Pre-legislative scrutiny of the Building Safety Bill Contents

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General Observations

Support for policy intention behind the draft Bill

10.We warmly welcome the policy intention behind the draft Bill. It is a profoundly important step towards remedying the flaws in the building safety regime identified in the Hackitt report, as was recognised in nearly all the evidence we received; we heard overwhelming support for its general intent. The Chartered Institute of Building said the draft Bill set out “a compelling vision for the future of the industry”7 whilst Zurich called it a “significant step towards ensuring that building regulations are both up-to-date and fit for purpose”.8 The Local Government Association said it was “an important step in the right direction” and expressed confidence that it would “strengthen the building safety system in the UK, especially in relation to new buildings.”9 The Fire Action Safety Group called the Bill a “positive first step”, whilst the London Fire Brigade said it went a “long way towards meeting the policy objective of a robust regime”.10 We agree with the evidence.

Reliance on secondary legislation

11.As was noted throughout the evidence to our inquiry, the draft Bill is largely a framework Bill and leaves much of the detail of the new regime to secondary legislation. Zurich said that the “development of the detailed secondary legislation will be key to its success” and that “whilst the Bill establishes the overarching framework it does little to define how the new regulatory system will operate, the requirements the system will define and impose, and how they will be enforced.”11 Whilst this is unsurprising, as the existing regime for building control relies so heavily on secondary legislation, we were told it made effective scrutiny of some parts either difficult or impossible. The Leasehold Knowledge Partnership, which thought the Bill’s complexity alone made scrutiny challenging, said the problem was “made worse because much of the Bill will be defined by future regulations”. It said there were 569 references in the draft Bill to “regulations”, most of which had not yet been produced, and concluded: “Everyone, including your committee, is therefore required to make huge guesses at how the bill might work in practice.”12

12.Witnesses generally agreed that many details rightly belonged in secondary legislation and did not need to be available for effective scrutiny of the Bill,13 but we also heard about central elements that were barely mentioned in the Bill itself. For example, the Bill omits even an initial definition of the “higher-risk buildings”, which goes to the very heart of the scope of the new regime.14 Other vital provisions, such as the “Gateways” process and the regulation of construction products, go to the core of the Bill, as the Local Government Association pointed out, yet are completely missing from it.15 It is left to secondary legislation, but there are no draft regulations available to scrutinise. On the regulation of construction products, the Chartered Institute of Building told us that much of the legislation was “intentionally designed to be carried through via secondary legislation at a later date” and that the industry would need “much greater detail about the exact nature of construction products regulations”.16 Our scrutiny of the Bill was greatly impeded by the absence of such detail.

13.Furthermore, many of the powers to make secondary legislation are very broad. Perhaps the most striking example of the sweep of some of these is paragraph 16(1) to Schedule 8, which provides for a power to repeal, amend or re-enact not only retained EU law and the Construction Products Regulations 201317 but any enactment other than this draft Bill. Whilst such regulations would be limited to purposes set out in paragraph (2) of the schedule, there is no apparent justification for the power to amend primary legislation, and nor is it expressly acknowledged as a “Henry VIII power” by the Government.18 In its report on the scrutiny of secondary legislation,19 the House of Lords’ Constitution Committee expressed and reported increasing concern about the use of broad powers and welcomed the Strathclyde Review’s acknowledgment that “it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument.”20 Although delegated legislation is necessary to facilitate the transition from EU-derived law, the Constitution Committee recommended this be limited to consequential technical amendment rather than policy areas. This power as drafted may allow policy-driven change to primary legislation.

14.We warmly welcome the policy intent behind the draft Bill and believe it to be a crucial step towards remedying the flaws in the building safety regime identified in the Hackitt report. Nonetheless, whilst recognising that it provides the framework for the new regulatory regime and must necessarily lack certain details, we agree that it relies very heavily on secondary legislation and that the absence of detail greatly impeded the process of pre-legislative scrutiny.

15.We urge the Government to 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.

16.Moreover, any powers in the Bill to amend primary legislation should be included only where fully justified and necessary to implement the framework set up by the Bill. They should be limited to the minimum needed to make this new policy work rather than accommodate all future policy change. For example, if primary legislation might stand in the way of some future exercise of the power to make construction product regulations, it could be expressly amended or repealed now rather than swept away by Government under paragraph 16(1)(c) of Schedule 8.

Transition to new regime

17.Closely related to the publication of the secondary legislation was the concern around implementation and transition periods. We were told repeatedly that as well as sight of the secondary legislation all those with responsibilities under the draft Bill needed sufficient time to transition to full implementation and that the Government needed to publish such a timetable as soon as possible.21 Again on construction products, the CIB warned that the Bill’s reliance on secondary legislation meant it would take time to implement and that this would be “exacerbated by the fact that many within the industry are currently hesitating to take action until they have clarification about the final form that the legislation will take”.22 London Councils told us that the new responsibilities on councils would not be deliverable without a phased roll-out of the new regime. It recommended a five-year transition for building owners “to deliver the required safety improvements” and the sector more broadly “to upskill and develop capacity to service demand for technically competent professionals”.23

18.Places for People, the property management and development company, said there was a “need for clear guidance on an implementation timetable and an associated transition period”, whilst UK Finance was worried about deliverability and capacity in the industry to provide sufficient expertise to implement the regime without sufficient transition periods.24 The Building Safety Register was concerned about implementation, especially of the regulatory regime for in-scope legacy buildings, given their number and the onerous duties on accountable persons. It told us it could not be done quickly and that clear “staging dates” would be required, including provision for buildings to be prioritised according to risk, with the highest risk being brought onstream first.25

19.We agree completely that those being given additional and sometimes onerous responsibilities under the Bill cannot reasonably be expected to implement its provisions and move to full compliance without sufficient and clearly described transition periods.

20.We recommend that the Government 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.