Pre-legislative scrutiny of the Building Safety Bill

We warmly welcome the policy intent behind the draft Bill and believe it to be a crucial step towards remedying the flaws in the building safety regime identified in the Hackitt report. Nonetheless, whilst recognising that it provides the framework for the new regulatory regime and must necessarily lack certain details, we agree that it relies very heavily on secondary legislation and that the absence of detail greatly impeded the process of pre-legislative scrutiny.

We urge the Government to include as much detail in the Bill itself or to publish the secondary legislation alongside it. It is especially important that this be done for core provisions such as the Gateways process and the regulation of construction products.

Moreover, any powers in the Bill to amend primary legislation should be included only where fully justified and necessary to implement the framework set up by the Bill. They should be limited to the minimum needed to make this new policy work rather than accommodate all future policy change. For example, if primary legislation might stand in the way of some future exercise of the power to make construction product regulations, it could be expressly amended or repealed now rather than swept away by Government under paragraph 16(1)(c) of Schedule 8.

We agree completely that those being given additional and sometimes onerous responsibilities under the Bill cannot reasonably be expected to implement its provisions and move to full compliance without sufficient and clearly described transition periods.

We recommend that the Government publish with the Bill a clear timetable for commencement so it is clear by when the industry has to demonstrate compliance and the Building Safety Regulator establish the regime. (Paragraph 20) Leaseholders and the building safety charge

We continue to believe that residents should not bear any of the costs of remediating historical building safety defects and are deeply concerned by the Government’s failure to protect them from these costs. We are especially disturbed by its commitment to protecting them only from “unaffordable costs”. It would be unacceptable and an abdication of responsibility to make them contribute a single penny towards the cost of remediating defects for which they were not responsible.

The Government must recommit to the principle that leaseholders should not pay anything towards the cost of remediating historical building safety defects, and, in order to provide leaseholders with the peace of mind they deserve, amend the Bill to explicitly exclude historical costs from the building safety charge.

It seems self-evident that responsibility for funding remediation works lies jointly with the industry and the Government. Whilst we welcome the assurances that Pre-legislative scrutiny of the Building Safety Bill 59 the Government is looking at potential financing options for recovering costs, in the short term we see no alternative to the Government itself, and therefore the taxpayer, footing much of the bill. We can think of no other means by which the necessary works can be carried out quickly enough.

The Government must announce, before they publish the Bill, its proposals for funding all historical building safety remediation works. These proposals should impose no costs on leaseholders and explicitly acknowledge that in the short term the Government must foot the bill, until such time as mechanisms for cost recovery have been developed. We also urge the Government to explore the options for reform of the law preventing building owners with no contractual remedy claiming against developers for defective construction more than 6 years old which has not caused damage. The New South Wales legislation offers a possible model.

The requirement to pay the building safety charge within 28 days of demand and the lack of effective consultation protection simply compound the unfairness, and potentially catastrophic consequences, of allowing leaseholders to be charged the cost of remedying historic defects. The 28-day deadline seems particularly unreasonable.

If the Government does not adopt our recommendation to protect leaseholders from all historic costs, we ask at the very least that it give them significantly longer than 28 days to pay the building safety charge and amend the provisions to make it clear that the consultation requirements should be dispensed with only in exceptional circumstances, even in the case of building safety works.

We do not think it necessary to establish the building safety charge separate from the service charge. Aside from the unnecessary additional bureaucracy and administration costs, a separate charge means additional, separate, bills for leaseholders at intervals and within periods which may differ from those in their leases. The same benefits of transparency (the Government’s justification for a separate charge) can be achieved by implementing our previous recommendation on standardised forms for service charge invoices.

