Debate resumed on the following amendment:

After clause 1 insert -

"Defective materials, products and design features etc.

1A. In the Defective Premises (Northern Ireland) Order 1975 after Article 4 insert?—

'Defective materials, products and design features etc.

4B.—(1) The Department may, by regulations, specify?—

(a) particular building materials;

(b) particular building products;

(c) structural design features; and

(d) any other construction details as the Department may consider appropriate,

which are likely to give rise to a cause of action under Article 3 [or Article 4A].

(2) The Department shall have due regard to the Building Regulations (Northern Ireland) Order 1979, and guidance published under those Regulations, when specifying any materials, products, features or other construction details under paragraph (1).

(3) An action shall not be deemed to fail solely on the grounds that the premises in question does not feature a material, product, feature or other detail specified in regulations made under paragraph (1).

(4) The provisions of this section shall be without prejudice to other considerations the court may deem relevant in the determination of an action under this Order.

(5) Regulations under this section may not be made unless a draft of the regulations has been laid before and approved by a resolution of the Assembly.

(6) Before any regulations are laid before the Assembly, the Department shall lay a report with the Assembly detailing the factors which will inform the content of the regulations.'." — [Mr McCrossan.]

We now resume the Consideration Stage of the Defective Premises Bill.

Thank you, Mr Speaker, for my late addition to the list of Members to speak. I appreciate being called.

I welcome the amendment that my colleagues tabled. I want to speak for the many people whose homes are in danger owing to circumstances beyond their control. Last week, during the Second Stage debate, I referenced the pain felt by residents of Hunter's Mill in my constituency.

The development is, in part, sinking. The houses are listing, and some have been knocked down. The sewerage infrastructure is compromised, and the development's roads are uneven. NI Water has suggested that it might be 30 years before the land settles and it can do any work on the sewers, because otherwise they will simply give way once again. That has caused a difficulty with flushing toilets in some houses and with water flowing away. The road in that small development is bumpy in places, and, as a result of the land movement, it has not been adopted.

Here is a list of things that the residents are facing: their neighbours' houses have already been knocked down because they were collapsing; the sewerage pipes are cracking and giving way, which is causing sewage issues; the road network is breaking up and unadopted, which causes problems for bin collections; and no yellow grit boxes have been placed in the development, because it has not been adopted. All of that became evident after the 10-year deadline had passed for residents to use the new building insurance scheme. They have struggled to rest easy. They are having difficulty sleeping at night. They cannot sell their houses, because people cannot get mortgages to purchase them.

One significant issue is that, when planning was approved, the houses were not on the floodplain, but the floodplain has moved. Subsequent planning decisions resulted in its redirection, and that has compromised residents' homes. Planning applications in other parts of the town have thus contributed to the pain that the residents are feeling. That is why the amendment may give them some hope, because proposed new article 4B(1)(d) states:

"any other construction details as the Department may consider appropriate".

There is an opportunity, if the amendment were to pass, for the Department to assess whether external decisions resulted in the state that the homes are in. Like the residents of Victoria Square, as well as other examples on these islands, those people bought their home in good faith. The houses are, in some instances, crumbling around them. The houses are not functioning as they should, and the residents are being left to deal with the situation, because they purchased them when none of the issues was evident.

The amendment would provide some support and give the residents a glimmer of hope that, down the line, there may be a resolution. The residents have invested their life savings in their home, which is being ruined before their eyes. I therefore hope that the situation can be assessed as a result of the amendment, which I support.

Before I address the amendment that Mr McCrossan and Mr Durkan tabled, I put on record my thanks to the Assembly, the Committee for Communities and the Executive for supporting the progress of the Bill through the House. I also offer my thanks to the Office of the Legislative Counsel for its rapid yet thorough advice on each stage of the Bill's progress so far.

