Pre-legislative scrutiny of the Building Safety Bill Contents

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2The Building Safety Regulator

Scope of the regime

55.Under Part 2 of the Bill, the regulator will regulate building safety risks with a view to securing the safety of people in or about higher-risk buildings. According to clause 16, a “building safety risk” is a risk arising from fire, structural failure or any other prescribed matter. According to the explanatory notes, the Government proposes initially to define “higher-risk building” essentially as any building that is at least 18 metres or six storeys tall and contains either two or more dwellings or student accommodation.77

Meaning of “higher-risk building”

56.As already noted, the initial scope of the regime (the definition of “higher-risk” building) is set out in the explanatory notes and described only as a proposal. We do not see why it should not be in the Bill itself. Even Sarah Albon, chief executive of the HSE, who otherwise supports the initial scope, agreed it would be helpful if it were set out in primary legislation.78

57.We strongly recommend that the initial scope of the regime be enshrined in the Bill itself, and not be left to delegated legislation, in order to give stakeholders the certainty they need to prepare for the new regime.

58.The proposed scope is wider than that recommended in Dame Judith Hackitt’s report, which would have covered all buildings with 10 or more storeys and did not include student accommodation. The more ambitious scope in the explanatory notes was welcomed by the Institute of Materials Minerals and Mining:

Extending the proposed scope of ‘higher-risk building’ further from buildings containing more than the 10 storeys recommended in the Judith Hackitt Review to buildings containing more than 6 storeys is a positive step, as is the inclusion of student accommodation.79

59.This view was echoed by Graham Watts, chief executive of the Construction Industry Council, who described the reduction from 10 storeys as a “move in the right direction”, and by Adrian Dobson, from the Royal Institute of British Architects, though he would have preferred a threshold of 11 metres.80 Sir Ken Knight, chair of the Building Safety Independent Expert Advisory Panel, also welcomed the inclusion of student accommodation.81 Dame Judith Hackitt, too, said she was “comfortable” with the widened scope, adding she had always envisaged the scope would be widened over time.82

60.Nonetheless, we heard repeatedly that risk cannot be determined by the height of a building alone. It was described as “too blunt an instrument” by the London Fire Brigade and as “too simplistic” by the LGA, whilst AXA UK said that relying too much on height was “misguided”.83

61.There was strong support for including buildings with vulnerable residents within the scope of the regime. Lord Porter, from the LGA, said the scope had to be based, among other things, on the “risk presented to the people occupying each building”, and in its written submission the LGA asked for a “firm commitment on the face of the Bill to extending the scope at the very least to all care homes”.84 AXA UK called for “buildings that accommodate vulnerable people such as hospitals, hospices and care homes” to be brought in scope.85 The London Fire Brigade and the Mayor of London were also concerned about the exclusion of care homes and places where vulnerable people sleep.86 Dame Judith Hackitt, too, in her oral evidence, recommended that factors such as vulnerability be included in the future.87

62.London Councils, the Fire Brigades Union and the LGA agreed with Adrian Dobson, from RIBA, that the height threshold should be reduced to 11 metres, though there was some disagreement about whether that should be done now or in the future. The LGA said the Government should commit to a “clear timescale” for reducing the threshold in the future, while the Fire Brigades Union implied it should done from inception, citing evidence of an elevated risk of fire and fatalities in buildings over 11 metres.88 We also heard support for extending the scope to include all consequence class 3 buildings89 and buildings built using modern methods of construction (MMC), since some are untested and have demonstrated increase fire risk.90

63.It was not always clear if a submission was arguing for a wider scope from the beginning or for a commitment to extend it in the future, but almost everyone agreed that in theory height alone was insufficient. Whilst we find this argument incontrovertible, we were nonetheless convinced by the evidence from the HSE in defence of the proposed initial scope. It recognised that it was “contentious” and that some stakeholders considered it “too crude a risk factor” but said it was “an appropriate starting point given that the consequences of fire are likely to be more significant in higher buildings owing to the numbers of people and the limited escape options.”91 Furthermore, given that the initial scope is already expected to capture between 12,000 and 13,000 buildings, we accept that widening the scope now would only add to the already formidable challenge now facing the HSE.