The Government should provide for recovery of ongoing building safety costs through existing service charge provisions while improving the transparency of such charges, preferably by implementing the Committee’s previous recommendations for standardised forms for service charge invoices. The building safety charge should be reserved only for any leases without a service charge and should be treated as a service charge for the purposes of leaseholder protection. (Paragraph 54) The Building Safety Regulator

We strongly recommend that the initial scope of the regime be enshrined in the Bill itself, and not be left to delegated legislation, in order to give stakeholders the certainty they need to prepare for the new regime.

On balance, we consider the initial definition of “higher-risk building” proposed by the Government to be reasonable and practical, though we agree with the evidence calling for the scope to be widened in the future to include a great number of risk 60 Pre-legislative scrutiny of the Building Safety Bill factors. In particular, the scope should take account of the vulnerability of residents and their ability to evacuate the building. We also think the Government should keep under review the development of modern methods of construction.

We recommend that the Government specify in the Bill itself by way of a requirement to “have regard” the factors that must be considered in the future when the scope of the regime is expanded and that the ability of residents to evacuate the building be the principal factor. We also recommend that any requirement to have regard to the ability of residents to evacuate a building explicitly include both the vulnerability of residents and the number of means of egress. Finally, we recommend that the Government indicate its intention to review the scope and set a timetable for doing so.

We recognise that the definition of “building safety risk” is central to the scope of the regime and should be given careful consideration, but on balance we are satisfied with the current wording of clause 16. In particular, we judge that fire would be the main rapid onset event arising from an electrical or gas failure and that therefore these are probably already caught by the clause, although we would welcome clarification on this point, particularly with regard to gas failures that could result in explosion.

Given the importance of the right definition of “building safety risk”, we recommend that the Government clarify, perhaps in statutory guidance, the extent to which dutyholders need to consider risks arising from electrical and gas failures. We also recommend that the Government commit to keeping the definition under review.

We understand the argument for including property protection among the regulator’s objectives, but we are content that the list of objectives in the draft Bill is a sensible starting point, although we think that it should be kept under review.

We recommend that the Government keep the objectives of the regulator in clause 3 under review and that it consider including property protection among them once the regime has been established. To this end, we recommend that the Government take a power in the Bill to amend by regulations the list of the regulator’s objectives.

We recommend that clause 8 be amended to provide that the regulator must direct someone else to operate the system for the giving of building safety information and cannot itself operate that system.

We see no justification for the provision in clause 12 empowering the Secretary of State to abolish the Building Advisory Committee, the Committee on Industry Competence and the Residents’ Panel, and can see no circumstances in which this power would ever sensibly be used. We recommend that clause 12 be amended to delete the Secretary of State’s power to abolish.

We welcome the location of the regulator within the Health and Safety Executive and agree that it has the experience and expertise to implement the new building safety Pre-legislative scrutiny of the Building Safety Bill 61 regime. We are satisfied that the provisions in the Bill already mandate a regulatory model focused as much on inspection during construction as on sanctions for non- compliance.

We welcome the intention to fund the regulator through a system of charging and cost recovery, and we are satisfied that the Government and the HSE are working on the detail, but we agree they should publish that detail as soon as possible. We also welcome the Minister’s partial commitment to ringfenced funding for those functions of the regulator that cannot easily be financed by the market, although we would welcome a firmer commitment from the Government in that regard.

We recommend that the Government publish with the Bill the details of the charging regime that the regulator will operate to fund its regulatory functions, where cost recovery is practical, and commit unequivocally to ringfenced central funding to cover the cost of functions for which cost recovery will not be possible. (Paragraph 91) Design and construction

We are persuaded that the role of principal designer in the CDM regulations differs from the one envisaged for the new dutyholder regime and that this could cause confusion in the industry.

We recommend that the Government work with the industry to identify and resolve any potential confusion, including, if necessary, by redefining the role of principal designer intended under the proposed new dutyholder regime. We also recommend that the role be defined in secondary legislation and that this be published alongside the Bill.

