Search Legislation

Advanced Search

Building Safety Act 2022

Contents

Part 6: General

Section 161: Liability of officers of body corporate etc

Effect
  1. This section provides that, where a corporate body commits a criminal offence under Parts 2 or 4 of this Act, any director, manager, secretary or other similar officer of that body is also deemed to have committed that offence in certain circumstances. Those circumstances are where the individual has consented to or connived in the commission of the offence or where the offence is attributable to any neglect on their part. Section 40 makes similar provision in respect of the criminal offences in the Building Act 1984. 
  2. Subsection (4) provides an exception where a relevant company appoints a paid director for a building safety purpose.  In this case, all unpaid directors of the company will be relieved of their personal criminal liability for breaches of Part 4 duties. 
  3. Subsection (5) defines a "building safety purpose" as the function of supporting a relevant company in complying with its Part 4 duties. It also sets out that a "relevant company" is a resident management company (as defined by regulations made by the Secretary of State under section 111), Right to Manage companies and Commonhold Associations.
Effect in Wales
  1. This section will apply in Wales. 
Background
  1. Many of those persons carrying out duties under the Building Act 1984 and the new regime are and will be corporate bodies rather than individuals. As a corporate body operates only by and through the actions of its employees, including managers and directors, if there is an offence by a body corporate, then there is likely also to be some measure of personal failure by one or more individuals, particularly those in a position to make critical decisions. 
  2. It will be appropriate to consider what evidence has been obtained against the company and the director or senior manager, taking into account the management arrangements. One purpose of bringing a prosecution under this section should be to bring home the importance of building safety responsibilities to those directing companies. 
  3. Where there is sufficient evidence and the public interest test is met, prosecutions could be brought against directors/managers as well as prosecuting the company for an offence under the relevant statutory provisions, even where there is a sole director. This would not be regarded as prosecuting the same person twice, as the two are separate legal entities. Should both matters result in a conviction, it will be for the sentencing court to sentence the individual(s) and the corporate body appropriately. 
  4. This section has been modelled on section 37 of the Health and Safety at Work Act 1974.

Section 162: Review of regulatory regime

Effect
  1. This section sets out a mandatory process for the Secretary of State to periodically appoint an independent person to review the effectiveness of the building regulatory regime and the system of regulation for construction products. 
  2. This section provides a deliberately non-prescriptive framework to allow the reviewer to operate independently. The reviewer can choose how much to focus on each area of review; so, for example, if some of the areas listed in this section seem to be operating well and others less well, the reviewer can choose to prioritise reviewing the areas that are operating less well.  
  3. In the first instance, the Secretary of State must appoint an independent reviewer within five years of the Act being passed. Subsequent appointments must be made within five years of the day on which the most recent appointment was made. 
  4. The Secretary of State must ensure the person is independent from the Secretary of State, the Building Safety Regulator, the building control profession, the built environment industry, the construction products industry, and local authorities.  
  5. The Act sets out the specific matters the independent person must review, which taken together encompass the key elements of the building regulatory system and the construction products regulatory system:  
  • The effectiveness of the Building Safety Regulator; 
  • The effectiveness of the UK wide system for the regulation of construction products; 
  • The adequacy and effectiveness of the provisions of the Building Act 1984 as it pertains to England, barring new section 105C; 
  • The adequacy and effectiveness of Parts 2 and 4 of the Building Safety Act (these relate to the Building Safety Regulator’s powers and functions, and the new, more stringent regulatory regime for higher-risk buildings in occupation); 
  • Any connected matters, to be determined by the independent person; and  
  • Any other matters specified in the appointment itself.  
  1. This section does not allow the Secretary of State to limit the considerations of the reviewer.  
  2. Once the review is complete, the independent reviewer must submit a written report to the Secretary of State explaining the outcome of the review and provide any recommendations for improvement where appropriate. The Secretary of State is required to publish a copy of this report. 
Background
  1. This is a new provision.  
  2. The Independent Review recommended for there to be a periodic review (at least every five years) of the effectiveness of the overall system of building regulation including accountabilities, responsibilities, guidance, and the effectiveness of the regulator.

