Building (Scotland) Bill: Stage 2
Our main item of business this morning is stage 2 consideration of the Building (Scotland) Bill. I ask members to check that they have copies of the bill, the marshalled list of amendments and the list of groupings to assist them during today's proceedings.
I welcome Des McNulty MSP, the newly appointed Deputy Minister for Social Justice, to the meeting. Des is familiar with the bill, having participated in the committee's stage 1 deliberations on it. I am sure that he will have no problem slipping into his new role as the deputy minister responsible for taking the bill through the Parliament. I congratulate Des McNulty on his appointment and offer him best wishes for the future.
I also welcome Lorimer Mackenzie, Heather Wortley and Paul Stollard, officials from the Scottish Executive who will assist the minister during stage 2 consideration of the bill.
Section 1—Building regulations
The first amendment for debate is amendment 80, which is in a group on its own.
I congratulate Des McNulty on his new role as gamekeeper, after having previously been a poacher. It is reassuring to see so many amendments in Des's name—nothing has changed.
Amendment 80 is a probing amendment that seeks to establish the difference between conversion and alteration. I appreciate that the definition of construct in section 51 includes alteration, but I believe that there is a fundamental difference in common usage between a conversion and an alteration. If the word "alteration" were not used elsewhere in the bill, there might be no need for the further clarification that amendment 80 seeks. However, in section 20(11) construction is stated specifically to exclude alteration, whereas section 10 specifically includes alteration and conversion. There is no definition of alteration in section 51, and I regard that as a gap in the bill.
I am asking the minister to consider this point at an early stage, although the need for the terms "alteration" or "alter" to be included in the bill is much more evident in sections 8 and 9.
I move amendment 80.
I hope to be able to provide John Scott with reassurance. Alteration falls within the definition of construction in section 51(1), for which section 1 already provides. On that basis, I ask John Scott to withdraw his amendment.
I thank the minister for his comments. I will seek leave to withdraw the amendment, although at stage 3 I will probably lodge other amendments to include the term "alteration" in sections 8 and 9. I would like the expression to be explained in more detail.
Before stage 3, I can indicate to John Scott in writing how the issue of alteration is dealt with under construction, if that would be helpful.
I would be grateful if the minister could circulate the letter to other members of the committee.
Amendment 80, by agreement, withdrawn.
Amendment 1, in the name of the minister, is in a group on its own.
The Executive lodged amendment 1 in direct response to a recommendation by the Subordinate Legislation Committee in its stage 1 report.
Section 1(1) sets out the core purposes of building regulations, which are:
(a) securing the health, safety, welfare and convenience of persons in or about buildings ...
(b) furthering the conservation of fuel and power, and
(c) furthering the achievement of sustainable development".
Although schedule 1 does not prejudice the generality of section 1(1), paragraph 5(2) of the schedule lists some of the more specific matters for which building regulations may make provision, such as fire precautions, drainage and ventilation. Under section 1(4), ministers have the power to modify by order the list in paragraph 5(2) of schedule 1, which is intended to be purely illustrative.
Amending the list does not alter the scope of section 1(1); it can alter neither the purposes nor the scope of building regulations. However, the Subordinate Legislation Committee was keen to ensure that consultation should take place before Scottish ministers made an order to modify the list in paragraph 5(2) of schedule 1. We are committed to consultation on various aspects of building standards and regulations and that will continue to be the case under the new system. We lodged amendment 1 to take account of what the Subordinate Legislation Committee said, and I ask the committee to endorse it.
I move amendment 1.
Amendment 1 agreed to.
Section 1, as amended, agreed, to.
Schedule 1
Building regulations
Amendment 81, in the name of Fiona McLeod, is in a group on its own. Fiona is not here, so I invite Bruce Crawford to move the amendment on her behalf.
Fiona McLeod has discussed amendment 81 with the Disability Rights Commission. The DRC and others, including Fiona and I, appreciate the rationale behind the Executive's move towards less prescriptive mandatory standards both to meet the requirements of the European procurement legislation and to encourage more innovation in the design process. However, we believe that more remains to be done to ensure that the considerations of accessibility and usability are grounded in the bill.
The bill's intention is to be inclusive, and it would be helpful for amendment 81 to be accepted. The amendment would make it explicit that building regulations will take into account the access to and use of buildings by disabled people.
Amendment 81 would insert the phrase
"including in particular access for disabled persons,"
and the subparagraph
"suitability for use by disabled persons"
and is concerned with specifying the issues that I have mentioned in the building regulations. We would all agree that good design is inclusive design, and amendment 81 would enable the bill to ensure that access and usability are given proper regard in the building regulations. Schedule 1 lists such matters as drainage, heating and lighting. The amendment would strengthen and clarify those provisions by making it explicit that accessibility and usability of buildings by disabled people falls within the scope of the regulations.
The Executive constructively used the terms "accessible" and "usable" in the explanatory notes, and we have heard public statements from former ministers to that effect, which was good. However, the inclusion of provisions in the bill is important and would make it explicit that accessibility and usability are to be subsumed in the Executive's functional standard of convenience.
Just as "fire precautions" and
"resistance to the transmission of heat"
are implicit in the functional standards of health and safety and welfare but, rightly, made explicit in the schedule, so the accessibility and usability that are implied by the terms "convenience" and
"health and safety and welfare"
should be made similarly explicit in the building regulations. I hope that that is what amendment 81 would do.
We are trying to be constructive, and I hope that the minister accepts that. Before I forget, I should welcome Des McNulty back to the committee, this time as a minister. When I saw the list of amendments, I was not sure how many of his were from him as a minister or as a former committee member. We will find out as we go along.
I move amendment 81.
I, too, was confused when I first saw the list. I thought to myself, "Des has left the committee, but there are all these amendments in his name."
We have all been impressed by the arguments that the Disability Rights Commission has used for having strong signals about inclusion and access in the bill. It is important that we include the provisions, not because access issues would not be addressed if they were left out, but because it is important to include the signal that we are becoming a more inclusive society. I support the amendment.
I, too, support the sentiments behind the amendment. We will hear from the minister whether it is entirely appropriate, but I am completely in accord with the sentiments behind it.
I agree. I want to record my strong support for the amendment. It is important that such provisions are included in the bill.
