Chamber and committees

I appreciate Miles Briggs’s comments. For general context, I note that I have had a number of meetings with Homes for Scotland, particularly about the SME concerns that have been raised. Those concerns will be considered as part of the SBA process as it continues and as things move on to the responsible developer scheme.

I will speak first about my amendments 35 and 36. Amendment 35 requires the Scottish ministers to consult before making regulations to establish a responsible developers scheme. That consultation would primarily be with those concerned with the construction or development of buildings, but would also include any persons that the Scottish ministers consider appropriate. I trust that the committee will welcome the amendment, which responds to concerns that were raised during the stage 1 process about the lack of detail on and lack of consultation regarding the responsible developers scheme.

Requiring consultation on the detail of the responsible developers scheme before developing secondary legislation signals our intention to work collaboratively and to undertake a full consultation with developers, including SMEs and other interested parties. Developers play an important part in Scotland’s economy by providing safe and high-quality homes and we want to work with them to ensure a proportionate and collaborative approach to delivery of the cladding remediation programme.

Amendment 36 clarifies the definition of a “developer” in section 21(6) and is also part of the Government’s response to concerns that were raised during the stage 1 process regarding some of the definitions in the bill.

I move to amendment 67 and will also touch on the remaining amendments in the group, which are all in the name of Miles Briggs. In doing so, I ask members to keep in mind the Scottish Government’s clear policy objective that developers must play their part in making buildings safe. The Scottish Government expects developers to commit to identifying, assessing and remediating buildings in Scotland, as they have done in Wales and England.

Amendment 67 amends section 20 of the bill and appears to aim to remove the Scottish ministers’ ability to set up more than one scheme. My position is that it is important for ministers to be able to respond to the needs of homeowners, developers and other stakeholders and that, following consultation, we will be in a better position to determine precisely what is required. The bill therefore retains the ability to form more than one scheme, which would enable us to accurately and sensitively design schemes for different sizes or types of developers, in line with their needs. I therefore ask the member not to press amendment 67.

Amendment 68 seeks to amend section 20 by changing the purpose of a scheme from requiring a person in the industry to “address or contribute” to the costs of addressing issues covered by the bill and the cladding remediation programme to requiring that they should instead

“make a reasonable and proportionate contribution”.

I am concerned that that apparently slight change in wording could have the effect of diluting the policy aim that I stated earlier, which is that developers must play their part in making buildings safe.

The stated aim of the responsible developers scheme is for developers to address and contribute to the buildings that they have developed. The provision as it stands allows for flexibility in the subsequent regulations as to how developers will be involved in remediation. The consultation that precedes the making of regulations will allow for that issue to be explored in more detail and I would not wish to reduce the mandate of that consultation by reducing flexibility at this point. l therefore ask the member not to move amendment 68.

Amendment 71 seeks to amend section 20 of the bill by removing the option that a scheme set up by the subsequent regulations may

“require members, or persons seeking to become members, of a scheme to pay fees”.

Although I can understand why some would like to see that excluded from any future scheme, it is important that that remains an option for the Scottish ministers, because it requires consideration of the impact of the cladding remediation programme on the public purse and allows ministers to require, for example, that admin fees be paid as part of that scheme. In that context, I again refer members to the policy objective that I stated some moments ago.

I acknowledge that there will be strong views regarding any such fee, which will form part of the Government’s consultation. However, my position is that it is important to separate that question from the question whether the Scottish ministers should have the option of requiring fees from scheme members. I therefore cannot support amendment 71. I urge Miles Briggs not to move it and committee members to reject it, if it is moved.

Amendment 75 relates to conditions of membership and inserts the words “reasonable and proportionate” into the existing provision that requires scheme members to make financial contributions in respect of single building assessments and the carrying out of work identified in such assessments. l am concerned that that change could limit the scope of how scheme members will contribute to the scheme and I consider it unnecessary at this point. I again point to the consultation process to flesh that out, and I am concerned that adding that wording to primary legislation would limit what is possible in the regulations.

