Recommendation 3

HM Government Acknowledged

The Government agrees with the Committee that powers to amend primary legislation should be included only where justified and necessary. The power under paragraph 16(1)(c) of Schedule 8, for example, would have allowed the Secretary of State to amend primary legislation via construction products regulations. We have decided that this specific power is unnecessary, and we will remove it from the version of the Bill which is introduced. We have taken powers to amend primary legislation in a limited number of places. In the draft Bill, these powers (which are each subject to scrutiny under the affirmative procedure in Parliament) were: • Clause 12 – powers to amend or repeal the provisions in (Clauses 9, 10 and 11 of the draft Bill) creating the three statutory committees (the Building Advisory Committee, the committee on industry competence and the residents’ panel). • Clause 20(1) – power to modify how Part 4 of the Bill applies in relation to a category of higher-risk building. It allows for elements of Part 4 to be disapplied if they are considered unnecessary to manage building safety risk (for example because existing requirements already exist in law). This clause and the ability to amend the application of Part 4 allows the regime to be proportionate and targeted, allowing only certain requirements to be applied to certain buildings (in line with the risks they pose). • Clause 32 + Schedule 3 – power in paragraph 4(7) of Schedule 3 to the Bill to amend the ombudsmen provisions. • Clause 49 – power to amend sections 5 and 54 of, and Schedule 4 to, the Building Act 1984 for public bodies – this would enable amendments to the higher-risk building regime to be applied for specified public bodies. Currently these public bodies may supervise their own building work instead of the local authority, amendments could modify this for higher- risk building work.1 • Clause 60(5) – power to amend definitions of ‘occupied’ and ‘resident’, with regards to higher-risk buildings. • Clause 61(6) and (7) – power to modify Part 4 of the Bill where there is more than one Accountable person and power to amend the definition of the Accountable Person. • Clause 82(9) – power to amend what the residents’ engagement strategy must include. • Clause 86(8) – power to amend the duties that residents of a higher-risk building must comply with. • Clause 88 – s17H(6) includes a power to amend landlord obligations in relation to the form, content, notification, accounting structure of the building safety charge demand which could be served on the tenants (leaseholders) in higher-risk buildings. 1 A public body for this purpose is a body (corporate or unincorporated) that acts under an enactment for public purposes and for its own profit and is of a description that is approved by the Secretary of State in accordance with building regulations. To date, no such bodies have been specified in building regulations. 6 • Clause 96(7) – power to amend the subsection setting out the circumstances in which the First-tier Tribunal to make an order to appoint a Special Measures Manager. • Clause 110 + Schedule 8 – paragraph 16 of Schedule 8 includes a power to make amendments (including amending primary legislation) when making construction products regulations. This power will be removed from the version of the Bill which is introduced. • Clause 115 + Schedule 8 – power to make consequential amendments (including amending primary legislation) which arise from this Bill or regulations made under it. We will only take these powers where we consider it absolutely necessary to do so. In each case, the use of the power to amend primary legislation will be subject to the affirmative procedure to ensure Parliament will have sufficient opportunity to scrutinise and approve them.