My maths is not that bad, but that is impressive.
I will start with the noble Lord, Lord Stunell, who focused on the government amendments. It is fair to say—he will know this as someone who played my role in the coalition Government—that we cannot possibly move amendments without considering A1P1 rights and the impact of the amendments. We would never get them through the legal system. Obviously, we are tabling the amendments but not moving them, but we have done all the checks, as you would expect, and taken legal opinion and so forth to make sure that they are all workable, and indeed lawful. Otherwise, we would just not be allowed to do it.
I also say that there has been considerable engagement with the organisations that the noble Lord mentioned, but we need to continue that engagement and that is something we can do. I reassure him that we have had representations from Build UK, the Association for Project Safety and the Construction Products Association, but we should continue to engage. My view is that there is never too much engagement with these organisations. However, I also said to him, and I put this now into Hansard—it was raised in a previous debate by the noble Baroness, Lady Hayman—that if you breach building regulations implemented in 1984 by the then young whippersnapper, my noble friend Lord Young, it is a criminal act.
The noble Lord will also know that if you commit a crime in this country, there is no statute of limitations for most crimes. In this case, we are saying that we have seen appalling practices over the previous 30 years, and there should not be a statute of limitations period
that does not allow us to rectify that. That is why we are looking backwards 30 years and forwards 15 years. Of course, we have taken considerable legal advice about taking that position, but it is to ensure that there is no legal reason why someone who has broken building regulations is not open to face redress. I accept all the points he makes around the practicalities of doing that, but there should not be a small, narrow limitations period when we tackle this historically difficult problem that has crept up on us over not one decade, but three decades.
I turn to the noble Baroness, Lady Pinnock, who wanted to understand how we are regulating construction products. It is not straightforward, but it is pretty straightforward, so I will not take too long over this. We have created a national regulator. In the same way as we have a building safety regulator in shadow form until the Bill gets Royal Assent, the Bill will put into statute a national regulator for construction products in the Office for Product Safety and Standards. The CEO is a phenomenal chap called Graham Russell. He is there and it has already started to flex its muscles with a prohibition notice to Kingspan. This Bill formalises the national regulator for construction products and there are at the same time local regulators of products, as the noble Baroness will know, with her local government background within trading standards, that provide that local role. It is the national and local regulation of construction products that provides the regulatory environment for construction products.
The noble Baroness also raised construction products testing. This is something that the inquiry showed as an area of concern. The Building Research Establishment was a nationalised entity that it was privatised in the 1980s, I think—my noble friend Lord Young will know the exact date, I do not—but we also have the British Board of Agrément, which has always been in the private sector. Neither of those have come out as great, robust testing houses, which is why my predecessor as Secretary of State asked for a construction products testing review. I believe that report is nearly finalised. I will ask for a copy. There will be recommendations on how we improve the robustness of construction products testing. I hope that addresses the questions raised by the noble Baroness, Lady Pinnock.
One of the three wise men, the noble Earl, Lord Lytton, raised a very important point, but it is fair to say that, when we are talking about construction product manufacturers, we are talking not about all construction product manufacturers but about those that contributed to this crisis. Three of them have been raised, front and centre, as being responsible for the Grenfell Tower tragedy: Celotex, Arconic and Kingspan. These were all products that should never, frankly, have been able to have been put in that position. We can argue about why, but you cannot put flammable material that spreads like petrol up the side of a building and say that that adequately resists the spread of fire, which is what the regulations stated in Approved Document B. You cannot put flammable insulation behind it, et cetera. There are a number of product companies that contributed to this. Whether they were installed incorrectly or not is irrelevant: these products should never have been put on our buildings. We can look at the responsibility for that, but the responsibility also lies with the manufacturer,
in large part, and in those cases, the polluter must pay. However, it is not all construction product manufacturers by any means, and I make that point absolutely clear.
Secondly, the way in which those products are installed is a matter for the construction company. The construction company, not the manufacturer, is responsible for following the instructions and installing the product correctly. We can see examples of perfectly good cladding systems that are installed incorrectly. In such cases, that falls on the developer in the first instance, or on whoever the developer got to install the system. We must be absolutely clear about that. If we start creating confusion around it, we avoid accountability and we do not move forward. It is pretty clear in my mind where culpability falls. I hope that that addresses some of the concerns raised by the noble Earl, Lord Lytton. This has been a fantastic debate. I have enjoyed every second of every minute of every hour. We have had one hour and 40 minutes on this group, and it has been absolutely tremendous. Thank you all for your contributions.
