Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

I thank the Minister for his opening remarks. As the Minister said, defects and shoddy building work continues to impact tens of thousands of private homeowners and social and private rental tenants across the State.

Today's news about the additional cost to taxpayers arising from building practices in our public schools once again confirms not only the legacy of light-touch building control regulation and the underfunding of council building control departments, but also the need at every opportunity to strengthen our building control and compliance system.

I want to give the legislation before us today a very cautious and heavily caveated welcome. I will outline those concerns in a moment. It is important to reflect that this legislation has an incredibly long history. The earliest versions of the construction industry register were first circulated by the then Department of Local Government in the 1960s. Members of the Department will probably be aware that in 1977 the Law Reform Commission heavily criticised those drafts and called for a fully independent and robust construction industry register. In 1997, there was a strategic review of the construction industry by the Department and other sectors and again that recommended an independent register. Phil Hogan, in his 2014 post-Priory Hall reforms, promised such a statutory register and, as the Minister said, introduced it first on a voluntary basis. The general scheme of this Bill was published in 2017 as the Minister will remember. We did pre-legislative scrutiny at that time. Finally, 60 years after the beginnings of this, it is coming before the House. I share the Minister's view that we urgently need a statutory register of construction industry professionals to ensure compliance, raise standards and, crucially, provide much-needed consumer protection.

Unfortunately it gives me no pleasure to say that the Bill before us is deeply flawed and will need significant amendment. We genuinely want to work constructively with the Minister and his officials to try to strengthen this much-needed legislation. In general, our key concerns are that in the first instance there are no clear aims or functions of the register. They are not listed as would ordinarily be the case at an earlier stage in legislation, to provide absolute clarity for the holders of the register and those individuals and organisations on it.

For this register to work it has to be completely independent. It should not under any circumstances continue to be located within the Construction Industry Federation. That was never acceptable as a voluntary register and it is not acceptable now. The reason is simple. The Construction Industry Federation is a lobby organisation for industry. It is not the appropriate mechanism to ensure full compliance with codes of conduct or indeed wider aspects of building control. I am firmly of the view that the National Building Control Office, independently established by a previous Government, would be the right location, albeit with a requirement for a significant increase in staff and resources.

The lead-in time is far too long. The voluntary register has been in place for industry to acclimatise to since 2014. If I understand the legislation and the press release that accompanied it, registration may start next year. The requirement for some of the designations will be a statutory requirement from 2024 but there is no timeline for when all of the designated construction industry individuals and professionals will actually be required to come under this. My view is very simple. They have known this was coming for a very long time. They know what the requirements are. They are very similar to what is there on the voluntary register. Once this legislation is passed, they should have to register as a matter of urgency and within a period of six to 12 months.

The inspection process is incredibly cumbersome. High Court approval at the end, particularly given that there is already a High Court appeals mechanism, is completely unnecessary. The sanctions are too limited. There is no mention, when an offence is ultimately determined, of fines, compensation or adjudication for remediation of defective works. It is also completely unclear how this legislation will relate to existing building control regulation, in particular the building control amendment regulations, and compliant enforcement. There is no requirement for building control officials or expertise on the board or the appeals committee. There is no reference to building control expertise in the competencies. I am still a little unclear as to which category of building works the provisions of this Bill will eventually apply. As the Minister knows, we have four different forms of commencement notices. Are they all included? What about works that do not require commencement notices? That is particularly relevant in the context of the large number of self-built homes the Minister is dealing with in the western seaboard counties affected by defective blocks.

On the same note, it is also deeply concerning that there is no mention of building suppliers, construction product suppliers and market surveillance. Although not in the original Bill, which was to do with construction industry professionals, I see no reason those manufacturers and suppliers of construction-specific products could not also have been brought under this legislation given that they are related.

Sinn Féin is not opposing the Bill. A bad statutory register is better than a weak voluntary register. However, given what we know about the impact of both builders and developers, I am strongly of the view that we have to do much better. We have already started working on significant numbers of amendments to address our concerns. Before I hand over to my colleague, I will go through specific concerns section by section. I do not expect the Minister to reply to every one of these in his response. I would be most grateful if the Department could respond to some of them by way of a written note to the Oireachtas Joint Committee on Housing, Local Government and Heritage by way of clarification, in case my interpretation of the Bill is wrong or to provide the Minister's view.

Why are the aims and objectives of the register not listed in the Bill in an article or section very early on as would normally be the case? I just do not understand it and think it is an omission. In section 8, the appointment of the registration body, the criteria are completely arbitrary. Why can one only appoint a body for the register that has been in existence for ten years and has more than 300 employees? The only reason to have those criteria included is to ensure that it is only organisations like the Construction Industry Federation. That does not indicate competence to do the job and therefore I am not clear why those criteria are being used. They make little sense to me. It is clear that those criteria are there for the purposes of the CIF being the body that is appointed. How can that be considered independent? I am not questioning people's individual integrity or operations. However, if people want to ring this body to make a complaint, they will be ringing through to the building where the Construction Industry Federation operates and will then be diverted to the complaints officials who will be staffed, if I understand the Bill right, by employees from within the registration body. That raises all sorts of potential problems.

