to imply that a failure to act in accordance with the strategy could be flagged up to the Building Safety Regulator. The question then is simple: why would an accountable person commit to include something in an engagement strategy that could later be used against them?”

However, the right reverend Prelate says:

“I do not want to hastily dismiss what the Government are trying to do here as the foundations contained”


within the amendment require only

“an ever so slight tweaking to better ensure that the accountable person acts in accordance with a strategy that actually reflects the views of residents, rather than the current vague requirement to just ‘take any representations … on the consultation into account when next reviewing the strategy’”.

Personally, I think that he has made a very good point there. He continues:

“Amendment 39 would mildly alter Amendment 38 to ensure that the accountable person takes any representations made on the consultation into account”


and then changes

“‘the strategy to reflect the balance of representations made’. This remains imperfect but it does at least in part remove the discretionary basis for deciding the content of the strategy by adding a protection to ensure that the strategy reflects”

that balance. He then says:

“Even with this change, the accountable person will hold immense discretionary power since it is … incumbent on them to interpret the balance of representations made”


so that the accountable person still has the whip hand.

“However, it would alter the relationship when formulating the strategy from the accountable person as its absolute sovereign to the accountable person as the interpreter of the general will. The accountable person will ultimately be the individual who determines the content that enters into the residents engagement strategy. Amendment 39 provides just an inch of breathing room to better guarantee that it does reflect the views of tenants and residents”.


Amendment 40, says the right reverend Prelate,

“admittedly is far more wide ranging and acts as a direct extension”

of his previous amendment in Committee,

“which would have mandated recognised residents associations for the purpose of consultations on building safety issues. I did recognise the Government’s discomfort at the prospect of mandating anything, particularly where there exists an amicable relationship between the freeholder and the leaseholders or tenants. For this reason, I have tried to create a conditional avenue by which a freeholder must set up a residents association. The condition being that as part of consultations on the residents engagement strategy, the accountable person must consult with residents on whether to create a recognised tenants association, and create one, for the purpose of consultations on building safety decisions, where it turns out there is a simple majority demand from residents”

to so have one. He continues:

“I believe a conditional requirement for recognised residents’ associations would help mitigate some of the abuses that do exist within the system. In Committee, I referenced the case of a freeholder who charged residents a 100% markup on window repairs and also spent £74,000 in a court battle to prevent residents from forming a recognised tenants’ association. I cannot speculate on how many other leaseholders have suffered similar abuses at the hands of their freeholder. However, I know the Minister is as appalled by these abuses as I am.”


I share that point of view. He continues:

“The Government do recognise the need to reform the leasehold system”—


something we all look forward to in, we hope, the next Queen’s Speech on 10 May.

“For this reason, I do not want to press the Government on Amendment 40 other than to ask the Minister to look seriously at how recognised tenants’ associations can be more widely promoted and more easily set up, as well as perhaps to expand their remit to encompass matters relating to building safety issues so that there is actual accountability and scrutiny when it comes to the charges they incur.


However, I would still impress to the Government the need to strengthen Amendment 38 so that there are greater safeguards to guarantee that residents’ engagement strategies better reflect the views of residents. I believe Amendment 39 presents a sensible compromise to solve this problem. The authority to decide on what is contained within the residents’ engagement strategy remains with the accountable person but in a manner that is more conducive to capturing the balance of residents’ views.


Finally, I would just like to note a few other amendments in this group. I welcome the sentiment of Amendment 36 within this group and the duty it places on the accountable person to achieve best value. I welcome the Government’s decision to remove the building safety manager”—


I think we all welcome that—

“and I would congratulate the noble Baroness, Lady Fox, on making the strong case for its removal in Committee. Of course, some of the costs previously contained within the building safety manager will naturally be rebadged and passed on, it is inevitable. Nevertheless, since it is now discretionary on the accountable person to decide how to meet their obligations under this Act, and since any costs incurred for meeting this obligation will be met by the tenants or leaseholders, there is no incentive for the accountable person not to reimpose the costly building safety manager. Therefore, I do believe that some duty to achieve best value would represent a sort of financial safeguard for leaseholders and possibly encourage freeholders to take a more considered approach to meeting their obligations rather than taking the path of least resistance in hiring a building safety manager.

I would also quickly offer my support to Amendments 13, 20, and 35, and the protections they afford to those living with disabilities, which I welcome.”


It has been a privilege to deliver this speech on behalf of the right reverend Prelate. I say to my noble friend that this was not Blencathra talking; I was speaking from a much higher authority today and expect him to pay particular attention to Amendment 39.

[Lord Young of Cookham (Con)]

My Lords, I will intervene very briefly to welcome the Government’s amendments, particularly Amendment 100, which removes Schedule 8 and abolishes the building safety charges as separate charges. As my noble friend the Minister mentioned in his opening remarks, I spoke to an amendment in Committee which did exactly that, pointing out the extra costs and potential confusion that two separate charges could result in. I recommended that the building safety charge be incorporated into the service charge but shown separately. I welcome this simplification, as will leaseholders. I am grateful to my noble friend for listening and responding.

