Grenfell Tower Inquiry phase 2 report: Scottish Government response

4: Building regulation and systems

Background

Building regulations applicable to construction work is a devolved area and the relevant legislation is the Building (Scotland) Act 2003. Scottish legislation has different provisions and requirements for duty holders than both the former and new UK Building Acts.

The responsibility for appointing local authorities as building standards verifiers, developing building regulations and maintaining technical guidance remains the responsibility of Scottish Ministers. The appointment of both local authorities and private companies as Building Inspectors in England and Wales created competition for clients which drove the commercial issues and conflicts of interest identified in the report. The delivery landscape in Scotland is different with only local authorities currently appointed to administer the building standards system. The commercial issues identified relating to the delivery of building control in England and Wales are not relevant in Scotland.

Recommendation 1 (para 113.6)

Government to draw together under a single regulator all the functions relating to construction industry referred to:

a. the regulation of construction products

b. the development of suitable methods for testing the reaction to fire of materials and products intended for use in construction

c. the testing and certification of such products

d. the issue of certificates of compliance of construction products with the requirements of legislation, statutory guidance, and industry standards

e. the regulation and oversight of building control

f. the licensing of contractors to work on higher-risk buildings

g. monitoring operation of the building regulations and the statutory guidance and advising the Secretary of State on the need for change

h. carrying out research on matters affecting fire safety in the built environment

i. collecting information, both in this country and abroad, on matters affecting fire safety

j. exchanging information with the fire and rescue services on matters affecting fire safety

k. accrediting fire risk assessors

l. maintaining a publicly available library of test data and publications.

Rationale

This recommendation is in response to a lack of coordination and integrated working between UK Government and certification bodies to achieve safe buildings. Problems identified in the report indicated that systemic failings resulted from a lack of oversight that building regulations and statutory guidance were fit for purpose. Commercial interests were given greater importance than the rigour of the system in its aim of protecting the public.

It is noted that the UK Government has already accepted this recommendation in principle, with the proviso that the testing and certification would create a conflict with the role as a regulator.

Scottish context

The scope of the proposed regulator mainly relates to matters reserved to the UK Government. However, there are overlaps with delegated powers provided in the Building (Scotland) Act 2003 for Scottish Ministers. The different legislative framework in Scotland covers the development of building regulations and supporting guidance, procedures underpinning delivery of the building standards system and the appointment of local authorities as verifiers for their geographical area. These aspects (specifically items e. and g. in the above list) of the building standards should remain devolved.

There is the option that Scotland could create its own Construction Regulator role however its powers would be limited to devolved functions. The majority of the suggested responsibilities of the single construction regulator cover matters that are reserved to the UK Government. Developing and implementing a new regime for product testing and certification must be a priority for the new regulator to ensure that conflicts are removed, and a more coherent and trusted approach is taken to ensure the safety of buildings. The current failings that caused the problems with cladding products at Grenfell Tower affected the reliability and use of all construction product certificates across the UK. It is in the interest of the construction sector in Scotland that there is a robust system of regulation, testing and certification of construction products that can be relied upon.

Scottish Government response

The Scottish Government accepts the recommendation in principle, noting that the scope of the regulator needs to be resolved. We will work with the UK Government to achieve the desired outcomes.

Recommendation 2 (para 113.7)

That the definition of a higher-risk building for the purposes of the Building Safety Act be reviewed urgently.

Rationale

Under the Building Safety Act 2022, buildings that are at least 18 metres or seven storeys high, and have two or more residential units, are defined as 'higher-risk'. The 2022 Act is relevant to buildings in England that are within scope of the new regime. The recommendation questions this categorisation by reference to height and asks that the nature of the use of a building, particularly the presence of vulnerable people, and their emergency evacuation be considered in a revised definition of higher-risk buildings.

Scottish context

The definition of high-risk buildings, in Scotland, was part of a public consultation on building regulation compliance and enforcement undertaken in 2021. The proposed definition was widely supported and is wider ranging than the higher-risk definition in the Building Safety Act 2022. It has a lower height limit for residential buildings of 11 metres and includes public, community, health, and residential care buildings, regardless of storey height. The definition recognises the need for additional rigour around compliance with building regulations in buildings which are likely to contain vulnerable people such as hospitals or residential care homes.

Scottish Government response

The Scottish Government accepts the recommendation. The definition of high-risk buildings in Scotland will be subject to further development through the Building Standards Futures Board Compliance Plan Approach workstream. The definition and the wider Compliance Plan Approach will focus on the actual risk and consequences of failure for any building, rather than categorisation based on any one factor, such as storey height.

The Compliance Plan Approach for high-risk buildings also includes proposal for pre-warrant applications and a new role of Compliance Plan Manager which is being developed through early adopter trials. These trials will inform revisions to national guidance and the extent of legislative change. The Futures Board will bring recommendations to Scottish Ministers in early 2026 for their consideration.

