Building Safety Bill - House of Lords Committee Stage Rundown

Peers attending the sessions included:

• Minister for Building Safety & Fire, Lord Greenhalgh (Conservative) 

• Lord Foster of Bath (Liberal Democrat) 

• Baroness Brinton (Liberal Democrat) 

• Baroness Neville-Rolfe (Conservative) 

• Lord Crisp (Crossbench) 

• The Earl of Lytton (Crossbench) 

• Baroness Grey-Thompson (Crossbench) 

• Lord Stunell (Liberal Democrat) 

• Baroness Hayman of Ullock (Labour) 

• Baroness Pinnock (Liberal Democrat) 

• Lord Khan of Burnley (Labour) 

• Baroness Scott of Bybrook (Conservative) 

• Lord Blencathra (Conservative) 

• Lord Best (Crossbench) 

• Baroness Fox of Buckley (Non-Affiliated) 

• Baroness Bloomfield of Hinton Waldrist (Conservative) 

• Baroness Jolly (Liberal Democrat)

We have compiled a summary of the key points raised in the sessions and noted any amendments made.  

Clause 3 (The regulator: objectives and regulatory principles):  

• Lord Foster of Bath proposed an amendment (Amendment 1) to Clause 3 requiring the building safety regulator to exercise its functions with a view to furthering the protection of property. During the second reading (2 February) of the Bill, Lord Foster argued that there was a misjudgement in the threshold for success of current fire safety regulations in that if all occupants escape from a fire, but the building is destroyed this is deemed a success. Lord Foster proposed an amendment that would revise the wording of the Bill to focus more on the protection of property, which as a result, would add the protection of property to the list of purposes for which building regulations may be made; extending the requirements of persons carrying out works on a building to cover building resilience; and widening the scope of the building safety regulator’s functions to further the protection of property. In Lord Foster’s opinion the Bill in its current form does not address the potential loss of livelihoods or personal possessions resulting from a fire. 

• Baroness Neville-Rolfe added that she was not comfortable with the duties of the regulator as set out in Part 2 of the Bill as the duties are almost exclusively focused on improving safety and are light on the needs or expertise of the regulator. She was concerned that the new regulator could also have a negative impact on housing delivery. To address this, Baroness Neville-Rolfe tabled an amendment (Amendment 2) requiring the regulator’s activities to take account of the need to work with builders and technicians, the financial situation of smaller businesses in construction and the need to minimise bureaucracy. 

• Baroness Haymen of Ullock provided support for this amendment stating that if the Bill is to be truly successful, the Government must bring the industry with them, taking account of the needs of those running the businesses and working in the industry.  

• Lord Crisp proposed an additional amendment (Amendment 4) to Clause 3 to clarify the meaning of “safety” to include health and well-being. The amendment sought to clarify that the building safety regulator should consider human health and well-being in discharging its building functions. In practice, this would mean that the regulator, being part of the Health & Safety Executive (HSE), must consider these aspects as part of safety when it exercises building functions under clauses 4, 5 and 6 as well as under the functions of the Health and Safety at Work Act and the Building Act.  

• Baroness Grey-Thompson tabled an additional amendment (Amendment 9) to Clause 3. This amendment would place greater emphasis on the need to recognise that disabled people have greater support needs when considering residents safety in high-rise buildings. Baroness Grey-Thompson summarised that if clauses do not specifically mention disabled people, they will be forgotten. The Baroness asked that disabled people are mentioned in specific and crucial parts of the Bill, including on residents’ panels. In relation to the specific wording of the Bill, Baroness Grey-Thompson criticised the details provided by former Secretary of State for Housing, Christopher Pincher MP when he said that the needs of vulnerable people have already been considered in drafting the Building Safety Bill regulations as she felt that his clarifying statements did not go far enough in accounting for the unique safety needs of vulnerable people living in high-rise buildings and instead applied one-size-fits all approach which would not work.   

