Examination of Witnesses

Building Safety Bill – in a Public Bill Committee at 11:40 am on 9th September 2021.

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Graham Watts OBE and Adrian Dobson gave evidence.

Photo of Maria Miller Maria Miller Conservative, Basingstoke 12:20 pm, 9th September 2021

Thank you for being with us today. Just before we start our questioning—Ruth Cadbury will kick it off—may I ask you both to introduce yourselves?

Adrian Dobson:

Thank you very much. My name is Adrian Dobson. I am executive director of professional services at the Royal Institute of British Architects. That includes supporting our educational and practice standards, and our work in association with the Architects Registration Board.

Graham Watts:

Hello. I am Graham Watts. I am chief executive of the Construction Industry Council. I am also chair of something called the competence steering group, which was set up after the Grenfell tragedy to improve competences across the industry. For full disclosure, I also co-chair the building safety workstream of the Construction Leadership Council and I am a director of Building a Safer Future Ltd, which is responsible for the building safety charter.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

Thank you very much. I call Ruth Cadbury to start our questioning.

Photo of Ruth Cadbury Ruth Cadbury Shadow Minister (Housing, Communities & Local Government) (Planning)

Q Thank you. This question is for both witnesses. Do you feel that the Building Safety Bill will significantly improve the building safety regime in this country, and make residents of existing and future residential and other buildings feel safe?

Graham Watts:

The Bill is very welcome. It is a step forward from the draft Bill that we saw last year. The clarification on scope has been very welcome, for example, but it is important to say that the Bill, or the Act in due course, will not be a panacea to ensure building safety. That is a really important point. The Bill is needed to support the paradigm shift that is needed in the culture change of the construction industry, and only that shift in the construction industry will ensure that we have safer buildings.

Adrian Dobson:

I basically agree. It is important to say that it is just a piece in the jigsaw puzzle. It is very welcome that there will be a new regime for building regulations, and that the HSE will be placed with oversight of it. Basing it on the Construction (Design and Management) Regulations 2015, which have worked quite well in terms of looking after the safety of the people who construct buildings, is quite sensible. Without wishing to repeat what you have heard from previous witnesses, there are other pieces in the jigsaw. Inevitably, the industry relies on guidance. I think you have heard previously that the approved documents still need major review. Obviously there has been discussion about the buildings that are within the scope. You can imagine that other types of buildings may, in due course, need to come within scope, but it is sensible to start with what we know is at particularly high risk of catastrophic failure.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

Before I bring Rachel in, I think the Minister has a supplementary question.

Photo of Eddie Hughes Eddie Hughes Parliamentary Under-Secretary (Housing, Communities and Local Government)

Q On Graham’s point about the paradigm shift that the industry and sector have to go through, what is the CIC doing to help them? The legislation is obviously going through Parliament. People need to prepare for its arrival, so how are you ensuring that people are suitably well informed, and taking the right decisions and action now?

Graham Watts:

As you know, Eddie, it is a massive industry—3 million people and several hundred thousand companies. Co-ordination, communication, leadership and challenge are the key factors that we in the CIC, and the bodies that support us, such as the RIBA and the Chartered Institute of Building, need to concentrate on. We really need to get away from a culture that is based on a race to the bottom, as a result of which companies that win work at very low profit margins do everything possible to prioritise the commercial side of things, avoid penalties and cut corners on quality in order to increase profit. That is the basic culture that we have to change. We have seen the evidence of that in the Grenfell inquiry. We do not need to see where the evidence is; it is there before our eyes.

Adrian Dobson:

One thing to add is that, obviously, we are keen for things to move on at pace. What a number of the professional bodies, including the RIBA, are doing at the moment is working on our accreditation regimes for the new duty holders, because obviously we need to be in a position to accredit professionals to undertake the principal designer and principal contractor roles once the new regime comes into play. That is an important task for the professional bodies to be getting on with now.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

If there are no more supplementaries, we will move to Rachel.

Photo of Rachel Hopkins Rachel Hopkins Labour, Luton South

Q Thank you, Mrs Miller. That takes us to my question, which is about whether there is enough detail in the Bill. Have the Government left too much in secondary legislation, for example the golden thread and the gateway process? Those are two key elements of the new building safety regime—and you talked about professional bodies wanting information as well—that are not actually on the face of the Bill.

