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A new dawn for Building Safety?

Harry Vann and Katie Sage consider key provisions of the draft Building Safety Bill, the Fire Safety Bill and the implications for the criminal regulatory sector.

On 20 July 2020, in the midst of the recommenced Phase 2 of the Grenfell Tower Inquiry, the Ministry of Housing, Communities and Local Government published the long-awaited draft Building Safety Bill. The draft Bill, which runs to 135 pages of draft legislation with 186 pages of Explanatory Notes, is the Government’s official legislative response to the Grenfell Tower fire and Dame Judith Hackitt’s ‘Building a Safer Future: Independent Review of Building Regulations and Fire Safety: Final Report’ which was published in May 2018 on the eve of the commencement of hearings in Phase 1 of the Grenfell Tower Inquiry. As set out in paragraph 3 of the Explanatory Notes to the Bill:

“The objectives of the draft Bill are to learn the lessons from the Grenfell Tower fire and to remedy the systemic issues identified by Dame Judith Hackitt by strengthening the whole regulatory system for building safety”.

Since Dame Judith’s report was published, Phase 1 of the Grenfell Tower Inquiry has concluded. The Chairman’s report on Phase 1, available here, included a set of interim recommendations in Volume 4, Part V, Chapter 33. Immediately after the Chairman’s report was published, the Government announced to the House of Commons that the Government would accept in principal all the recommendations he made. The Government published a formal response to the report on 21 January 2020, available here.

Many of the recommendations related to placing additional legal requirements on the building owner or manager in respect of the fire safety measures within a building. The Government’s formal response to these recommendations notes that the new Fire Safety Bill, which is at Report Stage in the House of Commons, will enable the Government to lay the secondary legislation required to bring into effect Sir Martin Moore-Bick’s recommendations. Therefore, the Fire Safety Bill and the Building Safety Bill between them represent the Government’s efforts to provide a wholesale review and reform of the management of safety, in particular, fire safety in buildings in the UK to implement the recommendations of both Dame Judith’s report and the Chairman’s Phase 1 report.

The Fire Safety Bill

The draft Building Safety Bill follows the comparatively reductive five-page Fire Safety Bill, introduced earlier this year, which amends the Regulatory Reform (Fire Safety) Order 2005 (”the FSO”) with far-reaching consequences, such that external walls, including anything attached to those walls – i.e. cladding – and flat entrance doors of multi-occupied residential buildings, of any height, fall within the scope of that Order. Crucially, the Government’s position is that the Fire Safety Bill is a “clarification” of the FSO, rather than a purely prospective amendment. This is unsurprisingly contentious, as the industry has historically viewed flat entrance doors and external walls fundamentally differently.  Accordingly, in our view, clarification is a fair description in respect of flat entrance doors, which have long-since been widely considered to fall within the FSO, (inter alia as identified by the 2011 Local Government Association Guidance on Fire Safety in purpose-built flats); however, the same cannot be said of external walls.  We consider that their inclusion within the Bill is not simply a clarification, but rather an extension of the scope of the FSO – a view shared by the Fire Industry Association in their Guidance Note issued on 4 June 2020 (available here).

The effectively retrospective effect of a “clarification” has far-reaching implications: the impact on dutyholders if external walls, in particular, are soon to be deemed to have always fallen within the scope of the FSO would be hard to overstate. Both of us have already been involved in prospective litigation over liability for the replacement of cladding which was installed pre-Grenfell and signed off as compliant with the Building Regulations then in force (which are concerned with broader issues than just fire safety, such as how well the building is insulated), but which fire authorities are now alleging, armed with the Fire Safety Bill and public opinion in light of the Grenfell Tower Fire, was always in breach of the FSO.

The draft Building Safety Bill

The express primary purpose of this legislation will be to establish the new Building Safety Regulator within the Health and Safety Executive in order to ensure that a variety of dutyholders are held to account for health and safety failings within buildings, in particular, “higher-risk buildings”. As we discuss below, it is clear that this legislation intends to make individuals involved in building safety management accountable and subject to criminal prosecution for any shortfall.

