5 things we learned from the construction products green paper

1.    Enhanced product standards

Currently, around two-thirds of construction products on the market are not covered by existing regulations, according to Paul Morrell and Anneliese Day’s 2023 review of construction products. This allows potentially unsafe materials to enter the construction system.

To address this, the government plans to implement a “proportionate, risk-based” general safety requirement that applies to all currently unregulated construction products. This may consist of manufacturers conducting risk assessments that consider their product’s intended use and “normal or reasonably foreseeable” conditions of use.

The new national construction regulator, announced alongside the green paper, would provide support and advice, including guidance setting out the principles against which the assessment of safety risks would be conducted by the manufacturer.

Meanwhile, products that already fall under current standards will also have to comply with new reforms, in line with the revised European Union Construction Products Regulation (EU-CPR) regime.

“For products in scope of the revised EU-CPR, the same mandatory standard will apply whether placing the product on the EU market or the United Kingdom market,” the green paper says.

Products that are “critical to safe construction” will have to comply with a recognised international or national standard, or a recognised third-party verification scheme, to be placed on the market.

There could also be a duty for a supervisor to oversee the installation of these critical products onsite and undertake quality control of the installation.

Testing and certification will still be carried out by private companies

The Grenfell Inquiry phase two report recommended that “the construction regulator should be responsible for assessing the conformity of construction products”. However, this is not what the government is proposing.

The green paper warns: “We need to ensure we do not introduce conflicts of interest of a different nature if one body were to undertake both the issuing of conformity assessment certificates and regulation of that.”

It adds that the government is also “acutely aware of the risk of capacity issues” were one organisation to be solely responsible for issuing certificates.

Instead, the government proposes that private assessment bodies should continue to undertake testing and certification, but that they will be subject to “substantively increased oversight” by the new regulator to ensure safe products.

All third-party certification schemes will be required to maintain a high level of “rigour, consistency and transparency”. This could involve regular audits and inspections by the national regulator to evaluate their adherence to the proposed standards.

The construction regulator will also be able to set minimum requirements that schemes must meet, such as the frequency of audits, sample testing, and the type and age of equipment used to carry out the test.

The regulator would also be expected to undertake targeted “market surveillance and enforcement” of the schemes in operation, for example through periodic audits.

Additionally, there could be merit in requiring all schemes to have upfront approval from the national regulator, which would mean approval is required before a scheme can be adopted.

The regulator would therefore be the decision-maker on whether an assessment body should be granted a licence.

Stronger sanctions for manufacturers that neglect their responsibilities

The new regulator will be able to impose sanctions against manufacturers and others that breach safety obligations. Options include fines based on company revenue and powers to limit individuals’ activity in the industry.

Other suggestions include the power to request product samples, powers to issue improvement notices to improve the business practices of a company, and the power to issue cost recovery notices to recover the national regulator’s expenditure on carrying out enforcement action.

In the worst cases, the regulator could apply its powers to suspend or prohibit supply across multiple products from the same manufacturer. Where individuals are convicted of serious offences related to construction products, such as gross negligence manslaughter, the regulator could prevent them from working in the industry again.

The green paper proposes that a breach of the regulations would be a criminal offence that is punishable by an unlimited fine, imprisonment, or both. The regulator would be able to decide whether to issue a civil monetary penalty or pursue a criminal prosecution.

Review of legal routes for individuals to seek redress

The government said it would review and improve legal routes for individuals to seek redress from construction product manufacturers for defective products, including financial compensation.

A key question is whether this strengthened redress for residents will apply to retrospective misconduct, or merely to future misconduct.

Inside Housing understands that a decision has not been made on this, and such legal changes would require new legislation in parliament.

The green paper reads: “The message to construction product manufacturers should be clear – if your products have caused, or cause, safety risks and defects that need to be remedied, you should contribute to the costs of fixing them.”

More transparent labelling and marketing

All construction products will be required to feature clear, accessible labelling with critical safety information. This includes the intended use of a product, the risks associated with the construction product and any necessary installation advice.

Manufacturers would also be required to label products with their trademark and company details to enable traceability. Such requirements would create a legal duty for manufacturers to be transparent about the properties of the products they sell.

Manufacturers must maintain and provide full test data of their products for the national regulator. A central library of construction products will be established, which was another specific recommendation from the Grenfell Inquiry report. This will house data such as test results, certificates of compliance and relevant academic research.

The green paper reads: “We think the library could fulfil a valuable role as a trusted source for all those that need access to information about the safe and appropriate use of products, whether that’s industry professionals, the general public or the national regulator.”

Digital product passports will be introduced with information on the safety, composition and potential hazards of each product.

The government is seeking views on what further legislation may be required to support the provision of clear and accurate product information, and to support honest marketing to ensure products that can be safely used.