Oireachtas Joint and Select Committees
Wednesday, 4 October 2017
Joint Oireachtas Committee on Housing, Planning and Local Government
Pre-Legislative Scrutiny of the Draft General Scheme of the Building Control (Construction Industry Register Ireland) Bill 2017
The purpose of today's meeting is to undertake the pre-legislative scrutiny of the draft General Scheme of the Building Control (Construction Industry Register Ireland) Bill 2017. On behalf of the committee, I welcome to today's meeting Ms Caroline Spillane and Mr. Cormac Bradley from Engineers Ireland, Ms Carole Pollard and Ms Kathryn Meghen from the Royal Institute of Architects of Ireland, and Mr. Alan Baldwin and Mr. Alan Isdell from the Society of Chartered Surveyors Ireland.
Before beginning I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
I call on Ms Spillane to make her opening statement.
Ms Caroline Spillane:
My name is Caroline Spillane. I am director general of Engineers Ireland. I thank the committee for the invitation to give evidence before the it this afternoon. I would like to introduce my colleague, Cormac Bradley, a fellow of Engineers Ireland, who is joining me in representing our institution at the meeting this morning.
Engineers Ireland is one of the oldest and largest representative bodies on the island of Ireland, that is, North and South. We have 23,000 engineering members. This membership incorporates all disciplines of engineering in Ireland across industry in consulting and contracting organisations, the public service, semi-State organisations and academic institutions.
Engineers Ireland awards the professional title "chartered engineer", which is the gold standard for engineers working in Ireland. This professional badge of excellence, awarded following a rigorous assessment, is recognised internationally and in Irish law. Under the Building Control (Amendment) Regulations 2014, BCAR, for example, only chartered engineers may act as design certifiers and assigned certifiers to a building project.
Engineers Ireland welcomes the general scheme of the Building Control (Construction Industry Register Ireland) Bill 2017. During the BCAR consultation process, the Construction Industry Federation, CIF, proposed a voluntary register that all the stakeholders welcomed and it was the collective ambition of all the stakeholders that the register would become statutory even though we knew this would require Government support.
We therefore believe that establishing the Construction Industry Register Ireland, CIRI, as a mandatory statutory register of builders, contractors and specialist subcontractors is an important step in improving building control and consumer protection and the ultimate step in the previously declared ambition of the BCAR consultation process. We believe this Bill will help to promote a greater commitment to compliance with the building regulations, thereby promoting greater safety and quality for consumers and the wider public.
The Bill provides for independent and cost-effective oversight. For example, two industry nominees to the admissions and registration board may be “registered construction professionals” which include chartered engineers registered with Engineers Ireland. Two such registered construction professionals, not being members of the board, shall also be nominated to the appeals committee. It is important for the transparency of the statutory register that the other building sector institutions are afforded the opportunity to nominate individuals to both the admissions and registration board and appeals committee.
It is our view that the obligation to demonstrate, to the satisfaction of the board of CIRI, the ability to comply with the multiple requirements of section 5(4) strengthens the credibility of the register and acts as an appropriate deterrent to those who may try to operate outside this regulatory vehicle. A transparent and rigorous system of qualification to undertake building works should enhance competition for projects in the sector and will go a long way to ensure that only bona fide builders operate in what is bound to become, for the immediate future, a highly focused sector as we attempt to redress our housing shortage in particular.
We are not of the view that the proposed register is either discriminatory or exclusive and that it affords all those who wish to operate in the building sector an equal opportunity to be selected for specific works in accordance with declared expertise and a successful track record of project completions. Accordingly, we welcome this proposed Bill for the benefits it can bring to the sector as a whole in improving the build quality of projects and the opportunity it affords building owners to engage with builders who are prepared to subscribe to the regimen of membership of the register. We look forward to ongoing engagement with the Government to ensure regulation keeps pace with industry and delivers optimum outcomes for consumers and the wider public.
Ms Kathryn Meghen:
My name is Kathryn Meghen and I am chief executive officer, CEO, of the Royal Institute of the Architects of Ireland, RIAI. I thank the committee for its invitation to come before it, and wish to introduce Ms Carole Pollard, who is president of the institute. The RIAI, which was founded in 1839 and now has 3,380 members, is the support and registration body for architects in Ireland and is the membership body for architectural technologists. The RIAI works to ensure the safety of the public through the efficient and effective administration of the register of architects and the maintenance of standards within architectural education. We welcome the publication of the CIRI Bill 2017 and believe the register of contractors in Ireland is an important step in strengthening consumer protection and achieving higher standards in construction. We believe the proposed Bill as structured can deliver a robust and transparent system. The requirements for the independence of the admissions and registration board, as well as for those on the register to have appropriate training and experience and that they participate in continuing professional development, are all to be welcomed.
The RIAI recommends two additions to the proposed Bill and a small number of operational changes. The additions we ask the committee to consider would enhance consumer protection and specifically provide appropriate redress for consumers if things go wrong. The issue of most concern to the public is the quality and safety of their homes; it is imperative that homes are built to the highest standard and that they are safe, durable and enjoyable places to live. While delivering high standards in construction is vital, the committee will be aware the registration system is designed to ensure that those using a specific title are competent to do so. If a person, or a company in the case of the CIRI Bill, does not meet the standards of knowledge, skill or competence, a fitness to practice complaint can be made against them. The purpose of fitness to practice is to sanction or remove from the register those who are found to have breached the registration requirements or have been found guilty of poor professional performance to prevent them from continuing in the profession or trade for the future protection of the public. However, this procedure does not provide financial redress for the consumer who may have been affected by the contractor's poor performance. The RIAI suggests that this deficiency can be addressed by amending the Bill in two areas, namely, in respect of professional indemnity insurance and latent defects insurance.
Professional indemnity insurance provides clients with protection if, following an error or admission in professional advice or service, they suffer a financial loss. For instance, where a contractor needs to adjust the design provided to fit the actual work, they create a contingent exposure and should carry insurance to protect the end user. As a rule, contractors do not carry professional indemnity. The RIAI believes all parties in the building process should be responsible, liable and insured for their own work. Architects are required under the RIAI code of conduct to carry an appropriate level of professional indemnity insurance and the RIAI recommends that contractors are similarly required. We believe this could be accommodated in section 7 of the code of conduct in the proposed legislation.
The RIAI's second recommendation is for mandatory latent defects insurance, LDI. Notwithstanding the existing registration and regulatory systems in place, the complexity of building means things can still go wrong. In order to further protect clients and homeowners, the RIAI recommends that LDI becomes a mandatory requirement for all new build residential requirements. LDI is taken out in respect of specific new build premises or building works to provide cover in the event of an inherent defect in the design, workmanship or materials becoming apparent after practical completion. Latent defects insurance cover is generally provided for between ten and 12 years after a building is signed practically complete. It provides a quick remedy for the consumer in the event of a defect arising. LDI is common in many developed countries and mandatory in some, such as France. LDI provides the quickest and most cost-effective remedy for home and building owners should a problem arise and we believe it is in the interest of the consumer that it is legislated for.
There are also a number of specific operational suggestions that we believe would lead to more expedient decision making under the new Act. The first relates to sections 4 and 24 of the admissions and registration board. The CIRI Bill provides an admissions and registration board consisting of a chairperson and ten ordinary members, five industry nominees and five ministerial nominees. The board must sit with the majority of ministerial nominees and has a quorum of six. The chairperson does not appear to be included in the majority, as this person is a ministerial appointee and not a nominee. We suggest that the quorum provided in section 24 be reduced or that the number of ministerial nominees in section 4 be increased. Similarly, under section 12, the appeals committee, where there is a chairperson and four ordinary members, of whom two are industry nominees and two are ministerial nominees, the committee must sit with a majority of ministerial nominees, with a quorum of three. In this case, we suggest an increase in the number of ministerial nominees.
The RIAI supports the need for standards in consumer protection in all areas of the construction sector. The introduction of CIRI is an important step in continuing to improve the standards of the built environment and one which the RIAI supports. We believe that our recommendations as outlined will further strengthen the consumer protection intentions of the Bill and ask that the committee consider their inclusion.
Mr. Alan Baldwin:
That is okay.
I thank the committee for the opportunity to speak on the proposed CIRI Bill. I am a chartered building surveyor and chairperson of the professional group on building surveying in the Society of Chartered Surveyors Ireland, SCSI. I am also the managing director of a private building consultancy practice that offers building surveying and design and project management services. I am joined by Mr. Alan Isdell, a chartered building surveyor, and past chair of the SCSI building surveying professional group. He is also a director of OLM Consultancy services. Mr. Isdell was involved in the stakeholders group in the development and implementation of the building control amendment regulations and has spoken on the subject in a number of forums.
