Building Safety Bill (Ninth sitting)

Mike Amesbury Excerpts

Thursday 23rd September 2021 Public Bill Committees

[The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)]

It is once again a pleasure to serve under your chairmanship, and I welcome the Committee back to this final line-by-line scrutiny session before we go into recess again.

The Government are committed to ensuring that there is a stringent regulatory framework to enable the design and construction of better and high-quality homes while providing industry with the clarity and certainty that it needs. Dame Judith’s review found that unnecessary delays in the system must be minimised, and we wholeheartedly agree with that finding. The gateways and building control system have been designed to ensure appropriate consideration of building regulations compliance, including building safety, throughout design and construction.

Applicants in England are encouraged to work with the Building Safety Regulator to ensure that decisions are reached in good time or extensions are agreed, and the Building Safety Regulator will make decisions on a variety of matters relating to building control. They include deciding whether to approve or reject the following types of applications: gateway 2 building control applications, change control applications, gateway 3 applications and certain refurbishment applications. To provide industry with certainty for project and financial planning, the Building Safety Regulator will have prescribed periods in which to decide such applications.

Where further time is required—there may be occasions when that is necessary—extensions can be agreed between the regulator and the applicant. However, it is necessary to have an alternative route through which an applicant can get a decision on their application if the Building Safety Regulator has not issued a decision within the required timeframe and an extension has not been agreed, and clause 36 provides the legal basis for the Secretary of State, or a person appointed to act on their behalf, to make a decision on applications in England in such circumstances. We envisage that there will be very few applications that follow this path each year. Like applications decided by the Building Safety Regulator, there will be no set timeframe in which applicants can expect such a decision.

In Wales, failure by the building control authority to decide on an application relating to a higher-risk building will similarly allow the applicant to apply to the Welsh Ministers, or a person appointed by them, for a decision on the application. This is a means by which decisions can be expedited, and I commend the clause to the Committee.

[Mike Amesbury (Weaver Vale) (Lab)]

We agree with the Minister.

[Shaun Bailey (West Bromwich West) (Con)]

This is a really important clause. My right hon. Friend was rather succinct in his comments, but he touched on the balancing of the environment with the Bill. As we talked about in our previous deliberations earlier this week, we want to ensure that we can still have the environment in place in order to continue to build, because we still need to build homes and ensure that there is an adequate process in place. The important part of the clause, which links to other clauses that we have debated so far, is about ensuring that there is an adequate process in place to ensure that there are no delays and that we have adequate building taking place in an expedient manner.

We also need to ensure that those who want to play according to the rules, as I discussed on Tuesday, know how to do that and can ultimately have their matters determined in an expedient manner. I am sure my right hon. Friend will touch on that in his remarks when he responds later, but I want to ensure that in the clause we maintain the balance between a proper determination to ensure safety for leaseholders and residents and an expedient manner to determine applications, which will be important.

I will not talk about the impact in Wales. I commented on that during our previous deliberations, but I fully support the clause, which strikes the right balance in the underlying tensions in the Bill. I look forward to hearing my right hon. Friend’s comments in due course.

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The Government intend that these stronger powers will act as more effective deterrents for individuals and their corporate associates who wish to engage in non-compliant building work in the belief that they will not face any consequences for doing so. They will, and I commend the clause to the Committee.

[Mike Amesbury]

I should have said earlier, Mr Efford, that it is yet again a pleasure to serve under your chairmanship.

We welcome the increased regulation—the compliance and stop notices recommended by Dame Judith Hackitt in the independent review—but I have a couple of questions for the Minister. Will these powers given to the regulator apply to buildings that are 11 to 18 metres tall, and will compliant products be kitemarked for ease of inspection to ensure that they are compliant, or not?

[Shaun Bailey]

I should also have said in my previous contribution that it is a pleasure to see you back in the Chair today, Mr Efford, and I thank you for your indulgence during our previous deliberations. You are being very generous with your time in the Chair.

I have a few questions for my right hon. Friend the Minister as well, dovetailing with what the hon. Member for Weaver Vale just said. The one concern I have is about individuals who purchase their property pre-completion of construction—because that does happen in these settings too—and what protections we can devise for that. I have seen it happen before: people have put down a deposit or spent significant amounts of money on legal and transactional fees to get to a particular point. I heard what my right hon. Friend said, and I agree that we are talking about extreme cases of individuals who are flouting the rules or not following them, but my concern is that as we embed new sets of regulations, issues often become apparent quite commonly and quite quickly. I am sure that those of us who have been Members much longer than I have will have seen the array of issues that arise when new legislation comes into effect during its initial implementation.

My question to my right hon. Friend the Minister is whether he is open to a broader discussion about what we can do to avoid potential blockages in transactions as an unintended consequence of this. What we see is that people who are trying to let or purchase properties are left in limbo, with a back and forth for months on end, while stop notices are issued and remediation is done. Clause 37 seeks to ensure that remediation is taken, and, more importantly, that work in the initial process is compliant in the first place and we do not reach a situation where stop notices have to be issued.