We are persuaded that dutyholders at the design and construction phase could struggle to access professional indemnity insurance, although we think this will depend on how the Government chooses to exercise its powers in clause 38. For this reason, we believe that early publication of the general duties of dutyholders could help to alleviate concern in the industry and facilitate the development of appropriate insurance products.

We recommend that the Government consult further with the insurance industry and introduce the Bill only when it (a) can publish for simultaneous consideration draft building regulations showing how it will exercise its powers under clause 38 (dutyholders and general duties) and (b) has commissioned an evaluation of the availability of adequate insurance for all dutyholders, and reported accordingly to Parliament.

It seems to us that few measures are more important to raising levels of industry competence than a system of third-party accreditation and registration for design and construction professionals and that the Government must include provision in the Bill itself for the establishment and national oversight of such a system. (Paragraph 107) 62 Pre-legislative scrutiny of the Building Safety Bill

We strongly recommend that the Government include provisions in the Bill itself for establishing a national system of third-party accreditation and registration for all professionals working on the design and construction of higher-risk buildings.

We accept that the detail of the Gateways is best left to secondary legislation, but we think it is essential that this detail be published as soon as possible so that the industry can start to prepare for implementation. We recommend that the details of the Gateway process be published in draft secondary legislation at the same time as the Bill.

We are concerned that the Government’s proposed extension of permitted development rights would allow many building projects to bypass Gateway one and thereby weaken the whole regulatory framework for the design and construction of higher-risk buildings. We urge the Government, if it does proceed with its PDR proposals, nonetheless to find a way of retaining the benefits of Gateway one.

We are persuaded that Gateway process would be greatly enhanced by a requirement to appoint dutyholders before Gateway one. We recommend that the secondary legislation that will establish the Gateway process mandate the appointment of dutyholders before Gateway one.

We are concerned that the Bill only removes dutyholder choice in respect of higher- risk buildings. As a result, the majority of building control work will remain exposed to the weaknesses and conflicts of interest identified by Dame Judith Hackitt. We see no good reason not to replace dutyholder choice with a system of independent appointment for all out-of-scope work.

We recommend that dutyholder choice be removed entirely from the building control system and replaced by a system of independent appointment, and that this be made explicit either in the Bill or in secondary legislation to be published alongside it.

We understand the concern from the private building control profession about the conflict of interest arising from the regulator’s dual role as building control body for higher-risk buildings and regulator of the building control profession. While we recognise that starting afresh with this Bill would be time-consuming, this is an issue which needs to be addressed if there is to be public confidence in the new system.

The Government should provide clear justification for combining in one body both regulation of the industry and decision-making in relation to higher-risk buildings. If this is desirable, there must be a clear statutory requirement that those involved in decision-making about individual cases of professional competence are wholly operationally independent of those involved in regulation of higher-risk buildings.

We understand the argument that local authority building control teams should be audited in the same way as registered building control approvers, and we are only partially convinced by the provisions allowing for the duties of a failing local Pre-legislative scrutiny of the Building Safety Bill 63 authority to be transferred to another local authority. We think the Bill should make explicit provision for the regulator to monitor and assure the competency of local authority building control, perhaps by mandating UKAS accreditation for all LABC teams.

We recommend that the Bill place an explicit duty on the regulator to monitor and assure the competence of local authority building control teams through provisions comparable to those for the registration of building control approvers, perhaps by mandating UKAS accreditation for all LABC teams. (Paragraph 132) Occupation

We are concerned at the lack of detail in the draft Bill, or any draft regulations, identifying how the accountable person regime will operate in the case of multiple and complex ownership structures and repairing obligations, particularly where there are multiple accountable persons. This is another aspect which is crucial to the operation of the scheme of the draft Bill yet remains unworked. It will need to be scrutinised closely when the Bill is introduced.

We recommend that the Bill provide for a general duty to co-operate on accountable persons in respect of buildings for which there are multiple accountable persons and that the Government publish statutory guidance alongside the Bill setting out the sorts of behaviours that would be expected under such a duty.

