Introduction and executive summary

Question 1

Foreword from Dame Judith Hackitt

Accepted Answer

In my final report “Building a Safer Future”, published in May 2018, I stated that “The system that covers product testing, labelling and marketing is at least as complicated as the entire regulatory system which was mapped in the interim report. It is apparent that the current system makes it difficult to know whether the right products are being used.” The report then went on to make some recommendations which would set a direction of travel for improved product safety.

In the intervening period since my report was published, it has become increasingly clear that improvements in construction product performance assessment must form a critical element of the new, stricter regulatory framework. To that end the government’s decision to create a Construction Products regulator under the OPSS is very much welcomed.

This report marks a major step forward in mapping the complexity and opacity of the current construction product regime and also identifies ways in which significant improvements can and should be made. Paul Morrell and Anneliese Day are to be commended for the thorough way in which they have gone about this complex task. This is an opportunity which must be taken, and with some urgency.

We must move from a state where: up to two-thirds of products are unregulated, there is lack of clarity around purpose of testing, the fitness for purpose of current standards is questioned and there is no enforcement to implement a process that delivers quality and confidence.

It should be self-evident to everyone that we need products which do the job they are expected to do and are marketed honestly and transparently, that Conformity Assessment bodies must be adequately resourced, independent and impartial to provide confidence, and that those who design and build buildings must choose the right products; but it is equally clear that there have been and still are serous gaps in our current system.

The task now is to use the wealth of information mapped out here to create a new framework that drives the right behaviours, which enables effective enforcement by the regulators and delivers buildings where people can have confidence in their quality and safety.

Dame Judith Hackitt DBE FREng

Question 2

Preface

Accepted Answer

The fire at Grenfell Tower has exposed serious weaknesses in the regulation of construction work. It is clear that such weaknesses extend to the regulation of construction products, and tackling them is the particular focus of this independent review.

Since the Construction Products Directive was first published in 1988, with a primary objective of serving a single market by the removal of technical barriers to trade, the United Kingdom has been part (and an active part) of the European standards infrastructure which has set common standards for construction products. To date, assessing their conformity to standard and performance has been directed by the EU using the standards created by CEN and CENELEC, the platforms for the development of European Standards^{[footnote 1]}. The subsequent CE marking of products was a declaration by the manufacturer that the product would meet certain performance requirements as set down in the standards (a “Declaration of Performance”), but matters of health and safety remained the responsibility of member states.

That position remained unchanged when the Directive was replaced by the Construction Products Regulation in 2011 and, in the absence of additional national requirements, trust in all aspects of a product’s performance relies upon compliance with that Regulation and its effective enforcement through the UK’s Construction Products Regulations 2013.

Thus, a system originally designed to serve a single market is now expected to perform a much heavier role; and over the last 30 years, although the UK has been an influential participant in the process, it has depended upon the EU to set the regulatory framework for products.

This has led to a hollowing out of expertise in the UK, with consequent examples of over-reliance upon the standards and statutory guidance displacing professional judgement; with false or unsubstantiated claims for product performance not being recognised for what they are; and, although member states remain responsible for surveillance and enforcement, with the authorities responsible for both lacking the experience or capacity to hold to account those acting in breach of the regulations.

Moreover, the globalisation of supply chains has made the sector more complex. Product innovation has moved ahead of the standards and regulations that should guide and govern it, and sometimes ahead of the technical knowledge required to inform both standards (including testing standards) and regulation.

The Grenfell Tower tragedy and the failings it has laid bare have made clear the imperative for change. Further, the exit from the EU provides an opportunity to look again at the whole system of construction product regulation, and how it might be both simplified and strengthened to restore confidence in the claims made for construction products and the critical part they must play in making buildings safe.

This review therefore looks across the whole system of construction product regulation to provide an understanding of what needs to change before products are placed on the market – and, crucially, before they are placed in buildings. It asks how product users can make informed choices about fitness for purpose and how, through the right processes, diligent oversight and the principles of transparency and accountability, there can be confidence that products are selected, handled, installed, operated and maintained against clear and verifiable Declarations of Performance.

There is more than one path through the necessary change programme, but this is fundamentally a systems issue and it demands a systems approach. Each step through this complex landscape of interconnected issues therefore needs to be planned with a full awareness of all of its potential consequences, to develop a new regulatory regime that is both coherent and effective. Crucially, that regime needs to be underpinned by equally effective and properly resourced surveillance and enforcement that is sufficient to identify safety issues at the earliest opportunity, before problems become widespread, and to hold relevant actors to account.

Acknowledgements

This review has depended upon the goodwill of the many people who have freely given of their time to share their experience, knowledge and opinions. They are listed in full in Appendix 3, and we thank them all. We also acknowledge the particular assistance of the following:

David Bigland, Chair, UK Group of Approved Bodies
Anthony Burd, Associate Director and Head of Built Environment, BSI Standards
Peter Caplehorn, Chief Executive, Construction Products Association
Dr Hywel Davies, Chair, Building Regulations Advisory Committee
Chris Miles, formerly Chair, UK Group of Technical Assessment Bodies
Suzannah Nichol, Chief Executive, BuildUK
Mike Wood, Adviser to the All-Party Parliamentary Group for Fire Safety and Rescue

In addition, the review has been assisted by many people in both the Department for Levelling Up, Housing and Communities and in the Office for Product Safety and Standards in the Department for Business and Trade. We express our particular thanks to the immediate support team for the review in both DLUHC and OPSS.