I will very briefly support Amendments 39 and 40 in the name of the right reverend Prelate the Bishop of St Albans, and so ably spoken to by my noble friend Lord Blencathra, who may find himself invited to deputise at pulpits in and around St Albans as a result of his performance. If there is no provision in the Bill to ensure that residents have a collective voice, the accountable person—normally the landlord—will have a huge interest in ensuring that residents are not organised and enabled to resist any costs that the landlord wishes to impose on them. The current government proposal just says that the accountable person should design an engagement strategy, whereas the amendments rightly go further, requiring a tenants’ association to be set up where that is what the majority want.

The amendment goes entirely with the grain of successive Governments’ policy to even up the terms of trade between leaseholders and tenants on the one hand and landlords on the other. I hope that the Minister can look benevolently on these proposals and perhaps at a later stage consider strengthening them further in the direction proposed by my noble friend.

Building Safety Bill

Lord Blencathra Excerpts

Committee stage
Monday 28th February 2022 Grand Committee

Moved by

[Lord Blencathra]

46: Clause 93, page 102, line 8, at end insert “after consulting the residents”

--- Later in debate ---

[Lord Blencathra (Con)]

My Lords, I declare my interest as a leaseholder in a block of flats near here that has some remedial work not currently covered by the latest government proposals. I rise to move Amendment 46. In the customary spirit of this Committee, let us begin with my favourite building quote, which I learned in school and then used inappropriately all the time, as one does. Horace boasted that his Odes would be remembered like this; I commend the quote to my noble friend the Minister, since this is how this Bill will be remembered if he accepts the amendments of my noble friend Lord Young of Cookham, the noble Earl, Lord Lytton, and my humble self. Horace wrote:

“exegi monumentum aere perennius


regalique situ pyramidum altius,

quod non imber edax, non Aquilo inpotens

possit diruere”,

or

“I have built a monument more lasting than bronze,

higher than the Pyramids’ regal structures,

that no consuming rain, nor wild north wind

can destroy”.

That is the legacy my noble friend can have with this Bill, if he does the right thing. Let us crack on with proper work now.

Amendments 46 to 55 relate to Clauses 93 to 99. Of course, we have the excellent proposed new clause set out in Amendment 50A, which was tabled by the right reverend Prelate the Bishop of St Albans and which has also been signed by my noble friend Lord Young of Cookham and me. I look forward to hearing their speeches on it and will not trespass there except to say that the right reverend Prelate’s amendment may be a lot better than mine. I was moved to table my amendments in this group because, when I read Clauses 93 to 99, I was struck by how weighted against leaseholders they were. Since then, we have had the amendments tabled by the noble Baroness, Lady Fox of Buckley, which seem to come from the same assumption that the odds are stacked against residents. I look forward to hearing what she has to say on this as well.

In Clause 97, there seems to be an assumption that leaseholders are going to smash up and remove safety equipment from our buildings. Why in the name of God would we do that? Where has this crazy notion come from? We all paid good money for our properties. We bought them and it is in our vested interest to maintain and add value to them. Why on earth would we, in a million years, want to diminish that? It just does not make sense. Perhaps at Report noble Lords might be tempted to move that these clauses do not stand part of the Bill. Under them, we can be served contravention notices, access to our flats can be demanded and the accountable person can be given rights to take us to court, yet there is not a single balancing right for leaseholders to take action against the accountable person, who is more likely to be at fault, if our experience of managing agents is anything to go by.

Amendment 46 says that the accountable person can draw up the strategy “after consulting the residents”. Do we not believe in prior consultation before foisting a strategy on the people who have to comply with it? If a Minister did this, he would be up for judicial review for not doing proper consultation first. Amendment 46A says that, where there is a residents association, the accountable person must draw up the strategy in conjunction with its members and it must be agreed by them. Quite simply, they have the right to be involved and their buy-in is essential if the leaseholders are to happily sign up to the strategy.

Getting that buy-in is vital because we all know that the accountable person, who is likely to be the managing agent, will gold-plate every aspect of this strategy to increase the value of the landlord’s holdings. This morning, just for fun, I checked the price of a 6-kilogram standard dry powder fire extinguisher—a simple bit of safety equipment we would all expect to see. The most expensive came in at £171.75, while the cheapest was £31. They had exactly the same contents, were the same weight, had the same ingredients and would have the same firefighting ability, but we all know which one the landlord, freeholder and managing agent would buy and charge us for the privilege. It would be the gold-plated one—literally, in this case, I think. If accountable persons have a free hand to draw up these strategies, I am afraid that leaseholders will get ripped off.