    Example 

    Approaching the five-year mark of operating the new building regulatory regime, the Secretary of State feels that a proportionate amount of time has passed to allow the system to be reasonably assessed. The Secretary of State must identify and appoint a person who, in their view, meets the statutory independence test included in this section.  

    The Secretary of State may consider that there are issues that might impact building safety, but that are beyond the remit of the review as set out in subsections (1)(a)-(c). In this instance they can instruct the independent person to consider additional matters, under subsection (1)(e).

    During the review, the independent person may observe that there are non-legislative matters of interest connected to the effectiveness of the Building Safety Regulator that impact the effectiveness of the system. The reviewer would be able to consider these matters as part of the review and make recommendations about them.

    The reviewer might consider parts of the regulatory regime to be functioning effectively. If that is the case, the reviewer may choose to deal with that area much more briefly in their report.

    At the end of the review, the independent reviewer will need to submit a written report to the Secretary of State detailing the outcome of the assessment. At this stage, the reviewer may have noted various areas for improvement within the system. The reviewer must detail these recommendations for improvement in the report that they submit to the Secretary of State. The Secretary of State must publish a copy of this report.

Section 163: Financial Provisions

  1. This section recognises that, as a matter of House of Commons procedure, a financial resolution needs to be agreed for this Act.

Section 164: Crown Application

Effect
  1. This section provides for provisions in Part 2 and Part 4 (except sections 99, 100 and 103) to bind the Crown. 
  2. It also provides for Sections relating to remediation of certain defects (sections 116 to 125 and Schedule 8), the new homes ombudsman scheme (sections 136 to 143 and Schedule 9), new build home warranties (sections 144 and 145), and liability of officers of body corporate (section 161) to bind the Crown. 
  3. Contravening these provisions does not make the Crown criminally liable. This exclusion from liability does not affect the criminal liability of persons in the service of the Crown. 
Background
  1. This is a new provision.

Section 165: Application to Parliament

Effect
  1. Section 165 applies Part 4 to the Palace of Westminster, if it (or any part of it) is a higher-risk building within the meaning of that Part.
  2. It makes the Corporate Officers of the House of Lords and House of Commons the accountable persons, acting jointly. The Corporate Officers are not criminally liable for contraventions of provisions made under Parts 2 and 4. This exclusion from criminal liability does not affect the liability of members of the House of Lords staff or the House of Commons staff.
  3. This section disapplies provisions regarding compliance notices under Part 4 (sections 99, 100 and 103) and powers of entry of authorised officers (paragraphs 1 to 3 of Schedule 2).
Background
  1. This is a new provision.

Section 166: Power of Secretary of State to make consequential provision

Effect
  1. This section confers on the Secretary of State a regulation-making power to make consequential amendments which arise from this Act or regulations made under it. Regulations that make consequential provision may amend, repeal or revoke an enactment. Any regulations that amend or repeal primary legislation are subject to the affirmative procedure. Any other regulations under this section are subject to the negative procedure. This section provides that the Secretary of State may not make consequential provision that may be made by the Welsh Ministers under section 167.

Section 167: Power of Welsh Ministers to make consequential provision

Effect
  1. This section is self-explanatory.

Section 168: Regulations

Effect
  1. This section ensures that regulations made under the Act can include any consequential amendments as well as transitional provisions and cover any other incidental matters. 
  2. This section also provides that regulations made under this Act are to be made by statutory instrument and sets out which sets of regulations require the affirmative procedure. 

Section 169: Extent

Effect
  1. This section makes provision about territorial extent for the Act. Subsections (1) to (6) set out the territorial extent for the provisions in the Act; see Annex A for additional detail.
  2. Subsection (7) allows the Secretary of State to make provision extending sections 147 to 149 – which make provision about liability relating to construction products – to Northern Ireland. Subsection (7)(a) permits the Secretary of State by regulations to make provision extending sections 147 to 149 to apply to Northern Ireland. Subsection (7)(b) allows the Secretary of State to amend this Act and any other enactment in relation to the application of those provisions to Northern Ireland.

Section 170: Commencement and transitional provision

Effect
  1. This section is self-explanatory.

Section 171: Short title

Effect
  1. This section is self-explanatory.

Back to top