Paul Morrell OBE (Chair)

Anneliese Day KC

Question 3

1.  Terms of reference

Accepted Answer

We are appointed by the Secretary of State for Levelling Up, Housing and Communities (hereafter “DLUHC”^{[footnote 2]}), to address the question: “How should the UK system for testing the safety of construction products and the use of data from the system be strengthened, to inspire confidence that those products are safe and perform as labelled and marketed when incorporated into construction work?“

We are asked to do this by:

(1) mapping the system for testing, certifying, marketing, selling, re-testing and recalling construction products;

(2) assessing what does/could go wrong within this system; and

(3) recommending how the system should be strengthened.

The review is not limited to construction products intended for use in high rise residential (now “higher-risk”) buildings, but the system for testing products not intended for use in construction is outside the scope of the review.

A full copy of the terms of reference is included in Appendix 2.

Post-dated note: the review and this report have a base date of December 2021. At that time, the version of the Building Safety Bill available for reference was that introduced into Parliament on 5 July 2021. The Bill was subsequently enacted on 28 April 2022, and although it incorporates changes made to the Bill during its passage through Parliament, there are no amendments that have a material bearing on the regulation or testing of construction products. So, for the purposes of this Report, and for simplicity’s sake, reference is made to the Building Safety Act.

Similarly, the relevant schedule of the Building Safety Act relevant to construction products regulations, Schedule 11, was previously Schedule 9 in the Bill. Except for the re-numbering, the schedule is unamended from the version introduced in July 2021 so, again for simplicity’s sake, references in this report are to Schedule 11.

More detailed updates are referenced in footnotes to this report but, save for these noted exceptions, neither the review nor this report take account of events after December 2021.

Question 4

2.  Structure of the report

Accepted Answer

This report summarises the conclusions of our review, and is presented in six parts:-

Part I: Introduction and Executive Summary
Part II: Mapping the Landscape
Part III: Building a Safer Future – The Response to the Fire at Grenfell Tower
Part IV: The Context for Reform – Objectives, Principles and Cross-cutting Issues
Part V: Analysis of Gaps and Weaknesses in the System, and Options for Reform
Part VI: Headline Summary of Recommendations and Conclusion.

Supplementary information is then included in a series of appendices.

Question 5

3.  Context

Accepted Answer

The over-arching context for the review is the major fire that occurred at Grenfell Tower on 14 June 2017 and its tragic consequences – the greatest loss of life in a residential fire in the UK since the Second World War.

The more immediate context is the work that has followed that fire, which has considered both what actually happened and what can and should be done now to ensure the safety of people in the buildings that they occupy. The principal outputs of this work have been:-

(1)The interim and final reports resulting from the independent review of building safety conducted by Dame Judith Hackitt^{[footnote 3]} (“the Hackitt Review”).

(2)The government response to the Hackitt Review^{[footnote 4]}.

(3) The summary of responses to the government consultation on Building a Safer Future^{[footnote 5]}.

(4) The Building Safety Act, first published in draft on 20 July 2020, introduced into Parliament on 5 July 2021 and enacted on 28 April 2022.

(5) More particularly, Schedule 11 of the Building Safety Act which gives the Secretary of State wide-ranging powers to make regulations changing the system by which construction products are currently assessed, marketed and regulated; and the secondary legislation which, by virtue of Schedule 11, was proposed to supplement the existing Construction Products Regulation. This was published as an indicative draft only, alongside the Bill^{[footnote 6]}.

(6) Records and reports related to the consultation, scrutiny and detail of the Building Safety Bill, including the Select Committee final scrutiny report^{[footnote 7]}, the government response to that report^{[footnote 8]} and the Impact Analysis.

(7)The Grenfell Tower Inquiry chaired by Sir Martin Moore-Bick, which was announced on 29 June 2017 and commenced hearings on 14 September 2017. The report of the findings of Phase 1, which addressed events on the night of the fire, was published on 30 October 2019; and Phase 2, which is investigating the wider circumstances of the fire, is still in progress as at the base date of this report.

Although the evidence in Module 2 of the Grenfell Tower Inquiry relating to the testing, marketing and sale of construction products is clearly the stimulus for this review, it is specifically not part of our terms of reference to assess that evidence, nor to establish the facts of what happened on 14 June 2017, nor to consider any aspects of culpability. Those are all matters for the Inquiry and the concurrent police investigation.

Any allegations made or implied in the Inquiry have therefore been anonymised in this report, and the approach that we have taken is that if those allegations are capable of being true then, whether or not they are subsequently shown to be well-founded, effective and proportionate measures that would reduce or eliminate the risk of them coming true in the future should be taken.

Question 6

4.  Approach

Accepted Answer

Although the product testing regime is the core subject of the review, it is clear that both testing and products are part of larger systems.