Adrian Dobson:

There is a chicken-and-egg situation. I have been involved in a number of meetings on the competence standard, and obviously you can go off only what has been published so far. The publication of the draft regulations on the competencies and due diligence is quite helpful, although I hope that there may be a chance to talk about some concerns about those definitions. The more information that can come out, the better.

The Bill does explain the basic principles quite well, and I think everybody is supportive of that. There is complexity. One of the points that I would like to make, if I get the chance today, is that our view is that, if the principal designer is a key duty holder, they should be involved in gateway 1, which is when some quite key design decisions are made. It has been complicated to achieve that, because it has been achieved through a change to the town and country planning legislation. I can see that some of this is going to have to be sorted out once the system is in place; that is just inevitable, really.

Graham Watts:

I tend to agree with the point that Ken Knight made in the previous session: the detail needs to be in secondary legislation, in the statutory instruments. Of course, that does mean that there needs to be adequate consultation and scrutiny of those statutory instruments. I have some experience of this from the industry perspective, as a designated body implementing aspects of the Building Act 1984. Too much of the detail was in the Act. It meant that there were unintended consequences down the line: things that needed to be changed could not easily be changed. That made my mind up on that issue.

Where there is a need for more detail on the face of the Bill is in those areas relating to the paradigm change in the industry that I spoke about earlier. That needs to be supported by the Bill, particularly in the area of competence, which actually underpins virtually everything that we are talking about. In the report that we produced at the end of last year, “Setting the Bar”, which sets out a new competence regime for occupations involved in high-rise buildings, we were hoping and expecting that there would be greater definition in the Bill.

For example, we thought that the requirement for independent third-party certification might be on the face of the Bill. It is absolutely essential, but it is not there. We think that there should be mandatory registration for those who have duty holder roles, and I am not just including principal designer, principal contractor and building safety manager. Also, for example, there is a need for independent construction assessment, and I am sure Adrian and I will talk about that a bit more later. It also seems to me an anachronism that we are defining the roles for principal designer and principal contractor but not for the building control profession.

Without having mandatory registration with the regulator—to say that Joe Bloggs or Freda Smith are qualified to be a principal designer—there is going to be a lot of confusion out there about who is qualified to hold those roles. I worry that the less scrupulous people within the industry will find ways around the requirements in order to prove, by some sort of desktop study, that they are actually qualified. There are also things like making sure that there is regular reassessment and mandatory continuing professional development. Although I appreciate that there are reasons why those details might not be in the Bill, we need them to be defined.

Photo of Daisy Cooper Daisy Cooper Liberal Democrat Spokesperson (Education)

Q You mentioned that there is a bit of chicken-and-egg about what goes into primary legislation and what goes into secondary legislation—I think we are all alert to that—and that one way of squaring that circle would be to have additional scrutiny of secondary legislation. Could you expand on what you think good scrutiny of that secondary legislation would look like?

Adrian Dobson:

Gosh. I am not so familiar with the workings of Parliament, but certainly I would make the point that those regulations will be very important. We have been poring over the competence regulations and the duty holder regulations; I know they are only in draft, to enable you to understand the Bill, but that level of secondary legislation and regulation will need proper parliamentary scrutiny.

There is also an important role for the industry, working with the HSE and the new authority, to ensure that the review of the guidance is done properly. With the best will in the world, I do not think this place or other similar bodies can do that detailed, rigorous interrogation of the guidance, and it is very important. It is the lack of guidance that has been causing some of the problems, particularly below the 18-metre threshold. We now have quite an ambiguous situation with those buildings, which is complicating the situation for leaseholders and so on.

Graham Watts:

May I first of all say that I have been working in the industry for 42 years, liaising with Government on policy matters, and I do not think there has previously been a more exemplary case of consulting with industry, particularly on the draft Bill and more generally in the course of the Bill’s passage through Parliament? I would like to see the same process with the statutory instruments. We think there will be nine statutory instruments—we have seen two of them in draft already—but we need to continue that kind of early-warning consultation, avoiding unintended consequences, overlap and duplication and so on, with the draft secondary legislation, just as we have with the Bill itself.

Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government)

Q Does the Bill protect leaseholders from unaffordable costs, and focus the mind or regulate to ensure that the industry steps up and pays its responsibilities and its fair share, given previous incompetence and very shabby practices?

