10th January 2022


Between 9 September 2021 and 26 October 2021 the Building Safety Bill was considered by the Public Bill Committee for the Building Safety Bill.

A Public Bill Committee is appointed by the Committee of Selection having regard to qualifications of MPs and to the composition of the House and so this committee had a Conservative Party majority. Principal participants included Rt Hon Christopher Pincher MP, Minister of State for Housing; Eddie Hughes MP, the Undersecretary of State for Housing, Mike Amesbury MP the Shadow Minister for Housing and Daisy Cooper MP, Liberal Democrat Spokesperson for Health, Wellbeing and Social Care.

It should be noted that part way through the Committee Stage the Secretary of State in charge changed: Mr Jenrick MP returned to the back benches.  Mr Michael Gove MP was appointed  Secretary of State in the newly named department of Levelling Up, Housing and Communities on 15 September 2021.

First to Fourth Sittings

The first and second sittings took place on 9 September 2021 and the third and fourth sittings took place on 14 September 2021. Evidence was heard from a large number of industry participants –  a table appears at the end of this note.

Themes included the following:

  • The use of 18m as the key definition of whether a building is high risk is not adequate. Other premises may be high risk. The identity of people using the building will also affect risk. See Mr Daly (National Fire Chiefs Council), Councillor Renard and Mr Wrack (General Secretary of the Fire Brigades Union).
  • Mr Daly thought that the Building Regulations Approved Documents had fallen “woefully out of date with modern methods of construction”.
  • Mr Taylor complained that the market for building regulation was unfair, in that private approved inspectors could compete on price, whilst local authority inspectors can only charge on what it costs them to deliver the services.
  • A number of witnesses emphasised that the Bill was not sufficient: what was required is a wholesale shift of culture in the construction industry. Mr Watts said:

We really need to get away from a culture that is based on a race to the bottom, as a result of which companies that win work at very low profit margins do everything possible to prioritise the commercial side of things, avoid penalties and cut corners on quality in order to increase profit.

  • Does the Bill protect leaseholders from unaffordable costs? No, said Mr Watts, Mr Silva, Dr Glen, Mr Boyd, Ms Henderson and Councillor Renard. Mr Spender and Mr Grover bemoaned the fact that the Bill makes it clear that the costs of historic remediation works will fall on leaseholders. They also thought that the accountable person system was likely to lead to very high costs for leaseholders.
  • Mr Watts and Mr Dobson emphasised the need to go back to independent scrutiny of construction work, in the way that clerks of works/architects/engineers used to.
  • Many concerns were expressed that roles relevant to fire safety might become uninsurable. This was a point made by Mr Watts, Mr Dobson and Mr Caplehorn.
  • Ms Henderson talked about the difficulties posed for leaseholders by complicated owning structures:

We can have buildings that are owned by freeholders that are shell companies, and sometimes those companies then demise the internal parts of the building to a long-term leaseholder. They can also discharge their management duties to a managing agent. Sometimes the long-term leaseholder and the managing agent might be the same entity, but they might not be. In that scenario, we understand that the principal accountable person would still be the freeholder, even though they have appointed a managing agent and have a long leaseholder. Our members have told us that it can be really difficult to engage with the freeholder in this sort of set-up, especially when they need to do things such as assess external wall materials or identify what Toggle showing location of needs to be remediated. We would want some reassurance that the duty to co-operate has been really thought through for the most challenging of these buildings, in terms of absent freeholders.

A particular challenge is where the freeholder is overseas, potentially in the Isle of Man or Gibraltar.”

The fifth to sixteenth sittings

These sittings consisted of a brief consideration of the Bill on a clause by clause basis, with the minister introducing the clause; a response by the shadow minister; and various short speeches. A number of amendments were raised. In line with the government majority of the committee, all government amendments were allowed (indeed, most were technical and uncontroversial). No opposition amendments were allowed and only one was put to a vote.

The following table may assist if readers wish to follow up on specific issues. The list of amendments considered is not comprehensive, but merely includes the more important ones.