The full introduction of the proposed Compliance Plan Approach will require amendments to both secondary legislation and to the Building (Scotland) Act 2003.

Recommendation 20 (para 113.31)

That there is a statutory requirement that an application for building control approval in relation to the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a statement from a senior manager of the principal designer under the Building Safety Act 2022.

Rationale

This recommendation has been made in relation to the role of the architect seeking to ensure that all reasonable steps are taken when submitting a finished design for building regulatory approval, such that a compliant design can translate into a compliant building at completion. It asks that a senior manager of the principal designer (a defined role under the Building Safety Act 2022 and applicable in England) explicitly state that all reasonable steps have been taken to ensure compliance.

Scottish context

A compliance declaration statement exists within Scotland’s building standards system and is required at building warrant application stage; however, this declaration is submitted by the building warrant applicant or their agent who may not be the designer.

This statement is made on the building warrant application form and is a declaration that the work will be carried out in accordance with building regulations, and in accordance with the details supplied in the form and any necessary accompanying information (including annexes to that application, drawings, and specifications). The relevant legislation is the Building (Procedure) (Scotland) Regulations 2004 which asks the applicant to confirm the accuracy of the information on the application and confirm that the owner of the property is aware of the application.

The pre-emptive nature of the approvals process for all building warrant projects means that a full compliant design is required to be in place before construction work begins.

Building standards verifiers (currently a role carried out by local authorities for their geographical areas) control the statutory gateway for building works, by only approving a building warrant if nothing in any plan, specification or other information submitted with the application indicates that the building, when constructed, will fail to comply with the building regulations.

The Compliance Plan Approach workstream is part of the Futures Board Programme and looks to provide the required compliance strengthening for all building warrant projects in Scotland. This solution therefore requires to be scalable, and for the complex, or those defined as high-risk buildings (a definition wider than that of higher-risk buildings set by the UK Government referred to in the report) have additional rigour around fulfilling the responsibilities prescribed by legislation, and the provision of compliance evidence.

The Compliance Plan includes proposals for a mandatory role of Compliance Plan Manager, appointed by the Relevant Person (usually the owner, tenant or a developer who is doing the work for themselves, or who may employ a contractor to do the work on their behalf). This new mandatory role of Compliance Plan Manager is expected to manage the compliance plan documentation and ensure the Relevant Person, design team and main contractor are aware of their responsibilities for building standards compliance. It will further provide both a plan and record of design decisions (including compliance with published national guidance or alternative solutions, material substitutions, and physical changes from approved plans), local authority building standards inspections and compliance evidence.

Scottish Government response

The Scottish Government accepts this recommendation in principle. In Scotland changes to strengthen the system are already underway through the trialling and planned introduction of the new Compliance Plan Approach. The new Compliance Plan Approach will be introduced in 2026 initially through non-statutory guidance for high-risk projects.

The current design and compliance related statements within the building warrant process and those proposed as part of the high-risk building compliance plan will be reviewed in line with this recommendation.

Recommendation 21 (para 113.33)

Introduction of a licensing scheme operated by the construction regulator for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings. That it be a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the building regulations.

Rationale

There is concern in relation to the ability of principal contractors to take all reasonable care to ensure that, on completion, and handover the building is as safe as is required by the building regulations. For construction or refurbishment of defined higher-risk buildings (a definition for higher-risk buildings has been set by the UK Government and differs from the high-risk building definition in Scotland) it is recommended that a licensing scheme operated by the construction regulator be introduced for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings and that it be a legal requirement that any application for building control approval be supported by a personal undertaking from a director or senior manager of the principal contractor which satisfies the concern.

Scottish context

This is a devolved matter and the relevant legislation in Scotland is the Building (Scotland) Act 2003. The operation of a licensing scheme for principal contractors as described is not a reserved or devolved matter in itself, unless it is tied explicitly to building regulation submissions under the Building Safety Act 2022, so opportunity exists for such a scheme to be applicable and of use in Scotland.

The recommendation that the responsibility for work undertaken should be at a senior level is already a component of Scotland’s building standards system. Where it is a legal requirement that the Relevant Person must submit a completion certificate certifying that the work was carried out in accordance with the approved building warrant plans and details and constructed in compliance with building regulations. The new Compliance Plan Approach for all building work, scalable to risk will strengthen the process. The requirement to provide relevant documentation will ensure that duty holders and key roles are identified, compliance actions and evidence are planned, and subsequently completed and recorded. The Compliance Plan Approach will support the Relevant Person (in Scottish legislation the Relevant Person already has ultimate responsibility for certifying compliance of the completed building before occupation) by providing them with a record of compliance matters for their building during design and construction, ensuring their certification of compliance is informed.