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[Shaun Bailey]

I am grateful to my hon. Friend for his intervention. Dame Judith Hackitt’s review highlighted a shameful system. Putting in place a criminal offence shows that we will not and should not tolerate this shoddy behaviour any more, and nor should those individuals who have had to suffer the highest cost as a result of it. He is right in what he says in the spirit of his intervention. He listed the plethora of individuals who would be caught by this and I do not disagree that they should. People should not be able to hide behind the corporate veil and dodge liability. He is right that, in drafting the Bill, my right hon. Friend the Minister and his team have ensured that it is all-encapsulating. What we do not want to see—perhaps I am being optimistic, but I hope not—is individuals being able to dodge this.

[Mike Amesbury]

On a point of order, Mr Efford. For clarity, are we talking to clause 37 or clause 38, which is about offences?

[The Chair]

I am grateful for the point of order, but as far as I am concerned, the hon. Member for West Bromwich West is in order. He seems to be speaking to sections of the clause. I think you can take it as read, because I have not interrupted him, that he is in order.

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[Christopher Pincher]

A breach of building regulations can have serious consequences for residents in occupied buildings We saw that four years ago in the Grenfell Tower fire and we have seen it on other occasions. The independent review found that

“where enforcement is…pursued, the penalties are so small as to be an ineffective deterrent.”

That is why, to repeat some of the points I made to my hon. Friend the Member for Stroud, the Government are committed to ensuring that where building regulations are contravened, building control authorities have the necessary powers to enforce the rules and offenders receive a proportionate penalty for their non-compliance.

Clause 38, alongside clause 37, will provide a stronger deterrent to those doing building work and, where necessary, stronger sanctions for building control authorities to use. At the moment, offenders can only receive unlimited fines for their contravention of the law. Even where directors or managers are complicit in their company’s wrongdoing, they are sheltered from the consequences, a point raised by my hon. Friend the Member for Bassetlaw.

The new custodial sentence we are introducing serves to reflect the gravity of breaching building regulations and, alongside clause 39, which we will discuss shortly, brings the threat of imprisonment to any director or manager of a company who is found to be complicit or negligent in an act of non-compliance. We intend for the higher custodial sentence to operate as an effective deterrent against negligent, reckless or dangerous behaviour.

Where previously prosecution under section 35 of the Building Act 1984 had to be brought within two years, making the offence triable in a Crown court removes the time limit altogether, enabling building control authorities to prosecute breaches of building regulations even when they come to light much later. There is no longer a two-year limit to court action.

This clause goes further and makes clear that the section 35 offence applies not only to breaches of the building regulations themselves, but to requirements imposed under building regulations, such as conditions imposed as part of building regulation approvals. The increased coverage will send a signal that no requirement under building regulations can be ignored without consequences.

As with other changes we have already discussed, this provision aims to encourage those involved in building work to do the right thing and to disincentivise substandard building work. To return briefly to a previous debate, in order to make this absolutely clear, whatever planning route a building is subject to, all relevant building work must comply with building regulation, whether it is on a higher-risk building or otherwise, and whether it benefits from permitted development rights or not. The hon. Member for Weaver Vale made that point in our previous sitting and alluded to it in his previous contribution.

In addition, the extension of the enforcement period under section 36 of the Building Act from one year to 10 years will provide another effective route through which building control authorities can enforce building regulations. This clause responds to the review’s recommendation that the sanctions available under the Building Act be enhanced to enable building control authorities to act effectively but proportionately whenever they encounter non-compliance. They will now have stronger powers to ensure that all buildings are designed and constructed in line with regulations. I commend the clause to the Committee.

[Mike Amesbury]

We welcome the stronger sanctions, given the gravity of the consequences and the context, which the Minister referred to, of the tragic events of Grenfell over four years ago.

[Shaun Bailey]

I, too, welcome the clause. I wish to raise a couple of points with the Minister about the defences under proposed new section 35(2) of the Building Act, relating to instances where duty holders believe wrongly that another duty holder has reported an incident. It will be

“A defence to the offence of failure to report where the person being prosecuted was not aware of the occurrence which gave rise to the requirement to report”.

I want to ensure that the scope of the defences is as tight as it can be. Clearly, there is a balance to be struck. We are fully aware that incidents happen; human failure can happen and we cannot eliminate that, so we have to take account of that within the regulatory framework, but we need to tighten the circumstances where this defence can be used. I am conscious that there is a risk that developers will see this as an opportunity to do some finger-pointing and say, “It wasn’t me. It was him,” or, “No, he missed that and I missed that.” I know that is not the intention behind the defences under clause 38, but can my right hon. Friend the Minister assure me that there will be appropriate guidance on implementation and enforcement of the provisions of clause 38, which is really important?