• Baroness Hayman of Ullock also provided support for this amendment and added that high risk, as a term, is not just about height. It also includes the construction of a building, its safety standards and who lives in it. Baroness Hayman felt that the Bill, in its current form, leaves a number of fire safety issues unresolved, from the lack of a national strategy for evacuation to the absence of a requirement to plan for the escape of disabled residents. Baroness Hayman proposed that there is a need to change the definition of ‘high-risk’ buildings to ensure that the scope of the new regulatory regime includes all supported accommodation as well as residential care homes, regardless of height.  

• The Minister for Building Safety & Fire, Lord Greenhalgh responded to the proposed amendments with the following comments. On amendments referencing the scope of the Bill, Lord Greenhalgh stated that if the scope of the Bill is further widened, there is an increased risk that the Government will fail the primary duty of the Bill. He added that these amendments are being resisted as it is not reasonable to expect the HSE to cover these issues without time to grow into their role. On Amendment 1, Lord Greenhalgh stated that the building safety regulator should exercise its functions in line with its first objective, to secure the safety of people in and around buildings and adding additional objectives could distract from this mission. On Amendment 2, Lord Greenhalgh stated that measures have already been put in place to ensure that the building safety regulator does not become overly bureaucratic. Likewise, with Amendment 4, Lord Greenhalgh considered that the definition of safety had been covered in various areas of the Bill and that it did not need to be defined further. In line with much of the response from Lord Greenhalgh, it was also asked that Amendment 9 be withdrawn as it was felt that the concerns of peers were covered off in areas of the Bill such as Clause 5, which places a duty on the building safety regulator to consider the effect of factors such as the general occupant profile for different types of buildings.  

• Amendments 1, 2, 3 and 4 were withdrawn or not moved.  

Clause 5 (Duty to facilitate building safety: higher-risk buildings) 

• Lord Stunell proposed an amendment (Amendment 6) to Clause 5. This amendment sought to ensure that major issues of public concern about safety in buildings are addressed in a timely way. In detail the amendment related to a process whereby the building safety regulator will, in a timetabled review, look at each of the concerns raised at the Second Reading of the Bill and produce a report within two years and   recommendations on what should happen. The report should highlight any concerns that merit further investigation and could result in an improvement to building safety. Alongside this, Lord Stunell proposed an additional amendment (Amendment 149) which refers to the need for a regulatory audit from the building safety regulator that would be presented in Parliament about the progress being made on the new building safety regime.  

• The Minister for Building Safety & Fire, Lord Greenhalgh responded to these proposed amendments by stating that the Building Safety Bill also encapsulates building regulations for the entire built environment and makes a contribution to increasing competence among key actors, such as approved inspectors, duty holders, the accountable person and the building safety manager, to ensure that buildings in occupation remain safe. It was felt by the Government that the proposed amendments would effectively restrict the building safety regulator’s work to a limited list of subjects, narrowing the scope of the new role and the time given for its operation. Lord Greenhalgh requested that the proposed amendments were withdrawn. 

• Amendments 6 and 149 were withdrawn or not moved.  

Clauses 9 to 37 were agreed without any amendment by the committee.   

Clause 38 (Breach of building regulations)  

• Lord Blencathra proposed a series of amendments (Amendment 13, 14 and 15) to strengthen the penalties to be faced by big building corporations who breach any of the new laws. Lord Blencathra suggested that the Building Safety Bill’s enforcement aspects should emulate the work done by the Competition and Markets Authority who fined three construction firms a combined £36 million for price-fixing. Lord Blencathra suggested that when administering fines for large development companies who fail to abide by the word and spirit of the Bill, the penalty should be hard hitting. Furthermore, Lord Blencathra stated that his amendments would mean that the penalty would be equal to the construction cost of the building which would then double for each month that the building fails to meet the new legal standards.  