I turn to amendments 76, 77 and 78, which concern the right of appeal and change the potential for regulations to provide for a right of appeal to a court or tribunal, to a requirement that they should do so. Amendment 78 seeks to add procedural details that should be covered in the regulations. That seems to be a reasonable proposition, but I want to fully consider the impact that amendment 78 might have on the Scottish Courts and Tribunals Service and what other options would be available and consider that that would best be explored via the consultation process.

Amendment 3 would insert a requirement into section 21 on eligibility for membership, requiring that membership of a responsible developers scheme would be restricted to developers with an annual turnover of more than £10 million.

By way of background, the Scottish Government is currently engaged in a detailed discussion with a wide range of developers, including smaller developers, on the detail of the Scottish safer buildings developer remediation contract. The intention is that there will be a close alignment between that contract and the schemes.

One of the key themes in those discussions is developers’ ability to pay. We have established a task and finish group that is focused on ability to pay, which is engaging closely with developers in Homes for Scotland on financial thresholds, the contribution of smaller developers and the arrangements for firms that may find themselves in financial distress.

Amendment 3 would, again, reduce the flexibility of the regulations that would create the scheme. We do not wish to put such a figure on the face of the bill, as we may require to amend it in order to ensure the fairest settlement for all parties. Again, reducing the flexibility of the scheme prior to consultation is undesirable. That is the same approach that was taken in the United Kingdom Building Safety Act 2022, which left such details to regulations that formed the UK Government’s responsible actors scheme.

Amendment 72 seeks to amend section 21 by adding in that eligibility for the scheme will be dependent on a person having a connection to a building that is described by the regulations as posing a risk to human life that is created or exacerbated by problem cladding. However, since section 21(6) of the bill already defines problematic cladding as a cladding system that directly or indirectly

“creates or exacerbates a risk to human life,”

the amendment would have no effect on the bill, other than to confuse matters. As such, in the interests of simplicity, I ask members to object to the amendment if it is moved.

Finally, I will speak to amendment 79. I welcome the approach taken by the majority of developers concerned, in taking responsibility for their part on the programme. Many are keen to get on with the job and, indeed, aspects of the bill are there expressly to help them to do so. At the same time, it is important that any responsible developers scheme carries an accountability mechanism so that those who are responsible are not disadvantaged compared with those who are not. Considerable development has gone into those sections, which, again, take a similar approach to those that were enacted by the Westminster Government.

Amendment 79 would remove section 24, which establishes that the responsible developers scheme may contain, in effect, sanctions against any person who is included on a prohibited developers list. Section 24 is crucial to the operational integrity and, thus, deliverability of the scheme. Acknowledging that regulations will be subject to consultation, my position is that section 24 must remain in the bill in order that the Government can introduce an element of sanction to the scheme. I recognise the desire of Miles Briggs and other members for more detail on the scheme. However, in view of the Government’s stated intention to consult, I ask Miles Briggs not to press amendment 67 and not to move amendments 68, 71, 3, 72, 75, 76, 77, 78 and 79.

Amendment 8 would require the Scottish ministers to create a reinsurance scheme via regulations to

“promote affordability and availability of insurance for an owner or occupier of a premise”

with unsafe cladding. There is dubiety about the meaning and effect of the provision. It is not evident what scheme would be created and what it would seek to achieve, and it is not clear at whom the scheme would be aimed, or how. As such, I am unable to make an assessment of the likely costs or affordability of any such scheme.

I will take into consideration what Mr Simpson said about working with insurers, but I do not support amendment 8 based on its unclear drafting in relation to the aim and preferred outcome of such a scheme. Legislation should be drafted clearly and precisely. The lack of clarity is also relevant when considering the potential costs of such a scheme, as they cannot be quantified, which makes amendment 8 difficult to support.

Members may wish to note that we have engaged with the ABI, which has indicated that it does not support the amendment. Instead, more pragmatic measures are preferable to the ABI. We will work with it and other stakeholders to define the detail that we would like to be in the cladding assurance register. We touched on the point about unoccupied buildings during our discussions. I urge the member to seek to withdraw the amendment. If he wants to keep us up to date on his discussions with the ABI, there might be an opportunity to discuss what comes from them, if he wants to lodge an amendment at stage 3. As I said, we have engaged with the ABI and we got similar feedback.

