Building a Safer Future: New regulator means safer construction products and materials

As those who have followed media coverage of the Grenfell Inquiry will be aware, it has highlighted the dishonest practice seemingly employed by some manufacturers of construction products. As observed by Housing Secretary Robert Jenrick, “the Grenfell Inquiry has heard deeply disturbing allegations of malpractice by some construction product manufacturers and their employees and of the weaknesses of the present product testing regime”.

On 19 January 2021 the government announced the establishment of a national construction products regulator to address the issues raised by the Grenfell inquiry. The new regulator will be responsible for ensuring that materials used to build homes are made safer. In particular, the new regulator will:

• Have the power to remove any product that respresents a significant safety risk from the market, as well as prosecute any companies who breach the product safety rules.
• Have strong enforcement powers, including the ability to conduct its own product testing when investigating concerns.
• Operate within the Office for Product Safety and Standards (OPSS) which will be expanded and given up to £10 million in funding to establish the new function.
• Work with the Building Safety Regulator and Trading Standards to encourage and enforce compliance.

The government has also commissioned an independent review to examine weaknesses in previous testing regimes for construction products, and to recommend how abuse of the testing system can be prevented. It will be led by a panel of experts with regulatory, technical and construction expertise. The government will report on the results of the review later this year.

Also of interest is the Construction Products Association (CPA)’s draft industry code on construction product information, which addresses concerns about the testing, information and marketing of construction projects identified in Dame Judith Hackitt’s 2018 report, ‘Building a Safer Future’ (see our consideration of the Hackitt Report here).  A consultation on the CPA’s draft code opens on 1 February and will run until 31 March 2021. The code aims to ensure that all construction products manufacturers provide product information that passes five “acid tests”: that it is clear, accurate, up-to-date, accessible, and unambiguous.

Establishment of the new regulator represents the next stage in the government’s overhaul of building fire safety regulation.  We have already seen the establishment of a new Building Safety Regulator and publication of the draft Building Safety Bill. The government has now consulted on the draft Building Safety Bill (see our articles here and here) and its response to the comments received is expected shortly.

These further moves to improve building safety in the UK must be viewed alongside the changes to product standards that arise from departure from the EU.   When the UK was part of the EU, the quality of construction goods, materials and products was controlled by EU regulations, specifically the CE mark. CE marked products will still be allowed in the UK market until 1 January 2022, but the intention is to end recognition of the CE mark by then¹. A UK marking system will be introduced for products to be used in the UK market requiring conformity assessment by a UK-recognised approved body.  It is hoped UK Conformity Assessed (UKCA) marking will align closely to the CE marking system so as to ensure goods pass the equivalent CE standard without the need to carry out further testing. However, without mutual recognition of standards, the industry will need to repeatedly seek certification for products for use in EU states.  The extent of any link between the new construction products regulator and the new UKCA marking system remains to be seen.

Information about the new construction products regulator is currently sparse. We await further information, together with the results of the government’s review of the construction product testing regimes, in due course.  We also anticipate the imminent publication of the government’s response to its consultation on the draft Building Safety Bill.  This is a rapidly evolving area; we are monitoring developments closely and will provide further updates as they occur.

1. Different rules apply to goods imported or exported from Northern Ireland