• The Minister for Building Safety & Fire, Lord Greenhalgh responded that he felt that Lord Blencathra’s proposed amendments were not necessary. On the group of amendments Lord Greenhalgh felt that there were already significant provisions made in the draft Bill that ensured that any punitive measures taken against companies breaching any new rules including increasing the daily rate of fines for ongoing offences. 

• Amendments 13, 14 and 15 were withdrawn or not moved. 

• Lord Best proposed additional amendments (Amendments 94A, 94B and 97A) which sought to strengthen the regulatory oversight powers of the New Homes Ombudsman. In Lord Best’s opinion, the Bill makes provision for the ombudsman to “make recommendations” about changes that developers and housebuilders should make to improve standards of conduct or quality of work where, “following the investigation of a complaint the ombudsman identifies widespread or regular unacceptable standards of conduct or standards of quality of work”. Lord Best stated his amendments would add strength to the New Homes Ombudsman as they would provide the ombudsman with the power to go further and place improvement requirements on the members of the scheme. Additionally, the suggested amendments would enable the owner of a property to take a complaint relating to a fault, defect or snagging problem to the ombudsman for up to six years after the property was first purchased.  

• The Minister for Building Safety & Fire, Lord Greenhalgh responded to Lord Best’s proposed amendments stating that the Government could not accept these amendment as the Bill, in its current form already sets out requirements for the ombudsman scheme to include provisions for which residents can make complaints and request building improvements.  

• Amendments 94A, 94B and 97A were withdrawn or not moved. 

Clause 41 (Regulation of building control professionals) 

• The Minister for Building Safety & Fire, Lord Greenhalgh proposed a Government amendment (Government Amendments 17, 18, 19, 20, 21, 22 and 29). This series of technical amendments make changes to Clause 41 and Schedule 5, to create an information sharing gateway between the regulatory authorities of the building control profession in England and Wales. The information sharing gateway also extends to a person to whom the regulatory authority has delegated registration functions. According to Lord Greenhalgh, these amendments ensure that, if the regulatory authority in one nation identifies that a cross-border registered building control approver or building inspector has breached professional conduct or operational standards rules, it can share this information with the regulatory authority of the other nation, if appropriate. 

• Amendments 17, 18, 19, 20, 21, 22 and 29 were agreed.  

• Baroness Pinnock proposed an amendment (Amendment 15A and 16) to clause 41. These amendments focused on improving consideration of the independence, qualification and training of those with the responsibility of certifying that construction is in compliance with both building regulations and the approved plans. Specifically, Amendment 16 sought to undo the changes made by the Building Act 1984 and bring approved building inspectors back under the umbrella of local authorities to create a separation between constructor and inspector. Baroness Pinnock subsequently introduced an additional amendment (Amendment 136) which would require the Government to publish regular assessments of the current state of the construction industry workforce so that the skills gap can be better understood. Baroness Harris raised concern about the number of responsibilities that would be held by the principal accountable person on the proposed amendment 136. Baroness Harris also raised CIOB’s concerns that the industry does not yet have the necessary qualified individuals who could undertake such incredibly important and probably statutory duties that the position would necessitate. 

• Amendment 15A and 16 were withdrawn or not moved. 

• Clause 41 as amended was agreed. 

• Clauses 43 to 51 were agreed. 

Clause 52 (Information) and Clause 135 (Review of regulatory regime) 

• The Minister for Building Safety & Fire, Lord Greenhalgh introduced a second series of Government amendments (Amendments 23, 26 and 133). Amendments 23 and 26 predominantly consisted of drafting changes to ensure the Building Safety Bill is in-line with the wording of the Building Act 1984. Amendment 133, to Clause 135 related to the requirement for a regular, independent review of the building and construction products regulatory system, which must cover the effectiveness of the building safety regulator. 

• Amendment 23, 26 and 133 was agreed, and Clause 52 as amended agreed.  

• Clause 53 and 54 were agreed.  

