The building and fire safety regulatory framework: new national construction products regulator
This article was co-authored by Aoife Dunne, Litigation Assistant, London.
In December 2019 we looked into some of the key proposals for reform of the building safety regulatory system. Just over a year on, various developments have taken place as this area of law continues to evolve following the Grenfell disaster. Recent examples include the introduction of the Fire Safety Bill, which has progressed through both the House of Commons and House of Lords, and is now in its final stages before receiving Royal Assent. This Bill represents the biggest improvements to fire safety regulation in 40 years. A new Building Safety Regulator has also been appointed which is already up and running in shadow form with the Health and Safety Executive (HSE).
In this article, we take a look at the latest development, the appointment of a national construction products regulator, and consider the possible implications for businesses.
The new regulator
In January 2021, the Housing Secretary announced that the UK will establish a dedicated national constructions products regulator to monitor the safety of different construction products. The move is part of the Ministry of Housing, Communities and Local Government’s wider work to address the culture within the construction industry.
Serious concerns have been raised publically regarding the level and transparency of the ‘independent certification’ of products that have been used in buildings, including high-rise residential buildings. The regulator has primarily been set up to address these concerns and to create a formal process of monitoring the ‘fit for purpose’ testing.
The Housing Secretary said the decision followed testimony to the Grenfell Inquiry which highlighted apparent malpractice by some product manufacturers and their employees, including what has been described by the Inquiry in questioning as deliberate and dishonest attempts to manipulate the system, evidencing the weaknesses of the present product testing regime:
We are establishing a national regulator to address these concerns and a review into testing to ensure our national approach is fit for purpose. We will continue to listen to the evidence emerging in the Inquiry and await the judge’s ultimate recommendation – but it is already clear that action is required now and that is what we are doing.
The purpose of the regulator is to ensure, as far as possible, that structures are built from safe materials and provide vital market surveillance, enabling the UK Government to spot and respond to safety concerns more quickly and effectively. This will also offer protection to all new homeowners as it will include a requirement to ensure materials used to build new houses are made safer.
The regulator’s powers
The Ministry of Housing has indicated that the regulator will have wide enforcement powers including the ability to conduct its own product-testing when investigating concerns.
The regulator will also have the power to remove any product from the market that presents a significant safety risk and can take enforcement action, including bringing a prosecution against companies who do not follow the rules on product safety.
The regulator will operate within a division of the Office for Product Safety and Standards (OPSS) which is being expanded and which will be provided with up to £10 million in funding to enable it to get established. The regulator will also work in conjunction with the Building Safety Regulator and Trading Standards in order to further encourage and implement compliance.
The UK Government has 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.
The panel who will lead this review are yet to be confirmed however, these individuals will be experts with regulatory, technical and construction industry experience. The panel will report later this year with recommendations and we would expect their findings to bring about further changes to the current regulatory regime.
Both of these developments are important milestones in securing a tougher regulatory regime within the UK, with stronger inspection and enforcement powers. The area of fire safety will continue to transform and develop as further evidence is heard at the Grenfell Inquiry, and as the media continues to shine a light on this important area which did not previously have the regulatory framework that is now being put in place.
It is yet to be seen how heavy handed the regulator will be in its role – we are interested to see whether they take an advisory role alongside businesses to help them improve their fire safety product standards, or whether they will take on more of a ‘policing’ role and as such, move quickly to enforcement where businesses fall foul of the requirements.