The Building (Scotland) Act 2003 allows Certifiers of Design and Certifiers of Construction who are members of approved Certification Schemes to certify compliance with certain building standards. Design schemes currently cover structures, and energy, whilst the construction schemes cover electrical work and drainage. Further schemes can be proposed by appropriate organisations, such as certification bodies, professional organisations, and trade bodies. To be a certifier requires demonstration of competence to join the scheme and ongoing monitoring of performance.

A Certification Strategy has been developed and is being used to review and where possible strengthen the provision of certification services in Scotland. This will include examining the current uptake of certification and how this can be grown. Any certification scheme needs to be financially viable as well as being subject to audit and reappointment by the Scottish Government.

The review of compliance and enforcement of the building standards commissioned by the Ministerial Working Group on Building and Fire Safety in 2017 considered that certification offered an opportunity to strengthen both. Certification schemes for those works that impact on life safety were considered to be a priority.

Scottish Government response

The Scottish Government accepts the recommendation, and we will work with the UK Government on the development of a UK national licensing scheme for principal contractors which could be of equal value in Scotland.

In addition, the Scottish Government will review the Certification Strategy over 2025 and seek to work with key industry organisations and professional bodies on further certification schemes in life safety critical areas.

Recommendation 22 (para 113.37) and Recommendation 23 (para 113.38)

A government appointed independent panel to consider whether it is in the public interest for building control functions to be performed by those who have a commercial interest in the process.

To consider whether a national authority should perform all building control functions to address shortcomings identified in building control in areas of professionalism and consistency of service.

Rationale

The aim of an independent panel would be to improve impartiality and accountability to the public by the bodies delivering the building control system. The panel would consider in their review whether or not it is in the public interest for building control functions to be performed by those who have a commercial interest in the process.

The need to introduce a national authority for building control is recommended to address difficulties arising from conflicts of interests that have been driven by the mixed public and private sector delivery landscape in England and Wales. Both recommendations address the delivery of the building control function in England and Wales.

Scottish context

The Scottish building standards system is a devolved matter and is delivered by the 32 local authorities in their role as building standards verifiers with responsibility for their own geographical area. Appointment as a verifier is based on the requirements of the Operating Framework and the Performance Framework. Appointment is made by Scottish Ministers and is for a set period over which performance is monitored by Scottish Government. Although the Building (Scotland) Act 2003 does permit the appointment of other bodies as verifiers, there is no private sector involvement in delivery of the building standards system in Scotland.

The pre-emptive nature of the Scottish building standards system is a key strength that helps to protect the public interest by ensuring the building design is checked against the requirement of building regulations before a building warrant is granted. A building warrant is required before work can begin on site. This process limits the risk of building works starting without approval, but it is recognised that this does happen and there may be a greater impact on the safety of high-rise or complex buildings as a result. Legislative changes to strengthen enforcement and sanctions for illegal work are planned and these will improve the ability of the local authority to stop work, take statutory enforcement action and seek a criminal prosecution when this is in the public interest. The proposed changes have been subject to public consultation and attracted wide support as a deterrent against such practices. Implementation of these changes will require primary legislation to be made through amendment to the Building (Scotland) Act 2003.

The Scottish Government is developing changes to strengthen both the Operating Framework and the Performance Framework which are the basis for the appointment of local authorities as building standards verifiers and how their performance in the role is measured. Impartiality and accountability to the public are requirements for appointment and these aspects will be strengthened and subject to greater assessment as part of a new auditing regime for verifiers from 2026 onwards. Currently, a Ministerial Directive permits a local authority to act as the verifier for their own building projects in relation to council buildings. The requirement for impartiality and accountability to the public extends to these projects. Improvements to the management of competency of individuals in the building standards profession have been delivered through the Professional Competency Framework for Verifiers and a Competency Assessment System. Further work is ongoing to strengthen the model of competency management which seeks to develop and implement a fully independent scheme for competency assessment across the profession by 2027.

The Scottish Government has carried out extensive work on a new delivery model for the building standards system through the Building Standards Futures Board Programme. The option of a national authority to deliver the verification service was considered and formed one of the options in the public consultation exercise seeking feedback on the way forward. This option received the lowest level of support. The purpose of a new delivery model is to improve consistency of service delivery. To deliver this the Scottish Building Standards Hub (SBSH) was formed in May 2024 following a two-year pilot phase to provide support to all verifiers through a centre of expertise and a focus on raising competency across the profession. The SBSH is hosted by Fife Council.

Scottish Government response

The Scottish Government accepts this recommendation in principle but acknowledges that it has limited relevance to the delivery of building standards in Scotland.

However, a review of the effectiveness of the pre-emptive building standards system will be undertaken to support the implementation of strengthened enforcement powers for local authorities. Work will also be taken forward to consider the role of the verifier in delivering their own local authority building warrant projects in relation to council buildings.