I turn now to the amendment. It proposes introducing a new article 4B to the Defective Premises (Northern Ireland) Order 1975. Article 4B(1) would grant the Department a permissive power to produce regulations that identify particular materials, products, structural design features or any other construction detail that the Department thinks might give rise to actions under article 3 or 4A of the 1975 Order. Article 4B(2) would require the Department to have regard to the building regulations when making such regulations, while articles 4B(3) and 4B(4) would allow for actions to be taken for any reason not listed in the regulations, and that the regulations themselves should not prejudice any other considerations that the courts may wish to apply. It goes on to impose further duties on the Department to produce a report to the Assembly on the content of any such regulations, while requiring these to be debated by the Assembly before being made.

I recognise the intent of the amendment and the sincerity of those who have brought it, but I cannot support it, for a number of reasons. Primarily, my concern with the idea of such a prescribed list is that it is difficult to determine in advance just what products, materials or design features should be included on such a list. The materials or products may not in themselves be likely to contribute to the dwelling becoming uninhabitable, but rather their inclusion with certain other materials, or the particular way that they are used, may lead to certain future defects. It would be difficult, if not impossible, for officials to predict, even in the abstract, that the use of certain products would result in actions under articles 3 or 4A of the 1975 Order.

Where a material, product or structural design is known to lead to defective premises, there is already a legislative solution in place to restrict or even deny their use, namely, part B, 'Materials and workmanship' of the building regulations. I have them here, in front of me, for the benefit of the House. It says:

"In any relevant work— (a) the materials used shall— (i) be of a suitable nature and quality in relation to the purposes for and the conditions in which they are used; (ii) be adequately mixed and prepared; (iii) be applied, used or fixed so as adequately to perform the functions for which they are designed; and (iv) not continue to emit any harmful substance longer than is reasonable in the circumstances."

What we have already in law is what anybody could possibly need in order to make sure that this situation does not come about.

My second concern with the proposed amendment is that it has no legal effect in real terms. This has been backed up by the legal advice that I have received. While it may imply that the inclusion of a product or material on a prescribed list may benefit a claimant's case, it then goes on to state that exclusion from the list does not affect the claimant's chance of success, nor does the prescribed list prevent a court from considering any other matters when considering a claim. Instead, it creates a greater administrative burden on the Department by requiring any regulations that would be produced through the proposed article 4B(5) to be debated in the Assembly before they can be made and by creating a requirement in article 4B(6) for the Department to produce a report to the Assembly before any regulations are made under this amendment.

So what does the amendment do? It places an administrative and resource burden on the Department. It does not help claimants because it has no legal effect, but it does mandate a list being put together, albeit if a material is not on the list, it does not affect the claimant's chances of success. So the claimant can succeed if the product is listed; equally, the claimant can succeed if the product is not listed. So the question is: what is the point of the list?

Mr McCrossan talked about the need for proper scrutiny. He rightly highlighted the concerns that some Members have in relation to the use of the accelerated passage procedure. However, I can say to the Member that this has gone through the full legislative process in England and Wales. I have engaged with Committee members. My officials have made themselves available to the Committee. I have answered queries from Members, and my officials have engaged with a number of stakeholders, including the Office for Product Safety and Standards; UK Finance; the Royal Society of Ulster Architects; the Communities Committee; the Attorney General for Northern Ireland; the Department for Levelling Up, Housing and Communities and Departments in other jurisdictions; the Building Safety Regulator; residents and residents' groups; practitioners and industry professionals; the Office of the Legislative Counsel; the Departmental Solicitor's Office; and Ulster Garden Villages.

In addition, I came to the House with a ministerial statement that outlined what I intended to do. Furthermore, we are two years behind England and Wales so we should foresee any potential unintended consequences and have some time to examine those issues. By Mr McCrossan's own admission, he has not even engaged with other members of the Committee. I recognise that we are using an accelerated process today, but we have engaged.