The SCSI has been and continues to be very active in the publication of authoritative data for policy makers and Government officials.
For example, given the current housing and homelessness crises, the SCSI has published numerous reports on the property market and construction costs for housing in order that this issue can be measured and addressed in a targeted and systematic way. The society is also finalising its 2017 apartment delivery cost report, following on from its 2016 real cost of new house delivery report. The SCSI continues to raise awareness of building defect concerns in our built environment, particularly those within our multi-unit developments, as outlined in our recent submission to the Department and presented to this committee earlier this year.
During that committee meeting, we provided our views on the Building Control (Amendment) Regulations 2014, BCAR, which we affirmed is a substantial improvement on the previous self-compliance regime. The SCSI believes greater consumer protection can be best achieved through ongoing review and improvement of the current regulations, such as improvements in the provision of latent defects insurance measures in residential developments. The certification process under BCAR is making significant grounds and with greater support of industry standards, further gains can be made. Accordingly, we welcome an increase in construction industry standards and we fully support the introduction of the Construction Industry Register Ireland, CIRI, on a mandatory basis for all those working in the construction sector impacted by the building regulations.
With the advancements made in building materials and new building products, we feel that industry practices and installation training were and still are, slow to keep pace with the new ways of installing innovative products and materials. This can be assisted by mandatory training and continuing professional development across the industry.
The purpose of CIRI is to provide a transparent regulatory environment to improve quality in our building stock and to ensure high-quality construction practices and products for the future in the public interest. The construction industry has suffered reputational damage prior to the introduction of BCAR. CIRI aims to address this by raising standards and practices to ensure we avoid mistakes of the past. Commitment to mandatory registration demonstrates a desire to stamp out non-compliant construction activities while exposing and eliminating non-competent builders from the industry.
As an industry, the construction industry must meet the demands of more rigorous building regulations, more complex and competitive procurement processes, the use of innovative and diverse technologies in design and construction processes, as well as increasingly demanding building contracts. Regular education, training and upskilling for all those in the construction sector are vital to ensure high standards are applied and maintained. This is particularly important in high-risk areas such as fire safety. With new products and building methods coming on stream annually, our current workforce must upskill regularly to maintain skills appropriate to new product installation requirements. We welcome the requirement for CIRI registrants to plan, record and verify the continuing professional development, CPD, activities of its personnel, with the principal focus on management and supervisory staff whose input is essential to achieving legislative and regulatory compliance. We believe that through CIRI, other policy directions can be supported such as professional indemnity insurance.
The establishment of a mandatory register should be regarded as a positive step forward in the Irish construction industry. It has been regarded as an integral component of encouraging public confidence in the construction industry and protecting consumers. A consumer who engages a builder from the register should have the assurance that the latter possesses a minimum level of commitment to best practice, competency and qualifications.
The SCSI wish to take this opportunity to reiterate our support and overriding requirements that it provides a fit-for-purpose process by providing flexible access to competent entities without sacrificing standards in the interest of consumer protection. From a consumer protection point of view, with the improvements made with the introduction of BCAR and the proposed implementation of CIRI, the SCSI is concerned that the level of latent defects insurance currently available falls short of what is required. While there have been improvements in recently introduced products, we believe this area requires significant improvement.
As the registration body for building surveyors and quantity surveyors under the Building Control Act, the SCSI would welcome the introduction of the CIRI scheme to ensure a competent workforce throughout the construction process, which will benefit the other professions involved and consumers.
I welcome all three delegations to the committee on this important topic, especially as we embark again on an ambitious building programme. I support CIRI because it is a registration process designed to promote a culture of competence, good practice and compliance. That, in combination with BCAR, can certainly enhance consumer protection with regards to the construction industry.
Having said that, it is important to learn from the mistakes from the past in terms of standards in building and compliance. There have been well-publicised failures in the construction industry, such as Priory Hall and the Dublin docklands apartments, as well as pyrite and now the mica issues in counties Donegal and Mayo. During the last big freeze, it was discovered utilities were buried at insufficient depths in the ground causing freezing pipes and so forth which caused significant problems for consumers. With no disrespect to the organisations before the committee, professional engineers, architects and quantity surveyors signed off on these developments. It came as a severe disappointment, as policy makers, to see how consumers were abandoned at that time and are still abandoned when it comes to mica and pyrite issues. That is why I welcome CIRI.
There are builders at fault where substandard work has been done. I argue, however, that professionals who signed off on such substandard work are also rogue and need to be taken to task as well. How will CIRI impact on dealing with rogue builders and professionals who sign off on substandard work? How do the individual organisations propose to ensure they retain standards of professional competency in their organisations? Sanctions were mentioned in one of the presentations where a person found to be incompetent is removed from the relevant professional register. Is that enough? Should there be financial sanctions or penalties and fines imposed?
It was also mentioned that there is no financial redress for consumers under the legislation as currently drafted, and providing additional insurance cover for substandard work may need to be revisited. Will the delegations expand on those points? Many consumers to date have been left in the lurch by inadequate insurance or by professionals or builders not held to account. How will CIRI change that? It is important to have a register of competent builders and professionals. However, it is not good enough that the sanction is that one is removed from a register, yet the consumer is left in the lurch again. What other sanctions will work to enhance standards and competency?
What is the impact of cost? We often hear the costs of new build houses or apartments are a barrier to development happening. What will be the cost impact of this new regulation? I hope it will not be another barrier and will fit seamlessly into current costs.
My final question pertains to inspections. We heard recently from the Department of Education and Skills about problems with relatively new school builds. It is now proposed to have a clerk of works on all new school builds. What are the delegation's views on bringing back independent clerks of works on all substantial building projects over a certain size to monitor and ensure adherence to standards?
Ms Caroline Spillane:
I will respond to the code of conduct issue and my colleague, Mr. Cormac Bradley, will respond with regard to the inspection piece. In respect of Engineers Ireland, the relevant title that comes into play is that of "chartered engineer". A chartered engineer is required by Engineers Ireland to adhere to a code of conduct. We have an ethics and disciplinary board to which any member of the public can make a complaint for free. We hold oral hearings in certain circumstances and a chartered engineer can be removed from the register. If they are removed from the register, they cannot practise and will not be able to undertake activities under the building control regulations as specified.
Codes of conduct operated by professional bodies are to ensure that the standards of the profession are upheld. There are civil remedies in parallel with which a code of conduct must operate. This is where a person brings an action against someone for failure to deliver on a contract. That is the remark I would make in respect of chartered engineers.
Ms Caroline Spillane:
It has probably been about half a dozen overall. There are various sanctions including exemption, removal and suspension. In certain cases, those are published online in order that people can obtain information. There is a facility to allow members of the public to search the register.
I was asked about the CIRI register. Section 7 provides for the Minister to prepare a code of conduct and a number of subsections relate to professionalism, competence, professional development, records and data and other matters. The preparation of a robust code of conduct and the operation of a scheme against that code is probably the best mechanism to protect the public from rogue builders. Clearly, high entry criteria in the first instance will prevent construction firms that could not adhere to these requirements from entering the register.
Mr. Cormac Bradley:
At the outset, I will highlight the subtle difference between inspection and supervision. An inspection is a frequent visit to a site as works are in progress while supervision implies a full-time on-site presence. In many ways, the proposal that the Department of Education and Skills would now put a clerk of works on sites of new school projects harks back to a previous era where a building project, or civil engineering project for that matter, would have had full-time on-site supervision. A return to a clerk of works environment for the Department's projects is a positive move. However, in the context of the CIRI Bill, the builder is not responsible for inspection; the builder is responsible for full-time supervision. If one looks at the BCAR documentation and the certificate of compliance and completion that the builder is obliged to sign in his or her individual capacity, it makes specific reference to the requirement to provide on-site supervision. It provides for specific undertakings and a commitment and declaration that the works have been carried out in accordance with drawings, specifications, performance parameters and everything else.
Inspections do not impact on CIRI in terms of membership of the CIRI board, because the builders who will be expecting to get onto that register are providing supervision and do not provide inspections. However, the professionals attached to a project - the engineers, architects and building surveyors - work to an inspection regime. I imagine that we would collectively welcome the fact that a clerk of works for a Department of Education and Skills project would be placed on site. We need to be very careful, however. If there is a party on site who is answerable to the client body while others who are answerable to the client body are there in an inspection capacity, there will have to be very clearly defined areas of responsibility and lines of communication to ensure there is no duplicity or double work. While this is welcome, it is not a panacea to solve the problems of the sector and the mistakes of the past. I suggest also that everyone is entitled to a second bite of the cherry, provided he or she can prove he or she has amended his or her behaviour in accordance with the requirements of the CIRI register.
