The purpose of the draft Building Safety Bill is to remedy the flaws in the building safety regime identified by Dame Judith Hackitt in her final report, Building a Safer Future Independent Review of Building Regulations and Fire Safety, commissioned by the Government following the Grenfell Tower fire on 14 June 2017. It aims to do so principally by establishing a regulator, the Building Safety Regulator, to oversee a rigorous new regulatory regime for the design, construction and occupation of higher-risk buildings.
We believe the draft Bill could dramatically improve building safety but are concerned about some of its provisions and, in particular, the lack of detail on key parts of the new regime. Our key recommendations are as follows:
The draft Bill is largely a framework Bill that provides for key parts of the new regulatory regime to be established by delegated legislation and building regulations. We accept that much of the detail belongs elsewhere, as it could not sensibly be included in the Bill itself, but this is not always the case, and even where it is reasonable for the Bill to rely on delegated legislation, we do not think it possible to properly scrutinise its provisions without sight of that draft legislation.
The final Bill will establish new duties, some of them extremely onerous, on individuals and organisations responsible for building safety throughout the lifecycle of higher-risk buildings. We do not think it right to expect individuals to implement its provisions and assume such heavy responsibilities without sufficient transition periods.
The draft Bill provides for landlords to recover the cost of building safety measures through a new building safety charge. Contrary to repeated assurances from Ministers, these provisions permit landlords to charge leaseholders for the cost of remediating historical building safety defects for which they were not responsible. We consider this unacceptable and an abdication of responsibility on the part of government.
The financing of remediation works remains unresolved, despite the allocation of £1.6 billion in the building safety fund. If the costs are not to be borne by leaseholders, the Government must propose an alternative source of funding, and to our mind there are only two viable and acceptable options: central government and industry. However it chooses to fund the work, it must publish its proposals with the draft Bill, as no future building safety regime can be adequate that does not also remedy historical defects.
The new regulatory regime will apply to higher-risk buildings, and yet the definition of “higher-risk building” is missing from draft Bill, being left instead to the explanatory notes, which merely state the Government’s current intention. We think that by putting this central pillar of the new regime in the Bill itself the Government will give dutyholders the certainty they need to prepare for implementation and ease the transition to full compliance.
The Government currently intends to define “higher-risk building” essentially as any building over 18 metres or six storeys. We accept that this is a reasonable initial scope, given the challenge of establishing such a demanding new regime, but we do not consider height alone to be a satisfactory measure of risk. A commitment in the Bill itself to including, at a specified point in the future, other risk factors, particularly the vulnerability of residents and their ability to evacuate the building, would demonstrate the Government’s determination to improve the safety of all higher-risk buildings.
The Hackitt report found that a lack of any formal process for assuring the competence of individuals engaged in the design and construction of higher-risk buildings was a serious flaw in the current regulatory regime. To remedy this, the final Bill should provide for a robust system of third-party accreditation and registration for design and construction professionals. We can think of few measures that will do more to improve building safety.
The Hackitt report identified the ability of dutyholders to choose their own building control body and the conflict of interesting proceeding from that as the major weakness of the current building control regime. Despite this, the draft Bill only removes dutyholder choice from building work on higher-risk buildings and so does nothing to remove conflicts of interest from the vast majority of building work. Only by removing it completely can the Bill provide for a genuinely reliable system of building control.
The draft Bill provides for owners of higher-risk buildings to be appointed as accountable persons to act as dutyholders in occupation. Some buildings, however, depending on their ownership structure, will have multiple accountable persons, which could result in confusion over where responsibility lies. A general duty to co-operate would be the simplest way of mitigating a problem that is an unavoidable consequence of existing legal complexity.
The role of the accountable person established in the draft Bill is similar to that of the responsible person established under the Regulatory Reform (Fire Safety) Order 2005. Instead of rationalising building safety legislation, the Government has chosen to add an extra layer, which could result in overlapping responsibilities and consequent confusion. In the short term, statutory guidance is the best way to reduce confusion, but in the long term the Government might have to consider consolidating the two regimes.
In requiring the accountable person to appoint a building safety manager to oversee the day-to-day management of building safety risks, the draft Bill creates an entirely new profession, and one that will be crucial to the success of the new regime. It is envisaged that building safety managers will be highly trained and competent people. An expert panel established by the Government, known as Working Group 8, has drawn up a proposed competence framework for the role of building safety manager, but the Government has not said if it intends to adopt it. The industry cannot begin to recruit and train people to fill these roles without sight of the competences. If the Government does not produce them soon, the implementation of the new regime could be greatly impeded.
Given how critical building safety managers will be to the new building safety regime, we do not see how that regime can succeed other than by requiring prospective building safety managers to demonstrate competence. A robust system of accreditation and registration will give accountable persons and residents confidence in the competence of those appointed to the role and make more likely a genuinely robust system of building safety.
The Hackitt report found that the product testing regime was opaque and that greater transparency was required, but whilst the draft Bill includes provisions for regulating construction products, it contains little detail, especially on the future testing regime. Only by requiring the publication of test results and by providing for third-party certification can the Government enable real transparency.