We have an obligation to follow through on what Dame Judith Hackitt noted in her report, particularly about the regulatory landscape. Ultimately, we do not want people who have not done right by the people we are trying to protect to find some way of getting round things. I know my right hon. Friend has worked hard to ensure that does not happen, but given that the broader point of the clause is to send out a message, particularly through custodial sentences, that breach of building regulations is serious—we are dealing with human life, as we saw with Grenfell—I want to get some reassurance from him that he will tighten that up.

I welcome the enforcement period extension. I think that is right. My right hon. Friend touched on that in his comments, so I do not need to repeat that. If he can give me those reassurances, I will be immensely grateful.

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[Christopher Pincher]

My hon. Friend is quite right. As I said earlier, corporate liability is already provided for in other pieces of legislation—the Health and Safety at Work etc. Act 1974, for example. By embedding this clause in the Bill we remind corporate players—directors, managers and other appropriate senior parties in businesses—of their responsibility, and that their businesses and they themselves can be prosecuted if the standard of work or the actions that they undertake fall below the standards required in the Bill, which then allows for criminal prosecution.

The clause will further engender and embed the culture change that we all desire, so that at some point in the not-too-distant future these sorts of court actions will become a thing of the past, because all players act in a responsible way to ensure that buildings are designed, built and managed safely. I commend the clause to the Committee.

[Mike Amesbury]

I thank the Minister and other members of the Committee for their contributions. The clause responds directly to the Grenfell residents’ voices, which is most welcome. We had a situation where developers, subcontractors and the Royal Borough of Kensington and Chelsea put in inferior products and cladding, despite the recommendations for that building. We have seen that sort of thing littered throughout the industry, as people have said. The clause will act as a very effective deterrent, drive the culture change that we have spoken about, and apply the tragic lessons learned in recent years.

[Christopher Pincher]

I am obliged to my hon. Friends the Members for West Bromwich West and for Bassetlaw for their contributions, and to the hon. Member for Weaver Vale for his recognition that once again the tragedy of Grenfell has opened our eyes to issues in the sector, the loopholes in compliance, and the paucity of penalties, which we are now collectively attempting to rectify. By agreeing to the clause we are taking a significant step in ensuring that accountability for building safety lies with those who are responsible for it—individuals, corporate bodies, or the individuals in senior positions who make up those corporate bodies. I commend the clause to the Committee.

Question put and agreed to.

Clause 39 accordingly ordered to stand part of the Bill.

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[Christopher Pincher]

This is no back-door attempt to reduce standards now or to introduce poorer standards in the future. It is simply a necessary technical means of allowing standards to be introduced by overriding a now defunct Act; otherwise, we would not be able to repeal or change standards and regulations relating to it. For example, our future homes standard and, indeed, the future buildings standard go way beyond anything that was required of us when we were a member of the European Union or that is required of us under the European Communities Act. I assure the Committee that this is a technical change—a necessary legal and technical change—and not an attempt to reduce standards by subterfuge. With that, I commend the clause to the Committee.

[Mike Amesbury]

I thank the Minister and other Members who have made contributions. As the Minister said, this is a technical but necessary clause. He referred to the future homes and future buildings standards, and I would like to explore the interplay between the Building Safety Regulator and those up-and-coming standards.

[Christopher Pincher]

The future homes standard, which we will consult on and will legislate on in 2023-24 to introduce in 2025, will require all buildings built from that point to be at least 75% more carbon efficient than buildings built under present regulations. Importantly, they will also be zero carbon rated, so they will not need to be retrofitted as we change the electricity grid. Those regulations will be in force from that point—clearly, they are not law yet—and all regulators will need to have regard to them and will need to issue appropriate guidance once those changes are enacted in law, so that local authorities, the Building Safety Regulator and product manufacturers understand what needs to be embedded in product creation and the design and management of buildings, subject to the law as it stands.

I will conclude—unless anybody else wishes to intervene; I do not think they do—by saying that this is a very technical clause that is very necessary to ensure that we have a regulation landscape that we can properly manage. I commend it to the Committee.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Clause 41

Regulation of building control profession

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[Christopher Pincher]

This group of amendments deals with duties to co-operate and information-sharing powers between Welsh Ministers, fire and rescue authorities, local authorities and fire inspectors. Schedule 3, which we debated and disposed of on Tuesday, already contains very similar provisions for England. To reiterate, that schedule creates statutory information-sharing gateways and duties to co-operate between the Building Safety Regulator and other relevant public bodies. Furthermore, it allows local authorities and fire and rescue authorities to share information about building safety and standards and issues across all buildings, including buildings outside of the higher-risk regime regulated by the Building Safety Inspector.