The legal advice that I have received is clear: the amendment does absolutely nothing. It has no legal effect. All it does is place an administrative burden on the Department. The purpose of any Bill must be to change the law. The proposed amendment does not make any legal change to the Bill that would benefit either party to a claim. For that reason, together with those that I outlined earlier, I cannot give it my support, and no other party should, either.

I call Daniel McCrossan to wind.

[Pause.]

It is Mark Durkan to wind.

Thank you, Mr Speaker. You can do it if you want, Daniel.

I welcome the opportunity to speak today on our proposed sensible and sensitive amendment to an important piece of legislation that will afford more protections to homeowners and occupiers. The majority of Members who have spoken have outlined the suboptimal nature of accelerated passage, including the Minister. It is certainly less than satisfactory. It reminds one of the old adage: legislate in haste, repent at leisure. The aim of our amendment is to make sure that we have nothing to repent. I wonder whether the DUP will repent for the two years that it left us without an Assembly and Executive, and left people without the protections that the legislation will, hopefully, afford them.

Will the Member give way?

Yes.

The Member is doing exactly what Daniel McCrossan did earlier; he is deflecting because there is no substance to the arguments. I ask the Member a question that is simple for anybody who has taken the time to understand what is in front of us today: what is the Member proposing in his amendment that is not already covered by the building regulations that I read out earlier?

The amendment — I will come to this in detail in the body of my speech — as my colleague outlined, provides other options and routes to recourse for those affected. As was outlined by Mr McCrossan, there is a significant disparity between the North and England and Wales in the limitation periods for legal action regarding defective buildings. That disparity leaves homeowners here at a significant disadvantage, unable to seek timely access to justice and compensation, the impact of which, as we have heard today, has had devastating consequences for so many families across this island.

Aligning our limitation periods is not only fair but essential to protect the rights of homeowners in the North and to ensure equitable treatment across jurisdictions. It is important that we get this right, and that we future-proof it, so that more people will not be left high and dry, like so many thousands of families in the South and, of late, so many apartment owners in south Belfast. Our amendment future-proofs existing legislation by offering legal protections for a situation that not only has plagued our neighbours in the South of Ireland but is now rearing its ugly head here in the North. The unfolding disaster of defective building materials is already here, and it is, sadly and scarily, inevitable that the situation will become more pronounced in the time ahead.

We need to address the matter now. The Executive mindset has been, "Why should we do something today that can be put off to next year, the year after or the year after that?". I am shocked but not surprised that other parties are putting all their eggs into the "We'll bring another Bill in the future" basket. How many times were we caught with that one in the last mandate, which has led to less than satisfactory legislation on private tenancies, gambling and even licensing?

I have been contacted by several constituents directly impacted by the issue. To date, their cries to government have fallen on deaf ears. Homeowners across the border in Donegal, Mayo and Limerick, closer to home and, indeed, at home — I am aware of cases in Derry — have seen their lives upended by the use of substandard materials in the building of their homes. They face unimaginable stress, financial ruin and the loss of their most valuable asset, namely their children's home. All the while, the walls of what should be their sanctuary are crumbling around them. Despite what the Minister might think or wish, we are not talking about a faraway land; the cases are a stone's throw from my constituency. All of us will have constituents who own holiday homes in the South and have been cruelly excluded from any redress. I appeal to the Minister to raise the issue at the NSMC and to ensure that his legislation excludes no one on the basis of their permanent residence.

I thank the Member for giving way. He will understand that there are certain things that are within my control and certain things that are not. I recognise the problems that many people in Donegal in particular have faced. Will the Member explain — I come at this sincerely and genuinely — what his amendment would do that is not already covered in the building regulations that I set out? That is the key point, and I would love to know his perspective on that. What does his amendment do that is not already done in the building regs?

It will remove ambiguity. I have to ask the Minister this: what do the existing regs or legislation do when people whose properties have been affected by mica and other defective materials have come to his Department and the Department of Finance and not got any answers, not even, "Oh, sorry, your building is seven years old, so you are outside the six years". They have just been told, "This is nothing to do with us". The legislation before us will extend the validity of the existing provisions, but excuse me for thinking that it might not do the job that the Minister thinks it will.