Testing, although a convenient shorthand, is just one part (and not invariably an essential part) of a conformity assessment system that has to be addressed in the context of what happens both upstream (product development, sampling etc) and downstream (factory control and series production, product selection and specification, storage and handling, assembly and installation, maintenance and operation etc) - with traceability being an issue throughout. The use of the term “testing regime” in our terms of reference, and throughout this report, is therefore taken to refer to this larger context.

Conformity assessment (the process of confirming that a product meets the requirements of relevant standards, as described in detail in section 12 below, which also draws the distinction between testing and certification) is itself then part of a larger National Quality Infrastructure – “a structure of standards, agreements, codes and regulations designed to ensure that when we buy something – as businesses or consumers – we get exactly what we expect”^{[footnote 9]}.

Products develop from raw materials to a basic product (insulation, for example), into a component (an insulated panel) into a system/assembly (cladding) and then into a completed building, with all of its systems and sub-systems, which must be built, commissioned, maintained and managed to serve its intended purpose.

It is also important to remember, both in the context of testing and the products themselves, that although one consequence of the fire at Grenfell Tower will understandably be a focus on performance in fire, products have to meet (and be assessed as meeting) other requirements relating to the basic requirements of a building. These include structural strength, toxicity, acoustic performance etc; but also, increasingly, qualities that do not relate directly to the life and safety of building users - most obviously issues of carbon, energy efficiency and the wider measures of sustainability; and just as the aims of regulations relating to construction products have widened, conformity assessment has also become more concerned with broader issues of consumer protection.

None of these objectives is exclusive of the others, and it does not reduce the urgency of considering matters of resistance and reaction to fire. It does, however, point to the need to consider all of those aims and objectives, and interactions between them, and to be aware of unintended consequences in changing any one part of the system.

Question 7

5.  Methodology

Accepted Answer

With the support of a designated team from within DLUHC and the Office for Product Safety and Standards from within the Department for Business & Trade (hereafter “OPSS” and “DBT” respectively)^{[footnote 10]}, we have proceeded principally by background reading, and seeking to discuss the relevant issues with as wide as possible a spectrum of organisations and individuals with a particular interest in the manufacture, assessment, specification, installation and regulation of construction products.

Those discussions have generally been held on the basis of the “Chatham House Rule”, and individuals are quoted in this report only with their consent.

We have also received and considered a number of written submissions.

Reference to the documents of primary relevance and interest is included in footnotes; and Appendix 3 includes a list of those who have given their time to assist the review, to all of whom we give our thanks.

We also charted the journey of products from raw material, through production, testing/assessment, marketing, selection, design, handling and installation to final use after their incorporation into construction works. This served as a constant reference to consider those points in a product’s life cycle where trust in their performance might be built and protected - or lost.

Question 8

6.  Constraints

Accepted Answer

There have been constraints bearing on the ability of the review to reach a comprehensive and conclusive set of recommendations. Principal amongst these are:-

(1) Timing and a changing landscape

Dame Judith Hackitt has expressed the view that ‘the system that covers product testing, labelling and marketing is at least as complicated as the entire regulatory system’; but the time originally allocated for this review, and for the research and consultation necessary to complete it, limited the opportunities for making good gaps in data, and for holding more cross-industry events for consultation and feedback.

This review has also been conducted whilst there is still a considerable amount of uncertainty about a number of factors that are germane to the subject. These include:

(i) Uncertainty remains about the arrangements to be put in place for conformity assessment following the UK’s exit from the EU, and particularly in respect of product marking. This has been a particular distraction for the industry, and a distraction from the consideration of possible system improvements to take effect in the longer term. During the course of this review the implementation date for mandatory UKCA marking has been postponed from 1 January 2022 to 1 January 2023^{[footnote 11]}, but issues about capacity remain.

(ii) Both the Construction Products Regulation and the General Product Safety Regulations as applied in the EU are in the course of review and revision^{[footnote 12]}. Subject to decisions on alignment, this is less relevant to Great Britain following withdrawal, but the reasons for revision may still be relevant, and the revisions themselves will be relevant in Northern Ireland as a result of the Northern Ireland Protocol.

(iii) The Building Safety Bill was in draft at the time of commencement of the review, and remained subject to change during its passage through Parliament whilst the Review was in progress. In addition, many of its detailed provisions were to be implemented by secondary legislation. Much of that has now been published in draft as well, including details of the requirements of the golden thread, the coverage of gateways 2 and 3, and a revised set of Construction Products Regulations, but again these are subject to consultation and change until they are passed into law.

(iv) Hearings on Module 6 of The Grenfell Tower Inquiry were in progress at the time of conducting this review and will be followed by further evidence from expert witnesses. This includes material of direct relevance to this review, given the announced intention of taking evidence on “the adequacy of the current testing regime”. The Inquiry has (and requires) powers and access to resources and technical expertise that is far beyond the reach of this review, with the Inquiry website^{[footnote 13]} referring to almost 280,000 documents. So, if new or different evidence emerges from future modules of the Inquiry, then recommendations made in this review in the absence of that evidence should be reviewed and may need to be revisited.

(2) Lack of data

Because there has, until the revelations of the Grenfell Tower Inquiry, been a relatively low level of scrutiny of the construction products sector, and very limited enforcement of regulations relating to its products, there is an equally limited dataset about the sector.