Amendment 47 deletes Clause 93(5), which proposes that Clause 93(4)(a) does not apply where the accountable person is not aware of the resident or has taken reasonable steps to be aware of the residents. That is not good enough, in my opinion. This cop-out provision is not acceptable; managing agents or accountable persons could devise a strategy and claim that they could not find the residents to whom it applies and therefore could not consult them. “Accountable” means being accountable, knowing your residents and tracking them down, with no excuses—it is as simple as that.

Amendment 48 adds additional potential powers for the Secretary of State to make regulations. Again, I am not suggesting that he has to make them or building into the law that this has to happen, but this would give him a permissive power to act if he found a problem. It allows him to make further provision about the content of an engagement strategy and the way it is issued. That is small beer and pretty innocuous stuff which I am sure my noble friend can accept. I will be disappointed if he says he cannot.

Amendment 49 attempts to apply the same sanctions that are imposed on residents in Clauses 97 and 98. Clause 94 permits residents to request information from an accountable person but there is no sanction whatever if the accountable person fails or refuses to provide it. That is simply wrong; it is not a quid pro quo because, the other way round, residents are compelled to co-operate with the accountable person. I believe that the resident has as much right to demand compliance as the accountable person, who can demand compliance from residents and issue contravention notices under Clause 98.

Clause 95 states that the accountable person must set up a complaints procedure, but there is no sanction if he fails to do so. My Amendment 50 would give the Secretary of State an additional regulation-making power to create penalties for the failure of a principal accountable person to create such a complaints procedure. Again, I am not saying that the Secretary of State must do it and I am not setting out the penalties; I am just asking the Secretary of State to take the power of a regulation in case they need to use it in future because an accountable person has failed to set up a complaints procedure.

My Amendment 51 seeks to widen the potential definition of “relevant safety item”. At the moment, it is tied to “common parts” as defined in Section 69. That may or may not be good enough—I am not expert enough to know—but my amendment would change it to anything that may be defined in regulations. This would give more flexibility because, of course, regulations can be changed at any time, at the stroke of a ministerial pen, whereas an amendment to Section 69 would require primary legislation.

My Amendments 52 to 55 seek to delete “county court” and substitute it with “regulator”. I accept that the regulator may not be the right person but I think that it is heavy-handed to give the accountable person the right to go to the county court and threaten leaseholders that way. If we have a new regulator and First-tier Tribunals and an ombudsman, why drag the county court into it? Surely one of those bodies could be designated as the person to whom the accountable person goes to demand action from residents. I get the feeling that these clauses were designed to scare residents with the threat of court—for example, the accountable person saying, “Do this or we’ll take you to the county court”. That is heavy-handed; I believe that the regulator, the ombudsman or someone else should have that power instead.

My Amendment 85 would introduce a new clause to provide that, if a person with an interest in a property conducts a survey on it, they must share that information with everyone else who also has an interest in the property. Again, it is a power for the Secretary of State to introduce regulations if he is so minded; he is not forced to do so. My reasoning behind this is that we will get some landlords, freeholders and managing agents undertaking surveys of safety risks then saddling leaseholders with huge remedial costs while not sharing the safety report. Leaseholders would have to do their own at extra cost; that may not happen. There can be no justification for a safety survey undertaken by anyone in the building not being shared with everyone else in the property.

Finally, Amendment 87 would permit the Secretary of State, if he were so minded, to introduce regulations to permit the regulator, ombudsman or anyone else designated by the Secretary of State

“to act on behalf of a leaseholder or group of leaseholders in taking action against a developer, contractor, landlord or freeholder in relation to complaints about fire hazard remediation.”

We all know that a leaseholder challenging managing agents, freeholders and landlords is a real David and Goliath battle. In this case, David would not have a sling, or even a single pebble to fire at them. Leaseholders need a champion to fight their corner. My proposed new clause would permit the Government to appoint a champion and recover the costs so that the taxpayer does not have to pay a penny.

As I said, surely my noble friend the Minister cannot reject all these amendments as not technically correct or necessary because almost all of them would simply grant the Secretary of State permissive regulatory powers. He would not have to implement a single one of them but I would grant him the powers to make regulations if, at some time in the future, some of these problems arose and the Government had to act. Let us build a permissive regulation-making power into the Bill now so that the Secretary of State can use it in future if need be. I beg to move.

--- Later in debate ---

[Lord Greenhalgh (Con)]

I am sorry; with the sheer length of the debate, we are now approaching the two-hour mark, so I hope that my noble friend will forgive me if I did not address that specific point. However, I did address the point that the Valentine’s Day amendments, tabled on 14 February, were made in haste. The work around impact assessment was therefore not carried out at that time, but obviously we intend to update our impact assessment to reflect all the amendments that the Government have brought forward; that is the good practice my noble friend seeks, I think.

I thank noble Lords for this debate, which has been an important and necessary part of the scrutiny of this legislation. I hope that, with the reassurances given, noble Lords will be happy to withdraw or not press their amendments. This has been a feast of a debate so let us conclude it with the two words that we used to say in our formal hall: benedicto benedicatur.