Graham Watts:

I think the answer to that is no, but the Bill does a bit more than the draft Bill did, particularly in the extension of the Defective Premises Act 1972. I am from the industry, and I have no doubt whatsoever that no leaseholder should have to pay for having been mis-sold a home that is not fit for purpose or safe. That should be axiomatic, and we should be exploring every opportunity. I know the housebuilders and developers have put up something like £500 million already, but in many cases they are not there any more—they have gone bankrupt, or it was a special purpose vehicle developer that does not exist any longer. I have no doubt that the Government must do more, but the industry must also do more, and I welcome the polluter pays principle of the developer tax.

Adrian Dobson:

This Bill is a piece of the jigsaw; one problem is that this is predominantly a forward-looking piece of legislation, so it will address new projects and alterations to existing buildings, but it will not deal with the historical defects. That is a situation that will ultimately require the Government to engage with the insurance sector. We now have a situation where—to use the example of the EWS1 form, which I know you talked about earlier—because the insurance sector has pretty much excluded fire safety cover from many professionals, it is difficult to get professionals who can sign these forms, and they will now inevitably take a very precautionary approach, because they know that this insurance is difficult to get. There are some risks in thinking that the Bill itself will solve that; that historical liability is more complicated.

The Bill also raises the question of the insurability of the duty holder roles in the new regime; this illustrates why the interrogation of the regulations will be so important. The regulations as they are drafted at the moment mix words such as “take reasonable steps” with “ensure”, and they are very different. One is an absolute obligation and one is more like the CDM regulations. Will the insurers provide the insurance to underpin these roles? The insurance issue is where the problem lies, in my view.

Photo of Ian Byrne Ian Byrne Labour, Liverpool, West Derby

Q I have really enjoyed the evidence so far; it has been really good, but will the Bill improve levels of competence and, just as importantly, listen to the Grenfell inquiry and the shameful evidence that we have heard? Will there be accountability in the construction industry?

Graham Watts:

I think the answer to that is yes, because competence is in the Bill and it underpins and supports all of the work that the industry has done over the last four years—some of the things that Adrian talked about earlier in the different sectors. As I said before, I would personally like the Bill to go further in defining the levels of competence and in making sure that the people who are registered actually have the competencies. I think that is absolutely necessary.

Adrian Dobson:

I would tack slightly along the same line. I think the Bill is very good at trying to address the competence issue, although, for example, there are weaknesses in other areas of the industry. Procurement is complex in construction. I know that has been discussed in the Select Committee and various places. There is a duty on the principal designer to monitor design work for compliance, and a similar duty on the contractor. “Monitor” is quite a weak term. In design and build procurement there is no requirement for independent inspection, or no duty on the designers to return to the building and say, “Has this building been designed and constructed in accordance with that design intent?” So I think it is stronger on competence than it is on addressing some of the realities of the construction industry. Will the hard stop at gateway 2 really be a hard stop, because the commercial realities of the construction industry will tend to want to keep the project moving forward, and that is a risk? So it is good on competence and perhaps a bit weaker in other areas.

Photo of Marie Rimmer Marie Rimmer Opposition Whip (Commons)

Q The Bill gives the Secretary of State the power to regulate construction products. Does it contain enough information about the new regime? Is there enough certainty about what types of products would be regulated by the Secretary of State?

Graham Watts:

We are obviously at an early stage in the development of the new powers for the product regulator. As we have discovered from the Grenfell evidence, it is an absolutely imperative aspect of the Bill, so I certainly welcome that side of it. The work that has been done in the industry to ensure integrity in the marketing information for construction products has been scandalously shocking in the past. As somebody from the industry, I am ashamed of the fact that we did not wake up to that, but I welcome a rigorous attention to the regulation of construction products and also the Government’s recent decision to postpone the implementation of the conformity assessed mark for a year, because that was causing huge problems in the construction sector. Personally, I think a year is not enough, but at least it is a step forward.

Adrian Dobson:

My answer is probably similar to before. There is an inevitability that there will have to be secondary regulation. Maybe an area that it does not address is that once we get to the stage of developing revised guidance, we have some questions about how much different sectors of the industry have been able to influence the testing process. If you are going to rely on testing to give you confidence about the performance of products, that genuinely needs to be independent testing. I will be interested to see what the regulations say about that and how they keep that independence of the testing.