For example, as far as we have been able to discern there is, in the UK:

no comprehensive listing of companies engaged in the manufacture, import or distribution of construction products;
no generally accepted standard classification system by which the industry and its products can be monitored and analysed;
no analysis of the size of the testing/assessment market, nor of the structural characteristics of the sector (in terms of concentration for example) - and therefore limited understanding of its capacity to expand or of the impact on pricing of increased demand;
no comprehensive database of products that have failed to meet their claimed level of performance, or which represent a risk of harm.

In their June 2021 report^{[footnote 14]}, the National Audit Office noted that, in respect of domestic product safety, OPSS “inherited a regime lacking in good-quality national data” and stressed the importance of data to assessing consumer risks, spotting problems as they arise, and substituting prioritised action for reactive responses to pressing issues. It may well be that the problems in the construction sector are far worse than for consumer goods generally, due to historically low levels of surveillance and enforcement activity. Although primary responsibility for the enforcement of the Construction Products Regulations has rested to date with local authorities, this will be part of OPSS’s inheritance when it has access to more robust enforcement powers which the Government intends to introduce through secondary legislation.

In addition, the shortage of data identified by the NAO will represent a challenge to the new Regulator in the future, particularly in adopting a system of scrutiny based on levels of risk. This issue is being addressed (see section 36 below); but as well as being a problem for the Regulator it has been a problem for this review. We have been unable to refer to a sector-specific summary of construction products that have failed to comply in the past and which may therefore represent a risk in the future; and a review of safety notices issued over the first six-months of 2021 shows the focus to be on consumer products (and on toys and electrical equipment in particular).

Some Trading Standards Departments and local fire and rescue services can point to individual cases, but not to an accumulated database that can contribute to learning from the past in a systematic, reliable and usable way, nor can they provide data that could be analysed to identify trends and particular areas of concern.

The EC Safety Gate (formerly RAPEX) also shows a narrow coverage, with only 113 entries over the 13 years between 2007 and 2020, and with the UK accounting for only three of those. Almost three-quarters of all alerts relate to carbon monoxide or smoke detectors, with no other product category accounting for more than four; and 60% of the notifications relate to products originating in China, with no other country accounting for more than four.

The consequence is that the most immediately relevant data concerning the sector comes from the evidence given in the Grenfell Tower Inquiry, and this is addressed in section 19 below as part of the consideration of demonstrated gaps and weaknesses in the current testing regime.

In summary, we have sought to take an evidence-led approach to this review as far as possible, but that has been significantly constrained by time, lack of data and the continuing uncertainties outlined above.

There is, of course, no perfect time to carry out any single operation of an exercise that has so many moving parts, and it is to be hoped that this review may contribute to finding a way ahead on some of the uncertainties. The timing issue does, however, create the need for some reiteration that is not possible in a one-off review. We therefore take it that, in line with good practice, our findings and recommendations will be revisited when the position on some of the current variables is clearer – particularly when the Grenfell Tower Inquiry is concluded; and that all propositions for change will be the subject of a detailed impact analysis and included in a full consultation process on any secondary legislation relating to construction products.

Any proposed changes also need to take account of the following:-

the need for piloting in order to test practicality across the full range of thousands of different products;
a realistic time for the transition from existing to new ways of doing business;
the cost of implementation, and its proportionality to benefit (particularly bearing in mind that, for some products with a marginal return, additional cost could result in withdrawal from the market);
the capacity of the system to accommodate additional demands made as a consequence of the proposition, including a requirement for additional knowledge and skills, and therefore for training.

Question 9

7.1  Background

Accepted Answer

In his report at the end of Phase I of the Grenfell Tower Inquiry, Sir Martin Moore-Bick, concluded that the principal reason why fire spread so rapidly vertically up and around the tower was the presence of aluminium cladding panels with polyethylene cores. These acted as a source of fuel, with molten, burning polyethylene dripping down the face of the building igniting fires lower down. A further contribution was made by polyisocyanurate (PIR) and phenolic foam insulation boards behind the panels, and possibly by the components and detailing of the window surrounds.

The horizontal spread of fire was the result of fire breaking back into the building through the inevitable failure of the glass in the windows, with compartmentation within the building then being lost as a consequence of kitchen extractor fans deforming and some fire doors failing to close.

He also concluded that “there was compelling evidence that the external walls of the building failed to comply with … the Building Regulations”.

So, irrespective of any issues of accountability, the conclusion reached was that products which were inappropriately selected, or which were wrongly installed, or which failed to perform as they should, and/or which should not have been approved for use in the first place were implicated in the tragedy.

Subsequently, in Module 2 of the Inquiry, evidence was presented suggesting default on the part of those manufacturing and assessing construction products, severely undermining confidence in the system by which such products are regulated and come to market. These allegations fall broadly into four categories:-

(1) failure by manufacturers to disclose all information relevant to the product and its assessment;

(2) failure on the part of those responsible for testing to follow proper procedures in conducting the assessment process;

(3) failure to ensure that certificates or classification reports were properly supported by the assessment process;

(4) failure by manufacturers to ensure that performance claims made for their products were limited to those that were supported by the assessment process, and were not misleading.

