Building Safety Bill (Seventh sitting)

Mike Amesbury Excerpts

Tuesday 21st September 2021 Public Bill Committees

[Christopher Pincher]

My hon. Friend is quite right: we must ensure that every player in the design, development and construction of in-scope buildings recognises the importance and powers of the regulator and the penalties that may apply should any attempt be made to obstruct or impersonate it. The offences will carry a maximum custodial sentence of up to two years to provide an effective deterrent to non-compliance. I hope that my hon. Friend recognises the power and veracity of the penalty.

I hope that members of the Committee will agree that this clause is key in enabling the regulator to carry out its functions effectively, drawing on the expertise and involvement of local authorities and fire and rescue services.

Clause 22 makes it a criminal offence to obstruct or to impersonate an authorised officer of the Building Safety Regulator. Under clause 21 and schedule 2, authorised officers will play a significant role in exercising powers on behalf of the regulator. This clause is designed to protect authorised officers by ensuring that they are not impeded and that they—and, by extension, the Building Safety Regulator—can go about their business of keeping residents safe.

Clause 22 does that by deterring and, if necessary, enabling the punishment of those who seek to obstruct or impersonate authorised officers—behaviour that could severely disrupt or sabotage critical building functions. The difference in penalties for obstruction and impersonation are proportionate to the expected gravity of each offence, reflecting the greater intent required to impersonate an authorised officer. The penalties mirror existing penalties for obstructing or impersonating a police officer and reflect similar provisions protecting staff of other regulatory bodies such as the Food Standards Agency and the Financial Conduct Authority.

The two clauses are crucial components of building the regime of the Building Safety Regulator and I commend them to the Committee.

[Mike Amesbury (Weaver Vale) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Efford.

As the Minister rightly said in his introduction, clause 21 ensures that appropriately trained individuals secure the involvement of local authorities, key stakeholders and fire and rescue teams in working with the Health and Safety Executive and the regulator.

The current definition of at-risk buildings is those of 18 metres and above. I have said throughout proceedings on the Bill that the scope of “at risk” should be broadened, and we will debate that under later clauses.

We welcome the recommendations, which draw on the findings of the independent review conducted by Dame Judith Hackitt.

How will the regulator ensure that individuals are appropriately trained and qualified under the framework? An example arose yesterday on social media of a resident living in a block in Bournemouth. The block was signed off by a previous employee of the council but it has been riddled with fire safety issues that we in this room and beyond are all familiar with. The individual has now set up as a private contractor, free to assess so-called fire safety issues in other at-risk buildings.

Clause 22 is straightforward, and we agree with it. Although it is beyond the Minister’s remit, a £1,000 fine for impersonation seems little deterrent, given the amount of money involved in building construction. As the Minister said, current levels of fines under the justice system for impersonating police officers will apply.

[Shaun Bailey]

It is a pleasure to be back on a Committee with you, Mr Efford, and to see you in the Chair. I shall keep my comments brief because my right hon. Friend the Minister articulated most of the relevant points in his customary clear manner. I do not want to be repetitious.

Clause 21 is positive. It reinforces the non-siloed approach that we need to take to building safety. The Building Safety Regulator has the ability to work with different agencies and ensure it can meet its goals. The ability to gain entry to buildings and ensure compliance is important. We discussed the issue last week and it was clear that safety has to be at the heart of this. We must ensure that the mechanism safeguards residents.

We also discussed last week the need to ensure that the regulator is not beholden to anyone—that it is independent. I was heartened by the comments made last week by my right hon. Friend the Minister about the regulator always being the independent voice, especially in its engagement with third parties to deliver the objectives in clause 21.

Clause 22 deals with the criminal offence element. As I said in my earlier intervention, it reinforces the role of the Building Safety Regulator. It says to the industry and to stakeholders, “You have to take this seriously. You cannot stop the regulator doing what it needs to do to keep people safe.”

The introduction of a level 3 fine seems proportionate, but I implore the Minister to use a degree of flexibility. As circumstances change, things might need to become a bit more severe. I hope not. I hope that the Bill will lead to a sea change in the environment we have seen hitherto. The fact that we have put obstruction of the regulator on a statutory footing will reinforce that.

I fully support the clauses and wish them well.