Amendment 29 places duties to co-operate on Welsh Ministers and creates information-sharing powers for them, enabling them to work with other Welsh statutory bodies—fire and rescue authorities, fire inspectors, and local authorities. Sharing of information and co-operation are key elements in delivering the improvements that the Bill proposes. For Welsh Ministers, those duties and powers relate to their functions under part 2A of the Building Act 1984. Amendment 18 addresses the need for Welsh Ministers’ duty to co-operate and power to share information to be cascaded down where their functions in respect of building inspectors and/or building control approvers are delegated.

Amendment 25 removes the limitation on co-operation and information sharing between Welsh fire and rescue authorities, local authorities and fire inspectors, so that it is no longer restricted to higher-risk buildings only. Those bodies will work together across the whole range of buildings in Wales.

Amendments 24, 28 and 31 clarify that the duties to co-operate and powers to share information apply to Welsh fire and rescue authorities, as defined by amendment 33, and fire inspectors, defined by amendment 30. Amendment 34 mirrors clause 26, which we have already discussed and voted on. It confirms that information sharing under this provision must comply with the data protection legislation, so that people’s privacy rights are overridden only in certain specific circumstances. Amendments 23, 26, 27 and 32 make the consequential changes necessitated by the substantive amendments.

I am sure that Committee Members have followed all those amendments very closely, and I commend them to the Committee.

[Mike Amesbury]

Again, these are very technical but necessary amendments, which ultimately simplify and unify building control legislation, processes and procedures, and enforcement.

[Christopher Pincher]

I am grateful for the hon. Gentleman’s support. I commend the amendment to the Committee.

Government amendment 18 agreed to. 

Question proposed, That the clause, as amended, stand part of the Bill.

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[Christopher Pincher]

We want to make sure that such a body has the right sanctions available to it. We want to give it a robust set of powers to investigate performance and, where appropriate, impose escalating sanctions. In the most serious cases, the powers will include the cancellation of the registration of the building control approvers. It will mean potentially the effective taking over of the function of a local authority building control by appointed officers from another local authority. We want to give the regulator the tools to ensure that building control bodies are improving safety and performance, driving up standards, and that, where they themselves are not performing, there is a means by which sanctions can be applied. Clause 41 is essential to creating a more robust and competent building control sector, and I commend it to the Committee.

[Mike Amesbury]

As the Minister says, this will raise the bar and raise the standards of building control throughout, as recommended by Dame Judith Hackitt and the review. It will do so through its process procedure and, very importantly, enforcement and deterrent. One of the concerns the Opposition raised with other clauses is the potential to have a two-track approach to building control with buildings below 18 metres. What assurances can the Minister give that that will not be the case and that standards will be raised in buildings that are below 18 metres, say, from 11 to 18 metres?

[Shaun Bailey]

I, too, welcome clause 41 and its effect on the Building Act. I want to raise a point with my right hon. Friend the Minister around clarity. We will effectively have two bodies in England and Wales that will deal with this. In England it is the regulator itself and in Wales it is Welsh Ministers. I would be grateful if he will confirm that he will ensure that his Department will keep that discussion ongoing. The importance of the clause, as with the rest of the Bill, is to ensure consistency. We talked in previous deliberations about cross-border work. We need to ensure that the professionals who would sit within this regime have consistency and are conducting work across the English-Welsh border to ensure that we keep the market going and continue to meet those home building targets.

I agree that the Bill is long overdue. As the hon. Member for Weaver Vale pointed out, it is about raising standards and ensuring that the profession knows what is expected of it. There is a broader point to be made on communication: making sure the points contained within clause 41 are communicated clearly, not just within the profession but more broadly. We have talked about how the impacts of making these regulatory and standards changes need to be communicated with the sector and with training providers, but they need to be communicated with the industry more broadly. If that is not done, we might have a situation in which people enter the industry without necessarily being clear about where they need to be. I would therefore ask the Minister to be sure that his Department continues to engage.

Considering the issues, the measure is long overdue. It is common sense and something that any other regulated profession would do. There is detail about the power to have investigations, and again we need to ensure that that system works and that the regulator is in place for that, in particular for proposed new section 58H—that system must flow properly. Sanctions, too, must be proportionate. The clause is a significant one, so I will not go into every single element of it, but will the Minister ensure that its implementation is reviewed and that we continue the discourse on it, notably on proposed new section 58I on sanctions for professional misconduct?

The regulator must ensure that it continues those discussions of what is appropriate. As we have touched on in other deliberations, circumstances change and things develop. I reiterate that to the Minister, and I ask him to ensure that his Department continues those communications, that the expectations of the industry are communicated and that under the mandate of clause 41 the regulator continues its conversations with Welsh Ministers, so that we can have consistency—that will be key, given its cross-border nature. We must ensure that the clause is implemented so it is how we want to see it work. I am sure he will, but I will be grateful for his reassurances.