64.On these grounds, many agreed that the proposed scope was reasonable and practical. The Chartered Institution of Building Services Engineer argued that “an initial focus on the scope currently proposed to establish the new regime is reasonable, realistic and manageable. Anything broader is probably not.”92 Graham Watts, the chief executive of the Construction Industry Council, told us in oral evidence that if “you expand the scope to begin with by too much, you will create a situation where the capacity issues become a problem, so it is a question of getting the balance”.93 The Institute of Materials Minerals and Mining put it most succinctly when it called the appropriate scope “a complex balance between risk and the successful implementation of the regulatory regime”.94

65.On balance, we consider the initial definition of “higher-risk building” proposed by the Government to be reasonable and practical, though we agree with the evidence calling for the scope to be widened in the future to include a great number of risk factors. In particular, the scope should take account of the vulnerability of residents and their ability to evacuate the building. We also think the Government should keep under review the development of modern methods of construction.

66.We recommend that the Government 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. We also recommend that any requirement to have regard to the ability of residents to evacuate a building explicitly include both the vulnerability of residents and the number of means of egress. Finally, we recommend that the Government indicate its intention to review the scope and set a timetable for doing so.

Definition of “building safety risk” (clause 16)

67.The regulator’s duty to facilitate building safety in or near higher-risk buildings is engaged in respect of building safety risks. A “building safety risk” is defined in clause 16 as any risk to the safety of persons in or about a building arising from fire, structural failure, or any other prescribed matter. The explanatory notes state that the scope is only intended to encompass major and rapid onset events and that the Government “has no current plans for the higher-risk building regime to extend beyond the risks of fire and structural integrity.”95

68.There was some opposition in the evidence to the limited definition of “building safety risk”. The submissions from Working Group 8 and the Institute of Workplace and Facilities Management, for example, called for a more “holistic” or “whole building” approach to building safety that extended beyond fire and structural safety, and criticised the Government’s avowed intention not to use the provisions allowing for the expansion of the regime to other building safety risks.96

69.More specifically, the evidence from electrical safety organisations, such as ECA, the trade association, and Electrical Safety First, urged the inclusion of “electrical safety failure” within the definition and scope of the regime, given the number of fires in residential blocks caused by electrical failures.97 Similarly, the Specialist Engineering Contractors Group also called for the significant safety risks presented by electrical, as well as gas, installations, to be covered.98

70.We recognise that the definition of “building safety risk” is central to the scope of the regime and should be given careful consideration, but on balance we are satisfied with the current wording of clause 16. In particular, we judge that fire would be the main rapid onset event arising from an electrical or gas failure and that therefore these are probably already caught by the clause, although we would welcome clarification on this point, particularly with regard to gas failures that could result in explosion.

71.Given the importance of the right definition of “building safety risk”, we recommend that the Government clarify, perhaps in statutory guidance, the extent to which dutyholders need to consider risks arising from electrical and gas failures. We also recommend that the Government commit to keeping the definition under review.

Duties and functions of the regulator

Inclusion of property protection among the regulator’s objectives

72.Clause 3 provides that the regulator must exercise its building functions with a view to securing the safety of people in or about buildings. Some submissions criticised this exclusive focus on the protection of life and safety and recommended the inclusion of property protection among the list of objectives. Some thought it mattered in its own right, such as the Association for Specialist Fire Protection, which argued for its inclusion “to limit the financial, environmental, and emotional impact of fire events”,99 whilst others, such as ROCKWOOL, the insulation manufacturer, believed it would further reduce risk to life as well as risk to property: “If measures are taken to protect property from fire … this will self-evidently reduce the risk to both property and life”.100

