Building Safety Bill

Lord Stunell Excerpts

Committee stage
Thursday 24th February 2022 Grand Committee

These provisions really want tightening up. I am glad that the Minister recognises that this is a problem, because I think we are all on the same hymn sheet here. We want to sort this out. There are people producing a product and people who are consumers of it, and it just so happens that in a large number of cases they are people in their own homes. We need to get this sorted. That is why I support the amendments in the name of the noble Lords, Lord Blencathra and Lord Best. I will not say anything about the Minister’s amendments because that would take me too long. On the whole, they appear to be technical and tidying-up amendments, and I am happy with that.

[Lord Stunell (LD)]

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

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

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

[Baroness Hayman of Ullock (Lab)]

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

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

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

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

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

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

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

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

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

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

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[Baroness Harris of Richmond (LD) [V]]

My Lords, I will be brief and I, too, wish to speak to the amendments in the names of my noble friends Lady Pinnock and Lord Stunell. I strongly support them.

At Second Reading, I commented on the large number of people who are going to be accountable for the safety of buildings when the new regime comes into force. My main concern was around the person described as the “principal accountable person” because I felt that that person had just about everything to do with the safety of buildings and that that responsibility would rest on that person’s shoulders. I was interested in the comments of the Royal Institution of Chartered Surveyors and the Chartered Institute of Building, which stated that the industry did not yet have qualified individuals who could undertake such incredibly important and probably statutory duties that the position would necessitate. Perhaps I may therefore ask the Minister what the Government are going to do to help the industry find those people and how they propose to go about training them with the necessary skills that will be required.

[Lord Stunell (LD)]

My Lords, I obviously support what my noble friend Lady Pinnock said in relation to the training and independence of building inspectors. That is perhaps the most obvious of the necessities which we now know exist, as far as plugging the gaps in the current regime is concerned.

I want to focus my remarks on Amendments 116 and 119A, where mine is the lead name and which deal with fire risk assessors. We have never had before, in capital letters, something called “Fire Risk Assessors”. There is no such profession and this will clearly be a significant gap, which has to be filled very quickly if we are to achieve the aims of the Bill. We know that, right across the industry, there are shortages of skills, qualifications and competence. Above all, there is a shortage of capacity. One problem that I know the Minister has had to confront is that it has been difficult to get effective surveys of high-risk buildings because the people have not been available to do them. There are no such people, or at least insufficient people, with the right competences, skills and so on to do so.

I do not know whether the Committee will have seen the reports of the fire risk assessment that was done in advance of the Grenfell fire. The housing association had a fire risk assessor and he made a fire risk assessment. It turned out that he was a firefighter but not qualified in fire risk assessment. In order to secure the job, he had manufactured a set of initials which were accepted by the housing association as proof of his skill and capacity to assess fire risks. This is reported in the public evidence sessions of the Grenfell inquiry. It was further revealed that he was commissioned not just to assess the Grenfell Tower; he was commissioned by the housing association to be its risk assessor for the whole of the housing stock of that organisation.

That is where the importance of having a register becomes immediately apparent. You need a register of qualified people for two reasons, which overlap: first, you are not allowed to practise as an assessor unless you are on that register; secondly, as a purchaser of the skills of fire assessment, for instance a housing association, you need to be sure that the person who offers you a cheap deal to do some quick fire assessment work is somebody who is qualified, prepared and competent to do so. Amendment 116 is trying to establish clearly in the Minister’s mind the need to make this process of regulation transparent, with a publicly published register. We are obviously probing at this point, but I hope the Minister can give us some satisfaction that, if not in the Bill then in parallel with it, these matters will be dealt with.

What I have said about fire assessors may be the most dramatic and acute of the problems, but the building control function was of course also exposed as woefully insufficient in the case of the Grenfell Tower. Bearing in mind that it was a local authority building control function being exercised, it is also true that the person who was the responsible officer did not once visit that tower to make an inspection. It was purely from a desk study of drawings which had been provided to him. There is clearly a tremendous gap. Even when somebody is appointed to do a job, they may not have either the skills or competences, or they may not have the attention span or the time, to give effective service to the cause of fire safety. I hope very much to hear from the Minister that he takes these matters to heart and has in mind finding a way of establishing how this can be put right.

