Schedule 2: Authorised officers: investigatory powers
Powers of Entry
Effect
- Paragraph 1 of this Schedule makes available to authorised officers (as defined and appointed under section 22) the power to enter non-domestic premises, with the support of relevant individuals (such as constables if there is a concern of obstruction) if necessary. Entry may be made only at a time that is reasonable – or at any time if the authorised officer suspects that a dangerous situation exists.
- Paragraph 2 allows a justice of the peace (magistrate) to issue a warrant for the entry of non-domestic premises where it is necessary that the authorised officer has the option of entering by force.
- Consistently with Part 3 of the Protection of Freedoms Act 2012, entry to premises that are wholly or mainly domestic in nature is only available either by consent or with prior judicial approval. As such, paragraph 3 of this Schedule allows a justice of the peace to issue a warrant for entry to domestic premises if they consider that it is necessary for an authorised officer to enter to fulfil a relevant purpose and if i) entry has been or is likely to be refused, ii) the occupier or any other person able to grant entry cannot be found or iii) requesting entry may frustrate or seriously prejudice the reason for entry. This warrant may, or may not, confer power to enter by force.
- Entry under any of these powers can be made for a "relevant purpose", which is defined in paragraph 7 of the Schedule as any relevant building function specified in the officer’s authorisation.
- When on non-domestic premises under these powers, the authorised officer can take samples (including from a suspect structure), measurements, and photographs to aid in their work – they can then take away those samples, e.g. for analysis. An authorised officer can also seize evidence of an offence under either the Building Act 1984 or this Act where there is a risk the evidence will not be accessible in the future. In relation to domestic premises, the authorised officer may exercise these powers if that is permitted by the warrant, which will be the case only if the justice of the peace issuing the warrant considers it necessary.
Background
- The physical inspection of buildings during construction and occupation will be an important part of the new regime in order to ensure compliance. Paragraphs 1-3 of this Schedule enable officers to require entry to carry out their building functions. These paragraphs also provide powers for authorised officers to seize evidence while on the premises.
- As with many similar powers of entry, where expertise is required during the search beyond that which the officer possesses, they are able to take with them individuals with the necessary expertise, including police officers if the authorised officer anticipates they may be obstructed in the execution of the entry or search.
- These provisions are similar to those of other regulatory bodies, including existing provisions for local authority building control officers under sections 95 and 96 of the Building Act 1984.
Example 1
The Building Safety Regulator suspects that construction work on a site is not being done according to the approved plans and the Building Safety Regulator has not been informed of this change (as will be required in building regulations). The authorised officer is able to visit the construction site, with a relevant expert where necessary, to inspect the premises, confirm the change has been made and investigate whether this change complies with building regulations. The authorised officer will normally enter at a reasonable time.
Example 2
The Building Safety Regulator has received intelligence that unregistered building control inspectors are carrying out building control work (i.e. are claiming to be registered building inspectors), but requires documents confirming this. An authorised officer is able to visit their office and secure documentation showing that such work is being done.
Example 3
The Building Safety Regulator is notified of construction of a higher-risk building commencing without prior approval by the Building Safety Regulator (i.e. approval of a Gateway two application, as detailed in building regulations). The Building Safety Regulator can obtain a warrant from a justice of the peace, as it is likely their entry will be refused, and it may be necessary to use force to enter. An authorised officer, with this warrant, will be able to visit the site, entering using force if necessary, potentially with one or more police officers, and to confirm that work is taking place.
Power to require information, documents etc
Effect
- Paragraph 4 of this Schedule gives an authorised officer the power to require the provision of relevant information in connection with the Regulator’s building functions. This will be specified as such by the authorised officer in writing. The information required can be in any form; if it is held electronically, the officer may require that it be made legible and accessible. The officer will have the power to take copies of the information or documents required for further investigation.
- In order to ensure that no one can be required to provide information that incriminates themselves, paragraph 4(6) provides that information obtained from a person under this power may be used against them only in a prosecution for the offences in section 24 (providing false or misleading information to the regulator) and paragraph 6(1) of this Schedule (failing to provide information, documents etc when required to do so), perverting the course of justice or where that person makes a contradictory statement in evidence on their own behalf.
- Paragraph 4 also confers power on authorised officers to require facilities and assistance for a relevant purpose.
Background
- This power will enable authorised officers of the Building Safety Regulator to gather information, whether from dutyholders such as Accountable Persons or their associates such as accountants or sub-contractors. The information required will be used by the Building Safety Regulator to ensure compliance and effectively satisfy the functions of the Building Safety Regulator.
- These provisions are similar to those of other regulatory bodies.
Example
The Building Safety Regulator decides to conduct a review of the management of an occupied, higher-risk building. In order to prepare for a site visit to check the building’s physical compliance with the requirements of the new regime, an authorised officer requests to see various documents including the latest building safety risk assessment. The documents are not provided. The authorised officer then issues a notice under paragraph 4 of Schedule 2, requiring the Accountable Person to submit these documents.
Offence of failing to provide information, documents etc
Effect
- Paragraph 6 of this Schedule is designed to ensure that the Building Safety Regulator and its authorised officers are provided with the information necessary to make accurate and appropriate decisions. In the absence of a reasonable excuse, failure to provide the required information, facilities or assistance will be a criminal offence for which the Building Safety Regulator will be able to bring proceedings. The maximum penalty will be an unlimited fine, along with up to two years’ imprisonment in the Crown court or 12 months’ imprisonment in a magistrates’ court (six months until the commencement of paragraph 24(2) of Schedule 22 of the Sentencing Act 2020).
Background
- This offence will be triable either way to deter non-compliance with the Building Safety Regulator and to reflect the gravity of the offence. The Building Safety Regulator requires relevant information to operate effectively and this must be complied with to fulfil that purpose.
Example
The Building Safety Regulator decides to conduct a review of the management of an occupied, higher-risk building. In order to prepare for a site visit to check the building’s physical compliance with the requirements of the new regime, an authorised officer requests to see various documents including the latest building safety risk assessment. The documents are not provided. The authorised officer then issues a notice under paragraph 4 of Schedule 2, requiring the Accountable Person to submit copies of the documents. The Accountable Person, not wishing to show the Building Safety Regulator that it has not been keeping up to date with its requirements, does not send anything to the Building Safety Regulator. In response, the Building Safety Regulator could carry out a search using its powers in paragraphs 1-2 of Schedule 2 to search for the documentation, which could result in the issue of a compliance notice requiring the documentation to be updated by a set date. Alternatively, or in addition, for example where documentation has not been produced previously by that authorised person, the Building Safety Regulator could launch a prosecution for this offence.
Other provisions
Effect
- Paragraph 5 of this Schedule makes clear that any material seized under paragraph 1(5) or produced under paragraph 4 of the Schedule can be retained by the Building Safety Regulator for so long as is necessary.
- Paragraph 7 of this Schedule defines a number of terms used across Schedule 2, while paragraph 8 provides the normal exception from powers of seizure etc. of documents subject to legal professional privilege.