Given the sheer volume of incidents arising in evidence, it cannot be assumed that the issues are unique to the refurbishment of the Grenfell Tower, and indeed subsequent experience of investigating and remediating hundreds of buildings that incorporate products similar to those used in the Grenfell Tower suggests that the problem is widespread, certainly in relation to fire safety.

It is also indicative of inadequacies in the regime by which products are tested and assessed before being placed on the market (the system described by Dame Judith Hackitt as “at least as complicated as the entire regulatory system that was mapped in [her] interim report”), in the oversight of that regime and in regulatory surveillance and enforcement.

The purpose of this review is therefore to consider how confidence can be placed in that regime in the future and what needs to change to ensure this can happen - in short, how testing and the data derived from it can be restored as a public good.

Question 10

7.2   The current regulatory regime

Accepted Answer

The main instrument by which building works are regulated is the Building Regulations 2010, as amended. As far as building materials are concerned, this requires them to be “adequate and proper”, appropriate for the circumstances in which they are used, and prepared and used “so as adequately to perform the functions for which they are designed”. Further details about products and their standards are then given in the Approved Documents, which provide statutory guidance on ways of meeting the requirements of the Building Regulations for some common building situations^{[footnote 15]}.

The main legislation through which individual products are regulated are the Construction Products Regulations (“the CPR”)^{[footnote 16]}. Originally implemented in the UK in 2013 through EU regulations (“CPR305/11”), the CPR retains the effect of these regulations, substantially unaltered, in UK law following withdrawal from the EU.^{[footnote 17]}

The CPR requires the manufacturers of products covered by the Regulations to make a declaration of the product’s performance before it is placed on the market. This declaration must be backed by a process of “assessment and verification of performance” (“AVCP”). The process varies depending upon the nature of the product, with a graduated system ranging from a fairly simple self-performed check through to a more rigorous exercise conducted or overseen by independent Conformity Assessment Bodies, approved by the Secretary of State (‘Approved Bodies’). This approval is given on the basis of accreditation by the United Kingdom Accreditation Service (“UKAS”), the National Accreditation Body.

There are 45 UK-based Conformity Assessment Bodies approved for this purpose^{[footnote 18]} and, although UKAS also accredits others, references in this review to Approved Bodies relates specifically to those approved by the Secretary of State for the provision of services required by the CPR.^{[footnote 19]}

Testing, where required, is conducted by reference to standards developed and agreed for adoption by the standardisation bodies belonging to CEN and CENELEC, the platforms for the development of European Standards, which include the 27 bodies of EU member states. Standards may subsequently be endorsed in a list published by the European Commission, becoming “harmonised standards”. Following withdrawal from the EU, the UK has mirrored this by the listing “designated standards” – which, ab initio, include all harmonised standards as at the date of the UK’s exit from the EU.

To reiterate the point, it is important to appreciate that the CPR applies only to products for which there are such designated standards.

The second element of the current regime is the surveillance and enforcement system which CPR305/11 required member states to put in place. This was implemented in the UK by the Construction Products Regulations 2013 (“CPR13”). These regulations designate as the enforcement authority the Local Authority trading standards officers (or “any local weights and measures authority”) in England, Wales and Scotland, and any district council in Northern Ireland. They also set out the powers of enforcement authorities (and some specific powers for the Secretary of State) and define offences under the Regulations and their consequences.

Question 11

7.3  Gaps or weaknesses in the current system

Accepted Answer

The susceptibility to failure of the process is attributable to matters that are either (a) systemic or (b) relate to individual conduct and performance.

Systemic issues include:

(1) Coverage. The most obvious gap in the current system is that only construction products for which there is a designated standard are covered by the Construction Products Regulation. The anecdotal estimate is that this accounts for about one-third of all construction products in manufacture – leaving (again anecdotally) 20-30,000 products unregulated.

(2) Purpose. The Regulation was primarily designed for the purpose of creating a level playing field for a single market, and not for ensuring a safe or sustainable product or building, nor anything else not specifically covered in an annex to the applicable standards. As a consequence, and with respect to our terms of reference, there isn’t actually a specific “UK system for testing the safety of construction products”: rather there is a system for assessing conformity to whatever performance requirements are set down in the standards.

(3) Standardisation. Everything depends upon the relevant standards (where they exist and are applicable): how a product is to perform, how that is to be tested or assessed, how Conformity Assessment Bodies (including Approved Bodies) are accredited and reviewed by UKAS, and how UKAS itself is reviewed. Although the framework by which standards are developed is a good one, the process can be slow, and the output insufficient and of variable quality. The result is that many standards are outdated, inconsistent or non-existent; and research conducted in 2020 on behalf of DLUHC questions the fitness for purpose of a number of standards critical for testing products for resistance and reaction to fire.

(4) Complexity. With five different routes and up to six steps through the system, the CPR assessment process is so complex that few people properly understand it, and there is a concerning disconnect between those involved in the assessment process and those who design and construct buildings. The criteria by which products are directed towards the different levels of this system are also unclear, and sometimes inconsistent. This renders the process opaque; and a system that cannot be readily understood is unlikely to be routinely observed and enforced, providing an opportunity for those who may seek to take advantage of a lack of transparency.

(5) Capacity. The whole system (for setting standards, conformity assessment and oversight) is overloaded and slow. This represents both a threat to quality and a barrier to reform; and there is a particular urgency in addressing capacity issues relating to the ending of recognition of CE marking in January 2023.