Ms Carole Pollard:
Senator Coffey made quite a few points. and if I do not hit on them all, he can certainly come back to me. The title "architect" has been registered since 2009. Some of the issues and difficulties referred to are legacy issues with origins prior to 2009. I am not saying we have had a clean slate since 2009, as we have not, but we have come a long way in the standards expected of an architect. The requirement to register as an architect is a stringent one given compliance and the requirement to undertake 40 hours of CPD per annum. An architect must also comply with the code of conduct. We have been actively involved in the training relating to BCAR. We have seen significant improvements and the feedback from members has been very positive.
Ms Meghen mentioned insurance as a method of redress. As a practicing architect for 30 years, I consider professional indemnity, PI, insurance to be an incredibly powerful tool for ensuring standards. One pays for one's PI insurance and if there is a very severe claim against one, one often cannot get PI insurance again. That is a financial burden on the professional practitioner. It acts both to provide redress for the consumer and to keep a check on professionals. PI insurance must be part of the CIRI Bill. Everybody involved in a construction project must have a similar level of insurance cover.
The mica and pyrite issues are incredibly serious and have huge implications for people living in affected homes. The mica investigation in counties Mayo and Donegal is ongoing. I understand that an incredible 10% of the population of Donegal, and more than that on the Inishowen Peninsula, has been affected by mica. To the best of my knowledge, the blocks which contain mica have CE markings. If a product has a CE marking, the contractor and the professionals on the job have to take that at face value. As such, latent defects insurance is the solution for mica and pyrite. Latent defects insurance provides for defects in materials. That is a really strong argument for the inclusion of that form of insurance in the CIRI legislation. Ultimately, it is the best recourse for consumers affected by building defects. It is a much faster solution. While there are concerns about the cost of these new regulations and of paying for latent defects insurance, the benefit for the consumer is enormous in the long run. It shortens the time to get redress and reduces the legal bills attached to it. In the larger scheme of things, it is far more cost effective than the current system.
As to the use of clerks of works, I concur completely with Mr. Cormac Bradley on the difference between supervision and inspection. Every layer we have is good. If there is a clerk of works, it needs to be clear who is employing that clerk and to whom he or she answers. Certainly, the architectural profession welcomes every layer of oversight and being part of a larger grouping protecting the consumer.
Mr. Alan Baldwin:
We echo the views of the RIAI and Engineers Ireland on admissions procedures and the codes of conduct that apply to our society. It is those admissions procedures and codes of conduct which deal with any issues that might arise with rogue professionals. As to how the CIRI Bill addresses rogue builders, it creates an admissions procedure whereby certain standards must be satisfied having regard to entry levels, codes of conduct and competence. I am hopeful that the legislation will create a new level of professionalism and new standards in the construction industry.
We were asked about financial redress to protect consumers and my views are like those of my colleagues here. The difference between a professional and a contractor is that one has professional indemnity insurance and the other does not. Professional indemnity insurance is the missing piece of the jigsaw in terms of recourse for those seeking to bring an action against a contractor. Other financial measures such as latent defects insurance were touched on.
There is no financial redress within the Construction Industry Register Ireland, CIRI, scheme and we all recognise this is one of the flaws. The impact and cost of this new regulation will be negligible. Most of the larger contractors tender for large EU work. They are accustomed to providing certain documentation at a certain standard to satisfy certain criteria. The upside to this is a good level of contractors will be able to satisfy the criteria, and the best outcome is that we will also identify some of the contractors who simply do not have the competence or expertise to do the work they are trying to do. We would absolutely welcome bringing back the clerk of works on large complex projects, residential or otherwise. Again, it will have to be looked at carefully in the context of BCAR and whose responsibility lies where. I do not know whether Mr. Isdell has any particular views on the admissions piece from the society's perspective.
Mr. Alan Isdell:
To outline the procedure a building surveyor goes through to get admitted onto the register for building surveyors, there is a technical assessment board and the building surveyors hoping to get onto the register would have to submit details of their work experience in various areas. If they do not tick all of those boxes, they do not get onto the register and they will have to go back and do other training. The provision is there in terms of the admissions board. There is also a technical assessment board for where issues of a technical nature need assessment. We have had some, whereby people working in the industry for quite a number of years maybe do not have the professional qualification but are trying to come through on a technical route. This is fair enough, as people who have experience and who are competent should have a route to registration, and the technical assessment board will assess their competence.
Senator Coffey used the key word "competence" when he spoke, and I am now moving towards the building side of the equation. I draw the Senator's attention to the definition of "competence" in the proposed Bill, and I have an issue with it. Section 7 of the Bill speaks about competence being relevant work undertaken or relevant education qualifications or a combination of both. Looking at this definition, one could say somebody who has educational qualifications could get onto the register. To me this does not sit with the definitions we have had traditionally in the industry. The definition under health and safety legislation, for example, comprises three things, namely, relevant knowledge, training and experience. The definition under the code of practice for inspecting buildings and certifying buildings is relevant knowledge, training and experience. This definition should probably follow through to make sure members who are CIRI registered have the appropriate competence. This is to try to address the issue of competence on the building side of the equation. I hope it is of use.
I thank the witnesses for their presentations and for taking the time to answer our questions. All of the committee members want to see a mandatory register. The issue is whether the legislation provides the most robust system we can get. Much of this has to do with the quality of the enforcement element of it. I have a couple of questions for all of the witnesses. We have had the voluntary register since 2014. What has been the witnesses' experience of this? Have they noticed the voluntary register making any change or impact? Have they noticed, or are they aware of, any enforcement actions taken for non-compliance or poor standards against contractors on this voluntary register since it was established?
In terms of the effectiveness of the enforcement, somebody on the panel mentioned that the complexity of building, particularly new building technologies, creates a series of challenges, but there is also the size of the sector. The size of this register will be substantially bigger than any of the registers the witnesses' organisations operate. Do these two factors, the complexity of what is done and the size of the sector create additional challenges which need to be considered? For example, if I discover there is no fire stopping in the home I bought some years ago, against whom do I make a complaint? Is it the untrained subcontractor who installed the fire stopping, the foreman of the building site, the builder, the developer or somebody else? How will the register work in this sense? If I employ an architect, it is pretty straightforward as I make a complaint about the work or otherwise of that individual. How do the witnesses see this register working in this particular way?
There is also an issue about independence and we have two options in terms of the legislation. One is to follow self-regulation, which is the model that works in the witnesses' own sectors, and arguably works very well. The other, of course, is an independent model, whether we look at the Environmental Protection Agency or the Food Safety Authority of Ireland. Given the size of the sector, the complexity of what is done and the damage reputation that sector has because of the activities of a small but significant number of rogue contractors, is there an argument to say that public confidence would be better served by having a fully independent register and enforcement activity rather than locating it, for example, within the Construction Industry Federation? I am interested to hear the views of the witnesses on this.
In terms of board membership, do witnesses think the legislation is strong enough to ensure not only industry representation but also that consumers and consumer protection have a voice? Obviously there are ministerial appointees. There is clearly a need, given the level of defect discovery in developments, for some type of consumer voice because this is the bit that is missing in much of the public debate and legislation, as the witnesses have outlined.
I would like the views of the witnesses on sanctions. While I absolutely agree with the principle that if somebody does something wrong and is sanctioned, there should be a remedy for them to get back into the system, at what point does the level of negligence or non-compliance become so egregious that not only is somebody taken off the register but he or she is barred from engaging in the profession at all? We see this with taxi drivers and other industries. Do the witnesses' organisations have a sense in which there should be a scale of sanctions and what kinds of sanctions should be applied, given the impact that non-compliance in the sector has, not just on people's quality of life but on their family homes, family futures and their financial well-being?
Ms Kathryn Meghen:
The first issue the Deputy raised is where a person goes when an issue occurs. A registration system is about ensuring that those who use a title are competent to do so. When people are removed from a register or a case is taken against them, it is about the future protection of the public. To deal with redress and remedies, all of the bodies here have mentioned latent defects insurance, and without wanting to bore people, this is the absolute bottom line. Average home buyers should not have to decide whether to take a case against the builder, the material supplier, the contractor, the architect or the engineer. They should have an insurance product that enables them to get their house or home fixed in order that they can continue to live in it or move back into it quickly and then, if needs be, the insurance company can decide to take court cases against all the various participants.