Additional Government Amendments 

• The Minister for Building Safety & Fire, Lord Greenhalgh introduced a series of amendments (Amendments 25, 30, 41, 42, 61, 138 and 146) that would apply across the Bill. These amendments, in combination, would extend the application of the Building Act and building regulations to work on Crown buildings and bodies. This would ensure a consistent approach in how building safety legislation operates across the whole life cycle of a building, regardless of owner or occupier. They would also ensure that any Crown buildings would need to comply with requirements set out in the planning gateways and golden thread.  

• The group of amendments 25 to 30 and 41 and 42 were agreed. 

• Schedule 5 and 6 as well as Clause 55 were agreed.  

• Additionally, Clauses 58 to 61 were agreed.  

• The Minister for Building Safety & Fire, Lord Greenhalgh introduced a final series of Government amendments for the first day of the committee stage (Amendments 90, 91, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 142 and 143). All of these amendments related to the new homes ombudsman provisions and the intention to expand them to Northern Ireland in line with their extension to Scotland and Wales.  

• Amendments 100 to 106 agreed. 

New Clause 73 (Appointment of third parties) 

• Lord Best suggested a new amendment (Amendment 45) which would insert a new clause after Clause 72. This new clause would enable leaseholder-owned or controlled companies to appoint an external professional to discharge the functions of the Accountable Person or Principal Accountable Person and for the costs of the same to be recoverable as if they were a service charge under the lease. This amendment was strongly supported by Baroness Neville-Rolfe and Baroness Pinnock. Lord Khan added that this amendment was crucial as it looked at leaseholder-owned or leaseholder-controlled companies appointing an external professional to discharge the functions of the accountable person or principal accountable person. 

• Government Whip, Baroness Scott of Bybrook responded on behalf of the Government stating that the Bill provides that an accountable person is the entity responsible for the repair of the exterior, structure and common parts of a building. This may well include leaseholders who have set up resident-led organisations exercising their statutory right to take control of their building away from the freeholder. Baroness Scott added that these statutory rights are very important as they act as a device to ensure that the imbalance of power between freehold and leasehold tenure is redressed and that leaseholders are empowered to make decisions about the safety management of their buildings. She also stated that, in reference to the definition of an accountable person, the Bill delivers on the recommendations of Dame Judith Hackitt’s independent report.  

• Amendment 45 was withdrawn. 

• Clauses 73 to 79 were agreed.  

Clause 80 (Duty to appoint building safety manager)  

• Baroness Fox of Buckley introduced a proposal to remove Clause 80 as this would remove the need for a mandated building safety manager and, in turn, the associated service charges for that post and the potential disproportionate safety charges that tenants and leaseholders would or could incur. Baroness Fox explained that the reasoning for removing this clause was “If the Bill’s aim becomes to eliminate all risks, that itself has its own risks and creates a new set of victims. For example, if safety is turned into panic, it can lead to an ever-spiralling demand for safety outside the bounds of common sense. Baroness Fox stated that her proposals had support from leaseholder groups such as Tower Hamlets Justice for Leaseholders and Friends in High Places who share her concerns that the building safety manager role would impose costly layers of bureaucracy on them while giving additional powers to managing agents and freeholders. 

• Government Whip, Baroness Scott of Bybrook responded on behalf of the Government, stating that Clause 80 establishes the role and creates a duty for principal accountable persons to appoint a building safety manager and provide them with support and assistance to manage building safety risks, except where they have the capability to meet the duties without needing such support. Therefore, there will be times when principal accountable persons have the time and the competences to do it without appointing somebody else. She added that the skills, knowledge and experience offered by building safety managers will help drive up safety standards and deliver positive outcomes for residents. Baroness Scott also stated that work is ongoing with the British Standards Institute (BSI) to establish a competency framework for the role, which will be supported by further guidance. 

• Clause 80 to 92 were agreed.  