I thank the Member for giving way. On that point, to my knowledge seven cases have been identified by Derry City and Strabane District Council: six social homes that have received redress and one private home that, I think, was not eligible for redress because of when it was built. Those are the only cases that have come forward, but I go back to the main point: what would your amendment achieve? You asked how many cases have come forward to me: it is a very small number, and redress has been given to the houses affected. That was done through what is in the building regs, so I ask again: what do you add through your amendment?

I thank the Minister — well, I am not sure that I do thank him — for that latest intervention. The number of cases to date — seven — is small, but it is the tip of a potentially large iceberg. I am not sure what redress those cases have received. There are other cases, and Mr McCrossan has written on behalf of constituents to various Departments. I am not blaming the Minister or even necessarily his Department for this, but those people have not been told what protections exist in legislation for them. The Minister confirmed to me earlier that there were six social housing properties in Derry that the Department was aware of as early as 2018. That begs the question as to why action was not taken at that point and why, in 2021, the then Minister for the same Department denied any knowledge or responsibility and advised that the issue had not been identified north of the border. There are and have been inconsistencies in the Department on the issue.

Also in 2022, the Finance Minister, Conor Murphy, denied that it had anything to do with him. When asked about his engagement with the Irish Government on the matter, he said that his Department did not have policy responsibility for housing. We already knew that, and therefore those conversations did not happen. However, his response suggested that Minister Hargey at DFC held that responsibility and chose not to intervene.

That was particularly hypocritical given that, at that time, Minister Hargey's party, Sinn Féin, was rightly demanding 100% redress for those impacted in the South and decrying their abandonment by their Government while people here were denied the opportunity even to be heard. Instead, the door was slammed shut in their face. Through our amendment, we want to ensure that they can at least have a foot in the door and that that cannot happen again. I appreciate the Minister accepting his Department's responsibility for some elements of this because, to date, there has very much been a "Nothing to do with me" approach.

We have spoken about Derry City and Strabane District Council's initiative to establish a register of defective premises. If there are only seven on that register, I fear that it will grow. On 6 January, when the council's director of environment and regeneration wrote to the Department's permanent secretary regarding defective mica blocks, officials responded in the same month to advise that the issue pertaining to defective mica blocks was a reserved matter and was not within the Department's responsibility. I am not sure how they received redress when, at the same time, the Department was denying any responsibility and saying that it was a reserved matter.

That is why we need the amendment. It would put it in statute with no ifs, buts or shadows for anyone to hide in that there is protection for people. There has been no further correspondence with the council since then, as far as I can establish. I would like the Minister to commit to his Department re-engaging with the council on the issue and to assure it that existing legislation will cover any one landlord or property owner who comes forward in the future.

Will the Member give way?

Yes.

The Member has been generous about interventions, and I appreciate that. I am trying to bring clarity to the debate. Certainly, the Department stands ready to help with explanation of any of the current legislation. The legislation that we have provides opportunities for homeowners to seek redress from any party, including material providers, that has contributed to the construction of or carrying out of major work on a dwelling that is subsequently deemed to be uninhabitable due to poor workmanship or poor building materials.

I am sure that my officials will have no issue in engaging with the council or, indeed, with anybody else on those issues to explain the legislation and the opportunities for redress that exist. I am confident that what we have in the building regulations right now covers all the issues that the Member has described. The materials used should be of a suitable nature and quality for the purposes for which and the conditions in which they are used. That should cover it.

I appreciate the Minister's offer of his Department advising me, I suppose, the council and, most importantly, people who may be affected of the content of existing legislation. However, that will possibly have come too late for some, given that, only a short time ago, the Department was saying that the matter was nothing to do with it and that it was a reserved matter.