My question is more related to the operation of the register rather than legal remedies. For example, if there is a chain of responsibility in the delivery of the product, for example, a house, and if, having bought a house, I discover something was not done correctly and therefore somebody is guilty of misconduct or negligence and should be removed from the register, the way the system is proposed, it is not just as straightforward as asking whether it was the individual who put in the fire stopping, the foreman, the builder or the developer. My question is, when I make a complaint to the Construction Industry Federation against whom do I make the complaint? Who is ultimately responsible? Will we have a situation such as we currently have whereby the subcontractor will blame the foreman who will blame the builder who will blame the architect? This is the question I am asking.
Ms Kathryn Meghen:
Under the proposed system, there is an investigation process, and it is at that stage of the process where a complaint is made. I would envisage if somebody is making a complaint, he or she will make a complaint against the contractor, the architect, the engineer and all parties, and it is up to the professional conduct committees or the fitness to practise processes in the various organisations to carry out those investigations and establish whether somebody in their system has a case to answer.
Mr. Alan Baldwin:
The Deputy has raised a number of points. From a voluntary registration point of view, on a personal level I have not experienced any changes or impact from the voluntary register system to date.
I accept the point about the complexity of construction techniques and how the register would work in practice. We referred in our opening statement to the complexities and to how the construction industry is changing annually. It is very important that everyone involved in the construction sector maintains continuing professional development. There has to be training in place.
There is a difficulty with the register at the moment. To take the example outlined, if there is an issue with a house or an apartment, to whom does one take the matter? The Building Control (Construction Industry Register Ireland) Bill provides that one would take one's complaint to CIRI and register it. I stand to be corrected but my aspiration is that there will, under the CIRI system, be a series of subcategories that will be determined by the Minister, in consultation with whoever is on the board, and for each of those there would be specific elements within a building structure. There is the possibility that could become terribly complex because one could have 50 to 60 subcontractors on a very large complex build so there is the potential for that to become a bit of mess in terms of how we get to the right person. In reality, what we are expecting is that a main building contractor will register under the scheme and he will be ultimately responsible for the build. If it is the case that some of that responsibility is assigned to another registered contractor who is an expert in firestopping or fire-sealing, then it would seem to me that the second contractor is the person who the claim would be made against. That would be my expectation. That is really important because if all we do is create a register for the main building contractors, it will serve no purpose. The problems most consumers have encountered in the past probably stem from things they cannot see and that in many instances have been carried out by unskilled personnel simply because there is not an expectation or requirement that they need any training. They simply fit the product; they do not know whether they are fitting it correctly. That is a really important point.
I hope the register will provide for a very simple system in terms of recognising the various parties involved in the construction. Ultimately, it will be down to the appeals committee to decide the outcome and it may refer the matter back to the party that made the complaint for the issue to go to mediation or arbitration. That is something we could talk about as a panel and whether that is the appropriate course of action. If one has bought something, the suggestion is that one takes one problem back to the person with whom one has the problem in order to enter into mediation. However, that might not provide one with the necessary redress one was hoping for. While mediation is very beneficial, it can also be very time-consuming and expensive, so we have to look at all of those things.
The possibility of a public register was mentioned. I do not have any particularly strong views for or against it. The current register is working fine, it just needs to be put on a mandatory footing and quickly. It was mentioned that there is no voice on the board advocating for the consumer. The Minister makes the appointments so one would hope something could change to recognise that.
The question about sanctions is interesting in terms of how we deal with serious breaches of building regulations. The intention is simply to remove somebody from the register and, in doing so, prevent them from being able to undertake the work they rely on from a livelihood perspective. I think it is recognised that, from the perspective of the proposed Bill, there is no redress so one is still left with a problem even though someone has been removed from the register. Perhaps Mr. Isdell has something to add to that.
Mr. Alan Isdell:
The only comment I would make on a macro level is that when we all sat around in 2012 or so to look at the standards in building and introduced the BCAR regime, the principle the institutes here, the CIF, the Department and various stakeholders worked on was the inter-reliance of all in the building process to achieve compliant buildings. That inter-reliance bit is based not only on inspections by professionals but the work carried out by the contractors. It comes back to CIRI being a key bit in the jigsaw because we have gone through the BCAR regime and while some people may criticise it, it is working. It may need to be adjusted in the future. The next section is that we need to look at the building and CIRI. That is the key thing. That is just a comment on a macro level to put it in context.
Ms Caroline Spillane:
The sector that is proposed to be regulated is complex and regulation is a very complex and costly course of action to take. In looking through the scheme of the Bill, section 10 provides for a complaint against a registered member so it would be for an individual to take a complaint against the named registered member, either a company or an individual, and it does provide for three different levels of complaint to be made against improper conduct, poor professional performance or a registration requirement. When the Bill becomes law and the register is in operation the issue will be how robust the processes will be and it will be very important for there to be accountability and transparency in respect of the systems and processes that are put in place and then the decisions that are made if a complaint is made against a registered member.
In the context of sanctions, I think there is redress to the courts in cases where the registered member wants to appeal against the sanction. Ultimately, the sanction of being eliminated from a register impacts upon one's livelihood and I imagine that there would be provision for an appeal to the High Court in such circumstances. That is a very serious matter. From the point of view of the operation of the CIRI register, it would be important that there would be sufficient reserve funds for the registration body to be able to defend decisions that are made if an appeal is taken to the High Court.
Mr. Cormac Bradley:
Deputy Ó Broin talked about the potential complexity of the register. Let me go back to some of the statistics we have already presented. The architects have talked about a register which has 3,000 members. We have 23,000 members, of which 7,000 are chartered engineers. Not all 7,000 would be eligible, for example, to fulfil the role of an assigned certifier or design certifier because the chartered engineer designation applies across a number of disciplines but let us say, conservatively, that half of them would be eligible to be assigned certifiers or design certifiers. To my right there are 3,000 individuals, there are 3,500 in our organisation and building surveyors might have a smaller contingent. Colloquially, I have seen two statistics for the number of companies on the current voluntary register of builders and there are between 600 and 800. I suggest that it is probably closer to the lesser figure of 600. The actual complexity of managing a register of potentially 600 members is relatively modest, despite the complexity and the diversity of operations they will offer to do in the public domain.
Mr. Cormac Bradley:
Potentially, but I suggest that is still accessible to them. The register is currently available to small and medium-sized subcontractor specialists in a voluntary capacity.
As to whether the voluntary register has had an impact, I would say there is an awareness rather than an influence. I am about to embark on a project in the pharmaceutical sector. I had a meeting with the client a number of weeks ago and he said to me at a very early stage of our engagement – basically 15 minutes into my first face-to-face conversation with him – that he was considering three contractors and he asked me which one I would use.
I said I could not answer that question. He said he did not care whether I thought I could answer the question and that he wanted an answer, so there is an awareness of this. I was able to say that one of the defining measures he might consider is whether any of the three contractors he was considering was on the CIRI register. He asked about the significance of that. I said the significance of it is that if they are on the register, they are making a public declaration of their capabilities so, effectively, if they default regarding the work they are doing, the public declaration catches them out.
How much more effective will a mandatory register be, with the ultimate sanction that if one is proven to be incompetent on the basis of track record, one will lose one's livelihood, there is no recourse and one is gone? One of the problems we in the construction sector have is that we are collectively tarnished by what happened in the past. There are many people out there trying to do the right thing and many people governed by a code of ethics but, regrettably, we have been tarnished by the actions of a small percentage of the sector and, increasingly, developers who are looking at a commercial return, not necessarily at building standards.
We must also realise that the CIRI register is not the panacea to resolve all the difficulties in the sector. The CIRI register is part - a very substantial part, admittedly - of a suite of tools to which the building sector is voluntarily committing itself by virtue of the initiative put in place by the former Minister, Mr. Hogan, whereby we look at additional certification and we have an assigned certifier and a design certifier. Ten years ago, those positions did not exist. We have ancillary certification. That did not exist either. On a certificate of compliance and completion, a builder is expected to declare that he or she has constructed the works in accordance with the drawings, specifications and performance parameters he or she was given. If someone claims to have firestopped a building and it is proved afterwards that he or she did not do so appropriately, he or she has sullied - not just sullied, but reneged on - the declaration he or she made in that certification.