(6) Enforcement. Enforcement has been almost totally non-existent, so that bad actors feel that they can bypass the regulations without consequence. As far we can determine, there have been no prosecutions under CPR305/11 since it was enacted, and only a limited number of investigations by the relevant enforcement authorities (Trading Standards in England, Scotland and Wales, Environmental Health in Northern Ireland). There is, however, no centralised database of regulatory investigations or enforcement actions. Nor is there a centralised database of products that might represent a risk. Without effective enforcement the market cannot function freely, fairly and safely; and it is not possible to judge how well the regulatory regime might work if it were effectively enforced.

Matters of individual or corporate conduct and performance reflected in the allegations made in the Public Inquiry are beyond the remit of this review. However, if failures of performance are as widespread as suggested, then this indicates that the current regime is failing to prevent them – whether in the coverage or processes of conformity assessment by Approved Bodies (or, for voluntary certification schemes, of Conformity Assessment Bodies acting outside the coverage of the CPR); and/or the inherent limitations of the existing processes; and/or the accreditation, re-assessment and oversight of the Approved Bodies/CABs themselves by UKAS.

Beyond the assessment process itself, and irrespective of any strengthening of the regime, there will always be over-arching requirements for honest conduct, compliance with effectively enforced regulations and competent execution.

Our particular focus has therefore been on proposals that would underpin the assurance that should be provided by an effective system and that would ensure greater transparency.

Question 12

7.4  Remedies proposed in legislation

Accepted Answer

As far as the regulation of construction products is concerned, the primary targets of the Building Safety Act, and the secondary legislation relating to the regulation of construction products proposed in the Act, are coverage and enforcement.

(1) Coverage

All construction products will be brought into the scope of the CPR by virtue of a “general safety requirement”. This is derived from the EU General Product Safety Regulation (“the GPSR” - also retained in UK law) but extends its principles from consumer goods to construction products, which are designed to function as part of a system rather than on a stand-alone basis.

In addition, some products not currently covered by the CPR regime can be brought within it by virtue of being covered by a new designated standard (or an existing standard newly recognised as “designated”); or by being added to a list of “safety-critical” products to be set out in regulations by the Secretary of State.

(2) Enforcement

Under the new regime, enforcement is to be strengthened by means of:

a new regulatory regime, including two new regulators: a National Regulator for Construction Products, based in OPSS within DBT, who will work with a new Building Safety Regulator based in the HSE; and
requirements for manufacturers to share technical documentation and information with the National Regulator for Construction Products and/or enforcement authorities.

The ultimate objective must be to set clear requirements that call for honesty on the part of manufacturers in respect of full disclosure to the Approved Body conducting the assessment, in the Declaration of Performance, in technical information to accompany the product, and in all marketing information and other communications relating to the product, with a breach of any part of this duty being an offence subject to new sanctions available to the Regulator, and with effective enforcement action being taken where an offence is committed.

Question 13

7.5  Comments on proposed legislation

Accepted Answer

(1) The general safety requirement

There can be no argument with the principle of manufacturers being required to make their products intrinsically safe. However, concerns about meeting this objective arise in relation to:-

the practicality, proportionality and effectiveness of introducing a regulatory “catch-all” that captures all products and extends a principle primarily designed for stand-alone consumer goods to intermediate products intended to function as part of an assembly;
the potential open-endedness of the requirement and the consequent difficulty for manufacturers to know how they can legitimately protect themselves against an equally open-ended allegation;
the challenge to the National Regulator for Construction Products and enforcement authorities in surveilling the market without prescriptive measures of compliance; and
the probability of an extended and expensive dispute as to who or what is actually responsible for the failure, given that any breach is most likely to be detected only in retrospect once the product is incorporated into the works.

Another way of covering all products would be to require all manufacturers to issue a Declaration of Performance in the way currently required of products regulated under the CPR. It is acknowledged that that is not without difficulties either and would not be sufficient without further protections being in place in respect of intrinsic risk. It would, however, address the more positive requirement of dutyholders^{[footnote 20]} needing reliable information about the performance of products to establish their fitness for purpose before specifying and using them, rather than seeking to allocate responsibility after the event.

We therefore include in this report a recommendation that further consideration be given to extending the requirement for Declaration of Performance to all construction products (acknowledging that there would in turn need to be standards against which the products can be assessed), subject to consultation on the effectiveness of such a requirement in balancing benefit with burden.

(2) Enforcement

Regulatory clarity about a duty to act honestly, with any breach risking a significant sanction, should be welcomed by the majority of the industry, and our consultations suggest that this would be the case. In the words of one manufacturer faced with additional regulation, “Please try enforcement first”; so enforcement, as well as its potential as a deterrent to wrongdoing, is also an encouragement to those who play by the rules if it means they no longer have to compete with those who do not do so.

The issue of enforcement raises questions as to:

how effective the new regime will be, given its added complexity, the fragmentation of responsibilities, and the extent to which it places a reliance upon Trading Standards officers – most of whom are not trained or experienced in the construction products sector, are already overstretched, and who demonstrate little enthusiasm for taking on a more active role in this market;
whether and how the industry can be persuaded that enforcement will be both energetic and effective; and
· how regulatory continuity will be established in following products from manufacture to installation and use on site, given the split of responsibilities between the two new regulators.

