In this article, Resource’s Peter Jones gives his thoughts on the new Construction Products Regulator – what it could mean for construction, materials and regulatory practice in a post-Grenfell world.
A new national construction products regulator1 has been set up with a wide sweeping remit to ensure building materials are safe. The action has been driven by Grenfell Inquiry revelations that manufacturers ignored safety rules. The new regulator will have the power to remove any product from the market that presents a significant safety risk and prosecute any companies who flout the rules on product safety. The initial focus will be on materials for homes, but the scope will expand to all materials.
This marks the next major chapter in the government’s fundamental overhaul of regulatory systems around fire safety. The progress on regulatory reform includes the publication of an ambitious draft Building Safety Bill, representing the biggest changes and, hopefully, improvements to regulations in 40 years. The new Building Safety Regulator that is already up and running in shadow form.
The first step – how the current Building Safety Regulator operates
Representing a wholesale reform of the regulatory system for building control and safety in England, the draft Building Safety Bill2 is the Government’s most wide sweeping legislative response to the Grenfell Tower fire and Dame Judith Hackitt’s 2018 review of the building industry, “Building a Safer Future”3.
Central to this reform is the creation of a new Building Safety Regulator. The construction sector will need to be fully aware of this powerful and potentially intrusive new regulator; it is likely to become a force to be reckoned with.
Part 2 of the draft Bill establishes the new regulator and confirms that it will sit within the Health and Safety Executive, reporting to the Secretary of State. It will be responsible for implementing the new regulatory regime, overseeing the registration and inspection of higher-risk buildings, and will have powers relating to non-compliant projects. The explanatory notes to the draft Bill make it clear that the government’s expectation is that the regulator will take a proactive role and will not limit its regulatory activity solely to enforcement.
The building safety regulator has three main functions which it must exercise with a view to “securing the safety of people in or about buildings in relation to risks arising from buildings: and improving the standard of buildings”.
1. Implementing the new, more stringent, regulatory regime for higher-risk buildings –being the building control authority in respect of works on new higher-risk buildings and enforcing the new regime in the “in-occupation” phase.
2. Overseeing the safety and performance of all buildings – overseeing the performance of other building control bodies (previously, approved inspectors), and understanding and advising on building standards and safety risks.
3. Assisting and encouraging competence among the built environment industry and registered building inspectors – establishing and setting the strategic direction of the proposed industry-led competence committee and establishing a unified building control profession with competency requirements common across both the public and private sectors.
It is clear from government statements on the legislation and from Dame Judith Hackitt’s public statements that the regulator will take a pro-active approach to enforcing the proposed building safety legislation. It is unlikely to be a quiet, background role if it is to improve building safety and make it the number one consideration at all levels and stages of the construction process.
The ‘journey’ to the new Construction Products Regulator
The genesis of the new construction products regulator goes back to the Independent Review of Building Regulations and Fire Safety announced by the government in July 2017 following the Grenfell Tower tragedy. This was subsequently led by Dame Judith Hackitt.4
The report that was published and accepted by the government, identified that the current system of building regulations and fire safety is not fit for purpose and that a culture change is required to support the construction of buildings that are safe, both now and in the future.
The systematic failures identified has allowed a culture of indifference to perpetuate. Dame Judith Hackitt highlighted key issues underpinning the failed culture:
- Ignorance – Guidance and legislation isn’t necessarily read and can be misunderstood and misinterpreted.
- Indifference – The primary motivation seems to be to get things done as quickly and cheaply as possible. When concerns are raised, they are often ignored. Some carrying out the building work don’t seem to prioritise safety.
- Lack of clarity – On roles and responsibilities, increased by fragmentation within the industry.
- Inadequate regulatory oversight and enforcement tools – the package of regulations and guidance [in the form of Approved Documents] can be ambiguous and inconsistent. The product testing, labelling and marketing regime is opaque and insufficient.
What will the new Construction Products Regulator do?
The new body will be formed within the Office for Product Safety and Standards [OPSS], which will be handed £10 million to establish its new function. The UK building materials and manufacturing sector is worth about £60 billion per year5 with about 25,000 companies and there are 300,000 plus building sector contracting companies – these factors of scale and budget suggest the budget and resources will be stretched and involvement with manufacturers potentially limited.
The regulator will have the power to remove any product from the market if it presents a safety risk and can prosecute companies who ‘flout the rules’ on product safety. There is no clear explanation or legal definition of what ‘flout’ involves and what ‘rules’ covers (a recipe for confusion and inaction – but certainly good news for lawyers).
The new body is separate from the Building Safety Regulator, which is being set up as part of the Health and Safety Executive and already exists in shadow form. However, the government said the two regulators would work together.
Housing secretary Robert Jenrick said the decision to set up a regulator for construction products was in response to evidence given at the Grenfell Tower Inquiry. He said: “The 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.”
He was also quoted as hoping that the CPR will “stop the construction industry making dangerous products and avoiding safety checks with all firms having to pass a strict test enforced by the CPR.” What test and how is this done?
It will be able to bring criminal charges against executives ‘who defy the rules’, with all building products having to be approved by the CPR. What will be the process?