Photo of Shaun Bailey Shaun Bailey Conservative, West Bromwich West

Obviously, the success of any legislation depends on how it is enforced once it is implemented. I am keen to understand from your perspective, how far in any enforcement regime is it about industry buy-in and co-operation? How far should the Government go in terms of really strict, hard enforcement regulation to ensure that it is not simply a case of the industry having to do it, but that there is actually buy-in from the industry to do it and to respect the regulationsQ ?

Graham Watts:

Both of those things are equally vital. I think the industry welcomed the decision to place the Building Safety Regulator within the HSE, because it is a well-respected agency and people take notice of its interventions. We understand that the regulator is likely to have somewhere in the region of 750 staff. It is not going to be an insubstantial body, and I am sure it will take effective enforcement action, but it needs buy-in from the industry. That comes back to my earlier point about a culture change within the industry, and not just in terms of the scope of the legislation—it must go beyond that. As people have said, the twin-track approach to regulations could be confusing and complex. We understand why there needs to be a limitation on the scope to begin with; otherwise, the system will not cope and will collapse. But there will be confusing areas at the margins, and it is essential that the industry adopts the same approach to its work on buildings that are not in scope and on buildings that are in scope. We cannot have a twin-track approach as far as safety is concerned.

Adrian Dobson:

In fairness to the Government, it is difficult for the Government to regulate the competence and behaviours of the industry. Without the industry acting as a willing partner, it is virtually impossible, and the Bill tries very hard in that area. A more contentious issue is to what degree you have an element of prescription in what is done. We have had an element of prescription, and it was probably agreed that that was necessary because we had a stock of buildings that there were serious doubts about. I know that the Mayor of London has introduced an element that has been quite controversial, but I suspect that working out where the balance is will be quite difficult. When it comes to fundamental elements of fire and structural safety, I wonder whether you will inevitably end up with some firmer guidance. It might become prescriptive regulation or just clearer guidance on the basics of means of escape, compartmentation, alarms and sprinklers. Those are the fairly basic safety systems that buildings rely on.

Photo of Ruth Cadbury Ruth Cadbury Shadow Minister (Housing, Communities & Local Government) (Planning)

Q Graham Watts, you just said that you think the HSE is the right place to place the building safety inspector. Do you feel that the HSE has the right expertise and sufficient resources to do that, taking into account the additional resources that I believe the Government have committed for it?

Graham Watts:

I guess it is an unfair question for now, because the regulator does not exist yet. But I have been impressed by the way in which the HSE has set up interim arrangements. For example, the interim industry competence committee—there is a committee on industry competence on the face of the Bill—has already been set up, and I am already liaising with the chair of that committee to make sure that there is an appropriate transition from the work that we have been doing within the industry for the last four years, to the work that will be eventually housed within the regulator.

Clearly, the staff at the HSE are experts on health and safety, so Peter Baker has to build up his team. He is a long way from being able to do that at the moment, but I am hopeful that the same principles and protocols that have driven the HSE—certainly its ability to consult the industry through bodies such as the Construction Industry Advisory Committee, which has been significant—will be carried over into the new regulator when the legislation is enacted.

Adrian Dobson:

At a very basic level, the fact that it will be within the HSE sends a useful signal, because it says that at the heart of the building regulatory process is the safety and welfare of people. It is a simplistic thing, but it is quite an important signal. It has probably been given to the HSE because of the relative success of the CDM regulations. I do not think anybody in the industry thinks the CDM regulations have been perfect, and it has taken quite a lot of iterations to get them to where they are today. There are some weaknesses, particularly in the handover of information at the end of the project. That will also be so important for the safety of buildings under the new Fire Safety Act. But I think HSE has a good track record, which is possibly what is giving people confidence about it.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

Q If there are no further questions from Members, is there anything that we have not covered in our questioning and that you would like to add at this point?

Graham Watts:

There are a couple of concerns that I wanted to get across, and I think Adrian certainly shares one of them. The first one is a worry about the unintended consequences of the Act, if they are not carefully thought through. I do have a real worry about the insurability of some of these roles. Adrian has already referred to the narrowing and hardening of the insurance market for anything to do with fire safety and cladding. That is significant. A lot of companies are pulling out of that work altogether, because either they cannot get the insurance or the insurance is too cost-prohibitive. There is an onerous set of requirements on the building safety manager, for example, that I think will make it potentially uninsurable.