Amendment 7 would require a sheriff to appoint a panel of technical experts with knowledge and experience of remediation work and take into account their views when making a decision on an appeal.

I recognise the positive intent of Graham Simpson’s amendment as, often, matters may be technical and expert advice might assist the court. However, appeals under section 10 would carry a great degree of urgency, as they would be brought forward in cases in which a single building assessment, which was produced by appropriately qualified professionals, had identified the need to act promptly to eliminate or mitigate risks to human life. A requirement to appoint a panel of experts would almost invariably add to the time that it takes for a court to consider an appeal in what may be life-critical matters.

That is not to say that there is no role for technical experts in some cases, and parties may instruct their own expert witnesses. However, it is not proportionate to require a sheriff to nominate a panel in every case, and I would have concerns about the impact of amendment 7 on judicial independence and on the court’s ability to deal with cases as it sees fit.

The Government’s informal engagement with the Scottish Courts and Tribunals Service, ahead of stage 2, suggests that it shares at least some of those concerns. In addition, how the arrangements would work in practice is unclear, and there are questions about the cost, size and composition of the panel—including whether the membership was agreeable to both parties, for example—as well as the impact on court rules.

For those reasons, I ask Graham Simpson not to press amendment 7. If the amendment is pressed, I ask the committee to reject it.

I have a little bit more to say, so I will move on, but I will, I hope, pick up the points that you have mentioned.

Works will be considered to be complete only when the cladding assurance register is updated accordingly, which will require that works have been completed to the satisfaction of the Scottish ministers. Work is under way to develop a robust compliance and assurance framework to support that through the cladding remediation programme. That touches on the point that Ms Duncan-Glancy referenced, but I am happy to pick up points about completion of the SBA process.

I remind members that we always seek to undertake works with the consent of owners. If that is not possible, they have a right of appeal to the sheriff court, except in circumstances in which work is considered to be urgent because of there being an immediate risk to life, in which case such notice as the circumstances permit will be given.

In the light of the measures that I have outlined, I do not believe that an independent reviewer is necessary, why is why I ask members to reject amendment 52 if it is moved. We must avoid unnecessary delays in progressing with assessment and remediation.

On amendments 53 and 82, assigning responsibility for remediation work is not part of the SBA and is not an appropriate task for the experts who undertake the assessments. The purpose of the SBA is to comprehensively assess the risk to human life that is directly or indirectly created, or exacerbated, by a building’s external wall cladding system. Responsibility for remediation work will be attributed after that work is identified in the SBA, when contractors will be engaged to carry out the remediation work. Amendments 53 and 82 would distract from the purpose of the SBA rather than improve the bill, so I ask members to reject the amendments in the event that they are moved.

I thank Ms Duncan-Glancy for lodging amendments 51 and 86, on a committee for single building assessments, which bring a key point to the attention of the committee. Home owners and residents must remain firmly at the heart of cladding remediation. We should, and we will, ensure that lived experience is considered, as we develop, implement and improve our approach to cladding remediation.

However, it is important for residents who are affected by such issues that the cladding remediation programme can be progressed as quickly as possible. It is inevitable that placing that aspect of the process on a statutory footing would delay, rather than speed up, the programme. I therefore propose to engage directly with Ms Duncan-Glancy to consider how best to build lived experience into our operational programme. I wrote to her last night about engaging with her as we move towards stage 3; I hope that she has received that correspondence. She has my commitment that we will consider how best we can ensure that everything that we do is informed by the lived experience of owners and occupiers, including those with disabilities.

On that basis, I ask that Pam Duncan-Glancy not move amendments 51 and 86 and that she agrees to meet me to consider how best we can embed lived experience in the cladding remediation programme.