Part 2 – The new Regulator

Part 2[1] of the draft Building Safety Bill is exclusively concerned with the minutiae of the task of setting up the new regulator. Central to the regulator’s powers are “exercising its building functions with a view to (a) securing the safety of people in or about buildings in relation to risks arising from buildings” (emphasis added) and “(b) improve the standard of buildings” (Clause 3(1)). The regulator must also facilitate securing the safety of people in or about higher-risk buildings and implement a more stringent regime for such buildings. Further provisions have been made in respect of reviewing of the standard of buildings, facilitating improvements in the competence of the industry and building inspectors and the duty to establish a system for the giving of building safety information, which would carry into legislation Dame Judith Hackitt’s idea for a “golden thread” of information in respect of higher-risk buildings.

The regulator is also given the duty to set up various committees, including a Building Advisory Committee, a Committee on industry competence and a Resident’s panel. It is clear that the Committee on industry competence and Resident’s panel are direct responses to Dame Judith Hackitt’s findings and recommendations in respect of competence in the building sector and the need for residents’ voices to be heard.

Building Safety Risk

The concept of a “building safety risk” is also defined in this part as “a risk to the safety of persons in or about a building arising from the occurrence as regard the building of any of the following (a) fire (b) structural failure; (c) any other prescribed matter” (Clause 16) – the overlap with fire risks under the FSO is laid bare. Interestingly, higher-risk building is not defined in the legislation but rather, power is given for the Secretary of State to define what is a “prescribed building” and therefore, a higher-risk building (Clause 19). We assume that high-rise buildings will be included, but it remains to be seen what height of building the Government will determine qualifies a building as higher-risk and what other types of buildings will be included.

Part 3 – Reform of the Building Control / Approved Inspector system

Part 3 of the draft Building Safety Bill deals with amendments to the Building Act 1984 as it applies to England. It sets out the provisions for the new regularly regime during the design and construction phase for higher-risk buildings, and provides for the registration of building inspectors and building control approvers to improve competence levels in the building control sector. Importantly, this Part establishes that the Building Safety Regulator will be the Building Control authority for higher-risk buildings, essentially removing higher-risk buildings from the scope of both local authority building control departments and approved inspectors. This re-centralisation of control for higher-risk buildings is perhaps reminiscent of the Greater London Council which was abolished in 1985 in favour of devolving the building control function in London to local authorities, although these new provisions in the draft Building Safety Bill apply nationwide. It remains to be seen who the Building Safety Regulator will employ to take on this very important and potentially difficult role.

There are also provisions for the regulation of building control professionals and building control approvers (both local authority and approved inspectors) by the Building Safety Regulator. Building Control professionals and approvers will be able to commit an offence of “acting outside the scope of [their] registration” which is punishable on summary conviction by a fine. In addition, there are provisions which would establish a Code of Conduct for the profession and give the regulator powers to undertake professional misconduct investigations. The outcome of such investigations would include the power to cancel an individual’s registration. The regulator will also be given powers to serve Improvement and Serious Contravention notices on building control professionals or approvers. This level of regulation for the building control professional sector goes well beyond the status quo and presumably is intended to deal with the competence gap that Dame Judith Hackitt exposed in her Report. It seems clear to us that these new provisions will give rise to an entirely new area of professional conduct law underpinned by a regulator with similar powers to the Health and Safety Executive and both local authority building control and approved inspectors are going to need to heed this legislation and make any necessary changes to avoid being subject to regulatory action.

