Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023

Lord Stunell Excerpts

Thursday 20th July 2023 Lords Chamber

This is not a static situation. I have seen suggestions that perhaps things will settle down in due course. How many years do noble Lords or the Government think it will take for this matter to settle down? How much grief do noble Lords think it is reasonable to visit on an often quite impecunious but entirely innocent part of the home-owing sector? I apologise for the length of my explanation, but those are the reasons why I think these regulations are a significant missed opportunity, which is why I tabled my amendment. I beg to move.

[Lord Stunell (LD)]

My Lords, I remind the House that my noble friend Lady Pinnock moved a regret Motion on 21 March on a previous version of this statutory instrument. She pointed out that the Government’s poor drafting had led to scores, perhaps hundreds, of innocent leaseholders having to foot a bill for remediation of fire safety defects that should have been paid by landlords. Your Lordships supported my noble friend, and the regret Motion was passed by 185 to 138. Today, the Government are having their third go at getting this particular set of statutory instruments right. They have been challenged in court, have had stern criticism from the Secondary Legislation Scrutiny Committee, and now have reluctantly come back with some amendments and clarifications, which the noble Baroness set out from the Front Bench very clearly a few minutes ago.

The Government’s statutory instrument that we are amending had four cases of defective drafting and one of ultra vires, and generated two judicial review cases, which is quite a hefty charge list. I think the Minister, in presenting to your Lordships in this debate, has been skating over some pretty thin ice, because she did not exactly acknowledge the pedigree, if that is the right word, of the document that the noble Earl, Lord Lytton, has brought to our attention today. She did say that she was leaving the door open to a fourth or fifth iteration of the document, and possibly primary regulation, if it turned out that it was even worse than she thought. That seems not a very satisfactory way to proceed with legislation in this Parliament. Sadly, it is not an unusual circumstance; a very high proportion of statutory instruments have to be corrected after the event—not necessarily corrected twice more, with a promise of more to follow.

In the debate in March, the Minister was not able to tell noble Lords how many innocent leaseholders had fallen foul of the first version of the defective statutory instrument. She did say, by way of mitigation of her offence, so to speak, that the liability of those leaseholders was limited and capped, and that it could not get any worse than them having to pay £15,000, which I am sure they found a great consolation.

The Government will, of course, eventually find out about those who have wrongly been charged more than £15,000 because, the cap having been exceeded, the cost falls back on to the Treasury. Is the Minister in a position to improve on the complete lack of information she had about the impact of the defects in the original version when she spoke last time? How many cases of charges exceeding the leaseholder cap have come to the attention of the department? What help and advice have been given to those who have found themselves in that position? It will be a pity if she says that she is disinclined to help rectify the errors exposed at that time.

I hope that we will get a bit more of an apology than the Minister was able to offer when moving the regulations at the beginning of this debate. I hope she can do a little better than the repetitive circumlocutions in the Explanatory Memorandum. I am pleased to hear that more explanatory notes are being issued, although I note that announcing it from the Front Bench in the debate on whether these are good regulations is rather late in the day for noble Lords to have absorbed what the new information contains. It may be that the Minister would like to say a little more about that.