While drafting the bill, we had a lot of discussion with the Disability Rights Commission, and we know that the commission is concerned that the bill does not make explicit mention of the access to and use of buildings by disabled people. Although it was always the Executive's position that accessibility and usability would be included in the building regulations in terms of section 1 and schedule 1, we accept the argument that they should be mentioned on the face of the bill. On that basis, I am content to accept amendment 81.
I am glad that such a pragmatic approach has been taken and offer my thanks to the minister.
Amendment 81 agreed to.
Schedule 1, as amended, agreed to.
Section 2—Continuing requirements
Amendment 2 is grouped with amendment 3.
Amendment 2 is intended to distinguish continuing requirements that are imposed in building regulations from those that are imposed by verifiers. Although the bill does not allow verifiers to impose continuing requirements when granting a building warrant, I advise the committee that I intend to lodge amendments at stage 3 to allow that and to bring the provisions in line with the proposals on which we have consulted.
The application of continuing requirements is currently restricted to the categories that are outlined in section 2(4). However, it is anticipated that European legislation will, for example, require ministers to impose continuing requirements to maintain energy performance or to require labels regarding energy efficiency to be constantly displayed on buildings. Section 2(4) will, therefore, be amended by amendment 3 so that continuing requirements can be imposed on any aspect of a building.
I move amendment 2.
Why does amendment 3 seek to delete section 2 (4)(a), (b) and (c)? Would it not be a sensible idea to refer to the matters that are listed in paragraph 5(2) of schedule 1, which include the preparation of sites and the re-use of building materials in relation to building regulations?
To answer Angus MacKay's first point, amendment 2 is intended to widen the scope of continuing requirements. As I said in relation to amendment 81, the list in schedule 1 is illustrative; it can be added to. At stage 3, the scope will be further widened to allow verifiers to establish continuing requirements.
Angus MacKay's second point referred to schedule 1. In my previous answer, I stated that the provisions that are highlighted in schedule 1 are purely illustrative and can be added to.
I think that I understand the minister's intent for amendment 2; he is trying to broaden the options. However, he appears to be trying to do that by being less specific. Is that correct?
We are removing specific limitations that are contained in the previous version. Therefore, we are broadening the process rather than narrowing the ambit.
I am not entirely happy about what the minister says, but may I take it that the minister is not being too dogmatic about the matter and that he will listen to further representations at stage 3?
Absolutely. We are happy to listen to any further representations. Our purpose is to get things right. With amendments 2 and 3, we were responding to people who wanted a less prescriptive approach to be adopted and a broadening of responsibility. If there are requirements to reinstate more specific limitations, we will consider them, but we are not aware of such a requirement from specialist areas.
Amendment 2 agreed to.
Amendment 3 moved—[Des McNulty]—and agreed to.
Section 2, as amended, agreed to.
Section 3—Relaxation of building regulations
Amendment 4 is in a group on its own.
Amendment 4 was lodged in response to one of the Subordinate Legislation Committee's recommendations. The committee expressed concern during initial consideration of the bill that there would not be adequate parliamentary scrutiny over the power of Scottish ministers to give directions to relax or dispense with the provisions of building regulations.
As it stands, the bill places no restrictions on Scottish ministers' ability to relax building regulations. Amendment 4 will provide that where regulations under the bill state that specific provisions of building regulations may not be relaxed, ministers may not give directions that would relax those provisions. Therefore, Parliament will be able to scrutinise the extent to which the power is available to ministers.
I move amendment 4.
Amendment 4 agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
Section 6—Building standards assessments
Amendment 5 is in a group on its own.
Amendment 5 will extend the scope of what a building standards assessment can include under section 6. It is intended that such assessments should be available to owners in situations where a letter of comfort is currently sought. Members might remember that Murdo Fraser raised the issue in the stage 1 parliamentary debate. Such letters of comfort have become commonplace in the house-buying process and they give the buyer some reassurance that no enforcement action will be taken in relation to unauthorised work that has been carried out on a building. One of the aims of building standards assessments is to give a formal basis and some uniformity to the process.
As it stands, section 6 defines the building standards assessment too narrowly to achieve that purpose. Amendment 5, therefore, will allow other matters to be covered by the assessment, including the extent to which a local authority considers unauthorised work has been done, whether a continuing requirement has been complied with and whether a defective building notice could be served.
The amendment will also permit Scottish ministers, by regulation, to make further provision on which matters a building standards assessment might cover, including the period for which unauthorised work would be assessed, the circumstances in which only part of a building might be assessed and matters that are not to be assessed in particular cases or types of cases. That would permit some flexibility in the application of such assessments, which we do not have in the present drafting, and help to meet concerns that have been raised by people in the industry about the effect of the assessments when they are introduced.
I move amendment 5.
I seek clarification. In amendment 5, subsection (2)(d) states that a building standards assessment is an assessment of the extent to which
"the building has defects which entitle the authority to serve on the owner a defective building notice."
In the past, it was commonplace for people who made modifications to their houses to seek building warrants. That is the reason for that sentence. I am concerned for individuals who have bought their home in good faith and taken on a liability that was incurred by a previous occupant. The new occupant might be required to put right a defect, even though it was not their fault. How do you intend to deal with such circumstances? That would be an unfair liability for an individual to bear, given that the property had been handed on in an unfit state. That concerns me somewhat.
What we are trying to do is right; defective buildings should be identified. I can give Bruce Crawford two matters of comfort. First, the process will be introduced over a transitional period. We hope that owners would have buildings inspected so that any serious building defects could come to light. Secondly, when buildings are being bought and sold, we want to encourage surveyors to examine areas of defects and, where a defect is suspected, to get a building standards assessment in place.
We are trying to provide greater protection for the public and perhaps to place an additional onus of professional responsibility on the way in which surveyors undertake their tasks. We must encourage the different professional agencies, especially surveyors, to ensure that they are making all the requisite assessments on whether there are building defects. In the course of time, it is hoped that that would avoid the situation that Bruce Crawford describes.
I do not dispute that you are trying to do the right thing, but I am not sure that what I heard helps to alleviate my concerns. For example, take a person who does not expect that a serious defect exists in a property. If a loft extension is completed without the required engineer's certificate being submitted to building control and the house is then sold to someone else, it is only when that person sells the house that a serious defect might come to light. I seek to ensure that those people are not unduly penalised by that process. There is still a danger that that might happen, despite what the minister has told me.