It will also take over product safety tests from BRE which was attacked by lawyers at the Grenfell Inquiry. Those lawyers added that BRE was ‘manipulated’ by ‘ruthless and criminal manufacturers’, and that the ‘testing and certification bodies provided no such protection but reinforced the dangerous and dishonest culture within the industry. They were far too close to those whom they were supposed to be overseeing and far too willing to accept their misleading claims’.
Important and practical questions that have not been raised include: If the CPR takes over safety testing from BRE, what happens to all the other test houses? Does the CPR just concentrate on fire safety or take over testing for all building products with 1,000s of test standards to police? Does CPR just test product performance or expand to testing of constructions involving multiple products?
Inside the Fixing Point factory
Resource construction & manufacturing companies are responding to the changing safety culture
While Resource companies uphold stringent regulations on the quality and use of their products, the new fire safety rules will require both up-skilling and a change to industry culture across the board – and that means Resource companies too. The successful delivery of projects will require detailed safety information. The change to culture and relationships with customers and supply chain goes beyond fire safety into every part of the product and service offer.
Looking forward, information will be key and all changes in the fire safety environment emphasises the importance of high-quality information collected on a regular basis to demonstrate compliance, quality and safety. Resource companies continue to invest in business planning and the managing of this data.
In the fire safety reports Dame Judith Hackitt makes repeated reference to the ‘golden thread of information’ that will play a key role in ensuring that projects are delivered effectively as well as safely. Maintaining that thread will require close cooperation and transparency between all stakeholders.
Manufacturers, for example, will be required to provide more input into design development and construction planning. As a result, Resource companies are investing the resources required to identify the gaps in skills, knowledge and risks and develop strategies through training, new staff and improvements to current working practice.
How manufacturing companies can get their product information in order
With all the changes, uncertainties and challenges outlined above a reasonable question is – what shall we do first, where do we start? Fortunately, it is not just manufacturing companies asking these questions.
The Construction Products Association [CPA], have established Construction Product Information Limited [CPIL] as an independent, not-for-profit organisation to be responsible for administering and managing the forthcoming Code for Construction Product Information [CCPI]. Research with the construction supply chain was done in 2019/20 and proposals for the management of construction product information has gone out for consultation. The Code responds to the changes required in information culture for fire safety but will also act as a template for all other product information. It is on track to be formally launched mid-year.
The draft Code has eleven steps to offer ‘Product Information’ that it is clear, accurate, up-to-date, accessible and unambiguous and can therefore be relied upon when making decisions about using those products at any stage of design, specification, installation, use, maintenance and disposal.
Construction Product: Information Creation
1. Have in place a documented sign-off process for creating ‘Product Information’
2. Have in place a formal version control process for all ‘Product Information’
3. Do not use misleading or ambiguous wording, phrasing or imagery and embrace the use of plain English to ensure accurate representation of ‘Product Information’ and performance claims
Construction Product: Core Information
4. Provide specific information where claiming compliance to, or achievement of any Certification, Classification or Industry Standard
5. You must provide verifiable information when making any product performance claims which are outside of Certification, Classification or Industry Standard tests
6. Make available on your website the descriptive and physical characteristics of the ‘Construction Product’
7. Ensure ‘Product Information’ is consistent with ‘Manufacturer’s’ supplied products
Construction Product: Associated Information
8. Publish on your website and make easily accessible, clear information on handling, installation, operation, maintenance and disposal of ‘Construction Products’
9. For any guarantees/warranties used in ‘Product Information’, your website must state what is: covered, excluded and required to comply with its terms. The guarantee/warranty should be transparent and, in a format, recognised by the relevant sector of industry
Construction Product: Support and Competence
10. Ensure technical helpline contact details (telephone and/or email) are visible on your website
11. Have in place a robust training programme (for new and existing personnel) to ensure that anyone conveying ‘Product Information’ is competent to the level of knowledge required for their role
For many years fire safety and regulation had been a very low priority of all politicians. Then overnight, the Grenfell fire bought it to the forefront and the recent rapid changes have been driven by the political reality to be responding to past failures and complacency.
The call of politicians and many interest groups has been to ban ‘dangerous building materials’. The emotive use of ‘dangerous’ has been used as reason for change and its actual meaning in construction not fully thought through. The great majority of things that are regulated across the economy can be tested and categorised simply as dangerous or not. There are tests and standards that deliver an unambiguous Yes/No.
Things are different in the world of construction products. No construction product is inherently dangerous.
It is the wrong choice in a particular application of materials, bad design, poor workmanship, faulty maintenance – all coming together which create the danger. It is people that make materials dangerous.
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References / citations in this article
1 New regulator established to ensure construction materials are safe, gov.uk (https://www.gov.uk/government/news/new-regulator-established-to-ensure-construction-materials-are-safe)
2 Draft Building Safety Bill, gov.uk (https://www.gov.uk/government/publications/draft-building-safety-bill)
3 Building a Safer Future [PDF], gov.uk, (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/707785/Building_a_Safer_Future_-_web.pdf)
4 Building a Safer Future [PDF], gov.uk, (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/707785/Building_a_Safer_Future_-_web.pdf)
5 Construction Products Association (https://www.constructionproducts.org.uk/)