[Lord Blencathra (Con)]

My Lords, we have spent two hours on this group of amendments. It is probably the second-most important group in the Bill, after the one we dealt with last week. There were more than 45 amendments down, so I make no apology that we have spent considerable time discussing them.

--- Later in debate ---

[Lord Naseby (Con)]

My Lords, I shall speak to my Amendment 65, which would modify the major statement in government Amendment 64. I was greatly encouraged when my noble friend the Minister sent the letter on 14 February. I thought, “Ah, here’s a good letter”, because it says clearly:

“The key principles that I outlined were a more proportionate approach to building safety risk”,


and

“the need to protect leaseholders”.

That is in the first paragraph. The second paragraph even starts:

“I committed to protect leaseholders”.


So I thought, “Oh, good, we’ve got there now”. But then, of course, I looked at the letter in more detail—and what is proposed in new subsection (2)(d) proposed by government Amendment 64 will have a major adverse effect on buy to let.

I remind my noble friend, who has been in housing for many years, as I have—I first got elected to the London Borough of Islington in 1968—that it was in 1993, under the Major Government, that the whole concept of buy to let was produced. That was at a time when, as all of us who were involved in housing would have known, there was a terrible situation for private tenants. They were basically exploited. We remember Rachman, De Lusignan and the others at that time. Here, it was not launched with trumpets or anything; nevertheless, it started in 1993 and it built up, because it offered good-quality housing for people to rent in the private sector. We now have a situation today, which I find really amazing, having done a bit of donkey work on this, where there are more than 2 million buy-to-let properties that are mortgaged and successful.

I will not take much of the Committee’s time, but I will just highlight that over the past 25 years, landlords have made a tangible improvement to the whole rented sector, so now we have a situation where millions of tenants today are proud of their home, although they have it on a buy-to-let basis. That is all fine and dandy, except that when you look at what is actually proposed at the moment, the net result is that, basically, buy-to-let landlords, or some of them, will not qualify for the remit of the cladding scheme that was announced in January. If they rent out no more than one flat in a block, they are okay, but if they have any more, they are in trouble. I have had strong representations, of course, from the National Residential Landlords Association, which states:

“We still fail to see why the Government is making it so difficult for buy-to-let landlords who are leaseholders to access the same level of support as all other types of leaseholders.”


The reality is, if you are a buy-to-let landlord renting out however many flats, or an owner-occupier leaseholder, you have been treated unfairly by the developers that installed dangerous cladding on blocks of flats. What Her Majesty’s Government are doing, as matters stand in Amendment 64, is introducing a very dangerous principle, basically stating that there are worthy and unworthy victims of the cladding crisis. I ask my noble friend to reflect that the Government should make it clear that any and all leaseholders should be treated the same. That is why I have tabled this amendment. I have not sought any publicity on this at all, but people have read the Bill, thankfully, and I have just brought a small sample of the huge number of emails I have received. Each is an indication of a case. The first is from a retired solicitor—so this is a perfect gentleman—who had a flat on buy to let. His wife bought one as well, and they now have two flats and are facing a problem. He says it is vital that all leaseholders are treated equally, and I do not think I can disagree with that.

Another one comes from a lady who was affected. She had a one-bedroom flat, which she bought in St Albans when her mother died, and then they bought one more, yet they are caught again. Then there is one from a lady called Katherine Wilde in Croydon. A single-parent family, two sisters, bought a flat jointly, then another flat jointly, then another flat jointly. They are caught. I could go on, although I have not brought many. It is clear. This is from a gentleman called Paul Bullock. It is clear that all these people are victims of this national scandal. As further evidence from the Grenfell inquiry comes to light, it is obvious that many parties have played a role in creating this crisis, the only innocent party being the leaseholders who purchased the flats after being guaranteed that everything was in order, only to find out that this was not true. There are moving words at the end of this email:

“Personally, I am caught up in this mess. I can’t even start to explain the toll of the past two years on my physical and mental health”.


I will not read the rest, but I will say to my noble friend that there is a problem here and I hope that he will have another look at it. I think that when he was introducing the letter of 14 February, he said that some of it had been done in a bit of a rush—so I think there ought to be an opportunity to have another look at this issue.

[Lord Blencathra (Con)]

My Lords, my Amendment 59 is concerned with the first two lines of paragraph 5 of Schedule 8, which begins:

“Building safety costs may be taken into account in determining the … building safety charge payable by a relevant tenant”.


You can bet your life they will be. Leaseholders know that every other week a notice comes from the managing agents to say that the freeholder or landlord has decided that the corridor lighting needs updating, new lines need to be painted in the car park, the entry phone system needs replacing and so on, ad nauseam. This schedule gives them another excuse for possibly unnecessary, gold-plated, so-called safety improvements and contracts let to their favourite contractors. That is why my amendment seeks to add these words at the end of the sentence I have just quoted:

“only if they are below a maximum as specified in regulations made by the Secretary of State”.

