Levelling-up and Regeneration Bill

Lord Stunell Excerpts

Consideration of Commons amendments
Monday 23rd October 2023 Lords Chamber

Moved by

[Lord Stunell]

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 231A and do propose Amendment 231B to Lords Amendment 231—

231B: In subsection (5)(a), at end insert “except as necessary to permit their transfer and incorporation into any body established under subsection (2)(a) or (2)(b) of this section””

[Lord Stunell (LD)]

My Lords, I thank the noble Earl, Lord Howe, for his kind words and for the time that he devoted to this particular aspect of a very long and complex Bill. Nevertheless, it is regrettable that he has not yet seen his way to accept the sensible and reasonable amendment that noble Lords sent back to the Commons on Report. Its purpose was to safeguard the rigorous safeguards built into the Building Safety Act 2022, which this House was united in supporting and which was designed to establish a robust regulatory regime that would ensure there was never another Grenfell Tower disaster. Less than 12 months later, and before the new regulatory regime even comes fully into force, the Government are giving themselves and their successors sweeping powers to rip it up—save only for a very flimsy affirmative Motion on a statutory instrument as a defence.

The modest amendment your Lordships sent to the Commons simply required the Government to accept that, if they wanted to change the fundamental structure and mechanics of delivery of the building safety regime, that must be justified to and approved by Parliament. The Government’s response, which the noble Earl has just repeated, is that they do not want to change the fundamental structure and delivery of the building safety regime. All they want to do is take it away from the Health and Safety Executive, lock, stock and barrel, with no changes at all, except in the nameplate and the branding. If that is true, the amendment before your Lordships today is exactly in line with their intentions.

Motion X1 picks up the point the noble Earl made about the original amendment to the Commons—that it was flawed because the wording would obstruct the transfer of the statutory committees from the HSE to the new, completely unspecified and unknown safety regulator. The revised wording in Motion X1 therefore makes it clear on the face of the Bill that it will be lawful to make that transfer. This amendment is designed simply to avoid changes in how the new regulator is structured and organised and to prevent changes to the tasks that are entrusted to it and the statutory committees that underpin its work. The amendment, if agreed, would ensure that the Government’s replacement regulator retains those duties and timescales: for instance, to review the regulations relating to electrical fire safety, the safety of staircases and ramps, safe escape routes for people with mobility issues and fire suppression systems such as sprinklers.

There is other detail, but in the interests of time I will simply say that the original arrangement in the Building Safety Act was that those committees and tasks could be changed only by the Secretary of State if he or she received a proposal from the regulator to put into place. That was because it was seen as very important that the regulatory regime should never again be captured, as it had been in the past, by departments and Ministers taking short-term political decisions, and that the regulator would always be able to independently assess needs to improve safety and then make recommendations in public to Ministers for them to decide on action.

The noble Earl has offered us a sincere undertaking that, at least for the time being, nothing will change; that Ministers will not be tempted to steer away from making essential safety improvements that they deem politically difficult or a bit too costly; and that they will faithfully press ahead without delay when those fire safety reports come in, however revealing and unwelcome they prove to be. Of course the noble Earl is absolutely sincere, but I say to him that Ministers and Secretaries of State come and go, and the sincerest of undertakings can be withdrawn when the facts are said to have changed. The accountability given by an affirmative resolution is tenuous.

I urge the Minister to retain the progress made during the enactment of the Building Safety Act by safeguarding those statutory committees, reinforcing the obligation for those long-awaited safety studies and making sure that the three-year timescale is retained. The way to do that is for him to say that, on mature consideration, he will accept Motion X1. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I will speak to Motion ZC1 in my name. I pay a heartfelt tribute to my noble friend for the real progress that has been made since we last discussed this matter in helping qualifying leaseholders who extended their lease after the Building Safety Act came into effect. In a nutshell, the Act extended protection to qualifying leaseholders against the costs of remediation. However, inadvertently, it said that, if you renewed your lease after it came into effect, you lost that protection.

The Government recognised that there had indeed been a mistake and, on Report, I moved what is now Amendment 243, which would retrospectively have put the leaseholders who extended their lease back within the protection of the BSA. At the time, before the Bill went back to the other place, my noble friend resisted my amendments and said that the issues require

“very careful legal dissection and working through, and that is what we are doing”.

When I summed up, I said:

“In a nutshell, the Government made a mistake when they drafted the Building Safety Act. Unwittingly, they have removed the protection that some leaseholders were entitled to. They have known for months that there has been this defect, and I do not accept that the defect is so complex that it cannot now be put right. That is what my amendment does. I seek leave to test the opinion of the House”.—[Official Report, 18/9/23; cols. 1248-95.]


