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Is the construction industry Building Safety Regulator ready?

Key building safety proposals from the Hackitt review following the Grenfell Tower tragedy will finally be implemented this year when the Building Safety Bill is made law.

But many – Dame Judith Hackitt included – are urging the construction sector to start preparation now for the new measures coming into force by 2023.

The public inquiry into the Grenfell Tower tragedy is still ongoing, but the 2018 Hackitt review into organisational and cultural causes of the Grenfell tragedy, found low levels of competence in many parts of the construction industry and it appears that concerns were raised by whistleblowers, but not heeded.[1] The review also criticised the ability of building companies to choose who inspects their building work.

Construction firms will not survive the new system of building regulation (due in 2023) unless senior staff start making changes now. The new measures see the biggest shake up of the sector in more than 40 years. Dame Judith Hackitt has said, “The place to be starting this is in boardrooms. And I think in every organisation, if that conversation hasn’t already started, it should.”

The draft Building Safety Bill aims to reform the building safety system by:

  • establishing a new regulator, the Building Safety Regulator, (BSR)to oversee building safety for higher-risk buildings
  • identifying key people and organisations, called in the draft bill “dutyholders”, who will be responsible for building safety throughout the lifecycle of higher-risk buildings, from design and construction through to occupation
  • reforming the system for inspecting the quality of building work.

The Building Safety Regulator will have 3 main functions: to oversee the safety and standard of all buildings, directly assure the safety of higher-risk buildings; and improve the competence of people responsible for managing and overseeing building work.

It will operate a new, more stringent set of rules for high-rise residential buildings. The new set of rules will apply when buildings are designed, constructed and then later occupied.

The BSR, which will sit in the Health and Safety Executive, will have powers to bring together teams including Fire and Rescue Services and local authority expertise and will have the power to establish and maintain committees to advise on building functions, including a Building Advisory Committee; a Committee on industry competence; and residents’ panels giving the residents of higher-risk buildings a much needed voice.

The BSR will have tougher enforcement and sanctions powers, with powers to prosecute all offences in the Bill and the Building Act 1984. The BSR will also be able to issue compliance notices and stop notices (halting work until serious non-compliance is addressed) and failure to comply with such notices will be a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine.

Between now and 2023, there is much work to be done for the Government to work with the industry to identify and resolve outstanding issues and flesh out final details, but the sector should not sit back or wait to play catch up in 2023.

Whistleblowing is going to be key in both uncovering abuses and breaches to the regulations, and in improving governance standards across the sector. Protect’s view is that the upcoming legislation is a great opportunity to ensure the BSR has whistleblowing functions at its core as soon as the body is set up. We would like to see an additional role for the BSR in the form of a legal requirement to put in place minimum internal whistleblowing standards for construction firms in the UK[2].

In addition, the BSR should become a prescribed person for the purposes of whistleblowing law – this would encourage workers to raise concerns with the regulator which is particularly important if the employer fails to respond to identified risks.  It would give whistleblowers approaching the BSR with concerns increased legal protection if they were to be victimised, dismissed or forced out of their job for raising concerns. These provisions would mean the BSR was also keeping pace with developments internationally where the EU Directive on whistleblowing has many similar requirements on European regulators.

[1] Celotex executive wrote ‘WTF?’ on fire test report, Grenfell inquiry hears

[2] For comprehensive drafting on these provision see Protect’s draft bill