This final point is of particular relevance if the definition of the golden thread for regulatory purposes runs only from the design stage. In those circumstances, any information required about product performance that is required to produce the golden thread will be a matter for the industry, possibly supported by official guidance. This is linked to the whole issue of traceability, which is considered in section 34 of this report, but the principle must be that there is a traceable chain of custody throughout a product’s life cycle.

Further thought about complexity and the provision of training for enforcement is needed if these new regulations are not to continue to suffer from the lack of enforcement that has existed to date.

(3) Safety-critical products

Viewed in isolation, the listing of individual products as safety-critical faces significant challenges in definition. For example, the same product can be safe in one use, and unsafe in another; and there need to be standards against which products can be assessed, and measures to ensure that they are not used for purposes for which they have not been assessed as fit.

However, if genuinely diagnostic, workable and legally robust criteria can be set for categorising products in certain applications as safety-critical (and the creation of such a distinct and comprehensive category covering all higher risk products matching those criteria is made an objective), then we believe that it would put the regulatory focus where it should be: on the potential for serious harm. And if defined in terms of the contribution that products make to safety-critical construction, their vulnerability to failure and the consequences of failure, that would lead to a substantive improvement in building safety – and to greater potential for the risk of harm to be addressed before the event.

Question 14

7.6  Comments on matters currently missing from proposed legislation

Accepted Answer

Many of the issues arising in the course of our review are not matters addressed in legislation as currently contemplated. These include:-

(1) Government, UKAS and the oversight of CABs. We would have expected there to have been a more definitive understanding established between Government and UKAS as to what might have gone wrong in the process that led to failures at the Grenfell Tower, insofar as that might relate to conformity assessment, than appears to be the case. This may be due in part to the nature of the remit given to UKAS (which is not a regulator, and has no enforcement powers), but it raises questions about Government’s expectations of UKAS and the way it manages its relationship with UKAS as its sponsor. It also points to the need for a change in the way that active oversight of the CABs is conducted, to something more dynamic and less predictable.

We believe there is also a place for a more ambitious role for UKAS, without compromising its impartiality: one in which UKAS informs itself and Government about strategic issues such as capacity, the health of the testing market (which is showing signs of consolidation), lessons and themes collected together from individual assessments, how third-party certification schemes could be strengthened, and so forth.

(2) The purpose of UKCA marking. Taking a wider view, the draft legislation does not take the opportunity to question the fundamental purpose of marking, nor the potential to both simplify the process and make it more meaningful if continuing alignment with the EU single market is not an objective. With freedom to develop standards to suit national priorities, a mark that signifies conformity with those standards could stand as a mark of safety, or quality, or whatever those priorities might be.

(3) The assessment process. The detailed assessment process (the AVCP system) needs to be both simplified and strengthened. However, by taking the existing Construction Products Regulations substantially in status quo, adding to it, and creating two additional levels of regulation (the general safety requirement and safety-critical products) the system will become more complicated. We have therefore proposed a series of graduated options, the culmination of which would be:

to apply the regulatory AVCP system only to products that are listed as safety-critical;
to redefine the AVCP system as a single level comprising the six steps of the existing AVCP system level 1+ with the addition of a requirement for labelling/traceability;
to require all safety-critical products to pass through all seven steps, unless any one of them is impractical because of the nature of the product;
for other products, to rely upon the general safety requirement, reinforced by standards and guidance which aid compliance;
to set a minimum standard for all third-party voluntary schemes, so that they replicate or surpass the rigour of the regulatory AVCP system, as redefined above;
to reserve technical assessment for safety-critical products for which there is no designated standard, as a transient provision until such time as a standard has been developed.

The effect of these changes would be to raise both the ceiling and the floor of the system, making the assessment of safety-critical products more stringent, whilst leaving less critical ones to the general safety requirement, so that (as above) the regulatory focus would be on products from which real harm might result in the event of failure.

(4) Conformity Assessment Bodies. With limited exceptions, CABs have not demonstrated any obvious sense of a need for change (or even critical review) in the wake of the fire at Grenfell Tower. We believe there should be a clearer statutory duty upon CABs to be aware that they are acting in the public interest when carrying out the conformity assessment process - whether regulatory or voluntary. This is in addition to our recommendation that there should be a duty to warn the National Regulator for Construction Products where they suspect a manufacturer of seeking to manipulate the system or make a false Declaration of Performance.

There would also be value in the creation of an Oversight (or Impartiality) Committee to ensure both that voluntary third-party certification schemes are operated with sufficient rigour and that manufacturers are dealt with efficiently and fairly. Depending upon the future role of UKAS, this could be part of their oversight function or a different approach could introduce a greater degree of self-regulation by the CABs themselves.

(5) Product manufacturers. There are also two significant opportunities for self-regulation on the part of product manufacturers:

increased use of voluntary third-party certification schemes (some of which are currently more rigorous than the regulatory process), but with a base standard no lower than the regulatory regime;
the potential for the Code for Construction Product Information developed by the industry to grow into something equivalent to the Advertising Standards Authority Code, with a view to resolving most low-level infractions without the Regulator needing to intervene.