Amendment 83 would require that the SBA sets out whether each risk that is identified during the assessment process is tolerable. That is not how tolerable risk will be assessed in the SBA. After all the risks have been identified, the SBA will state which of those risks should be addressed and how, in order to bring the risk as a whole that is posed to human life down to a tolerable level. As such, there will be no way to assess whether each risk is tolerable; tolerable risk must be assessed in the round, taking into account the risks as a whole that have been identified in a building and how they might be mitigated. The way in which amendment 83 is expressed would not allow an SBA to be conducted in the way that is required. In any event, the standards in development are the best place to deal with questions about how tolerable risk is identified. I therefore ask Mark Griffin not to move amendment 83, and I ask members to reject it if it is moved.

Amendment 42 is a technical amendment to bring the definition of “building height” into line with the definition that we expect to be proposed for the single building assessment standard, which, in turn, draws on the definition that is contained in the PAS 9980 standards that are used elsewhere in the United Kingdom. An updated definition of building height will therefore support consistency between SBA assessments in Scotland and PAS 9980, and it will provide greater accuracy and clarity for all interested parties.

On amendment 85, our risk-based approach has consistently outlined the current scope of the programme as being buildings that are more than 11m in height. That is based on a risk assessment of capability to fight a fire, reflecting the reach of ground-mounted water jets and the use of specialist height appliances. The SBA is for buildings over 11m, and the bill is reflective of that scope. If ministers want to change the scope in the future, that would be subject to due consideration through appropriate regulations. We do not want to limit flexibility by stating the height in the bill. I reject amendment 85 and invite members to do the same.

As drafted, part 1 of the bill outlines the requirement for the Scottish ministers to maintain a cladding assurance register. An entry will be created in the register only after a single building assessment has been completed and any remediation work identified in that SBA has been completed to the satisfaction of ministers. That was to ensure that entries are made only once any such remediation work identified in the SBA has been completed.

However, I acknowledge that, during the stage 1 evidence sessions that the committee conducted, numerous stakeholders highlighted the multifaceted challenges associated with properties affected by potentially unsafe cladding, with issues pertaining to remortgaging, buying, selling and insuring such properties being of particular concern. The committee’s stage 1 report highlighted that there were concerns that the existing points of entry to the cladding assurance register might not adequately address those challenges, and that there was a growing consensus among stakeholders that supported the point of entry on to the register always being the completion of a single building assessment, including when a need for remediation work is identified.

In my response to the committee’s stage 1 report on the bill, I made a commitment to review the Government’s position on point of entry. After careful consideration, I agree that changing the entry point for buildings on to the cladding assurance register in cases in which the SBA identifies a need for remediation work would be a worthwhile change. That approach seeks to enhance transparency and might assist decision making in property transactions, while ensuring that any change is aligned with the overarching objective of ensuring the safety and wellbeing of occupants residing in buildings with cladding. It responds positively and directly to a recommendation that the committee made in its stage 1 report.

The change is delivered by amendments 10 and 11, which will ensure that an entry on to the register is always created immediately after the SBA has been completed. That change creates a need to adjust section 1 to make it clear how the completion of works will be recorded. Government amendment 12 does that by confirming that an entry is to be updated

“as soon as reasonably practicable after the Scottish Ministers are satisfied that”

the work is complete. However, amendment 12 has an additional aspect, to which I will now turn.

Amendment 12, along with the remaining Government amendments in the group, also adds to the bill the concept of additional work assessments. Our approach to cladding remediation is centred on the process of a single building assessment and, specifically, on the works that are required to eliminate or mitigate risk to human life related to the external wall system.

Cladding assessment and remediation can be a complex engineering project. We must allow for a scenario in which additional relevant risk and associated works to address that risk are identified after the single building assessment has been completed, without going back to square 1. For example, that could occur when an issue becomes apparent after a cladding panel has been removed from a building during the course of planned remediation and it exposes a problem that was not evident in the original SBA. We do not want to create any unnecessary barriers of process that would delay the completion of necessary work.

Through the amendments, we also seek to ensure that all required works are documented, completed and captured in the cladding assurance register, thereby ensuring that the golden thread of information from assessment to completed remediation is maintained.

We must also ensure that the rights of owners are protected. We have therefore reflected existing procedural safeguards, including 21 days’ notification of and appeal against newly discovered work being conducted, unless the work is urgent. I ask members to support all the Government amendments in the group.