It is another plea for the Government to take a permissive power so that, if it proves to be the case that service or safety charges have been jacked up, they can use a regulation to put a control on it.

These regulations may not be necessary—I hope they are not—but the power should be there just in case it is needed. If your Lordships just google “leasehold scandals”, up will pop names such as McCarthy & Stone and Peverel, now calling itself FirstPort—I can assure your Lordships that Mr Tchenguiz has not made his millions by being nice to leaseholders.

My Amendment 66A adds to the definition of “relevant defect” in new subsection (2) in Amendment 66. At the moment it says:

“‘Relevant defect’ means a defect as regards a building that … arises as a result of anything done (or not done), including anything used (or not used), in connection with relevant works, and … causes a building safety risk.”


I propose to add at the end:

“which may relate to but is not limited to … external cladding … internal walls and the materials contained inside any walls … fire doors … balconies … a lack of sprinklers, fire detection and control systems … inadequate escape routes.”

Quite simply, I believe that builders should pay for all fire safety remedial work and not just external cladding. But I also hope that common sense can prevail and the Government can lay down the law that wooden decking on a steel balcony is not a fire risk, and that potentially flammable materials sandwiched inside non-combustible inner and outer walls do not need to be removed. There are a lot of excessive suggestions on fire risk materials going round at the moment, and that needs to be stamped on.

My Amendment 86 seeks to insert a new clause to prevent managing agents charging excessive amounts for undertaking fire risk assessments or preparing applications for assistance. In particular, I suggest that the regulations may include—again I stress “may”:

“setting limits on the charges managing agents may impose for fire risk assessments … setting limits on the charges managing agents may impose for making applications to the Building Safety Fund or any other source of funding for fire risk remedial works … setting limits on the charges managing agents may impose for inviting tenders for fire risk remedial works … preventing service charges being inflated by fire risk remedial works.”

I suggest that these are all reasonable. My noble friend the Minister knows what managing agents are like. If we are not careful, this Bill will be a licence for them to print money: charging for the work of the accountable person and for drawing up the strategy, coming into all our homes to look for safety dangers, and a host of other things they will be able, quite legitimately, to charge leaseholders for. While they can do so, I suspect that the charges will be excessively high. Thus, the backstop of a regulatory power is essential.

I commend Amendment 131 from my noble friend Lord Young of Cookham. He made a compelling case for a short, sharp inquiry into the charges for fire safety work which leaseholders have had to pay and which are not covered by this Bill. That is eminently sensible stuff.

Building Safety Bill

Lord Blencathra Excerpts

Committee stage
Thursday 24th February 2022 Grand Committee

Moved by

[Lord Blencathra]

13: Clause 38, page 39, leave out lines 21 to 23

[Lord Blencathra (Con)]

My Lords, I rise to move Amendment 13 and to speak to Amendments 14 and 15 standing in my name. First, I declare a personal interest in that I am a leaseholder in a block of flats near here which qualifies for remediation work; we may have wooden balconies and other bits and pieces not technically covered.

Quite simply, I have tabled these amendments because I believe that the penalties for big building corporations are ridiculously light. I accept that for the single trader plumber, electrician or brickie, the magistrates’ court might suffice, but I say to my noble friend the Minister that it is preposterous to permit the Persimmon or Berkeley Homes of this world to be taken to a magistrates’ court for breaches of the law and fined a mere £200 per day that the breach continues. Theoretically, a magistrates’ court could impose an unlimited fine for breaches of the amounts imposed, but those amounts are trivial. Contrast that to the Health and Safety Executive, where last year the average fine was £140,000 and it fined the National Grid £4 million. Not a single person was killed in that incident, but the HSE believed that the National Grid’s records were inadequate and fined it £4 million.

In 2019, the Competition and Markets Authority fined three construction firms £25 million, £7 million and £4 million for indulging in a concrete pipe price-fixing ring. In 2021, another two firms were fined £15 million for fixing groundworks contracts—and these companies were not the large, mega housebuilding firms we all know and love. If the CMA can impose those levels of fines on small and medium-sized companies which have not compromised safety, why on earth should we even countenance four construction monoliths—which, in 2020, posted profits of £3.8 billion—getting a fine of £200 per day for breaching building regulations? That is why I believe we need to hit them hard, and the penalty in my amendment is the construction cost of the building they broke the law constructing, and that cost would double for each month that they fail to remedy it.

Let us emulate the CMA, which says:

“In calculating financial penalties … the CMA takes into account a number of factors including the seriousness and duration of the infringement, turnover in the relevant market, any mitigating and/or aggravating factors, deterrence and the proportionality of the penalty relative to each company’s individual circumstances.”


I simply suggest, in conclusion, that if that is the modus operandi of the CMA, it should be the modus operandi when we are tackling huge building firms which have breached building regulations. The big corporations need to be hit hard. Our penalties at the moment may be appropriate for the single plumber and electrician but not for the Berkeley Homes of this world, to name just one. I beg to move.