There are things that can be done to help that. Clause 91 on residents’ engagement strategy qualifies the requirements by saying so far as “reasonably practicable”. I think we need that kind of codicil to the requirements on some of the roles within the Act; otherwise, they are going to be uninsurable. I was responsible for setting up the designated body for registering approved inspectors after the Building Act 1984, and that legislation was not implemented until 1997. It took 13 years for us to get over the problems—the unintended consequences of the Act—that meant it could not be implemented. One of those problems was the inability to get insurance for approved inspectors. I think that is a warning signal that needs to be taken care of.

Secondly, there is a need for independent scrutiny of construction work. Adrian and I both believe very strongly in that. It came over as a recommendation from the Chartered Institute of Building and others in the working groups within the Competence Steering Group. We have lost that. If we go back in time, it was traditional to have clerks of works independently scrutinising the work on site. It was traditional for architects and engineers to go on site and supervise to ensure that their design work was being correctly implemented. We have lost most of that—they are rarities now—and I think that the requirement to have that independent assessment of construction work is essential. Whether it could be on the face of the Bill is, I understand, a moot point, but it is something that we need to develop, and we do need Government support—particularly as a client, actually—to help ensure that that happens, because it is one way to make sure that the design intentions are properly constructed, and that we get the quality that was always intended.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

Mr Dobson, would you like to add any other thoughts?

Adrian Dobson:

I would prefer to reinforce those three points. Whether it is a client’s duty to have some independent inspection or whether it encourages clients to have independent inspection through, perhaps, standards that can be developed for use by the duty holders, will be a key point. As Graham said, if we cannot get insurance for these duty holder roles, we risk to some degree repeating the EWS1 problem, where we create a system that then cannot do what it is meant to do.

Even with something like extending the Defective Premises Act, you can understand why it has been done, but it is yet another thing that will cool the appetite of the insurance market. That is why I think market engagement is so important. Graham has not said this, but I did mention earlier that we feel that once the HSE looks at this, it may wish to consider whether you should really have the principal designer involved in that planning application; because you are making decisions about how many means of escape there will be from a building, where you are going to site it on the site, and how you will get access for the fire brigade. You are making quite fundamental strategic decisions that go beyond just a fire statement, which is what the current regulations demand.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

You have provoked a supplementary question from Mike.

Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government)

Q I want to pick up on that point of independent building scrutiny. Is that something that you would add to the scope of the proposed building regulator, or would you look at Victoria in Australia, going through building by building in terms of remediation and building safety at the moment? Indeed we, as an Opposition, are talking about establishing a building works authority. Which route would you choose, or where would that sit?

Graham Watts:

We—by “we” I mean the Competence Steering Group rather than the Construction Industry Council—recommended that there should be an independent construction assessor on all projects in scope of the legislation. That obviously has not been taken forward, and I think I understand some of the reasons why, but I stress that whatever way that happens, it is essential to securing the culture change that I spoke about earlier.

Adrian Dobson:

The Committee may wish to think about whether there should be duties on some of the designers as well. You can appreciate that when you are scrutinising construction work the architect may be able to look at some aspects. Some aspects very much need the structural engineer and the services engineer to be involved. So you might want some general inspectorate, as would be prepared by a clerk of works, that is on a more regular basis, but you will need some scrutiny from individual designers as well. There may need to be some duties around that, possibly.

Photo of Daisy Cooper Daisy Cooper Liberal Democrat Spokesperson (Education)

Q I am interested that you picked up on the point about whom they would be accountable to. I was very struck by some evidence that we received from the UK Cladding Action Group, which said that there is almost no way at the moment to make construction professionals accountable to residents—the people who are living there. I guess the question is: to whom do you think the different bodies should be accountable?

Adrian Dobson:

The most obvious person, given the way that the Bill is framed, is the client; but as you say, the client is rarely, in the construction process, the end user of the project. One of the areas—probably the most difficult to tackle—that has not been talked about a lot is how you raise the competence of clients. The Government themselves are a major procurer, as are local authorities. It is important that they set the example. At one time, local authorities would have employed clerks of works to go and look at projects, so it is quite interesting that they can act as a leading edge—but yes, it is a difficult one.

Graham Watts:

For new build, obviously the sign-off at gateway 2 is from the principal contractor to the client. I think we are also talking here about a lot of refurbishment and renovation projects where the residents are in situ. There the responsibility needs to be to the building safety manager, and the building safety manager’s responsibility needs to be to the residents.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

If there are no further questions, I thank both our witnesses for a really excellent evidence session, and for taking the time to come before us today.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Adjourned till this day at Two o’clock.