With respect to Deputy Ó Broin's question as to where individuals should go if they come across something that is wrong with a house, for example, the reality is that they now have an assigned certifier who is a named individual, a design certifier who is a named individual and a building owner, who in this case may be a developer and who is a named individual. Suddenly there are three named individuals whereas, previously, as the Deputy correctly said, the finger was pointed at the subcontractor, who said it was not his or her fault but someone else's because that someone else told the subcontractor what he or she was doing was right. What BCAR has endeavoured to do is eliminate the ring-around because if we say we want an ancillary certificate for the fire design of a building, we can trace that fire certificate from a corporate, although not an individual, point of view. If, for example, one is of the view that the fire measures in one's house are not adequate, one can seek out, presumably via a freedom of information request, information as to who signed the certificate that says the fire measures were appropriately installed and one now has a name. One can say, "Hold on. You have made a declaration to the effect that the fire measures are appropriate. They are clearly not. What happened?" We must not look to the CIRI register as a panacea to resolve all the problems. CIRI must operate in tandem with BCAR and the ancillary certification.
Reference to LDI and to professional indemnity insurance, PII, is conspicuously absent from our written statement. Mr. Baldwin is one of the few people who have been involved in this process from the word "go" in the dark days of 2012. LDI was always on the agenda. My colleagues to my right were the proponents of LDI, but at the time it was considered that it required ministerial intervention to get it off the ground. That has not happened for understandable reasons. PII likewise. It is almost inconceivable that contractors who are responsible for the biggest element of a project can get away without having PII. However, PII, LDI, CIRI and BCAR are not stand-alones; they all integrate and overlap. If we walk away from this Bill saying that we have done our business and that CIRI solves all the problems, we will be neglecting our duties. The former Minister, Mr. Hogan, and his officials at the time said BCAR would be subject to milestone reviews. Deputy Alan Kelly initiated the first one; there will be others in future. Likewise with this Bill. We can say we will get it in place and make the register mandatory but we must ensure we do not say that is it, it is on the shelf and it is mandatory. It must be subject to ongoing review.
Ms Carole Pollard:
I wish to come back on one matter Deputy Ó Broin raised concerning board membership. He asked whether the board membership is strong enough and whether there will be a consumer voice on the board. I will give my opinion on this. I sat on the technical assessment board, which is one of the statutory boards administering the register of architects, for three years as an architect and an RIAI nominee. We have recommended, as Ms Kathryn Meghen said, that the balance on the boards for the CIRI Bill be amended because there should be more ministerial nominees than professional nominees. Definitely, in my experience, on the technical assessment board - obviously, I cannot speak for all the boards - there was a very strong consumer voice, and the chair, who was a barrister, was a very strong advocate for the consumer in all the decisions made by the board. Furthermore, the quorum is always primarily made up of the ministerial nominees on the board and, in that way, I do feel there is an independence to the board that might not be automatically seen when one considers that CIRI is administered by the Construction Industry Federation. Those boards do have an autonomy and an independence because of their make-up and chairs and they function very well. Like everything, we can have all the rules we want, but it is only when they are applied properly that a system functions. That is the really important thing about the CIRI Bill - that the rules are robust and applied properly. Then the RIAI certainly would not have concerns about the independence of the CIRI Bill in that regard.
I thank the witnesses for their presentations. Mr. Bradley's was particularly compelling and made very clear the process in terms of transparency and the fact that it is the interaction of the different aspects of it that will make it work most effectively.
I want to come back to independence. Ms Spillane mentioned independence in her opening statement and has referred to it again. My colleague, Deputy Catherine Martin of the Green Party, proposed earlier this year the establishment of a national regulator that would be independent and not under the remit of the CIF. I want to tease that out a little with the witnesses. Ms Pollard referred to the board and the independence of its make-up. That is fine if one has the right people, but is there a potential weakness in that it could be more independent if it were not under the remit of the CIF? That is a question about the independence of the board.
I really welcome the witnesses' comments on LDI and PII and the indemnities because they have really helped us in this process to add much more value to the proposed legislation. It has been brought to my attention that the CIRI website explicitly disclaims any liability for the contents of the information on it and tells people not to take any decision in reliance on the information given. Does this make a mockery of the idea that the consumer can rely on this register when he or she is actually being told he or she cannot trust it? What will we do about that in terms of building consumer confidence?
My final point, which was not brought up at all and may be the elephant in the room, concerns the so-called self-builders. The Bill exempts self-builders from registration.
There is and will continue to be a risk for the self-builder, not only in terms of their own liability and responsibility for the construction, but also when it comes to selling on the house and the impact that might have on the buyer. Could self-builders be mandated to come onto the register? Would that give more assurance in terms of risk?
Mr. Alan Baldwin:
I will ask Mr. Isdell to speak about the independence of the board in the context of a national independent regulator. I have two observations to make about the Construction Industry Register Ireland, CIRI, website. It is obviously disappointing and I suspect that it is there for legal reasons as much as anything else. The Senator is quite right in saying that it is counterproductive. When it comes to self-builders, I want to reaffirm the Society of Chartered Surveyors' position that there should be no opt-out position. Whoever is in the building game is in the building game, so the standards that apply to build someone's home should also apply to building a large commercial complex project - the same people; the same standards. There should be no opt-out provision whatsoever. I will now let Mr. Isdell deal with the issue of the national regulator.
Mr. Alan Isdell:
Senator O'Sullivan's suggestion of having an independent regulator certainly sounds great and it would remove any doubt as to the independence of the regulator. On the flip side, however, we have to look at the cost-benefit analysis. We are looking at a construction industry with a lot of members. Considering the volume of building we are now facing, we are probably talking about 80,000 people coming into the construction sector in the next four years, maybe more. We have to ramp up our housing significantly so we are talking about a lot of people. The Construction Industry Federation, CIF, framework that is in place already has many of those people in its system. It makes sense from a cost-benefit point of view to use those systems. It is legitimate, however, to ask whether that is independent enough. We have spoken about the board members here, and the witnesses from the Royal Institute of the Architects of Ireland, RIAI, have made some good comments on this matter. It is very important that the board be independent and able to make decisions outside of the influence of the CIF. There are, I think, only three CIF members on the board under the Bill as it currently stands. More ministerial nominees might possibly be appropriate. This is the key, however. It is a case of looking at how much this is going to cost because that cost will eventually pass down to the consumer. Any decision to put in place an independent regulator would have to be justified in terms of cost.
Mr. Baldwin just mentioned the legislation on self-builders brought in by the previous Minister, Deputy Alan Kelly. Like many commentators at the time, the Society of Chartered Surveyors in Ireland, SCSI, was not in favour of it. If I were a person building a house down the country, however, and if I were looking at what my responsibilities were under legislation and signing a declaration saying that I would build my house in accordance with the building regulations, I think that I would step back from it. There are also significant responsibilities under health and safety legislation in terms of health and safety on sites and project supervisor construction stage, PSCS. Could a lay person put themselves in that role? I would have to step back from it. People have to make their own decisions, but there are a lot of responsibilities placed on them there. If I was giving advice to someone I would tell them to be very careful because they would be opening themselves up to a lot of responsibility and possible subsequent liability.
Ms Kathryn Meghen:
I agree with what the witnesses from the SCSI have said, namely, that the independence of the system would be down to the quality and number of ministerial nominees on the board. The CIRI system will come under a lot of public scrutiny. If, within two or three years, it is not standing up to provide robust redress for the consumer, it will have to brought into question. However, the costs of a fully independent or State-sponsored system could be quite considerable. The system has to be set up to be robust and there has to be a majority of ministerial or consumer nominees on the boards.
I also concur with what the SCSI has said with regard to self-builders. There are extreme liabilities on the self-builder. There is also the matter of long-term interest, however. If a house built by a self-builder is subsequently sold, the assurances to the next purchaser are not as considered as they would be if it had been carried out independently. The RIAI provides supports for members working with people engaged in the SI 365 system, but we are very concerned about a two-tier system for construction. There is also the issue of the disclaimer. We are all, unfortunately, instructed by our legal advisers to have disclaimers on our websites. I have not reviewed the CIRI disclaimer but it sounds stronger than might need to be and is probably not in the public interest. We will certainly review it but I have not read it.
Ms Caroline Spillane:
I agree with the points made about the drawbacks. The concept was that of an Irish building authority and there are obviously examples of that in the accountancy field, where something similar was established. There is probably a trend towards consolidation in regulation rather then dispersal. There are issues with resourcing and time span, however. Going back to some of the points we already raised, the Minister has an opportunity here to specify who should be on both the overarching board and the sub-boards and to ensure that there is independence there. Colleagues have already mentioned this. There is also an opportunity to introduce accountability here through auditing by the Comptroller and Auditor General, as well as accountability to the Oireachtas and to committees such as this one. Accountability to the courts is also embedded in the draft Bill. Those three facets, together with public scrutiny, should give a high degree of public assurance around the independence of the register.