Offences under Parts 2 & 3

In addition to those offences highlighted above, Clause 28 makes it an offence to obstruct or impersonate an “authorised officer”. The offences are summary only and punishable with a maximum fine of level 3 for obstruction and an unlimited fine for impersonation. The offences are intended to protect the staff of the Building Safety Regulator as well as residents and those subject to the Building Safety Regulator’s jurisdiction. Regulatory practitioners will be familiar with these offences which are mirrored for the Food Standards Agency, the Financial Conduct authority and the Health and Safety Executive.

Part 3 introduces criminal liability for directors, corresponding to section 37 of the Health and Safety at Work etc. Act 1974 (“the HSWA”), a further stark emphasis on individual accountability which lies at the core of the Bill’s purpose.

Part 4 – the “Accountable Person” and “Building Safety Manager”

Part 4 deals with higher-risk buildings during occupation and is likely therefore that which will be of most interest and concern to regulatory professionals and practitioners. It defines and places duties on the “Accountable Person” who is the dutyholder in occupation. The nomenclature of the Accountable Person cannot pass without comment. It could not be more patent (or blatant) that the object of this Bill is to assure the public that readily identifiable individuals will be criminalised in the event of building safety risks leading to injury.

The Accountable Person will be determined by reference to those who hold legal estate in any part of the common parts or those who hold a “relevant repairing obligation” – which chimes with Article 5(4) of the FSO and subsection 4(3) of the HSWA. In line with the Fire Safety Bill, the common parts are defined so as to include the external walls such that there is no danger of “clarification” being later required in this regard. Paragraph 58 of the Explanatory Notes preclude the ambiguity which has plagued interpretation of the FSO:

“The Accountable Person is the dutyholder during occupation. They may be an individual, partnership or corporate body and there may be more than one Accountable Person for a building(emphasis added).

Requirements imposed on the Accountable Person include registration of the building and an application for a building assurance certificate. Failure to do either will result in the commission of an either-way offence where the maximum penalty on conviction on indictment is 2 years imprisonment (Clauses 62 and 64). There are also provisions for the assessment of “building safety risks” which must be “suitable and sufficient” and the preparation of a “safety case report” which will form the basis of the management by the “Building Safety Manager”. By way of Clause 94, it is an either-way offence, punishable with up to two years’ imprisonment for:

“an accountable person for a higher-risk building to contravene, without reasonable excuse, any relevant requirement where that failure places one or more people in or about the building at critical risk” (emphasis added).

As with all of the offences and other prospective Defendants under the draft Bill, the Accountable Person is offered the defence of “reasonable excuse”. What will amount to a reasonable excuse is not defined in the draft Bill. Given the debate over the last 50 years as to the meaning of “reasonable practicability”, the potential minefield of the introduction of a new qualification for a regulatory duty here is self-evidently at best highly problematic and at worst a catalyst for yet another 50 years of debate.

Perhaps the starkest relevant requirement for the Accountable Person is Clause 73 which would appear to criminalise an event such as the tragedy of the Grenfell Tower fire, outside of the HSWA or Corporate / Gross Negligent Manslaughter routes. Pursuant to this clause, the Accountable Person must take all reasonable precautions to avoid a “major incident” (one which involves “a significant number of deaths” – although the Bill does not help as to how many deaths is “a significant number”) and to reduce the severity of such an incident.

The Accountable Person is also responsible for establishing and promoting a “resident’s engagement strategy” which we anticipate will increase the power of residents’ voices. However, hand in hand with increased resident participation comes increased responsibility. Residents will also have duties (where they are aged 16 or over) to maintain and repair any “relevant resident’s item” and take reasonable care to avoid damaging any “relevant safety item”. The Accountable Person has the power to give residents notice of breach of their duties and there are provisions for an order to be made by the County Court where a resident contravenes a breach notice.

Part 4 also imposes duties on “Building Safety Managers” in relation to building safety risks in their buildings. Regulatory lawyers will be familiar with the concept of a “competent person” from regulation 7 of the Management of Health & Safety at Work Regulations 1999 and we anticipate that the Building Safety Managers will fulfil a similar role in respect of occupied higher-risk buildings. It is worth noting that if a company is appointed as the Building Safety Manager that company must appoint a nominated individual under Clause 70. The emphasis of the draft Bill certainly seems to be upon making an individual person accountable for the safety of a higher-risk building.