We are concerned about how the relationship between accountable persons and responsible persons will work in practice and are disappointed the Government have not taken the opportunity to rationalise all aspects of building safety—at least as regards fire risk—within a single, consistent, piece of legislation.

In the short term, we recommend that the Government publish statutory guidance alongside the Bill outlining how it expects accountable persons and responsible persons to co-operate in practice. In the long term, we recommend that the Government review the operation of the two regimes with a view to rationalising and simplifying the legislation.

We believe that the Bill could easily mitigate the problem of some accountable persons lacking the time or expertise to understand their responsibilities adequately through the inclusion of a duty on the building safety manager to make accountable persons aware of their responsibilities under the Bill.

We recommend that the Bill place a duty on the building safety manager to inform the accountable person of their responsibilities under the Bill.

We think that the duty on the accountable person to take all reasonable steps to prevent a major incident lacks clarity and that without statutory guidance, especially on the meaning of “all reasonable steps”, the provisions will likely be a source of uncertainty and concern for those assuming the role of accountable person. We are also persuaded that the definition of “major incident” sets too high a threshold. (Paragraph 148) 64 Pre-legislative scrutiny of the Building Safety Bill

We recommend that the Government publish with the Bill statutory guidance describing the kind of actions that accountable persons will have to take to comply with their duty to “take all reasonable steps” to avoid a “major incident”. We also recommend that the definition of “major incident” be amended to include incidents that might reasonably foreseeably cause death or serious injury.

We agree that the safety case report is one of the most onerous responsibilities on the accountable person and that in order to prepare for implementation the industry will need to know what the safety case report will look like and what information it must contain. We therefore recommend that the Government publish guidance alongside the Bill outlining what information safety case reports will be required to contain.

We agree that the role of building safety manager and the supply of adequately skilled individuals to fill the role will be critical to the success of the new building safety regime for higher-risk buildings. We also agree that without sight of the competence framework the industry cannot begin to recruit and train individuals to fill the role and that unless the Government publishes the competence framework soon the implementation of these provisions will be seriously impeded.

The Government must announce before the Bill is published whether it intends to adopt the competency framework for the role of building safety manager proposed in the report from Working Group 8. If it does not, it must publish with the Bill the full details of the framework it does intend to adopt.

We think that a national system of accreditation and registration for building safety managers will be critical if stakeholders, particularly accountable persons, are to have confidence in the competence of persons undertaking that role, and that any accreditation should be done to agreed common standards.

We recommend that the Government provide, either in legislation or in statutory guidance, for a national system of accreditation to agreed common standards and for a central register of building safety managers.

We agree that building safety managers could well struggle to access professional indemnity insurance and that the Government must work with the industry to facilitate the design of appropriate products. We also think that early sight of the competence framework and precise responsibilities of building safety managers could help to alleviate concern in the industry and facilitate the development of appropriate insurance products.

We recommend that the Government work with the insurance industry to facilitate the development of appropriate professional indemnity insurance products for building safety managers. In particular, we again recommend that the Government publish the competence framework and the precise responsibilities of the building safety manager.

We agree that the lack of clarity in the Bill around the respective responsibilities, and therefore liabilities, of the accountable person and building safety manager could cause confusion and concern, especially where non-compliance could result in criminal sanction. (Paragraph 171) Pre-legislative scrutiny of the Building Safety Bill 65

We recommend that the Government publish statutory guidance alongside the Bill outlining the respective responsibilities of accountable persons and building safety managers.

We are concerned that resident engagement provisions could be too onerous a responsibility on accountable persons and that in many cases it would be done inadequately or not at all. We also agree that the Bill establishes a top-down model of engagement and that the formation of resident groups could both empower residents and lighten the responsibility on accountable persons.

We recommend that the Government consider facilitating, possibly in the Bill itself, the formation of resident groups in every higher-risk building and that these groups be required to include representatives of every type of resident in the building.