I do not know what my noble friend said to the department when he got back, but what had previously been impossible to do within the context of the Bill suddenly became possible. I am grateful to my noble friend for tabling Amendments 288A, 288B, 288C and 288D, which, in effect, do what I asked the Government to do last time. As I said, I am grateful to my noble friend for the pressure that he put on the parliamentary draftsmen to correct an injustice that had unwittingly been perpetrated.

Against that background, it might seem churlish of me to have tabled Motion ZC1, but there remains a problem: leaseholders who extended their leases, and therefore lost the protection of the BSA, will have received invoices and bills for payment, and some may have made payments. As drafted, the government amendments do not entitle those qualifying leaseholders to a refund. I am grateful for the Public Bill Office’s help in drafting my Motion ZC1—I hope that will inject a note of caution into any remarks that the amendments are imperfectly drafted. The Motion seeks to say that, in those circumstances where a qualifying leaseholder has already paid the remediation costs, but need not have, they are entitled to a refund.

Under the Government’s amendment, there is a provision whereby the Government have powers, under regulations, to make certain provisions. I want my noble friend to answer a question that was put twice in the other place. The Opposition spokesman on housing, Mr Pennycook, said:

“we welcome the concession that has been made, albeit with one proviso: Ministers must take steps to ensure that leaseholders who paid service charges over the past 15 months in the belief that they were not eligible for the leaseholder protections under the Act, because of the Government’s mistake, are reimbursed. Those individuals should not suffer financially as a result of a drafting error that should not have been allowed to occur in the first place. If the Minister—I hope she is listening to this point—can provide us with some reassurance on that point, we will happily accept the Government’s amendment in lieu”.—[Official Report, Commons, 17/10/23; col. 199.]

My honourable friend the Father of the House, Sir Peter Bottomley, made the same point.

In winding up, Rachel Maclean was under tremendous time pressure because of the timetable Motion in the other place, and she was not able to answer either of those two questions. So if my noble friend is unable to accept my amendment, as he implied, I ask him for an assurance on the provisions of his amendment, which enable certain regulations to be made in proposed new subsection (11):

“The provision that may be made in regulations under this section includes … provision which amends this section; … provision which has retrospective effect”.


Can he assure me that, if a leaseholder has paid a bill and need not have, my noble friend will use the powers under his own amendment retrospectively to entitle that leaseholder to a refund? That is the import of my amendment, which I do not wish to press to a Division—but I hope that, in return, my noble friend will be able to give me that reassurance.

My noble friend’s Motion ZC knocks out a whole range of amendments that were passed without a Division in this House and that extended protection to non-qualifying leaseholders. These are basically leaseholders living in buildings under 11 metres; enfranchised leaseholders, who are counted as freeholders for the Act; and those who own more than three properties in buy-to-let investments. There are real problems: people in buildings under 11 metres get no protection at all, cannot get a mortgage and cannot sell. They have to pay the cost of remediation, because that is the only way that the building can get insured. They face exactly the same problems as people in buildings over 11 metres, but they get no protection at all. There are also leaseholders who, following government advice, enfranchised and became freeholders. Despite assurances I was given by the then Minister that they would be treated as leaseholders, the Bill treats them as freeholders and denies them the protection extended to leaseholders.

There is also the problem of those who have buy-to-let properties. A person who owns a £1 million property and other properties overseas is protected, but someone who owns three properties worth £100,000 each gets no protection at all. People who jointly own a property with their husband are counted as wholly owning. There is a whole range of outstanding issues from the Building Safety Act that I understand cannot be addressed in the Bill, but, again, I hope that my noble friend is able to say that, in the proposed leasehold reform Act, it will be open to the Government to reopen these unresolved problems in the BSA and that legislation will be proposed to address at least some of the issues arising from the BSA that I have outlined and that I believe remain unsolved.

In conclusion, I thank my noble friend again for his efforts in response to my original Amendment 243, but I hope he can give me the assurances I seek for leaseholders who have paid bills that they need not have.

--- Later in debate ---

However, as the noble Lord will know, the evidence heard through the Grenfell Tower inquiry has made it clear that government must develop an effective role as system steward for the built environment, and we have committed to doing so. Our approach to regulatory institutions is central to this. It may require longer-term reform, which could include consideration of building-related regulatory functions, or the simple relocation of the existing building safety regulator functions as created by the Building Safety Act to another existing or stand-alone body. I therefore ask the noble Lord not to press his Motion X1.

[Lord Stunell (LD)]

My Lords, I thank the Minister for his response. I heard his reassurances and I understand his good intentions. I believe that this is a fundamental mistake, but I understand that it is necessary to make progress this evening. I hope that we will not live to regret this. I have to say that there will be some bad actors in the construction industry who will be only too grateful for the moves that the Government are making. I hope that the Government and the regulator will stay alert to the activities of such bad actors and ensure they do not exploit the gaps which are now opening up. With that said, I beg leave to withdraw my Motion.

Motion X1 withdrawn.