The situation that Bruce Crawford describes is one in which people have not done things properly and got a warrant. It is not the Government's responsibility to set more flexible regulations that will retrospectively allow that to happen or indemnify the situation in any way. Our objective is to establish a clear set of building regulations to prevent the situation that Bruce Crawford described. That is our intention. There will probably be consequences for some individuals if corners have been cut or things have been done incorrectly. However, that does not cut against what is the right thing to do with regard to establishing the regulations that we want to operate.
I am still concerned that innocents who had nothing to do with the process will get caught. I need to think more about what I might do at stage 3. I understand what the Executive is trying to achieve, but the bill might need some process whereby innocent parties would have a right of appeal to a local authority for help. Individuals might get caught in a trap through no fault of their own and incur substantial costs.
I do not think that it is within the scope of the bill to find a mechanism for dealing with defective procedures that have occurred in the past. Our objective is to establish correct procedures that should apply in any future building regulations. If people have liability claims against surveyors or previous owners for not doing things correctly, it is up to them to pursue the matter. I do not think that there is any scope for the Executive to get involved; instead, our job is to set up an appropriate legal framework.
John Scott has signalled that he wants to ask a further question. Actually, he should have asked his question earlier when I gave members the opportunity to do so, but I will allow him to come in now if he is brief.
I do not want to raise any constituency cases in this respect, but would section 6 cover defective building work that was carried out by rogue builders? Would that be addressed by another section?
Other sections of the bill address part of that issue. However, if someone contravenes building regulations, section 6 allows the authority to resolve the matter by serving a notice. As a result, section 6 provides a vehicle for detecting and dealing with cases of defective building or failures to apply appropriate building standards.
Amendment 5 agreed to.
Section 6, as amended, agreed to.
Section 7—Verifiers and certifiers
Amendment 6 is grouped with amendments 82, 7, 8, 83, 9, 10, 37 and 51.
I would prefer not to speak to amendments 82 and 83 at the moment, because I would welcome the opportunity to hear what John Scott says about the intention behind them.
Amendments 6 to 10, 37 and 51 will implement more fully the policy intention behind sections 7, 11 and 18 and schedule 2 on approved certifiers, and they will establish ministers' powers to exercise the functions of verifiers in certain circumstances.
As drafted, section 7 will allow ministers to appoint persons as approved certifiers of design and construction. In practice, ministers will often wish to consider trade bodies' schemes that cover contractors such as plumbers and electricians. I do not want to appoint plumbers or electricians on my own; I certainly do not think that other ministers would necessarily want to have that responsibility or to try to find an appropriate vehicle for making such appointments. Should the terms and conditions of appointment to such schemes be consistent with the criteria that ministers will use in appointing certifiers, ministers might wish to approve the schemes. In that way, ministers will not have to approve thousands of tradespeople individually.
Where such schemes seek approved status, they will of course be subject not only to rigorous criteria for appointment, but to a monitoring and auditing scheme that will include measures such as regularly sampling the performance of individual scheme members. Amendment 6 will allow for such schemes to be approved and will also permit ministers to approve certain schemes, subject to limitations such as restricting their application to a certain geographical area or types of buildings.
Amendments 7 and 10 are consequential on amendment 6. Amendment 10 will provide that any certifier who has such status by virtue of a scheme that has been approved by ministers is subject both to limitations that are imposed by ministers on the schemes and to any limitations that the scheme itself contains. Amendment 7 will provide that, in section 7(3), the lists of approved certifiers that are held by Scottish ministers should hold details of any such limitations.
Amendment 9 clarifies that the reference to appointed verifiers and certifiers in paragraph 1 of schedule 2 means those who are appointed individually under section 7(1), not members of an approved scheme. Amendments 37 and 51 are also consequential on amendment 6 and relate to the ability to issue certificates under sections 11 and 18 in relation to design and construction. They provide that such certificates can be issued by certifiers who are members of approved schemes as well as by those who are appointed individually.
Amendment 8 will expand ministers' powers under section 7(5) to exercise the functions of a verifier in certain highly defined circumstances. It will add proposed subsections (5A) and (5B) to section 7. The purpose is to allow ministers to take over the verifier's function after an application for a building warrant has been made but not accepted, and where a completion certificate has been submitted but not accepted by a verifier. In other words, the amendment will allow ministers to take over a job during the verification process where that becomes necessary. Proposed subsection (5B) to section 7 would stipulate the circumstances in which that could occur, which would be where the verifier requests that ministers do so or where ministers consider that a verifier is for any reason incapable of exercising the verification function in a particular case. We anticipate that that would happen only rarely.
I move amendment 6.
Amendment 82 would simply allow lists to be prepared for verifiers and certifiers to consider, which might be shorter than current lists. For example, it might be appropriate in seeking a verifier or certifier's authorisation to consider all relevant claims under the eventual act, with exceptions and exclusions. A parallel example is the way in which the Scotland Act 1998 devolves all powers to the Scottish Parliament with the exception of the areas of responsibility that are retained by Westminster, such as pensions, defence and taxation. Amendment 82 seeks to reduce the bureaucracy and the length of the lists. We would be saying, "You will do everything except this".
Amendment 83 seeks to substitute "character" for "nature" on the basis that direction of a general or specific nature scans rather better than does direction of a general or specific character. I feel that "character" is a less appropriate word in this instance than is "nature", but I will welcome the minister's explanation for why the word "character" was chosen in preference to "nature". I have no more complicated reason than that for lodging the amendment.
I will give the minister a bit more time to get some briefing together to answer John Scott's question by speaking for a bit. I want to make two points. One relates to the principle of appointing verifiers in general. I would like the minister to tell us how he envisages that the bill and any regulations that are attached to it will ensure a consistent and holistic approach among the roles that the different verifiers will perform.
Section 7(6), which John Scott has just touched upon, states:
"The Scottish Ministers may give verifiers direction of a general or specific character".
Will the minister tell us what he means by that, because I hope that he means a lot more than just "may"? If the function is not going to continue to be discharged as it is currently, and if a wider set of players are going to come on to the field, it is particularly important that they are given clear instruction, advice and guidance to ensure that the approach that individual verifiers take in individual circumstances is consistent across a range of projects and works.
On John Scott's amendment 83, the word "character" is well precedented in acts of the Scottish Parliament. It has been used in, for example, the Water Industry (Scotland) Act 2002, the Housing (Scotland) Act 2001, the National Parks (Scotland) Act 2000 and the Ethical Standards in Public Life etc (Scotland) Act 2000, so it is pretty well defined. "Nature" has a more general meaning—"character" is a more precise word in this context.