Mr. Cormac Bradley:
An interesting statistic came up yesterday when I was giving a presentation on building control (amendment) regulations, BCAR. Up to this point in 2017, approximately 6,000 commencing notices have been logged onto the building control management system, BCMS. That number is made up of 6,000 building projects of varying sizes. It could be a ten-storey office block or a 41 sq. m extension to an existing residential dwelling. Of those 6,000 or so commencing notices, however, 4,700 came with an opt-out provision. That means 4,700 projects where the building owner said that he or she did not need to comply with statutory compliance. The facility to opt out came about as part of a review that none of us supported. We have to be very careful about saying we want to police the professionals to the benefit of the layperson when, under the current system, the layperson is actually endeavouring to run away from it as quickly as he or she can. We have to be cognisant of that.
If someone were to ring Ms Spillane and say he or she wanted to initiate a building project and needed a chartered engineer to take on the role of assigned certifier, Ms Spillane would point them to our register of 7,000 people. First, it is impractical to ask which one of those 7,000 would she recommend. Second, even if she did have the temerity to recommend one individual in particular, the other 6,999 would then question her relationship with the person she had just recommended. We need to be careful of seeing a register as a panacea. One of the commonest expressions we use in the professional classes is "due diligence". We are expected to conduct our own research. Sometimes we get paid for it, because it is the preamble to an appointment, and sometimes we simply want to find something out. We can carry this research out colloquially, for example, by asking a person who hired her whether the house built by Ms Spillane was any good and whether she could be relied upon. We again need to be careful here.
A self-builder is, by definition, only interested in one person, numero uno. As soon as the builder becomes involved in a second project, he or she is no longer necessarily a self-builder. The Construction Industry Federation, CIF, has pointed out, very fairly, that a mainstream contractor is expected to be on the Construction Industry Register Ireland, CIRI, and commit to insurance, latent defects insurance and continuing professional development etc., but the self-builder does not necessarily commit to those. I have the same example. I am trying to do assigned certifier work where I am, to a certain extent, limited by the fee my company wants to recover for me doing that. The individual operating as an assigned certifier in the front room of his home does not have my corporate overheads. We need to be careful we are not generating a race to the bottom, and this is a mechanism that will stop a race to the bottom by introducing a mandatory element. One of the mandatory elements of this proposal is that the expertise of individuals and corporate entities trying to get on the register must stand up to scrutiny. If a contractor states he or she can build a six-storey building but has never done it, there would be a default. The Bill proposes a sanctioning mechanism in this regard. I will go back to what I have said. CIRI is not a panacea for everything and it must be operated in conjunction with the building control (amendment) regulations and appropriate due diligence.
We are in a housing crisis and by all accounts this legislation will be quite robust and positive in terms of standards and consumer protection. That gives me concern. There will be a race to build all those houses that we need to supply to the market. Often people cut corners when under pressure. That is where we must be careful. Do the hubs fall under CIRI? At the moment there is a rapid build programme to supply homes to thousands of people who find themselves homeless and in dire circumstances.
Ms Deborah Meghen:
The contractors who would apply under the public procurement processes would have to come under the CIRI Bill. It is one of the positives. When a design team is applying for work under public procurement, it does not know which contractor it will work with and which contractor's work will be signed off. If CIRI is brought in, at least it will know all the contractors under public procurement will meet a particular standard.
Senator O'Sullivan asked one of my questions. It is very positive today. It is great to see there are 23,000 engineers because in recent years we all saw the effects of recession. My own son has a qualification and he had to emigrate. He is a civil engineer in Calgary in Canada. Is there an issue in this regard? We can speak about apprentices. We are in a housing crisis and there is to be a change. We had a building crisis but now we are trying to promote apprenticeships because apprentices will be needed. Will this be crucial in future?
There is the idea that regular education, training and upskilling for all those in the construction sector is vital to ensure high standards are applied and maintained. That is crucial. Most local authorities contract their work. If a company has tax clearance, it would qualify as a contractor for local authorities. That is fine and the companies do good work as local authorities send out engineers to check it. Who will enforce the stipulation for regular education and training upskilling? Is it part of the remit of the bodies before us to say that a person has a certain number of courses to do in a year, two years or three years? What will happen in this regard? It is important.
The witnesses mentioned older buildings. I know a case where a young family bought an older house and paid a top price for it. It started to subside and although they had insurance, nobody would cover it. In the end I got it sorted but it took months. There was no accountability. When the couple bought the house, they were the second or third buyer. They had a mortgage and the bank would have required an engineer's inspection. Everybody passed it. When the house subsided, we could not get any accountability. It was devastating for the family. The witness spoke about indemnity and I am all for that. The smaller print with insurance must be watched. Insurance is crucial. I had a case where the people had insurance and two engineers had given reports. These are ordinary workers with a mortgage. They are not engineers but got professionals to do their job. They passed the building.
What is the bigger picture for this? It is great to see there will be so many initiatives. I have spoken to people recently who are building houses and it is great to see this important energy rating. There is quite a high standard now with these energy ratings. I do not know if that process works with the Department so will the witnesses explain it? It is important that all houses built have an energy rating.
It is great to see the provisions for fire regulations as we are aware of what has happened over the years. I want to be positive but enforcement is always the biggest issue. When we make regulations and rules, we must ask if money is there for enforcement, who will do it and who will be accountable. It is great to see that CIRI will tackle many of these issues. Health and safety are so important. We have all seen different issues with buildings over the years. I was a councillor for 18 years and I would have seen problems that I can now say will be addressed. I was going to ask about the hubs as well. Will the witnesses speak about education and apprenticeships, as I have concerns about them? It is great to see the 23,000 figure for engineers. I know many have emigrated but I hope they will come back to Ireland. It is important to get back on track with engineers and apprentices. There is a big market that needs to be targeted.
Mr. Cormac Bradley:
I will deal with what might be one of the simpler aspects of the question, which relates to continuing professional development, CPD. Engineers, architects, doctors, accountants - almost every professional class I am aware of - has a form of CPD. The elephant in the room is that builders in general are not as committed to CPD as they were in times past. Engineers Ireland recently initiated a process in-house where every time I go to a CPD event, I can log it on a website facility within Engineers Ireland. I am obliged to generate 35 hours per year of CPD time. That is new learning and I can claim this morning's proceedings as CPD as I am learning the procedures of this committee and imparting knowledge, I hope, as part of the process.
The idea that CPD is now an applicable education regime to builders is a major step forward. I advise those who are outside the sector but very interested in it that the idea of embracing CPD was a voluntary gesture by the CIF when it was put in place. It did not look to put in place an old boys' club exclusive to its own members that it could administer. Currently, membership of CIF does not equate to membership of the CIRI board and vice versa. One cannot get into one as a consequence being in the other. They are two entities. Currently there is much emphasis on the independence of CIRI. It is independent of the CIF and all the federation does is provide the resources to administer the facility. We do not have somebody like Mr. Hubert Fitzpatrick saying we can let one person in but not another. It has nothing to do with it. It is simply a convenient house for CIRI. If we are successful in persuading the committee of our conviction, CIRI will become mandatory and we may have to address the circumstances where CIRI is currently housed. It must be resourced one way or another.
As other speakers have said, it would be more appropriate and effective to have CIRI administered by people who know what it is all about. For example, Sky television, when broadcasting football matches, now puts a referee in the studio on a Sunday or Monday night to assess the performance of other referees. One would not bring in the club owner or the centre forward to assess the performance of the referees. The referee assesses the performance of other referees, admittedly with the benefit of slow motion. The idea that CIRI will be an old boys' club and that we let in whoever we want because it suits us is contrary to the sentiments, not just of the CIF but also of the other stakeholders.
The Senator is correct that we do have a resource problem. It is not specific to the professionals on this side of the table. The CIF will tell the committee it is short of critical trades, carpenters, guys to do form work and electrical work. The challenge is that we have a shrinking resource pool and we are trying to do more faster and with more regulation. The significance is that the stakeholders on this side of the table are committed to the challenge. They all understand the need for transparency and acknowledge the need for interaction between the professions and the builders. We are not running away from the table, so to speak. The Chairman has not dragged us in here kicking and screaming. We want to see this. In reality, and it is nothing to do with any of the people in the room, we have been wanting it since 2012-13. We have a challenge.