Clauses, schedules and amendments consideredSitting; date; Hansard reference given as hyperlinkComments
Clauses 2-3; Schedule 1;  Amendment 11Fifth Sitting
16 September 2021
The decision to form the national Building Safety Regulator as a new operational arm within the Health and Safety Executive was welcomed, but various members expressed concern about whether funds would be available to the HSE, which has had significant real terms cuts over the last few years. The minister, Christopher Pincher MP, did not give any precise assurances about what resources would be provided and said it would be the subject of discussions in the spending review.
Govt Amendment 6; Amendments 10 and 11Sixth Sitting
16 September 2021
The committee passed Government amendment 6 to include owners of residential units as “relevant persons” with clause 4.
Mr Amesbury MP raised a concern that the Building Safety Regulator would only be concerned with buildings over 18m, which would lead to a two tier regime. The minister said that the role and scope of the Building Safety Regulator may change over the years, but for now the focus was buildings over 18m.
Clauses 21-29;
Schedules 2-3; Govt Amendment 7
Seventh Sitting
21 September 2021
Clauses 30-35;
Government amendments 17, 36 and 37.
Eighth Sitting
21 September 2021
The committee allowed amendments to permit the definition of higher risk buildings to be amended by statutory instrument.
The minister commented that the point about the statutory definition being 18 metres or seven storeys is to mitigate the risk of “gaming” the system to achieve a height of just below 18 metres.
The minister also made it clear on behalf of the government that in the final resort, they will provide a backed scheme to ensure that proper professional indemnity for risk assessors is provided.
Crossparty concern was expressed in relation to the fact that the “golden thread” principle will be developed in regulations under cl.32 which have not yet been published and the effect to which it works will depend upon those regulations.
Clauses 35-41;
Government amendments 23 to 34
Ninth Sitting
23 September 2021
Government amendments related to duties to co-operate and information-sharing powers between Welsh Ministers, fire and rescue authorities, local authorities and fire inspectors.
Clauses 42-57; Schedules 4-6; Government amendments 22, 35 and 38; amendment 9Tenth Sitting
23 September 2021
Opposition amendment 9 sought to remove the cl.57 levy from housing associations; the amendment was withdrawn in light of a government consultation on providing an exemption from the levy for affordable housing as a whole, including housing associations.
Clauses 58-86;
Government amendments 42-51 and 53-55; amendment 12
Eleventh Sitting
19 October 2021
Amendment 12 sought to expand the concept of risk beyond height to function, material used for construction and accessibility of emergency routes out of the building. It was rejected by the government on the grounds that (a) height was commonly used for determining risk (b) the other factors identified in the amendment would be inappropriate and might have unintended consequences and (c) other factors were too subjective. The minister noted that cl.144(3) would permit regulations to expand the concept of risk. The amendment was withdrawn.
Clauses 87- 119; Government amendment 56;
Amendments 13, 40
Twelfth Sitting
19 October 2021
Amendment 13 sought to ensure that residents of buildings receive information about the ownership of a building. The amendment was rejected by the government. The under-secretary of State, Mr Eddie Hughes MP, said that residents would have information about the identity of the accountable person and that would be sufficient.
Clauses 120-127;
Schedules 7-8; amendment 14
Thirteenth Sitting
21 October 2021
The under-secretary of State, Mr Eddie Hughes MP, said that the purpose of the “building safety” charge being separate from the “service charge” under a lease was to ensure that residents are given “…further information about what they are paying for to keep the building safe and assurance that the manager of the building is charging reasonably”. He also said:
” We wish to make it clear that remedial costs are not included in the building safety charge. This clause does not make leaseholders liable for the costs of remedial works. Whether or not leaseholders are liable for works is governed by the terms of their existing leases.”
(Under most leases, leaseholders WILL be liable for such works.)
Amendment 14 sought to extend the retrospective extension of the limitation period under the Defective from 15 years to 30 years. The government refused this amendment.

On the cl.128(5) reference to Convention Rights (see our note here), the only discussion was the following:
Mike Amesbury
On counter-litigation under the Human Rights Act, will the Minister elaborate on that scenario and the right to private property?
Christopher Pincher
I am not a lawyer and I cannot second-guess why an individual might choose to go to court using one particular Act of Parliament to defend themselves against another. However, we know that the Human Rights Act is cross-cutting. In any legislation that we scrutinise, we see reference to the Human Rights Act in its annexes. All I suggest to the Committee is that the longer the retrospective limitation period, the greater the chance that individuals may choose to go to court and test the legislation under the Human Rights Act.

It is clear from this exchange that the minister did not understand the provision in the bill – the right to rely on a Convention Right would lie with the Defendant, not the Claimant; nor the question, which related to how it might be applied.
Clauses 128-147;
Schedule 9;
Government amendment 19;
Amendments 16, 39, 57
Fourteenth Sitting
21 October 2021
Amendment 16, which would require the Housing Ombudsman to consult tenants as part of complaints made against social housing providers, was the first amendment put to a vote. It failed, with votes going precisely along party lines.
Government new clause 21 Opposition new clauses 21, 3, 4, 8, 9, 10, 11 and 12Fifteenth Sitting
26 October 2021
The new government clause relates to a requirement for a completion certificate prior to a higher risk building being occupied.