On amendment 82, our view is that, given the way in which the bill is drafted, we already have the capacity to define what is done in the way that John Scott suggests. Amendment 82 is not necessary, because we can, under the bill as drafted, list verifiers in the way that John Scott describes. In fact, we intend to do so. Our intention is not to produce long and bureaucratic lists; we want to make things as sharp as possible. I therefore ask John Scott not to move amendment 82.
Angus MacKay appealed for a consistent and holistic approach. Verification is done by local authorities and will continue to be done by local authorities. That is probably the best way of ensuring a consistent and holistic approach, which Angus MacKay suggests is important.
He also asked whether ministers will be able to impose uniformity on the wider set of players that are coming on to the field. Section 7(6) is a new provision that gives ministers powers to do that, which they did not previously have. Our intention in introducing the provisions is to do precisely what Angus MacKay suggests needs to be done. I assure him that we intend to be proactive not only in the way in which the new agency will work and the way in which the Executive will monitor that, but in the liaison between the Executive, local authorities and the industry. We are proceeding on the basis of trying to agree on uniformity and to introduce mechanisms to do that in the way in which we apply section 7(6).
Amendment 6 agreed to.
Amendment 82 not moved.
Amendments 7 and 8 moved—[Des McNulty]—and agreed to.
Amendment 83 not moved.
Section 7, as amended, agreed to.
Schedule 2
Verifiers and certifiers
Amendments 9 and 10 moved—[Des McNulty]—and agreed to.
Schedule 2, as amended, agreed to.
Section 8—Building warrants
Amendment 11 is grouped with amendments 12 to 17, 20, 44 to 46, 46A, 49, 54, 57, 58, 60 to 66, 68 to 74, 76 and 77.
I begin by referring the committee to the detailed letter that I sent to the convener, which I presume has been circulated to committee members. As I said in that letter, the Executive is aware that the bill's focus on owners as the only people who can apply for building warrants and submit completion certificates has been unduly restrictive and would introduce constraints that the Executive and the construction sector would find difficult.
I have therefore lodged amendments 12 to 17, 20, 44 to 46, 49, 54, 57, 58, 60 to 66, 68 to 74, 76 and 77 to change that approach. The intention is to allow anyone to apply for a building warrant, as is the situation now. The owner, the person who carries out the work on the owner's behalf or the person on behalf of whom the work is done will be able to submit the completion certificate. Building warrant enforcement notices, which are to be used when the building warrant and completion certificate procedures have not been complied with, will be served on those who carry out work on their own behalf, those who instruct others to carry out work for them, or the owner if no one else with responsibility for the work can be found. However, once the completion certificate has been accepted, enforcement and compliance provisions will apply only to the owner because, as with current practice, the owner has continuing responsibility for the building.
We believe that our amendments will ensure a much more realistic approach to the process of warrant application and to submission of completion certificates, while ensuring that the responsibility for the building and the process as a whole rests with the owner.
As I also said in my letter to the convener, the amendments will address issues that have been raised by the Disability Rights Commission and by fire interests, who were concerned about the interaction of the bill with the Disability Discrimination Act 1995 and with the European workplace directive, which places duties not on owners but on service providers and employers. The amendments also address concerns that were expressed by Rhona Brankin in the stage 1 debate by ensuring that absent owners do not slow down the process and that leaseholders who want to make alterations are not prevented from doing so.
Amendment 15 is a logical addition to the defences in section 8 of the bill and relates to situations in which work is carried out without a warrant or not in accordance with a warrant. The bill already provides a defence relating to a situation in which a person who was carrying out work had reason to believe that a warrant had been granted. The amendment provides a defence where owners, or persons on whose behalf work is carried out, had no reason to believe that work was not being carried out in accordance with the warrant. It also creates an additional defence for owners where they did not know or have reasonable cause to know that work was being carried out at all. Amendment 15 will deal with a series of anomalies.
Amendment 16 is consequential on amendment 15. Section 8(5) sets out how the defences in section 8 can be used and amendment 16 would ensure that it included that new defence.
Amendments 17, 44, 45 and 46 are the key changes. Amendment 17 will have the effect of allowing anyone to submit a warrant application and amendments 44 and 45 will require the relevant person to submit a completion certificate. The relevant person is defined by amendment 46 and includes the three categories of people whom I have already outlined. In passing, I point out that the intention of John Scott's amendment 46A appears to be a bit different from that of amendment 46, which is that the person instructing the work should be responsible for the completion certificate, with the owner assuming responsibility on the failure of the responsible person. If a tenant instructs work on his own behalf with the authority of the owner, he will be able to submit a completion certificate under amendment 46. Where he is working under the instruction of the owner, we consider that the owner must be responsible, which is what the current draft provides for. On that basis, I ask John Scott not to move amendment 46A.
The remaining amendments in this group are consequential on amendments 17, 44 and 46. Amendments 11 to 14 will amend the parts of section 8 that relate to the offence of carrying out work either without a warrant or not in accordance with a warrant, and to the defence that the bill provides in those cases. Amendment 20 will expand the category of those who may apply for an amendment to a warrant. Amendment 49 relates to those who may submit certification of construction along with a completion certificate and amendment 54 relates to whose who may apply for temporary occupation or use of a building before a completion certificate is granted.
Amendments 57, 58 and 60 will allow building warrant enforcement notices to be served on persons other than the owner. Amendments 61 to 66 are directly consequential on those amendments and will amend references to the person on whom notices are served. Amendments 68 to 74, 76 and 77 are also consequential on those amendments and apply variously to sections 32, 37 and 41.
I am sorry that that was so technical, but that is the nature of the amendments, I am afraid.
I move amendment 11.
Amendment 46A is a probing amendment that was designed to test the minister's position on the definition of a tenant—or to find out whether one exists. As he said, the minister undertook at stage 1 to introduce amendments on that matter and I welcome what he has said in that regard this morning, and the fact that he has lodged amendments 44, 45 and 46. However, I am not sure that the term "relevant person" covers all the permutations that are currently covered in law by the definition of owners and tenants and I would welcome more comments on that matter.
The issue of the general safety of buildings has been important in Edinburgh in recent years, but it is relevant throughout the country. There have been one or two high-profile incidents in which people have been killed because of buildings' not having been properly repaired or maintained, or because of accidents that might have been avoidable.
