By Liam Spender
Earlier this evening MPs voted 322 to 253 votes to reject an amendment to the Fire Safety Bill designed to spare leaseholders the costs of fixing defective cladding and missing fire breaks. The government saw a rebellion of 32 [amended owing to counting errors with video link MPs] Conservative MPs, including Father of the House and LKP Co-Chair Sir Peter Bottomley. The government’s majority was cut by half, falling from an expected 146 votes to just 69 votes.
Eight other Conservative MPs abstained, including Felicity Buchan – the MP for Kensington, site of the Grenfell Tower disaster. Sir Graham Brady, Chairman of the Conservative 1922 committee, considered the shop steward of Tory backbenchers, also abstained.
Liam Spender was interviewed about the vote on LBC yesterday (click pic to listen):
The 69-vote margin is 18 less than the government’s 87-seat majority across all UK Parliamentary constituencies. The scale of the rebellion underlines the unease with the Conservative party over the government’s approach. The rebellion of the Fire Safety bill followed another rebellion on the Trade Bill earlier this evening, which saw the government’s 87-vote majority cut to just 18.
The full voting record is here: https://votes.parliament.uk/Votes/Commons/Division/987#noes
The Fire Safety Bill will now return to the Lords, which must agree if it is to pass. The Lords demonstrated its depth of feeling against the government’s approach, with a 78-vote majority in favour of inserting the amendment last week.
The Bishop of St. Albans inserted the amendment into the Fire Safety Bill when it was considered in the Lords last week. The same amendment is also championed by Conservative MPs Steven McPartland and Royston Smith. In February the government blocked a vote on the amendment when the Fire Safety Bill was last considered by the Commons.
It was evident during the debate that there is deep opposition to the current government offer. Significant unease was expressed about the costs leaseholders are facing.
How UK building regs were changed, which led to leaseholders being left with the bill:
Extra-statutory guidance and its role in relation to the Building Safety scandal – Part 1: Advice Notes
It soon become clear following the Grenfell Tower fire that many other high-rise residential buildings with cladding were also at risk. The government’s response has been to seek to make buildings safe by issuing instructions to building owners through extra-statutory advice notes (the “Advice Notes”).
The government’s current offer is limited to grant funding for cladding removal on buildings above 18 metres. Buildings 11-18 metres will get some sort of forced loan with repayments capped at £50-a-month, again for cladding works only. Buildings less than 11 metres tall will get no support at all. Leaseholders in buildings of all heights will have to pay for non-cladding works.
MPs on all sides of the house condemned the fact that leaseholders were already being billed eyewatering sums, some as much as £80,000. Royston Smith waved one such invoice as he spoke, urging MPs to consider the moral implications of what the government was doing in failing to support leaseholders.
Chris Pincher, speaking for the government, offered little more than the government’s usual platitudes on the issue, with perhaps a little more rhetoric than usual on making developers pay. Mr. Pincher referred to the Treasury working on the detail of the developer tax announced by Robert Jenrick on 10 February. That tax is expected to raise £2 billion over ten years, or 13% of the £15 billion estimated cost.
Boris Johnson has defeated a rebellion from almost 30 Conservative backbenchers who wanted to protect flat owners in tower blocks from the costs of fireproofing their buildings. Tory rebels said the government’s position was “morally unacceptable” as they described how leaseholders were “screaming in pain” because of bills running into tens of thousands of pounds to remediate cladding and other fire safety issues in their blocks of flats.
The rest of this article considers what comes next in the Parliamentary process. The scale of the rebellion this evening means leaseholders still have much to hope for.
Liam Spender is a Trustee of the Leasehold Knowledge Partnership. Personally affected by the cladding scandal, Liam is a Solicitor-Advocate and Senior Associate at Velitor Law practising commercial litigation and arbitration in the City of London. Views in this article are personal and do not constitute legal advice. Twitter: @liamspender
MPs estimate it will cost £15bn to remove dangerous cladding from UK buildings Housing Secretary has more than trebled Government’s funding pot to £5.1bn But major firms have refused to say how many of their buildings require repairs Money promised by one construction giant could cover as little as 13%
What is the Fire Safety Bill?
The Fire Safety Bill amends the existing Regulatory Reform (Fire Safety) Order of 2005, which regulates the rules regarding fire safety in many different types of buildings, including apartment blocks.
The Fire Safety Bill amends the current Fire Safety order to make it clear that it applies to external walls and fire doors leading to individual apartments. The Fire Safety Bill also gives the government the power to issue new risk-based guidance for assessing compliance with the Fire Safety Order. These changes are required to implement some of the recommendations in the Grenfell Inquiry Phase One Report.
The current Fire Safety Order was believed to apply only to the internal common parts of a building, thereby limiting what needed to be assessed for fire safety. Lax checks at Grenfell Tower were identified by Sir Martin Moore-Bick as contributory factor in allowing the spread of fire and smoke inside Grenfell Tower.
What would the amendment have done?
The Fire Safety Order contains two routes of enforcement. One is by local fire brigades issuing statutory notices requiring works to be done. The second route is via statutory guidance – so called risk-based guidance – to be issued by the government to accompany the new Fire Safety Order, which could be used by freeholders or managing agents to make changes. In either case, the costs of works required (or said to be required under the guidance) could be passed on to leaseholders under the terms of their leases.
The McPartland-Smith/St. Albans amendment would have amended leases to prohibit leaseholders paying any of the costs arising from either of these two avenues of enforcement.