Clause 93 (Residents’ engagement strategy) 

• Lord Blencathra proposed an amendment (Amendment 46) to Clause 93. This amendment would ensure that an accountable person must consult residents before drawing up a safety strategy for a building. Lord Blencathra argued that, in its current state, the Bill left leaseholders largely out of the process of defining the safety of their building. He argued that the Bill contained provisions for action that could be taken by accountable persons and building safety managers against leaseholders but did not include any way for leaseholders to act in the opposite direction. Alongside this amendment, Lord Blencathra introduced a series of further amendments (Amendments 47 to 55) to Clauses 94 to 99. These amendments included adding additional powers to the Secretary of State to make regulations if further problems are found with general building safety, permitting residents to request a sanction if information is not shared by an accountable person, creating penalties for the failure of a principal accountable person. Lord Blencathra stated that these amendments come as a package to strengthen the power of residents.  

• Amendments 46 to 55 were withdrawn or not moved. 

• The Minister for Building Safety & Fire, Lord Greenhalgh introduced a series of Government amendments (Amendments 76 and 77 and Amendments 110 and 113). According to Lord Greenhalgh, Amendments 76 and 77 would create a new power for the High Court to impose a building liability order in appropriate cases which would allow civil claims to be made against associated companies of a company involved in the development or refurbishment of a building in certain circumstances, including when the original company no longer exists. It was argued that this would tackle the issue of a lack of ongoing liability for large developers due to their use of special purpose vehicles for individual sites. While Amendments 110 and 113 would create a power to make regulations to require construction products manufacturers and their authorised representatives, importers and distributors to contribute towards the cost of remediation works where they had caused or contributed to dwellings being unfit for habitation. Peers noted that while these amendments were welcomed as they represent a radical change to bring the industry standard upwards. It was also raised that some developers have claimed that these changes to the Bill would be unlawful. Lord Greenhalgh assured the peers that there had been significant consultation with the Construction Products Association (CPA) and other industry bodies in compiling these amendments. 

• Amendment 110 and 113 were agreed.  

Schedule 8 (Building Safety Charges) 

• The Minister for Building Safety & Fire, Lord Greenhalgh moved a series of Government amendments (Amendments 62 to 66) to improve leaseholder protections in the Bill. Lord Greenhalgh stated that the new leaseholder protection provisions would make landlords liable, partially or in full, for the costs of remediating historical building safety defects. Within this group of amendments, numbers 62 to 66 include definitions of the types of defects, buildings and leases that are in scope of the protections. The new clauses state that leaseholders living in their own home or subletting in a building over 11 metres would be entitled to protections from unjust and unaffordable remediation costs. Importantly this would not apply to buildings where the leaseholders have come together to act as freeholders. Alongside this an additional amendment (Amendment 68) would insert a new schedule into the Bill. Lord Greenhalgh argued that the Bill contained provisions for action that could be taken by accountable persons and building safety managers against leaseholders but did not include any way for leaseholders to act in the opposite direction. Paragraph 2 of the new schedule provided that, where the landlord is responsible or has links with the developer that is responsible for the defect, they will be required to pay in full for the historical building safety issues. This would ensure that, as far as possible, those who are responsible for creating the defects take on the burden of costs and remove all liabilities for the historical defects from innocent leaseholders. Paragraphs 5 to 7 of the new schedule provide that, where building owners are not linked to the developer and are not able to afford the remediation, some costs can be passed on to leaseholders, subject to a cap of £10,000 to £15,000 for leases in Greater London. This will only be pursued when building owners and landlords have exhausted all other recovery options. The cost caps vary according to the value of the property with a maximum of £100,000. Further amendments proposed by Lord Greenhalgh include Amendment 69 and 70 which provide First-Tribunal powers to make a remediation order and remediation contribution order to require a landlord or associated company to make specified remediations or provide contributions towards specified remediations. Where a company needs to be wound up, our provisions enable the liquidator to apply to the court to access the assets of associated companies to contribute to the remediation of building safety defects. 

• Baroness Haymen of Ullock rose to suggest that while the Government amendments could be commended for their approach to building safety, their combined effect was complex and seem to create a system of cascading statutory protections, each stage of which is triggered only if the prior one is exhausted.  