This grouping of amendments is headed "Owners and other persons connected with a building: rights, responsibilities and offences". Understandably, we are concentrating on who takes responsibility when building work is taking place, and on whether warrants have been properly obtained. I am sure that the minister will appreciate the fact that buildings can be dangerous in other circumstances that are not related to times when work is going on without a warrant, but where repair and maintenance has not taken place for some time.
What are the minister's views about a regime that will ensure, or that could ensure, that buildings are repaired and maintained in proper order, and under which owners who fail to carry out such repairs and maintenance are subject to proper liability? Might the minister consider at stage 3 an amendment that would have the general effect of requiring owners to take reasonable measures to ensure that they have at least inspected their buildings to determine whether there is any requirement for repair and maintenance and that, where that is required, they have taken all reasonable steps? Perhaps local authorities could play a role in ensuring enforcement of such repairs and maintenance where a need for that is discovered.
On John Scott's points about amendment 46A and our amendments in the group, I think that we have shied away from legally defining a tenant. Our objective is to be more flexible, which is why we propose terminology such as "relevant person". John Scott is right to highlight the vast variety of circumstances that can arise in the course of professional experience. We think that it is better to use the phrase "relevant person" as a mechanism for addressing that complexity, rather than jump through hoops trying to define ever more precisely what is meant by a tenant. It is a question of determining the most appropriate approach. We think that using that phrase is the best way to achieve the aspiration that I think John Scott and I share. I hope that he accepts that assurance. The notion of "relevant person" potentially allows us to deal with issues in regulations more effectively than through defining "tenancy".
Angus MacKay's point relates to dangerous buildings or to buildings that are reaching the point of being dangerous. A combination of legal mechanisms is in place, under both common law and the occupiers' liability act 1968, which contains the legal mechanism for dealing with such issues. It is difficult to see how we can address those issues within the framework of a building standards act if the scope of that legislation is not expanded beyond what it is intended to cover.
The proposed legislation is not geared towards identifying liabilities for accidents in relation to the circumstances that Angus MacKay highlights. The bill will, however, place a number of responsibilities on owners and professional people in relation to the way in which buildings are designed and put together. That will, I hope, reduce the possibility of buildings' becoming dangerous, but it does not provide a mechanism for actually dealing with liability. That might be the point that Angus MacKay is homing in on.
Although liability is consequential on the matter, I am trying to focus on the responsibility that would apply to property owners to take all reasonable measures in relation to repair and maintenance. If an owner failed to take those measures, there would clearly be potential for a consequential liability if something happened as a result of the owner's failure to have due regard to that requirement.
However, I do not seek to deal with that part of the process, because that matter could be settled by common law or elsewhere. I seek merely to place an obligation on owners not simply to undertake repair and maintenance as and when they feel like it but to have due regard to public safety. That would require owners at least to satisfy themselves that they have inspected their buildings or have had the buildings inspected. We would need to fit that into a broader regime.
I would be satisfied if the minister at least gave an undertaking that, if I write to him, he will give the matter proper consideration. Perhaps he could lodge an amendment at stage 3. We need to press the issue further so that we make the concerns and how they might be resolved a bit more transparent.
I will make one correction for the record: the act that I meant to mention was the Occupiers' Liability (Scotland) Act 1960, rather than a 1968 act. My colleague has whispered in my ear that I should rectify that.
I am sure that one of my colleagues was just about to point out that mistake.
During its previous deliberations, the committee considered the role of owners and what responsibilities for inspection of buildings can be placed on them. It would be hard to establish precise duties that could be applied across the different kinds of ownership, which range from domestic houses to public buildings. However, I am happy to examine the issue and to reply to Angus MacKay and the committee on the practicalities of the duty of inspection that Angus MacKay seeks.
I will let Bruce Crawford in if what he has to say is related to the specific point in question.
I understood that local authorities already had powers to deal with a situation in which a property is in such a state of disrepair that it is becoming a danger to the public. I am not sure which legislation those powers come under, but I know that environmental health officers can carry out such activity. However, perhaps that is not what Angus MacKay is after.
There might well be existing powers that allow a local authority to take action when it knows that a building is in a state of disrepair. However, if the local authority does not know the state of repair of every building in the city, it will be difficult for it to take action. That is why it is important that individual owners, who have the benefit of the asset, should be required to have proper regard to public safety in relation to the condition of the asset.
I will, if I may, pick up on the point that Bruce Crawford made. The bill will give local authorities additional powers to go in and check defective buildings. However, Angus MacKay wants a duty to be placed on owners to ensure that their buildings are kept in the right state. I am happy to examine the practicalities of that suggestion and to respond to Angus MacKay and the committee on that.
If I may expand on that—
I would prefer to move on. The minister has said that he will respond in writing to the points that the committee has raised. If Angus MacKay wants to expand on those points, he can do so by writing to the minister.
Convener—
We have had the response to the debate, John. I have been quite liberal in allowing people to intervene while the minister was winding up. I would prefer to make progress.
Amendment 11 agreed to.
Amendments 12 to 16 moved—[Des McNulty]—and agreed to.
Section 8, as amended, agreed to.
Section 9—Building warrants: grant and amendment
Amendment 17 moved—[Des McNulty]—and agreed to.
Amendment 84 is grouped with amendments 18, 19, 21, 22 and 25.
Amendment 84 would allow a verifier, if they wished, to take a wider view of an application for a grant and not to be limited to considering only the documentation submitted with the application. Local knowledge may be available in Edinburgh about subsidence and in the Lothians about old mining workings that could affect the outcome of an application for a grant for construction or demolition. However, that knowledge may not be included in the plans, specifications or other information that has been submitted. Amendment 84 would include in the bill a verifier's right to take a broader, more holistic view of an application. I believe that that would be in line with the committee's views, as debated previously.
I move amendment 84.
We believe that amendment 84 is unnecessary and that the existing provisions are adequate to ensure that the verifier takes a fully informed decision. Regulations under section 33(1) will provide for the form and content of applications for warrants. Procedural regulations under section 30 will set out the procedure that is to be followed in connection with applications. Under paragraph 1 of schedule 4, procedural regulations may make provision for the submission with applications of various material, including "other information". Those provisions have been drafted to address the valid point that John Scott makes. On that basis, I ask John Scott to withdraw amendment 84.