I am disappointed that Executive parties oppose the amendment. Some Members, including the Minister, say that there is no need for the amendment and that existing legislation affords the requisite protections. If that is the case, why, as I said, has nobody who has been similarly affected been able to get any answers to date or even been told that they do not qualify on the grounds of falling outwith the prescribed time frame? Others oppose it because of the risk that it might do too much and have unintended consequences, as Ms Mulholland said. I would hate to think that it is a case of Executive parties circling the wagons and voting against our amendment on the basis that it has been tabled by the Opposition, because that really seems like opposition for opposition's sake.

Will the Member give way?

Sorry, Andy, I will come to you in a minute.

We cannot sleepwalk into a situation similar to that in the South. We will not be forgiven for it, and we will not forgive ourselves for it.

I thank the Member for giving way. The Member will appreciate, given his former role on the Communities Committee, that we have always worked together constructively. However, as the Minister has asked on several occasions and as I asked in my speech, what difference will the SDLP amendment make? I know that the Member has cited ambiguity, but it is already covered by the current legislation. I am not convinced. If the party opposite had engaged with Members to convince us of the merits of the amendment beyond what the Minister cited, we may have been able to take a different approach.

I thank the Member for his intervention. As I have stated again and again, there are people whom the current legislation has not helped. Until now, the Department seemed unaware of the legislation and the protections in it. Our lack of engagement has been due to time, because this has happened in a truncated fashion. I regret the fact that we have not been able to have that engagement and form a consensus on the issue, but it needs to be done because, believe me, in the future, there will be consensus on the issue and there will be regret that what needs done was not done now.

We must not lose sight of our responsibility to our constituents. In our view, the amendment is not just a legal necessity; it is a moral imperative. Again, I ask — one last roll of the dice — for your support, and I hope that the Bill can help restore the public's faith in our building standards and regulatory systems. We must make sure that this is a strong Defective Premises Bill rather than weak, defective legislation that will leave more people exposed to huge expense, anxiety and unimaginable upheaval.

Question put, That the amendment be made. The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 27; Noes 38

AYES

Dr Archibald, Mr Baker, Miss Brogan, Mr Delargy, Mrs Dillon, Mr Durkan, Ms Ennis, Ms Ferguson, Miss Hargey, Ms Hunter, Ms Kimmins, Mr McAleer, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Mrs Mason, Ms Á Murphy, Mr C Murphy, Ms Ní Chuilín, Mr O'Dowd, Mr O'Toole, Mr Sheehan, Ms Sheerin

Tellers for the Ayes: Mr Durkan, Mr McCrossan

NOES

Dr Aiken, Mr Allen, Mr Beattie, Mr Blair, Mr Bradley, Ms Bradshaw, Mr Brett, Mr Brooks, Ms Brownlee, Mr K Buchanan, Ms Bunting, Mr Butler, Mr Chambers, Mr Clarke, Mr Dickson, Mrs Dodds, Mr Donnelly, Mr Dunne, Ms Eastwood, Ms Egan, Mr Elliott, Mrs Erskine, Mr Frew, Mr Harvey, Mr Honeyford, Mr Irwin, Mr Kingston, Mrs Little-Pengelly, Mr Lyons, Mr McMurray, Mr McReynolds, Mr Mathison, Mr Muir, Ms Mulholland, Ms Nicholl, Mr Robinson, Mr Stewart, Mr Tennyson

Tellers for the Noes: Mr Brooks, Mr Kingston

Question accordingly negatived.

Clause 2 ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

Long title agreed to.

That concludes the Consideration Stage of the Defective Premises Bill. The Bill stands referred to the Speaker. I remind Members that the deadline for tabling amendments for the Further Consideration Stage of the Bill is 9.30 am tomorrow, Wednesday 12 June. Members, please take your ease before we move to the next item of business.

(Madam Principal Deputy Speaker [Ms Ní Chuilín] in the Chair)