Week 2 - Governance roles in Government

Dame Judith’s interim report observed that, whilst the Building Regulations 2010 (the Regulations) are clear about the safety outcomes that are to be achieved in a construction project, the Regulations and accompanying guidance are not adequately clear as to where responsibilities lie and who is accountable for delivering them.

The interim report commented that the Approved Documents in their current form are complex and not user-friendly. In addition, contrary to the outcomes-based system described by the Regulations, the Approved Documents are overly prescriptive. The interim report concluded that the ambiguity caused by these inconsistencies means that those undertaking building work do not have a clear understanding of their roles and responsibilities. In addition, there is a tendency for the industry to treat the minimum standards set out in the Approved Documents as a high bar to be negotiated down, rather than genuinely considering the outcomes of the Regulations and principles of building safety.

Currently, it is the Building Regulations Advisory Committee (BRAC) that provides expert advice to the Government on proposals to make, or amend, building regulations. In addition, BRAC provides advice on issues such as health and safety, and the welfare of people in and around buildings. As part of its recommendations to improve the Regulations and guidance, the interim report recommended that BRAC should be replaced by a new structure of advice and assurance.

The final report provided an update on the implementation of the interim report’s recommendations and set out longer term recommendations to improve guidance. The final report recommends that the new structure of advice should be expanded to fulfil four key functions:

Validation and assurance of industry guidance

This is a new role, and Dame Judith recommends that the group that fulfils this position should comprise those with a wide knowledge of the construction process, technical knowledge and "demonstrable independence". It is anticipated that this group will take significant direction from the JCA when the latter is formulated. For more information regarding Dame Judith’s recommendation for the creation of a JCA please click here for our mini blog post.

Reviewing the ongoing performance of the building environment sector

The purpose of this function is to ensure that the regulatory system not only delivers safe buildings, but also continues to encourage innovation and productivity within the construction industry.

The review will be supported by the collection and analysis of performance data, initially taken from CROSS (confidential reporting on structural safety) records. However, the final report envisages that the introduction of Mandatory Occurrence Reporting (which is recommended in the report to supplement voluntary reporting) will improve data quality.

Providing engineering advice so that the Government can act intelligently in control of the built environment

This function will bring the new advice structure in line with other expert committees across the Government, and ensure that high quality advice on the built environment is available to the Government

A periodic review of the effectiveness of the overall system of building regulation

The final report provides that reviews of the efficiency of the regulatory system should be performed by an independent external expert on a regular basis.

On 17 May 2018 the Ministry of Housing, Communities & Local Government released a statement in response to Dame Judith’s final report. This did not comment specifically on the proposed replacement of BRAC but confirmed in general terms that the Government had accepted and started to implement the recommendations published in Dame Judith’s interim report in December 2017. The statement reiterated the Government’s commitment to work with the building industry to make the wider suite of building regulations guidance more user-friendly.

The statement confirmed that "everyone involved" had been asked to respond by the end of July 2018 on how Dame Judith’s objectives can be achieved. Their response will form a more detailed statement to the House in autumn on how the Government intends to implement the new regulatory system. The House is also due to be updated before Summer Recess on 24 July 2018.

Dame Judith’s recommendations in respect of the Government’s role and the introduction of a more wide-ranging and proactive advice structure seem, in theory, to be uncontroversial. Nevertheless, the recommendations do highlight the issue of the current lack of cohesion between the Government and construction industry and go to the heart of Dame Judith’s proposal for governance that is more transparent and practically effective. It will be interesting to see what the response to this will be by both the Government and the industry, in particular how a balance will be achieved between implementing the attitudinal shift encouraged by Dame Judith and aligning the different commercial/economic factors affecting both parties.