--- Later in debate ---

[Christopher Pincher]

We certainly want the system to be transparent and the outcome to be agreeable to both parties, so that things can be done as swiftly as possible. We certainly want to make sure that the right resources are made available to all parties to ensure that that can be done. I am grateful to my hon. Friend for highlighting the importance of swift and transparent resolution.

As I have said, the right of appeal to the courts remains and if I give an example of how the system may work in practice, it may assist the Committee and my hon. Friend the Member for Bassetlaw. Relevant duty holders may have submitted a full gateway-2 application with all its constituent parts. The Building Safety Regulator, however, finds some of these documents to be not compliant, so does not approve the application to enable construction to begin. The developer then lodges an appeal—an internal review—against the Building Safety Regulator’s decision within the period prescribed. The BSR then decides the most appropriate form of review and how comprehensive the review will be. If the developer is not content with the final decision of the regulator, they can appeal that decision to the first-tier tribunal. I might add that this clause is intended for certain types of regulatory decisions, such as the example of the refusal of a gateway application, but it does not include enforcement decisions, which will be appealable directly to the tribunal. The clause reflects our intention that, where disputes occur in relation to regulatory decisions, we want them to be resolved as rapidly as possible for all parties involved.

Where disputes regarding the regulator and its decisions occur, and given that the BSR will make a significant number of regulatory decisions, it is in all parties’ interests for them to be resolved in an expedient and expeditious manner. Clause 25 therefore specifies that a decision by the BSR, if disputed, must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal. The intention behind this clause mirrors that of clause 24, because it seeks to ensure swifter resolution for both the individual who has lodged the request and for the BSR by providing an alternative dispute resolution procedure. It is important that disputes are swiftly identified and rapidly resolved, we hope, to the satisfaction of all parties. We believe that the two clauses provide an expeditious set of methods, so I commend them to the Committee.

[Mike Amesbury]

Again, we welcome the ability to request a review and the provision for a first-tier tribunal, which will create the necessary expertise going forward. The detail of quite a lot of the provisions is left to secondary legislation, so will the Minister expand on some of that? Would he also provide some clarity on the persons directly impacted and an example of when the regulator would intervene because it is not happy with the work carried out by the developer? In what circumstances could the developer apply for a review?

--- Later in debate ---

[Christopher Pincher]

We certainly do not want inappropriate data to be shared. As I said earlier, these powers and data-sharing rights relate specifically to the work in hand of the Building Safety Regulator. They do not override ordinary data privacy rules and requirements. We shall certainly—as this House will want to—monitor that that data is used appropriately.

Given the potential significance of new duties to co-operate and of information-sharing gateways, any regulations creating them will be subject to the affirmative procedure. In a Committee of the House—if necessary, on the Floor of the House—therefore, there will be an opportunity to debate and vote on them.

Placing duties to co-operate and powers to share information on a statutory footing will encourage collaborative working to improve building standards and to ensure resident safety. That will all be done as expeditiously and transparently as possible. I commend the clause to the Committee.

[Mike Amesbury]

We support the clause and the schedule. They are pragmatic, common sense and based on learned experience—the experience of those who were ringing alarm bells for a considerable number of months with regards to Grenfell and other tragedies before that. The evidence is crystal clear: people being passed from pillar to post and information being lost and in some cases hidden from key stakeholders. Strengthening the provisions and the regulatory regime is most welcome. In 2018, I noted, Kensington and Chelsea was again found wanting by the Information Commissioner—on withholding information about building safety in Grenfell. The Minister was right, as were others in all parts of the Committee, about building trust in the new regulatory regime. That is vital.

[Shaun Bailey]

I feel that my contribution might be slightly repetitive, given the broad agreement on the clause in Committee.

The hon. Member for Weaver Vale was right that the clause is pragmatic. He was spot on when he said it is about rebuilding trust in the processes. Like my hon. Friend the Member for Stroud, I trained as a lawyer and I know the frustration when bodies do not share information with one another. We have to remember—the hon. Member for St Albans picked up on this in her interventions—we are dealing with people who do not understand the systems, but will have to access them. After looking at the array of information, should someone send their concern or query to the wrong body—unaware that they had done so—we have to ensure that it is still actioned. We are dealing with situations and problems that impact on people’s lives: this is about the safety of individuals in their homes. Where that happens, we have to ensure that seamless sharing of information and co-operation between the agencies—the clause does that.