We think the power in clause 87 to order residents to give access is wide enough to cover the risks within the scope of Part 4, and the duties of an accountable person under clauses 72 and 73.

We would encourage the Government to consider making it clear on the face of the Bill whether the power in clause 87 includes authorising the use of force but express no view on the conclusion to be reached.

We agree that electrical safety should be an integral part of the building safety system and that the Bill is an opportunity to require regular electrical safety checks in higher-risk buildings. We are clear, however, that no further specific duties should be placed on the accountable person with regard to electrical appliances, as their existing duties are already extremely onerous, although they should be required through the engagement strategy provisions to inform residents of their duties under clause 86 and to provide guidance to facilitate their compliance with those duties.

We recommend that the Government include supplementary provisions in the Bill for mandating regular electrical safety checks in higher-risk buildings. (Paragraph 188) Construction Products and Supplementary Provisions

We strongly agree that there is insufficient clarity around the future product testing regime, although we acknowledge that discussions on the detail are ongoing. We recommend that the Government publish with the Bill its proposals for improving the product testing regime.

We are not persuaded that third-party certification alone would provide the transparency and accountability that we and the Hackitt report have previously recommended and still believe that details of test failures and re-run tests should also be made publicly available.

We recommend that the Government provide for the publication of test failures and re-run tests and for the establishment of an independent and unified system of third- party certification in order to introduce greater transparency and rigour into the regulation of construction products. (Paragraph 195) 66 Pre-legislative scrutiny of the Building Safety Bill

We recommend that the Government establish the capacity of the testing market in the UK and, if necessary, provide the necessary funding to increase that capacity so as not to hinder the implementation of the new product testing regime.

We are persuaded that schedule 8 fails to treat products as parts of systems, though we recognise that discussions on this point are ongoing. The future testing regime must assess a product’s performance in combination with other products as well as in isolation.

We recommend that the Government make provision, either in the Bill or in secondary legislation, for a testing regime that treats products as parts of systems, perhaps by mandating the provision of a certificate confirming how the product performs when combined with other products.

The construction products regulatory regime envisaged in the Bill and accompanying documents fails to recognise that a single product may have more than one application and that it might be considered safety critical in one application but not in another. Further, this weakness in the regime could be exacerbated by the apparent intention to designate product families, rather than individual products, as safety critical.

We recommend that the Government set out, either in the Bill or in secondary legislation to be published alongside it, how the regime will certify individual products, as opposed to product families, and take account of products with more than one application.

It seems obvious that the provisions in Schedule 8 for the designation of European standards are intended to cover products with European technical assessments. It is less obvious why schedule 8 refers only to “other overseas standards”. We understand why it has caused confusion in the industry, although we accept that there might be a good reason for the drafting.

We recommend that the Government make clear that the schedule as worded will cover such products or amend it so that it does.

We cannot judge the adequacy of European harmonised standards, but we agree with the industry that the Government should indicate soon whether it has any plans to review hENs and commission new standards. The Government should indicate whether or how quickly it intends to review existing European harmonised standards.

On balance, we are broadly satisfied with the scope of the new homes ombudsman and with the definition of terms establishing that scope, though we think that the Government should include among those permitted to make a complaint prospective buyers who are forced to pull out of a purchaser owing to the actions of the developer. (Paragraph 215) Pre-legislative scrutiny of the Building Safety Bill 67

We recommend that the Bill include among those permitted to make a complaint to the new homes ombudsman prospective buyers who are forced to pull out of a purchase owing to any behaviour by the developer that is itself grounds for a complaint. We also recommend that the Bill require developers to establish their own complaints procedures and to inform purchasers of their rights under the new homes ombudsman. Finally, we recommend that the Government monitor the performance of the scheme and amend its scope if necessary. (Paragraph 216) 68 Pre-legislative scrutiny of the Building Safety Bill