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I shall start with the amendments to Clause 93 tabled by my noble friend Lord Blencathra. Although resident consultation is an important part of the Bill, we do not consider it appropriate to require that residents be consulted on the draft residents’ engagement strategy and any amendments that may be made to it. This could prove time consuming and costly to residents. Multiple consultations on minor changes might even annoy residents, which is the opposite of what the strategy aims to achieve.
I would highlight to my noble friend the fact that the Bill already includes an obligation on the principal accountable person to measure the appropriateness of promoting participation under the strategy and an obligation to update the strategy where appropriate. This should mean that strategies are successful in achieving effective resident consultation.
The proposed deletion of Clause 93(5) could impose unreasonable and disproportionate obligations on the accountable person. The accountable person would have to provide copies of the strategy to residents who they have no reasonable way of knowing live in the building: this is impractical. It could lead to accountable persons having to take extreme steps to investigate all residents in the building in detail, which could prove time consuming for the accountable person, as well as intrusive and costly to residents. I assure my noble friend that his concerns are met in the Bill. Any resident may request a copy of the strategy from the accountable person. I can also assure him that the intention of his insertion of a new paragraph (c) into Clause 93(6) is already achieved. Residents may raise complaints regarding breach of the accountable person’s statutory obligations in respect of the residents’ engagement strategy, and such complaints may be escalated to the building safety regulator where not dealt with satisfactorily by the accountable person.
In respect of Amendment 46A, I assure my noble friend that his intention has already been met in the Bill, which includes an obligation on the principal accountable person to consider how to encourage
resident participation, and to review the effectiveness of the strategy. This duty goes beyond engagement with official residents associations and applies to all residents in a building, covering both those in a residents association and those outside it.
Requiring an accountable person to engage with a residents association rather than considering how best to promote participation by all residents in a building would undermine our intended goal of considering engagement across all residents—both those actively engaged in the management of their building and those who are not. I want to reassure my noble friend that under the provisions in the Bill, if a residents association felt that its participation had not been properly considered in the preparation of a resident engagement strategy, it would be able to challenge this under the complaints procedure.
My noble friend has tabled amendments to allow for penalties to be imposed on accountable persons who fail to consult residents properly, or to set up a proper complaints process in a reasonable time. I can assure him that these aims are accounted for in the Bill already. The building safety regulator has the ability to impose sanctions on accountable persons who fail to comply with their duties under the Bill. These include compliance notices, criminal prosecutions and, in extreme cases, on application to the First-tier Tribunal, putting the building into special measures.
I can assure my noble friend that the aim of his new clause proposed after Clause 94 is also already accounted for in the Bill. If the accountable person fails to supply prescribed building safety information to a resident within a reasonable timeframe, that is a breach of the accountable person’s duties. As I have already set out, residents can raise complaints, and escalate these to the regulator where appropriate, in respect of breaches of accountable person duties, and the regulator has the ability to impose a range of sanctions on accountable persons. Amendment 49 might also impose an undue burden on residents to enforce accountable person duties. Enforcement properly sits with the regulator, which has appropriate sanctions at its disposal.
Moving on to Amendments 51 to 55, one of the duties the Bill imposes on residents is the duty not to interfere with relevant safety items. My noble friend’s Amendment 51 would delete the definition of “relevant safety item” and proposes that this definition is set out in regulations. However, we believe that this definition is helpful to have in primary legislation. I can assure my noble friend that the Bill already allows flexibility for the definition of relevant safety items to be added to through secondary legislation in the drafting of the definition of “relevant safety item”. If he has concerns about the interpretation of the definition, we can consider publishing guidance on how this duty and definition are intended to operate in practice.
Amendments 52 to 55, which amend Clauses 98 and 99, would change the body enforcing contravention notices and access to premises requests served on residents from the county court to the building safety regulator. Contravention notices are served by accountable persons in respect of alleged contraventions of residents’ duties under the Bill. Access requests to residents’ premises are served by accountable persons with the
purpose of establishing whether a resident duty has been contravened or to allow the accountable person to carry out their building safety duties.
These are similar to issues that arise between landlords and tenants and there may well be areas of crossover with rights of access under leases and breaches of terms of leases. We would expect accountable persons to seek to resolve such issues directly with residents in the first instance and where necessary escalate to the courts rather than handing over to the regulator to arbitrate.
The courts are already well set up to deal with these types of disputes. They have established rules and procedures to achieve fairness and are familiar with the issues and considerations that arise. The building safety regulator is not equipped for arbitrating over matters relating to resident behaviour, as its principal enforcement role under the Bill is in respect of breach of accountable person duties. Contravention notices may also include a requirement on the resident to pay a specified sum. The county courts are well equipped to deal with this given their powers to hand out judgments for debts against individuals.