It is also right for those organisations to co-operate with one another. As we touched on last week in our deliberations, we cannot have a siloed approach. Organisations have to communicate and work together. We have to build a structure within the legislative framework that not just enables that, but to a degree ensures it happens and almost makes it the default that they have to share information, because that is the system in which they find themselves—so there is no way they can avoid doing so.

That being said, the proof of how this will work is in how it is delivered operationally. What will be vital for the regulator to do and for my right hon. Friend the Minister to work on is to ensure that the operational delivery works, that the systems are there to allow that to happen and that the communications are there, that agencies are talking to one another and we have computer systems that do not just fall down at the first moment, but can operate. Once the system becomes operational, I will be looking at how it functions.

I am heartened to see an emphasis on data privacy. We have to get the balance right. Ultimately, we are dealing with personal data. We still need to ensure the right of individuals to have their personal data safeguarded, and their right to remain anonymous, where necessary, is also important. We must ensure that data is dealt with appropriately.

It is right to handle the situation by putting a duty on the different stakeholders. The way we have had to deal with these horrendous issues has been through a multifaceted, multi-stakeholder approach, so we are going to have to build networks. As is often the case, when the networks are built, there is then pressure to ensure that operational delivery works.

I support the clause and am heartened to see what is in schedule 3. We have to ensure that the clause can deliver, and it will be for my right hon. Friend the Minister, his ministerial colleagues and the civil servants to ensure that can happen. If the clause delivers and we ensure that it works, we will have a seamless system that people trust, and people will know that if they have concerns, they will be addressed.

--- Later in debate ---

[Christopher Pincher]

Once again, my hon. Friend flatters me in his description of my expertise. I have certainly had some experience of IT programmes in the context of Government that have gone awry. The national IT programme, Connecting for Health, is just one example. I certainly agree to keep a gimlet eye open on the way IT is deployed in this and other circumstances while still recognising the operational independence of the agency and the Building Safety Regulator.

My hon. Friend is right to ask for lessons learned. That segues nicely into the point made by the hon. Member for Weaver Vale when he talked about the importance of learned experience in the context of Grenfell. He is right. That is one of the reasons we want to make sure that the Building Safety Regulator and the associated multi-disciplinary teams have the flexibility to learn. Again, that is why we want to use effectively secondary legislation and regulations rather than primary legislation so that there is the flexibility to build the new authority.

The hon. Gentleman mentioned the challenges of withholding information, and I refer him back to clauses 22 and 23 when we dealt with that issue and made it very clear that withholding information is a grave offence that can be punishable by a fine. He is right also to stress the importance of trust and flexibility. Again, that is a reason why we want to build the multi-disciplinary teams so that the BSR can co-operate with other expert parties. That will help to build the confidence of residents in high-rise blocks as well as that of developers, large and small, and those involved in the construction industry that there is the appropriate degree of co-operation and trust.

[Mike Amesbury]

There are a number of live applications to the building safety fund, and this is a practical plea on behalf resident leaseholders that many in the Committee will be familiar with. The information on progress is not being shared, and that is a genuine building safety issue that causes considerable anxiety. It has been raised on the Floor of the House, and it is relevant to the discussion that we are having now. It is a practical plea that many residents and leaseholders up and down the country have raised.

[Christopher Pincher]

I shall expand a little on the scope of this debate to answer the hon. Gentleman very briefly. He will know that we have put aside £1 billion of public money for the building safety fund, and a significant amount has now been disbursed. If there are specific examples of challenges around information being shared or the speed of delivery being effective, I will be happy to look at them.

In summary, clause 26 and schedule 3 will empower the Building Safety Regulator to work closely with other public bodies with responsibilities for building safety and standards. They will encourage collaborative working to improve building standards and ensure residents’ safety.

I am very grateful for the contributions that we have heard from across the Committee but, before I conclude, I should refer to the hon. Member for Liverpool, West Derby who asked about resources. He will know from our deliberations last Thursday that I made it clear that we have increased the resources available to the Health and Safety Executive by 10% of its total budget during the covid emergency. We have also committed to make sure that the Building Safety Regulator is appropriately funded. That is a matter for the spending review, but we have also—he will have seen this as we have progressed through the Bill—put in place clauses that will allow the Building Safety Regulator to charge and levy fees on appropriate parties to ensure that cost can be recovered. I hope that will give him some assurance that we have at the forefront of our minds appropriate funding to ensure that the Building Safety Regulator can do its work.