I am a bit confused about section 9 and why there is not an explicit reference to the public appointments system. I know in fairness to this Minister, for example, in the appointment of the chair to the board of the LDA, he rightly used the Public Appointments Service as he said he would do. However, some of his Cabinet colleagues are not so diligent in using the valuable Public Appointments Service. There have been recent controversies. Why not just name it in the Bill for the avoidance of doubt?

Section 18 allows the registration body to make its own rules. This is a very broad provision. Why, for example, is the Minister, Department, Government or indeed the Oireachtas not directly involved in that? That is something that concerns me greatly.

Section 19 has no specified role for the relevant Oireachtas committee in terms of the registration body's annual report. It is an omission and should be amended. Section 21 is in respect of the inspectors. Will they be staff members of the registration body and therefore of the Construction Industry Federation, an organisation that lobbies for the very same people the inspectors will be inspecting with all of the problems involved?

I will make the same point about section 22 in respect of the board. It would be cleaner to mention the requirement for the Public Appointments Service. Sections 22(4)(a) and 22(4)(b) seem to be contradictory. There will be group of people on the board who are not allowed to be construction industry professionals and there will be other people on the board who are allowed to be construction industry professionals and indeed will be required to be such. This seems to be a tension. It could be that I do not understand the reasons for it. I would be interested to know them. Again, section 24(10) requires the appeals committee to be independent. How can that be the case given all of the concerns about where this register and the staff involved will be located?

On section 26(12), why will all appeals not be held in public? Why are some potentially in the public interest while others are not? I would have thought all of these were in the public interest.

For example, the RTB publishes all of its determinations, not just some of them depending on the view of its board.

Is section 44(1)(f) on complaints relating to the code of conduct strong enough? Given that we do not know what the code of conduct will be, surely this provision should reference non-compliance with building control regulations, malpractice, evidence of defects, etc.

One of the oddest provisions in the Bill is section 44(4). If I as someone with a concern about the work done by a registered building professional make a complaint, it will go to mediation. That is eminently sensible. If the mediation fails, though, the complaint will automatically go to adjudication as would be the case in the RTB. I will have to make a fresh complaint. This makes no sense, will create an additional administrative burden and waste time. The complaint should go straight to determination as would be the case in the RTB and other bodies.

Regarding section 48, it makes no sense that the inspector cannot make a recommendation on sanctions. That is what happens in the RTB, albeit slightly differently. An Bord Pleanála's inspectors make recommendations. I see no logic in an inspector who knows the case and has set out the facts not being entitled to make a recommendation. The board could then make a decision on whether it accepts that recommendation, as is the case with An Bord Pleanála in respect of planning permissions.

Regarding section 49, surely oral hearings should be held during the investigative period in order to expedite matters. Why leave them until afterwards? It is an unnecessary delay, cost and concern.

Why are there no fines, compensation or remediation under section 49(8)? Obviously, striking someone off the register is significant and it is right to have two tiers but why only that sanction and not others? If a builder has been struck off for defective work, who will remediate the contracting party for shoddy work?

Something that makes no sense to me is section 53. If a determination has been made that someone is guilty of an offence and that person does not appeal it to the High Court, why should the board still need to have its determination approved by the High Court? That seems unnecessary. Of course there should be the right to a High Court appeal for the person affected by the decision - that is correct - but if he or she does not appeal, why force on the registration body and its board the cost, time and inconvenience of having to go to the court? It does not happen with the RTB or other agencies. It seems to be one of those cases where our current Attorney General, who does not like administrative justice, wants to reassert the primacy of the courts once again whereas administrative justice works very well, as we know from the RTB and other bodies.

Section 58 is on the publication of sanctions. All documentation – the decision, the sanctions and the inspector’s report – should be published.

I wish to repeat my comments on the transitional arrangements under section 59. We need clarity on the timelines. By when will everyone have to be registered?

I could be wrong in my reading of section 63 on the relationship between investigations and criminal proceedings. Are we seriously saying that, if the registration body finds a registered contractor guilty of an offence and that finding stands in the High Court, no other criminal proceedings can be taken against that individual? Would that prohibit building control officers in local authorities or the National Building Control Office from taking further action in respect of significant defects? Does that affect all proceedings in the courts, including building control enforcement? If that is the case - I hope it is not – then it presents problems.

I urge the Minister to work with us on this. He knows that I have a passionate interest in matters of building control. Like him, it is an issue I have been working on for a long time. This Bill could be very good. The additional protections for good-quality contractors and those who contract their services and live or rent in the homes they build could be even greater. Please work with us to strengthen the Bill and deal with many of the issues that other Members and I will raise. We will then have a construction industry register that is fit for purpose.

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