New clause 3 – a time-limited duty on the Secretary of State to consider making designations under Part XVI of the Housing Act 1985 to provide funding for cladding and fire safety remediation and for Parliament to approve the plans for doing so – raised by Daisy Cooper MP. Rejected by government on basis although “well intentioned, it is disproportionate and does not strike the right balance between funding from the private and public purse”
New clause 4 (Building Safety Indemnity Scheme) (Daisy Cooper MP) to establish a comprehensive fund, equivalent to the Motor Insurers Bureau, to provide grants to remediate cladding and fire safety defects of all descriptions, paid for by levies on developers, building insurers and mortgage lenders.
This was rejected by the minister:
“We have also said that we will bring forward proposals to ensure that appropriate support is available to leaseholders and building owners in the 11 to 18-metre cohort. We are doing further work to assess the prevalence of such buildings, and that will inform the final solution that we land on. We are considering all options to ensure that leaseholders are protected and helped.
The hon. Lady asked whether we believe in the polluter-pays principle. It is a rather—how can I put it?—crude term, but we certainly want to ensure that those who have the responsibility for the defects that have bedevilled so many buildings, and those who own them, pay what they are due. That is why we have announced a residential property developers tax, which we estimate will raise £2 billion. Clause 57, which we have agreed to, gives powers for a building safety levy on high-rise developers. We estimate that that will account for some half a billion Toggle showing location ofColumn 450pounds of income, and that is due at the gateway to approval stage for the new building safety regime. We certainly believe that those who have the broadest shoulders and those who are responsible for the defects that affect a great many buildings should pay their way, but we believe that the new clause will not work because implementing it will be costly, slow and disproportionate to the financial returns and their timely receipt, and that the Government will need to create a new administrative board to manage the fund.”

All opposition amendments were withdrawn.
Opposition new clauses 13, 14, 15, 16, 17, 20, 22, 34, 24
Clause 1
Sixteenth Sitting
26 October 2021
New Clause 14 (Agency to manage building safety works and funding) by Mike Amesbury MP:
This was a proposal for an agency to manage remedial works, which drew on the example of the State of Victoria, but was rejected by the government.

All opposition amendments were withdrawn.

Appendix: list of witnesses

DayTopics and witnessesHansard References
9 September 2021: First sittingWitnesses

Sir Ken Knight CBE, QFSM, Independent Panel Expert

Dan Daly, Head of Protection Policy and Reform Unit, National Fire Chiefs Council

Graham Watts OBE, CEO and Chair of the Competence Steering Group for Building Safety, Construction Industry Council

Adrian Dobson, Executive Director Professional Services (member of the Industry Safety Steering Safety Group), Royal Institute of British Architects
Ref
9 September 2021: Second sittingWitnesses:

Peter Caplehorn, chief executive officer of the Construction Products Association

Dr Scott Steedman, the director of standards at the British Standards Institution

Kate Henderson, chief executive of the National Housing Federation

Victoria Moffett, head of building and fire safety programmes at the National Housing Federation

Martin Taylor, executive director at Local Authority Building Control

Councillor David Renard, leader of Swindon Council, speaking on behalf of the Local Government Association

Liam Spender, representing the UK Cladding Action Group

Giles Grover, on behalf of the End Our Cladding Scandal campaign team

Giles Peaker, partner in the property disputes team at Anthony Gold Solicitors

Justin Bates, barrister at Landmark Chambers and editor of the “Encyclopedia of Housing Law and Practice”
Ref
14 September 2021: Third SittingSarah Albon, Chief Executive, Health and Safety Executive

Peter Baker, Chief Inspector of Buildings, Health and Safety Executive

Graham Russell MBE, Chief Executive, Office for Product Safety and Standards

Richard Silva, Executive Director, Long Harbour

Kieran Walker, Technical Director, Home Builders Federation

Councillor Jayne McCoy, Deputy Leader of Sutton Council, and Chair of the Housing, Economy and Business Committee, London Councils

Andrew Bulmer, Chief Executive Officer, Institute of Residential Property Management
Ref
14 September 2021: Fourth SittingMartin Boyd, Chair, Leasehold Knowledge Partnership

Dr Nigel Glen, CEO, Association of Residential Managing Agents

Dr Sarah Colwell, Director, Fire Suppression Testing and Certification, BRE Global

James Dalton, Director of General Insurance Policy, Association of British Insurers

Steve Wood, CEO, National House Building Council

Mr Matt Wrack, General Secretary, Fire Brigades Union

Eric Leenders, Managing Director, Personal Finance, UK Finance

Alison Hills and Steve Day, both of whom have been personally affected and are involved in campaigns
Ref

Author: James Leabeater QC

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