My Lords, I want to comment on and ask some questions about the amendments in this string that relate to the building safety regulator: Amendments 467D, 467E, 504GK, 504M, 509D and 513.
The Minister somewhat skated over their significance; I have some serious questions to ask. It is worth pointing out that these amendments tabled by the Government are so out of scope that one of the amendments is seeking to extend the Bill’s scope so that they can be included.
Briefly, these amendments would give the Secretary of State powers to scrap the building safety regime set up by the Building Safety Act, which was passed just 12 months ago. That regime, with a new building safety regulator under the auspices of the Health and Safety Executive, was a specific and central recommendation of the Hackitt review, which the Government accepted in full at the time and which had the sustained support of your Lordships’ House at every stage of the Bill’s passage. There was criticism of that Bill as it went through this House but it centred on the inadequate compensation provisions and the uncertainty created by the delay in bringing the regulatory regime fully into force, which does not actually happen until later this year. No concerns were expressed about the regulatory mechanism being set up.
The 18-month delay in the coming into force of that regulator was said by the Government at the time to be necessary to allow time for the regulator to set up shop and because of the need for the construction industry to train up qualified personnel and then deliver, in accordance with the regulator’s requirements. Bringing the building regulation system under the Health and Safety Executive was warmly welcomed on all sides. Again, the criticism was that its reach was too limited and should not be confined to high-rise and high-risk buildings; it was said that the regulator’s remit should be expanded. No voice was raised that this was the wrong model, still less that it was unfit for the essential job of upgrading building standards drastically and rapidly following the Grenfell Tower fire.
Last year, the Government resisted the expansion of the regulator’s role on the grounds that it had to learn to walk before it started to run. Since the regulator was appointed, multiple workstreams and training programmes have begun throughout the construction industry in what is undoubtedly one of the most challenging catch-up operations that it has ever faced. The industry has faced up to it because of the unflinching, no-holds-barred approach of the regulator—strongly supported, of course, because of the certainty that primary legislation gives it—means that it had no choice. There is no risk—or, in some quarters of the construction industry, no hope—of the regulator going soft over time because it is there through primary legislation with a very strong remit.
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That has led to a settled determination in the industry to face up to the costs and difficulty of compliance. These amendments undermine that certainty and very much risk causing confusion in the industry—real and confected. That may be used as an excuse for delay and for second-guessing the Health and Safety Executive regulator’s requirements. It certainly risks blunting the focus of the regulator in the vital next 18 months, which is exactly when it will need the most muscle and determination.
The abrupt and unexpected departure of the first regulator, appointed earlier this year, can now be seen in that light. Who would want to join a new public body, such as the regulator, and take up a career in an organisation that the Government have announced that they intend to replace at short notice? Who would want to lead it? My first question to the Minister is: what assessment have Ministers made of the impact on the existing regulator’s capacity to recruit and retain high-quality leaders and staff in the face of its imminent dissolution? These amendments thrust the vital building safety regulatory regime into limbo at the most critical moment of its existence. Therefore, there must be a truly compelling reason to introduce them.
The Government’s answer, such as it is, is that there might be a need to respond very rapidly to some dramatic unforeseen recommendations in the final report of the Grenfell inquiry. It is not too difficult to envisage recommendations which could be very wide-ranging and require systemic changes, not least to the aspects of the functioning of the police, the fire and rescue service, local government, central government, housing providers and landlords. It is easy to imagine that there could be very powerful recommendations forthcoming. However, in respect of the building safety regime, its recommendations, if any, are highly likely to be about increasing the remit and scope of the regulator, created directly from the recommendations of Dame Judith Hackitt and unlikely to propose the dissolution of the building regulator. It would be especially alert to the risks of doing that at such a critical inflection point in getting a rapid improvement in building safety. So my second question to the Minister is: have the Government got further and better information than me about the nature of the recommendations which might come from that inquiry, which contradicts my assumption that they are highly unlikely to require that the building safety regulatory regime be dismantled?
If the Government were right last year that the building safety regulator would need 18 months to set itself up, how long would it take to set up the replacement that the Government propose? If the Government were right last year that the regulator needed to learn to walk before it began to run, how long do the Government imagine that their own back-of-the-envelope new scheme would take from the publication of the statutory instrument to the full performance of its functions? So my third question is: how will the necessary upward trajectory in standards, which is needed right across the building industry, be maintained during any transition period from the system that they dismantle to the system that they propose to introduce via a statutory instrument? If my concerns are misplaced and the Government have got the outcome that they want, and their proposition is a correct one, then the method they have chosen by which to achieve it in the amendment is wrong, in principle and in practice.
In principle, such a dramatic reversal of a recently taken and widely supported measure put in primary legislation ought not to be left to Ministers, using a wholly flawed so-called affirmative procedure, to change completely without proper accountability to your Lordships’ House. In practice, there is an enduring government record of failures of perception and awareness
when they draft statutory instruments on the hoof. Blunders are frequently made, obvious consequences are often overlooked and post-publication rectification now happens with over a third of statutory instruments as a result.
However, this is not a statutory instrument about labelling jam correctly or minimum net sizes for catching fish in the Atlantic. It is about the most fundamental job of government: to keep its citizens safe, where blunders have consequences, and where time and again it has been proven that, when there is proper scrutiny, blunders are reduced. There is less sloppy work in the first place, because people know it will be scrutinised, and there is more chance of catching those errors that slip through simply because of that scrutiny. In this case, avoiding Whitehall blunders means lives can be saved.
My fourth question to the Minister is: what assessment has been made of the alternative option of introducing emergency legislation, should some unlikely conjunction of events require it, rather than taking a provenly risky route of bringing forward a statutory instrument as proposed in the Government’s Amendment 504GK? I could spend time pointing out just how foolish this proposition is, but I have posed four questions and, without clear and positive answers by the Minister today, these matters will certainly have to return on Report. This is too important an issue to leave lying as a set of amendments on the 14th day of Committee consideration, shoved into the Bill without detailed consideration and, in my opinion, detailed reconsideration.