• Amendments 62 to 70 were agreed.  

• Clauses 114 to 128 were agreed.  

New Clause 134 (Consultation on Staircase Regulations) 

• Baroness Jolly proposed an amendment (Amendment 120) which would add a new clause (after Clause 133) stating that the Secretary of State must, within six months of the passage of the Building Safety Bill, consult on regulations requiring staircases in all new build properties to comply with British Standard 5395-1. The amendment enshrines in law that all staircases within new build developments must comply with the British Standard. Currently the standard exists but compliance levels are low.  

• Baroness Brinton rose to speak on three amendments (Amendments 122,123 and 124) on behalf of Lord Foster. Amendment 122 requires leaseholders to ensure the safety of electrical installations in high-rise buildings. Amendment 123 specifies that leaseholders in mixed tenure high-rise buildings must ensure the safety of their electrical installations and Amendment 124 requires social rented landlords to do that same. The requirements in these amendments make it clear that leaseholders and landlords have a duty to ensure that installation works must be safe. 

• The Minister for Building Safety & Fire, Lord Greenhalgh responded that while Government recognises the intention of these amendments, they believe that they place disproportionate burden on leaseholders in high-rise buildings. Under proposed Amendment 122, leaseholders in high-rise developments would be required to obtain and keep up to date an electrical installation condition report which is an obligation that is placed on any other type of homeowner. According to Lord Greenhalgh, the Bill imposes a new active duty on residents not to create a significant risk of spread of fire or structural failure and empowers the accountable person to enforce these duties through the courts. These are systemic changes that are broader in scope than specific requirements for an electrical installation condition report. 

• Amendment 120 to 124 were withdrawn or not moved.  

New Clause 134 (Existing Homes Standards) 

• Lord Foster proposed an alternative amendment (Amendment 121) to create a new clause (after Clause 133). With the previous alternative Clause 133 defeated, Lord Foster proposal means that the Secretary of State must ensure that that all domestic properties achieve a minimum standard (EPC rating of C) by 2035. Furthermore, those domestic premises that, because of their standard, present a serious risk to the health, safety and wellbeing of people living them must be rectified by 2030 if the occupant cannot do so for financial or other reasons. During his explanation of the amendments, Lord Foster highlighted that the Building Research Establishment (BRE) estimated that millions of individuals and families are living in unhealthy housing, a reality that is having a huge impact on the NHS. He highlighted that this would have a positive effect on occupants’ mental health, on eliminating the risk of fuel poverty as well as create new jobs for those individuals qualified to retrofit the UK’s housing stock.  

• Lord Foster withdrew his amendment with the intention of pushing these during later stages. 

New Clause 134 (Review of External Wall Fire Assessments) 

• Baroness Neville-Rolfe proposed an amendment (Amendment 132) to insert a new clause in the Bill. This new clause states that within 12 months of passing the Bill, the Secretary of State must review the process used by chartered surveyors for assessing external walls of tall buildings for fire risks, in particular the External Wall System Fire Review certificate (EWS1) form produced by the Royal Institution of Chartered Surveyors (RICS) and must lay a report before Parliament. Baroness Neville-Rolfe stated that many of the issues that leaseholders have been facing in the post-Grenfell world have revolved around the need for EWS1 forms, their cost, the lack of qualified individuals to assess them and they have been overly cautious which has caused many issues. The proposed review referred to in this amendment would focus on both the buildings in the scope of the bill but also the position of smaller buildings as well  

• The Minister for Building Safety & Fire, Lord Greenhalgh responded by stating that it is important to restore a sense of balance and proportionality to fire safety both in ensuring that the safety of external walls is improved but also in not requiring unnecessary work and further risk aversion that we have seen recently.  

• Amendment 132 was withdrawn.  

CIOB will continue to monitor the progress of the Bill and continue to provide updates on key events through our Building Safety Newsletter which you can sign up for here.