This was an imperfect solution because leaseholders could still have been liable for costs arising from sources outside the Fire Safety Order, for example if insurers demanded works or the imposition of waking watches as a condition of cover.
What happens next?
The Fire Safety Bill must now go back to the House of Lords. In order to pass any law both Houses of Parliament must agree on the same text of each bill. The Lords and Commons still disagree on this bill, so the Lords must be asked whether it wishes to accept the change made today.
As a matter of procedure, the House of Lords does have the right to try to amend the Fire Safety Bill again. This is subject to three constraints.
The first constraint is that neither House of Parliament may insist on the same amendment twice (so-called “double insistence”). Under Parliament’s arcane procedural rules, if either house insists on the same amendment twice then the bill in question is lost.
The second constraint is that the Speaker of the House of Commons may refuse to put to a vote anything that is “substantially similar” to something previously voted on by the House of Commons. In March 2019, former Speaker John Bercow refused to allow a third vote in the Commons on the EU Withdrawal Agreement for this reason.
Each of the first two constraints means that if the Lords wishes to propose a new amendment then it will have to be significantly different to the McPartland-Smith/St. Alban’s amendment considered today. Any amendment must also fit within the general principles of the Fire Safety Bill.
Drafting such an amendment difficult to do within the confines of the Fire Safety Bill, but it is not impossible.
The third constraint is constitutional, the so-called Salisbury Convention. The House of Lords is not elected. The Lords is not supposed to frustrate the will of the elected house, the House of Commons, in implementing the government’s legislative agenda, particularly if this involves the government trying to implement manifesto promises made during an election campaign.
In their 2019 election manifesto, the Conservatives promised to implement the Grenfell Inquiry recommendations. It is arguable the House of Lords should give way to enable the Fire Safety Bill to pass so that the government can implement its manifesto promise.
Things are not quite so straightforward in practice. The Trade Bill, which was considered by the Commons before the Fire Safety Bill this afternoon, has been shuttling between Lords and Commons for the last few months because the Lords feels strongly that the UK should not make trade agreements with countries with poor human rights records. There was a sizeable rebellion of Conservative backbenchers this evening, who wanted to restrict the government’s ability to do trade deals with countries with poor human rights records.
Last week saw the Lords agree to the McPartland-Smith/St. Alban’s amendment with a 78 vote majority, showing its strong feelings on the issue. Short of the government offering concessions to leaseholders facing huge bills to remediate cladding and other fire safety defects, it seems that the Lords feels sufficiently strongly to make another attempt at amending the Fire Safety Bill as it already has with the Trade Bill.
Is time running out to get the Fire Safety Bill passed?
Any bill must clear all Parliamentary stages in each house of Parliament before the end of a Parliamentary session. A session of Parliament is like a school year, which is broken up into several terms. Sessions traditionally run from November to October each year. The current session of Parliament has been running since December 2019.
The current Parliamentary term ends on 25 March 2021. The Commons and Lords will return on 13 April 2021. It is possible the Lords will consider the Fire Safety Bill again before Thursday, although time is tight. If the Lords does not consider the Commons’ changes to the Fire Safety Bill before Thursday then it will not be considered until 13 April at the earliest.
A separate timing issue is that the government is starting to indicate that it intends to end the current session of Parliament. This will enable it to have a new Queen’s Speech to announce a new legislative programme. Such events are typically part of a publicity drive to show that the government is refreshing its priorities and reinvigorating itself.
The government controls the timing of the end of each session of Parliament. The government is unlikely to end the current session until it is sure that the Fire Safety Bill and other legislation, including the Trade Bill and recently introduced controversial Police, Crime, Sentencing and Courts Bill, will pass.
If the Fire Safety Bill is still proving problematic and the government does wish to end the session, it may be willing to make a deal with rebels offering further financial support to leaseholders as a condition of the rebels abandoning their opposition and voting the Fire Safety Bill into law.
When will we know more?
The Commons must print reasons for rejecting the Lords’ amendment. This will be printed sometime later today or tomorrow (23 March 2021). The Lords will then have the opportunity to decide whether it will consider the Fire Safety Bill before the recess starting on 25 March. The Lords will also have the chance to bring forward any further amendments.
Does that mean it is all over?
Even if the Lords does not attempt a further amendment to the Fire Safety Bill, there are still other opportunities to wring concessions from the government.
First and foremost, the huge bills faced by leaseholders at the moment are a political issue and not a legal issue. The government can resolve most of the problem for leaseholders without passing any new law. The Building Safety Fund, albeit inadequate, has already been provided without the need for any new law. A comprehensive financial solution could be provided in the same way, without the need for legislation.
To the extent any new law is necessary, if the government were to bring forward such a new law it is most likely that would be welcomed – instead of opposed – by MPs. Such a law have a much smoother passage through Parliament than the Fire Safety Bill.
Secondly, the forthcoming Building Safety Bill – which will apply to all new buildings with specific focus on certain high-rise buildings – will provide another legislative route to protect leaseholders. As the government has repeatedly said, this is the bill that should be amended for that purpose. Leaseholder representatives may well be taking the government up on this and moving amendments to that bill.
What should leaseholders do next?
Continue to protest, to keep this issue at the top of the political agenda.
Leaseholders still have little to lose and much to gain. They should continue to lobby MPs to persuade the government to provide a comprehensive solution to the cladding scandal, such as the developer levy proposed by the Leasehold Knowledge Partnership, available here: