Whilst Covid-19 will no doubt continue to dominate the headlines well into 2021, building safety will remain one of the central issues of this year.
The progress of the Grenfell Inquiry has certainly been slowed by the pandemic of the past ten months. Phase 2 of the Inquiry examining the causes of the fire began at the start of 2020 but, with Covid-related delays meaning it will continue into 2021 and the Phase 2 report unlikely to be published until 2022, we currently lack definitive direction for a post-Grenfell regulatory regime, with the exception of the ban on combustible cladding in buildings over 18 metres.
The Building Safety Bill, published in July 2020, is currently making progress through Parliament in draft form but is not expected to come into force until late 2021. The draft Bill has recently been scrutinised by the Housing, Communities and Local Government Committee.
Readers of our earlier articles on the draft Bill will be aware that it envisaged the introduction of significant amounts of secondary legislation would be required once the Bill became law, in order to put its intentions into practical effect. The Committee was critical of the lack of detail in the draft Bill and its reliance on unpublished secondary legislation. The Committee has recommended that when the final Bill is introduced to Parliament this lack of detail is rectified to allow the construction industry to plan with certainty for the new regime. The committee also suggested that greater clarity be provided on when the new regime will come into effect via this secondary legislation, as opposed to simply when the Bill becomes an Act of Parliament. There is currently no guidance on what sort of transition period (if any) will be provided for.
In particular, the Committee recommended that if the Bill itself is not to include a greater level of detail, as much of the intended secondary legislation as possible is published alongside the final Bill, together with a timetable for the launch of the new regime. The Committee also suggested that the definition of "higher risk buildings" is set out in the Bill itself rather than in explanatory notes, and that the Bill should detail the other risk factors that will be taken into account in the future when the scope of the Bill is expanded. Amongst other recommendations, the Committee also recommended that greater details of the competency framework be provided for the new role of Building Safety Manager to facilitate recruitment and training in advance of the new regime.
The decision on how to respond to the Committee's comments, and the extent to which the detail of the Bill will be improved, now rests with the Government. Thereafter, the Bill will be formally introduced into Parliament, which is expected to be during 2021. Until then the construction industry is faced with continued uncertainty as to the measures it should be putting in place to facilitate the transition to and ensure compliance with the new (and currently fairly unclear) regulatory regime. The decision on how to approach this situation contractually on each new project is very much something to be assessed on a case by case basis, in conjunction with educating and training staff, and we would advise the issue be considered specifically at as early a stage as possible and certainly before a first draft contract is circulated.
