An independent review into construction product safety has questioned whether regulators will be able to effectively enforce tighter standards.
The government-commissioned bombshell report also says product-certification bodies such as the Building Research Establishment (BRE) have failed to interrogate their operations following the Grenfell Tower tragedy in 2017.
Commissioned in April 2021, the authors of the review – former Whitehall construction advisor Paul Morrell and legal expert Anneliese Day – were asked to identify weaknesses in construction product testing and make recommendations for improvement.
The review comes after the Grenfell Tower Inquiry heard that tests run by certification bodies were “manipulated”, that certification bodies viewed tests for manufacturers as a major source of income, and that misleading and incorrect safety certificates were issued to combustible products.
The latest review says that the enforcement of historic construction product rules has been “almost totally non-existent, so that bad actors feel they can bypass the regulations without consequence”.
It points out that there has not been a single prosecution under the Construction Products Regulations 2013 since they were introduced to enforce “designated standards” of certain products – equivalent to around one-third of the products on the market.
Since the Grenfell tragedy, two new regulators have been formed under the Building Safety Act 2022 – a National Regulator for Construction Products that is part of the Office for Product and Safety Standards, and a Building Safety Regulator, which is part the Health and Safety Executive.
However, the review raises questions over how effective the new bodies’ enforcement will be.
Dame Judith Hackitt’s post-Grenfell review of building regulations called for the principle of a “golden thread” to be established and run throughout the life of a project, which the dual regulators will need to be able to trace materials for, the new report says. But it adds that it is unclear 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”.
Morrell and Day’s review also says the involvement of already overstretched trading standards officers in assessing construction products raises questions about the effectiveness of the new regime.
It calls for the government and industry to give “further thought” on how to enforce the Building Safety Act, “if these new regulations are not to continue to suffer from the lack of enforcement that has existed to date.”
Elsewhere, the experts lambast the conformity assessment bodies (CABs) that certify products, saying there has been a lack of understanding of what went wrong in relation to their work and Grenfell.
“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,” the report says.
The bodies – of which there are 53, including the BRE and the British Board of Agrément – should have a legal duty placed on them to be aware that they are acting in the public interest when carrying out their conformity checks, according to the reviewers.
Morrell and Day also recommend that the government requires them to declare to the UK Accreditation Service – the body that approves their work – if they are providing consultancy or any other services to customers who are also using their conformity assessment services. In such cases, they would need to show how they manage conflicts of interest.
The review also says CABs should be required to report manufacturers to the regulators if they appear to be “shopping around” for a test pass or if they misrepresent the conclusions of the assessments of their products.
In a foreword to Morrell and Day’s review, Dame Judith Hackitt says: “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 CABs 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 serious gaps in our current system.”
Other recommendations in the 174-page review include extending the requirement for manufacturers to sign declarations of performance to all construction products and drawing up a joint government-industry action plan on product safety to be reported on every six months.
The Department for Levelling Up, Housing and Communities has been contacted for comment.
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Ian Weinfass