With respect to the difficulties with the insurance industry, it is very difficult on a case-by-case basis to ask why these people were not sorted out immediately. Our understanding is that latent defects insurance, LDI, will provide the funds by which the matter can be addressed while the investigation into who is responsible goes on. The difference is that people are not waiting for the investigation to close out to allocate money to the cause. LDI would make sure that money would be available to address the remedial works while the investigation was continuing. With respect to who is responsible for the substandard works, I would go back to the suite of ancillary certification and certification generally, the whole point of which is to provide traceability, answerability and responsibility.
Ms Kathryn Meghen:
The RIAI has had continuing professional development, CPD, for architects for the past ten, 15 or 20 years. Last year, we brought in a new information technology, IT, system where people log it and approximately 80% of people now use that online system. The rest bring in boxes. The advantage of CPD is that the end users have a guarantee that the architects they work with are up to date. Building is extremely complex. Architects are always carrying professional indemnity, PI, insurance as are all the other professionals. The insurance market considers a profession in its entirety when deciding on a premium. If all the architects, engineers and, one hopes, contractors are up to date with all the legislation and technology they are working under, their insurance premiums will be kept down. CPD is vitally important for the end user. All the professional bodies, to my knowledge, ask their members to demonstrate that they are complying. The same is true of CPD.
In respect of apprentices, one of the problems for architects and architectural technicians is that architecture has not been the most sustainable of careers over the past 15 or 20 years. Very few parents would have been encouraging their children to go into the trades because people within the trades have been competing with people who have no qualifications. If they now become regulated professions and activities, they become more attractive careers and we hope to see the numbers increasing quickly.
Ms Caroline Spillane:
It is important to encourage young people to consider science, technology, engineering and mathematics, STEM, careers. Within engineering there is a huge demand but not in the traditional areas. People going into engineering are considering life sciences, biomedical engineering etc. There is a definite impact on civil engineers. When we consider all the investment required for infrastructure in the near future, we can see that we will reach a critical point where we will not have the skills available. Engineers Ireland has a region in Australia and New Zealand, members all over the world and a jobs desk. We are constantly communicating with our members, telling them that there are opportunities in Ireland. To come back from abroad, however, engineers need certainty that there will be projects available for them to work on.
Apprenticeships are needed. Industry is crying out for them. They have to be recognised as an important component. They have to sit alongside other professions. The way the Apprenticeship Council works is very positive. There are several engineering related apprenticeships coming on stream which we have supported. It is important for professional bodies, such as Engineers Ireland, to be there for people who go through the apprenticeship route between levels 6 and 9, very highly qualified individuals, to continue their professional development and contribute to the industry. We are very positive about the move to introduce apprenticeships.
Mr. Alan Baldwin:
Senator Murnane O'Connor mentioned several items, including CPD. In our statement we referred to how vitally important it is for members of CIRI to be provided with opportunities for further education, training and upskilling. I will stand corrected if my numbers are wrong but under the current CIRI system, senior management and supervisors are required to undertake 40 hours of CPD annually. Going down through levels of management it goes from 40 hours per annum to 20 hours per annum. There is an expectation that general operatives would undertake ten hours of CPD annually. It is fundamental.
In respect of fire safety, it is important that the committee recognises that historically much fire stopping would have been undertaken by unskilled labour. That is a high-risk area. It is unskilled, uneducated and unregistered. CIRI will move to regulate that and ensure that the people who undertake that work in future do so correctly and that they are provided with opportunities for CPD.
The Senator mentioned someone with a subsidence issue. In our statement we reaffirm the view that the current latent defects insurance model in the market has improved but I suspect in the instance the Senator gives that, going back some years, there were so many exclusions, the LDI was not worth the paper it was written on. We want to see greater change. I would encourage the committee to bring the key stakeholders in the insurance industry back and ask how their products have changed and what exclusions now exist. They have taken big steps to try to capture many of the workmanship issues that arise in every job. There will always be workmanship issues in every job that will give rise to claims being made against an insurance company providing LDI. That is accepted. Subsidence was an issue and there were plenty of providers giving insurance who excluded that.
On inspection and supervision, we have made a distinction on fire safety issues. It does come back to the person undertaking the work. Does Mr. Isdell want to add anything to that?
Mr. Alan Isdell:
Senator Murnane O'Connor mentioned issues of health and safety in respect of apprenticeships and training. The CIRI Bill includes requisite competence for a contractor to get onto the register. Competence in our view should be knowledge, training and experience. It is not written like that in the Bill. When knowledge, training and experience are written in, that will require the apprenticeships to kick in.
We have had a huge drop-off in apprenticeships in this country and the matter really needs to be addressed.
We are part of another forum. We sit on the construction safety partnership advisory committee, which is an industry body that helps the Health and Safety Authority. Apprenticeships are one of the big issues for the committee because of the health and safety perspective. There are guys on site who deal with trades that are very skilled and people need to know what they are doing. We hope that this aspect helps to drive the need for apprenticeships.
More points were made about health and safety. The proposed Bill covers continued professional development, a matter that we have spoken about, compliance with health and safety and declaring to the board all previous convictions in terms of health and safety. The register provides health and safety safeguards for builders who register. The builders are, not only the main contractor, but all of the subcontractors right down to the guy who employs two people and has a van. That is important.
I apologise for being late but I had an interview and work to do for another committee. I welcome the professionalism and the presentation that I have heard here today. I wish to stress that my following comments do not relate to anyone present.
My first question is a generic one that has already been asked. I refer to who is and who is not a builder. In other words, who registers? I have talked to a few people who are involved in the Dublin chapter of the Institute of Clerks of Works. I sought their views on some of the issues mentioned in the legislation, and specifically, section 5(4) that states: "Entry on the register shall be open to Builders." Who is a builder? Individual builders must register. As already mentioned, what about individuals who work for a building contractor? These are persons who are primarily responsible for the building works and usually operate in isolation from the person named in the registration. The principals of large contractors rarely visit sites and if they do it is in the capacity of supervising the carrying out of any works. Let us say site staff have executive powers. In terms of how the works are carried out, to whatever standard but not required, will this give large builders a loophole that those with executive powers can then avoid? I am talking about foremen, site agents, managers, contract managers and health and safety specialists. Is there an issue around this matter? I refer to requiring the registration of people who are not builders, and I do not know how a builder is defined, but I mean people who carry out acts.
An interesting comment was made earlier. Deputy Ó Broin mentioned that if something is wrong in a house if it was not caused by Johnny then it must have been done by Peter, but the arbitrator will say one must go after Peter and not Johnny. Would it helpful to define the level of work that a person carries out on a building site? Should we identify him or her as a builder for the purposes of the Act?
I welcome the continual professional development that is clearly taking place. I shall outline a related matter that has been brought to my attention. Let us say I have been disqualified for whatever reason but readmitted to the register. What requirements are on me, let us say for the previous two years, to show that I have a specific additional amount of continual professional development done in that period? The CPD may even relate to the reason I was disqualified in the first place. Should we insert an extra requirement to cover such instances?
The code of conduct does not mention ethics. I do not think that ethics were mentioned in the Bill. Can the delegations answer my query? It would be good if ethics were mentioned.
My next query is about the requirement for the board to publish investigations and decisions. I suggest that the information is published quarterly thus ensuring there are regular updates.
I wish to make two more points, one of which has already been discussed. I refer to instances where an individual is not a builder. Section 3(2) states:
This Act shall not apply to: (a) building works carried out solely and exclusively by an owner or an occupier involving the construction of a new single dwelling on a single unit development or the extension.
My point is that such people are exempt but a contractor is not. Should we restrict the exemption so that it does not apply to a person who wants to build a dwelling? Can the witnesses qualify the exemption? Would it make sense to restrict the exemption? A person might be able to build an extension or a bathroom but he or she might not have the capacity or knowledge to build an actual dwelling. A person who is not competent enough to build a dwelling can carry on because he or she is not deemed to be a builder for the purposes of the Act.
My last point is the most important to me. Notwithstanding all us great and good people sitting here with our wisdom, knowledge and professionalism, I can bring everyone to a house in Drogheda, County Louth, that was completed for a local authority in the past couple of years. The tenant of this house complained to me about a problem. Then we discovered that there is rising damp not through the walls but in some of the internal walls. A member of the family has a disability. We discovered there was no damp-proof course when we got the local authority, after some months, to excavate around the outside of the five-bedroom house. Without doubt, the lack of a damp-proof course provides there are still cowboy builders. What can the tenant do? Notwithstanding all of the issues that have changed, houses are still being built without a proper damp-proof course and it has taken six months for the tenant to be offered alternative accommodation. We lodged a freedom of information application with the local authority. The reply did not show any report whatsoever in relation to the missing damp-proof course. What do the witnesses think of the matter? I know it has nothing to do with them. I want to know what the hell is going on because I am concerned about the matter.