I commend the clause to the Committee.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 27

Fees and Charges

--- Later in debate ---

[Christopher Pincher]

I am grateful to the hon. Lady.

The clause enables regulations to be drafted to allow fees to be charged for the Building Safety Regulator’s general functions in part 2 of this Bill, its functions regulating the higher-risk buildings in occupation and its functions under the Health and Safety at Work etc. Act 1974. The Government’s approach will ensure that fees and charges are appropriate. In line with the principles set out in “Managing Public Money”, the Building Safety Regulator will not make a profit on fees and charges for its regulatory activities. They are merely a means of cost recovery.

Setting out fees in secondary rather than primary legislation and allowing the Building Safety Regulator to put certain details in a charging scheme will ensure that fees can change over time. I hope that helps to address the questions that my hon. Friend the Member for Bassetlaw asked.

Initially, the Building Safety Regulator will have to use assumptions to develop fees, but once set up it is standard practice for a public body setting a fee for cost recovery to recalculate fees based on actual experience. This allows the regulator to learn from experience and change the way it charges fees over time to ensure they are both effective in recovering the appropriate amount of money, and proportionate and fair to those charged. Making provision for fees in regulations allows for regular scrutiny of proposed charges through consultation and, importantly, by Parliament. To deliver the recommendations of the independent review and put the Building Safety Regulator on a firm financial footing, we expect that the regulator will charge the accountable person for regulating their actions under part 4.

We will have an opportunity to debate all the issues about which costs the accountable person should fairly be capable of passing on to leaseholders when we come to part 4. However, I will briefly reassure the Committee that part 4 of the Bill ensures that any costs associated with enforcement action by the Building Safety Regulator or resulting from any negligent or unlawful act by the accountable person cannot be passed on to leaseholders through the building safety charge, so the potential costs we are talking about in the clause cannot be passed on to a leaseholder in that way.

That safeguard provides a financial incentive for the accountable person to do the right thing, as I indicated to my hon. Friend the Member for Bassetlaw, because the accountable person will bear the Building Safety Regulator’s costs when it has to tackle serious failures. The Government are working closely with the Health and Safety Executive to develop these proposals, building on its strong track record of successfully delivering cost recovery regimes—a track record that dates back to 1975, so it has some 46 years of experience.

The Health and Safety Executive rightly aims for the Building Safety Regulator to become a world leader in its field and to share best practice and expertise with international partners on a commercial basis. That is another means by which some funds can be raised. Subsection (6) enables the Secretary of State to approve commercial charging by the Building Safety Regulator. This power will be used only with the consent of the Secretary of State and in line with Government guidance on charging.

We believe the clause is vital to ensuring that the Building Safety Regulator has the funding required to enable it to do its critical work, that the accountable parties do the right thing and that any costs associated with these clauses are not passed on to leaseholders or residents through the building safety charge. I commend the clause and the amendments to the Committee.

[Mike Amesbury]

I thank the Minister. The amendments are a tidying-up and technical exercise that we quite naturally support. I heard what the Minister said about fees and charges, and obviously there have been a number of questions about those fees and charges potentially being passed on to leaseholder residents. I know that where there is a regulatory failure, and fees and charges are passed on to the accountable person, those cannot—I am seeking clarity on this one—be passed on to leaseholders. Is that the same for service charges as well?

[Shaun Bailey]

This might seem quite a technical clause and set of amendments, but it is an important one. I speak as the Member for the 14th most deprived borough in the country. I am conscious that we have to strike a balance, and I was quite reassured by what my right hon. Friend the Minister said.

Starting from the beginning, it is not uncommon for bodies to charge fees in respect of their activities, where necessary, and in particular bodies that exercise a function such as the regulator. In a way, clause 27 and the accompanying amendments are not uncommon in the nature of what we are discussing. The broader point, which has been made by Members on both sides of the Committee, is that we have to ensure proportionality. That was the key point made by the hon. Member for Weaver Vale.

We need to find a way to ensure that the regulator itself is financially stable and can carry out its work properly; it has to be able to undertake tasks that will be so important in keeping residents safe, and in ensuring that the industry knows it is being regulated and watched. A lot of the detail will be set out in secondary legislation, and it will be incumbent on all of us across the Committee to grasp the detail of that to ensure that it is done in the right way. I think of the leaseholders in my constituency who would not be able to afford ridiculous levels of service charge; it would not strike them as proportionate. However, there is clearly a balance to strike.

