Debate contribution: Defective Premises Bill: Consideration Stage

Debate contribution by Mr Gordon Lyons on 11 June 2024.

MLA

Mr Gordon Lyons

Party at the time

Democratic Unionist Party

Date

11 June 2024

Type

Debate contribution (made as a minister)

Business

Executive Committee Business

Heading

Defective Premises Bill: Consideration Stage

Assembly identifier

Official Report component 4495964

Read the official Assembly record

Text

Before I address the amendment that Mr McCrossan and Mr Durkan tabled, I put on record my thanks to the Assembly, the Committee for Communities and the Executive for supporting the progress of the Bill through the House. I also offer my thanks to the Office of the Legislative Counsel for its rapid yet thorough advice on each stage of the Bill's progress so far. I turn now to the amendment. It proposes introducing a new article 4B to the Defective Premises (Northern Ireland) Order 1975. Article 4B(1) would grant the Department a permissive power to produce regulations that identify particular materials, products, structural design features or any other construction detail that the Department thinks might give rise to actions under article 3 or 4A of the 1975 Order. Article 4B(2) would require the Department to have regard to the building regulations when making such regulations, while articles 4B(3) and 4B(4) would allow for actions to be taken for any reason not listed in the regulations, and that the regulations themselves should not prejudice any other considerations that the courts may wish to apply. It goes on to impose further duties on the Department to produce a report to the Assembly on the content of any such regulations, while requiring these to be debated by the Assembly before being made. I recognise the intent of the amendment and the sincerity of those who have brought it, but I cannot support it, for a number of reasons. Primarily, my concern with the idea of such a prescribed list is that it is difficult to determine in advance just what products, materials or design features should be included on such a list. The materials or products may not in themselves be likely to contribute to the dwelling becoming uninhabitable, but rather their inclusion with certain other materials, or the particular way that they are used, may lead to certain future defects. It would be difficult, if not impossible, for officials to predict, even in the abstract, that the use of certain products would result in actions under articles 3 or 4A of the 1975 Order. Where a material, product or structural design is known to lead to defective premises, there is already a legislative solution in place to restrict or even deny their use, namely, part B, 'Materials and workmanship' of the building regulations. I have them here, in front of me, for the benefit of the House. It says:

"In any relevant work— (a) the materials used shall— (i) be of a suitable nature and quality in relation to the purposes for and the conditions in which they are used; (ii) be adequately mixed and prepared; (iii) be applied, used or fixed so as adequately to perform the functions for which they are designed; and (iv) not continue to emit any harmful substance longer than is reasonable in the circumstances."

What we have already in law is what anybody could possibly need in order to make sure that this situation does not come about. My second concern with the proposed amendment is that it has no legal effect in real terms. This has been backed up by the legal advice that I have received. While it may imply that the inclusion of a product or material on a prescribed list may benefit a claimant's case, it then goes on to state that exclusion from the list does not affect the claimant's chance of success, nor does the prescribed list prevent a court from considering any other matters when considering a claim. Instead, it creates a greater administrative burden on the Department by requiring any regulations that would be produced through the proposed article 4B(5) to be debated in the Assembly before they can be made and by creating a requirement in article 4B(6) for the Department to produce a report to the Assembly before any regulations are made under this amendment. So what does the amendment do? It places an administrative and resource burden on the Department. It does not help claimants because it has no legal effect, but it does mandate a list being put together, albeit if a material is not on the list, it does not affect the claimant's chances of success. So the claimant can succeed if the product is listed; equally, the claimant can succeed if the product is not listed. So the question is: what is the point of the list? Mr McCrossan talked about the need for proper scrutiny. He rightly highlighted the concerns that some Members have in relation to the use of the accelerated passage procedure. However, I can say to the Member that this has gone through the full legislative process in England and Wales. I have engaged with Committee members. My officials have made themselves available to the Committee. I have answered queries from Members, and my officials have engaged with a number of stakeholders, including the Office for Product Safety and Standards; UK Finance; the Royal Society of Ulster Architects; the Communities Committee; the Attorney General for Northern Ireland; the Department for Levelling Up, Housing and Communities and Departments in other jurisdictions; the Building Safety Regulator; residents and residents' groups; practitioners and industry professionals; the Office of the Legislative Counsel; the Departmental Solicitor's Office; and Ulster Garden Villages. In addition, I came to the House with a ministerial statement that outlined what I intended to do. Furthermore, we are two years behind England and Wales so we should foresee any potential unintended consequences and have some time to examine those issues. By Mr McCrossan's own admission, he has not even engaged with other members of the Committee. I recognise that we are using an accelerated process today, but we have engaged. The legal advice that I have received is clear: the amendment does absolutely nothing. It has no legal effect. All it does is place an administrative burden on the Department. The purpose of any Bill must be to change the law. The proposed amendment does not make any legal change to the Bill that would benefit either party to a claim. For that reason, together with those that I outlined earlier, I cannot give it my support, and no other party should, either.

1,035 words. Text as published by the Northern Ireland Assembly.

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