Amendments 18, 19, 21 and 22 relate to the provisions in section 9 that deal with amendments to a building warrant. They are relatively minor and would focus the relevant provisions more closely on the policy intention and make the bill more consistent.
As drafted, section 9(5) restricts amendments to a building warrant to deviations from plans or specifications. However, it is clear that people may want to change other aspects of the warrant. For example, they may wish to change the purpose of a conversion without changing the plans or specifications. Amendment 18 would ensure that all warrants are subject to amendment.
Amendment 19 relates to section 9(5)(b). It would make clear that references that are made to completion certificates are to completion certificates
"in respect of the work or conversion".
Amendment 21 would remove the restrictions on what an amendment to a building warrant may include, which the bill as drafted restricts unnecessarily. It would make it possible to amend any part of the warrant, rather than just the plans and specifications.
Amendment 22 would provide that where an application for an amendment to a building warrant has been made, a verifier must continue to be satisfied with all the matters with which they were satisfied when granting the initial warrant, taking into account the proposed amendment and the information that has been supplied with it.
In general, the Executive wants the building regulations that apply to any application for an amendment to a building warrant to be those that were in force when the application for the original warrant was made. The exception to that provision is cases in which ministers have made a relevant relaxation or dispensation after an application for a warrant has been made. Amendment 25 would provide for such cases. Without the amendment, it would be possible for someone to be granted a relaxation by ministers on a building that they were constructing, but they would not be able to amend the relevant warrant to reflect that. It is unfair that someone who has started work on a building should not be able to benefit from subsequent relevant relaxations that ministers may make.
I reiterate a point that I made in my closing speech during the stage 1 debate—the use of relaxations will be rare. We have proposed this framework on the basis that it will be used sparingly.
When I read amendment 84, I was taken by the proposal, particularly because of subsidence, old mine workings, potential landslips and other unforeseen circumstances. The minister talked about sections 30 and 33 of the bill—
I spoke about sections 33(1) and 30.
Could the minister repeat what he said?
Regulations under section 33(1) will provide for the form and content of applications for warrants. Procedural regulations under section 30 will provide for the procedure that is to be followed in connection with applications.
I have read through those sections. Section 33(1) deals with what the form will say; it does not deal with the other information that might be available. Section 30 does not seem to provide a verifier with any flexibility to take on board other circumstances that might be known about but which are not contained in the application form or plan. The minister's answers so far have not convinced me that amendment 84 is unnecessary. Unless the minister can be a bit more specific on exactly what sections 30 and 33(1) will achieve, I will support amendment 84.
I refer Bruce Crawford to schedule 4, which is introduced by section 30. Paragraph 1 refers to "other information", and that mechanism deals with John Scott's point. Our interpretation is that the matters to which John Scott is referring could be dealt with under that procedural regulation.
Given that John Scott raised the issue, we will reflect on it. If we feel that the way in which that section is drafted is inadequate, we will return to the committee on it. Our feeling is that the matters raised by John Scott could be addressed by the way in which the bill is drafted.
That would be useful because, as far as I can see, schedule 4(1) does not deal with information extraneous to the application or to something submitted to the verifier. Amendment 84 could apply to information that is not submitted or made available to the verifier immediately and must, therefore, be considered.
I thank the minister for his comments and Bruce Crawford for his support. I am still not clear that paragraph 1 of schedule 4 does what I had intended to do with amendment 84. If the minister is giving an undertaking that he will reconsider the matter and give further clarification or lodge an amendment at stage 3, I am happy to withdraw amendment 84. If he is not proposing to do so, I will press amendment 84.
We will write to John Scott, with copies to other committee members, when we have had a chance to consider the matter in more detail. Our view is that the matter is dealt with under the existing mechanism, but if John Scott is not satisfied with our explanation or if there is no movement from the Executive, he is free to lodge an amendment at stage 3. However, we will consider the matter and get back to him well in advance of stage 3.
I am happy with the minister's assurances.
Amendment 84, by agreement, withdrawn.
Amendments 18 to 22 moved—[Des McNulty]—and agreed to.
Amendment 23 is grouped with amendments 24, 47 and 48.
Amendments 23 and 24 would amend section 9 to provide that where the verifier who grants the warrant or amendment to a warrant is in a local authority, but not the local authority for the geographical area in which the building is situated, he or she will be required to send a copy of the warrant to the local authority for that area.
Amendments 47 and 48 would have the same effect on section 19, in relation to verifiers accepting completion certificates. Therefore, the amendments deal with a potential anomaly.
I move amendment 23.
Amendment 23 agreed to.
Amendments 24 and 25 moved—[Des McNulty]—and agreed to.
Section 9, as amended, agreed to.
Section 10—Building warrants: extension, alteration and conversion
Amendment 26 is grouped with amendments 27, 28, 29, 30, 31 and 32.
This group of amendments relates to section 10, which sets out the particular circumstances in which a verifier must refuse building warrant applications in relation to extensions, alterations and conversions. Our intention is to bring the bill more into line with the established policy intention of the section. Amendments 26, 27, 29, 30 and 32 are intended to deal with a situation in which an entire building fails to comply, or fails to comply to a greater degree, with building regulations following the extension, alteration or conversion of part of it. As drafted, the bill is unclear whether the verifier would be able to consider the effect on the whole building or on only the part of the building that is directly concerned. As a result of the amendments, the effect on the whole building would be relevant.
Amendments 28 and 31 are intended to remove the potential for ambiguity arising in practice in relation to extensions that cause a building to fail to comply, or to fail to comply to a greater degree, with building regulations. The use of the word "direct" in sections 10(2)(b) and 10(3)(b) creates the potential for arguments about whether extensions cause a building to fail to comply as a direct or indirect result of the extension. The amendments would provide that where the result is direct or indirect, a verifier must refuse to grant the warrant. We were trying to sort out a wording problem.
I move amendment 26.
Amendment 26 agreed to.
Amendments 27 to 32 moved—[Des McNulty]—and agreed to.
Section 10, as amended, agreed to.
Section 11—Building warrants: certification of design
Amendment 33 is grouped with amendments 34 and 35.
Amendment 33 would broaden the range of types of building warrant that may be accompanied by certification of design. It would remove the reference to warrants or amendments to warrants for the construction of a building, thereby permitting all types of warrants to be accompanied by design certification. Our purpose is to permit such certification to apply not only to warrants for construction but to warrants for demolition or conversion or the provision of services, fittings and equipment. That would broaden the process out.