[Lord Best (CB)]

In the absence of others, I rise to speak to Amendments 94A, 94B and 97A, which seek to strengthen the hand of the new homes ombudsman. At Second Reading, I congratulated the Government on introducing this new dispute resolution service. I noted just how important it was for consumers to have an accessible and effective means of handling their numerous complaints against shoddy workmanship, building defects and appalling service in rectifying these problems, not least by the oligopoly of volume housebuilders.

My concern has been that the new homes ombudsman will not have sharp enough teeth to deal with these powerful players, and at Second Reading I posed a number of questions to the noble Lord the Minister accordingly. He was able to give me some reassurance on the independence of the new ombudsman from the industry. The housebuilders will be required to fund the ombudsman’s costs and will have a major say on the New Homes Quality Board, which will oversee the ombudsman service and agree the code of practice to be used, but the Minister assured me that the independence of the ombudsman will be preserved.

Subsequently, I have received a lengthy and extremely helpful briefing from the chair of the New Homes Quality Board, Natalie Elphicke MP. From that it is clear that considerable effort has gone into ensuring the genuine independence of the new arrangements from the influences of the housebuilding industry. I am grateful for those reassurances and for other details of the work that has been going on behind the scenes, which I hope will now receive the publicity it deserves.

Only Parliament in statute can endow the ombudsman with legal powers, and two of my amendments before the Committee today are intended to bolster the ombudsman’s jurisdiction to achieve better behaviour by the housebuilders. At present, the Bill makes provision for the ombudsman to make “make recommendations” about changes that developers and housebuilders should make to improve standards of conduct or standards of quality of work where,

“following the investigation of a complaint the ombudsman identifies widespread or regular unacceptable standards of conduct or standards of quality of work”.

This is good stuff, and making recommendations to this end is an admirable task for the ombudsman. However, making recommendations is not the same as placing requirements upon the builders to up their game. Amendments 94A and 94B add a power for the ombudsman to go further and place “improvement requirements” on the members of the scheme—that is on all the builders and developers selling homes, where widespread unacceptable standards of conduct or quality of work are found.

Amendment 97A seeks to strengthen the ombudsman’s hand in another way. At present, the remit of the ombudsman only covers any faults, defects, snagging problems and so on during the first two years after a new-build home is purchased. Certain defects that emerge after two years would be the subject of a claim under the 10-year warranty, which is a compulsory part of the sales process. The trouble with this cut-off of two years for the ombudsman is that the warranties thereafter do not cover all kinds of issues that may not be catastrophic defects but are, none the less, aggravating problems that can cause endless anxiety, annoyance and cost to the purchaser.

One example is that roofs are not covered when properties are converted into new homes. A more commonplace example might be a buyer trying to get a French window repaired or replaced who raises this with the builder within the first few months but does not take it to a formal complaint to the ombudsman until after the two-year time limit is up. Or the buyer has a plumbing problem that gets fixed but returns, gets worse and finally leads to an ombudsman complaint, only to discover that the issue is now too late to be considered.

Amendment 97A would enable the owner to take a complaint to the ombudsman up to six years after the property was first purchased, where the complaint cannot be dealt with under the warranty. It will not be possible to complain about the warranty to the Financial Ombudsman Service, which handles redress in relation to warranty providers, because these warranties do not cover snagging and minor defects. Most warranties are pretty tightly drawn and some are worse than others. There is a strong case for giving the ombudsman the power to insist upon all warranties satisfying proper quality standards.

But specifically in relation to the housebuilders, what the consumer needs is for their complaint about the multiplicity of things that the builder gets wrong to be handled by the new homes ombudsman without the buyer being told that they are out of time. The purchaser may simply have been giving the builder the benefit of the doubt, or the particular defect may not have emerged immediately, or the buyer was just not sure of their rights. Two years is simply not long enough. Six years matches the traditional time for liability in other circumstances, as in the Defective Premises Act. The Legal Ombudsman, for example, will investigate claims up to six years after a relevant incident is reported.

While not detracting from my congratulations to the Government on bringing forward the proposals that will create a much-needed new homes ombudsman service, I believe that these amendments—which would place requirements for better behaviour on all house- builders and support the consumer for six years, instead of two, after their purchase—would sharpen the ombudsman’s teeth and help ensure that the new arrangements can make a real difference to the performance and behaviour of this industry.

--- Later in debate ---

[Lord Blencathra (Con)]

My Lords, as an aside, I was going to say that we are sitting in a bit of a chilly draught here, but then I reflected on what it is like for those people in blocks of flats which have had all the external cladding ripped off, leaving nothing between them and minus 5 degrees outside but a thin plasterboard wall. That is why it is important to get this Bill through and tackle that problem as soon as possible.

