My Lords, I will try to be brief here. This is an extremely valuable group of amendments, and I entirely relate to the point made by the noble Baroness, Lady Fox, and the noble Lord, Lord Blencathra.
I will comment on something that the noble Lord, Lord Young of Cookham, said. He introduced the question of, if I paraphrase him right, the undesirability of the long-term continuation of conventional long leasehold, and I understand that. For some years I chaired the Leasehold Advisory Service when it was first set up, which was in response to a ministerial commitment that it should be put in place and that there should be advice to leaseholders.
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I am a bit of an agnostic, because I understand the whole principle that in English law, the way in which you enforce covenants relies, in a sense, on a leasehold. The problem that has been faced with commonhold is nothing inherent about commonhold that should make it less satisfactory, but that it appears not to be liked by the lenders. That seems to be the main block: it is a novel form of tenure.
However, I counsel against bringing in the question of transferring things from what I call traditional leasehold to commonhold as a driver in this Bill because, while building safety matters have been exacerbated by this inherent friction between landlord and tenant, that has not changed the existential fact that home owners in leasehold property have been the victims, if I may put it this way, of poor construction processes. Commonhold does not change that fundamental fact and, if we are not careful, there will be another agenda produced in here about getting rid of long leasehold. Whatever we may feel about long leasehold, it is not something for this Bill because even commonholders would face the same principles that are affecting unsaleable property. I recall in all my years in the property profession that arguments, while they were very often between landlord and tenant, were often between different factions of tenant-owned or tenant-managed property. That is what I would say about that.
I shall make no comment on the amendment of the noble Lord, Lord Blencathra, because he, the noble Lord, Lord Young, and I are ad idem that there is a whole body of stuff here. He has simply reflected things that I spoke to a previous time round, and I think it would take up the Grand Committee’s time unreasonably to comment further on that, because there is clearly a dialogue going on here.
I will comment, if I may, on the Minister’s comments on Amendments 107 to 110. My concern is about this interface between building product on the one hand and workmanship on the other. My abiding sense is that these have to run in tandem, both as to the extent of a liability limitation process and looking backwards and looking forwards. These need to be tied together. Noble Lords will be well aware of the many arguments, on and off the building site, over whether it was the product that was not suitable, whether it was its application, per the designer, that was incorrect or whether the workman who put it all together did not do the right job or did it under unsuitable conditions. We need to make sure that that is not an argument that will gain traction here as a follow-up.
Secondly, on the scope of the construction products provisions, I appreciate that that comes in under Amendment 110 in regulations yet to be made, but I wonder about the life expectancy of certain construction products. To give an example, intumescent seals on cladding systems typically have a guaranteed life of 15 years. Not many people who are in buildings that have cladding have that drawn to their attention, but that, I am advised, is the situation. Noble Lords may well speculate as to the ease or difficulty of replacing intumescent strips in buildings that may be substantially above 18 metres in height. There are other building components—I will not labour the point—that do not have a 30-year life and may not even have a 15-year life. I ask that that be borne in mind when these regulations are made. I go back to the point that all these matters are dependent on the duty life, the maintenance, the installation and, to some extent, the design and suitability for purpose, and workmanship is very important there.
There is a subtle change, which was pointed out by the Construction Industry Council in a communication it copied to me a few days ago. It is worth bearing this in mind because what appears to be happening by dint
of this Bill is the altering of the process of reasonable endeavours to get things rights to a principle of strict liability in terms of fitness for purpose. Going forward, you can foresee that and factor it into the equation, but, going back, if you have constructed and done your work on a reasonable endeavours basis, you may now, by virtue of this Bill, be held to some other test to which you cannot possibly revert, for which there may be no insurance and which may technically mean that you have invalidated some purpose or condition of engagement or professional obligation.
Perhaps I can encourage the Minister to think about that carefully before we start upsetting people. This Bill upsets quite of lot of people, I know—probably quite rightly—but the real people for whom it needs to meet these standards are those who are in their own homes, have purchased property and need to be protected because they are vulnerable. I do not want any wriggling out to be able to occur here, which is why I make these technical points, not as a criticism but as an observation of how the Bill might need to look at these issues before the next stage.