Part 5 – Supplementary provisions

Part 5 contains supplementary and miscellaneous measures including provision to require a new homes ombudsman scheme to be established and powers to make provisions about construction products. In addition, it allows disciplinary orders made against architects to be listed alongside an architect’s entry in the Register of Architects. Finally, it makes access for residents to the Housing Ombudsman easier by removing the “democratic filter”.

(Interim) Conclusions

In his Foreword to the draft Building Safety Bill, the Secretary of State for Housing, Communities and Local Government, Robert Jenrick, states the Government’s purpose in its proposition straightforwardly:

“The Bill will introduce a new era of accountability, making it clear where the responsibility for managing safety risks lies throughout the design, construction and occupation of buildings in scope.

 There will be tougher sanctions for those that fail to meet their obligations”.

This draft Bill is all about holding people to account and punishing them hard in the event of failure. This could not be clearer from the intended nominative determinism of the Accountable Person (an elevation from “the Responsible Person” under the FSO – after all, a responsible person may not end up being held to account); and that the Government has taken pro-active action in light of the recommendations arising from the Grenfell Tower fire. Indeed, on this latter point, the Foreword continues to assert that this draft Bill, coming as it does three years after the Grenfell Tower fire, is not the Government’s first response to it.

The “toughened existing powers” and “new powers” of enforcement are designed to reassure the electorate that the Government is closing any loopholes under which such dutyholders might previously have escaped sanction, in particular, through uncertainty of duties or limitation periods.

That the enforcement will be real, not just threatened, is underscored by the creation of entirely new regulator as a central purpose of the draft Bill. That regulator will have to earn and be seen to be earning its keep by a Government which will be spending significant sums on establishing it at a heightened time of national hardship.

It is surely inevitable that the draft Building Safety Bill will engender heated and highly-politicised debate given its exceptionally emotive subject-matter, and the considerable looseness of the language of the current draft, notwithstanding its length – for example, the extraordinary absence of a definition for as emotive an expression as “a significant number of deaths” from the Bill – hence why we describe these as “Interim Conclusions”.  It must be a matter of real concern whether such legislation can be rendered adequately clear from its current state through the mechanism of parliamentary debate in these circumstances.

Only once the actual standards by which the various dutyholders, in particular, Accountable Persons and Building Safety Managers, have been identified, will it be far clearer for all concerned what real changes in standards are represented by this draft Bill, as opposed to the multi-faceted checks and balances and mechanisms for enforcement action which are already far more fully formed in the current draft.

The Fire Safety Bill is already causing seismic ructions through the building ownership and management industry because of the inevitable fall-out from the suggestion that cladding, arguably the most highly-publicised Grenfell issue, has always been covered by the FSO. Further, the Government’s latest Fire Safety Consultation, also published on 20 July 2020 (available here), is already causing debate about whether the Government really intends to bring in all of the Grenfell Tower Inquiry Chairman’s recommendations, in full, or is going to end up watering them down. Needless to say, in our view, there is still a long way to go in respect of both Building Safety and Fire Safety reform.

However, what is already clear is that the draft Buiding Safety Bill will render the construction, ownership, and management of blocks of flats very much more onerous and expensive for those who operate in those industries. Once the draft Bill passes into law, it is likely to take industry a significant period to adjust to it, with a newly energised and enthusiastic regulator empowered and expected to take extensive and highly structured enforcement action under it. We anticipate that the appetite for appeals against enforcement notices and resistance to prosecutions will be significant.

The draft Bill is designed to be evangelical and worthy of column inches. Let us hope it will also make the industry safer.

To download this article in PDF, please click here.

[1] Part 1 having given an Overview of the Act

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