11/01/2022

A new regulatory regime and a new regulator: a new era for the regulation of construction products in the UK?

The UK Government’s Building Safety Bill (the Bill) which is currently passing through parliament and is expected to receive Royal Assent in 2022 will reform the regulation of the building and construction sector. The key elements of the Bill are discussed in our previous article. Here, we look at the changes the Bill and associated legislation intend to make to the construction products regulatory regime.

The new regulatory regime

One of the key aims of the Bill is to strengthen the construction products regulatory regime in the UK.

Specifically the Bill:

  • Creates powers for the regulation of products with “designated standards”, which cover the same products regulated by the EU framework.
  • Creates the concept of 'safety-critical products' and provides the Secretary of State with powers to place such products on a statutory list and regulate these separately.
  • Creates powers requiring manufacturers to ensure that products they place on the market in the UK that are not already covered by the regulatory regime are safe.

Perhaps more importantly, the Bill also provides for the strengthening of the existing market surveillance and enforcement regime in an effort to restore public confidence in the construction sector and those responsible for regulating it.

In particular, the Bill provides that regulations may be introduced to allow relevant authorities (for example, Trading Standards) to:

  • Carry out market surveillance and test purchases.
  • Search premises and seize and retain products.
  • Suspend or prohibit the marketing or supply or a product.
  • Require the withdrawal or recall of a product.

The Bill also provides for the creation of provisions for and in relation to the sharing of information between relevant authorities (to include, for example, fire and rescue authorities and The Health and Safety Executive) and for the creation of new civil penalties and criminal offences for breach of the new regulations.

In accordance with the Bill provisions may also be created to provide powers to relevant authorities to recover costs attributable to the operation of the regulatory regime from regulated parties.

These new provisions effectively lay down the groundwork for the introduction of a National Regulator for Construction Products (of which see more below).

The National Regulator for Construction Products

The government announced the establishment of a new National Regulator for Construction Products (the Regulator) earlier this year, in January 2021. Of note, the establishment of a more effective enforcement, complaint investigation and market surveillance regime with national oversight was of the recommendations made by Dame Judith Hackett in her final report on Building Regulations and Fire Safety.

More recently the government has published additional guidance about the role and responsibilities of the Regulator. In particular, the government clarified that the Regulator will:

  • Provide market surveillance and oversight including maintaining a national complaints system and supporting local Trading Standards so that safety concerns can be spotted and dealt with quickly.
  • Lead and co-ordinate the enforcement of the strengthened construction product regulations, including removing products that pose a safety risk from the market.
  • Provide advice and support to the industry to improve compliance as well as providing technical advice to the government.
  • Carry out or commission its own product-testing to investigate non-compliance.
  • Establish a robust and coherent approach with the Building Safety Regulator (to be established by the Bill) and Trading Standards (currently responsible for product safety) to drive change across the sector.

Based on its latest guidance it is clear that the government intends the Regulator to assume overall responsibility for the regulation of construction products once the Bill and associated legislation comes in effect; it is expected that the national regulator will “bring leadership to the regime”. Subject to parliamentary process, it is excepted that its full powers will come into force within 12-18 months of the Bill receiving Royal Assent.

The government’s guidance also confirms that the relevant regulatory framework will cover all products, including those already on the market and future products that are not yet available for sale. It is also anticipated that the Regulator will be able to retrospectively act against a company for breaches of rules that were in place prior to the implementation of the new regime.

As explained in the government’s initial announcement (and reiterated in its latest guidance), the Regulator will be led by panel of experts with regulatory, technical and construction industry experience and will operate within the Office for Product Safety and Standards (OPSS). According to the latest guidance, the OPSS, which has been given an additional £10 million funding for the purposes of establishing its new function, has already begun to set-up the Regulator and is currently working with other regulators operating within the existing regime including local authority trading standards.

Comment

Importantly, and as currently drafted, the relevant provisions of the Bill will apply in addition to the regulations already in place.

The Bill also goes further than existing legislation as it applies to all construction products placed on the UK market.

This contrasts with the current framework which, in relation to non-consumer products, applies only to products with an EU harmonised standard or conforming to a European Technical Assessment (now, in the UK, a designated standard and a United Kingdom Technical Assessment). That fact that there are many construction products which are not used by consumers and are therefore not subject to an existing EU harmonised standard or European Technical Assessment was something which became apparent after the Grenfell Tower fire incident and resultant investigations, and which is at the heart of many of these changes.