56  The draft Building Safety Bill

The retrospective effect of the “clarification” has far-reaching

­implications for duty holders as it means that external walls will be
deemed to have always fallen within the scope of the Fire Safety ­Order.
This could have a knock-on effect with respect to litigation over li-
ability for the replacement of external cladding systems which were
installed pre-Grenfell and signed off as compliant with the Building
Regulations in force at that time, but which fire authorities may now
allege were always in breach of the Fire Safety Order, ­according to the
“clarification” set out in the Fire Safety Bill.19

Summary
The implementation of these building safety reforms should drive the
move away from the fragmented system that allowed the fire at Grenfell
Tower to occur and towards a system where a new BSR has a holistic
oversight of building safety on higher-risk buildings. By improving the
system for inspecting the quality of building work and identifying key
duty holders who will be responsible for the safety of residents through-
out the life cycle of higher-risk buildings, these reforms, including the
creation of the Residents Panel, should meet the objective of making
residents feel safe and be safe in their homes.
There have been criticisms of the draft Bill. The height of a building
is considered by some to be a poor measure of risk to human life and
believe the Government should have considered other factors when de-
termining risk. It is accepted that it is logistically impractical to include
the entire building stock in England under the remit of the new Bill,
but it has been suggested that if the scope of the legislation is widened
then the next consideration should include buildings where vulnerable
people reside.
Many buildings have more than one owner, leading to the p­ ossibility
that a building may have multiple APs. The complexity of such a sit-
uation could, potentially, cause uncertainty and disputes. To mitigate
this, there should be a general duty written into the Bill for APs in these
circumstances to co-operate with each other.
The role of the BSM will be a core part of the new regime but the
skill-set required for this role is so specialised that the industry will
need to train people to become BSMs prior to the enactment of the
legislation. If the new safety regime is to be implemented quickly and
well, it has been recommended that the final Bill should include both
the new competence framework and the accreditation and registration
system for the BSM role.20
 The draft Building Safety Bill  57
Notes
NB: The main documents used in providing the commentary to the draft
Building Safety Bill in this chapter are The Draft Bill, the Explanatory
Notes that accompany the Bill and Towers & Hamlin Essential Guide to the
Draft Building Safety Bill: Ministry of Housing, Communities and Local
Government (2020) Draft Building Safety Bill Draft Building Safety Bill –
GOV.UK (www.gov.uk) (Last Accessed 19/2/2021).

1 Graye, L (2020) How Will the New Building Regulatory Framework for
Higher Risk Residential Buildings Materialise in the UK. Unpublished
thesis. London South Bank University.
2 Building a Safer Future (2020) Building Safety Starts with You. Building
a Safer Future – Building Safety Starts with You (Accessed 12/1/2021).
3 See pages 7 and 8 of the Explanatory Notes to the Draft Building Safety
Bill: Ministry of Housing, Communities and Local G ­ overnment (2020)
Draft Building Safety Bill: Explanatory Notes. Draft_Building_Safety_
Bill_PART_2.pdf (publishing.service.gov.uk) (Last ­Accessed 19/2/2021).
4 Trowers & Hamlin (2020) Draft Building Safety Bill: Essential Guide.
Essential guide to the draft Building Safety Bill - Trowers & Hamlins
(Accessed 14/1/2021).
5 Trowers & Hamlin (2020) Draft Building Safety Bill: Essential Guide.
6 See pages 11 and 12 of the Explanatory Notes to the Draft Building Safety
Bill.
7 Trowers & Hamlin (2020) Draft Building Safety Bill: Essential Guide.
8 Bright S (2020) The Draft Building Safety Bill and Higher-Risk Buildings:
Overview and Definitions. The draft Building Safety Bill and Higher-risk
buildings: Overview and Definitions | Oxford Law F ­ aculty (Accessed
17/1/2021).
9 Bright S (2020) The Draft Building Safety Bill and Higher-Risk B ­ uildings:
Overview and Definitions.
10 Trowers & Hamlin (2020) Draft Building Safety Bill: Essential Guide.
11 The commentary on the residents’ section in the draft Building Safety Bill
relies heavily on the Trowers & Hamlin Essential Guide.
12 Bright S (2020) The Draft Building Safety Bill and Higher-Risk B­ uildings:
Key Duties. The draft Building Safety Bill and Higher-risk buildings: Key
Duties | Oxford Law Faculty (Accessed 18/1/2021).
13 See Clause 241 of the Impact Assessment to the Draft Building
Safety Bill.
14 See Clause 321 of the Impact Assessment to the Draft Building Safety Bill.
15 Bright S (2020) The Draft Building Safety Bill and Higher-Risk Build-
ings: Costs and Complex Buildings. The draft Building Safety Bill: Costs,
and complex buildings | Oxford Law Faculty (Accessed 18/1/2021).
16 See page 64 Table 34 of the Impact Assessment to the Draft Building
Safety Bill.
17 Bright, S (2020) The Draft Building Safety Bill and Higher-Risk Build-
ings: Costs and Complex Buildings.
18 The commentary on Part 5 of the draft Building Safety Bill relies heavily
on the Trowers & Hamlin Essential Guide.