73.The evidence from Richmond House residents, about the fire in Worcester Park in 2019 that destroyed the homes and possessions of 60 residents, including 17 children, highlighted the emotional and psychological impact of fire even when no lives are lost:

We lost our homes and all of our possessions in the fire and today we are in temporary accommodation, uncertain of how to rebuild our lives… Many of us, including children, are deeply traumatized and continue to suffer from serious psychiatric and psychological illnesses caused by our experiences of the fire and by seeing our homes and possessions destroyed.101

74.We understand the argument for including property protection among the regulator’s objectives, but we are content that the list of objectives in the draft Bill is a sensible starting point, although we think that it should be kept under review.

75.We recommend that the Government keep the objectives of the regulator in clause 3 under review and that it consider including property protection among them once the regime has been established. To this end, we recommend that the Government take a power in the Bill to amend by regulations the list of the regulator’s objectives.

Duty to establish system for giving of building safety information (clause 8)

76.Clause 8 provides that the regulator must “establish and operate a system to facilitate the voluntary giving of information about building safety to the regulator, or make arrangements for a person to establish and operate such a system.” According to the explanatory notes, the current proposal is for this duty to be discharged using the Confidential Reporting on Structural Safety system (CROSS), once expanded to cover fire safety as well as structural safety.102

77.Structural-Safety, which operates CROSS, and several other respondents objected to clause 8(a), which provides for the regulator to operate the system itself. They argued that if such a system is run by the regulator individuals might fear disciplinary action if they report problems. Structural-Safety cited aviation as an example of an industry that recognises this principle. Its concern was echoed by the Institution of Structural Engineers, the Mineral Products Association and the Construction Industry Council.103

78.We put these points to Peter Baker, director of building safety and construction at the HSE, and Sarah Albon, its chief executive, when they appeared before our Committee, but we did not think their response, which concentrated on the importance of encouraging a culture of self-reporting, provided sufficient reassurance.104

79.We recommend that clause 8 be amended to provide that the regulator must direct someone else to operate the system for the giving of building safety information and cannot itself operate that system

Duty to establish and maintain a Building Advisory Committee, a Committee on Industry Competence and a Residents’ Panel (clauses 9, 10 and 11)

80.Clauses 9, 10 and 11 establish committees to support the regulator. There was complete support for their creation but also concern about the provisions in clause 12 empowering the Secretary of State to alter their functions or abolish them altogether. ROCKWOOL wanted this power removed and Sir Ken Knight, from the Building Safety Independent Expert Advisory Panel, thought it “odd”, particularly in relation to the Building Advisory Committee.105 In particular, he noted that the BAC was to replace the Building Regulations Advisory Committee, which is a statutory committee that can only be abolished by primary legislation. The Bill does that but then replaces it with a committee that the Secretary of State can unilaterally abolish.106

81.The Chartered Institution of Building Services Engineers shared these concerns, describing clause 12 as “‘Henry II powers’ for riddance of any ‘turbulent committees’”.107 In oral evidence, Dr Debbie Smith, from BRE Global, Peter Caplehorn, CEO of the Construction Products Association, and Dr Scott Steedman, director of standards at the British Standards Institution, all struggled to understand the intention behind the provisions.108 We note, too, that the Minister, when asked about this in oral evidence, offered no rationale for the Henry VIII power in clause 12 and instead sought our opinion.109

82.We see no justification for the provision in clause 12 empowering the Secretary of State to abolish the Building Advisory Committee, the Committee on Industry Competence and the Residents’ Panel, and can see no circumstances in which this power would ever sensibly be used. We recommend that clause 12 be amended to delete the Secretary of State’s power to abolish.

Operation and funding of the Building Safety Regulator

Is it right to establish the Building Safety Regulator within the Health and Safety Executive?

