Building etc. (Amendment) (England) Regulations 2022 - Motion to Regret

– in the House of Lords at 8:07 pm on 12th July 2022.

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Baroness Hayman of Ullock:

Moved by Baroness Hayman of Ullock

That this House regrets that the Building etc. (Amendment) (England) Regulations 2022 will not apply to a significant number of buildings and that it has taken five years since the Grenfell Tower tragedy for the regulations to be laid (SI 2022/603).

Relevant document: 4th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, five years on from the tragedy at Grenfell Tower, the 72 people who lost their lives and the dozens more who were injured must always be at the front of our minds. I have brought this Motion forward because I am concerned that the buildings regulations regarding combustible material will not apply to a significant number of buildings. I am also concerned that it has taken five years since the Grenfell tragedy for the regulations to be laid.

Although we may differ on exactly how to deliver justice following one of the worst disasters of modern times, can we all recognise that there has been consensus for change across this House to raise safety standards? For this reason, I am pleased that the Government eventually brought forward further legislative changes, but we feel that, unfortunately, this still falls short for buildings already built using combustible material.

The Secondary Legislation Scrutiny Committee expressed disappointment with a number of aspects of the amended regulation. It highlighted the delay in bringing forward the instrument, which I mentioned earlier. Although the review of the combustible materials ban was undertaken in 2019, the committee noted with concern that it took “several years” to bring forward the instrument, and the changes do not come into force until 1 December this year.

The committee also drew attention to the fact that there was limited explanatory material and that the changes will apply only to new buildings and existing buildings that are being renovated. Of course, this means that a significant number of buildings will be outside the scope of the ban. An Explanatory Memorandum and impact assessment were provided by DLUHC when the instrument was laid, but it was disappointing to note that neither document provides an indication of how long it will take to make safe the existing stock of hotels, hostels and boarding homes that are higher than 18 metres and that, under the current law, are outside the scope of the instrument.

The banning of combustible materials is vital; I am sure that the Minister recognises this. Yet in the past four years, at least 70 schools and 25 hospitals and care homes have been built using potentially dangerous material. While we can all hope that the regulations will prevent further buildings from being constructed with these materials, the fact that it took the Government over a year to even respond to the consultation on a ban on combustible materials is inexcusably slow. Because changes to building regulations and guidance are not retrospective, the situation is that the combustible materials ban applies, as I said, only to new buildings and to existing buildings when they are undergoing work. Our concern is that, as a result, significant numbers of existing buildings will not be covered by the ban.

In its response to the consultation two years ago, the Construction Industry Council recommended that the Government extend the ban on the use of combustible materials to a wider range of buildings than was proposed. It wanted the ban to include care homes, halls of residence and, potentially, schools. Its response said:

“There is also a case to extend the ban to buildings where there is a reduced capacity for escape such as care homes and hospitals and where young people assemble, (e.g. schools and nurseries) and public assembly buildings (e.g. theatres, libraries and community centres).”

We need to do as much as we can to protect the safety of the most vulnerable in our society. If we are to truly deliver justice, we must make all buildings safe, not just those which are new or undergoing construction or refurbishment. That means that not only should we raise safety standards, but we must put power back into people’s hands to ensure that such an appalling disaster can never happen again.

Another area of concern raised by the committee was that of enforcement. It noted that when the changes come into force in December this year, for effective safety improvements to occur, they will need to be enforced by the building control bodies which are also responsible for checking compliance and monitoring the operation of the combustible materials ban. I ask the Minister: is she confident that the legislation will be properly enforced? How will the Government monitor the situation and what resources are being provided? Does she acknowledge the concerns of this Chamber and the committee, and does she acknowledge that the widespread existence of cladding defects is a result of regulatory and industry failure? Do the Government have any plans to address and resolve this issue for those buildings that are not covered?

Ultimately, housing is not simply an asset to be traded, but is the fundamental cornerstone of a secure and happy life. My amendment recognises the outstanding deficits and risks in the legislation as it stands and the lack of government action on this. I beg to move.

Photo of Lord Stunell Lord Stunell Liberal Democrat

My Lords, I am pleased that the noble Baroness, Lady Hayman of Ullock, has brought this to the House, because it is very important that we think of the terrible deaths, and the catastrophe surrounding those deaths, of the Grenfell Tower fire, and that we all commit ourselves at every stage to seeing that it never happens again. She has raised a number of issues which are very much in the same area of concern as those I wish to raise.

First, it is worth saying that we welcome the inclusion of hotels, boarding houses and hostels, which were not formerly covered. We also welcome the sensible updates and practical exemptions which have been introduced—for instance, for shop blinds and floor coverings on balconies —which are all very sensible.

The noble Baroness is absolutely right to say that we need to point out what this SI does not do, and to point out the very prolonged delays there have been in bringing it forward. That is a period when residents have had to live with that uncertainty. Designers, building owners and contractors have been left in doubt about what is safe and proper for them to specify, pay for and replace. At the moment, that uncertainty will not be settled until December next year.