I am in complete agreement with my noble friend the Minister on the quality of Roman architecture. My favourite place to visit in the border country is the Housesteads military fort on Hadrian’s Wall, where the best-preserved part is the latrines in the bottom corner. To see that the Romans, 2,000 years ago, had running hot water in their toilets and latrines is an eye-opener—for many buildings in this country, we have still not caught up with hot running water in the toilet facilities.

I floated my amendments to suggest that corporate developers should in all cases be tried on indictment, with massive fines for infractions. We have all heard the expression “damned with faint praise”, but never in all my experience in Parliament have my amendments been damned with such lavish praise. My noble friend basically said, “Blencathra, you’re an absolute genius; your amendments are wise and right. We’re with you all the way; let’s hit them hard—but I still ain’t going to do it.”

I accept that there will be cases where the magistrates’ courts should have a say. I was putting in a more absolutist position. However, if the magistrates’ courts continue to have a role—as I accept—proper guidance must be issued to them through the judicial standards board, or whatever it is called. Massive fines should be imposed in those circumstances where they are deserved. As I have said, the HSE and the CMA seem to have managed to persuade courts to slap on big fines. Perhaps for local authorities it is a culture thing or, for the magistrates’ courts, breaching building regulations does not matter so much—there may be some cultural problems there, but we must cut through them and, if we keep the magistrates’ courts, make sure that guidance slaps on heavy fines.

My amendments are not as important as those from the noble Lord, Lord Best. I was impressed by his speech; I would accept my noble friend rejecting my amendments, but I think he is wrong to reject the noble Lord’s amendments, because what he asked for is eminently sensible and should not cause the Government any problems. What is the point of having a power to make recommendations if they can be ignored? Placing an obligation on builders to make improvement requirements is the only logical step. As he said, it must be beefed up—and if you beef something up, then it needs more teeth.

I also like his Amendment 97A. He made an impeccable case for it and I fail to see why the Government have rejected it—it just moves it from two to six years. Five years into my brand-new block of flats, I found a leak in the plumbing where the washbasin was. Eventually, I managed to separate the very posh fake marble frontage from it and found, in my inexpert experience, that a one-and-a-half-inch pipe had been stuck into a two-inch pipe and sealed with a bit of silica. I thought, “This ain’t right”. The developer said, “That is how we do it in the trade—nothing to worry about.” I thought, “I’m not having this”, so I hired at my own cost a plumbing expert consultant, who came in, looked at it, sucked his teeth and sent me a report saying that it should be a special reduction joint XYZ. I went back to the developer, served a notice that I would go to the county court with £200 of my own legal costs, and gave them the consultant’s report and the repair I wanted.

Because it was me, and I had the muscle and clout to do it, the developer coughed up immediately, refixed the whole thing and paid all the cost. But I have a unique position as a Member of this House, with the ability to make that threat. Most leaseholders cannot. That is why they go the ombudsman, who must have a longer period than two years to sort out these problems. I am not sure whether the noble Lord will bring it back on Report, but I say to my noble friend that there is no skin off the Government’s nose in conceding the noble Lord’s amendments.

However, returning to my Amendment 13, I will not go back to this on Report and beg leave to withdraw it.

Amendment 13 withdrawn.

--- Later in debate ---

I will stop there. I had a comment or two on the amendment from the noble Lord, Lord Blencathra; his proposed new subsections (2), (3) and (4) have the same apportionment problems as the Environmental Protection Act. I want to avoid that. All these things may sound like criticisms, but they are all capable of being sorted. I do not think there is any disagreement on that.

[Lord Blencathra (Con)]

My Lords, since it seems de rigueur to start with a quote, I suggest we start with Jean-Baptiste Alphonse Karr:

“Plus ça change, plus c’est la même chose”—


the more things change, the more they remain the same. However, we simply cannot have that quote for this Bill; we do not want things to remain the same. That is why I prefer the quote from Heraclitus the Obscure of Ephesus: “panta rhei, ouden menei”—all things change, nothing remains. That, I suggest to my noble friend, should be the strapline of this Bill, if he cannot put it into the Long Title.

As my noble friend Lord Young of Cookham said, this group contains probably the most important amendments in the whole Bill, along with government Amendment 114 on the cost schedule. That is why we will probably spend more time on it than any other. We have four major groups of amendments here, and we are all seeking to do the same thing. We have the Government’s amendments, my noble friend Lord Young’s amendments, those of the noble Earl, Lord Lytton, and mine. I am sorry that I have about half the amendments in this group. The sets from us Back-Benchers are all complementary. We are all in the same boat; we may have slightly different strokes, but we are all rowing in the same direction as we seek to toughen up the Government’s position, which is a very good start.

First, my noble friend the Minister said on Monday—when I was unable to be present—that he found my speeches priceless. I take exception to that. He is wrong; they are not priceless. If the Government accept my amendments, they will have a huge cost attached, starting at £15 billion. Every penny will be paid by the builders and developers, and that sum is just the excessive profits they have made in the last few years. They are not priceless—there is a good cost attached.