83.The evidence overwhelmingly supported the Building Safety Regulator being established within the HSE.110 Dame Judith Hackitt said the HSE was “very experienced in delivering a regulatory system that is outcomes-based and proportionate” and had a “wealth of experience in the construction industry”.111 Sir Ken Knight welcomed the HSE’s “vast historical experience” in the area, and Graham Watts was “strongly supportive” and said the HSE had “a great deal of credibility”.112 Nottinghamshire Fire and Rescue Service called it a “positive appointment” and said the HSE was “well-established and recognised throughout the industry”.113

84.We should note that some evidence expressed concern about the HSE’s reactive and sanctions-based style of regulation and argued for a more proactive, inspection-based style. Butler and Young Approved Inspectors wrote:

Questions remain over how exactly the BSR will operate–whether it will impose what would be considered a more traditional HSE-style reactive system of on-site fines and sanctions or a more proactive system in supporting the delivery of safe buildings.114

85.The Fire Sector Federation, though resigned to the decision, criticised the HSE’s reliance “on self-compliance and prosecution after failure” and argued for a more proactive regulatory regime.115

86.We welcome the location of the regulator within the Health and Safety Executive and agree that it has the experience and expertise to implement the new building safety regime. We are satisfied that the provisions in the Bill already mandate a regulatory model focused as much on inspection during construction as on sanctions for non-compliance.

How should the regulator be funded?

87.The Hackitt report recommended that the regulator be part funded through a process of cost recovery,116 and the explanatory notes state the Government’s expectations that the regulator will “charge fees for its activities as a building control authority” and “where appropriate for other functions it performs under the Building Act 1984 (e.g. applications for registration as a registered building inspector).”117 To this end, clause 33 gives the Secretary of State the power to make regulations authorising the regulator to charges fees and recover charges.

88.The evidence agreed that the regulator should be part funded through a system of cost recovery from regulated parties.118 Butler and Young Approved Inspectors, for example, said there was “general cross-sector agreement that the cost should be borne by industry through application fees”.119 The National Housing Building Council welcomed the adoption of a “user pays” model, whilst CICAIR agreed that its income should be “derived from the registration and audit fees paid by Building Control bodies and individual professionals”,120 though some submissions requested greater clarity on the precise charging regime. The HSE outlined in its written submission the principles it intended to apply to the regime, but Peter Baker, its director of building safety and construction, said that the detail had yet to be confirmed. He did add, though, that the principles ranged from “hourly rates for work actually done to fees for intervention … based on the degree of breach of the law.”121

89.There was also agreement, however, that not all of the regulator’s activities could be funded through cost recovery and that where this was not possible central funding would be required. The Chartered Association of Building Engineers said that the regulators “core functions” should be “directly funded by central Government so that the core knowledge and capability of the regulator is not affected by fluctuations in construction activity across the economic cycle.”122 The Construction Industry Council said it would need to be funded “by a mix of public funds and by recovering costs from regulated parties”.123 AXA UK said that, given the “over 50 per cent real terms reduction in the regulator’s budget between 2010 and 2017 and the raft of additional specialist responsibilities the body will be taking on,” the Government must consider “ringfenced funding throughout the next multi-year spending period” to ensure the regulator “can deliver the much needed regulatory and enforcement changes”.124 On this point, we were partially reassured by the evidence from the Minister, Lord Greenhalgh, which seemed to imply that the Government were committed to ringfenced funding, though his precise meaning was perhaps open to interpretation.125

90.We welcome the intention to fund the regulator through a system of charging and cost recovery, and we are satisfied that the Government and the HSE are working on the detail, but we agree they should publish that detail as soon as possible. We also welcome the Minister’s partial commitment to ringfenced funding for those functions of the regulator that cannot easily be financed by the market, although we would welcome a firmer commitment from the Government in that regard.

91.We recommend that the Government publish with the Bill the details of the charging regime that the regulator will operate to fund its regulatory functions, where cost recovery is practical, and commit unequivocally to ringfenced central funding to cover the cost of functions for which cost recovery will not be possible.