The Grenfell Tower fire was on 14 June 2017, when 72 people lost their lives and many more had their lives completely changed for the worst. Yet it was not until 12 months later, on 11 June 2018, that the Secretary of State reaffirmed the department’s intentions, which are featured in the Explanatory Note:

“to ban the use of combustible materials on the external walls of high-rise resident buildings, subject to consultation”.

It is not clear to me why it took 12 months to get that far, but it did. It took another 18 months for the consultation to start on 20 January 2020. It is not clear to me why it would take 18 months from that ministerial announcement by the Secretary of State to the point where consultation could begin. That was an 18-week consultation, concluding on 25 May 2020. To give credit where credit is due, it is clear that the Government took careful account of that consultation. However, it must be said that they did not even start it until two and a half years after the tragedy of the fire.

The statutory instrument to which this Motion relates says on its front that it was made “on 1st June 2022”. That is 30 months after the consultation began and two years after it closed. Overall, it was five years from the fire to the moment when this statutory instrument was made and laid before this House, and it does not come into force, as the noble Baroness said, until December 2022: another six months to go, five and a half years after the tragic Grenfell Tower—that is, 66 months and 72 deaths. There has been a slow pace and a lack of urgency in bringing this matter to a conclusion and, as the noble Baroness quite rightly said, it is not a full and complete conclusion. It includes those buildings over 18 metres, and it has some regulatory control for those between 11 and 18 metres. We welcome that, although we are not certain that it solves the problem completely.

In particular, we are still waiting for news that the new building safety regulator is up and running and will be in a good position to take over the oversight of this process when this statutory instrument comes into force in December. I want to ask the Minister whether the building advisory committee set up in the Building Safety Act is yet standing up and working and giving advice either to the Minister or to the regulator. Can she tell us what progress has been made with recruiting fire safety advisers so that it is even possible to properly inspect buildings which may or may not be in scope? Can she absolutely assure this House that she and the department are satisfied that, despite the limitations of this statutory instrument, this marks a turning point in safe building control and safe building regulation?

It is not acceptable to have such a delay. It is not acceptable to find the instrument not as full in scope as some of us believed it should be, but it would be even more of a tragedy if it should turn out that our concerns are justified and that Ministers have to come back to the Dispatch Box on a future occasion to explain how, in fact, it did not plug all the holes they intended that it should. So, I support the noble Baroness in her concerns and her note of regret at this statutory instrument, and I look forward to hearing how the Minister chooses to respond to these very legitimate and difficult matters.

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip) 8:15 pm, 12th July 2022

My Lords, I thank the noble Baroness, Lady Hayman of Ullock, for securing this important debate—I know that not many people have spoken, but it is quality and not quantity that matters here—and for speaking, as always, so passionately. I thank the noble Baroness and the noble Lord, Lord Stunell, for the supportive and constructive approach they have taken during our deliberations on the subject of building safety over a number of months now.

As noble Lords will know, the Government have introduced a number of improvements in the building regulations and the statutory guidance to improve safety standards for new buildings, though we recognise that there is still more to do. In 2018, in the wake of the Grenfell Tower tragedy, the Government introduced changes to the Building Regulations 2010 to ban the use of combustible materials within the external walls of new residential buildings. The parent legislation for this ban is the Building Act 1984. The ban strictly limits the materials used on the external walls of new buildings to those achieving the two best “reaction to fire” classifications. The priority was to improve public safety by removing the flexibility previously given to designers, while making the route to compliance with the building regulations clearer for new blocks of flats of more than 18 metres in height.

The instrument we are debating today builds on the steps taken following Grenfell to improve the framework of rules for the construction of new buildings. A review of the combustible materials ban was undertaken in 2019, in line with the Government’s commitment to do so. Following the review, the Government consulted in 2020 on changes to the scope of the ban, including the height threshold; the building types covered; the list of exemptions; whether to include attachments such as blinds; and whether to specifically ban the use of metal composite panels.

In response to the Secondary Legislation Scrutiny Committee’s fourth report, which we are really discussing tonight, the Government received many detailed consultation responses—more than 850. I asked what we would normally get, and it would be around 300, so we are talking nearly three times as many. The responses showed no broad support for lowering the height threshold of the ban. A large number of respondents—318, or 44%—were against any extension of the regulatory ban, seeing it as a blunt instrument that could hinder the use of more environmentally friendly building materials. The numerous consultation responses were diligently analysed and helped us improve our initial proposals to develop a proportionate policy. The ban remained in place while detailed work went on in the intervening period to work up the packages, announced on 1 June, of linked policy measures, including the instrument we are debating, alongside new statutory guidance for buildings between 11 and 18 metres.

This instrument will amend the Building Regulations 2010 to bring hotels, hostels and boarding houses within the scope of the ban. I note that noble Lords want to look at other multi-occupancy buildings as well, and this piece of work never stops: we are continuously reviewing what needs to be done to make our housing safe.

