An update: Report by the Housing, Communities and Local Government (HCLG) Committee on the pre-legislative scrutiny of the draft Building Safety Bill
A report by the HCLG Committee on the pre-legislative scrutiny of the draft Building Safety Bill was published on 24 November 2020. It sets out 67 conclusions and recommendations for MHCLG to consider as they continue to develop the Bill, secondary legislation and associated guidance.
The draft Building Safety Bill was published by the Ministry for Housing, Communities and Local Government on 20 July 2020. It is a mammoth Bill, comprising 119 clauses, five parts and eight appendices. It is also technically complex and is described by the Committee as a "framework bill", leaving much of the detail to secondary legislation. It is not surprising; therefore, that MHCLG took the considered approach of publishing it for the purposes of pre-legislative scrutiny and further consultation, rather than laying it direct before Parliament.
The Committee scrutinised the Bill, invited key individuals to provide witness evidence and received over 250 pieces of written evidence. In summary, the Committee has made 13 key recommendations for Government to consider for the development of the new regulatory regime. This summary notes that Government must:
- Provide detail: 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.
- Set out a timetable: 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.
- Protect leaseholders from costs associated with historical defects: 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.
- Provide funding proposals to cover the costs associated with historical defects: announce, before it publishes 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.
- Provide definitions: enshrine the initial scope of the regime in the Bill itself (eg include the definition of "higher-risk buildings"), and not leave it to delegated legislation in order to give stakeholders the certainty they need to prepare for the new regime.
- Confirm how the new regime will be expanded in the future: 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. Further, that any requirement to have regard to the ability of residents to evacuate a building explicitly includes both the vulnerability of residents and the number of means of egress. Finally, it must indicate its intention to review the scope and set a timetable for doing so.
- Implement a national accreditation and registration system: include provisions in the Bill itself for establishing a national system of third-party accreditation and registration of all professionals working on the design and construction of higher-risk buildings.
- Implement an independent appointment system for building control: remove duty holder choice from the building control system and replace it with a system of independent appointment, and that this is made explicit in the Bill or in secondary legislation.
- Address the "multiple Accountable Persons" scenario: include a general duty to co-operate on accountable persons in respect of buildings for which there are multiple accountable persons and that it publishes statutory guidance alongside the Bill setting out the sort of behaviours expected under such a duty.
- Co-ordinate the building safety and fire safety regimes: publish statutory guidance alongside the Bill outlining how it expects accountable persons and responsible persons to co-operate in practice. It should also review the operation of the two regimes with a view to rationalising and simplifying the legislation.
- Confirm the position on building safety manager competency: 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 full details of the framework it does intend to adopt.
- Accredit and register building safety managers: 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.
Introduce transparency and rigour into the regulation of construction products: 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.
HCLG has picked up and addressed the key gaps and question marks presented by the draft Bill.
Progressing these, however, is no small task and the need to preserve the policy intent behind the Bill whilst grappling with the practical and legal intricacies of current legislative frameworks and common practice will require clear foresight and a steady hand on the tiller to ensure that this Bill is brought home in a safe and timely manner.
We look forward to the publication of the revised Bill in due course.