In the aftermath of the Grenfell Tower tragedy and the ensuing revelations of “catastrophic” safety failures that had enabled the fire to spread so rapidly, the focus has been on implementing legislation and regulatory frameworks that will prevent such an incident from ever happening again.
For example, the Building Safety Act, which was introduced to Parliament in July 2021 and has since received Royal Assent, is considered to be the biggest upgrade to building safety law in a generation. Among other measures, the Act will facilitate the creation of a new and stronger regulatory system for testing and enforcing construction product safety. This will replace the current EU regulatory framework, which uses the CE mark, with a UKCA marking system as a result of Brexit. The new regulations are intended to take force from 1 January 2023.
What will change?
The existing regulatory framework, which is based on the EU Construction Products Regulation 2011, is widely perceived to have a number of weaknesses, which the new system will seek to address. For example, the EU regulations only apply to construction products that are either subject to a designated standard or which conform to a technical assessment. However, it became clear following the Grenfell Tower fire that some highly unsafe products – such as aluminium composite material (ACM) – fell outside of these criteria. The existing regulations also place no obligation on economic operators (such as suppliers) to ensure a product is safe.
The new framework, therefore, will introduce a ‘general safety requirement’ meaning that manufacturers and suppliers cannot put a product on the market unless it is a ‘safe product’. A product is a ‘safe product’ if:
“Under normal or reasonably foreseeable conditions of use, the product does not present any risk to the health or safety of persons, or, if it does, the risk is as low as it can be compatibly with using the product at all.”
The new regulations will also introduce the category of ‘safety critical’ construction products, which “could cause death or serious injury if they were to fail.” The UK standards body BSI is set to draw up specific standards for these products, including a system for assessment and verification of the constancy of performance (AVCP), which safety critical products must pass before being placed on the market.
How must the industry respond?
The new rules will be enforced both by local Trading Standards and a new National Regulator for Construction Products. These bodies will have recourse to range a of measures to sanction non-compliance, including both civil and criminal penalties. This means that suppliers and employers must move now ensure they are prepared for the introduction of the new framework. While this National Regulator will have its own testing capability in order to facilitate better market surveillance and enforcement, construction companies will also be expected to step up their product testing and certification processes, which may require the involvement of third-party specialists.
As a precautionary measure it is also vital for construction businesses to ensure they have up-to-date and comprehensive product liability insurance. Although this type of insurance is unlikely to protect against regulatory sanctions, it is an extra layer of protection that covers businesses against legal claims should a client incur damages due to a faulty product they have supplied.