The instrument also bans certain metal composite materials with a polyethylene core—the type used on Grenfell Tower—from use in the external walls of all buildings at any height. It also makes important technical changes to clarify inclusions and exemptions to the ban. These broad and significant regulatory changes will improve building safety overall and work hand in hand with the updated statutory guidance to clarify the rules for new buildings going forward, providing greater reassurances to the housing market for new buildings.

The 2018 regulatory ban on combustible materials introduced firm and clear rules for buildings where the risk from external fire spread is greater. This approach is in line with the Government’s and experts’ view that the level of risk in buildings is proportionate to their height, although we recognise that this is not the only factor. It is right, therefore, that the focus of the strict regulatory ban is on these high-rise buildings. In all cases, for buildings at any height, the functional requirement must be met to adequately resist the fire spread over external walls, having regard to the height, use and position of the building.

The new statutory guidance on the combustibility of materials used in the external walls of new buildings between 11 and 18 metres in height builds on changes already made to approved document B in 2020 for sprinkler systems to be provided in all new blocks of flats over 11 metres. It will set clear, strong and proportionate safety standards for all 11 to 18-metre residential buildings while affording scope to build lower-risk, medium-rise buildings with more sustainable materials, providing they are used safely.

Moving to the Building Safety Act 2022, the instrument we are debating amends the Building Regulations 2010. Building regulations apply to building works; they are not retrospective and do not apply to existing buildings where no building works are carried out. Noble Lords will be aware that the Government are separately implementing most of the recommendations of the Hackitt review through the Building Safety Act, which achieved Royal Assent on 28 April.

We are making good progress with the programme of secondary legislation to implement the powers of this Act. We have laid four sets of regulations, two of which legislate for leaseholder protections included in the Act. The first consultation, on the Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations, has already been published. We expect to consult on further regulations over this summer and autumn.

A number of specific questions were asked. The noble Lord, Lord Stunell, asked about the building safety regulator, from which the building advisory committee will come. The building safety regulator was established in shadow form in January 2020 to assist the Government to develop the reforms for the Building Safety Act 2022 and prepare itself and the sector for the new regulatory regime. It is intended that the new regime will fully come into force by April 2024. The key interim steps include opening the register for high-rise buildings in April 2023, which will require accountable persons to register their buildings. I do not have a date for when the building advisory committee will be set up, but I will write to the noble Lord and give him the timescale on which it will be put in place.

In response to the noble Baroness, Lady Hayman, this SI is about new buildings, but that does not mean we have done nothing about remediation of buildings that are already there. We have provided £5.1 billion to address the fire safety risks caused by unsafe cladding on high-rise residential buildings; 94% of buildings with unsafe ACM cladding have been remediated or have work under way, and 100% of buildings in the social sector have been fixed. For high-rise buildings with unsafe non-ACM cladding, over £1.2 billion has been allocated through the building safety fund. We are reopening the fund soon to make sure that any building with dangerous cladding is fixed as soon as possible.

Both noble Lords asked about confidence in enforcement. This is important—there is no point putting anything in place if you cannot enforce it and ensure that it is done. The new powers in the Building Safety Act will give building control bodies greater powers to enforce the requirements of the building regulations, including the materials banned by this instrument. They also include greater penalties for breaching the regulations. I will write to the noble Baroness in more detail to make sure that she is confident on the enforcement and copy it to the noble Lord, Lord Stunell.

In closing, I thank the noble Baroness for raising this matter and both noble Lords for their thoughtful contributions to this debate. Underpinning the Government’s work on building safety is a steadfast commitment to honour the memory of the 72 men, women and children who senselessly lost their lives at Grenfell.

I know that there is a shared desire across the House to ensure that people are safe, and feel safe, in their own homes. The Government will continue to build one of the most robust building safety regimes in the world; that is what we pledged to do, and through the Building Safety Act, the Fire Safety Act and the toughened building regulations we have discussed this evening, that is what we are delivering.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I thank the Minister for her very considered response and her offer to write to me with more detail around the enforcement; that is very much appreciated. I also thank the noble Lord, Lord Stunell, for his support and the comments that he made. He asked a very important question about the building safety regulator and the advisory committee, which the Minister responded to, but 2024 to me seems like quite a long time away still, so I wonder why it is taking so long—perhaps that is something we can pick up on on another occasion.

I appreciate that this statutory instrument applies to new-builds. I think one of the reasons I tabled the Motion is that it is disappointing that that is all it does. As I said before, the problem with it applying only to new buildings, and existing buildings that are being regulated, is that it still leaves a significant number of buildings that are not currently covered. I am aware of the Building Safety Act; as the noble Baroness said, we all worked together very constructively on that, and I thought we made excellent progress during the Bill’s passage. But we need to make sure that buildings that are already built and that are unlikely to be refurbished any time soon are not forgotten about and left behind; that is our big concern. We will continue to work with the Government on this and carefully monitor progress that is being made, but in the meantime I beg to withdraw.

Motion withdrawn.

Sitting suspended.