On Amendments 85 and 87, again tabled by my noble friend Lord Blencathra, I have to say that he has intellectual agility. One week he is chair of the DPRRC—the Delegated Powers and Regulatory Reform Committee —and wanting to avoid all kinds of Henry VIII powers, and the next minute he is saying, “I want to give the Secretary of State permissive powers.” I am sure that my noble friend the Secretary of State will look carefully at these amendments.
Today, however, in Committee, on my noble friend’s Amendment 85, it is vital that residents of high-rise buildings have access to relevant building safety information, and this is a key tenet of the Bill. The Bill divides building safety information provided to residents into two categories. The first is key information that all residents receive when they move into the building. The second is information that residents may request—we expect this to be more detailed and technical information. Building safety information under the Bill is available to all residents over the age of 16 and owners of flats in the building, regardless of tenure. Again, I assure my noble friend that his intention has been met. The Bill contains powers to prescribe in regulations what information will fall within each category. The Government intend to consult on these regulations later this year.
Amendment 87 seeks to improve redress for leaseholders by allowing the regulator, the ombudsman or another organisation to act on behalf of leaseholders in taking action against a developer, contractor, landlord or freeholder in relation to complaints about fire hazard remediation. I recognise and support the intention behind this amendment, but I am pleased to say that there is no longer any need for it. Noble Lords will have seen the amendments tabled in my name on Monday 14 February providing protections for leaseholders and relieving them of much of the costs of remediation. We will debate those shortly.
In developing the leaseholder protection amendments, we considered options around supporting leaseholders in taking action against those responsible for fire
hazards. I am pleased to say that we have gone further. Rather than setting an expectation that government will step in, we have put responsibility back on the freeholder and landlords. It is not for government to intervene in individual cases which should be resolved by private landlords. I thank my noble friend for raising this important matter but respectfully ask him not to press his amendment.
On Amendment 50A, my noble friends Lord Young and Lord Blencathra—a fearsome grouping—are acting in tandem with the right reverend Prelate the Bishop of St Albans.
I want first to respond to the noble Lord, Lord Khan, on resident engagement. I reassure him that there has been considerable resident engagement as part of drawing together these proposals within the Bill. I have been party to a number of those as the Minister, as this is my prime ministerial area. In fact, we were able to bring together the resident engagement that is forming part of the work of the new building safety regulator within the HSE and the people who are putting together the Bill, so that resident engagement happened as part of a more joined-up programme. That has been considerable, and I assure him that that will continue as we move to creating the building safety regulator in law.
Turning to my noble friends’ amendment—I do not think I will call them a “terrible trio” as that is probably not the right way of winning them over, but they are a fearsome trio—Amendment 50A relates to where a landlord has more than two tenants. This amendment places a duty on the landlord to consult recognised tenants’ associations on the residents’ engagement strategy and on planned long-term maintenance or improvements to common parts. Where there is no recognised tenants’ association, the amendment would require the landlord to create one. Effectively, it is calling for mandation as opposed to empowerment.
This is a point where I want to depart from just simply giving the Committee these words to say that I understand that noble Lords are trying to bring forward an amendment designed to deal with the problem landlord. The right reverend Prelate the Bishop of St Albans mentioned that the problem landlord is not the norm but the exception. I suggest that we continue to work together to understand that in more detail and recognise the points that have been highlighted. If we are going to look at mandation, we must understand why it is required and why empowerment simply does not work. I am keen to engage to understand instances where we feel that mandation has to be the way forward. Mandating anything on a landlord is quite a thing to do. That is what I propose we do with regard to this amendment so that we as a Government understand the particular concerns, because we would prefer to use empowerment as a route to achieve those ends.
I always love a speech by the noble Baroness, Lady Fox of Buckley, because the way she delivers the argument always makes me feel that I should agree with it, but unfortunately, reading my response, Amendments 50B, 50C, 50D, 50E, 51A, 51B, 52A, 52B, 52C and 53 seek to prevent landlords using minor or suspected breaches as a tool to interfere in people’s homes. Turning to those amendments to residents’ duties and the inclusion
of materiality as the required threshold for a resident breaching a duty, I assure the noble Baroness that her intention has already been met. An action is a breach only if it creates a significant risk of a building safety risk materialising. The current definition protects against the duty being misused by an accountable person for non-material issues as the risk must be significant. A relevant safety item is one that is intended to improve people’s safety, therefore any damage or interference with its intended function could cause a significant safety risk. We would expect accountable persons to apply common sense when enforcing any resident duties, and we will work with the regulator regarding issuing guidance to accountable persons in this respect.
The noble Baroness suggests we require detailed requirements on contravention notices—
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