I listened to the intervention from the hon. Member for St Helens South and Whiston. She is a distinguished former council leader, and at some point she will have had to make decisions about what to charge for council services. It is difficult, when leading a public body, to decide how to balance those charges with the needs of the public. I do not envy anyone in that situation. Ultimately, we all agree that we want to deliver a public service in the way that has the least impact on the livelihoods of the people trying to use it. They are taxpayers too; they want to feel that they receive that public service when they pay their taxes.

Clearly, as my right hon. Friend the Minister has articulated, the key principle is ensuring that the regulator can carry on. What I am trying to express to my right hon. Friend—something that he has articulated in his contributions—is the need to be open-minded in terms of how that operates. We all accept that there has to be a fee-charging regime, but we have to ensure that it is proportionate and accepts the fact that the people at the right end of that are leaseholders and residents, and those are the people we are here to protect and serve. We need to make sure there is the right balance. I get the impression from the contributions made from across the Committee that there is acceptance that this has to be done. It is probably broadly agreed that the methods proposed in the clause are the way we need to do this but, as with much of our deliberation of the Bill thus far, the detail will come afterwards in the secondary legislation.

--- Later in debate ---

[The Chair]

If you put it in the form of a speech, then I am sure the Minister will have the courtesy to respond to you.

[Mike Amesbury]

Again, we have moved on considerably since 1984. If we take our minds back to 1984—I notice that some probably cannot—we have since seen the development of emails and various other things. This certainly brings those provisions up to date, with the narrative descriptions contained in clause 29. I will give way to my hon. Friend and colleague.

--- Later in debate ---

[The Chair]

That intervention is rather long.

[Mike Amesbury]

I thank my colleague for her intervention. I am fairly confident that the Minister will oblige by furnishing her with an answer, if not now then soon.

[Shaun Bailey]

I am sure that many on the Committee are wondering what on Earth I could have to say about the service of documents. I would, of course, have given way to the hon. Member for Brentford and Isleworth. I was hoping to rise to put an important question to the Minister, but I am glad that the hon. Member for Weaver Vale was able to help the hon. Lady.

I know this is an incredibly technical clause, but I speak from some painful experiences around service of documents in my previous life. While it might seem straightforward and we look at the clause and think, “OK, fair enough. It is very prescribed and descriptive”, I must say that having explained how service of documents works to numerous people, that is not the case.

My right hon. Friend the Minister articulated incredibly well how it will function. On the face of it, it is straightforward. We look at subsection (2) on how documents may be given and think, “OK, that seems pretty straightforward to me”. I implore him—I hope I am not going astray, Mr Efford, but I am sure you will tell me if I am—that we must ensure this is communicated to the people who will be utilising it. These are people who may not have a lot of experience of how documents are served. They are not doing this all day, every day. From my past life, I know the pain of having people who do not have the experience and are trying to do this themselves, and it causes issue after issue.

One thing that may come out of this, which touches on some of my previous comments, is around the idea of data share and co-operation. Without sounding flippant, the documentation we served and the information that would be exchanged using the process will be an important part of a vital regulatory process. It is vital that we ensure that is communicated as clearly as possible and the individuals who use the processes laid out in clause 28 understand how that operates. I do not want to see circumstances where legitimate problems and concerns are delayed because of a misunderstanding or issue with the process.

I reiterate my concern that if we do not ensure the provisions of clause 28 are translated down in a usable way to individuals, we run the risk of processes we have built up to now and have deliberated in previous clauses not being as effective as we would like.

I am glad that the clause understands that times have moved on. Gone are the days when things were couriered round. Email has been revolutionary. I remember from my professional life having to run round to another firm’s office to serve stuff. I was the junior so I made tea and served documents.

I am happy to see an understanding that the provision can be amended under subsequent regulations too. We have to be conscious that time and technology moves on, and we must ensure the process can continue and still function as things progress. While this may seem to be a very technical clause—I hope I have answered the question as to why on Earth I am speaking on this particular point—it underpins the importance of this process. Ensuring that the service of documents is done in a clear way and that those who utilise the process, from the large corporations down to the individual, understand how it functions properly will be key to ensuring that everything we have done up until now functions appropriately. I am heartened by the Minister’s contribution and he was very clear. I am glad to see that, as with most clauses in the Bill, there is a degree of flexibility in clause 28, and it is a vital part of this important Bill.