Our Amendment 119A is about training of fire assessors on the same basis as the noble Baroness, Lady Pinnock, moved on the training of building inspectors. Every one of the professionals engaged in this fire safety regime needs to be a qualified and competent person. That is so obvious that it hardly needs to be said, but at the moment we are woefully short of the number of people we need. Indeed, it has already been referenced that the RICS and others have pointed out that, at the moment, there are not enough people with the competencies to step forward if the Bill comes into force as the Minister intends.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very sympathetic to this group of amendments, but I have a number of queries that perhaps the noble Baroness, Lady Pinnock, might address, just because I am not quite sure about them. One of the points just made is that a large number of people will be accountable —it seems to me to grow every time I look at the Bill. Although I understood what the noble Baroness, Lady Brinton, meant about the bonfire of bureaucracy, regulations and so on, there is always a danger that we are creating layer upon layer of bureaucracy and accountable people. I shall be moving some amendments later to this effect.

For now, it is obviously the case that we need qualified people involved in this, but, as has been described, there are so many new roles that the qualifications do not even exist. I am concerned about including in the Bill that you need to have the qualifications to do the role when the qualification does not exist. What does that mean? Will that hold up the process?

I am also concerned about saying that training is “compulsory”. I am concerned for the professional autonomy and integrity of those who are already involved in this area. I do not know whether legislation is the right way to go. However, it would be useful to understand from the Minister what he anticipates will happen. It cannot be, as it were, just any old Joe Bloggs given the role. Will attention be paid to talking to the professionals who already run practice qualifications in universities and further education? How will the Government manage the fact that they are creating all these new jobs with no attention, it seems, to how the qualifications will be awarded or who will give them? That is where I am very sympathetic to the noble Baroness, Lady Pinnock, in having a register, but I am not quite sure that the amendment does it.

I am nervous, perhaps because I used to be involved in education, about another government demand on education that ends up giving people a lot of work to do when there is no capacity to do it, so it will just be a shoddy box-ticking qualification that will not mean very much. That is my concern, while being sympathetic in general.

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[Baroness Scott of Bybrook (Con)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Stunell (LD)]

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

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[Baroness Pinnock (LD)]

I know we have a fuel crisis, but it is bracing in here; I should be used to it, coming from Yorkshire.

We have come a long, positive way since we debated these issues on the Fire Safety Bill. Moving from one or two voices across the House pushing the concerns of leaseholders to reaching a place where there is agreement that there must be a government-led solution to their trials is hugely welcome. I pay tribute to the cladding campaigners, who have never given up and have pushed us all into the position where we are debating this today.

I have a couple of process points first, before I comment on some of the issues raised. First, I agree with the plea from the noble Lord, Lord Blencathra, that on Report we perhaps have a new part to the Bill that puts all these amendments relating to the remediation of defects in one place. That would be hugely helpful, now but definitely in future, as the industry has to respond to whatever is decided. It would create clarity.

The second point to make is that we have again had welcome but last-minute amendments from the Government without a written Explanatory Memorandum. It would be really good to have something we can all have a look at before Report. An impact assessment would help as well. In particular, a very brave amendment is proposed by the Government about blocking developers, even when they have planning consent, if they do not pay up. That is a really radical proposal, and I should welcome an explanation of how it might work and an impact assessment.

The final process question is that we have had before us today three key proposals to try to tackle the question of who pays for the 30 years of fire safety defects and building safety defects. The series of amendments from the noble Lord, Lord Blencathra, tackle the same issue. There surely has to be a better way of trying to find a common, workable solution that we could agree to than debating it in a formal way. If we are all agreed that this is the direction of travel, let us work together to try to find it rather than have a formal debate. I leave it to others who know processes much better than I do to decide how that might be.