(6) Government procurement. Government should use its buying power as an incentive to adopt good practice by setting out how the following could be accepted as criteria in consultant, contractor or product selection:-

designers and contractors demonstrating how they propose to produce safe building outcomes, approaching the building as a system;
designers specifying and contractors procuring products from suppliers who are committed to complying with the Code for Construction Product Information;
contractors signing up to the Building A Safer Future Charter and committing to verification.

(7) A joint government/industry action plan. The success of the Building Safety Act depends upon a certain amount of “machinery” being in place, most of which should primarily be the business of industry, but which will call for a continuing engagement by government. Examples include:

an awareness/education programme to reconnect the world of design and construction with the world of standards, testing and certification, and to promote awareness of the process by which products are regulated and assessed for conformity;
the prioritised review of product and testing standards including the development of new standards where necessary, the elimination of flaws and inconsistencies in existing standards and the means by which standards are developed and kept up to date;
guidance on the preparation of risk assessments in the context of the general safety requirement, and the consideration of whether new standards would support compliance with that requirement;
the use of AI/computer modelling as alternatives to physical testing;
standardised testing documentation;
protocols and digital standards for information management via the golden thread;
industry standards for product labelling;
mechanisms to manage product substitution;
developing, promoting and monitoring voluntary third-party certification schemes;
promoting and monitoring use of the Code for Construction Product Information;

Progress on the programme should then be the subject of a six-monthly report to the Secretary of State.

(8) Body of knowledge. The safety of a building does not just relate to fire, and issues relating to structure are as important. However, the body of knowledge about fire in particular is as fragmented and dispersed as the many organisations engaged in this specialism. This body of knowledge needs to be pulled together as part of the joint action plan, made accessible and kept under review, with a centre of excellence and the public interest at its core.

The critical need for industry engagement and for a more comprehensive and coherent body of knowledge renforces the vital importance of Government continuing to engage, at the right level and in a practical way beyond the role of legislator and regulator, in the programmed development of the knowledge, skills and tools by which building safety will be more securely delivered.

Question 15

7.7  Concluding comment

Accepted Answer

Amongst the least edifying spectacles of the Grenfell Tower tragedy have been the arguments deployed by successive parties in denying or deflecting responsibility. It is for the Public Inquiry to investigate and report on the failings that occurred and by whom, but there are some truths that should be taken as evident:-

that it is for product manufacturers to develop products that do the job expected of them, and to market them honestly, making no false claims;
that it is for Conformity Assessment Bodies to test and assess those products against defined specifications, impartially and independently, so that those who must rely upon performance claims can do so with confidence;
that it is for designers to choose products with the performance that is fit for purpose, and then design them into the works so that the performance can be achieved;
that it is for constructors to bring everything together with the same objective in mind - using imagination to find better ways of doing things by all means, but not, in a careless moment, throwing away all of the good work that has brought the product and design to that stage in order to save cash in the short-term, leaving the building owner and occupiers with a problem in the long-term;
that it is not for regulators or enforcement authorities to act as the industry’s quality assurance department and take responsibility for every infraction anywhere in the system, but it is their vital role to keep a watchful eye out for non-compliance, and to aid compliance;
that it is also for regulators and enforcement authorities to see that regulations are enforced where necessary - and particularly where they are wilfully ignored or carelessly disregarded; and
that all of the above depends upon clear regulatory requirements and standards that deliver the desired outcome.

Future reforms should ensure that such principles are reiterated and reinforced. On the basis of the engagement undertaken for this review, we believe that they would be supported by the great majority of the industry.

Introduction and executive summary

Applies to England

Foreword from Dame Judith Hackitt

Preface

Acknowledgements

Part I: Introduction and Executive Summary

1. Terms of reference

2. Structure of the report

3. Context

4. Approach

5. Methodology

6. Constraints

(1) Timing and a changing landscape

(2) Lack of data

7. Executive summary

7.1 Background

7.2 The current regulatory regime

7.3 Gaps or weaknesses in the current system

7.4 Remedies proposed in legislation

(1) Coverage

(2) Enforcement

7.5 Comments on proposed legislation

(1) The general safety requirement

(2) Enforcement

(3) Safety-critical products

7.6 Comments on matters currently missing from proposed legislation

7.7 Concluding comment

Is this page useful?

Help us improve GOV.UK

Help us improve GOV.UK

Cookies on GOV.UK

Applies to England

Foreword from Dame Judith Hackitt

Preface

Acknowledgements

Part I: Introduction and Executive Summary

1. Terms of reference

2. Structure of the report

3. Context

4. Approach

5. Methodology

6. Constraints

(1) Timing and a changing landscape

(2) Lack of data

7. Executive summary

7.1 Background

7.2 The current regulatory regime

7.3 Gaps or weaknesses in the current system

7.4 Remedies proposed in legislation

(1) Coverage

(2) Enforcement

7.5 Comments on proposed legislation

(1) The general safety requirement

(2) Enforcement

(3) Safety-critical products

7.6 Comments on matters currently missing from proposed legislation

7.7 Concluding comment

Is this page useful?

Help us improve GOV.UK

Help us improve GOV.UK