My next query is more for politicians than the professionals present. Let us say a council tenant finds himself in that situation. Due to the fact that he is a tenant, did not buy the house, and does not have specific knowledge or access to information, how does he vindicate his rights? In the context of the lady and her family that I mentioned, she approached me because I am a Deputy, then I contacted the council and she eventually got an offer of alternative accommodation this week. How can such people vindicate their rights? Can the lady I mentioned, or somebody on her behalf, complain to professional bodies? The problem with the house happened under the council's watch. This is what is going to happen in the new phase of all of these thousands of houses that are coming. How do we police the matter? I have written dozens of letters and held loads of meetings about the matter.
Ms Carole Pollard:
Design is also about the technical aspects of building rather than just the aesthetic.
With regard to how CIRI might address such an issue, Mr. Cormac Bradley's definition on the difference between inspections and supervision earlier is very helpful in this regard. Deputy O'Dowd said that the house was built relatively recently and I am not sure how many years ago.
Ms Carole Pollard:
Two years ago. Inspections and supervision are two very different things. An engineer, an architect or a building surveyor will carry out inspections at certain phases of the work. They are not on site Monday to Friday for the period of the build.
That responsibility for supervision must lie with the building contractor.
Ms Carole Pollard:
Notwithstanding that, CIRI, as we have said earlier on, is not a panacea for everything. We are always going to get poor workmanship but it is about how to minimise poor workmanship and then provide consumer protection so that if people are affected by poor workmanship, they have recourse to remedies. Inspections and supervision are very much part of that. In respect of defining the roles, I know BCAR has very closely defined the role of the engineer, architect and the surveyor in terms of assigned certifier and design certifier. Going back to the Deputy's very good question about what defines a builder, we need to have very strict definitions of what a builder does and what the builder's role is under BCAR. I would imagine that because a local authority tenant does not own the house, it may not have latent defects insurance, LDI, or access to a product like LDI. Then the local authority should have that in place. The length of term within which that a local authority or any landlord must act to identify and resolve problems is probably a bit beyond the Building Control (Construction Industry Register Ireland) Bill 2017. It probably lies elsewhere but it is something that needs to be looked at.
Ms Carole Pollard:
I aware of that. I am also aware of the mica situation in the Donegal-Mayo area and the difficulties experienced by people in that regard. The Deputy's question about who is and is not a builder is a very good one. It is an area where we need a very careful definition. As the Deputy said, there is a difference between main contractors and sub-contractors. As an architect, my employees come under my professional indemnity insurance that I hold for the practice. If one of my employees is signing off on the work, they must be a registered architect and comply with all the CPD requirements of that in terms of their experience, skills and knowledge and keep up to date. While a building contracting company may be a registered building company, there must be some way of identifying the persons within that company who hold the responsibility for signing off at the various stages.
Senator Murnane O'Connor asked how CPD is enforced. CPD is enforced by the registration body. If registered members are not complying with CPD, they come before the professional conduct committee, which can impose sanctions. In very severe scenarios, individuals could be struck off. CPD comes under the code of conduct. In our organisation, ethics come under the code of conduct and that is how they are dealt with. Everybody must follow the code of conduct. I agree that a publication of decisions needs to be done in a timely manner and be fully open and transparent.
I know the question about self-building was answered earlier so I do not want to rehash it too much. We need very strict restrictions around self-building which, again, are in the interests of the consumer. From what I have heard, people who engage a local person to build an extension or dwelling for them have run into incredible difficulties because in many of those instances, people are building those houses and extensions out of cash flow - cash or income coming in - and they get to the stage where they need to borrow money to complete the work. An area with which I am familiar where there are many unfinished dwellings results from the fact that people have gone to a lending institution to borrow money to complete a dwelling only to find that the lending institution will not lend them the money because they do not have appropriate professionals looking after their build. Those people have got themselves into a very difficult situation where they have expended a huge amount of money to get so far and cannot go any further. This is not necessarily because of anything bad; it results from a genuine belief that they were doing the right thing so there needs to be a very strong public information campaign by the Department of Housing, Planning and Local Government to explain to the consumer in very clear and simple terms why BCAR is there and why these regulations are there. They are there to protect them. They are not there to cost money or be more onerous. They are there in the long run to make sure that people have houses that are worth the amount they spent on them and that they can sell on because everybody will need to sell their house at some stage. Not everybody passes down a house through a family forever. It is not down to lending institutions or a firm of solicitors to have control over halting a build because of lack of understanding of BCAR and its intention.
Yes, but what I am saying involves what happens nationally; it is not just an issue for my constituent. I am sure everybody has the same problem. It does create problems for the tenant of a public or private landlord if the house is falling down around them and nobody is listening to them.
Mr. Alan Baldwin:
We touched on the question regarding who is the builder in so far as it is a complex question. From a layman's perspective, there is a perception that a main building contractor is like a general building contractor whereas my opinion is that the very large main building contractors we see around the city are, in essence, providing management contracting services and have staff who complement that expertise, whether they are engineers, project managers or site managers. In essence, they are not really designed to undertake construction work. They are not like a general building contractor. Someone could not hand them a hammer and ask them to do some work. I am sure they would make an attempt at it but really they are there because of their expertise in terms of management or their background, whether it is engineering or whatever it might be. It is stated in the Bill under section 5 that the Minister may prescribe regulations to divide the register in such different divisions of categories of registered members and class of work as may determined necessary and appropriate from time to time. All of us around this table recognise that there are lots of people involved in the construction of projects. As I said earlier, my hope is that when CIRI comes in, those subdivisions recognise all of the necessary elements to bring a building together and that we do not just allow a situation to arise where one building contractor is given the title "building contractor" and we are back to square one. We must recognise that in essence, its job is management contracting. It is there to provide a service and has any number of subcontractors that support it in its endeavours in terms of doing the work.
In respect of fire safety, it is really important that in those subcategories, there is a division for fire sealing and fire stopping. The situation regarding the house mentioned by Deputy O'Dowd is very regrettable. I know for a fact that if it was being built under BCAR, there would have been checks and measures in place whereby an engineer and architect would have come to inspect that element of the work at a specific stage. That is what BCAR is about. It is putting a system in place that provides for checks and balances.
Deputy Fergus O'Dowd:I am happy to follow that up.
Mr. Cormac Bradley:
It is not one person who must be answerable. There are a multitude of sins in that particular example. The local authority must hold up its hand and say that it did not do its job.
One of the entities that is defined under the building control amendment regulations, BCAR, is the building owner. The building owner is now no longer somebody who simply pays the bill. The building owner has legislative and statutory obligations under BCAR that he or she cannot run away from.
Ms Caroline Spillane:
In respect of the questions, I will take the one on continuing professional development, CPD, and code of conduct, and Mr. Bradley will deal with the other ones.
What we have before us is a Bill. Obviously, when it becomes an Act it will be for the registration body to create a set of rules and those rules will give effect to what the registration body deems as appropriate regarding continuing professional development. The body may say that if one has been excluded from the register or if there is an issue in the past, then there is an additional requirement on him or her regarding continuing professional development. It would be important that the registration body makes those rules. Those rules could be capable of being transferred into a statutory instrument to give them effect. That is a useful provision that is there for the registration body.
The code of conduct is not a code of ethics. That seems clear in the Bill. What it is attempting to do is specify standards of conduct and practice that registrants would be required to operate against. There are provisions in the Bill where the registration body can take action against a registered member if those standards and conduct and practice are breached. This comes down to the kinds of rules and the approach the body takes to what it is going to do in circumstances where it finds that there has been a fall short in the standard. That is very much down to the board, which comes back to the Minister ensuring that he appoints persons who are competent and who will act in an accountable and transparent manner.
Most questions have covered a wide range of areas. I thank the three bodies for their presentations, for their commitment to the legislation and for their input to date. I acknowledge the issues that have been raised around the latent defects issue, and also the issue of ministerial appointments and the need to achieve the sort of balance felt is necessary in order for the board to do its work in an independent manner and be sure to do as we would hope it says on the tin.
I thank the witnesses again. We would hope to address some of the issues that they have raised with a view to the passage of the legislation during the various processes.
As there are no other questions, I thank all the witnesses. I really enjoyed the debate as the contributions made will add value to what the committee is trying to do here. I am sure the other members enjoyed it as well. The level of detail was exceptional. I thank the witnesses for taking the time to meet the committee and for the ongoing engagement they will, hopefully, have with us. I thank the members for their attendance as well.