Mark Griffin’s amendments seek to amend the language of the bill, specifically in relation to a “risk to human life”. In doing so, they touch on the central purpose of the bill and of the cladding remediation programme. As such, his amendments propose changes in a number of places throughout the bill, but we are required to discuss them here due to amendments 44 and 45 being pre-empted by my amendment 10, which I have already discussed.

My assumption is that Mark Griffin’s amendments, taken together, intend to replace the current references to risks that are directly or indirectly

“created or exacerbated by a building’s external wall cladding system”

with broader references to “any risks” that are created or exacerbated by that system.

I do not support such an approach. The current language makes it clear that the risks to be addressed may be either directly caused by the cladding system itself or indirectly influenced by it. Not being clear on that point could risk narrowing the focus of the single building assessment to risks that are directly attributed to the cladding system alone, with the result that secondary or indirect risks that impact on the risk to life could potentially be overlooked. Ultimately, such a narrowing of the assessment could have the effect of leaving remediated buildings at a higher risk level post remediation than the bill currently allows for. I urge Mark Griffin not to move the amendments, as they might increase the risk to owners and occupiers in affected areas.

I want to touch on amendment 49, in the name of Miles Briggs, which seeks to remove section 1(3)(b) from the bill. That provision relates to the cladding assurance register and, specifically, the ability of the Scottish ministers to include in the register any information that they consider appropriate, in addition to that required to be included by section 1(3)(a) and—if my amendment 12 is agreed to—new paragraphs (aa) and (ab).

The Government’s intention with the existing provision is to retain flexibility in terms of what can be added to the cladding assurance register, to allow us to add further information to the register, if required, as it is operationalised.

I have already committed to working with stakeholders including the Association of British Insurers and UK Finance to ensure that the register can be of maximum value to them as they consider their ability to lend on and insure properties with potentially unsafe cladding. It is imperative that we have the ability to capture the data that will allow the register to operate as effectively as possible.

Although I appreciate that certainty as to what can be added to the register is an attractive prospect, on balance, the Government’s position is to retain such flexibility. I urge Miles Briggs not to move amendment 49.

In conclusion, I ask members not to move their amendments in this group.

I move amendment 10.

Shall I respond to that, convener?

I will write to you.

I will touch on the point about amendment 55 when we move to that group, Ms Duncan-Glancy. I note that reference.

I will begin with amendment 46. The cladding assurance register is designed to provide a reliable source of information on the condition of relevant buildings, including information on what remediation work, if any, the SBA states must take place in a building. The SBA itself will contain information on the different types of cladding that are used in a building. It is also possible that the register entry in relation to any remediation works that are required in a specific building could refer to the types of cladding that are used in the building, where that is relevant to the entry on remediation works.

We do not consider that it would be of benefit to have the register include the types of cladding that are used in a property, as is proposed by amendment 46. Remediation work to bring a building up to a tolerable risk level will not always include the removal of cladding in its entirety. There is therefore a risk that providing information about the types of cladding that are used in a specific building could work to the detriment of homeowners if insurers or mortgage providers were to use that information to refuse on a blanket basis to insure or to lend on that building, even when the SBA has concluded that the presence of a degree of cladding within the building is acceptable in that context.

I therefore invite Mark Griffin to seek to withdraw amendment 46 and I ask members to reject the amendment if it is pressed.

Section 8 refers to the ministerial power to evacuate, while section 16 refers to giving notice when the recipient’s address is unknown. In both cases, there is an obligation to display a notice

“on or near the premises”,

and amendments 26 and 34 simply clarify that such notices must be displayed “conspicuously”, in line with similar provisions that are made in legislation elsewhere.

Amendment 33 further amends section 16 to the effect that a notice that is displayed is taken to be received 48 hours after it is put up. It is important to be clear when notice periods start and finish as, in the absence of owner consent, it is only after the required period of notice that a single building assessment and remediation work can begin. It is thought to be reasonable to deem a notice to be received 48 hours after it is displayed.

I move amendment 26.

Amendment 26 agreed to.

Section 8, as amended, agreed to.

Schedule 1 agreed to.

Section 9 agreed to.

After section 9

A commonsense approach.