I am very pleased to be able to support my noble friend Lord Young of Cookham’s amendment and the excellent way he has introduced it today. I will not repeat his arguments, since I cannot improve on a single word of them. I also commend Amendment 115, in the name of the noble Earl, Lord Lytton. He is also an expert in these matters, as we heard just now. I particularly like his introduction to the amendment:

“The purpose of the FHRS must be to ensure that residential blocks of flats with fire hazards are made safe … speedily, efficiently, effectively and proportionately … without recourse to lengthy and expensive legal proceedings … without cost to leaseholders or occupiers, and … in accordance with the perpetrator pays principle.”


He replicates those principles in Amendment 118, which I am also pleased to support.

Now that your Lordships have heard from the experts, this enthusiastic amateur will attempt to explain his amendments in this group. Like my noble friend Lord Young of Cookham, I agree that my noble friend and the Minister, Michael Gove, have transformed the landscape of fire remediation works, and the government amendments to this Bill go a very long way to delivering on the pledge that no leaseholder will pay a penny and that the perpetrators will pay. But as my noble friend Lord Young of Cookham pointed out, not all relevant buildings are covered, not all leaseholders are covered and not all defects are covered. The object of my amendments—and of others—is to deliver the policy, fill in the gaps and make the protection more robust.

Two weeks ago, a noble Lord following a speech I made in the main Chamber said that I had, in my usual way, set out an absolutist position, but that I was nevertheless right to raise the issue, et cetera. So, like the noble Earl, Lord Lytton, I have attempted in my Amendment 148 to set out some key building safety objectives to which the Secretary of State and everyone else exercising functions under the Bill must have regard to when making regulations.

I do not like these EU or UN regulations which begin with dozens of meaningless “whereas this” and “whereas that”, et cetera, and our Office of the Parliamentary Counsel does not like declaratory objectives which do not actually make substantive law. Nevertheless, when I was chair of the Delegated Powers Committee, I and my committee heavily commended my noble friend’s boss, Michael Gove, on the Fisheries Act—which has now passed—because it began with a series of objectives, which we had never really had before in legislation. We said that it was a wonderful way to start the Act, and that got universal approval from all the countries of the union. My noble friend should go back to his boss and say that, if it was good enough for the committee and I to commend him then on setting objectives at the start of the Bill, he should adopt either the Lytton principles or the Blencathra objectives and put them at the start of this Bill, setting the scene for what we want to do in future. I invite colleagues to look at my Amendment 148, and I promise then that I will not read it out to them. I will read out my other amendments, however.

The concept behind my Amendment 34 is very important since it relates to Clause 57, one of the most important clauses in the Bill. But the clause has a weakness, in my view, in that it gives the Secretary of State various regulation-making powers to create a levy or levies but does not set a maximum limit on what the levy might be. From my experience in the Delegated Powers Committee and the legal advice we received, any general levy-making power in regulations is highly vulnerable to judicial review and challenge unless the Secretary of State is operating within maxima parameters. It does not matter what those maxima are so long as they are in the primary Act. That means that any levies set by the Secretary of State under that maximum cannot be challenged on the grounds that they are unreasonably high.

The big building companies have already promised— I think I read this in an article last week—to challenge Gove and throw millions at lawyers to sabotage the whole levy system and claim that regulations setting the fees are ultra vires. The levels I have set out in my amendment may seem excessive; I doubt that the Secretary of State would ever need to set a levy at that rate, but it legitimises any levy he sets under that maximum parameter.

My Amendment 39 simply states that

“‘person’ includes bodies corporate including a holding company or special purpose vehicle”.

In reading the Bill and the government amendments, I think that where the Government have used “person”, it includes bodies corporate, so I will not labour that point. I would just like an assurance that in every circumstance where the Bill talks about the obligations on a person or a levy on a person, it would include bodies corporate.

My Amendment 78 seeks to insert a new clause into the Bill setting out what I call the “Fire hazard remediation objectives”. As I said about my Amendment 148, these objectives may not be perfect, but I am adamant that the general concept of them is.

This very important Bill started as a bit of a dog’s breakfast, amending various Acts and introducing the idea of a regulator—not a coherent Bill in itself but one that amends this, that and the other. However, since the Bill left the Commons, the Government have rightly—I approve of it—hijacked their own Bill by introducing all these amendments, which give the Bill a whole new importance. But they are scattered around it, and there is no coherence. That is why I repeat my Second Reading plea that the Bill team and the Office of the Parliamentary Counsel reorder this Bill for Report and put all the new clauses relating to leaseholder protection measures and perpetrator pay measures into two new parts at the front of it. It would not just be window-dressing; it would make a statement to all the companies involved in building construction that we, the Government and this Parliament, are taking very seriously all aspects of making the perpetrators pay and protecting leaseholders. I suggest that it would also make the Bill a dashed sight easier to read.