I want to make a few comments on what has been proposed. The noble Lord, Lord Young, reminded us that in January the Secretary of State finally made a dramatic change to the debate we have been having and said that leaseholders should not pay. I want to keep to that, as the noble Lord, Lord Young, was intent on doing. He pointed out that there are gaps in what is being proposed. As I have consistently said, the leaseholders are the wholly innocent victims of this debacle. On this side, we will back proposals that can guarantee that leaseholders do not have to contribute a penny piece to fire safety and building safety defect remediation.

I thank the noble Lord, Lord Young of Cookham, and the noble Earl, Lord Lytton, for their valiant attempts to seek a means of achieving the justice we are all looking for by providing alternative approaches. The very fact that the amendments have had to be tabled indicates that the Government’s attempt—though it is a huge step forward; I acknowledge that—does not succeed in achieving the aim that I espouse, which is that leaseholders pay nothing. That is going be my new phrase: leaseholders pay nothing. The noble Lord, Lord Young of Cookham, and the noble Earl, Lord Lytton, pointed out the gaps in the Government’s amendments, and we ought to listen very carefully to that because, as I say, we are all trying to get to the right place here.

The key question is: how do we extract the money from the people who have caused the problem? Unfortunately, we have no indication from the Government whether the levy system and the penalties for failing to pay will, first, raise sufficient funding to pay for it all. Secondly, we have no indication whether it will be watertight. We know that developers are already seeking legal advice as to how these levies and responsibilities can be circumvented, and material manufacturers are going down the same route, as will contractors and subcontractors. Litigation will ensue and the risk is that the work fails to be undertaken because no money is raised. That is unfortunately where this might lead if we are not careful.

I cannot remember if it was the noble Lord, Lord Young of Cookham, or the noble Earl, Lord Lytton, who said that time is of the essence for these folk. Some of them have already got cladding off and sheeting up in this awful weather, and the building replacement work has stopped because the funding and who will pay is not clear. Leaseholders have already suffered five years of their lives being on hold and their property having no value while those who caused the problems could well be left to fight it out in the courts. I thought the amendment in the name of noble Lord, Lord Young, dealt quite well with that. Maybe that is something the Government can pick up.

I accept that this is a very complicated issue to resolve, which is why, with my zero technical expertise, I have not tried to resolve it through detailed amendments to this Bill. I am full of admiration for those who have spent time trying to find a way to make perpetrators pay. In the end, I fear that the Government may have to step in, fund the remediation so that we get something done and then use their might to extract the funding from those who caused the problem. I look forward to what the Minister is going to say in response to these critical amendments. I want to hear from him on how the Government will ensure that remediation work will be completed within a tight timescale, whatever that is. “Shortly” is a key word that the Government use, and I always worry about it. “In due course” is another.

[Lord Stunell (LD)]

That is worse.

[Baroness Pinnock (LD)]

Yes. “Drectly” is what they say in Cornwall, which means “This year, next year, some time never”. I should like a bit of clarity. Timing is key. I should like to hear what the Minister is going to do about trying to get it done. How will we stop the developers and all those who we are going to try to get the money from through a levy wriggling out of their obligations? That is one of my fears in all this. Then there is the rate of the levy. Can we be given assurances that the rate will be of a sufficient level to pay for the remediation? That is key. I know that the Minister cannot give us a figure, but a broad brush assurance that the levy is going to do it would be good.

Retrospective compensation for those leaseholders who have already paid out should be considered. Some folk have gone bankrupt because of this. That is because it took time to get everyone together to deal with the problem. I know that retrospective compensation is hard to do, but we are putting back the clock 30 years in looking at these defects. If we can do that, we can look at retrospective compensation.

Leaseholders should pay nothing—that is where I am. We on this side support an amendment that gets there. As I say, I am full of admiration for people who, with their expertise, have tried to bring the Government to the place where they need to be. If the Minister is going to say yes to all these things, we will all leave happy.