Seòmar agus comataidhean

I am happy to write to the member on that point with regard to the work that has been undertaken so far. I am happy to discuss that—I know that we have discussed it previously, not specifically in relation to student accommodation but for other settings.

I come back to the amendments. The committee has heard much about the need to increase the pace of progress on cladding remediation, and I am committed to delivering that. Any dilution of its focus will limit progress and have an impact on residents and owners who are already affected by the on-going risks from potentially unsafe cladding. As I mentioned, I offer to write to Mr Briggs. I therefore ask him to seek to withdraw amendment 1. If the amendment is pressed, I urge members to reject it. However, I am happy to pick up the issues that he has raised in relation to it.

I turn to amendments 4 and 80, in the name of Miles Briggs, and amendments 6 and 9, in the name of Graham Simpson, regarding annual reporting. I stress that I support the principles of open and transparent government—in fact, I have already given the committee a commitment to move to regular reporting on the progress of the cladding remediation programme. These amendments all go further, however, and would require ministers to prepare an annual report on the progress and impact of the legislation and the cladding remediation programme itself.

Amendments 4 and 80 focus specifically on the impact on industry. Amendment 4 focuses on the construction industry, and amendment 80 on industries that are affected by the legislation in relation to an economic analysis of the programme. Although I support the amendments’ aims in principle and am actively working to ensure that a developer’s ability to pay is factored into the separate development work that we are undertaking through the Scottish safer buildings developer remediation contract, I cannot support amendment 4’s requirement to produce an annual report that focuses solely on the impact of the construction industry.

Similarly, I cannot support amendment 80, which would require annual consultation and economic analysis. That would be burdensome and would require specialist input in terms of economic analysis at a cost to the Government. We are already working with developers to consider the ability to pay as part of the development of the Scottish safer buildings developer remediation contract, and I have committed to consult on any responsible developer scheme ahead of secondary legislation. As such, we can demonstrate an active commitment to work collaboratively with the industry.

The reporting requirements do not take into account home owners and residents, who are at the heart of our approach to cladding remediation, and in considering both progress and impact they must remain first and foremost in our minds. I therefore ask Miles Briggs not to move amendments 4 and 80 and to instead work with me ahead of stage 3 to develop an amendment that reflects not only the interests of industry but those of the constituents whom we seek to serve.

I make the same offer to Graham Simpson in relation to amendments 6 and 9. Again, I am supportive of the principle, but we must ensure that the focus and detail of any such report is correct. As drafted, amendment 6 does not align with the meaning of the single building assessment at section 25 and it would therefore be undeliverable without a significant shift in the scope of the bill.

I say to Miles Briggs and Graham Simpson that we should work together and get this right ahead of stage 3.

I ask Miles Briggs to withdraw amendment 1 and ask that other amendments in the group not be moved. If the amendments are pressed or moved, I ask members to vote against them.

Amendment 5, in the name of Graham Simpson, seeks to establish a register of contact details for owners and occupiers, to enable them to be notified of works to be carried out on their building and in the event of a fire, so long as remediation works have not been carried out. Such a register would be maintained by a factor, a residents committee or other such persons as the Scottish ministers consider appropriate.

Graham Simpson’s amendment is likely to be reflective of common practice in multi-residential properties across Scotland. Factors, for example, no doubt often maintain such lists as part of their routine business and best practice. I appreciate the comments that Mr Simpson has made, and I will come on to them.

However, I have significant concerns about data protection—

We have indicated that we are willing to work in that regard and to take into account the aspects that have been raised. We will reach out to you to arrange further discussions. If you require further clarity before that, we will pick that up with you. I also say to Ms Duncan-Glancy and Mr Briggs that communication is important, as can be seen from what Mr Simpson said about the incident that he was involved in.

I am happy to engage with you before stage 3, Mr Simpson. If there are any specific points that you want to talk about, you can contact my colleagues or me so that we can try to address them. We have shown willingness to discuss the points that have been raised, which are all related. I am happy to clarify matters and have a meeting to see how we can progress that as we move towards stage 3.

We have talked about this matter previously as regards amendment 50 itself, and it falls within the scope of the bill. You have mentioned a factoring bill, and I am happy to pick up that point with you, as it is important regarding the scope of the bill and how such provisions fit in. I am also happy to pick up on the other amendments as we go through the SBA process, both during the passage of the bill and after the bill is passed. I can give a commitment to have a discussion about it once the SBA process moves to completion.

Specifically on amendment 50, I am happy to pick up on the issue around the factoring bill, as you discussed.

Amendment 50, by agreement, withdrawn.

I will speak first to amendment 17, which seeks to amend section 6. Section 6 refers to the building’s external cladding system as the basis for the Scottish ministers to arrange for work that is identified in a single building assessment, where such work is needed to eliminate or mitigate risks to human life. Amendment 17 would add

“any associated fire safety risks”

to that of the cladding system. As such, it would broaden the scope of the cladding remediation programme.