An important factor in the approval process can be the way in which the demolition is carried out, and the certifier could be appointed to certify that the process to be followed in the demolition complies with building regulations. In relation to conversion, a certifier might be able to certify that the building as designed complies with the building regulations that apply to the new use.
Amendments 34 and 35 should be read in tandem. They would expand the matters that an approved certifier may certify, including that the proposed method of working in relation to work for construction, demolition or the provision of services, fittings or equipment complies with building regulations. That might exclude certifying that the process for demolishing a building complies with building regulations.
I move amendment 33.
Section 11(3) states:
"In determining the application, the verifier must accept the certificate as conclusive of the facts to which it relates."
Is that the current practice? I would like a yes or no answer.
I am being advised that the answer is yes, but that there are very few such cases. Under the process in which we are engaged, we have to license the certifiers.
I will take that as a qualified yes.
Section 11(3) states:
"In determining the application, the verifier must accept the certificate as conclusive of the facts to which it relates."
What happens if the verifier spots that one of the facts is wrong? While the minister is thinking about that, I suggest that it might be more sensible to replace that subsection with section 17(2), which says:
"The verifier must accept the certificate if, but only if, after reasonable inquiry, it is satisfied as to the matters certified in the certificate."
Would that not supply the wiggle room required? I would be happy if the minister wished to write to me on that matter.
We will write to you. There is a difference between the completion arrangements and the initial certification. Perhaps I could clarify that in correspondence with the member.
If the minister would do that well before stage 3, I will be happy to consider his response.
Amendment 33 agreed to.
Amendments 34 and 35 moved—[Des McNulty]—and agreed to.
Amendment 36 is grouped with amendment 50.
Amendments 36 and 50 relate to new offences under the bill. The new offences are in line with policies that we have already outlined, and are a logical extension of offences in the bill as introduced. The new offences relate to a certifier of design and construction who knowingly or
"recklessly issues a certificate … which is false or misleading in a material particular".
As I said, that is in line with offences already in the bill that relate to verifiers who knowingly grant building warrants or accept completion certificates containing false or misleading information and to persons who knowingly or recklessly submit building warrants or completion certificates containing materially false or misleading information.
I move amendment 36.
This is like "Groundhog Day": I ask the minister to write to me in the same terms as those in which he undertook to write to me in relation to our discussion of the previous group of amendments.
Section 18(2) reads:
"In determining whether or not to accept the completion certificate, the verifier must accept the certificate of the approved certifier of construction as conclusive of the facts to which it relates."
My point is exactly the same as the one that I raised earlier: what happens if one of the facts is spotted as being wrong?
We can deal with that matter in the same correspondence.
Amendment 36 agreed to.
Amendment 37 moved—[Des McNulty]—and agreed to.
Section 11, as amended, agreed to.
Section 12—Building warrants: reference to Ministers
Amendment 38 is grouped with amendments 39, 85, 86 and 40.
Amendments 38 to 40 relate to the reference to the Scottish ministers of doubts arising over the compliance of building regulations in the context of building warrant applications. As drafted, section 12 permits only verifiers to refer such matters to ministers and states that that must be in agreement with the applicant. Amendments 38 and 39 permit either the applicant or the verifier to refer such matters to ministers without the agreement of the other parties, so it is a mechanism that anticipates potential disputes between the parties.
Ministers have discretion over whether to express a view on a matter referred to them. We intend to issue guidance on the situations where it will be appropriate to refer matters to ministers and on the situations where ministers might refuse to give a view—for example, where they consider that there is no element of doubt. Amendment 40 provides that where ministers wish to express a view on a matter referred to them, they must intimate that view to the relevant verifier and to the applicant.
I would like to listen to John Scott's statement on amendments 85 and 86 and respond on the basis of what he says, if that is permissible.
I move amendment 38.
Amendments 85 and 86 should be read together. The amendments seek to encourage verifiers to consult as widely as possible and to take an holistic view of any project, which Angus MacKay mentioned earlier.
Although a certifier of design might have approved part of the Ronan Point building, which was mentioned in evidence, the ensuing progressive collapse following a gas explosion might have been averted had the overall design of the building been considered more carefully and by a wider group of people.
Although it might not be the place of the certifier of design to be consulted after he had certified his part of the building, it should, in practice, be possible for verifiers to consult as widely as they see fit if they have doubts about a building or if they spot mistakes. Human safety is the key consideration, and if more minds examine new concepts and designs, that is likely to reduce the risk of concept and design failure, as happened in the Ronan Point disaster. That is the reasoning behind the amendments.
I will take any other members who wish to speak to this group of amendments.
It is difficult to speak to the group until I hear what the minister says. That is the problem.
I will allow the minister to speak now as some members are interested in what he has to say about John Scott's amendments. The minister will address those amendments first. I will give him an opportunity to wind up later after other members have spoken.
I am doubtful whether John Scott's amendments will achieve their intention. An approved certifier is employed by the applicant. An applicant may be an approved certifier. Either way, the certifier is not really a third party in the way that John Scott suggested. The role of the certifier is to certify that a certain part of a building meets regulations. The locus of that certificate relates only to the part of the building that has been certified. Once the certificate has been issued, the verifier accepts it. There should be no element of doubt attached to anything that is certified by an approved certifier.
The section deals only with cases where there are doubts, so it is very difficult to see how it can be manipulated to allow it to apply to anything certified by an approved certifier. John Scott is putting his finger on an issue, but we think that the system of certification and verification should deal with it. Amendments 85 and 86 do not assist that process.
Do any members want to participate in the debate?
I may not be making my point satisfactorily. In the Ronan Point building, there were four columns of bricks that were not adequately tied together, yet each individual brick was a building block that was certified by a certifier of design as being adequate in its own right. However, the overall concept failed. I am trying to ensure—although the wording of the amendment may not do so adequately—that overall responsibility is not confined to the verifier. If the verifier or anyone else has doubts, they should be able to raise them with the certifier of design. That is better than watching a building collapse because it was not someone's place to raise concerns. These situations do not happen often, but when they do they are dramatic and terrible.
John Scott is trying to take a belt-and-braces approach that involves referring issues back to the certifier of design. We believe that that would lead to confusion. The certifier's job is to certify buildings. It is the role of the certifier to issue a certificate for part of a piece of work. Verifiers check the certification process and have a broader general responsibility. If a verifier is in doubt, they should be in discussion with the applicant. If there is further doubt, they should refer matters to ministers, at which point there would be professional input. If doubts are not resolved, the warrant will be withheld. That is the mechanism for dealing with such issues.
