Building Safety Bill
2.The Building Safety Bill was brought from the House of Commons on 20 January. The Bill, which legislates for a reformed building safety regime, has been through pre-legislative scrutiny.
3.We have been given a detailed and helpful delegated powers memorandum (“the Memorandum”) from the Department for Levelling Up, Housing and Communities (“DLUHC”). DLUHC is also to be commended for supplying us with illustrative secondary legislation for a number of important delegated powers. We very rarely see this from Government. Other Departments may wish to take note of DLUHC’s approach, which undoubtedly represents best practice.
Clause 12: power to abolish committees
4.Clause 12 of the Bill gives Ministers a Henry VIII power to repeal clauses 9 to 11, which if exercised would remove the legal underpinning for three committees described by DLUHC in the Memorandum1 as essential in the coming years to ensure the delivery of the Independent Review’s recommendations on industry competence. These committees are a building advisory committee, a committee on industry competence and a residents’ panel.
5.DLUHC says that the importance of these committees to the delivery of the reforms recommended by the Independent Review means that the role of the committees should be made clear in legislation (hence clauses 9 to 11). DLUHC uses the word “essential” to describe the importance of the committees, though clause 12 allows Ministers to make substantial changes to the committees or even abolish them altogether by statutory instrument.
6.If these committees are essential to ensure the delivery of the Independent Review’s recommendations, they should not be capable of being abolished by statutory instrument—even an affirmative one. We therefore take the view that clause 12 contains an inappropriately wide delegation of power in so far as it allows Ministers to repeal clauses 9 to 11.
Clause 46: higher-risk building work and public bodies
7.Clause 46 contains a widely drafted power for Ministers to amend sections 5 and 54 of, and Schedule 4 to, the Building Act 1984 by affirmative instrument, in connection with the Government’s policy of preventing public bodies from being able to supervise their own building work for higher-risk buildings.
8.DLUHC admits that more work needs to be done to engage with the sector before creating a new regime in relation to bodies using public bodies notices and it is not therefore possible to include detailed provisions in the primary legislation.2 DLUHC does, however, envisage “significant changes” to the above-mentioned provisions of the Building Act 1984.3
9.Under-developed policy should not be a justification for widely-drafted delegated powers. DLUHC is able to envisage significant changes to the above-mentioned legislative provisions. The House may wish to seek further information from the Minister concerning the Government’s current intentions in relation to the exercise of the delegated power in clause 46. We accordingly draw the attention of the House to the width of the delegated power in clause 46.
Schedule 11, paragraph 10(1): construction products
10.Schedule 11 creates a power for the Secretary of State to make regulations in relation to the marketing and supply of construction products placed on the United Kingdom market. As part of this, regulations under paragraph 10(1) of Schedule 11 will define the list of safety-critical products—any failure of which risks causing death or serious injury to any person.
11.The first regulations made under paragraph 10(1) of Schedule 11 will be subject to the affirmative procedure; subsequent regulations will only be subject to the negative procedure.
12.DLUHC’s justification is as follows:
“The decision as to how the new safety-critical regime will operate will be of critical importance to the effective regulation of construction products placed on the UK market. It is important, therefore, that when the scheme is designed initially that this should be subject to full debate to ensure that it is fit for purpose. It is envisaged that further use of this power is likely to be limited to addressing technical and administrative matters.”4
13.The question is whether the affirmative procedure should be confined to the initial design of the regime as set out in the first regulations made under the power or whether the affirmative procedure should also extend to subsequent amendments to the regulations. DLUHC says that any subsequent use of the power is likely to be limited to addressing technical and administrative matters.5 But there is no such limitation set out on the face of the Bill.
14.Given the importance of the subject-matter of these regulations, which DLUHC says will be of critical importance to the effective regulation of construction products placed on the UK market, we recommend that all regulations made under paragraph 10(1) of Schedule 11 should be subject to the affirmative procedure.
1 DLUHC, Delegated Powers Memorandum, para 38.
2 Ibid., para 323.
3 Ibid., para 325.
4 Ibid., para 842.
5 Ibid., para 842.