Building Safety Bill Memorandum concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee A. INTRODUCTION 1. This memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee to assist with its scrutiny of the Building Safety Bill (“the Bill”). The Bill was introduced on 5 July 2021. This memorandum identifies the provisions of the Bill that confer powers to make delegated legislation. It explains in each case why the power has been taken and explains the nature of, and the reason for, the procedure selected.1 2. The Bill was published in draft form for pre-legislative scrutiny in July 2020, since then it has been reviewed in depth to ensure that wherever possible the use of delegated powers has been minimised unless there is strong justification. For example: • As recommended by the pre-legislative scrutiny process, we have defined ‘higher-risk buildings’ on the face of the Bill. An amendment of the definition, for example in response to emerging evidence of risk, would be subject to affirmative resolution procedures in both Houses of Parliament. • In Part 4, we have put much more detail on the face of the Bill, and removed several delegated powers. • We have reduced the use of Henry VIII powers. For example, the power contained in the construction products element of the Bill (Schedule 9) has now been removed. 3. This is a large and complex Bill legislating for a reformed building safety regulatory system and two new regulators. For comparison, Acts such as the Housing and Regeneration Act 2008, which created a new regulatory regime and legislated for new delivery and regulatory bodies, in this case the Homes and Communities Agency and the Social Housing Regulator, contained a high number of delegated powers. 4. The pre-legislative scrutiny process was an opportunity for Parliament to give its views, including on whether we have struck the correct balance with regard to delegated powers. In November 2020, the Housing, Communities and Local Government Committee published their report on Pre-legislative scrutiny of the Building Safety Bill. 5. We carefully considered each of the committee’s recommendations in turn and have made substantial changes to the legislation, and to our operational plans, since the publication of the draft Bill. We recognise the general concerns that the committee raised in relation to the use of delegated powers in the Bill and 1 For a definition of terms used in this document refer to the glossary of terms in Annex B to the Explanatory Notes for the draft Building Safety Bill. Building Safety Bill: Delegated Powers Memorandum Page | 1 have been working throughout the past six months to ensure that we are able to deliver clarity for stakeholders and Parliamentarians through the publication of documents related to secondary legislation and implementation alongside the Bill. 6. It is also worth recognising that the HCLG Committee noted in their pre- legislative scrutiny report that the use of secondary legislation is “unsurprising, as the existing regime for building control relies so heavily on secondary legislation”. We consider it would not be appropriate for new amendments to the building control regime not to rely on secondary legislation as it is being inserted into the existing regime of the Building Act 1984. 7. A key reason for seeking to use delegated powers (beyond aligning with the existing statutory regimes we are amending) is that we judge it essential to be able to respond in a timely way to an evolving evidence base on building safety issues, and in particular emerging and potentially urgent risks – specifically that the Secretary of State will be able to respond more rapidly to changing circumstances through secondary legislation, than if required to amend primary legislation. The Independent Review of Building Regulations and Fire Safety said, in relation to defining which buildings are in scope: “it will also be important to ensure that government can respond quickly in the future, where necessary, to broaden this definition in light of either critical new information emerging (e.g. through incident reporting or whistle-blowing) or experience of operating the new regime.” 8. The delegated powers we have sought will enable the Secretary of State to make regulations to support the Building Safety Regulator in delivering the assurance regime based on evidence of risk, while providing clarity to the sector on its responsibilities and duties; and the National Regulator of Construction Products in responding to changes in construction and building technology. 9. Our (and the Building Safety Regulator’s) understanding of building safety risks will continue to evolve and improve over time. We need to ensure flexibility across the new regulatory regime as this understanding develops and as the processes, structure and culture of the built environment industry continue to evolve. 10. It is also common and usual for administrative and procedural details of a regulatory regime to be set out in secondary legislation. A significant number of delegated powers in the Bill relate to procedural and administrative detail of the new regulatory regime, such as the content of forms, time periods and processes for applications. 11. Alongside introduction of the Bill and during its passage, we will publish draft regulations that provide Parliament clear and specific examples of our intentions for the secondary legislation. This is crucial information that we understand residents, industry and Parliament will want to have clarity on as soon as possible. The package will include draft regulations that: Building Safety Bill: Delegated Powers Memorandum Page | 2 • provide further detail on the scope of the new regime. The definition of “higher- risk buildings” is set out separately in Part 3 and Part 4 of the Bill. The draft regulations will explain terms used in both Parts (storey and methodology for measuring height). They will further define “higher-risk buildings” for Part 3 by setting out which building uses are specified: buildings with two or more residential units, care homes and hospitals. They will further define which buildings are exempted from Parts 3 and 4 such as hotels and prisons; • set out the framework of dutyholders and their duties for those persons and organisations who commission, design and undertake building work to which building regulations apply. The indicative regulations will set out duties requiring dutyholders to cooperate and communicate with other dutyholders, coordinate their work and have systems in place to ensure that building work, including design work, complies with all relevant building regulations; • set out duties on anyone carrying out design and building work and those who appoint them to ensure that they have the relevant skills, knowledge, experience and behaviours to perform their roles in a way that ensures compliance with building regulations, and specific duties on Clients to ensure that the Principal Designers and Principal Contractors they appoint or certify have the relevant skills, knowledge, experience and behaviour to fulfil their duties under building regulations; • set out how the construction products regulatory regime is intended to work. We understand it will be important for the parties who will be affected (including manufacturers, importers, distributors and end users) to be able to start preparations for the introduction of the new regime; and • set out the building control applications process and requirements for “higher- risk buildings” (gateway points) to ensure that building safety risks are given appropriate consideration during a building’s design and construction. The indicative regulations for Gateway two and Gateway three will set out the process for applications and the prescribed plans and documents that must be provided at each stage, including full applications and staged applications at Gateway two. The indicative regulations will also set out information handover requirements at Gateway three, as well as the prescribed timescales for the Building Safety Regulator to determine Gateway two and three applications.2 12. We will also publish a number of factsheets that explain key areas of the Bill and set out our intentions for developing further secondary legislation. This will include further detail on our proposals for residents’ role in the new regime and best practice approaches to the assessment and management of risk. 13. We have been consistent that we want to work with residents, industry, and Parliament to ensure the new regulations are fit for purpose. In publishing further detail on the secondary legislation during passage of the Bill, we will ensure that Parliament has sufficient opportunity to scrutinise our proposals. 2 We are also a number of new requirements (which we refer to as Planning gateway one) in the planning system by making amendments to The Town and Country Planning (Development Management Procedure) (England) Order 2015 (as amended). This will ensure fire safety matters as they relate to land use planning are incorporated at the planning stage for schemes involving a high-rise residential building. This description is provided here for information purposes only; this Bill contains no provisions in relation to this stage. Subject to parliamentary scrutiny we propose to bring the changes into effect from 1 August 2021. Building Safety Bill: Delegated Powers Memorandum Page | 3 Many of the regulations to implement the new regime are also subject to a statutory consultation requirement, which will provide a further opportunity for the sector to scrutinise the proposals. 14. Where the delegation of a power to the Secretary of State is considered more controversial or amends primary legislation, regulations made under the power will be subject to affirmative resolution procedures in both Houses of Parliament. This will ensure that both Houses have the ability to scrutinise, debate and approve these regulations. 15. We agree that powers to amend primary legislation should be included only where justified and necessary.