The mechanism that John Scott is trying to establish might confuse the roles of the certifier and the verifier. The member is trying to ensure that verification is done properly. The mechanism that we are trying to establish for handling doubts and uncertainties is probably better than the one that he proposes.
Amendment 38 agreed to.
Amendment 39 moved—[Des McNulty]—and agreed to.
Does John Scott wish to move amendment 85.
In the light of what the minister has said, I will not move the amendment. I do not want in any way to endanger or complicate the bill. I welcome the fact that the minister has taken on board what I am trying to achieve.
Amendments 85 and 86 not moved.
Amendment 40 moved—[Des McNulty]—and agreed to.
Section 12, as amended, agreed to.
Section 13—Building warrants: further provisions
Amendment 41 is grouped with amendments 42, 43 and 78.
The amendments would add new offences to the bill that are in line with policies that have already been set out. I hope that they will be seen as a logical extension of the bill's existing provisions.
Amendment 41 clarifies that, where a building warrant relates to a limited-life building that must be demolished at the end of the period stated in the warrant, the warrant does not constitute a warrant to carry out that demolition. A separate application for a warrant for demolition must be made.
Amendment 42 creates two new offences relating to limited-life buildings. If an owner fails to demolish a limited-life building at the end of the period specified in the warrant, that will be an offence. If someone occupies or uses such a building after the period specified in the warrant, that, too, will be an offence. Proposed new section 13(9), which the amendment would insert in the bill, specifies the penalty that applies to the second offence that I have outlined. The penalty is in line with that for occupying a building without a completion certification. The new subsection makes provision for local authorities to seek to prevent or restrain occupation of such buildings by applying to the civil courts for an interdict.
The new offences are necessary to ensure that buildings with a limited life do not exist and are not used beyond the point determined by the verifier, because they may present a danger to the public.
Amendment 78, which is consequential to amendment 42, would add the new offence of occupying or using a limited-life building after the period specified in the warrant to the list of exceptions to the standard penalty for offences that is outlined in section 43(2).
Amendment 43 would split section 13 into two sections. The amendment is simply due to the extra six subsections on limited-life buildings that amendment 42 would add to section 13.
I move amendment 41.
Amendment 41 agreed to.
Amendment 42 moved—[Des McNulty]—and agreed to.
Section 13, as amended, agreed to.
Amendment 43 moved—[Des McNulty]—and agreed to.
Sections 14 and 15 agreed to.
Section 16—Completion certificates
Amendments 44 and 45 moved—[Des McNulty]—and agreed to.
Amendment 46 moved—[Des McNulty].
Amendment 46A not moved.
Amendment 46 agreed to.
Section 16, as amended, agreed to.
Section 17—Completion certificates: acceptance and rejection
Amendments 47 and 48 moved—[Des McNulty]—and agreed to.
Section 17, as amended, agreed to.
Section 18—Completion certificates: certification of construction
Amendments 49 to 51 moved—[Des McNulty]—and agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
Section 20—Occupation or use without completion certificates
Amendment 52 is grouped with amendments 53, 55 and 56. Before calling on the minister, I propose that we should go no further than the target that we set ourselves for today, which is to the end of section 21.
I call on the minister to speak to all the amendments in the group and to move amendment 52.
Amendment 52 will have the effect of reducing the number of situations in which occupation of a building is prohibited. The amendment will focus section 20(1)(b) more directly on the policy intention for that section.
Where a building regulations compliance notice or a defective building notice is issued, the Executive does not wish necessarily to prohibit occupation or use unless a building warrant is required and the criteria in section 20(1)(a) apply. Consequently, references to such notices will be deleted by amendment 52. As currently drafted, section 20(1)(b)(i) would have the undesirable effect of criminalising anyone who occupied the building to carry out minor works as a result of such notices. Amendment 52 will prevent the occupation of buildings that have been subject to a dangerous building notice only if it is necessary in the first place to evict people from the building under the powers given in section 26 and in schedule 3.
It may be that the work that is required by the dangerous building notice does not require people to evacuate the building. That could depend on the nature of that work. Amendment 52 will provide that, when the powers of the bill are used to remove people from a dangerous building and a dangerous building notice is served, occupation or use of the building is prohibited until the completion certificate for the work required by virtue of the dangerous building notice has been accepted.
Amendments 53 and 56, like amendment 19, which we dealt with previously, relate to sections 20(2) and 20(5)(a) and make it clear that when references are made to completion certifications, the references are to completion certificates in relation to the relevant construction or conversion work.
Amendment 55 provides that in section 20, where a verifier who is not the local authority grants permission for the temporary occupation or use of a building, a copy of that permission must be sent to the relevant local authority. That will help to ensure that the local authority does not take enforcement action against the occupants.
I move amendment 52.
The minister's lodging of this group of amendments is a sensible and pragmatic step. I wonder what happens in a situation in which part of a building is considered to be dangerous. It might be only a small part of a building, such as an extension to a home. What would happen in such circumstances and what part of the bill would allow individuals to remain in the substantial part of their home, but not occupy the bit that was considered to be dangerous?
The dangerous building notice would specify the bit that people were not allowed to go into, so a part of the building, rather than the building as a whole, would be specified.
Amendment 52 agreed to.
Amendments 53 to 56 moved—[Des McNulty]—and agreed to.
Section 20, as amended, agreed to.
Section 21 agreed to.
That brings us to the end of part 2 of the bill, which is the point that we agreed not to proceed past. Stage 2 of the Building (Scotland) Bill will continue at our next meeting, on 8 January, and the target point for consideration of the bill will be published in the business bulletin tomorrow. I thank the minister and the officials from the Scottish Executive for their participation in the meeting. I do not know whether it is an all-time record that we have got through a whole meeting of stage 2 consideration of a bill without a vote. Thanks to all the members for their participation and we shall continue after the new year. Have a good Christmas and new year, minister.
The same to you, convener, and thanks to members of the committee.
I will allow members a brief break before we consider the next item on the agenda. Dorothy-Grace Elder asked for a document to be circulated as she will be unable to participate. I shall ask the clerks to circulate it now to give members the chance to look over it during the break.
Meeting suspended.
On resuming—