I recognise the amendment’s positive intent but, on balance, my position is to retain the focus on the cladding system. The bill’s narrow focus is imperative to ensure that the multiresidential buildings that we have identified as being at most risk of causing harm because of unsafe cladding are remediated as swiftly as possible. For good reason, wider fire safety is outwith the scope of the cladding remediation programme and the bill cannot address it. On that basis, I urge Graham Simpson not to press amendment 17, and I urge the committee to reject it if it is pressed. However, I acknowledge the points that he has raised, and I am happy to write to him on the wider fire safety aspect or meet him.

Amendment 58 seeks to amend section 6 by requiring any works that are carried out under the section to adhere to the latest fire safety guidance. That should always be the case, and I have concerns about the drafting of the amendment. There is a lack of clarity about whose guidance is to be followed. That question is left open, which prompts additional uncertainty about what should be considered the latest fire safety guidance.

The position on fire safety guidance is clearly set out in the bill, and the single building assessment process will be the place for a qualified person to assess fire risk. That should not be covered by an amendment, so I ask the member not to move the amendment and, if it is moved, I ask the committee to reject it.

Amendment 66, in the name of Pam Duncan-Glancy, raises the important question of how we ensure the safety of building occupants with a disability when a building has an identified risk following a single building assessment. Although I have great sympathy with the amendment’s intention, I am concerned that the amendment might be unworkable because of the sensitive personal data that ministers would be required to collect and store. That needs to be carefully considered, not only here today but among the full range of partners that can contribute to developing and operationalising an appropriate solution. That is why I will not be able to support amendment 66 today. However, I would like to discuss it further with Pam Duncan-Glancy, and I very much hope that she will work with me on her specific points.

I ask Graham Simpson to withdraw amendment 17. I said that I would contact him in writing about the wider fire safety issues. I ask Pam Duncan-Glancy not to move amendments 58 and 66. If the amendments are pressed, I will ask committee members to vote against them.

I will speak to amendments 23 and 24 in the group. Occupants may be required to evacuate from premises when there is a substantial risk to life due to a building’s external wall system. However, the risk may not be shared equally by all occupants who are required to remove themselves from that building; often the most significant risk will be to those who are higher up in a building. It is therefore important that the evacuation power is available in relation to premises the occupation of which would create a substantial risk to others, even if the lives of the occupants of those premises were not themselves at risk. For example, if the continuing occupation and use of ground-floor commercial premises is putting the lives of others in the building at risk, we must be able to act decisively and instruct removal from the ground-floor premises in order to prevent risk to those higher up in the building. Government amendments 23 and 24 seek to address that and other similar situations, and I ask members to support them.

I turn to amendments 63 and 65, in the name of Miles Briggs. As a matter of public law, it is clearly the case that the Scottish ministers must act reasonably and proportionately in exercising any of their powers. Any exercise of the power to evacuate will be based on robust evidence that there is no alternative or mitigation. That will be specific to each unique development and set of circumstances. Adding the word “reasonable” would not enhance the bill or change the law in any way, and it is entirely unnecessary. I therefore ask Miles Briggs not to press amendment 63 and not to move amendment 65. If the amendments are pressed, I invite members to reject them.

Section 12(6)(c) currently includes justices of the peace as judicial office holders to whom application may be made for a warrant authorising the use of reasonable-force entry. Amendment 30 will delete that reference. Given the urgency attached to such warrant applications, we want to make sure that the process runs as smoothly and quickly as possible. It is understood that, in practice, such applications are likely to be more speedily dealt with through an application to a sheriff or summary sheriff, and the bill should therefore direct applicants accordingly.

I move amendment 30.

I am happy to discuss with Miles Briggs the specific concerns that he has raised. As I said, there is the consultation process, which is already in place, and there are discussions with colleagues in Homes for Scotland and SME builders on some of the specific points that he mentioned. However, I am happy to discuss the points that he has raised before stage 3.

Amendment 67, by agreement, withdrawn.

Amendments 68 to 71 not moved.

Amendment 35 moved—[Paul McLennan]—and agreed to.

Section 20, as amended, agreed to.

Section 21—Eligibility for membership

Amendments 3 and 72 not moved.

Amendment 36 moved—[Paul McLennan]—and agreed to.

Amendments 73 and 74 not moved.

Section 21, as amended, agreed to.

Section 22—Conditions of membership

Amendments 37 and 38 moved—[Paul McLennan]—and agreed to.

Amendment 75 not moved.

Amendments 39 and 40 moved—[Paul McLennan]—and agreed to.

Amendment 76 not moved.

Section 22, as amended, agreed to.

Section 23—Loss of membership

Amendments 77 and 78 not moved.

Section 23 agreed to.

Section 24—Consequences of not being a member

Amendment 79 not moved.

Section 24 agreed to.

After section 24

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.